Immigration Law Update July 2014

Garfinkel Immigration Law Firm Managing Partner Appointed to Charlotte Regional Partnership Board of Directors

Garfinkel Immigration Law Firm is excited to announce the recent appointment of Managing Partner and North Carolina Board Certified Immigration Law Specialist Steven H. Garfinkel to the Charlotte Regional Partnership's Board of Directors for the 2014-2015 fiscal year.

The Charlotte Regional Partnership is a nonprofit economic development organization located in Charlotte, NC which advocates for job creation, long-term growth and investment opportunities in the Charlotte area.

Garfinkel Immigration Law Firm New Website Launch

We are pleased to announce the launch of Garfinkel Immigration Law Firm's new website, located at www.garfinkelimmigration.com. The new site reflects an extensive re-design in an effort to bring clients and viewers a more streamlined and intuitive layout and functionality. The website features informative content, easily accessible by corporate and individual users. It also includes a safe and secure area for online payments, as well as a Client Login button for private access to our web portal.

As it grows and evolves, Garfinkel Immigration Law Firm remains committed to finding new ways to address current and future client needs. We invite you to check out our website and enjoy our new look.


White House Announces Immigration Reform Efforts, Response to Increase in Unaccompanied Children, Families

President Barack Obama announced on June 30, 2014, that because House Speaker John Boehner has told him that Republicans in the House of Representatives will not pursue immigration reform legislation this year, he has directed Secretary of Homeland Security Jeh Charles Johnson and Attorney General Eric Holder to identify administrative actions that can be taken "to try to fix as much of the immigration system as possible." He said he does not "prefer taking administrative action," and that he takes executive action "only when we have a serious problem...and Congress chooses to do nothing."

Noting that "there are enough Republicans and Democrats in the House to pass an immigration bill today," President Obama said he had "held off on pressuring them for a long time to give [House Speaker John] Boehner the space he needed to get his fellow Republicans on board" with immigration reform legislation.

President Obama also sent a letter on June 30 to congressional leaders asking that they "work with me to address the urgent humanitarian challenge on the border, and support the immigration and Border Patrol agents who already apprehend and deport hundreds of thousands of undocumented immigrants every year." The letter notes, among other things, that the Departments of Justice and Homeland Security are deploying additional enforcement resources, including immigration judges, U.S. Immigration and Customs Enforcement attorneys, and asylum officers, "to focus on individuals and adults traveling with children from Central America and entering without authorization." Shelters have been opened at three military bases, according to reports. The letter states that the Obama administration will submit a related "formal detailed request when the Congress returns from recess."

Also, on June 20, President Obama directed DHS and the Federal Emergency Management Agency to coordinate a government-wide response to the increase in unaccompanied children entering the United States from Central America. A White House fact sheet said the first priority "is to manage the urgent humanitarian situation by making sure these children are housed, fed, and receive any necessary medical treatment." The fact sheet notes that the United States will also increase enforcement and partner with "our Central American counterparts in three key areas: combating gang violence and strengthening citizen security, spurring economic development, and improving capacity to receive and reintegrate returned families and children."

White House Press Secretary Josh Earnest said, "We're going to open up some additional detention facilities that can accommodate adults that show up on the border with their children. And we're going to deploy some additional resources to work through their immigration cases more quickly, so they're not held in that detention facility for a long time, and hopefully [will] be quickly returned to their home countr[ies]." He blamed much of the influx on misinformation intentionally "propagated by criminal syndicates in Central America."

In Guatemala, Vice President Joe Biden recently met with regional leaders to address the increase in unaccompanied children and adults coming with their children to the United States and to discuss efforts "to address the underlying security and economic issues that cause migration."

The Obama administration announced the following related efforts:

•The U.S. government will provide $9.6 million in additional support to Central American governments for receiving and reintegrating their repatriated citizens. "This funding will enable El Salvador, Guatemala, and Honduras to make substantial investments in their existing repatriation centers, provide training to immigration officials on migrant care, and increase the capacity of these governments and non-governmental organizations to provide expanded services to returned migrants."


•In Guatemala, the United States is launching a new $40 million U.S. Agency for International Development (USAID) program over five years to improve citizen security. "This program will work in some of the most violent communities to reduce the risk factors for youth involvement in gangs and address factors driving migration to the United States."


•In El Salvador, the United States is initiating a new $25 million Crime and Violence Prevention USAID program over five years that will establish 77 youth outreach centers in addition to the 30 already in existence. "These will continue to offer services to at-risk youth who are susceptible to gang recruitment and potential migration."


•In Honduras, under the Central American Regional Security Initiative (CARSI), the United States will provide $18.5 million to support community policing and law enforcement efforts to confront gangs and other sources of crime. In addition, USAID will build on an existing initiative to support 40 youth outreach centers by soon announcing a substantial new Crime and Violence Prevention program.


•USAID is calling for proposals to support new public-private partnerships through the Global Development Alliance to increase economic and educational opportunities for at-risk youth in El Salvador, Guatemala, and Honduras.


•The United States also plans to provide $161.5 million this year for CARSI programs "that are critical to enabling Central American countries to respond to the region's most pressing security and governance challenges. On an ongoing basis, the United States is providing almost $130 million in ongoing bilateral assistance to El Salvador, Honduras, and Guatemala for a variety of programs related to health, education, climate change, economic growth, military cooperation, and democracy assistance.


•The United States is collaborating on campaigns to help potential migrants understand the significant danger of relying on human smuggling networks and to reinforce that recently arriving children and individuals are not eligible for programs like Deferred Action for Childhood Arrivals (DACA) and earned citizenship provisions in comprehensive immigration reform currently under consideration in the U.S. Congress.


•The Department of Justice and DHS are taking additional steps to enhance enforcement and removal proceedings. This includes increasing detention of individuals and adults who bring their children with them and handling immigration court hearings "as quickly and efficiently as possible while also protecting those who are seeking asylum." The fact sheet says this will allow U.S. Immigration and Customs Enforcement (ICE) to return unlawful migrants from Central America to their home countries more quickly.


•The fact sheet notes that in FY 2013, ICE removed 47,769 undocumented individuals who came to the United States from Guatemala, 37,049 from Honduras, and 21,602 from El Salvador. This represents approximately 29% of all ICE removals.

The White House fact sheet is available here. A June 30, 2014, press release is available here. A transcript of President Obama's June 30 remarks is available here. President Obama's letter to Speaker Boehner is available here. A transcript of White House Press Secretary Earnest's June 20 remarks can be found here.


Comprehensive Immigration Reform Prospects Appear Dim Following Cantor's Defeat

House Majority Leader Eric Cantor's (R-Va.) historic primary election defeat in Virginia on June 10, 2014, in favor of the vocally anti-"amnesty" Tea Party-backed David Brat suggests that Congress may not enact comprehensive immigration reform this year, according to many commentators. They have observed that Republicans are unlikely to want to address immigration issues in the near future now that Cantor has been defeated unexpectedly, in part because he was willing to consider measures such as a modified Dream Act for young undocumented immigrants. Even Rep. Renee Ellmers (R-N.C.), who won her primary while supporting immigration reform, noted that it was in the "forefront" of Republicans' thinking that "in the state of shock that we are all in,...right now [comprehensive immigration reform is] not where we need to go. She acknowledged, however, that "[t]hat doesn't mean it's off the table."

Candidates who want to win primaries generally must cater to their parties' extremes and portray themselves as purists. On the other hand, Sen. Lindsey Graham (R-S.C.), who is pro-immigration reform, won his June 10 primary. Some argue that immigration issues shouldn't take the blame for Cantor's defeat, and that many realize that our country's prosperity depends on resolution of thorny problems in the system. Others say that Cantor had simply grown out of touch with the people in his district, and that immigration was only one reason for his defeat. House Minority Leader Nancy Pelosi (D-Cal.) said, "I'm not one of those who thought Eric Cantor was an advocate for immigration reform. In fact, I thought he was an obstacle. So I don't think this is an impediment to immigration reform. I don't think the race was about immigration; it was about a lot of other things."

With the 2014 midterm elections coming up, many candidates may not want to take any further political risks in the short term. Incremental progress may still be possible even if passing comprehensive immigration legislation remains out of reach. In the meantime, President Barack Obama has announced administrative measures. See the first article in this issue, above.


DHS Announces DACA Renewals Process

The first Deferred Action for Childhood Arrivals (DACA) approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. U.S. Citizenship and Immigration Services (USCIS) encourages requestors to submit their renewal requests approximately USCIS Logo120 days (four months) before their current periods of deferred action expire.

On June 5, 2014, the Department of Homeland Security (DHS) announced the process for individuals to renew enrollment in DACA. USCIS has updated the related form to allow individuals previously enrolled in DACA to renew their deferral for a period of two years. As of June 5, USCIS has begun accepting renewal requests.

USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program. As of April 2014, more than 560,000 people have enrolled in DACA. Those who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and:

  • Did not depart the United States on or after August 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
    •Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Enrollees may begin the renewal process by filing the new version of Form I-821D, Consideration of Deferred Action for Childhood Arrivals; Form I-765, "Application for Employment Authorization; and the I-765 Worksheet. There is a $465 filing and biometrics (fingerprints and photo) fee for filing the I-765. As with an initial request, USCIS will conduct a background check when processing DACA renewals.

USCIS will host national and local DACA informational sessions. For information on DACA engagements click here. Additional information will be forthcoming. Local engagement lists are available here. USCIS's announcement is available here. To learn more about the renewal process or requesting initial consideration of DACA, click here. The new I-821D can be found here. Initial guidelines for DACA are available in the 2012 memorandum here.


News Highlights: AILA Conference

The following are selected news highlights concerning labor certification applications and the Student and Exchange Visitor Program (SEVP) from the recent American Immigration Lawyers Association's (AILA) annual conference, held June 18-21, 2014, in Boston, Massachusetts:

Department of Labor

AILA reminded the audience that the Department of Labor (DOL) is not a fee-based operation and is funded only by Congress. The increase in labor certification cases only puts more pressure on the agency to do more with less. AILA panelists reminded the audience to understand that pressure and to appreciate DOL's efforts.

Federal Register Notice

•DOL is accepting comments on continued use of the current Form 9089. Comments are due July 7, 2014. The Federal Register notice is available here.

Prevailing Wage Issues

  • DOL recommends that practitioners take a two-fold approach to addressing a potentially incorrect prevailing wage determination: (1) file a redetermination request; and (2) follow up with the Center Director. Both options are reviewed at a fairly high level and take about the same amount of time, approximately 60 days. One can pursue both avenues because the actions are reviewed by a different team. If one is still unsuccessful after pursuing both avenues, the next step would be to appeal to the Board of Alien Labor Certification Appeals (BALCA).
  • DOL confirmed that it looks at employer-conducted and commercial surveys, including Radford and Towers surveys. DOL is familiar with the various surveys that are available and is aware that although the job descriptions on the Form 9141 and the surveys may match, if a position carries management duties, there may be an even better match with job descriptions that include the management duties. Positions that carry supervisory duties are in different categories and at higher levels with higher wages. Where there is such a mismatch in levels, the current system does not allow DOL to suggest a different wage level from the surveys, but must default to the Occupational Employment Statistics (OES) wage levels, which renders a JobZone mismatch. This may change in the future, but for now, there is no option to provide more detailed information in rejecting a survey. Other reasons for rejecting surveys submitted include not matching enough of the job description or where the position is a combination of jobs and the survey only addresses one of the jobs. The ultimate goal for the DOL is to protect U.S. workers against "adverse wage impact" and also to determine whether there is a better fit between the job description on the Form 9141 and the available survey information.
  • The Bureau of Labor Statistics created the Standard Occupational Code (SOC) to be used throughout the government. These codes are not created specifically for DOL's Office of Foreign Labor Certification (OFLC). They are updated every 8 years, and the Bureau of Labor Statistics (BLS) is updating them now. OFLC is spending time catching up with them and updated the PERM system with the SOC 2010 codes about 2 to 3 weeks ago. The codes are constantly changing, albeit in a slow and deliberate fashion. People can comment on the process and DOL encourages comments.

•American Competitiveness and Workforce Improvement Act and prevailing wages: U.S. Citizenship and Immigration Services (USCIS) and DOL base their determinations on slightly different regulatory language. Also, once DOL makes a determination for one employer, it does not revisit the analysis each time. If an employer disagrees, it can use the redetermination process.

Form 9089 and Beneficiary Qualifications

  • AILA recommends that denial of a PERM labor certification application solely because of not listing a license should be reported to the AILA-DOL liaison committee. A motion for reconsideration should be filed at the same time.

•AILA has been in discussions with the DOL concerning issuing guidance to practitioners on where best to include a beneficiary's qualifications. DOL reported that it is close to finalizing a plan of action for a new FAQ. It will still take some time because, in addition to licensure, there are analogous issues to be considered. DOL is reviewing the Form 9089 and instructions. DOL suggested that practitioners list all the experience and qualifications gained with a particular job under the particular job experience listed on the Form 9089. The bottom line is that practitioners should list all the credentials on the Form 9089. One can list a credential even without a job title and this will not cause a denial of the application.

Recruitment Efforts

Given the conflicting holdings in Matter of Credit Suisse Securities and Matter of Symantec Corporation, DOL is following Matter of Credit Suisse Securities (applying 20 CFR § 656.17(f) recruitment instructions to more than newspaper and professional journal ads) in the meantime. AILA submitted an amicus brief on this issue in May 2014.

Audit Tiers

DOL indicated that one of the goals in posting information concerning audit tiers is to bring applications more into compliance. These tiers, however, are not static and DOL continues to evaluate them in relation to agency-run statistics. For example, in 2009 when people were getting laid off in New York City, DOL was still receiving applications where the job opportunities were only requiring a bachelor's degree with no experience while the offered salary was $100,000. This raised concerns, and DOL continues to examine the ongoing changes in the market to determine the tiers.

Case Consolidation

  • There is no mechanism at the DOL level for consolidating similar cases.
  • Practitioners may ask BALCA to do that.

•However, if DOL sees a trend, on its own, it may consolidate cases.

SEVP

According to reports, panelists at the AILA conference noted that changes are expected to the Student and Exchange Visitor Program (SEVP) related to F-1 students in optional practical training (OPT) programs performing in jobs related to their fields of study, and improvements in OPT reporting. These changes are in response to a U.S. Government Accountability Office (GAO) report issued in February 2014 on OPT oversight for F-1 and M-1 students.


State Dept. Announces End to Afghan Special Immigration Visa Program, Seeks Extension

The Department of State has announced that it expects to finish issuing all 3,000 visas for fiscal year Dept of State logo2014 by July 2014 under a special program for Afghans. The agency's authority to issue special immigrant visas (SIVs) to Afghan nationals under the Afghan Allies Protection Act, as amended, is limited to 3,000 visas for Afghan principal applicants in fiscal year 2014.

The Department said, "We welcome action by Congress to extend this program. We are making arrangements to quickly resume issuances of SIVs to Afghan principal applicants if more visas are allocated." In an op-ed published in the Los Angeles Times on June 3, 2014, Secretary of State John Kerry pleaded for more visas "to help Afghans whose work for the U.S. Government put them in danger of retaliation." He said, "Keeping our word requires passing legislation this summer to authorize additional visas for the remainder of this fiscal year and for the next fiscal year. We don't want to lose the hard-won momentum or put lives at risk."

More than 9,000 Afghans who have worked for the United States in Afghanistan (and their family members) have benefited from the SIV program. Of these, more than 70 percent served as translators, with the vast majority serving U.S. military forces in Afghanistan. Over 6,000 Afghans, mainly interpreters and their family members, have received SIVs since October 1, 2013. This includes just over 2,300 principal applicants and 3,700 of their family members.

The announcement is available here. A related face sheet is available here. A FAQ is available here. Secretary Kerry's op-ed can be found here.


SEVP Announces New Exchange Visitor Program I-901 Mobile Fee Processing Website

The Student and Exchange Visitor Program (SEVP) has announced a new automated I-901 Mobile Fee website.

The I-901 Mobile Fee site provides automated fee payment for F-1, F-3, M-1, M-3, and J-1 nonimmigrants. It also allows users to check the status of their I-901 (fee remittance form) payments. The site includes access to recent I-901 news and updates and information on frequently asked questions.

The site also includes information about Western Union payment automation. The system allows applicants to post Western Union payments and print their I-901 payment confirmations.

For more information on the I-901 Mobile Fee site and Western Union payment automation, click here.


Labor Dept. Extends Transitional Worker Program for Northern Marianas

On June 3, 2014, the U.S. Department of Labor (DOL) extended the transitional worker program for the Commonwealth of the Northern Mariana Islands (CNMI) until December 31, 2019.

In 2008, Congress passed the Consolidated Natural Resources Act (CNRA), which applies the immigration laws of the United States to the CNMI. To minimize potential adverse economic effects, the CNRA provides for a five-year transitional worker program, known as the CNMI-Only Transitional Worker (CW-1) program, which ends on December 31, 2014. Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CNRA authorizes the Secretary of Labor to extend this transition period for up to five years based on the labor needs of the CNMI to ensure that an adequate number of workers are available for legitimate businesses.

DOL said it will continue to monitor and assess the labor needs of the CNMI, in particular any good-faith efforts to locate, educate, train, or otherwise prepare U.S. citizens, lawful permanent residents, and unemployed foreign workers already in the CNMI to take jobs in legitimate businesses.

U.S. Citizenship and Immigration Services (USCIS) said it will resume approving CW-1 status in periods of up to one year. There are no changes to the application process or fees for the CW program. Employers must still file Form I-129CW, Petition for a CNMI-Only Nonimmigrant. The timetable for petitioning remains the same: employers may file an I-129CW up to six months in advance. USCIS "encourages employers to file as soon as possible within that time frame to prevent gaps in employment authorization."

USCIS noted that spouses and minor children of CW-1 workers can obtain CW-2 derivative status. DOL's CW-1 extension also permits USCIS to grant spouses and minor children CW-2 status for the same duration as the principal CW-1 petitioner whose status is extending beyond, or was granted after, December 31, 2014.

The Department of Homeland Security (DHS) determines the annual numerical limitation on CW-1 workers, as required by the CNRA. DHS set the CW-1 limit for fiscal year (FY) 2014 at 14,000 to meet the CNMI's existing labor market needs and provide opportunity for potential growth. With DOL's extension of the CW-1 program, DHS will reassess the CNMI's labor market needs and opportunity for growth to determine the FY 2015 numerical limitation for
CW-1 workers.

DOL's announcement is available here. The Federal Register notice is available here. USCIS guidance is available here.


U.S. Consulate in Osaka-Kobe Stops E-1/E-2 Nonimmigrant Visa Appointments for Summer

The U.S. consulate in Osaka-Kobe has announced that it has temporarily stopped accepting
E-1/E-2 nonimmigrant visa appointments through August. During this time frame, E visa applicants, including dependents over the age of 14, must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead. The Osaka-Kobe consulate will continue to process drop-box/mail-in renewal cases as usual. Individuals can also send minor dependent (under the age of 14) cases under the usual mail-in (no-interview) procedures. Companies who are registering for the first time as E visa companies with Osaka may submit their paperwork as usual. The consulate in Osaka-Kobe will contact first-time applicants on an individual basis to set up appointments as needed. The consulate says 10-12 weeks are needed for the processing of these cases. Beginning on September 1, the consulate will resume processing all E applications as usual.

The announcement is available here (scroll down).


ABIL Global: Italy

Various developments have been announced.

New Start-Up Visa

The Italian Ministry of Foreign Affairs has established a new type of visa (under measure 44 of the Plan "Destinazione Italia" and Law no. 221/2012) to attract and retain foreign entrepreneurs planning to establish a start-up company in Italy.

The visa issuance procedure is expected to be fast and streamlined. A technical committee established by the Ministry of Industry and Economic Development will evaluate the start-up companies. To obtain an entry visa for startups, a foreign entrepreneur must prove ownership of at least €50,000 in financial resources. This funding can be raised through venture capital, crowdsourcing, investors, or Italian/foreign governments and non-governmental organizations. Special facilitations are provided for foreign citizens who have the support of a certified incubator.

Two other types of visas may be useful, depending on the activities the investor is willing to carry out:

Autonomous Work Visa-for individuals willing to work autonomously (e.g., freelancers, consultants) or to establish a company in Italy. The autonomous work visa is subject to numerical caps.

Appointed directors employed by a foreign company and temporarily assigned to an Italian-affiliated company may be granted an autonomous work visa without any quota limit.

Elective Residence Visa-for individuals who are interested only in living in Italy without carrying out any work activities. The elective residence visa is limited to those who have a significant amount of money and savings and are able to live in Italy with no need of work-related income.

The requirements and conditions to apply for the start-up visa are listed on the Italian Ministry of Foreign Affairs website (Startup Visa Guidelines and Italia Startup Procedures).

Expo 2015 Work Permits

Italy's Ministry of Foreign Affairs has issued guidelines for work permits for delegates, workers, and participants who will attend Expo 2015 in Milan. Official delegates (and their dependents) may obtain a mission visa. Non-accredited individuals (e.g., delegates of companies attending the Expo and workers to be employed at the site) may be granted a work visa following an electronic fast-track procedure established by the Ministry. The Ministry also has provided guidelines for the issuance of tourist visas to visitors.

The guidelines are available here.

New Quotas for Seasonal Work and for Workers Participating in Expo 2015

Online applications may be submitted until December 31. 15,000 new quotas are available for seasonal workers of the following nationalities: Albania, Algeria, Bosnia-Herzegovina, Egypt, Republic of the Philippines, Gambia, Ghana, Japan, India, Kosovo, the former Yugoslav Republic of Macedonia, Morocco, Mauritius, Moldova, Montenegro, Niger, Nigeria, Pakistan, Senegal, Serbia, Sri Lanka, Ukraine, and Tunisia. 3,000 of these quotas are intended for those having entered Italy for seasonal work in the past two years.

2,000 new quotas have also been allocated to individuals assigned to work at the Milan Expo 2015.

Registration of a Same-Sex Marriage Celebrated in the United States

An Italian lower court ordered City Hall to register in the Civil Records (Stato Civile) the marriage of an Italian same-sex couple married in New York in 2012.

Non-EU nationals married with a same-sex EU partner were recently granted the right to obtain a family residence permit but their marriage could not be officially recorded at City Hall.

The Public Prosecutor has announced that the decision will be challenged before the Court of Appeal. Therefore, it could be reversed. This is, however, a further step toward the full recognition of same-sex marriages in Italy.

New Requirement for Residency Registrations

As of May 20, 2014, individuals of all nationalities applying for residency registration must submit documents proving that they have a legal right to live at the address indicated in the application. Depending on the situation, applicants may be asked to submit a copy of a registered tenancy agreement, a self-declaration signed by the house owner, and/or a declaration of hospitality.

Court of Rome Confirms That Children Born to Unmarried Parents Are Entitled to Italian Citizenship

On March 21, 2014 (sentence no. 7472), the Rome Court confirmed that eligibility for Italian citizenship is extended to children born to unmarried parents, provided that some requirements are met. In particular, children younger than 18 years old born to Italian unmarried parents are automatically granted Italian citizenship, while children older than 18 must apply for citizenship within one year of spontaneous legitimation or recognition by the court.

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