Immigration Law Update December 2014

Garfinkel Immigration Law Firm Partner Celebrates Five Years

Garfinkel Immigration Law Firm, the largest immigration law firm in the Carolinas is proud to announce that Partner and N.C. Board Certified Immigration Law Specialist Hannah F. Little is celebrating five years of practicing immigration law with the Firm.

Hannah represents employers and employees in a variety of industries while also overseeing the Firm's family-based immigration matters. Hannah also dedicates herself to an extensive probono practice in order to help those in need.

Hannah has also been recognized by the legal community as a North Carolina Rising Start in the 2014 Super Lawyers and has been awarded an AV® Preeminent Peer Review Rating. Congratulations Hannah!


Garfinkel Immigration Law Firm Probono Spotlight

Garfinkel Immigration Law Firm is deeply committed to being an active and responsible citizen in the Charlotte and global community. Not only do we support numerous local and national charities and organizations, but our team volunteers their personal time to provide probono legal services to those in need.

Probono work is very important to Partner and N.C. Board Certified Immigration Law Specialist Hannah F. Little. So much that she heads up a team of volunteers at the Firm and has personally spent over 50 hours of her own time in 2014 helping those in need.

Hannah has been recognized for her service to the community by the American Immigration Lawyers Association as has been named as both a Pro Bono Guardian and a Pro Bono Hero.


Obama Takes Executive Action on Immigration

Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.

As outlined in a series of Department of Homeland Security memoranda, the executive actions include, among other things:

* Supporting high-skilled business and workers. The Department of Homeland Security (DHS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, DHS notes, "because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions."

Some of the actions called for in the memo include:

- U.S. Citizenship and Immigration Services (USCIS) working with the Department of State (DOS) to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify its visa bulletin system "to more simply and reliably make such determinations," and the memo states an expectation that USCIS will revise its current regulations "to reflect and complement these proposed modifications."

- USCIS considering "amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where [beneficiaries] seek to change jobs or employers."

- U.S. Immigration and Customs Enforcement (ICE) developing regulations for notice and comment to expand the degree programs eligible for Optional Practical Training (OPT) and to extend the time period and use of OPT for foreign STEM (science, technology, engineering, and mathematics) students and graduates.

- USCIS issuing guidance or regulations to clarify the standard for granting a national interest waiver green card, with the aim of promoting its greater use.

- USCIS proposing a program allowing parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for national interest waivers but "who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research." The regulation will include income and resource thresholds.

- USCIS issuing a policy memorandum to provide "clear, consolidated guidance" on the meaning of "specialized knowledge" in adjudicating L-1B petitions.

- USCIS issuing a policy memorandum providing guidance on worker portability, specifically with respect to what constitutes a "same or similar" job, with a goal of removing "unnecessary restrictions" on "natural career progression."

The memo explaining these actions is available here.

* Enforcement efforts, including commissioning three Joint Task Forces. Joint Task Force East, Joint Task Force West, and Joint Task Force Investigations. All three will incorporate elements of the U.S. Coast Guard, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Joint Task Force East will be responsible for the southern maritime border and approaches. Joint Task Force West will be responsible for the southern land border and the West Coast. Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces.

The overarching goals of the Southern Border and Approaches Campaign, of which the Joint Task Forces are a part, will be to enforce immigration laws and interdict individuals seeking to enter the U.S. without authorization; degrade international criminal organizations; and decrease the threat of terrorism. The memo explaining these actions is available here.

* Ending the Secure Communities program and replacing it with the Priority Enforcement Program, and prioritizing criminal offenses for arrest, detention, and removal. The memos explaining these actions are here and here.

* Expanding Deferred Action for Childhood Arrivals (DACA) to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The entry date will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available here.

* Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), will include individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available here.

* Expanding I-601A provisional waivers to spouses and children of lawful permanent residents. The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, the administration will further clarify the "extreme hardship" standard that must be met to obtain the waiver. The memo explaining this action is available here.

* Revising parole rules. DHS will begin rulemaking to identify the conditions under which "talented entrepreneurs" should be paroled into the United States, on the ground that their entry would yield a "significant public economic benefit." DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given advance parole to leave the United States, including those who obtain deferred action, they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart. The memos explaining these actions are here (entrepreneurs), here (parole-in-place and deferred action), and here (advance parole).

President Obama also issued a memorandum directing the Secretaries of State and Homeland Security, in consultation with other federal agencies, to develop recommendations for improving the U.S. visa system. The recommendations will be developed in consultation with "business people, labor leaders, universities, and other stakeholders." The recommendations will be geared toward streamlining and improving the legal immigration system-including immigrant and non-immigrant visa processing-"with a focus on reforms that reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system."

In consultation with stakeholders with relevant expertise in immigration law, they will also develop recommendations "to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand." In consultation with technology experts inside and outside the government, they will develop recommendations "for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system."

President Obama also announced that he is establishing a White House Task Force on New Americans, an interagency effort "to identify and support state and local efforts at integration that are working and to consider how to expand and replicate successful models." The Task Force, which will engage with community, business, and faith leaders, as well as state and local elected officials, "will help determine additional steps the federal government can take to ensure its programs and policies are serving diverse communities that include new Americans." Among other things, the Task Force will submit an "Integration Plan" to President Obama, which will include an assessment of the members' agencies with respect to integration efforts, and recommendations. The Task Force will also identify and disseminate best practices at the state and local level, collect and disseminate data on immigrant integration, and provide technical assistance.

President Obama has said he would reverse the executive actions if Congress passes a comprehensive immigration legislation that he can sign. Republicans countered that they would fight whatever changes the President orders "tooth and nail," according to House Speaker John Boehner (R-Ohio). He said all options were on the table. Senate Majority Leader Mitch McConnell (R-Ky.) said that unilateral executive actions on immigration are like "waving a red flag in front of a bull."

A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama's legal authority to expand the DACA program and to establish the Deferred Action for Parental Accountability (DAPA) program. It is available here. President Obama also issued an "immigration blueprint," outlined in "Building a 21st Century Immigration System," which includes additional proposals. The blueprint is available here. The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available here. Additional memoranda can be found here (modernizing and streamlining the U.S. visa system) and here (establishing the White House Task Force on New Americans).


Labor Dept. To Modernize PERM Recruitment and Application Requirements

The Department of Labor (DOL) has released a fact sheet announcing that it will review the PERM labor certification program and relevant regulations with a goal of updating them. DOL noted that it has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.

DOL recently marked the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of participating employers. The DOL said it has not comprehensively examined and modified the permanent labor certification requirements and process since their inception. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the information technology and science fields.

As part of the new review, DOL will seek input on the current PERM regulations, including how they can be modernized to be more responsive to changes in the national workforce. Specifically, DOL will seek input on the following:

* Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

* Methods and practices designed to modernize U.S. worker recruitment requirements;

* Processes to clarify employer obligations to ensure that PERM positions are fully open to U.S. workers;

* Ranges of case processing time frames and possibilities for premium processing; and

* Application submission and review processes and the feasibility of efficiently addressing nonmaterial errors.

DOL's Employment and Training Administration may also examine other aspects of the existing PERM regulations to further align the program design with the objectives of the U.S. immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.

The fact sheet is available here.


Labor Dept. Establishes Interagency Working Group on Worker Protections

The Department of Labor recently announced the creation of an interagency working group to identify policies and procedures that promote the consistent enforcement of federal labor, employment, and immigration laws to "protect all workers in the U.S." The announcement notes that federal agencies responsible for worker protections seek to protect all workers from exploitation and workers' rights violations, regardless of immigration status. "Many workers, however, are deterred or prevented from asserting workplace rights and protections. In some cases, employers may exploit immigration status to deter employees from asserting their rights. In other cases, the protections available to workers are unclear," the announcement notes.

The working group will comprise federal immigration enforcement agencies and federal agencies responsible for worker protections, including the Departments of Labor, Homeland Security, and Justice; the Equal Employment Opportunity Commission; and the National Labor Relations Board.

The working group will seek to:

* Ensure that agencies' immigration enforcement and worker protection policies promote workers' cooperation with labor and employment law enforcement authorities without fear of retaliation;

* Ensure that federal enforcement authorities are not used by parties seeking to undermine worker protection laws by enmeshing immigration authorities in labor disputes; and,

* Ensure the consistent enforcement of federal labor, employment, and immigration laws.

To achieve these objectives the working group will:

* Develop policies and procedures to ensure consistent enforcement of labor, employment, and immigration laws;

* Develop consistent standards and procedures for immigration agencies to contact labor agencies when they encounter a potential labor dispute within the meaning of the Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, executed on December 7, 2011;

* Provide greater clarity to workers, worker representatives, advocates, and employers regarding processes and procedures on the intersection between immigration law enforcement and labor and employment law enforcement;

* Strengthen processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing; and

* Provide stakeholders open and transparent modes of communication with enforcement authorities.

The working group "will provide opportunities for communication with external stakeholders, including workers, worker representatives, advocates, and employers as appropriate."

The fact sheet is available here.


U.S., China Extend Short-Term, Business Visa Validity in Reciprocal Arrangement

On November 12, 2014, the United States began issuing visas in accordance with a new reciprocal arrangement with China, the Department of State's Bureau of Consular Affairs announced. Chinese applicants who qualify for a B nonimmigrant visa (NIV) may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residence permits valid up to five years, depending on the length of their educational programs.

The Bureau noted that visa validity is not the same as the allowed duration of stay. A visa allows a foreign citizen to travel to a U.S. port of entry where a Customs and Border Protection officer will grant admission to valid travelers. In doing so, the officer will inform the traveler of the permitted length of stay. The current change in visa validity does not change the permitted duration of stay for any visa class.

The Bureau said it expects that these changes in visa validity "will be very popular among Chinese travelers. The U.S. Mission in China is taking steps to handle a potential increase in visa workload and intends to keep visa processing times as short as they have been over the past several years."

There will be no change in visa application fees. The basic visa fee of $160 includes appointment scheduling and passport delivery services.

The United States and China continue to discuss visa validity for other classes of visas. All such decisions are made on a reciprocal basis. The Bureau noted that in FY 2014, business, tourist, student, and exchange visitor visas represented 97 percent of all nonimmigrant visa applications processed in China for Chinese citizens.

A related White House fact sheet notes that China is the fastest-growing outbound tourism market in the world. In 2013, 1.8 million Chinese travelers visited the United States, contributing $21.1 billion to the U.S. economy and supporting more than 109,000 American jobs. Chinese travelers consistently rank the United States as their most-desired travel destination, the fact sheet notes, yet less than 2 percent of total Chinese travelers come to the United States. Chinese travelers cite ease of visa policies as the second most important factor in deciding where to travel, behind only cost. "A competitive visa policy will help us meet projections that suggest as many as 7.3 million Chinese travelers will come to the United States by 2021, contributing nearly $85 billion a year to the economy and supporting up to 440,000 U.S. jobs," the fact sheet states.

The White House fact sheet also notes that 28 percent of all foreign students and exchange visitors in the United States originate from China. Chinese students in the United States spent $8 billion in 2013, an increase of nearly 24 percent over the previous year.

The announcement is available here. A related FAQ is available here. The White House fact sheet can be found here. The revised reciprocity schedule can be found here.


Justice Dept. Settles Discrimination Cases in California and Georgia

The U.S. Department of Justice (DOJ) recently settled several immigration-related discrimination claims in California and Georgia.

California case. DOJ reached an agreement with Serendipity Hearing Inc., doing business as Sonus Hearing Care (Sonus), a hearing services provider headquartered in the Los Angeles, California, metropolitan area. The agreement resolves a claim, filed with DOJ's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), that the company engaged in discriminatory documentary practices during the employment eligibility verification process.

OSC's investigation found that Sonus required the complainant, a lawful permanent resident (LPR) it had hired, to produce a new employment eligibility document when her permanent resident card expired, even though the Form I-9 and E-Verify rules prohibit this practice because LPRs have permanent work authorization in the United States after their permanent resident cards expire. When the complainant failed to present her new permanent resident card, Sonus terminated her. OSC noted that the Immigration and Nationality Act's antidiscrimination provision prohibits employers from making additional and unauthorized documentary demands based on citizenship status or national origin when verifying or re-verifying an employee's employment eligibility.

Under the settlement agreement, Sonus will pay $16,727 in back pay to the complainant and $400 in civil penalties to the United States, undergo training on the INA's antidiscrimination provision, revise its employment eligibility re-verification policies, and be subject to monitoring of its employment eligibility verification practices.

Georgia case. DOJ reached an agreement with Constructor Services Inc. (CSI), a construction company headquartered in the Atlanta, Georgia, metropolitan area. The agreement resolves a claim that the company engaged in discriminatory documentary practices during the employment eligibility verification process.

DOJ's investigation found that CSI required non-U.S. citizens, but not similarly situated U.S. citizens, to produce specific documentary proof of their immigration status for the purpose of verifying their employment eligibility. "Employers must make sure that they are not erecting unlawful discriminatory barriers in their employment eligibility verification policies and practices," said Molly Moran, Acting Assistant Attorney General for the Civil Rights Division.

Under the settlement agreement, CSI will pay $18,000 in civil penalties to the United States, undergo training on the INA's antidiscrimination provision, revise its employment eligibility reverification policies, and be subject to monitoring of its employment eligibility verification practices for 24 months.

The California case announcement is available here. The Georgia case announcement is available here.


USCIS Begins Transferring Some Casework From Vermont to California

U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework from the Vermont Service Center to the California Service Center to balance workloads. Affected casework so far includes Form I-751, Petition to Remove the Conditions of Residence, for certain marriage-related green card cases.

USCIS will send transfer notices to those affected. The original receipt number will not change and the transfer will not delay processing, USCIS said. The words "Case Type: CRI89 Approved Removal of Conditions" will be printed on the transfer notices. USCIS said that the notice may not contain the receipt number of the pending I-751. Those receiving any notice should respond to the service center that sent them the notice.

Those who do not receive a decision within the published processing time for the California Service Center may submit an inquiry using e-Request or call the National Customer Service Center at 1-800-375-5283. For TDD (hearing-impaired) assistance, please call 1-800-767-1833.

The announcement is available here. Published processing times are available here.


USCIS Launches myE-Verify for Employees

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez recently announced the launch of myE-Verify, a new website designed for employees. myE-Verify is a "one-stop shop" for employees to create and maintain secure personal accounts and access new features for identity protection, USCIS said.

myE-Verify includes Self Check and the Employee Rights Toolkit, among other things. Users will have their identities verified through Self Check when creating myE-Verify accounts. myE-Verify introduces the following new services:

* myE-Verify accounts - Allows employees and job seekers to set up free and secure personal accounts to manage the use of their information in E-Verify and Self Check through the available myE-Verify features.

* Self Lock - Allows individuals to lock their social security numbers to prevent unauthorized or fraudulent use within E-Verify. Self Lock is available only to myE-Verify account holders.

* myResources - A section of the myE-Verify site that contains information in multi-media formats to educate employees about their rights as well as the responsibilities of employers in the employment eligibility verification process.

myE-Verify accounts and Self Lock will initially be accessible to individuals in Arizona, Idaho, Colorado, Mississippi, Virginia, and the District of Columbia. In future releases, USCIS will roll out myE-Verify across the country with additional features focused on employees and job seekers.

E-Verify is used by nearly 550,000 employers to verify the employment eligibility of persons they hire.

The announcement is available here. Information on E-Verify is available here. The myE-Verify page is available here.


USCIS Naturalizes Service Members on Veterans Day

U.S. Citizenship and Immigration Services (USCIS) highlighted service members, military spouses, and veterans taking the Oath of Allegiance to become U.S. citizens at naturalization ceremonies in honor of Veterans Day. In all, USCIS welcomed more than 3,000 new citizens at nearly 40 naturalization ceremonies that took place across the country from November 7 through 14, 2014. Since September 2002, USCIS has naturalized more than 102,000 service members, including individuals serving in Iraq, Afghanistan, South Korea, Germany, Japan, and elsewhere.

Highlights included ceremonies at:

* National Museum of the Marine Corps in Triangle, Virginia
* Pima Air & Space Museum in Tucson, Arizona
* Soldiers & Sailors Memorial Hall & Museum in Pittsburgh, Pennsylvania
* Everglades National Park in Homestead, Florida
* Nellis Air Force Base in Nevada

In addition, five recruits became new citizens at the Marine Corps Recruit Depot in San Diego through the Naturalization at Basic Training Initiative. Developed with the Department of Defense, this program allows enlisted service members to complete the naturalization process during basic training.

USCIS invited new citizens and their families and friends to share their experiences from the ceremonies through Twitter and other social media, using the hashtag #newUScitizen.


ABIL Global: Poland

Poland regards special economic zones as an important instrument to stimulate foreign investment. There are new investment opportunities in Polish real estate 12 years after Poland's accession to the EU.

Poland can be considered an alternative for corporate immigration as compared with other economies of East-Central Europe. Two factors provide the basis for the increased activity of foreign capital in Poland: the development of special economic zones and the lifting of limitations on purchasing real estate by foreigners in Poland.

As with other countries (e.g., China), Poland regards special economic zones as an important instrument for attracting foreign investors. Special economic zones are designated industrial areas prepared for investment for foreign entities. In return for allocating production and operation of the company in Poland, the investor receives a special, beneficial legal status with respect to tax obligations. The primary benefit of investing in the special economic zones is property tax exemption and, above all, income tax exemption, the scale of which depends on the volume of investment. Investments in the special economic zones in Poland require a permit issued in administrative proceedings. According to the latest data, there are more than 7 thousand hectares of land waiting in Poland for foreign capital in the special economic zones.

In the near future, new rules will come into force on state aid granted to entrepreneurs operating under permits to conduct business activity in the special economic zones. The rules will facilitate provisions regulating the proportion of public funds in the investments and the method of accounting for the investments.

The attractiveness of the local market for corporate immigration depends to a large extent on the legal status of the commercial real estate market. In this respect, the current status of the Polish real estate sector has been presented in the annual report of the Polish government devoted to the acquisition of real estate by foreigners (individuals and corporate entities). The report for 2014 highlights the activity of German, Dutch, and Ukrainian capital in Poland. The reports, prepared annually by the Minister of Internal Affairs and Administration, extensively and accurately presents international trading in Polish real estate.

According to the report, in 2013, foreigners were granted a total of 252 permits for the acquisition of land property with a total area of 697.15 hectares. The vast majority of applications had been approved. In Poland, the acquisition of real estate by foreigners requires, in principle, a permit from the Minister of Internal Affairs and Administration. The source of legal restrictions is the Act on the acquisition of real estate by foreigners as of March 24, 1920. The relevant permit is also necessary for the purchase or acquisition by foreigners of shares in companies that are owners or perpetual users of real estate. By May 1, 2016, the permit also will be required for the purchase of forest and agricultural real estate by European Union (EU)/European Economic Area entities. Such status follows from the transitional provisions of the Polish accession to the EU.

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