Immigration Inbox: News You Can Summer 2013

U.S. Immigration:

1. Senate Committee Approves Comprehensive Immigration Reform Bill – On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the "Border Security, Economic Opportunity and Immigration Modernization Act of 2013," by a bipartisan vote of 13-5. On June 11, the Senate passed two procedural votes, which effectively puts the bill formally before the Senate and open for amendments.

2. DHS Issues FAQ on Supreme Court's DOMA Ruling – Secretary of Homeland Security Janet Napolitano said she has "directed [USCIS] to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."

3. DOL Labor Certification Registry Goes Live – The registry is intended to provide the public with access to "appropriately redacted" copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

4. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely – The wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers.

5. Signaling Flexibility Within Limits, U.S. Citizenshp and Immigration Services (USCIS) Releases Final Version of EB-5 Policy Memo – USCIS released the final version of a memorandum on EB-5 adjudications policy, which went through four iterations beginning in November 2011.

6. Customs and Border Protection (CBP) Releases Travel Tips, Improvements in Arrival Process for International Travelers – The agency released its "Top 10 Travel Tips."

7. U.S. Citizenship and Immigration Services (USCIS) Seeks New Private-Sector Experts for Entrepreneur Initiative – USCIS seeks experts in performing arts, health care, and information technology.

Seyfarth Workforce Authorization Team (SWATeam)

1. U.S. Citizenship and Immigration Services (USCIS) Issues Reminder About New I-9 Version, Releases Q&A's on Monitoring and Compliance – Effective May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form.

Global

China - Changes of Chinese Immigration Law Effective September 1, 2013

Canada - On the heels of intense media scrutiny of Canada's foreign worker program, the Harper Government announced sweeping changes to the Temporary Foreign Worker Program. Some of the changes are effective immediately.

United Kingdom - Passport Return Service for Tier 2 ICTs

South Africa – A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

France – Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit

Also in this issue:

Seyfarth Immigration Events and News
New Postings on Angelo Paparelli's Nation of Immigrators Public Policy Blog

U.S. Immigration

1. Senate Committee Approves Comprehensive Immigration Reform Bill

The On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the "Border Security, Economic Opportunity and Immigration Modernization Act of 2013," by a bipartisan vote of 13-5. Then, on June 11, the Senate passed two procedural votes, which effectively puts the bill formally before the Senate and open for amendments.

The comprehensive immigration reform legislation was developed by a "Gang of Eight" bipartisan group of senators and introduced on April 17. The Gang of Eight includes Sens. Marco Rubio (R-Fla.); John McCain (R-Ariz.); Lindsey Graham (R-SC); Jeff Flake (R-Ariz.); Chuck Schumer (D-NY); Robert Menendez (D-NJ); Michael Bennet (D-Colo.); and Richard Durbin (D-Ill.). Numerous amendments were proposed during committee markups, and some were accepted.

Among other things, the bill would offer a pathway to lawful permanent residence through "registered provisional immigrant status, " known as "RPI," for 10 years for an estimated 11 million undocumented persons who arrived in the United States before December 31, 2011. It would introduce a new visa for lower-skilled, nonagricultural foreign workers. And, the bill would reduce the backlogs in the employment- and family-based immigrant preference categories. The bill would also create a startup visa for entrepreneurs. It would include an increase in visas for both high- and low-skilled workers. Of particular note, the limit on H-1B workers would increase from 65,000 to 110,000 annually, although companies with at least 15 percent foreign workers would have to meet certain new conditions.

Kenneth Palinkas, president of a union representing 12,000 U.S. Citizenship and Immigration Services (USCIS) immigration adjudications officers and staff, issued a statement on May 20, 2013, opposing the legislation. Noting that his union, the National Citizenship and Immigration Services Council, was not consulted when the "Gang of Eight" crafted the legislation, he charged that S. 744 "will damage public safety and national security and should be opposed by lawmakers." Among other things, he said USCIS has been turned into an "approval machine" that "serves illegal aliens and the attorneys which represent them," and blamed an "onslaught of refugees" for "the strain put on our Social Security system" that is depleted "as soon as their feet touch U.S. soil." The National Immigration and Customs Enforcement Council (NICEC), a union for ICE officers, blasted the legislation in a letter to Congress signed by Mr. Palinkas also.

Department of Homeland Security (DHS) officials countered Mr. Palinkas' statement, stating that many safeguards were added in recent years, such as an anti-fraud unit created in 2010, an increase in anti-fraud officers, scrutiny of employee decisions, a focus on security threats, and expansion of requirements for biometric screening. Commenting on one of the programs Mr. Palinkas criticized, deferred action for childhood arrivals (DACA), The New York Times quoted Peter Boogard, a DHS spokesperson, as noting that "[r]everting back to a system that treats violent criminals the same as children brought to this country through no fault of their own would only undermine the integrity of the immigration system and force law enforcement agencies to divert limited resources from focusing on those who pose real threats to their communities." A New York Times editorial on May 21, 2013, called the letter to Congress "a screed, a grab bag of misdirection, scary talk and lies." The editorial concluded, "The country is better served by the saner, more responsible law-enforcement officials, like the sheriffs, police chiefs and attorneys general who have lined up behind the bill, saying the current system undermines law enforcement by forcing the undocumented to live in anonymity and fear."

Among other reactions, immigration activists in the Senate committee room chanted, "Yes, we can!" when the bill passed. A nonprofit association for the IT industry, CompTIA, also applauded the compromise bill. CompTIA released a statement noting that "[m]any of our membership are small and medium-sized technology firms that benefit from a strong pipeline of talent throughout the industry. … [W]e were pleased to see included in the legislation language akin to the INVEST and STEM visas. Allowing STEM advanced degree holders to remain in the U.S. with a green card gives [tech businesses] an opportunity to recruit talent that they might not otherwise have access to. Allowing foreign entrepreneurs willing to stay and invest in our country also makes sense, as more than a quarter of all technology and engineering businesses launched in the U.S. between 1995 and 2005 had an immigrant founder."

The text of the bill as introduced is available here. The list of amendments and their outcome in the markups is available available here. The NICEC letter is available here.

2. DHS Issues FAQ on Supreme Court's DOMA Ruling

The Department of Homeland Security issued an FAQ on July 1, 2013, which it subsequently updated, in response to the Supreme Court's decision on June 26, 2013, United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

The FAQ notes that Secretary of Homeland Security Janet Napolitano said she has "directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse." The FAQ includes the following questions and answers:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse's admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be denied as a result of the same-sex nature of your marriage.

Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé or fiancée petition for him or her?

A2. Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage.

Q3: My spouse and I were married in a U.S. state or a foreign country that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A3: Yes. As a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.

About 30,000 same-sex binational couples include spouses who may now be eligible for immigration benefits. The Supreme Court's ruling applies only to same-sex couples in the 13 states that recognize gay marriage, not to the other states that don't. Legal observers disagree whether a gay couple who gets married in one state and moves to another state that doesn't recognize the marriage will still be entitled to federal benefits.

The FAQ also notes that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses. The FAQ states that as a general matter, "the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes."

The FAQ also includes information about applying for benefits, what to do about previous denials, changes in eligibility based on same-sex marriage, residence requirements, inadmissibility waivers.

USCIS's new FAQ is available here.

The Supreme Court's DOMA decision is available here.

Another FAQ about the ruling's impact on immigration cases is available here.

3. DOL Labor Certification Registry Goes Live

The Department of Labor (DOL) recently announced implementation of the Labor Certification Registry (LCR) on the Office of Foreign Labor Certification's (OFLC) iCERT Visa Portal System website. The LCR is intended to provide the public with access to "appropriately redacted" copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

The LCR displays all certified H-1B1 and E-3 Labor Condition Applications (LCA) and permanent labor certifications, dating back to April 15, 2009. However, the DOL said it is experiencing technical difficulties with the display of approved H-1B LCAs. In addition, due to the historical paper-based filings of H-2A and H-2B applications, the DOL said that it must manually redact and upload these labor certification documents to the LCR. Therefore, only a limited number of records covering fiscal year 2013 are currently available. The agency said it anticipates that H-1B LCAs will be available soon, and that staff will continue to upload historical H-2A and H-2B documents in the coming months.

The registry is available here. A related Federal Register notice is available here.

The announcement is available here.

4. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely

The Department of Labor (DOL) proposes to delay indefinitely the effective date of the "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program" final rule (2011 wage rule) "to comply with recurrent legislation that prohibits the [DOL] from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047."

The 2011 wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers. The 2011 wage rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. The Department is now proposing to delay the effective date of the 2011 wage rule "until such time as Congress no longer prohibits the [DOL] from implementing" it.

DOL explained that, among other things, the appropriations bill enacted in November 2011 prevented funding but did not prohibit the 2011 wage rule from going into effect. The DOL explained that the 2011 wage rule would supersede and nullify the prevailing wage provisions at 20 CFSR 655.10(b) of the DOL's existing H-2B regulations. Accordingly, in light of the November 2011 appropriations bill, the DOL decided to delay the effective date of the 2011 wage rule. If the wage rule had taken effect, the DOL explained, "[s]uch an occurrence would have rendered the H-2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer's request for an H-2B labor certification."

Subsequent appropriations legislation contained the same restriction prohibiting the DOL's use of appropriated funds to implement, administer, or enforce the 2011 wage rule and, the DOL said, necessitated subsequent extensions of the effective date of that rule. The DOL therefore now proposes to delay the effective date indefinitely until such time as the rule can be implemented with appropriated funds.

Additionally, the DOL and the Department of Homeland Security (DHS) recently promulgated an interim final rule, requesting comments, to establish a new wage methodology in response to CATA v. Solis, decided in 2013. The interim final rule requires prevailing wage determinations issued using the Occupational Employment Statistics (OES) survey to be based on the mean wage for an occupation in the area of intended employment, without tiers or skill levels. The comment period closed on June 10, 2013, and the DOL and DHS are reviewing the comments and determining whether further revisions to 20 CFSR 655.10(b) are warranted.

DOL explained that the confluence of the recent Congressional prohibition of implementation of the 2011 wage rule and the DOL's current review and consideration of comments made in response to the proposed new wage methodology require the indefinite delay of the effective date of the 2011 wage rule. Even if Congress lifts the prohibition of implementation of the 2011 wage rule, the DOL said it would need time to assess the current regulatory framework; consider any changed circumstances, novel concerns, or new information received; and minimize disruptions. If Congress should no longer prohibit implementation, the DOL would publish a notice in the Federal Register within 45 days on the status of 20 CFR 655.10 and the effective date of the 2011 wage rule.

The DOL's Federal Register notice of proposed rulemaking is available here.

5. Signaling Flexibility Within Limits, U.S. Citizenship and Immigration Services (USCIS) Releases Final Version of EB-5 Policy Memo

U.S. Citizenship and Immigration Services (USCIS) has released the final version of a memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.

The memo begins by reviewing the purpose and structure of the EB-5 immigrant investor program and reviews terminology and definitions, noting that the program's purpose is "to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital in the U.S. economy."

Regarding the "preponderance of the evidence" standard, the memo notes that adjudication of EB-5 petitions and applications must establish each element by showing that what is claimed is "more likely so than not so." This is a lower standard of proof than the "clear and convincing" or "beyond a reasonable doubt" standards. "The petitioner or applicant does not need to remove all doubt from our adjudication," the memo states. Even if an adjudicator has some doubt, if the petitioner or applicant submits "relevant, probative, and credible evidence" that leads to the conclusion that the claim is more likely than not, or probably true, the petitioner or applicant has satisfied the standard of proof.

The memo allows a degree of flexibility in certain areas, such as "to account for the realities and unpredictability of starting a business venture," although it cautions that this is not an "open-ended allowance." The memo notes, for example, that the EB-5 program allows an immigrant investor to become a lawful permanent resident, without conditions, if he or she has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor's status have been removed. Rather, the memo states, the regulations require the submission of documentary evidence that establishes that it is more likely than not that the investor is in "substantial" compliance with the capital requirements and that the jobs will be created "within a reasonable time."

USCIS has some latitude in interpreting what constitutes "within a reasonable time," the memo notes, adding that the regulations require that the business plan submitted with the Form I-526, Immigrant Petition by Alien Entrepreneur, establish a likelihood of job creation "within the next two years." Because the law contemplates two years as the baseline expected period in which job creation will take place, the memo explains, jobs that will be created within a year of the two-year anniversary of the immigrant's admission as a conditional permanent resident or adjustment to conditional permanent resident status may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon "usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented," the memo warns.

Following the theme of flexibility with limits, the memo acknowledges that business strategies "constantly evolve." Therefore, the Form I-924, Application for Regional Center, provides a list of acceptable amendments, including "changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities), and an affiliated commercial enterprise's organizational structure, capital investment instruments or offering memoranda." The memo notes, however, that such formal amendments to the regional center designation are not required when a regional center changes its industries of focus, geographic boundaries, business plans, or economic methodologies, unless the regional center elects to pursue an amendment because it seeks certainty in advance of adjudication.

The memo also notes that unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, the memo states, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.

Other topics the memo discusses include targeted employment areas; new commercial enterprises; purchases of existing businesses that are restructured or reorganized; expansion of existing businesses; pooled investments in non-regional center cases; evidence of the establishment of, or investment in, a new commercial enterprise; job creation; qualifying employees; the sequence of individual investor filings; business plans; and the impact of "material changes" to a project.

For an analysis of the EB-5 policy memorandum by Seyfarth immigration partner, Angelo Paparelli, check out his blog post, "Immigration Progress: A Good EB-5 Policy Memo Could Still Be Better," available here.

The 27-page memo is available here.

6. Customs and Border Protection (CBP) Releases Travel Tips, Improvements in Arrival Process for International Travelers

U.S. Customs and Border Protection (CBP) announced in May that it is easing the international arrival process with new technology and procedures, including automating the I-94 Arrival/Departure Record and expanding self-service kiosks.

CBP said that additional steps travelers can take to smooth their arrival process include familiarizing themselves with U.S. rules and regulations before departing. The agency released its "Top 10 Travel Tips" (edited):

• Join Trusted Travelers through Global Entry, SENTRI, or NEXUS.
  (click here).
   
• Know the required travel documentation for your trip. (Hint: you will need a passport for air travel!) (click here).
   
• If you are from a Visa Waiver country, don't leave home without your Electronic System for Travel Authorization (ESTA). More on getting your Electronic System for Travel Authorization before boarding your flight. (click here).
   
• For those traveling by air or sea on a visa, CBP has automated the I-94. Find your I-94 number here.
   
• Complete your Customs Declaration (your flight staff will hand out the form) before you deplane. What is eligible for duty exemptions? (click here).
   
• Know what merchandise you can bring to the United States (click here).
   
• Many agriculture products can bring damaging pests and diseases into the country; check to see what may be harmful. (click here).
   
• Allow for lines at ports of entry. Summer is a busy travel season; be prepared and work with CBP officers as they do their job. (click here).
   
• Monitor border wait times. Know what ports of entry have lighter traffic, or use an alternate to avoid delays. (click here).
   
• Take it with you! (click here).

CBP also announced the opening of a seasonal border station at Ely, Minnesota, from May 25 until September 7, 2013, to help with the busy summer tourist season.

The CBP announcement including the travel tips is available here. The announcement about the seasonal border station is available here. A FAQ on the I-94 automation is available here.

7. U.S. Citizenship and Immigration Services (USCIS) Seeks New Private-Sector Experts for Entrepreneur Initiative

For its "Entrepreneurs in Residence" initiative, U.S. Citizenship and Immigration Services (USCIS) is now seeking new private sector experts, using the Department of Homeland Security's Loaned Executive Program, in the areas of performing arts, health care, and information technology. USCIS said the introduction of expert views in these areas will help the agency gain additional insights and strengthen its policies and practices in areas critical to economic growth.

USCIS has also enhanced its online resource center for entrepreneurs, Entrepreneur Pathways. Over the past year, there have been nearly 30,000 visits to the site, USCIS reported. The site provides entrepreneurs seeking to start a business in the United States a way to navigate the immigration process.

USCIS said three aims are key to the initiative: "producing clear public materials to help entrepreneurs understand relevant visa categories; equipping USCIS staff with the right tools to adjudicate cases in today's complex business environment; and streamlining USCIS policies to better reflect the realities faced by foreign entrepreneurs and startup businesses."

For more information on opportunities for private sector experts, click here. The USCIS announcement is available here.

Seyfarth Workforce Authorization Team (SWATeam)

1. U.S. Citizenship and Immigration Services (USCIS) Issues Reminder About New I-9 Version, Releases Q&A's on Monitoring and Compliance

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that effective May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires. The new form has a revision date of "03/08/13 N" in the lower left corner of the first instructions page. It expires on March 31, 2016.

Q&A's on the E-Verify monitoring and compliance functions are available here.
A USCIS I-9 blog explaining details about the new form is available here.

Global

China

The Beijing Labor authorities announced that extensions of work permits can be filed two months prior to the expiration date instead of only one month as in the past.

Due to the new regulations the dependents of a Z visa holder will have to apply for so called S visas, and not Z dependent visas.

IMPORTANT: biographic documentation such as birth and marriage certificates in foreign languages will have to be legalized in the country of issuance prior to filing the same with the authorities, simple copies will not be accepted after September 1, 2013. As the legalization process is usually time consuming this additional lead time should be taken into account.

The authorities will make further announcements next month so that we can provide updates again.

Canada

Canadian Foreign Service Strike Effects Processing Times World Wide

Citizenship and Immigration Canada offices and Canadian Consulates world-wide are currently reporting significant delays in processing of all Canadian Immigration applications currently pending at offices within Canada or at Consulates abroad. Those applications submitted at the port of entry continue to be adjudicated on-the-spot.

The delays are directly related to the Professional Association of Foreign Service Officers (PAFSO) union currently taking strike action. The strike action and negotiations have recently escalated and PAFSO union members responsible for processing visa applications have been walking out of government offices in Canada and overseas, including New Delhi, Mexico City and other major Consular posts. It has been reported that PAFSO's recent effort to target Canada's 15 largest visa processing centres worldwide with rotating strikes has resulted in a 60 to 65 % drop in visa issuance at targeted missions and a 25 % drop system-wide, according to the union.

Posted processing times for both temporary and permanent resident visa applications do not take into account such work stoppages.

Seyfarth Shaw LLP is leveraging various processing alternatives in order to expedite the processing of applications to the extent possible. Although there is a significant amount of pressure on the Canadian government to settle this matter, it is unclear when the matter will be resolved. We therefore encourage you to contact our Canadian immigration team so that you can submit your Canadian immigration applications as far in advance as possible.

Effective Immediately: Changes to the Labour Market Opinion Process

On the heels of intense media scrutiny of Canada's foreign worker program, the Harper Government announced sweeping changes to the Temporary Foreign Worker Program. Some of the changes are effective immediately.

Please note many of the changes that are effective immediately concern work permits granted pursuant to the Labour Market Opinion ("LMO") program. These changes significantly transformed the LMO process, making it more onerous to hire foreign nationals. The changes underscore a greater trend within Service Canada to encourage hiring local Canadian citizens or permanent residents in lieu of hiring Foreign Nationals.

The general work permit category in Canada requires a LMO. This is an application made by the employer to The Ministry of Employment and Social Development Canada ("Service Canada") to weigh factors in assessing the impact on the Canadian labour market of hiring a foreign worker for a proposed job or activity. Service Canada will consider wages, working conditions, the availability of Canadians or permanent residents to perform the duties in question, whether skills and knowledge transfer would result from confirming the foreign worker and whether the work is likely to create other jobs for the benefit of Canadians or permanent residents.

1. Accelerated Program Suspended

The LMO process requires recruitment for the position and the LMO is specific to each province. The processing time currently ranges between approximately 10 to 12 weeks, depending on the province. Under the former regulatory scheme, a company having obtained one positive LMO would be eligible for an Accelerated Labour Market Opinion ("ALMO"), which is processed in 5-10 business days. The ALMO program was been suspended on April 29, 2013 without any warning to employers. Therefore, no applications will be permitted under the ALMO process. All applications requiring a Labour Market Opinion will now be processed according to regular (and longer) processing times.

2. LMO Application Process

Effective July 31, 2013, every employer must pay a processing fee of $275.00 CAD for each position requested in an LMO application. Therefore, if an employer is advertising to fill three positions, the employer must then pay $825 CAD. No refunds will be provided by Service Canada if the application is withdrawn, cancelled or refused. Moreover, a request for reconsideration of a negative decision by Service Canada will require the employer to first submit a new application (including the requisite forms and new fees).

LMO application forms now solicit significant additional information from the employer. The new questions seek information regarding the impact on the Canadian job market including whether the employer has engaged in any outsourcing activities and additional verification that Canadian employees are not being replaced by foreign workers.

Along with the LMO application, the employer will be required to submit a detailed transition plan outlining the employer's intended actions regarding recruitment, training, and residency. The transition plan's level of detail will depend on a number of factors including whether the position is lower- or higher-skilled, the type and size of the industry, and the regional unemployment rate. This is a significant change to the process. Service Canada will also review an employer's progress against the transition plan if that employer applies for additional LMOs in the future. Therefore, employers will also be required to document their ongoing efforts to adhere to their transition plan and effectively transition to a Canadian workforce.

3. No Flexibility in the Prevailing Wage Offered to a Foreign Worker

Service Canada previously allowed some wage flexibility to pay less than the prevailing wage in specific instances. Specifically, employers previously were able to pay foreign workers 5-15% less than prevailing wage if Canadians in that position were paid at the same wage rate. Effective immediately, all employers must pay foreign workers at the prevailing wage rate.

4. Significant Increase in Demonstrated Recruitment Efforts

Effective July 31, 2013, Employers must now advertise positions for at least four weeks prior to submitting an application for an LMO. Advertisements must continue to run throughout the entire 10 to 12 week processing period currently estimated by Service Canada. Previously, employers were required to advertise for only two weeks prior to submitting an application. Consequently, this is a significant increase in the requirements.

Moreover, employers must now recruit in three sources. Employers must continue to advertise on the standard government websites including either the national Job Bank website or the designated provincial/territorial website, depending on where the foreign national will be working. In addition, employers must also provide evidence that they have also used two other recruitment methods which are consistent with the recruitment practice for the intended occupation. For example, high-skilled positions require at least one of the advertising methods to be national in scope whereas low-skilled positions will require that the employer has demonstrated efforts to hire under-represented groups in the labor force. Employers must also continue to actively seek qualified Canadians to fill the advertised positions until an LMO has been issued.

In sum, Employers seeking to fill high-skilled positions (which includes occupations within National Occupational Classification 0, A, and B) will be required to:

• advertise on the national Job Bank or its provincial/territorial counterpart for at least 4 weeks and throughout the processing period--until the date the positive LMO is issued;
• advertise in two additional mediums (at least one of which is national in scope) for a period of at least 4 weeks and until the LMO is issued, including:
  • print media (national or provincial/territorial newspapers, national journals, magazines with national coverage, specialized journals, professional associations magazines, newsletters, etc.);
  • general employment websites (canadastop100.com, vault.com, workopolis.com, monster.ca, etc.); and
  • specialized websites dedicated to specific occupation profiles (e.g. accounting, marketing, biotechnology, education, engineering, etc.)
• Employers must demonstrate that the advertising medium is appropriate for the position;

Employers are also required to maintain copies of the advertisements and the results of their recruitment efforts for a minimum of six years. Service Canada reserves the right to request these documents for future assessments.

5. Language Restrictions

Effective July 31, 2013, English and French are the only languages that can be identified as a job requirement, both in LMO requests and in advertisements by employers applying to hire a foreign national. There is a limited exception when employers can demonstrate that another language is essential for the job. The onus will be on employers to demonstrate that a language other than French or English is an essential requirement of the job. Service Canada will issue a negative LMO if the rationale does not demonstrate that the requested non-official language is an essential requirement of the job.

Given the burdensome nature of this process, many employers opt to seek "Labour Market Exempt" work permits (such as NAFTA Professionals and Intra-Company Transferees). At this time, no changes have been announced to the LMO-exempt work permit categories.

Seyfarth Shaw LLP's Canadian immigration team will advise of the additional changes in the coming months as they are announced. The Harper Government is instituting these measures to ensure that the Temporary Foreign Worker Program, which is an important program to deal with acute skills shortages on a temporary basis, is used only as a last resort. This is an important policy shift that will lead to greater scrutiny of all work permits and not only those granted pursuant to a Labour Market Opinion.

United Kingdom

Passport Return Service for Tier 2 ICTs

The Home Office introduced a pilot program on July 22, 2013 for Tier 2 Intra-Company Transfer migrants who apply to extend their visas in the United Kingdom. The new passport return service will allow Tier 2 ICT applicants to have their passport returned within seven to ten working days of his or her application being received by the Home Office.

This will allow individuals to travel for business or personal reasons while their application is under consideration with the Home Office, provided their current visa is valid beyond the date by which they intend to return to the United Kingdom. For this reason, Tier 2 ICT migrants are encouraged to submit their extension applications as early as possible within the three month period prior to their visa expiring.

If the pilot program is successful, additional visa categories may be considered for this service.

Business "Helpdesk" Launched

A new "Helpdesk" service was launched on July 1, 2013 to provide a single point of contact for UK immigration questions. The Helpdesk was created in response to feedback from employers, and provides a beneficial service for users of the immigration system. Sponsors, businesses and Tier 1 Investors may contact the Helpdesk with questions regarding policy issues, sponsor license applications, compliance concerns, as well as in relation to specific applications. The aim is for replies to be received within two working days. As the resources and scope of the Business Helpdesk develops, it is anticipated that more services will be added. The email address is: BusinessHelpdesk@homeoffice.gsi.gov.uk.

Croatia becomes a member of the European Union

On July 1, 2013, Croatia became a member of the European Union. Now, Croatian nationals may reside in any EU Member State for the first three months of residence on an unrestricted basis. They may remain legally resident in that state thereafter, provided they are doing so as a student, self-employed person, or a self-sufficient person who is not economically active. Member States may apply restrictions on access to the labor market for a transitional period.

The United Kingdom has introduced such transitional restrictions. Under these provisions, Croatian nationals do not have an automatic right to work in the United Kingdom. In order to work in the United Kingdom, a Croatian national must first obtain a worker authorization documents, unless they come within one of the exemptions. Students are not required to be sponsored under Tier 4, however if they wish to work while in the United Kingdom, they must also obtain a worker authorization document before doing so.

Employing a Croatian national who requires permission to work in the United Kingdom and does not have it could lead to criminal sanctions for both the employer and employee, including a fine and/or imprisonment.

South Africa

A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is "operating in South Africa." This is on condition that the two companies are in a holding, subsidiary, or "affiliate relationship."

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term "affiliate relationship" is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee's offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the "transfer" permit's name, South Africa's permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term "spouse" refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant's passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.

France

Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

Same-Sex Marriage Rights Conferred Under French Immigration Procedures

The Act of May 17, 2013, modifies section 143 of the Civil Code to read: "Marriage is contracted by two persons of opposite sex or the same sex." France thus joins the countries that have legalized marriage between persons of the same sex. Those countries include Belgium, Spain, Canada, some states in the United States and Brazil, the Netherlands, Sweden, New Zealand, South Africa, Mexico (Federal District), Argentina, Norway, Denmark, Portugal, Iceland, and Uruguay. The new law means that in France, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses.

• General Provisions; Conflict of Laws In Other Countries; Consular Marriage

Article 202-1 of the Civil Code provides that the conditions for marriage are governed by family law, but article 202-2 provides that two persons of the same sex can marry when the family law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the family law of one spouse prohibiting marriage between persons of the same sex when the marriage took place on the territory of a state recognizing marriage between persons of the same sex.

The above implies that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals may find themselves in situations where their marriages in France are not recognized by their countries of origin.

A consular marriage (registered at the French consulate) between same-sex French nationals would not raise an issue. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in countries that prohibit same-sex marriage. In such case, the Civil Code provides that marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples, validly celebrated abroad at a time when the French law forbade it, may be recognized retroactively.

• Impact on French Immigration Rights of Foreign Nationals Moving to France

Derivative residence and worker rights known as "accompanying family rights" will be applicable to married foreign workers under Intra-Company Transfer, EU Blue Card, and Skills and Talents status, regardless of the sexual identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA (code de l'entrée et du séjour des étrangers et du droit d'asile).

A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and a residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.

The marriage between a third-country national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with the rights to private and family life, under Article 8 of the European Convention on Human Rights.

Biometrics Deployed

The deployment of biometrics in all French departments (département, or administrative area) has led to modifications in procedures for applying for a residence permit and requires an additional appearance at the Prefecture for fingerprinting. This change also will affect the beneficiaries of one-stop Office Français de l'Immigration et de l'Intégration (OFII) processing (e.g., Intra-Company Transferees, EU Blue Cards, Skills and Talents) by the end of the year.

• Gradual Deployment of Biometrics and Modifications in Residence Permit Application Process

A regulation of the Council of the European Union (EC), No. 380/2008 of April 18, 2008, mandates a new format for biometric residence permits comprising an electronic component into which are inserted a photograph and two fingerprint images. Under this regulation, the Ministry of Interior issued two circulars in April 2011 and June 2012, describing the details on implementing the new residence permit requirement and the progressive deployment of biometrics, which is now effective in several departments.

After a first stage completed in 2011 with the release of the new uniform format for residence permits, the second step will be to collect and insert fingerprints of foreign nationals collected by the Prefecture into the integrated residence electronic component of the permit.

The fingerprinting will require modifications of the procedures for applying for a residence permit. Any person requesting a residence permit (first application or renewal) will be required to go in person to the Prefecture for fingerprinting, as noted above. A deposit at City Hall will no longer be possible and procedures by mail will be affected.

Fingerprints will be valid for five years.

• Impact on Categories of Foreigners Benefiting From the One-Stop OFII Process

To date, the three categories of foreigners benefiting from the one-stop OFII process (Intra-Company Transferees, EU Blue Cards, Skills and Talents), as well as family members of holders of these permits, have been exempted temporarily from biometric compliance in the departments using the one-stop OFII process. This exemption is valid until completion of the deployment of biometrics. France had aimed at full deployment by the end of the first half of 2013, but only a few departments have implemented biometrics to date: Loire-Atlantique, Alpes-Maritimes, Hauts-de-Seine, SaÔne-et-Loire, Essonne, Seine-et-Marne, and Puy-de-DÔme. However, the deployment will affect all French departments by the end of the year.

Seyfarth Immigration Events and News

Practice Accolades

Seyfarth Shaw's Business Immigration Group and a number of other practice areas were recently recognized in the 2013 Legal 500 guide. Legal 500 Recommended a total of 10 Seyfarth Shaw practice areas in their recent rankings. In addition, Angelo Paparelli was one of five Seyfarth partners to be honored among the country's "Leading Lawyers." The Legal 500 United States is an independent guide providing comprehensive coverage on legal services and is widely referenced for its definitive judgment of law firm capabilities.

Article Published

Angelo Paparelli co-authored, "Prosecutors, Aim Your Weapons -- Targeting Fraud upon Immigrants," Reprinted with permission from the August 28, 2013 edition of the New York Law Journal, and available here. © 2013 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited. The authors thank the Journal for permission to reprint this article.

Recent Events

Seyfarth Shaw attorneys Angelo Paparelli and John Quill presented at the annual conference of the American Immigration Lawyers Association, held on June 27-29. Angelo spoke on globalization and telecommuting, and the impact of work location on immigration benefits. John spoke on the Department of Labor's prevailing wage system, which is fraught with peril for employers.

Seyfarth Shaw Immigration partner Angelo Paparelli and Labor and Employment partner Dana Peterson recently presented a webinar entitled, "Weathering the Storm: Limiting Immigration Exposure in a Climate of Aggressive Enforcement." The webinar focused on trends in I-9 enforcement and E-Verify compliance, and advised employers on how best to prepare for a potential government investigation.  View the PowerPoint here and listen to the webinar here.

In addition, Angelo Paparelli has posted several new blog entries on his Nation of Immigrators public policy blog:

Immigration Mystery Revealed: The Occult Process behind Nonimmigrant Visa Waivers
Guest blogger, John Klow, a former senior official of U.S. Customs & Border Protection, explains how a foreign citizen found inadmissible to the United States can still gain permission for entry under the nonimmigrant visa waiver process.

You Say You Want a Devolution -- in Immigration That Is
Angelo offers ideas on how Congress should allow the states to play a larger role in approving work visas and green cards for their unique needs.

"Objection! (To Wearing Suits, Growing Up, and Immigration Law in TV and Film)"
Guest blogger, Nici Kersey, provides a whimsical look at how immigration law is depicted in film and television.

USCIS, America's Immigration Cutcherry, Adopts New Procedures as the Boss Readies for a Move Upstairs
Angelo analyzes two new USCIS policy memoranda on precedent/non-precedent decisions and the role of the Administrative Appeals Office, while offering an homage to the agency's director, Alejandro Mayorkas, whom President Obama has nominated to be the new Deputy Secretary of the Department of Homeland Security.

If Immigration Law Were a Person It Would Sing: "Oh Lord, Please Don't Let Me Be Misunderstood"
Angelo referees a controversy within the immigration advocacy community on the role of civil disobedience in kick-starting comprehensive immigration reform.

RNC Hoisted on Its Own Immigration Petard in Opposing Path to Citizenship
Angelo analyzes the Republican Party's recent platform plank on a pathway to legal status or citizenship for the roughly 11 million undocumented foreign citizens residing in the United States.

Give Peace a Chance: End the U.S.-India Immigration and Trade War Now
India is the world's largest democracy, an English-speaking nation not known for cyber-stealing American government and business secrets. However, Indian protectionism, combined with proposed increases in U.S. immigration filing fees as part of Comprehensive Immigration Reform, threaten to boil over to create an unneeded trade war between our nations.

A Swimmingly Good Immigration Solution to Border Security
The word in Washington is that S. 744, the Gang of Eight's immigration bill, must move to the right if it is to pass the Senate by a 70-vote, bipartisan margin, and thereby pressure the House to approve its version of comprehensive immigration reform (CIR). This movement has led to the tired refrain of focusing on micromanaging our borders in a misguided effort to make our borders impregnable. Angelo suggests that Congress mirror the concepts of fishing industry regulations, which strike a balance to promote economic benefit while minimizing environmental harm.

Immigration Progress: A Good EB-5 Policy Memo Could Still Be Better
Readers of Angelo's blog are familiar with his proposals to streamline the EB-5 investor program to allow it to become a meaningful tool to foster investment in the United States. (http://www.nationofimmigrators.com/eb-5/) Angelo applauds USCIS' recent Policy Memo which clarifies many ambiguities in the EB-5 program, and offers additional advice on how to eliminate unnecessary roadblocks so that it may blossom even more prodigiously in the years ahead.

No Longer Illegal, But Still An Alien
Angelo hands the keys to guest blogger Careen Shannon, an immigration attorney and Adjunct Professor of Law at the Benjamin N. Cardozo School of Law. Careen notes that the use of the word "illegal" to describe non-citizens who are present in the United States without authorization is finally beginning to die a well-deserved death, at least in the mainstream press. However, the word "alien," a term used to exclude, is still in common usage and is recognized in the immigration law and regulations. Carrie argues that it is time to end the use of this term because of the social prejudices that attach to it.