Newsletter
Oct 4, 2010
Immigration Inbox: News You Can Use - October 2010
U.S. Immigration
1. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest
2. Department of Labor Releases Round 11 of Permanent Labor Certification FAQ
3. Department of State Introduces ESTA Fee for Visa Waiver Travelers
4. Department of State Updates Guidance on Medical Grounds of Inadmissibility
5. Department of State Finalizes Rule on Electronic Application Alternative for Immigrant Visas
Seyfarth Workforce Authorization Team (SWATeam)
Recent News From Seyfarth’s Immigration Lawyers
U.S. Immigration
1. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest
Smartsoft International Inc., a computer consulting company based in Suwanee, Georgia, has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program. The Department of Labor’s Office of the Solicitor reached the agreement following a determination by the Wage and Hour Division that the company violated the H-1B program’s rules. Smartsoft also has U.S. offices in Sunnyvale, California, and North Brunswick, New Jersey.
The back wages calculation resulted from a Wage and Hour Division investigator determining that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.
The DOL’s announcement is available here.
2. Department of Labor Releases Round 11 of Permanent Labor Certification FAQ
The Department of Labor’s Office of Foreign Labor Certification released Round 11 of frequently asked questions on permanent labor certification on August 3, 2010. Topics include the lack of an expedited filing option, documenting the use of an employee referral program as a step in recruitment for a professional occupation, the effects of submitting unsolicited documentation, and the definition of a “business day.”
The FAQ is available here.
3. Department of State Introduces ESTA Fee for Visa Waiver Travelers
The Department of State released a cable to the field in August 2010 that provides information on implementation of the Travel Promotion Act of 2009 (TPA), signed into law on March 4, 2010, and fee collection for the Electronic System for Travel Authorization (ESTA). Under the TPA, fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.
On August 6, 2010, the DHS announced an interim final rule that requires travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14, with $4 to recover the cost of administering the ESTA system and $10 as mandated in the TPA.
The announcement, which provides additional details, is available here.
4. Department of State Updates Guidance on Medical Grounds of Inadmissibility
Following an update by the Centers for Disease Control and Prevention (CDC) to its technical instructions, the Department of State (DOS) has updated guidance in the Foreign Affairs Manual (FAM) concerning medical grounds of inadmissibility and issued a corresponding cable to the field.
The cable notes that the CDC updated the Technical Instructions for Physical or Mental Disorders with Associated Harmful Behavior and Substance Related Disorders (2010 MH TIs) effective June 1, 2010. Those instructions supersede all previous guidance on physical or mental disorders and substance related disorders. The major revisions in the 2010 MH TIs include changes to the methods of diagnosis of mental disorders and substance-related disorders, the definition and determination of remission, and the alcohol abuse evaluation. The DOS cable includes updates to 9 FAM resulting from this change to the technical instructions.
The CDC’s updated technical instructions for panel physicians are available here. The updated portion of the FAM is available here.
5. Department of State Finalizes Rule on Electronic Application Alternative for Immigrant Visas
The Department of State has issued a final rule, effective August 3, 2010, on electronic applications. The agency has developed and introduced an electronic application process for immigrant visa applicants to eventually replace the current paper-based application process, which consists of Parts 1 and 2 of Form DS-230, Application for Immigrant Visa and Alien Registration. The Department will continue to accept the DS-230 when necessary, but plans to eliminate the DS-230 eventually and replace it with the DS-260, Electronic Application for Immigrant Visa and Alien Registration, which is designed to be completed and signed electronically.
The final rule’s supplementary information explains that the procedure is the same for the immigrant visa applicant, except that he or she will not be required to print a form to take to the visa interview. All information entered into the DS-260 will be available to the National Visa Center and to the consular officer at the time of application processing and interview. The applicant must sign the DS-260 electronically at the time of submission by clicking a “Sign and Submit Application’’ box in the application. The applicant will also be required at the interview to swear under oath that the information provided on the DS-260 is true, and to provide a biometric signature. Photos, passports, and fingerscans collected as part of the application process will identify the applicant.
A third party may assist the applicant in preparing the DS-260, but the applicant must electronically sign the application. The applicant must identify in the application any third party who has assisted in the preparation of the DS-260.
The final rule is available here.
SWAT News
1. U.S. Citizenship and Immigration Services Discusses Effects of Invalid Puerto Rico Birth Certificates on I-9 Process
On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico because of a new Puerto Rico birth certificate law. After October 30, 2010, all certified copies of Puerto Rico birth certificates issued before July 1, 2010, will become invalid. However, U.S. Citizenship and Immigration Services (USCIS) noted in recent guidance that employers may continue to accept Puerto Rico birth certificates issued before July 1, 2010, as valid list C documents through October 30, 2010. Beginning October 31, 2010, employers may accept Puerto Rico birth certificates issued after July 1, 2010.
The USCIS announcement, released on September 30, 2010, is available here.
Recent News From Seyfarth’s Immigration Lawyers
Angelo Paparelli co-authored the article, “Lawbreaker, Naïf or Stooge? The HR Representative and I-9 Crimes,” which was published August 25, 2010 in the New York Law Journal. The article focuses on the potential criminal liabilities facing human resources professionals who assist in the hiring of unauthorized workers in violation of the Immigration and Nationality Act.
The article also makes clear that Immigration and Customs Enforcement (ICE) is beginning to charge owners and employees under a variety of other provisions, including money laundering.
Leon Sequeira spoke on Aug. 12 in Seattle at the ImmigrationWorks Northwest Summit on prospects for comprehensive immigration reform and Obama Administration H-2 policies.
For more information, please contact the Seyfarth attorney with whom you work, or any Business Immigration attorney on
our website.