Immigration Inbox: News You Can Use February 2013

U.S. Immigration:

1. President Obama Speaks on Immigration Reform; Senators Announce Bipartisan Agreement; President and Senators meet – President Obama discussed his immigration reform proposal one day after a bipartisan group of senators proposed principles for comprehensive immigration reform. The President and two Republican senators supporting reform engaged in fruitful discussions on Feb. 26.

2. Department of Labor (DOL) Announces New H-2A Adverse Effect Wage Rates for Each State and Establishes New Prevailing Wage Rates for Certain H-2A Occupations – The Department of Labor said it will publish a separate Federal Register Notice to announce the allowable charges for 2013 that employers seeking H-2A workers may charge for meals and the maximum travel subsistence reimbursement that a worker can claim.

3. Department of Homeland Security (DHS) Adds Grenada to List of 59 Eligible Countries for H-2A, H-2B Programs –USCIS may approve petitions for H-2A and H-2B nonimmigrant status only for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the Federal Register. That notice is renewed each year, and countries may be added or deleted.

4. U.S. Citizenshp and Immigration Services (USCIS) Discusses New Policy Manual, Upcoming Guidelines for Precedent Decisions at Stakeholder Engagement – The manual replaces the existing Adjudicators' Field Manual and policy memoranda. Also, USCIS plans to publish guidelines for issuing precedent decisions soon.

5. New Fee for Permanent Residence – On February 1, 2013, USCIS started collecting a new immigrant fee of $165 from foreign nationals seeking permanent residence in the United States who apply through consular processing.

6. U.S. Embassies, Consulates in China Will Transition to New Visa Collection System in March – The U.S. embassy strongly advises all visa applicants to use all current CITIC fee receipts before they expire on March 14, 2013.

7. U.S. Citizenshp and Immigration Services (USCIS) Final Rule Allows Provisional Unlawful Presence Waivers To Reduce Separations From Immediate Relatives – The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they leave the United States to attend immigrant visa interviews in their countries of origin.

8. Department of Homeland Security (DHS) Announces Temporary Protected Status (TPS) Redesignation, 18-Month Extension for Sudan and South Sudan – Those who already have TPS must re-register during the 60-day re-registration period that began on January 9, 2013, and runs through March 11, 2013. Those who do not have TPS may apply during a six-month registration period that began on January 9, 2013, and runs through July 8, 2013.

Global - United Kingdom - Immigration

1. Entrepreneurs: The U.K. Border Agency tightens the rules - The U.K. Border Agency introduced changes to combat abuse of the Tier 1 Entrepeneur route. The new rules, which came into effect on January 31st, include a genuine entrepreneur test and the requirement to maintain funds on an ongoing basis.

2. Super Priority Service in India for U.K. Visas - From March, individuals who travel frequently to the U.K. from India may apply for their visas to be processed in one day through the new Super Priority Service.

Also in this issue:

Seyfarth Immigration Events and News

New Posting's on Angelo Paparelli's Nation of Immigrators Public Policy Blog

U.S. Immigration

1. President Obama Speaks on Immigration Reform, Senators Announce Bipartisan Agreement, President and Senators Meet

President Obama spoke in Las Vegas, Nevada, on his immigration reform ideas and released a statement one day after a bipartisan group of senators proposed principles for comprehensive immigration reform, on January 28, 2013.

A fact sheet on President Obama's immigration reform proposal outlines four principles:

First, continue to strengthen our borders. Second, crack down on companies that hire undocumented workers. Third, hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks. Fourth, streamline the legal immigration system for families, workers, and employers.

Among other things, President Obama's proposal includes providing visas to foreign entrepreneurs who want to start businesses in the United States and "helping the most promising foreign graduate students in science and math stay in this country after graduation, rather than take their skills to other countries." He also would provide a legal way for undocumented people to "earn citizenship" by passing national security and criminal background checks, paying taxes and a penalty, "going to the back of the line," and learning English. Young people could earn citizenship more quickly by serving in the military or pursuing higher education.

The President is proposing the following measures, according to the fact sheet:

• Mandatory, phased-in electronic employment verification. The President's proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify that the people they hire are eligible to work in the United States. Penalties for hiring undocumented workers are significantly increased, and new penalties are established for committing fraud and identity theft. The new mandatory program ensures the privacy and confidentiality of all workers' personal information and includes important procedural protections. Mandatory electronic employment verification would be phased in over five years with exemptions for certain small businesses.
• Combat fraud and identity theft. The proposal also mandates a fraud-resistant, tamper-resistant Social Security card and requires workers to use fraud- and tamper-resistant documents to prove authorization to work in the United States. The proposal also seeks to establish a voluntary pilot program to evaluate new methods to authenticate identity and combat identity theft.
• Protections for all workers. The President's proposal protects workers against retaliation for exercising their labor rights. It increases the penalties for employers who hire undocumented workers to skirt the workplace standards that protect all workers. And it creates a "labor law enforcement fund" to help ensure that industries that employ significant numbers of immigrant workers comply with labor laws.

The proposal also would eliminate annual country caps for employment-sponsored immigration and add visas to the system. It would allow "greater flexibility" to designate countries for participation in the Visa Waiver Program, and would "staple" green cards to advanced STEM (science, technology, engineering, and mathematics) graduates with master's degrees or Ph.D.'s who have found employment in the United States. The proposal would require employers to pay a fee to support education and training "to grow the next generation of American workers in STEM careers."

President Obama's proposal would permanently authorize immigrant visa opportunities for regional center (pooled investment) programs; and provide incentives for visa requestors to invest in programs that support national priorities, including economic development in rural and economically depressed regions. The proposal would create a new visa category for a limited number of highly skilled and specialized employees of federal national security science and technology laboratories who have been in the United States for two years.

Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Dick Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.) proposed the following four "basic legislative pillars":

1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and
4. Establish an improved process for admitting future workers to serve our nation's workforce needs, while simultaneously protecting all workers.

Among other things, they propose that those who have been working in the U.S. agricultural industry without legal status and who "commit to the long-term stability of our nation's agricultural industries" will be able to "earn a path to citizenship through a different process under our new agricultural worker program."

The senators also lament the "broken" U.S. immigration system that "sadly discourages the world's best and brightest citizens from coming to the United States and remaining in our country to contribute to our economy." This failure, the senators note, makes legal entry into the United States "insurmountably difficult for well-meaning immigrants" and "unarguably discourages innovation and economic growth," in addition to creating substantial visa backlogs that force families to live apart and incentivize undocumented immigration.

To address these challenges, the senators propose a "new immigration system" that recognizes the characteristics that will "help build the American economy and strengthen American families," in addition to reducing backlogs in the family and employment visa categories. Among other things, they propose permanent resident status to immigrants who have received a Ph.D. or master's degree in science, technology, engineering, or mathematics from a U.S. university.

The senators also recommend a mandatory employment verification system with stiff penalties for egregious offenses.

For unauthorized workers, the senators propose legislation that would:

• Allow employers to hire immigrants if it can be demonstrated that they were unsuccessful in recruiting an American to fill an open position and the hiring of an immigrant will not displace American workers;
• Create a workable program to meet the needs of America's agricultural industry, including dairy to find agricultural workers when American workers are not available to fill open positions;
• Allow more lower-skilled immigrants to come here when our economy is creating jobs, and fewer when our economy is not creating jobs;
• Protect workers by ensuring strong labor protections; and
• Permit workers who have succeeded in the workplace and contributed to their communities over many years to earn green cards.

On Feb. 26, the President and Republican Senators John McCain and Lindsay Graham met to discuss their respective views on comprehensive immigration reform. Initial reports of the meeting suggest that the discussion proved fruitful.

President Obama's fact sheet is available here. His speech transcript is available here. The senators' statement announcing their framework for immigration reform is available here.

2. DOL Announces New H-2A Adverse Effect Wage Rates for Each State, Establishes New Prevailing Wage Rates for Certain H-2A Occupations

The Department of Labor (DOL) announced new adverse effect wage rates (AEWRs) for each state based on the Farm Labor Survey conducted by the U.S. Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL determined must be offered and paid by employers to H-2A workers and workers in corresponding employment for a particular agricultural job and area so that the wages of similarly employed U.S. workers will not be adversely affected.

The DOL said it will publish a separate Federal Register Notice to announce the allowable charges for 2013 that employers seeking H-2A workers may charge for meals as well as the maximum travel subsistence reimbursement that a worker can claim. Until that Federal Register notice is published, the agency said that employers should continue to use the current meal charges and maximum travel subsistence found here. The Federal Register notice announcing the new AEWRs is here.

The DOL also published a notice establishing new prevailing wage rates for certain occupations processed under H-2A special procedures. The wage rates established by this Federal Register notice apply only to open range production of livestock, itinerant animal shearing, sheepherding and goatherding, and custom combine operations. The notice is published here.

3. DHS Adds Grenada to List of 59 Eligible Countries for H-2A, H-2B Programs

The Department of Homeland Security (DHS) added Grenada to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year, effective January 18, 2013.

The agency explained that under DHS regulations, U.S. Citizenship and Immigration Services (USCIS) may approve petitions for H-2A and H-2B nonimmigrant status only for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the Federal Register. That notice is renewed each year, and countries may be added or deleted.

The notice announces that the Secretary of Homeland Security, in consultation with the Secretary of State, is now identifying 59 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year, including Grenada.

The notice, which includes the list of 59 countries, is available here.

4. USCIS Discusses New Policy Manual, Upcoming Guidelines for Precedent Decisions at Stakeholder Engagement

U.S. Citizenship and Immigration Services (USCIS) held a stakeholder engagement on January 15, 2013, at which Director Alejandro Mayorkas discussed the first volume of a comprehensive new online Policy Manual, among other things. He noted that the first volume covers Citizenship and Naturalization and that the transition to a centralized online policy resource is the result of an agency-wide review of all adjudication and customer service policies. He said the manual replaces the Adjudicators' Field Manual and policy memoranda that are in place today. During the engagement, Director Mayorkas also highlighted new citizenship and naturalization-related policies, provided updates on other issues, and took questions.

Director Mayorkas also noted that the agency plans to publish guidelines for issuing precedent decisions soon.

USCIS's notes on the engagement have not yet been released. The new Policy Manual is available here. An announcement about the new Policy Manual is available here. As content becomes available for each volume, USCIS will notify the public and invite comment on new or substantially changed policies. Public engagement opportunities will be announced on USCIS's Web site. The announcement about the stakeholder engagement is available here.

5. Reminder: New Fee for Permanent Residence Takes Effect February 1

As of February 1, 2013, U.S. Citizenship and Immigration Services (USCIS) started collecting a new immigrant fee of $165 from foreign nationals seeking permanent residence in the United States. This new fee was established in USCIS's final rule adjusting fees for immigration applications and petitions announced on September 24, 2010. USCIS said the fee will help to recoup costs for staff time to handle, file, and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.

The USCIS notice is available here. The related Federal Register notice is available here.

6. U.S. Embassies, Consulates in China Will Transition to New Visa Collection System in March

The U.S. consular posts in China will transition to a "new and improved" visa fee collection system for Chinese applicants in mid-March 2013. As a result of this new system, the U.S. visa fee receipts that applicants currently purchase from select CITIC Bank branches will be phased out and will not be valid after March 14, 2013. There will be no fee increase associated with these changes. The U.S. embassy strongly advises all visa applicants to use all current CITIC fee receipts before they expire on March 14, 2013. "After the expiration date, we will be unable to accept receipts issued before March 14 and refunds for expired receipts will not be available. Visa applicants who plan to apply close to or after March 14 should wait to pay their visa fees until after this date." The U.S. embassy in Beijing said that specific details on this new way for applicants to pay their visa fees will be announced closer to the transition date.

The announcement is available here.

7. USCIS Final Rule Allows Provisional Unlawful Presence Waivers To Reduce Separations From Immediate Relatives

U.S. Citizenship and Immigration Services (USCIS) published a final rule that reduces the time U.S. citizens are separated from their immediate relatives (defined as including a spouse, children, and parents) who are in the process of obtaining visas to become lawful permanent residents of the United States, under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they leave the United States to attend immigrant visa interviews in their countries of origin. The process takes effect March 4, 2013.

To obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate that denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State's National Visa Center that they are or will be seeking a provisional waiver from USCIS.

"This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa," said Secretary of Homeland Security Janet Napolitano in an announcement on January 2, 2013. USCIS Director Alejandro Mayorkas said, "The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves. The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon."

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the country and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

The announcement is available here. The final rule, which was published on January 3, 2013, is available here. Secretary Napolitano's statement is available here. A related FAQ is available here.

8. DHS Announces TPS Redesignation, 18-Month Extension for Sudan and South Sudan

The Department of Homeland Security (DHS) redesignated Sudan and South Sudan for temporary protected status (TPS) and extended their existing TPS designations from May 3, 2013, through November 2, 2014. Those who already have TPS must re-register during the 60-day re-registration period that began on January 9, 2013, and runs through March 11, 2013. Those who do not have TPS may apply during a six-month registration period that began on January 9, 2013, and runs through July 8, 2013.

The announcement is available here. The Federal Register notice for Sudan is available here. The Federal Register notice for South Sudan is available here.

Global - United Kingdom - Immigration

1. Entrepreneurs: The U.K. Border Agency Tightens The Rules

The Tier 1 Entrepreneur route is available to non-European nationals who invest a certain level of specified funds in the U.K. by setting up or taking over a business, and continue to be actively involved in its ongoing operations.

The U.K. Border Agency previously amended the entry requirements to encourage applications from entrepreneurs. The numbers did increase, however the route was open to abuse. Therefore, in an effort to limit those seeking to circumvent the requirements, the U.K. Border Agency has now introduced changes to tighten the rules. This includes a new genuine entrepreneur test will allow the credibility of an application to be tested. Also, the specified level of funds must now be invested on an ongoing basis, rather than only at the time of application.

The new rules came into force on January 31, 2013. Applications which were submitted prior to that date but have not yet been decided, will be considered under the new rules. The U.K. Border Agency may request additional documentation as evidence that the application is genuine and that the funds have been invested in accordance with the rules, or may carry out checks to verify information or require the applicant to attend an interview.

Despite this more robust approach, the government has reiterated that the U.K. is still "open to the brightest and best" and continues to encourage genuine entrepreneurs to invest in the U.K.

The U.K. Border Agency's announcement is available here.

2. Super Priority Service Introduced in India

On February 18, 2013, Prime Minister David Cameron announced the introduction of a super priority service in India for U.K. visa applications. This will allow individuals who travel frequently to the United Kingdom from India to have their visa applications processed in one day.

Currently, the U.K. Border Agency operates twelve visa application centers in India. However the super priority service will only be available in Delhi and Mumbai. The new service will begin operating in March.

This change reflects the U.K. Border Agency's responsiveness to feedback from Indian businesses and its general overall commitment to improving services. This flexible approach was also demonstrated by the Agency's recent simplification of the visitor visa application process for Chinese nationals.

The announcement is available here.

Seyfarth Immigration Events and News

Recent News from Seyfarth's Immigration Attorneys

Angelo Paparelli was quoted in the Los Angeles and San Francisco Daily Journal Newswires on January 29, 2013. Angelo cautions against reading too much into the bipartisan immigration reform announcement. "There are agreed-upon principles from eight senators, but there's too much in flux at this point," he observed. The most pressing concern in his view is the requirement that undocumented people move to the end of the line for green cards and citizenship, since that process can take decades. "The end of the line might as well be the end of the rainbow. A significant number would die as temporary residents because of the wait for gren cards, which would make this path to citizenship a joke."

Angelo Paparelli was quoted in The Washington Post "Wonkblog" on January 31, 2013. Angelo explained that despite huge demand, the U.S. government ordinarily does not give out all Immigrant Visas allocated in any given year. He noted that under the law, any pending visa that is not closed out in a given fiscal year is "lost" for that year and must be counted toward the next year's allocation. Democrats want those visas recaptured; by some estimates, they could number hundreds of thousands of additional Immigrant Visas. The blog is available here.

On February 13, 2013, the Washington, DC office of Seyfarth Shaw hosted the Breakfast Briefing: Immigration Update. Pavan Dhillon, Dyann DelVecchio and Jason Burritt presented an overview of the looming landscape for immigration law and offer updates on immigration hot topics including: current backlogs in green card processing; policies for "conversion" from EB-3 to EB-2 and EB-1; and expansion of E-Verify. Pavan provided an overview on why every employer should be concerned about Canadian immigration policies – even if the employer does not have a presence in Canada -- based on increased scrutiny of business visitors.

On February 21, 2013, Angelo Paparelli explained to National Public Radio's Martin Kaske on Morning Edition, that employers must carry the burden of recruitment under an artificial labor certification program (DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers) that is an "empty ritual":

PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.

KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.

A February 24 blog post by Angelo on this topic and the recent agreement on shared principles between the AFL-CIO and the U.S. Chamber of Commerce ("Will the new Labor-Business Accord Produce an Immigration Death Panel?") is available here.

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

Guest Post - The Extraordinary Immigration Tango: One Step Forward, Two Steps Back

Angelo hands the blog over to the astute Karin Wolman, lawyer extraordinaire in immigration matters involving artists, entertainers and others of superlative talent. Karin offers a thoughtful and thought-provoking assessment on the clash of the creatives with the hard realities of modern-day immigration law and practice, including Requests for Evidence which encourage USCIS adjudicators to mis-state legal requirements, or wholly ignore supporting documentation. Grimace and enjoy.

Read the full post here.

Memo to Immigration Reformers: "First catch your [EB-5] hare!"

Winston Churchill's common sense approach to the Allies' post-World War II plans for governance are appropro to the current debate on U.S. Immigration reform. The recent flurry of rhetoric on Comprehensive Immigration Reform brought Angelo back to a famous Chruchill quote: "I hope . . . that we shall not overlook Mrs. [Hanna] Glasse's Cookery Book recipe for the jugged hare - "First catch your hare." Angelo cautions that before the President and Congress overhaul the immigration system, they must "catch their hare" and ensure that the right leaders are in place to achieve meaningful immigration reform, prior to enacting said reform.

Read the full post here.

The Immigration Line is Too Damn Long (and Slow)

Those who oppose a path to citizenship for unauthorized immigrants often trumpeted a tired theme -- that unauthorized immigrants should "get to the back of the line." Under our current immigration process, the back of the line is a distant speck on the horizon, as for some, the existing path to permanent residence may take as long as 24 years. Instead of dying in the desert, some immigrants might just die waiting to become permanent residents.

Read the full post here.

"The I-9 Audit Process is a Game – Alas, It Is Football, Not Soccer"

Guest blogger John Quill compares ICE's I-9 audit process to a well-known sport with mass popularity. Unfortunately, ICE has patterned its current audit process after the NFL, with its labyrinth of confusing rules, penalties and play stoppages, rather than the beautiful game of soccer.

Read full post here.

"Dear Immigration Director: Let Our Dreamers Go!"

Angelo offers a mea culpa to USCIS director Alejandro (Ali) Mayorkas, for failing to recognize the agency's nimbleness in quickly enacting an aspect of the agency's program for DREAMers known as Deferred Action for Childhood Arrivals (DACA). However, Angelo also counters with justified critizism to USCIS, for creating roadblocks for DACA recipients who seek to briefly depart the United States. This undermines the principle of an equal footing and leveling of the playing field that Director Mayorkas espouses.

Read the full post here.