Newsletter
Jul 31, 2012
Immigration Inbox: News You Can Use July 2012
U.S. Immigration:
1. Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July - Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for July.
2. Social Security Administration Releases Guidance on Employment Authorization for Nonimmigrants - The SSA guidance includes a table listing the most recent automatic EAD extension information by country.
3. USCIS Eliminates Original Signature Requirement on Supporting Forms for Certain Applications to Extend/Change Nonimmigrant Status - USCIS explained that elimination of the signature requirement for forms filed with certain applications is part of its larger efforts to transition to electronic filing.
4. Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status - The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan supported the BIA's finding that she had abandoned her status.
5. DOL Announces Address Change for Filing, Processing Temporary Labor Certifications - Effective August 2, 2012, the Chicago National Processing Center address and contact info will change.
6. Grassley Letter Challenges President's Authority To Implement Deferred Action - Sen. Charles Grassley (R-Iowa) and a group of other Republicans are challenging President Obama's authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion.
7. Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers - Semafor Technologies LLC has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor's Wage and Hour Division that found violations of the H-1B visa program.
8. Multi-State Prostitution Ring Dismantled - The perpetrators acquired women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America.
Seyfarth Immigration Compliance Center
1. USCIS Releases E-Verify Self-Assessment Guide for Web Services Users
2. U.S. Department of Labor Orders C.J.'s Seafood to Pay Fines and Back Wages
Also in this issue:
Global
Belgium - Belgium is working on implementation of the EU Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.
Seyfarth Immigration Events and News
U.S. Immigration
1. Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July
Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for the month of July. The Department of State's Visa Bulletin for July says that this action has been taken in an effort to hold number use within the annual numerical limit. "Should there be an increase in the current demand pattern, it may be necessary to make this category completely 'unavailable' prior to September 30, 2012," the bulletin warns.
The China and India employment second preference categories are already unavailable, and will remain so for the remainder of the fiscal year.
The July Visa Bulletin is available here.
2. Social Security Administration Releases Guidance on Employment Authorization for Nonimmigrants
The Social Security Administration recently released guidance to staff, effective May 21, 2012, on employment authorization for nonimmigrants with respect to Social Security issues. Topics discussed include the policy for nonimmigrant employment authorization, evidence proving a nonimmigrant's employment authorization, the validity period, automatic extensions of employment authorization documents (EADs), nonimmigrants with automatic EAD extensions, the procedure when a Social Security number applicant submits an EAD based on an automatic EAD extension, and the policy for employment authorization by Class of Admission (COA).
The guidance includes a table listing the most recent automatic EAD extension information by country, and a table listing those who are employment-authorized without specific Department of Homeland Security (DHS) authorization, such as A-1 ambassadors and career diplomats, A-2 foreign government officials, H-1C registered nurses, H-2A agricultural workers, J-1 exchange visitors, and others. The guidance notes that although those listed under a COA in the table are employment-authorized without DHS authorization, "employers may still ask for an EAD before the alien can start working." The guidance also includes a table listing COAs and descriptions of nonimmigrants who are authorized to work only with authorization from DHS, and another table listing those who are not authorized to work in the U.S.
The guidance is available here.
3. USCIS Eliminates Original Signature Requirement on Supporting Forms for Certain Applications to Extend/Change Nonimmigrant Status
U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum on June 1, 2012, eliminating the original signature requirement for supporting Certificates of Eligibility for Nonimmigrant Student Status (Forms I-20) or Certificates of Eligibility for Exchange Visitor Status (DS-2019) submitted with Applications to Extend/Change Nonimmigrant Status (Forms I-539). USCIS explained that this change is part of its larger efforts to transition to electronic filing.
USCIS explained that applicants must submit an I-20 with the I-539 form when applying to change nonimmigrant status to F-1 or M-1, for reinstatement to F-1 or M-1 status, for a transfer of schools when in M-1 status, or for an extension of M-1 status. Signatures are required for the Designated School Official and the student. USCIS requires applicants to submit a DS-2019 with the I-539 when applying to change status to J-1. Signatures are required for the applicant and the Responsible Officer or Alternate Responsible Officer for the exchange program.
USCIS noted that when its Electronic Immigration System (USCIS ELIS) is launched for public use, applicants will have the option of submitting their applications either by using ELIS or filing on paper. For applications filed via ELIS, the agency will accept a scanned, electronic version of a valid and properly executed I-20 or DS-2019 for all I-539 filings when required. For any I-539 filed outside ELIS, the agency will accept a photocopy of a valid and properly executed I-20 or DS-2019. Regardless of how the applicant files once ELIS is launched, USCIS will not return the I-20 or DS-2019 to the applicant upon approval of the I-539.
Applicants wishing to have USCIS stamp their I-20 or DS-2019 may make an appointment online through InfoPass and take their form to their local USCIS office. Stamping of I-20s and DS-2019s is a "transitional service that field offices will perform for 6 months after ELIS launches for public use," USCIS explained.
The memorandum is available here.
For FAQs on ELIS, click here.
4. Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status
In Lateef v. Holder, the petitioner argued that despite multiple long absences from the United States, she did not intend to abandon her lawful permanent resident (LPR) status, which also served as the foundation for her husband's and child's entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA's finding that she had abandoned her LPR status. The court also noted that the petitioner had lied in one instance to border officials about the date of her last visit to the United States.
Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner's daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.
The decision is available here.
5. DOL Announces Address Change for Filing, Processing Temporary Labor Certifications
Effective August 2, 2012, the Chicago National Processing Center (NPC) address and contact info will change:
- Old Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, 9th Floor, Chicago, IL 60605-1509.
- New Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 11 West Quincy Court, Chicago, IL 60604-2105; telephone: (312) 886-8000; facsimile: 312-353-8830.
- New Address in connection with fees: The following address is to be used for all invoices/fees submitted in connection with the H-2A program: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, P.O. Box A3804, Chicago, IL 60690-A3804.
On August 2, 2012, the Chicago NPC is expected to be fully functional in the new location. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to the former address. On August 23, 2012, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender. The address above for the collection of H-2A fees should be used beginning on August 2.
The notice is available here.
6. Grassley Letter Challenges President's Authority To Implement Deferred Action
Sen. Charles Grassley (R-Iowa) and a group of other Republicans sent a letter on June 19, 2012, challenging President Obama's authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion. The Obama administration announced the new program in a directive from the Secretary of Homeland Security, Janet Napolitano, issued on June 15. "Not only do we question your legal authority to act unilaterally in this regard, we are frustrated that you have intentionally bypassed Congress and the American people," the letter states.
The letter also expresses concerns that the directive allows individuals under the age of 30 to obtain work authorization, citing the Bureau of Labor Statistics in noting that the unemployment rate for young adults aged 16 to 24 has been nearly 17 percent for the past year. The letter states that "[i]t is astonishing that your administration would grant work authorizations to illegal immigrants during this time of record unemployment."
7. Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers
Semafor Technologies LLC, a Norcross, Georgia, technology company, has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor's Wage and Hour Division that found violations of the H-1B visa program. The company specializes in software development, on-site/off-site application outsourcing, infrastructure, consulting, and product development services.
The notice is available here.
8. Multi-State Prostitution Ring Dismantled
Gregorio Hernandez-Castilla of Indianapolis, Indiana, was sentenced recently to 41 months in prison after pleading guilty to conspiring to operate an interstate prostitution ring with his two brothers. The prosecution was the result of an extensive investigation by multiple law enforcement agencies.
The three brothers headed the Hernandez-Castilla criminal organization, which had been operating for a number of years in the Indianapolis area, largely under the direction of Jose Luis Hernandez-Castilla. The brothers would acquire women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America. Once here, many were often without any means of support, and thus would engage in prostitution to pay off debts they owed the brothers for subsidizing their entry into the country.
The organization operated almost exclusively within the Hispanic community, the Department of Homeland Security reported, advertising its services through the distribution of business cards bearing advertisements and telephone numbers for auto repair or western wear outfitters.
Seyfarth Immigration Compliance Center
1. USCIS Releases E-Verify Self-Assessment Guide for Web Services Users
Earlier this month, USCIS published a "Self-Assessment Guide" for employers who use software programs to interface with the E-Verify system. The document is available here and helps employers determine whether their E-Verify usage comports with E-Verify rules and requirements. Because employers have recently experienced a number of E-Verify "Desk Audits" (purportedly meant to educate employers and improve their E-Verify compliance) stemming from alleged improper use of the web services system, employers who use software to run E-Verify queries are encouraged to review the new Guide.
2. U.S. Department of Labor Orders C.J.'s Seafood to Pay Fines and Back Wages
After an investigation uncovered serious safety violations, failure to pay minimum wage and required overtime compensation, and failures to comply with the H-2B visa regulations, the U.S. DOL has ordered C.J.'s Seafood to pay nearly $250,000 in fines and back wages.
The safety violations included chemical and electrical hazards, failure to equip the facility with fire extinguishers or emergency eyewash stations, and blocked exists, among others.
The Wage and Hour Division found that the company failed to pay the required overtime rates, made improper deductions from employee pay for items such as safety gear, and failed to maintain proper records.
The company was also found to have violated the H-2B visa regulations by failing to pay the required prevailing wage to its workers and by making false statements regarding its temporary need for workers.
For more information, see here.
Global: Belgium
Belgium is working on implementation of the European Union (EU) Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.
Work Permits; Implementation of the EU Blue Card Directive
The Belgian work permit system is a very business-friendly model in practice. The "regular" work permit, with a resident labor test, has become very rare in the corporate immigration context. "Fast-track" work permits, without a resident labor test, can be obtained quite fast, within two to three weeks after the date of filing of the application.
The economic recession has not led to drastic changes to the Belgian work permit system. However, one protective measure, regarding Bulgarian and Romanian nationals, should be mentioned:
- In principle, European Union (EU) nationals may work in Belgium without work permits, on the basis of the right of free movement of workers.
- For Bulgaria and Romania, which joined the EU on January 1, 2007, restrictions on this right of free movement of workers were maintained during an initial transition term until the end of 2008. That was prolonged for another three years, until December 31, 2011. The Belgian government has decided to continue the restrictions until December 31, 2013. As a rationale for this decision, the government explicitly referred to the expected economic recession in 2012/2013 as well as to similar decisions of neighboring countries to maintain the restrictions.
In other developments, the Belgian Parliament and the Minister of Employment are currently working on implementation of the EU Blue Card Directive.
The available texts indicate that the Blue Card will exist alongside the current fast-track work permit B for highly skilled employees. The salary threshold for a Blue Card in 2012 will probably be €49,995, which is higher than the current threshold for a highly skilled work permit B (€37,721 for 2012).
The Belgian authorities will probably choose not to take professional experience into account to prove "higher professional qualifications," but a higher education will be required, on condition that the studies needed to acquire it lasted at least three years. Belgium will probably not apply numerical limits.
Recent News from Seyfarth's Immigration Attorneys
Angelo Paparelli co-authored an article that was published in the June 27, 2012 edition of the New York Law Journal. The article, entitled, "Foreigners on U.S. Soil: To Know Your Rights Is to Know Very Little," discusses the limited legal rights and remedies available to foreign citizens facing deportation. The article, which can be found here, also proposes enhancements to due process rights for these individuals.
Angelo Paparelli and Seyfarth Shaw's Immigration Practice Honored by Legal 500
Seyfarth Shaw's Business Immigration practice has been honored with Tier 2 ranking by Legal 500 United States 2012, an independent guide to America's leading law firms. Legal 500 praised the immigration group for its knowledgeable team, and for embracing technology and employing Lean Six Sigma processes.
Legal 500 offered effusive praise for a number of Seyfarth immigration attorneys: James King is "a pleasure to work with…with extensive experience and extensive judgment." Russell Swapp finds answers "outside the normal scope of issues," and Angelo Paparelli is "deeply knowledgeable" and efficiently provides clients with the input they need. In addition to being "extremely knowledgeable about immigration law," Dyann DelVecchio is noted for being "very personable and warm, and available at all times."
In addition, Seyfarth Immigration partner Angelo Paparelli was one of four Seyfarth partners to be recognized with Legal 500's elite "Leading Lawyer" status.
Angelo Paparelli Appointed to Board of the Federal Bar Association Immigration Law Section
In June 2012, Angelo Paparelli was named as a member to the Board of Directors of the Immigration Law Section of the Federal Bar Association (FBA). The FBA's mission is to strengthen the federal legal system and the administration of justice by serving the interests and the needs of the practitioners in a federal law practice.
Angelo Paparelli Selected to the Los Angeles and San Francisco Daily Journal's "Top Labor & Employment Attorneys List"
For the second consecutive year, Seyfarth Immigration partner Angelo Paparelli, was named to the Daily Journal's Top Labor & Employment Attorneys list. In addition to his legal practice, Angelo is also a founder of the Alliance of Business Immigration Lawyers and recently helped publish the book, Green Card Stories.
Angelo told the Daily Journal that his mission is to "help American people see that the cornerstone of our exceptionalism is our willingness to accept immigrants as equal human beings and allow them to contribute and become citizens and achieve the American dream while they help us to achieve the American dream." He cautioned, however, that, "we need to protect the borders and make sure we have intelligent policies in place that let the right people in and keep the wrong people out."
Click here for a photo of Angelo and Daily Journal Editor, David Houston.
In addition, Angelo Paparelli has been published in The New York Law Journal and has posted several new blog entries on his
Nation of Immigrators public policy blog:
Angelo and his co-authors discuss the limits on the rights of noncitizens under U.S. immigration law -- constraints that arise because immigration agency actions, including deportation (now known as removal) are considered "civil" as opposed to criminal proceedings.
Hot from Miami: Four Fresh and Seasoned Immigration Reform Proposals
Two immigration superstars, Roxana Bacon (former USCIS Chief Counsel) and Esther Olavarria (Counselor to Homeland Security Secretary, Janet Napolitano), offer four innovative proposals for immigration reform conceived by their law students at the University of Miami Law School.
Immigration Law -- Moving away from Individual Rights
Guest blogger Jennifer Oltarsh, a Manhattan immigration lawyer, discusses how the tendency of Congress and the Obama Administration to require the incarceration of low-level immigration law violators without providing individualized determinations of whether a detainee will be released from custody has led to massive increases in the population of incarcerated immigrants.
Immigration Egregore: The "Illegal Immigrant" Slur
Citing the Bard, the rule of law, and grammar lessons, Angelo opines: "As a matter of law and language, the phrase, "illegal immigrant," is improper. Worse still, it is a form of groupthink, an egregore with a life of its own, used wittingly by some and probably unintentionally by others as a group defamation"
Immigration Quibbles and Bites: The Fortnight in Review
In about 1,600 words, Angelo summarizes a momentous, startling and exasperating two weeks in immigration jurisprudence.
Immigration Lawyers Arguing: "Can I Work from Home for a Foreign Employer?"
As a change of pace from the blog's usual fare of criticizing immigration agencies and Congress, Angelo offers a PG-rated point/counterpoint with guest blogger Karin Wolman. (Disclaimer: There were no actual immigration attorneys harmed during the creation of this blog entry.)