Business Immigration Monthly

Transcription

1 Business Immigration Monthly January 2015 TOPIC OVERVIEW JANUARY 2015 VISA BULLETIN UPDATE... 1 DOL NO LONGER ACCEPTING EMPLOYER PROVIDED WAGE SURVEYS FOR H-2B PROGRAM... 2 US EMBASSY IN MEXICO LAUNCHES NEW H-2 APPOINTMENT SYSTEM... 2 DHS EXPANDS COUNTRIES ELIGIBLE FOR H-2A AND H-2B PROGRAMS... 2 PRESIDENT ISSUES NEW DIRECTIVE ON CUBA... 3 CALIFORNIA TO BEGIN ISSUING DRIVER S LICENSES TO UNDOCUMENTED IMMIGRANTS... 3 DOL ISSUES NEW PROCEDURES FOR H-2B PROGRAM PREVAILING WAGE REQUESTS... 4 DHS ISSUES NEW REGULATIONS ON REAL ID-COMPLIANT DOCUMENTS... 4 MFEM NEWS SAVE THE DATE: MFEM S ANNUAL COMPLIMENTARY IMMIGRATION SEMINAR TO BE HELD ON TUESDAY, FEBRUARY 24, JANUARY 2015 VISA BULLETIN UPDATE The Department of State (DOS) released its January 2015 Visa Bulletin which shows the availability of employment-based immigrant visa categories for the month of January. Below is a summary of the bulletin highlights: The EB-2 India category has stalled at February 15, 2005 as predicted in our previous bulletin updates. The EB-2 China category has advanced one month from January 1, 2010 to February 1, The EB-3 India category advances two weeks from December 1, 2003 to December 15, The EB-3 World, Mexico and Philippines categories continue to exhibit strong advancement from November 1, 2012 to June 1, The EB-3 China category also continues to show significant advancement from June 1, 2010 to March 1, Please note that month-to-month availability of immigrant visas varies and depends on many factors. These forecasts do not guarantee future availability. Comparison to Prior Months The following is a comparison of priority date movement since the inception of the current retrogression in 2007: Dec 2007 Jun 2008 Aug 2009 Sept 2012 May 2013 Dec 2014 Jan 2015 EB-3 World 09/01/02 03/01/06 U 10/01/06 12/01/07 11/01/12 06/01/13 EB-2 China 01/01/03 04/01/04 10/01/03 U 05/15/08 01/01/10 02/01/10 EB-3 China 10/15/01 03/22/03 U 12/15/05 12/01/07 06/01/10 03/01/11 EB-2 India 01/01/02 04/01/04 10/01/03 U 09/01/04 02/15/05 02/15/05 EB-3 India 05/01/01 11/01/01 U 10/08/02 12/22/02 12/01/03 12/15/03 EB-3 Other Workers 10/01/01 01/01/03 U 10/01/06 12/01/07 11/01/12 06/01/13 Masuda Funai s Business Immigration Monthly is provided as a free service of the firm regarding legal developments. It is not a substitute for legal counseling and may constitute advertising material Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved.

2 Additional information about the movement of the employment-based immigrant visa priority dates will be contained in our firm's future Immigration Updates when it becomes available. DOL NO LONGER ACCEPTING EMPLOYER PROVIDED WAGE SURVEYS FOR H-2B PROGRAM As of December 8, 2014, the Department of Labor (DOL) will no longer issue prevailing wage determinations for requests made in the H-2B program where the employer is requesting a wage based on an employer provided wage survey. The DOL issued this announcement as a result of the federal court of appeals decision rendered by the Third Circuit on December 5, 2014, Comite de Apoyo a los Trabajadores Agricolas et a. v. Solis. The case is the latest in a long list of litigation that has surrounded the H-2B program. The H-2B Temporary Non-Agricultural Workers program allows employers to employ nonimmigrants in nonagricultural fields where the employer has established that the need for the foreign worker s services is temporary, that there are insufficient U.S. workers that are able, available, qualified and willing to accept the H-2B position and that the hiring of a foreign worker will not adversely affect the working conditions and wages of U.S. workers. As part of the process, the employer must first obtain a temporary labor certification from the DOL which is then forwarded to the Department of Homeland Security s US Citizenship and Immigration Services (USCIS) for H-2B petition processing. As part of the temporary labor certification, in order to demonstrate no adverse effect on the working conditions and wages of U.S. workers, a prospective employer must request a prevailing wage determination from the DOL. This determination will set the minimum wage that the employer must pay the foreign workers. Where no collective bargaining agreement existed, employers were permitted to submit a private wage survey to the DOL requesting that the agency base the prevailing wage on the wage survey. Essentially, the private wage survey data was more favorable and required lower wages than the DOL s standard wage database Occupational Employment Statistics (OES). As a result of the ruling, the DOL will only issue H-2B prevailing wage determinations based on OES data (except where there is a collective bargaining agreement). For currently pending H-2B Labor Certification Applications, the DOL will notify employers of their new prevailing wage obligations. US EMBASSY IN MEXICO LAUNCHES NEW H-2 APPOINTMENT SYSTEM On December 8, 2014, the U.S. Embassy in Mexico implemented a new visa appointment system for the H-2 Temporary Agricultural (H-2A) and Non-Agricultural (H-2B) Programs. The H-2A Temporary Agricultural Workers program permits U.S. companies to employ foreign workers in the United States in temporary agricultural jobs while the H-2B Temporary Non-Agricultural Workers program is for non-agricultural fields. These procedures require group processing via group user accounts. Once a group user account is approved, each individual applicant is able to schedule their visa appointment. The new visa application procedures can be found at: DHS EXPANDS COUNTRIES ELIGIBLE FOR H-2A AND H-2B PROGRAMS Effective January 18, 2015, foreign nationals from five additional countries will be allowed to participate in the H- 2A and H-2B programs. The H-2A Temporary Agricultural Workers program permits U.S. companies to employ foreign workers in the United States in temporary agricultural jobs while the H-2B Temporary Non-Agricultural 2014 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 2

3 Workers program is for non-agricultural fields. This brings the total number of eligible countries to 68 countries. The newly eligible countries are: Czech Republic, Denmark, Madagascar, Portugal and Sweden. These will be added to the currently eligible countries: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Grenada, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, The Netherlands, New Zealand, Norway, Panama, Papua New Guinea, Peru, The Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Switzerland, Thailand, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu. Exceptions can be made for approval of an H-2A and H-2B petition on behalf of a beneficiary from a country not on this list under limited circumstances. PRESIDENT ISSUES NEW DIRECTIVE ON CUBA President Obama recently outlined a new directive in the relations between the United States and Cuba. This is the first serious rapprochement between the two nations since the end of diplomatic relations in The major elements of the President s initiative are summarized as follows: 1. Re-establishment of diplomatic relationship between the United States and Cuba. 2. Re-establishment of a U.S. Embassy in Havana. 3. Coordination between the two countries on issues relating to migration, counternarcotics, environmental protection, human-trafficking, etc. 4. Travel licenses for authorized travelers for the following purposes: family visits, official government business, press, research and professional meetings, education, competitions and performances, support for Cubans, humanitarian, private foundations or research institutions, export/import/transmission of information and/or information materials, and certain export transactions authorized under current laws. These travelers will be permitted to obtain travel authorization through a service provider complying with the U.S. Treasury s Office of Foreign Assets Control. 5. Provision of business training for Cuban businesses and small farmers to promote the Cuban private business community. 6. Raising of the remittance level from $500 to $2,000 to Cuban nationals, for humanitarian projects and for private businesses as well as the abolishment of a special license for remittance forwarders. 7. Expansion of commercial sales/exports from the United States to invigorate the private Cuban sector. 8. Ease of restrictions on financial transactions, allowing for the opening of bank accounts and use of credit cards. 9. Measures to increase the level of internet and telecommunication available to Cubans. 10. Revision of U.S. sanctions on transactions between third countries and Cuba. 11. Further discussion with Mexico and Cuba on unresolved maritime boundary in the Gulf of Mexico. 12. Evaluation of Cuba s designation as a State Sponsor of Terrorism. CALIFORNIA TO BEGIN ISSUING DRIVER S LICENSES TO UNDOCUMENTED IMMIGRANTS California joins other states in allowing its undocumented immigrant population to apply for a special driver s license. Applicants must be able to prove their identity and their residency in the state of California. Similarly to other states that issue these driver s licenses, the text not acceptable for official federal purposes will appear on 2015 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 3

4 the face of the document. California expects approximately 1.5 million immigrants to apply for the new licenses. Currently, the following states permit undocumented immigrants to apply for a driver s license: Washington, Illinois, Vermont, Connecticut, Washington, DC, Maryland, Colorado, New Mexico, Utah, Nevada as well as the commonwealth of Puerto Rico. Nebraska is the only state where youth granted administrative relief through President Obama s executive initiative for Deferred Action for Childhood Arrivals (DACA) are expressly prohibited from obtaining a driver s license. Illinois began issuing driver s licenses to undocumented immigrants in January DOL ISSUES NEW PROCEDURES FOR H-2B PROGRAM PREVAILING WAGE REQUESTS The DOL recently issued new guidance to certain H-2B employers with pending prevailing wage requests and to those who have already received their determinations as part of a follow up on recent litigation surrounding prevailing wage determinations based on an employer provided wage survey. On December 8, 2014, the DOL ceased issuing prevailing wage determinations based on employer provided wage surveys. The DOL issued this announcement as a result of the federal court of appeals decision rendered by the Third Circuit on December 5, 2014, Comite de Apoyo a los Trabajadores Agricolas et a. v. Solis. Employers can modify their currently pending requests to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or Collective Bargaining Agreement (CBA) wage data. If an employer does not specify the SCA, DBA or CBA, the DOL will issue the prevailing wage based on the Occupational Employment Statistics (OES) mean. This modification will not be counted as a new request and the request will continue to be processed based on the initial filing date. Employers who have been issued prevailing wage requests but who have not filed their H-2B application with the Chicago National Processing Center are able to obtain a redetermination from the DOL and are not held to the time restrictions specified by the H-2B regulations. Employers with prevailing wage determinations based on an employer provided survey can utilize that wage for purposes of their recruitment. For employers who have already filed their H-2B applications and these applications have been approved, the DOL will issue a supplemental prevailing wage determination (SPWD) using OES mean data with the certification. In these cases, the SPWD allows an employer to obtain a redetermination, which if granted, the employer is instructed to return the original certification to the Chicago National Processing Center which will issue a new certification. DHS ISSUES NEW REGULATIONS ON REAL ID-COMPLIANT DOCUMENTS The Department of Homeland Security issued new regulations relating to REAL ID-compliant state issued driver s licenses and identification cards. The REAL ID Act was enacted in 2005 and required states to modify their issuance procedures for driver s licenses and identification cards. After December 1, 2014, federal agencies will no longer accept non-real ID-compliant driver s licenses or identification cards for official purposes if the individual was born after December 1, Furthermore, federal agencies are prohibited from accepting noncompliant documents after December 1, Lastly, the regulations modify the final document enrollment dates to October 1, 2020 thereby giving states and their residents additional time in which to fully comply with the REAL ID Act Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 4

5 MFEM NEWS SAVE THE DATE: MFEM S ANNUAL COMPLIMENTARY IMMIGRATION SEMINAR TO BE HELD ON TUESDAY, FEBRUARY 24, 2015 Masuda Funai will hold its next annual Complimentary Immigration Seminar on Tuesday, February 24, 2015 from 8:15 to 11:30 a.m. at the Doubletree Hotel Arlington Heights in Arlington Heights, Illinois. Some of the topics that will be covered during this Immigration Seminar will include: 1. Hot Topics How President Obama s Executive Actions will affect your company and its employees; 2. Race to the Finish Line Managing the Fiscal Year 2016 H-1B Quota which opens on April 1, 2015; 3. Green Card Update Avoiding the Pitfalls in the PERM Process and the I-140 Process; 4. Give Me Your Tired, Your Poor, Your Huddled Masses, Yearning To Breathe Free, But First Give Me $1 Million Alternatives to the EB-5 Investor Visa; and 5. The L Hits a New Low: Will 2015 Be its Demise? Registration for the Complimentary Immigration Seminar is currently open in the News and Events section of the Masuda Funai website at For more information about this or any other immigration law topic, please contact Bob White, at or via at rwhite@masudafunai.com. Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm s website at Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 5

6 About the Immigration Group The Immigration Group of Masuda Funai provides immigration representations to publicly traded companies, privately held corporations, educational institutions, not-for-profit organizations and individuals in business immigration matters. As one of the larger immigration groups in the United States, we annually file more than 2,500 petitions on behalf of approximately 275 different corporate employers from such diverse industries as automotive-related, computer consulting, machine tool manufacturing, electronics, construction and equipment, banking and financial, health care and high tech. Attorneys in the Immigration Group include: About Masuda Funai Masuda, Funai, Eifert & Mitchell is a full-service law firm representing international and domestic companies operating and investing in the United States. Our 40 attorneys located in Chicago, Schaumburg and Los Angeles counsel clients in every aspect of business, including establishing, acquiring, and financing operations; ownership, development and leasing of real estate; transfer of overseas employees to the U.S.; employment, labor, and benefits counseling and dispute resolution; intellectual property, copyright and trademark; business litigation; creditors' rights and business risk management; structuring the distribution and sale of products and services throughout the U.S. Kathleen M. Gaber, Chair Esther Contreras Bryan Y. Funai Colin Hara Eldon Kakuda Dayne Kono Stephen M. Proctor Fazila Vaid Robert S. White CHICAGO 203 North LaSalle Street Suite 2500 Chicago, Illinois TEL FAX LOS ANGELES South Vermont Avenue Suite 420 Torrance, California TEL FAX SCHAUMBURG 200 North Martingale Road Suite 800 Schaumburg, Illinois TEL FAX Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 6