Immigration Law Update April 2014

File H-1B Petitions for FY2016 Now!

USCIS, Provide Highlights on Immigration Status Effects on ACA Eligibility

USCIS Holds Teleconference With EB-5 Stakeholders

State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games

OCAHO Reduces Employer’s Fines for I-9 Violations

DOL Releases 2014 Allowable Charges for Agricultural Workers

USCIS Extends TPS for Haitians; ICE Extends Work Authorization for Certain Haitian F-1 Students

Supreme Court Denies Certiorari in Local Ordinance Cases

File H-1B Petitions for FY 2015 Now!

U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the fiscal year (FY) 2015 cap starting on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.

USCIS’s announcement is available here. Information on premium processing is available here.

USCIS, Provide Highlights of Immigration Status Effects on ACA Eligibility

U.S. Citizenship and Immigration Services disseminated a stakeholder alert on March 13, 2014, noting that immigration status can affect eligibility for health care benefits under the Patient Protection and Affordable Care Act (ACA), popularly known as Obamacare. USCIS encourages stakeholders to visit to learn more, including the most common immigration documents that may be submitted when applying for health insurance; options for families; how immigration status affects eligibility for insurance; and how to verify citizenship and immigration status.

The ACA website provides a long list of documents that can be used to show immigration status at

The website also provides the following list of eligible immigration statuses for health coverage through the "Marketplace":

•Lawful permanent resident (LPR/green card holder)
•Cuban/Haitian entrant
•Paroled into the U.S.
•Conditional entrant granted before 1980
•Battered spouse, child, or parent
•Victim of trafficking and his or her spouse, child, sibling, or parent
•Granted withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT)
•Individual with nonimmigrant status (including worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
•Temporary Protected Status (TPS)
•Deferred Enforced Departure (DED)
•Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) isn’t an eligible immigration status for applying for health coverage)
•Applicant for:

- Special Immigrant Juvenile Status

- Adjustment to LPR status with an approved visa petition

- Victim of trafficking visa

- Asylum who has either been granted employment authorization, OR is under 14 and has had an application for asylum pending for at least 180 days)

- Withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT) who has either been granted employment authorization, OR is under 14 and has had an application for withholding of deportation or withholding removal under the immigration laws or under the CAT pending for at least 180 days)

•Certain individuals with an employment authorization document:

- Registry applicants

- Order of supervision

- Applicant for cancellation of removal or suspension of deportation

- Applicant for legalization under IRCA

- Applicant for TPS

- Legalization under the LIFE Act
•Lawful temporary resident
•Granted an administrative stay of removal by the Department of Homeland Security
•Member of a federally recognized Indian tribe or American Indian born in Canada
•Resident of American Samoa

The website notes that this information will only be used for determining access to health coverage in the Marketplace and will not be used for immigration enforcement purposes. Also, use of health care services through the Marketplace will not be considered a public charge.

U.S. Residents Living Abroad

The Affordable Care Act requires all "applicable individuals," including lawful permanent residents (LPRs), to maintain minimum essential health care coverage. The "minimum essential coverage" is required on a monthly basis, but only during those months that qualify people as "applicable individuals." The penalties for failing to obtain coverage only apply to required coverage months. Applicable individuals must maintain minimum essential coverage for each month, qualify for an exemption (see, or pay a penalty when filing their federal income tax returns, starting with their 2014 returns.

All LPRs living outside the United States are considered "applicable individuals." The Affordable Care Act provides that U.S. tax residents, including LPRs, whose tax home is outside the United States and who are not physically present in the United States for at least 330 full days within a 12-consecutive-month period, are treated as having minimum essential coverage for that 12-month period. In general, such individuals qualify for the foreign earned income exclusion under section 911 of the Internal Revenue Code. We do not know yet whether individuals will be required to elect the foreign earned income exclusion to be deemed as having minimum essential coverage or whether a separate form will be developed for this purpose.

LPRs qualifying as having minimum essential coverage need take no further action to comply with the minimum essential coverage requirement during the months they qualify. LPRs with a tax home outside the United States who spend less than 330 full days outside the country within a 12-month period must maintain minimum essential coverage for the applicable period or pay the penalty for failing to do so.

LPRs who seek to claim a section 911-type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under court precedents. Even if LPRs assert that their trips abroad were temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. Taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5- or 3-year period for naturalization purposes. INA § 316(b) states that an absence from the United States of more than 6 months but less than 1 year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence.

Penalty for Failure to Maintain Minimum Essential Coverage

LPRs and other applicable individuals who fail to maintain required minimum essential coverage must pay a penalty, known as the "individual shared responsibility payment." The annual penalty is calculated in one of two ways, and the applicable individual will pay the higher of:

•1% of the applicable individual’s yearly worldwide income up to a maximum amount. Only the amount of income above the tax filing threshold, or $10,150 for an individual, is used to calculate the penalty. The maximum penalty is the national average yearly premium for a "bronze plan," which will be calculated in 2014 at around $4500.

•$95 per person for 2014 ($47.50 per child under 18). The maximum penalty per family using this method is $285.

The applicable individual will owe 1/12th of the annual payment for each month they or their dependents do not have coverage and are not exempt. The payment will be due when LPRs file their 2014 tax returns in 2015.

LPRs and other noncitizens should consult a competent tax professional before making essential decisions regarding their obligations under the Affordable Care Act. LPRs living abroad for significant periods are always at risk of losing their permanent residence status and should contact us about steps that should be taken to maintain it.

For more information click here.

USCIS Holds Teleconference With EB-5 Stakeholders

U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.

Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and
I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.

USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.

USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.

Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.

USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.

As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.

The list of EB-5 regional centers by state is available here. This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.

State Dept. Waives Visa Fee for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games

The Department of State has waived fees for applications (i.e., machine-readable visa) and visa Dept of State logo issuances (i.e., reciprocity) for certain participants in the 2014 Special Olympics Summer Games Invitational taking place in Los Angeles, California, from June 6 to 8, 2014, and the 2015 Special Olympics World Summer Games taking place in Los Angeles from July 25 to August 2, 2015. Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games. The included roles are:

* Athletes and Unified Partners (athletes without an intellectual disability who train and compete on teams with persons with intellectual disabilities);

* Coaches, trainers, referees, and judges;

* Other supporting staff accredited to the Games (e.g., medical doctors, nurses, therapists, Special Olympics staff from regional offices, and technical delegates to oversee each sport);

* Heads and assistant heads of the delegation;

* Medical doctors participating in the Healthy Athletes Program;

* Global Messengers (former athletes acting as spokespersons during the Games); and

* Police officers who will participate in the final leg of the Torch Run.

The Department has authorized U.S. consular posts worldwide to issue multiple-entry B-1/B-2 visas to qualifying applications. International media are not included in the fee waiver and will need to apply and qualify for I visas. "The same holds true for all petitionable classifications, such as temporary workers, entertainers, and cultural exchange groups," the Department cable states.

The related cable, which includes additional information about applicable dates and other facts, is available here.

OCAHO Reduces Employer’s Fines for I-9 Violations

The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) recently reduced fines imposed on New Outlook Homecare, LLC, for violations related to the Form I-9, Employment Authorization Verification. The complaint filed by U.S. Immigration and Customs Enforcement (ICE) alleged that New Outlook failed to ensure that employees properly completed section 1 of the I-9 and that the company failed to properly complete sections 2 or 3 of the form for 22 employees. One of the charges was subsequently dropped because it was for the owner of New Outlook, for which no I-9 was required.

The total penalty sought was $21,598.50, which OCAHO reduced to $9,450. New Outlook characterized the violations as minor clerical errors, but OCAHO said there were "serious substantive errors" in the completion of section 2 of the forms. Section 2 for all but three employees was blank. The forms contained no signatures attesting that New Outlook had examined documents to verify the employees’ identities and authorization to work in the United States. OCAHO noted that case law confirms that such failures constitute serious violations.

ICE had calculated a baseline penalty in accordance with internal agency guidance that sets a penalty of $935 for each violation when the employer’s error rate exceeds 50 percent. An ICE auditor stated that the government mitigated the penalty by 5 percent based on New Outlook’s status as a small business, but aggravated the penalty based on the seriousness of the violations. ICE initially aggravated the fine by 5 percent based on a lack of good faith, but later treated this factor as neutral, as it did the remaining statutory factors: the absence of any history of previous violations and the absence of unauthorized workers.

OCAHO found that although the violations were serious, penalties at or near the maximum permissible "should be reserved for more egregious violations than have been demonstrated here." Penalties should be sufficiently meaningful to deter future violations but should not be "unduly punitive" in light of the respondent’s resources, OCAHO said. Given the nature of the business and considering the record as a whole "in light of the general public policy of leniency toward small entities," OCAHO adjusted the penalties "closer to the midrange of permissible penalties," setting the fines at $450 per violation, for a total of $9,450.

The decision is available here.

DOL Releases 2014 Allowable Charges for Agricultural Workers

The Department of Labor’s Employment and Training Administration (ETA) issued a notice in the Federal Register on March 5, 2014, to announce (1) the allowable charges for 2014 that employers seeking H-2A temporary agricultural workers may charge their workers when the employer provides three meals a day, and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim in 2014. The notice includes a reminder regarding employers’ obligations with respect to overnight lodging costs as part of required subsistence.

Among the minimum benefits and working conditions that the Department requires employers to offer their U.S. and H-2A workers are three meals a day or free and convenient cooking and kitchen facilities. Where the employer provides the meals, the job offer must state the charge, if any, to the worker for such meals. The maximum allowable charge is $11.58 per day, unless the Office of Foreign Labor Certification (OFLC) Certifying Officer approves a higher charge. The OFLC Certifying Officer may permit an employer to charge workers a higher amount for providing them with three meals a day, if the higher amount is justified and sufficiently documented by the employer.

The Continental United States (CONUS) minimum meals component remains $46.00 per day for 2014. Workers who qualify for travel reimbursement are entitled to reimbursement for meals up to the CONUS meal rate when they provide receipts. In determining the appropriate amount of reimbursement for meals for less than a full day, the employer may provide for meal expense reimbursement, with receipts, to 75 percent of the maximum reimbursement for meals of $34.50, as provided for in the General Services Administration per diem schedule. If a worker has no receipts, the employer is not obligated to reimburse above the minimum.

ETA said it interprets the applicable regulation as requiring the employer to assume responsibility for the reasonable costs associated with the worker’s travel, including transportation, food, and, in those instances where it is necessary, lodging. If transportation and lodging are not provided by the employer, the amount an employer must pay for transportation and, where required, lodging, must be no less than (and is not required to be more than) the most economical and reasonable costs, ETA noted. The employer is responsible for those costs necessary for the worker to travel to the worksite if the worker completes 50 percent of the work contract period, but is not responsible for unauthorized detours, and if the worker completes the contract, return transportation and subsistence costs, including lodging costs where necessary. This policy applies equally to instances where the worker is traveling within the United States to the employer’s worksite.

The notice is available here.

USCIS Extends TPS for Haitians; ICE Extends Work Authorization for Certain Haitian F-1 Students

U.S. Citizenship and Immigration Services (USCIS) has extended temporary protected status (TPS) for eligible nationals of Haiti for an additional 18 months, effective July 23, 2014, through January 22, 2016. Also, U.S. Immigration and Customs Enforcement (ICE) has extended employment authorization for certain Haitian F-1 students due to ongoing hardship related to the 2010 earthquake in Haiti. Highlights of these two developments follow.

Haitian TPS. Current Haitian beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on March 3, 2014, and runs through May 2, 2014. USCIS encourages beneficiaries to re-register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Haitian TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of January 22, 2016. USCIS recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Haiti EADs bearing a July 22, 2014, expiration date for an additional 6 months. These existing EADs are now valid through January 22, 2015.

To re-register, current TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status. Re-registrants do not need to pay the I-821 application fee, but they must submit the biometric services fee, or a fee waiver request, if they are 14 or older. All TPS re-registrants must also submit Form I-765, Application for Employment Authorization. TPS re-registrants requesting an EAD must submit the I-765 application fee, or a fee waiver request. If the re-registrant does not want an EAD, no application fee is required.

Applicants may ask that USCIS waive the I-765 application fee or biometrics fee based on an inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee waiver requests must be accompanied by supporting documentation. Failure to submit the required filing fees or a properly documented fee waiver request will result in rejection of the TPS application, USCIS said.

Extension of work authorization for Haitian F-1 students. ICE announced on March 3, 2014, that it would extend the suspension of certain requirements for F-1 nonimmigrant Haitian students who are experiencing severe economic hardship as a direct result of the January 12, 2010, earthquake in Haiti. This relief applies only to students whose country of citizenship is Haiti and who were lawfully present in the United States in F-1 status on January 12, 2010, and enrolled in an institution certified by ICE’s Student and Exchange Visitor Program (SEVP).

The current extension will enable eligible F-1 students to continue to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status. The suspension of the regulatory requirements will remain in effect through January 22, 2016.

ICE noted that the ongoing devastation and unstable conditions caused by the earthquake in Haiti increased the financial burden on many of these students, who previously relied on assistance from the Haitian government or family members in Haiti to meet basic living expenses. "While the government of Haiti has made progress in improving security and quality of life of its citizens following the January 2010 earthquake, Haiti continues to lack the adequate infrastructure, employment and educational opportunities, and basic services," ICE said. As of February 3, there were 820 active F-1 Haitian students enrolled in SEVP-certified schools in the United States.

Additional information on TPS for Haiti, including guidance on eligibility, the application process, and where to file, is available here. Further details on this extension of Haiti for TPS, including application requirements and procedures, are available in the Federal Register notice published here. USCIS’s announcement is available here.

Supreme Court Denies Certiorari in Local Ordinance Cases

The U.S. Supreme Court denied certiorari on March 3, 2014, in several recent cases relating to local ordinances aimed at undocumented persons.

In City of Hazleton v. Lozano, the U.S. Court of Appeals for the Third Circuit had held that local ordinances in the city of Hazleton, Pennsylvania, prohibiting the knowing harboring of undocumented persons in rental housing or hiring them, was unconstitutional.

In City of Farmers Branch v. Villas at Parkside Partners, the U.S. Court of Appeals for the Fifth Circuit had held that local ordinances in the city of Farmers Branch, Texas, prohibiting the knowing harboring of undocumented persons in renting housing in the city, was unconstitutional.

Information about Hazleton is available here. Information about Farmers Branch is available here.

Immigration Law Update March 2014

Garfinkel Immigration Law Firm Partner Recognized by Super Lawyers

State Dept. Announces J-1 On-Site Inspections

State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved

DOL Adds Q&A to FAQ Re: Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications

USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations

Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid

DOL Administrative Review Board Partly Affirms ALJ’s Decision in H-1B Wage Complaint

ICE Releases SEVP Guidance on Errors in Denials of STEM OPT Extensions

Grand Jury Indicts North Carolina Company for Visa Fraud Scheme

USCIS Revises Naturalization Application

Garfinkel Immigration Law Firm Partner Recognized by Super Lawyers

Hannah F. Little Selected as 2014 North Carolina Rising Star

Garfinkel Immigration Law Firm, the largest immigration law firm in the Carolinas, is proud to announce that attorney Hannah F. Little has been recognized as a Super Lawyers 2014 North Carolina Rising Star.

Hannah was recently added to Super Lawyer’s 2014 North Carolina Rising Stars List, which is a top honor for attorneys who exhibit excellence in their practice, and are either 40 years old or younger, or have been practicing for 10 years or less. Ms. Little was nominated by her peers and then put through a rigorous evaluation and selection process before being awarded this prestigious title for which fewer than 2.5 percent of attorneys in the state of North Carolina are nominated.

State Dept. Announces J-1 On-Site Inspections

The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.

Please contact Garfinkel Immigration Law Firm for advice concerning specific situations.

State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved

Visa availability. In the Visa Bulletin for March 2014, the Department of State’s Visa Office makes the following estimates of visa availability in the coming months:

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second:

Worldwide: Current

China: Three to five weeks

India: No forward movement

Employment Third:
Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little if any forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

Employment Fourth: Current

Employment Fifth: Current

The above projections for the…employment categories are for what is likely to happen during each of the next several months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a "Current" projection will remain so for the foreseeable future.

The Visa Bulletin for March 2014 is available here.

Visa Bulletin moved. The Department of State has redesigned and reorganized its website at The Visa Bulletin is now found under "Law and Policy" in the Visas section of the website. Visitors to the website have several ways to access the Visa Bulletin.

From the homepage:

* Click on the link for, located on the upper right side of the main graphic, or the link "U.S. Visas" located at the bottom of the page. These links will take you to the Visas section of the website.

* Once in the Visas section, scroll down the page to the "We Want You to Know" section.

* Click on the icon, "Check the Visa Bulletin," or click on the link for the Visa Bulletin in the Law and Policy box.

* Alternately, once in the Visas section of the website, hover over the "Immigrate" icon along the top of the page. A drop-down menu will appear with a link to the Visa Bulletin.

DOL Adds Q&A to FAQ Re: Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications

The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and Dept. of Labor consideration of laid-off U.S. workers for PERM labor certification applications.

The new Q&A asks, "How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?" The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than actively notifying and considering the laid-off workers. In fact, the Q&A notes misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. "Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity," the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

The new Q&A is available here.

USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations

U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet on how to correct immigration records after resolving a Tentative Nonconfirmation (TNC) in E-Verify. USCIS noted that an employer may receive a TNC because immigration records are inaccurate. Correcting them can prevent future TNCs.

The fact sheet, which includes several ways immigration records can be corrected, is available here.

Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid

The U.S. Court of Appeals for the Third Circuit ruled February 5, 2014, that a Department of Labor (DOL) regulation on the minimum wage required under the H-2B temporary worker visa program was validly promulgated.

The appellants were a group of associations representing employers in nonagricultural industries. Joining them was another group of individuals and organizations representing foreign and U.S. workers affected by the H-2B program who had successfully challenged a predecessor to the current regulation. The appellants argued that the DOL exceeded its authority by enacting the regulation, which governs the calculation of the minimum wage a U.S. employer must offer to recruit foreign workers under the H-2B program. The employers stood to face higher labor costs as a result of the regulation. The District Court granted summary judgment for the DOL and its codefendants (the Secretary of Labor, the Department of Homeland Security (DHS), and the Secretary of Homeland Security).

Among other things, the court noted that the DOL is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers. The court also disagreed with appellants’ contention that the DOL must use a four-tier wage methodology from the H-1B program as the prevailing wage calculation mechanism in the H-2B program. The court found the actions of the DOL and DHS reasonable with respect to application of their respective authorities regarding the H-2B program and what constitutes permissible consultation between agencies. The court also noted that the DOL promulgated the wage rule after "reasoned analysis," which is required. The court noted that the DOL had discussed the 300 comments submitted in an entire section of the final rule.

The related regulations and litigation have a complicated history that is summarized in the Third Circuit’s decision. Among other things, the effective date of the 2011 regulation was moved forward and backward, and its implementation was defunded by Congress. As a result, the DOL fell back on an earlier 2008 rule that a district court had found procedurally invalid. That court had ordered the DOL to vacate the earlier rule and come into compliance. The DOL issued a final interim rule in April 2013, effective immediately, which made some changes to the 2011 rule. Congress later lifted the appropriations ban on the 2011 rule as of January 17, 2014.

The regulation recently declared valid by the Third Circuit was published at 76 Fed. Reg. 3452 (Jan. 19, 2011) (20 C.F.R. § 655.10), available here. The decision, Louisiana Forestry Association v. Secretary of Labor, is available here. Additional litigation continues regarding whether the DOL has the authority to issue supplemental prevailing wage determinations under the 2013 interim final rule.

DOL Administrative Review Board Partly Affirms ALJ’s Decision in H-1B Wage Complaint

In a recent case decided by the Department of Labor’s Administrative Review Board (ARB) on January 29, 2014, the ARB affirmed an administrative law judge’s (ALJ) finding that the scope of a Wage and Hour Division investigation initiated in response to a complaint is not limited to the allegations in that complaint. The ARB also affirmed the ALJ’s evidentiary ruling on the availability of pre- and post-judgment interest on awards in H-1B cases. The ARB reversed the ALJ’s finding that discrete violations occurring outside a 12-month period before the filing of a complaint are actionable. The deputy chief administrative appeals judge concurred in part and dissented in part, agreeing with the majority’s ruling in the case of the initial complainant but dissenting from the majority’s ruling in all other respects.

The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands of dollars in back wages for various violations to 29 H-1B workers. The case started when an H-1B nonimmigrant employee filed a complaint in 2006 alleging that Greater Missouri failed to pay her the required wages under its labor condition application for time off due to a decision by the employer, had illegally made deductions from her wages, and had required her to pay an illegal penalty for stopping work before an agreed-upon date.

The decision is available here.

ICE Releases SEVP Guidelines on Errors in Denials of STEM OPT Extensions

U.S. Citizenship and Immigration Services (USCIS) announced on February 6, 2014, that some optional practical training (OPT) science, technology, engineering and math (STEM) extension applications were denied in error. USCIS said they were not adjudicated in accordance with applicable Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) OPT policy guidance. USCIS sent the alert to notify affected designated school officials and to provide instructions.

USCIS said that some OPT STEM extension applications were denied in error because the student applicants intended to work as volunteers or unpaid interns during their extension periods. To prevent this problem from happening again, USCIS’s Service Center Operations (SCOPS) instructed all USCIS Service Centers to follow ICE SEVP’s policy guidance regarding work as a volunteer or unpaid intern.

The alert notes that SEVP’s OPT 2010 policy guidance states that a student may work as a volunteer or unpaid intern for at least 20 hours per week. The alert says that if a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by emailing the applicable dedicated student emailbox. The student should provide his or her full name and the USCIS receipt number relating to the denied application. The email addresses are:

California Service Center: [email protected]

Vermont Service Center: [email protected]

Texas Service Center: [email protected]

Nebraska Service Center: [email protected]

The alert is available here.

Grand Jury Indicts North Carolina Company for Visa Fraud Scheme

A grand jury recently indicted International Labor Management Corporation (ILMC) of North Carolina on 41 counts relating to visa fraud. ILMC was in the business of preparing and submitting petitions on behalf of client companies to the U.S. government for temporary workers under the H-2B visa program and the H-2A agricultural visa program.

Among other things, the indictment alleges that the ILMC owners falsely petitioned for and obtained extra H-2B visas beyond the actual needs of their client employers to create pools of extra visas. This pool allowed employers who could not otherwise obtain H-2B visas due to the cap to use them to bring workers into the United States under the pretense that they were going to work for the employer for whom the H-2B visas had been approved, and by allowing ILMC to obtain H-2B visas before the cap was reached using inaccurate start dates, thereby denying such H-2B visas to other employers or competing agents. The ILMC owners then used those workers who entered the United States under false pretenses for other employers or otherwise to benefit themselves. In some cases, they agreed with a client to create fictitious companies for this purpose. An ILMC owner also instructed at least one client employer to obtain temporary workers by falsely claiming that such workers were needed for H-2A agricultural work, to avoid the H-2B cap.

The indictment is available here.

USCIS Revises Naturalization Application

As part of its forms improvement initiative, U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-400, Application for Naturalization, on February 4, 2014. The eligibility requirements for naturalization have not changed.

The revised N-400 includes additional questions relating to good moral character and to security, to conform with the Intelligence Reform and Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of 2008; "clearer and more comprehensive" instructions that highlight general eligibility requirements and provide specifics on how to complete each part of the application; and 2D barcode technology at the bottom of each page to enable USCIS to scan data for direct input into USCIS systems.

Applicants may use previous versions of the form until May 5, 2014, at which time USCIS will begin rejecting and returning previous versions of the N-400.

USCIS will hold a stakeholder engagement on February 20, 2014, about the revised form. For more information on the teleconference, click here. The announcement, which includes a link to a related video, is available here. The revised form is here. Information on USCIS’ forms improvement initiative is available here.

Immigration Law Update February 2014

Check Out Garfinkel Immigration Law Firm Managing Partner on Cover of Super Lawyers

USCIS Expands Site Visits to Review of L-1 Petitions

H-1B Alert: Filing Starts April 1 for Next Fiscal Year

Half a Million Companies Now Participate in E-Verify, USCIS Announces

USCIS Adds Countries to Participate in H-2B and H-2B Programs

Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List

Is Immigration Reform Possible in 2014?

Visa Bulletin Shows Advancement in Several Categories

DOL Releases 2014 Adverse Effect Wage Rates

Indian Diplomat Indicted for Visa Fraud, False Statements

California Supreme Court Rules Undocumented Immigrant Can Receive Law License

ABIL Global: Australia

Check Out Garfinkel Immigration Law Firm Managing Partner on Cover of Super Lawyers

Garfinkel Immigration Law Firm, the largest immigration law firm in the Carolinas, is pleased to announce that Managing Partner and Board Certified Immigration Law Specialist Steven H. Garfinkel is featured in this month’s issue of North Carolina Super Lawyers Magazine.

View the cover of Super Lawyers by clicking here, and read the feature article on Mr. Garfinkel, titled ‘Garfinkel Will Get You In’ by clicking here.

USCIS Expands Site Visits to Review of L-1 Petitions

USCIS’s Fraud Detection and National Security (FDNS) Directorate has expanded its employer site visits to include review of L-1 post-adjudication petitions. Recent reports indicate that the agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1′s classification as an executive or manager (L-1A) or specialized knowledge worker (L-1B).

USCIS may conduct announced or unannounced site visits as part of the visa petition process. Employers have been reporting that the FDNS inspectors’ queries are similar to those made in H-1B site visits, particularly about whether wages are appropriate for the visa application, visa category, work location, hours, job duties, title, and experience of the employee. The employee may be questioned directly about his or her job duties.

FDNS’s site visits are funded by the $500 anti-fraud fee paid with H-1B and L-1 petitions. Until recently, such compliance audits have primarily involved H-1B employers. More than 17,000 such visits occurred in FY 2011, which was an increase over 2010.

USCIS’s Office of Inspector General in August recommended, among other things, that USCIS make a site visit a requirement before extending a one-year new office L-1 petition. USCIS concurred and said it expected to begin conducting post-adjudication domestic L-1 compliance site visits in FY 2014.

H-1B Alert: Filing Starts April 1 for Next Fiscal Year

Congress sets a limit on the number of H-1B visas available each year. This past fiscal year, H-1B numbers were exhausted within the first five days of filing. We anticipate that the numbers will run out quickly again this year.

If U.S. Citizenship and Immigration Services (USCIS) receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. USCIS did this last year. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

Every time an employer hires an individual for a specialty occupation, an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a nonprofit government research organization.) When numbers run out, the employer must wait until the next fiscal year to file for an H-1B. In some cases, there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.

While the H-1B numbers for the next fiscal year do not become available again until October 1, 2014, employers may file petitions to request numbers as early as six months in advance, beginning on April 1, 2014. That date signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.

As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.

We encourage employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now.

You should consider filing an H-1B petition this April if:

* You want to hire an individual who is not in H-1B status already.

* You are hiring an individual who is already in H-1B status but is currently employed with a college/university (this situation requires a new H-1B number).

* You are hiring an individual who is already in H-1B status but is with a nonprofit government research organization (this situation requires a new H-1B number).

* Your employee is in F-1 student status.

* Your employee is in L-1B status and is considering seeking legal permanent residence in the United States.

* Your employee is in another nonimmigrant status and may want to seek legal permanent residence in the United States.

We recommend that clients keep us apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014. Contact us now if you have any questions or would like to file an H-1B petition.

Half a Million Companies Now Participate in E-Verify, USCIS Announces

U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2014, that more than E-Verify Logo500,000 companies now use E-Verify. Employers use the online E-Verify system to check an employee’s work authorization status. USCIS said that 98.8 percent of work-authorized employees are confirmed "instantly or within 24 hours, requiring no further employee or employer action."

USCIS noted that its efforts to enhance the system’s security include agreements with select states’ departments of motor vehicles to ensure the authenticity of driver’s licenses that employees use as identity documents; Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment; and a program that locks Social Security numbers suspected of being misused for employment eligibility verification.

E-Verify has experienced significant growth since its establishment in 1996. Annual enrollments increased tenfold during the program’s first 16 years, from 11,474 in fiscal year (FY) 1996 to 111,671 in FY 2012. During FY 2013, employers used E-Verify more than 25 million times.

To commemorate the half-million-participant milestone, USCIS released "E-Verify for Business Leaders," a video that introduces the program to prospective users. USCIS also updated its E-Verify website with "plain-language" content and easy-to-follow graphics.

The announcement is available here. The video is available here. The website is available here.

USCIS Adds Countries to Participate in H-2A and H-2B Programs

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security, in consultation with the Department of State, has added Austria, Italy, Panama, and Thailand to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.

The notice listing the 63 eligible countries was published January 17, 2014, in the Federal Register, here.

Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List

U.S. District Judge William Alsup of San Francisco, California, recently ruled that a Malaysian Stanford student’s legal rights were violated because she was wrongly put on the "no-fly" list nine years ago. The judge noted that the "government concedes that the plaintiff is not a threat to national security." He said she is "entitled by due process to a … remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information."

Rahinah Ibrahim attempted to board a flight in 2005 to Hawaii from San Francisco International Airport, but was told she was on the no-fly list. After a two-hour ordeal at the airport, during which she was questioned and denied any connection to terrorism, an agent of the Department of Homeland Security told her that her name had been removed from the no-fly list and she was free to fly to Hawaii. She then flew from Hawaii for a visit home to Malaysia. But when she tried to return via Kuala Lumpur International Airport two months later, she was stopped and the U.S. Embassy said her U.S. student visa was cancelled due to a suspected connection to terrorism. An eight-year legal battle followed, during which she was unable to return to the United States. She finished her Stanford education remotely.

Her attorneys filed suit seven years ago against several agencies, including the Federal Bureau of Investigation and the Department of Homeland Security. Government attorneys have been secretive, citing national security issues, Judge Alsup noted, and it was difficult to gain access to information. "It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow," Judge Alsup noted.

The American Civil Liberties Union has filed suit in a similar case, representing 13 U.S. citizens who were blocked from air travel after a failed bombing attempt on Christmas Day 2009. The 13 citizens were not told why they were blocked or how to remove their names from the list. ACLU attorney Nusrat Choudhury said, "The Constitution prohibits the government from smearing people as suspected terrorists due to an entirely secret process, then not giving them a fair chance to defend themselves."

For background on the Ibrahim case and similar cases, click here.

Is Immigration Reform Possible in 2014?

U.S. House of Representatives Speaker John Boehner reportedly hopes to push immigration reform legislation forward in 2014, a year in which midterm elections will take place in November. He faces American Flagcompeting pressures: on one side are those advising that immigration reform efforts could help Republicans win the Hispanic vote; on the other side are anti-immigration conservatives and Tea Party members who would prefer no action other than enforcement.

Observers expect that Mr. Boehner will act piece-by-piece rather than trying to advance one comprehensive immigration reform bill. He may wait until after Republican primaries occur this spring. "There are a lot of private conversations underway to try to figure out how do we best move on a common-sense, step-by-step basis to address this," he said. At a recent news conference, he noted, "The only way to make sure immigration reform works this time is to address these complicated issues one step at a time."

Meanwhile, Thomas Donohue, the president and CEO of the U.S. Chamber of Commerce, said in his "State of American Business 2014″ remarks on January 8, 2014, that "the pundits will tell you it’s going to be hard to accomplish much of anything in an election year. We hope to turn that assumption on its ear by turning the upcoming elections into a motivator for change. It’s based on a simple theory-if you can’t make them see the light, then at least make them feel some heat." Speaking generally on immigration issues, he added, "we’re determined to make 2014 the year that immigration reform is finally enacted. The Chamber will pull out all the stops-through grassroots lobbying, communications, politics, and partnerships with unions, faith organizations, law enforcement and others-to get it done."

The big question is whether immigration reform legislation can move forward in a midterm election year in which all 435 House seats are up for grabs, along with 33 of the 100 Senate seats, 38 state and territorial governorships, and numerous state and local elections. Given recent hyper-partisan experience in Congress, some say continued gridlock is likely. "I can’t imagine Congress doing much more than nominations and appropriations bills," said Jim Manley, a former aide to Senate Majority Leader Harry Reid (D-Nev.). However, major legislation has passed in election years, often after primary season. "For many members [of the House], they’d be more comfortable when their primaries are over," said California Rep. Darrell Issa.

Mr. Donohue’s remarks are available.

Visa Bulletin Shows Advancement in Several Categories

The Department of State’s Visa Bulletin for February 2014 shows advancement in priority dates for several employment-based categories.

The employment-based third preference "Worldwide" and "Other Workers" categories both advanced two months, from April 1, 2012, to June 1, 2012. The China-mainland born employment-based second preference category moved ahead one month, from December 8, 2008, to January 8, 2009. The India second preference stayed put at November 15, 2004, as did Mexico and the Philippines, which both remained Current for the second preference. The employment-based third preference "Other Workers" category moved ahead by two months for every category except India, which remained at September 1, 2003. Other categories remained Current.

The Visa Bulletin for February 2014 is available here.

DOL Releases 2014 Adverse Effect Wage Rates

The Department of Labor has published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) in calendar year 2014 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 Department has determined must be offered and paid by employers to H-2A temporary agricultural workers so that the wages of similarly employed U.S. workers will not be adversely affected.

The Federal Register notice is available here.

Indian Diplomat Indicted for Visa Fraud, False Statements

In a case that has sparked diplomatic tensions between the United States and India, a grand jury for the U.S. Attorney for the Southern District of New York has indicted Devyani Khobragade, an Indian diplomat with an A-1 nonimmigrant visa, on charges of visa fraud and making false statements to U.S. authorities to obtain an A-3 visa for her domestic worker, whom she brought with her to the United States when she was posted to the consulate of India in New York in 2012.

The indictment notes that Ms. Khobragade did not pay the domestic worker the required wages under U.S. law or provide her with other protections mandated by U.S. law and publicized to foreign diplomats, despite representing that she would do so. Among other things, the indictment alleges that Ms. Khobragade submitted a fraudulent employment agreement that made it appear that she and the worker had entered into an agreement that complied with U.S. labor laws and the prevailing wage. The true wage was approximately $573 per month, or $6,876 per year regardless of overtime. Once in the United States, the worker often worked up to 100 hours per week with no full day off, which resulted in an actual hourly wage of approximately $1.42 or less. Ms. Khobragade took the worker’s passport and never returned it. The worker fled after about seven months and sought aid from a nonprofit anti-human trafficking organization. Ms. Khobragade had various people attempt to persuade the worker to return to India and not report her experience. She also started legal proceedings in India against the worker and her husband.

Following her indictment, Ms. Khobragade received diplomatic immunity and returned to India. Her husband and two daughters remain in New York. The case provoked outrage among protesters who allege that she was strip-searched and put in a jail cell with criminal defendants before her release on $250,000 bail. Subsequently, India expelled U.S. diplomat Wayne May, reportedly in retaliation for Ms. Khobragade’s treatment in the United States.

An A-3 visa allows the personal attendants, employees, or servants of a principal A-1 or A-2 visa holder to enter the United States. The exhibits attached to the indictment note the requirements for an A-3 domestic worker visa, including that the applicant will receive a fair wage comparable to that being offered in the area of employment, and that the applicant must submit an employment contract with provisions stating the working hours (normally 35-40 hours per week with a minimum of one full day off each week), and other requirements.

The indictment and attachments are available here.

California Supreme Court Rules Undocumented Immigrant Can Receive Law License

California’s Supreme Court ruled on January 2, 2014, that Sergio Garcia, an undocumented immigrant who received a law degree and passed the state bar exam in 2009, must be given his license to practice law in California. Mr. Garcia came to the United States from Mexico when he was 17 months old.

Mr. Garcia lived in California until 1986 (when he was 9 years old) and then he and his parents moved back to Mexico. In 1994, when Garcia was 17 years old, he and his parents returned to California; again he entered the country without documentation. His father obtained U.S. citizenship in 1999. His father has filed a green card petition for Mr. Garcia, but it remains stuck in a long backlog.

The court noted that in response to questions on the California state bar’s application for determination of moral character, Mr. Garcia stated that he is not a United States citizen and that his immigration status was "pending." A bar committee conducted an extensive investigation of Garcia’s background, employment history, and past activities; received numerous reference letters supporting Garcia’s application and attesting to his outstanding moral character and significant contributions to the community; and determined that Mr. Garcia possessed the requisite good moral character to qualify for admission to the state bar. The committee told the California Supreme Court that, to its knowledge, "this is a case of first impression, as we are not aware of any other jurisdiction that has ever knowingly admitted an undocumented alien to the practice of law."

"I never in my life imagined it would take me longer to win my right to practice than it took to actually get my degree. I’m glad California is moving forward and I think we’re setting a good example for the rest of the country," Mr. Garcia said after the decision.

California’s legislature passed a law in 2013 stating that undocumented immigrants could obtain legal licenses, and Governor Jerry Brown signed it. Similar cases are pending in New York and Florida.

The California Supreme Court’s decision is available here.

ABIL Global: Australia

In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers to work in Australia temporarily. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

* World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments

* Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

A fact sheet on the 457 visa is available here.

Immigration Law Update January 2014

Garfinkel Immigration Law Firm Adds Specialist To Roster

Garfinkel Immigration Law Firm to Host "Through the Web Portal- Another Dimension in Case Management" Webinar.

DHS OIG Report on EB-5 Regional Center Program Stirs Controversy

OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

OCS Clarifies I-9 Verification for Refugees, Asylees

DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations

Philippines Requests TPS Designation

SSA Updates Operations Manual Re: Same-Sex Marriages in Foreign Jurisdictions

DHS, USCIS Personnel Changes Announced

Supreme Court Hears Oral Arguments in CSPA Case; USCIS Issues Policy Guidance

Court Approves Final Settlement on Employment Authorization for Asylum Seekers

USCIS Releases New E-Verify MOUs Tied to Access Method

U.S. Embassy London Hosts Visa Webchat

Garfinkel Immigration Law Firm Adds Specialist To Roster

Partner Jennifer L. Cory Becomes NC State Bar Board Certified Immigration Law Specialist

Garfinkel Immigration Law Firm, the largest immigration law firm in the Carolinas is proud to announce that it has another Certified Immigration Law Specialist as a part of its team.

Partner Jennifer L. Cory recently took the examination administered by the North Carolina State Bar this Fall and has been named a Certified Immigration Law Specialist. In order to be considered for the certification, Ms. Cory had to demonstrate extensive knowledge of immigration law through peer reviews and written examination. She is one of a very limited number of specialists in North Carolina.

"We congratulate Jennifer on the successful passing of the Board Certification examination. We are proud that our firm now has more Board Certified Immigration Attorneys than any other NC firm," said Managing Partner, Steve Garfinkel.

The North Carolina State Bar certifies lawyers as specialists in designated practice areas as a service to the public. The program assists those in need of selecting legal counsel, with a tool to best identify lawyers who have demonstrated exceptional skill, special knowledge and education in specific areas of law. The certification program gives lawyers a credible way of making their expertise known to the public and other lawyers.

Garfinkel Immigration Law Firm to Host "Through the Web Portal- Another Dimension in Case Management" Webinar.

Partner and Board Certified Immigration Law Specialist, Jennifer L. Cory, will begin our 2014 series of webinars with "Through the Web Portal- Another Dimension in Case Management."

Ms. Cory’s webinar will be held Thursday, January 16, 2014 at 3:30pm EST. Jennifer will provide an introduction and overview of Immigration Tracker, our case management software system. This presentation is reserved for HR professionals and Corporate Counsel who are interested in learning how to check employees’ current status and expiration dates, monitor progress on active immigration cases, submit new or updated information to us or initiate a new matter, make notes, run reports and perform other case management functions.

To register for this free webinar please click here.

DHS OIG Report on EB-5 Regional Center Program Stirs Controversy

The Department of Homeland Security’s Office of Inspector General (OIG) has released a controversial new report on the EB-5 regional center program that includes four recommendations. EB5 Orange

OIG report highlights. As background, Congress enacted the employment-based fifth preference (EB-5) green card category in 1990 to stimulate the U.S. economy through direct job creation and capital investment by foreign investors. Congress added a regional center pilot program to the EB-5 category in 1992 to pool investor money in a defined industry and geographic area to create both direct and indirect jobs.

An EB-5 investor must invest $500,000 if his or her investment is in a high unemployment area or a rural area. Otherwise the investor must invest $1 million. Each foreign investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within 2 years.

The OIG report notes several conditions that prevent U.S. Citizenship and Immigration Services (USCIS) from administering and managing the EB-5 regional center program effectively. First, the laws and regulations governing the program do not give USCIS authority to deny or terminate a regional center’s participation based on fraud or national security concerns; the program extends beyond the current USCIS mission. Second, USCIS is unable to demonstrate the benefits of foreign investment in the U.S. economy.

Additionally, the report notes, USCIS has difficulty ensuring the integrity of the regional center program. USCIS does not always ensure that regional centers meet all program eligibility requirements, and USCIS officials differently interpret and apply regulations and policies. Also, USCIS did not always document its decisions and responses to inquiries, making the program vulnerable to perceptions about internal and external influences.

As a result, the report states, USCIS is limited in its ability to prevent fraud and national security threats and cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress.

OIG recommends that USCIS: (1) update and clarify its regulations; (2) develop memoranda of understanding with the Departments of Commerce and Labor and the Securities and Exchange Commission to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program; (3) conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program; and (4) establish quality assurance steps to promote program integrity and ensure that regional centers comply with regulatory requirements.

Reaction. IIUSA, the industry trade association that represents over 130 EB-5 regional centers that serve over 40 states and territories and account for over 95% of the capital flowing through the EB-5 regional center program, said it was "puzzled" by the OIG’s findings and conclusions. IIUSA said that many of the reforms the OIG identified as necessary were already underway, and that USCIS had refuted other criticisms in its response to the report.

For example, IIUSA noted that USCIS has created a new Immigrant Investor Program Office staffed by trained economists, experts in business and immigration law, and fraud and national security specialists, now led by a former director of the Treasury Department’s Financial Crimes Enforcement Network. USCIS plans for all EB-5 related adjudications to be relocated to this office over the next six months. IIUSA also noted that USCIS has clarified its guidance for adjudicators in a comprehensive EB-5 policy memorandum and has strengthened interagency relationships.

IIUSA said these and other rebuttals in the USCIS response "should raise significant questions about the credibility of the report," which was "further undermined by the recent resignation of [Charles Edwards, DHS's Acting Inspector General], who himself was under investigation."

The OIG report notes that USCIS agreed with three of the four OIG recommendations. Details of the OIG’s analysis and USCIS’s response are included in the report, "United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program," OIG-14-19, available here. IIUSA’s statement in response to the report is available here.

OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

In response to a query, Alberto Ruisanchez, Acting Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reiterated that employers may not institute a hiring preference for U.S. citizens unless required to do so to comply with a law, regulation, executive order, or government contract. Individuals protected from citizenship status discrimination include U.S. citizens, lawful permanent residents, refugees, and asylees.

Mr. Ruisanchez said the OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

Mr. Ruisanchez noted that the OSC cannot give an advisory opinion based on any particular set of facts. The query was from Gretta Rowold, Executive Director of Secure Research Operations for the University of Oklahoma’s Office of Legal Counsel. She told the OSC that the university negotiates sponsored research agreements with non-university parties and periodically is asked to restrict participants to U.S. citizens only, and that the organizations sponsoring the research in some cases are unwilling or unable to provide justification for the requirement other than stating that the organization does sensitive work, or has a U.S. government customer who wouldn’t like it if non-U.S. citizens were involved in their projects. She asked the OSC what exposure the university might have under the law, and what type of justification or documentation is appropriate to protect the university against liability.

The OSC’s response letter, sent on November 20, 2013, is available here.

OCS Clarifies I-9 Verification for Refugees, Asylees

In response to a query, Seema Nanda, Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), clarified the application of documentation requirements related to Form I-9 work authorization verification for refugees and asylees. Eileen Scofield of Alston & Byrd asked what steps employers should take when an asylee or refugee worker presents for initial I-9 verification purposes a Form I-766, employment authorization document (EAD), that subsequently expires, considering the fact that asylees and refugees have unrestricted work authorization.

Ms. Nanda noted that when completing the I-9, a worker must select a box in Section 1 indicating his or her status. The selection applicable to "refugees and asylees-alien authorized to work" has a field that requests "expiration date, if applicable." The I-9 instructions provide that refugees or asylees may write "N/A" in the space provided for the expiration date in Section 1. After employees complete Section 1, they must present documents evidencing identity and employment eligibility for the employer to complete Section 2. USCIS guidance provides that refugee and asylee workers are not required to present an EAD for Section 2 to complete the I-9. They may choose to present other documents, such as a driver’s license (List B) and unrestricted Social Security card (List C), to satisfy the I-9 requirements. The I-9 instructions further provide that reverification of a worker’s employment authorization does not apply to refugees and asylees "unless they chose to present evidence of employment authorization in Section 2 that contains an expiration date and requires reverification, such as Form 1-766, Employment Authorization Document." Thus, Ms. Nanda said, an employer that reverifies the employment authorization of an asylee or refugee who originally presented an EAD upon the EAD’s expiration is following USCIS guidance. OSC therefore would be "unlikely to find a violation of the anti-discrimination provision unless the employer somehow acted in a discriminatory manner based on national origin or citizenship status," Ms. Nanda said.

Ms. Scofield also asked about refugee and asylee workers who are unable to present a new unexpired EAD by the date of expiration of their originally presented EAD. Ms. Nanda responded that for reverification, an employee may present unexpired documentation from either List A or List C showing he or she is still authorized to work. Employers cannot require the employee to present a List A document. Thus, she noted that a refugee or asylee who originally presented an EAD could, for example, present an unrestricted Social Security card at reverification. Furthermore, the receipt rule would allow a worker to present a receipt for a lost, stolen, or misplaced document for reverification purposes. To the extent an employer requires an employee to present a specific document, such as an unexpired EAD, for reverification purposes, it may violate the anti-discrimination provision’s prohibition against document abuse, Ms. Nanda warned.

The OSC’s response letter, which was sent on September 25, 2013, is available here.

DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations

The Department of Labor (DOL) announced on December 20, 2013, that it is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

On December 3, 2013, the Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision in Matter of Island Holdings LLC (2013-PWD-00002). That decision vacated the supplemental prevailing wage determinations issued in light of the DOL’s interim final H-2B wage rule (78 Fed. Reg. 24047, Apr. 24, 2013). A class action complaint has been filed in the district court in the Eastern District of Pennsylvania, challenging the Island Holdings decision, CATA v. Perez, 13-CV-07213.

The DOL’s Office of Foreign Labor Certifications (OFLC) said that after a full review of the Island Holdings decision and the district court complaint, the DOL has decided to postpone action on the Island Holdings decision pending judicial review. "This action is in the interest of justice, given the confusion and substantial disruption that would be created if the Department implemented the decision and it was subsequently overturned by the district court," the OFLC noted. Accordingly, all OFLC actions related to the resolution of appeals in the supplemental prevailing wage decisions will be stayed pending the resolution of the district court action.

The announcement is available here.

Philippines Requests TPS Designation

The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status (TPS) in the wake of Typhoon Yolanda/Haiyan, which killed more than 6,000 people and displaced millions. The request was relayed to the Department of Homeland Security (DHS). Not only would this give an estimated 1 million Filipinos in the United States the opportunity to stay and work, but it would also allow them to send remittances back home. As of the date of publication of this newsletter, the DHS has not acted on the request.

SSA Updates Operations Manual Re: Same-Sex Marriages in Foreign Jurisdictions

The Social Security Administration (SSA) has added a new section to its Program Operations Manual System (POMS) providing instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court’s decision in United States v. Windsor. The new POMS instructions include policy, process, and procedures for processing same-sex marriage cases.

The SSA noted that under Windsor, the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. Consequently, all claims filed on or after June 26, 2013, or that were pending final determination at the time of that decision are subject to Windsor instructions. The SSA said it is working with the Department of Justice to interpret the decision.

The decision in United States v. Windsor is available here.

DHS, USCIS Personnel Changes Announced

The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security on December 20, 2013, by a vote of 54-41. Mr. Mayorkas has been head of U.S. Citizenship and Immigration Services (USCIS) since 2009.

Meanwhile, the Obama administration nominated Leon Rodriguez to lead USCIS. Since 2011, Mr. Rodriguez has served as the Director of the Office for Civil Rights at the Department of Health and Human Services. From 2010 to 2011, he served as Chief of Staff and Deputy Assistant Attorney General for Civil Rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was County Attorney for Montgomery County, Maryland, from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, DC, from 2001 to 2007. He served in the U.S. Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as Chief of the White Collar Crimes Section from 1998 to 1999 and then as First Assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the DOJ’s Civil Rights Division from 1994 to 1997 and a Senior Assistant District Attorney at the Kings County District Attorney’s Office in New York from 1988 to 1994. He received a B.A. from Brown University and a J.D. from Boston College Law School.

The White House announcement for Mr. Rodriguez is available here. For more on Mr. Mayorkas, please click here.

Supreme Court Hears Oral Arguments in CSPA Case; USCIS Issues Policy Guidance

The Supreme Court heard oral argument in Mayorkas v. Cuellar de Osorio on December 10, 2013. The case challenges a Board of Immigration Appeals (BIA) interpretation of the Child Status Protection Act (CSPA) with respect to children aging out before a visa becomes available. The CSPA provides continuing eligibility for immigration benefits to the beneficiaries of certain petitions when the beneficiary has "aged out" by turning 21. U.S. Citizenship and Immigration Services (USCIS) issued related policy guidance just before the Supreme Court argument.

Highlights of the argument and the guidance follow.

Supreme Court case. Mayorkas v. de Osorio questions whether all children of immigrant visa applicants, or only some, who turn 21 while awaiting a visa may retain their original priority date or must wait at the back of a new visa line. The case arose in the context of a family-based green card petition, but the Court’s decision will also affect beneficiaries of employment-based green card petitions.

In Matter of Wang, the relevant BIA case, the Board held that the automatic conversion and priority date retention provisions of the CSPA did not apply to a person who aged out of eligibility for an immigrant visa as the derivative beneficiary of a family-based fourth preference visa petition, and on whose behalf a second preference green card petition was later filed by a different petitioner.

The petitioner urged a broad interpretation of the CSPA. The brief by amici curiae in Wang similarly maintained that the provision amended by the CSPA, § 203(h)(3) of the Immigration and Nationality Act (INA), is ameliorative and inclusive and does not limit its automatic conversion and priority date retention provisions to family-based preference petitions. In contrast, the USCIS urged a narrower interpretation, arguing that established regulatory practice requires that the original priority date will be retained only if the second visa petition is filed by the same petitioner. Thus, USCIS maintained that to effect an "automatic conversion" under the CSPA, the petitioner also must have been the petitioner on the earlier green card petition. According to the USCIS, such an interpretation of the statute avoids open-ended petitions with no timeliness considerations.

The Supreme Court’s decision is expected by late June.

USCIS policy guidance. Shortly before the Supreme Court argument in Mayorkas v. Cuellar de Osorio, USCIS issued a policy guidance memorandum on the CSPA.

The memo notes that the CSPA addresses certain "age out" consequences in those instances where "aging out" of eligibility for classification as a child is caused by a delay in the adjudication of the petition or application. The CSPA applies widely to petitions for family-based immigrants and also applies to employment-based immigrants, diversity visa immigrants, refugees, and asylees when delays in processing petitions would cause a beneficiary to lose the ability to immigrate as a child due to reaching 21 years of age.

The memo specifically addresses automatic conversion and priority date retention as set forth in INA § 203(h)(3). The memo notes that this provision authorizes certain immigrant visa petitions to "automatically be converted to the appropriate category and…retain the original priority date." The memo provides guidance for assigning priority dates in those instances where a petitioner requests that the priority date from a separate, previously filed petition be applied to a later filed family-based second-preference "B" petition (F-2B) or seeks adjustment of status in the F-2B category, based upon an originally filed family-based second-preference "A" petition (F-2A) under the CSPA.

The guidance quotes the following related update to the USCIS Adjudicator’s Field Manual for officers considering eligibility for priority date retention:

"(A) If the beneficiary was previously found eligible as a derivative on an approvable F2A category petition ("petition #1″) that has not been revoked or otherwise terminated, and the subsequent petition ("petition #2″) was filed by the same petitioner as in petition #1, USCIS will apply the earlier priority date to petition #2 (regardless of whether the second petition is initially filed in the F-2B or F1 classification).

(B) If the beneficiary was previously the subject of an approved F-2A petition and that petition has not been revoked or otherwise terminated, any subsequent petition filed by the same petitioner, which is approved by USCIS shall be entitled to the older priority date and approval of the new petition shall be considered a reaffirmation of the previous approval, as provided in 8 CFR § 204.2(h)(2).

(C) If the principal beneficiary of an F-2B petition (petition #2) was previously the derivative beneficiary of a petition filed pursuant to sections 203(a)(1), (3), (4), or 203(b), and the petitioner of petition #2 was not the petitioner on the previous petition (petition #1), then petition #2 is NOT entitled to the older priority date. See 8 CFR § 204.1(b); 22 CFR § 42.53(a). Instead, petition #2 should be assigned a priority date based on the date of filing. Send the standard notice of denial of priority date retention provided through the appropriate chain of command. Continue to otherwise adjudicate the petition on its merits in accordance with applicable law, regulations, and policies.

(D) If an individual files an application for adjustment of status in the F-2B or F-1 classification based on previous F-2A derivative classification, but the petitioner did not file a new (subsequent) petition on behalf of the individual, the individual may be eligible for adjustment of status if:

(i) he or she was previously the derivative beneficiary of an approvable F-2A petition;

(ii) he or she qualifies as the son or daughter of the original petitioner (take particular care that step-relationships were created before the applicant turned 18); and

(iii) all other eligibility requirements are met.

(E) If an application for adjustment of status is pending and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the application pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If, however, the applicant has another basis of eligibility for adjustment, adjudication based on the alternate basis of eligibility should not be delayed.

(F) If a denied applicant for adjustment of status files a motion to reopen or reconsider, or if such a motion is pending, and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the motion pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If the applicant demonstrates another basis of eligibility for adjustment that was not properly considered before denial, the application should be reopened and adjudication based on the alternate basis of eligibility should not be delayed."

Matter of Wang is available here. Links to various related filings in Mayorkas v. de Osorio are available here and here. The USCIS policy guidance memo, which includes example scenarios, is available here. More CSPA information is available here.

Court Approves Final Settlement on Employment Authorization for Asylum Seekers

U.S. Citizenship and Immigration Services announced that on November 4, 2013, the U.S. District Court for the Western District of Washington granted final approval of the revised ABT settlement agreement, closing class action litigation that began in December 2011, in a case called B.H. v. United States Citizenship and Immigration Services, No. CV11-2108-RAJ (W.D. Wash.). The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.

These changes generally relate to eligibility for an Employment Authorization Document (EAD) for asylum applicants, and to calculation of the 180-day "Asylum EAD Clock" for ABT class members.

USCIS explained that the 180-day Asylum EAD Clock measures the time period during which an asylum application has been pending with the USCIS asylum office and/or the Executive Office for Immigration Review. USCIS service centers adjudicate the Form I-765, Application for Employment Authorization, and calculate the 180-day Asylum EAD Clock to determine eligibility for employment authorization. Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file an I-765 if the application remains pending. An asylum applicant cannot receive an EAD until his or her asylum application has been pending for at least 180 days. This 180-day period does not include any delays that applicants request or cause while their applications are pending with an asylum office or immigration court, USCIS explained.

The agreement was revised in September 2013 to clarify two points:

1. Following the remand of an asylum case to an immigration judge, for employment eligibility purposes the asylum applicant will be credited with time going forward, excluding delays requested or caused by the applicant.

2. Remand Claim relief would be implemented under the six-month time frame provided in most other provisions of the agreement. Due to the government shutdown, the six-month time frame was extended by several weeks and implementation began by December 3, 2013.

An explanation of how to determine who is an ABT class member is available here. U.S. Citizenship and Immigration Services’ announcement is available here. Additional information is available here. The related notice is here. Details on how the agreement affects adjudication of asylum and EAD applications is available here.

USCIS Releases New E-Verify MOUs Tied to Access Method

On December 8, 2013, U.S. Citizenship and Immigration Services (USCIS) released revised Memoranda of Understanding (MOUs) for E-Verify browser users and new MOUs for users accessing E-Verify through Web services.

USCIS said that current E-Verify users are not required to execute a new MOU but are bound by any enhancements to the E-Verify program, including the new or revised MOU that applies to their access method. Current users should become familiar with the new or revised MOU that applies to their access method. The effective date of the MOU for existing users is January 8, 2014.

Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment. E-Verify revised and added new MOUs in response to feedback and to update the MOUs with policy and process changes. The new and revised MOUs include several updated provisions, such as enhanced privacy protections and instructions for reporting privacy and security breaches. The new versions are also intended to apply the Federal Government’s "plain language" principles to make them easier to understand.

The E-Verify MOUs released on December 8, 2013, have a revision date of June 1, 2013. The revision date may be found at the bottom of each MOU page. The announcement is available here. The new memoranda are available here. A related fact sheet is available here.

U.S. Embassy London Hosts Visa Webchat

The U.S. Embassy in London conducted a webchat on November 26, 2013. Highlights of the webchat include:

1. U.S. government policy is under review regarding "criminal cautions" in the United Kingdom. Applicants having a caution may experience lengthy delays during the application process. These delays will affect applicants with a caution even if they may have received a visa in the past. The U.S. Embassy London recommends applying as soon as possible and not making final travel plans until receiving a visa.

2. Visa applicants are advised to notify the embassy via a contact form if they leave the United Kingdom while additional processing is pending. The contact form is available here.

3. The embassy noted that the presumption of innocence has little place in the visa application process. According to the embassy, if one applies for a visa during a pending prosecution, "you should be aware that it may not be possible to adjudicate your visa application until the disposition of your criminal case is known." See 9 FAM 40.21(a) N3.3.

4. Waiver applications take six months to process even if the applicant has received a previous waiver. Frequent travelers to the United States may choose to apply more than six months before the expiration date of their current visa so that the next visa may be ready to be issued without a gap. A current visa with a valid waiver will not be canceled during the interview before the expiration date.

5. Immigrant visas are issued with a validity period that expires six months from the date of the medical exam, rather than six months from the date of the immigrant visa interview.

The transcript of the Webchat is available here.