Wolfsdorf Immigration Newsletter Mid-October 2009

1. DHS Rescinds 'No-Match' Rules

Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the final rules it promulgated in 2007 and 2008 relating to procedures that employers may take to acquire a safe harbor from receipt of "no-match" letters, which the Social Security Administration (SSA) sends to employers when the combination of an employee name and social security number does not match SSA records. DHS proposed to rescind the no-match rules on August 19, 2009, and is issuing this final rule without change.

Implementation of the 2007 final rule was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. After further review, DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS said that IMAGE is "designed to help the business community develop and implement hiring and employment verification best practices."

USCIS said that "[t]hese tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a No-Match letter." The agency said that a no-match letter is "reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA."

DHS also noted that "unscrupulous employers would continue to find ways to take advantage of the system, regardless of whether the No-Match rules were in place." The agency said it focuses criminal and civil enforcement efforts against "the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud"; and "employers in the Nation's critical infrastructure sites, including airports, seaports and power plants."

The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24200.pdf.

2. Congress Poised to Extend Four Immigration Programs for Three Years

House and Senate conferees completed their negotiations on the final version of the fiscal year 2010 Department of Homeland Security appropriations bill (H.R. 2892) on October 7, 2009. The final conference report includes a three-year extension for four immigration programs: (1) the E-Verify program; (2) the EB-5 immigrant investor regional center program; (3) certain EB-4 religious workers; and (4) the Conrad State 30 program for certain J-1 foreign doctors.

The final three-year compromise emerged after a very contentious internal debate and a nearly successful effort by some members of Congress to eliminate all immigration "extender" provisions from the bill.

The conference version of the bill will now go to the House and Senate for final votes and then to President Obama for signature. The President is expected to sign the bill before October 31, when the four programs are currently scheduled to expire.

3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says

The State Department's Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference "certain religious workers" category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued before that date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

Regarding the employment fifth preference pilot categories (I5, R5), the immigrant investor pilot program was extended through October 30, 2009. I5 and R5 visas may be issued until the close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after October 30, 2009.

The cut-off dates for the categories mentioned above have been listed as "Unavailable" for November. If there is legislative action extending one or both of these categories for fiscal year 2010, the Department said, those cut-off dates would become "Current" for November. As noted in article #2 above, Congress is about to extend those two categories for three years.

The Visa Bulletin for November 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.

4. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas

U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries "that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers."

USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an "established agent" files the petition.

A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

• The supporting documentation includes a complete itinerary of the event or events.
• The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
• The contract between the employers and the beneficiary is submitted.
• The agent explains the terms and conditions of the employment and provides any required documentation.

In addition, USCIS pointed out, an agent who is also the beneficiary's employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be "in business" as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers' "agent" does not meet this condition, the agency said. "For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers."

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is "in business as an agent," and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf.

5. State Dept. Issues DV-2011 Visa Lottery Instructions

On October 6, 2009, the Department of State announced that entries for the DV-2011 Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009.

 Applicants may access the electronic Diversity Visa (E-DV) Entry Form at http://www.dvlottery.state.gov/ during the registration period. Paper entries will not be accepted. The Department strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. No entries will be accepted after noon, EST, on November 30, 2009. All entries by an individual will be disqualified if more than one entry for that individual is received, regardless of who submitted the entry.

For DV-2011, no countries have been added or removed from the previous year's list of eligible countries. For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

The full instructions, including details on eligibility and how to apply, are available at http://edocket.access.gpo.gov/2009/pdf/E9-24077.pdf.

6. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations

To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all persons for whom R-1 nonimmigrant status is sought, the Department of State issued a final rule, effective October 6, 2009, that establishes a requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services (USCIS) Petition for a Nonimmigrant Worker (Form I-129) before a visa can be issued.

The Department explained that USCIS has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the U.S. and to determine that a religious worker will be admitted to the U.S. to work for a specific religious organization at the request of that organization.

The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24089.pdf.

7. NYC Mayor Bloomberg Announces New Immigration Efforts

In a recent speech at CUNY Graduate Center, New York City Mayor Michael Bloomberg said the city "needs more immigrants." As part of his plan for a possible third term should he be reelected on November 3, 2009, Mayor Bloomberg has called immigrants the "lifeblood of New York City" and expressed his support for comprehensive immigration reform with a pathway to citizenship and for the DREAM Act, "which would allow children of undocumented immigrants to become citizens in exchange for attending college or performing military service." Mr. Bloomberg also plans to create an Immigrant Advisory Board "with members of the religious, labor, business, cultural, and community-based networks to meet quarterly."

Mr. Bloomberg noted that in June 2009, the city's Department of Small Businesses Services (SBS) unveiled an initiative to help Latino small business owners that included a financing fair, a full-day seminar on business assistance and government resources, information resources in Spanish and English ( http://nyc.gov/html/sbs/html/pr/news_latinobusiness.shtml), the launch of an online directory on the National Hispanic Business Information Clearinghouse Web site ( http://hispanicbic.org/businessDirectory.php), and the opening of a new NYC Business Solutions satellite office in Washington Heights. "This targeted strategy to assist Hispanic small businesses will be replicated for other immigrant small business communities," Mr. Bloomberg said. "SBS will be charged with developing and executing community-specific strategies for the largest immigrant small business communities in New York City over the third term."

 Among other things, Mr. Bloomberg also said that New York City will partner with private law firms to dispatch deferred legal associates to immigrant communities in need of quality legal assistance and representation. The associates will be deployed for a minimum one-year fellowship. The city will commit $2 million to the effort to cover a team of supervising attorneys and ongoing training of associates and technical assistance in the area of immigration law. The city also will work with local law schools to engage alumni into a "Call to Service for the Legal Community" to provide pro bono legal assistance to immigrants.

"Immigrants: The Lifeblood of New York City" is available at http://www.mikebloomberg.com/ImmigrantsLifebloodNYC.pdf.

8. State Dept. Receives Petition for New U.S.-Mexico Bridge

The Department of State recently received an application for a Presidential permit to construct, operate, and maintain a new international pedestrian bridge, the "San Diego-Tijuana Airport Cross Border Facility (CBF)," to be located on the U.S.-Mexico border near San Diego, California, and Tijuana, Baja California, Mexico. Otay-Tijuana Venture, L.L.C., consists of companies owned by U.S. and Mexican investors and is undertaking the project as a for-profit, commercial activity. The CBF would enable ticketed airline passengers to travel between Mexico's Tijuana International Airport and San Diego via an enclosed, elevated pedestrian bridge. The CBF would allow such travelers to bypass San Diego's ports of entry and to avoid driving through the city of Tijuana.

Written comments are invited by December 31, 2009, and should be sent to the person named in the notice, which is available at http://edocket.access.gpo.gov/2009/pdf/E9-23812.pdf.

9. USCIS Launches E-Notification

U.S. Citizenship and Immigration Services (USCIS) has launched an "E-Notification" initiative for immigration applications and petitions filed at USCIS Lockbox facilities in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas. If you file your USCIS applications and/or petitions at one of these facilities, you will have the option to receive an e-mail and/or text message informing you that USCIS has accepted your application or petition. If you would like to receive an E-Notification that your application or petition has been accepted, complete Form G-1145, E-Notification of Application/Petition Acceptance, and attach it to the top of your application or petition.

Forms that are currently processed through the USCIS Lockbox facilities relate to:

• Family-based forms
• Applications for Temporary Protected Status
• Card replacement
• Citizenship and naturalization forms
• Adoption forms

By the end of 2009, the following additional forms are expected to be filed through Lockbox facilities:

• All remaining adjustment-of-status forms
• All employment authorization request forms
• All requests for travel documents

A fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/E-Notification%20Capability%20Fact%20Sheet_16Sep09.pdf.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

 FIRM NEWS

Bernie Wolfsdorf, National AILA President and firm founder, spoke on October 13th in New York City at the 42nd Annual Immigration & Naturalization Institute (Practicing Law Institute New York Center), regarding recent developments in consular processing with Jeff H. Gorsky, Chief, Legal Advisory Opinion Section - Visa Office, US Department of State. Bernie Wolfsdorf will also be moderating two panels ("The Visa Process: TCNs, Delays, Denials & Other Important Updates" and "Government Inter-Agency Panel") at the NAFSA Region XII Conference in San Diego, California on October 29th.

Bernie Wolfsdorf spoke at AILA’s EB-5 Investors Conference in San Francisco, California on October 19, 2009.

Avi Friedman will be speaking at the NAFSA Region III conference in Dallas, Texas on October 28th on a panel entitled "Consular Affairs Update." On October 29th, Avi will be speaking on the panel "The Visa Process: TCNs, Delays, Denials & Other Important Updates," with Bernie Wolfsdorf as moderator, at the NAFSA Region XII conference in San Diego, California.

Rita Kushner will be speaking at AILA's "Immigration Options for Physicians" conference in Washington, D.C. on October 30th.

Birth Announcement:

We are proud to announce the birth of a new addition to the Wolfsdorf Immigration Law Group family. Henry Cyrus was born to Fuji and JoBen Whittenburg on October 22, 2009 at 7 lbs., 7 oz.

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310) 570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

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This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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