IMMIGRATION SPOTLIGHT AUGUST 24, 2011 ISSUE 112

Transcription

1 IMMIGRATION SPOTLIGHT AUGUST 24, 2011 ISSUE 112 INSIDE SPOTLIGHT U.S. CITIZENSHIP AND IMMIGRATION SERVICES New benefits for foreign entrepreneurs FY2012 H-1B cap update: 25,300 petitions, 8/12/ E-verify Self Check launches Spanish version N-400 prioritization for SSI recipients USCIS performance reports CUSTOMS AND BORDER PROTECTION Global Entry expands to Canadian airports Global Entry new cards to be issued DEPARTMENT OF LABOR Prevailing wage suspension impacts PERM DOL updates PERM processing times DEPARTMENT OF STATE September visa bulletin: Limited EB2/EB3 progress OTHER NEWS IRS: Offshore accounts/income: 8/31 report deadline J&H webinars SPREAD THE WORD! Immigration Spotlight is electronically distributed to HR professionals and also published to our website. To read a back issue on our website, click on Employer Resources on the menu bar. Please feel free to forward Spotlight to the rest of your management team and employees. You may download our firm brochure at Jackson & Hertogs LLP is one of the oldest and most respected immigration and nationality firms in the country dedicated solely to the practice of immigration law. Today, Jackson & Hertogs has seven attorneys and a staff of 25 legal assistants and office management personnel to assist you with immigration matters. USCIS NEWS NEW BENEFITS FOR FOREIGN ENTREPRENEURS On August 2, 2011, USCIS published revised guidance facilitating eligibility of foreign national entrepreneurs for immigration as well as H-1B nonimmigrant visa status. Permanent residence update In its FAQ on permanent residence, USCIS now allows a foreign entrepreneur to act as both the petitioner and the beneficiary of a green card petition under the EB-2 National Interest Waiver (NIW) category. Additionally, the FAQ states that the foreign entrepreneur may qualify under the NIW category without a job offer if the entrepreneur can demonstrate that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States. USCIS states: For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field. USCIS also confirms in its FAQ that a foreign entrepreneur may qualify as the beneficiary of an EB-2 Exceptional Ability Petition. EB-2 Exceptional Ability requires showing that the beneficiary meets certain criteria of excellence in the arts, science or business, and an approved labor certification from the U.S. Department of Labor (DOL). Because DOL does not grant labor certification if the sponsored worker is an owner or founder, self -sponsorship is not available to entrepreneurs in the EB-2 Exceptional Ability category. H-1B nonimmigrant visa update USCIS will also now allow foreign entrepreneurs to sponsor themselves on an H-1B nonimmigrant visa petition. Prior to this revised FAQ, USCIS has required a traditional employeremployee relationship to qualify for an H-1B visa, and has not allowed a sole owner to be both petitioner and beneficiary of an H-1B visa petition. USCIS now allows entrepreneurs to self-

2 Immigration Spotlight August 2011 Jackson & Hertogs LLP Page petition if the facts show that there is a right to control by the petitioner over the employment of the beneficiary. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary. These revisions do not require congressional approval, because they are not considered changes to current immigration law. Rather, these changes are viewed by USCIS as clarifications to how existing immigration law is applied with the apparent objective of allowing more entrepreneurs to gain entry into the United States. The FAQ on H1B changes can be found at menuitem.5af9bb95919f35e66f f6d1a/? vgnextoid=3d015869c vgnvcm ca60arcrd &vgnextchannel=68439c7755cb9010vgnvcm f3d6a1r CRD. The FAQ on immigrant visa category can be found at menuitem.5af9bb95919f35e66f f6d1a/? vgnextoid=93da6b814ba81310vgnvcm ca60arcrd& vgnextchannel=6abe6d26d17df110vgnvcm arc RD. FY2012 H-1B CAP UPDATE: 25,300 PETITIONS AS OF AUGUST 12, 2011 The H-1B cap count as of August 12, 2011 indicates that USCIS has accepted approximately 25,300 regular cap cases and 14,700 Master s Exemption cap cases. Until further notice, USCIS will continue to accept new H-1B visa petitions applied toward either the "regular" allotment for degreed professionals, or for the smaller allotment of exemptions reserved for U.S. advanced degree holders. J&H will continue to monitor the FY2012 H-1B cap count, and advise clients as information becomes available. We also offer a link on our homepage to the latest H-1B cap count: While the rate of H-1B cap filings is slow, it is impossible to predict when the H-1B cap will be reached. In prior years, USCIS has given little or no notice before the cap was reached, leaving some clients who wanted H-1B visas out of luck. It is our recommendation that you review all new hires that hold F-1 status and consider filing H-1B visa petitions immediately. If you wish to start an H-1B case, please contact your J&H attorney. E-VERIFY SELF CHECK LAUNCHES SPANISH-LANGUAGE VERSION Self Check is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah and Washington. Self Check was launched in March 2011 for residents who reside in Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia. The service allows individuals in the United States to check their employment eligibility status before formally seeking employment. It is voluntary and free to use: N-400 PRIORITIZATION FOR SSI RECIPIENTS USCIS will prioritize the processing of Form N-400, Application for Naturalization, for certain SSI recipients when the applicant s: SSI benefits will be terminated within 1 year from the date listed on your SSI notice; AND, Form N-400 has been pending for 4 months or more from the date of receipt. For instructions for individuals whose SSI benefits are being terminated within 1 year and have applied for or will apply for citizenship through Form N-400, see menuitem.5af9bb95919f35e66f f6d1a/? vgnextoid=7d84314b55eb1310vgnvcm ca60arcrd &vgnextchannel=68439c7755cb9010vgnvcm f3d6a1r CRD. USCIS PERFORMANCE REPORTS USCIS has made available new data reports covering agency performance in a broad range of data and operational areas. The reports, prepared at the request of agency stakeholders, advance agency efforts to enhance transparency and improve customer service. Four of the data sets will be updated monthly; they include processing times and performance data for Form N-400, Application for Naturalization; performance data for Form I-485, Application to Register Permanent Residence or Adjust Status; and statistics on Form I-914, Application for T Nonimmigrant Status, and Form I-918, Petition for U Nonimmigrant Status. Forms I-914(T) and I-918(U) are used for victims of trafficking and victims of crime. The reports can be found at

3 Immigration Spotlight August 2011 Jackson & Hertogs LLP Page CBP NEWS GLOBAL ENTRY EXPANDS TO CANADIAN AIRPORTS On July 26, 2011 CBP announced that Global Entry kiosks are available at CBP preclearance at Vancouver International Airport and Ottawa s MacDonald-Cartier Airport, and will be available at Montreal s Trudeau International Airport and Toronto s Lester B. Pearson International Airport by September. The placement of Global Entry kiosks at Canadian preclearance locations is part of the integration of the Global Entry and NEXUS Trusted Traveler programs. The integration of the Global Entry and NEXUS programs began in December 2010, when CBP published a Federal Register Notice announcing that NEXUS members could participate in Global Entry. With the deployment of Global Entry kiosks to Canadian preclearance, Global Entry members will be able to take advantage of the program when returning home from Canada. NEXUS members, who have Global Entry benefits, have the option of using either the Global Entry or NEXUS kiosks in preclearance. Global Entry is a voluntary pilot program that streamlines the international arrivals process for pre-approved travelers through use of self service kiosks located at 20 major U.S. airports. The pilot program is an alternative to regular passport processing procedures, allowing members to bypass the regular line, and currently reduces average wait times by 70 percent. To date, Global Entry members have used the kiosks more than one million times. Global Entry is available to U.S. citizens and U.S lawful permanent residents, as well as Mexican nationals. Citizens of the Netherlands may also apply under a special reciprocal arrangement that links Global Entry with the Dutch Privium program in Amsterdam. Canadian citizens and residents may participate in Global Entry through membership in the NEXUS program. Applications to Global Entry must first be submitted online. A non-refundable fee of $100 is also collected via the website for a five year membership. Applicants must then complete an inperson interview, at any of the Global Entry enrollment centers, where fingerprints are collected. Once enrolled in the pilot program, Global Entry members may proceed directly to the kiosks in the inspection services area. At the kiosk, members insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosk s touch-screen, and then present a transaction receipt to CBP officers before leaving the inspection area. Preclearance offers a convenience to travelers arriving in the U.S. by completing all customs, immigration and agriculture inspections prior to arriving at a U.S. port of entry. When precleared passengers arrive in the U.S. they can use domestic terminals and/or connect to their domestic flights without further processing. For more information, see GLOBAL ENTRY NEW CARDS TO BE ISSUED On August 5, 2011, CBP announced that Global Entry members will now be issued a Global Entry version of the SENTRI card which allows expedited entry into the U.S. from Canada and Mexico using the NEXUS, SENTRI and Ready Lanes at land ports of entry. The new card operates as a SENTRI card for Global Entry members. The Global Entry card is a Western Hemisphere Travel Initiative (WHTI)-compliant, radio frequency identification (RFID) technology-enabled document that may be used by U.S. citizens when entering the U.S. through a land or sea port of entry from Canada, Mexico or the Caribbean. Current Global Entry members, who do not have a NEXUS or SENTRI card, may request a new Global Entry version of the SENTRI card online by logging into their Global Online Enrollment System (GOES) account and paying a $15 fee that covers the cost of processing and mailing the card. For new applicants, the cost of the card will be included in the Global Entry application fee.

4 Immigration Spotlight August 2011 Jackson & Hertogs LLP Page DOL NEWS PREVAILING WAGE SUSPENSION IMPACTS PERM The DOL has stopped processing of all prevailing wage requests, in response to orders from a federal district court to reissue new prevailing wage determinations (PWDs) for certain H- 2B nonimmigrant visa applications. DOL is required to reissue approximately 4,000 H-2B wage determinations. On August 1, DOL announced that they could not reissue all the required H-2B PWDs before August 31, but confirmed that they would do so by October 1. It is unclear how long the suspension will continue, as DOL has not revealed how many of the 4,000 H-2B wages it has already processed, or when DOL expects to finish. On its website, DOL continues to instruct employers that prevailing wages should be requested at least 60 days before the planned start date of any PERM recruitment. Background: DOL issues PWDs to support various visa categories, including H-2A agricultural workers, H-2B temporary workers, H-1B professionals, and permanent labor certification applications (PERM). All PWDs are issued by a single office, and are normally processed on a first-in, first out (FIFO) basis, regardless of which type of PWD is requested. A DOL-issued PWD is not required for filing an H-1B application, but a PWD is required before a PERM application can be filed. Given that prevailing wage requests have been pending at DOL since early June 2011, and DOL generally estimates 60 days to issue the PWD, it would appear that PWDs may now take 90 days or longer to issue. The American Immigration Lawyers Association (AILA) and other stakeholders have formally requested that DOL resume processing of prevailing wages requests, due to the significant impact the prevailing wage suspension has on employers preparing PERM applications, and on the beneficiaries of PERM applications. During a recent call with stakeholders, DOL would not address when they would resume processing of prevailing wages, as this will depend on how quickly DOL can issue the H-2B redeterminations required by the court order. DOL did state that they have put all of their resources into reissuing the H-2B wages, and that they are aware that the prevailing wage suspension has a significant impact on program users. Jackson & Hertogs is closely monitoring the situation, and we continue to submit PERM prevailing wage requests to DOL. However, the increased timeframe for PERM PWDs may impact all stages of PERM recruitment, as PERM recruitment can only be safely conducted after a PWD has issued. Therefore, PERM applications in preparation that have not yet been issued a PWD may experience delays before filing. Further, PERM cases that have already received satisfactory PWDs from DOL are not impacted by the suspension. Similarly, the suspension of issuing PWDs has no impact on any filed PERM application. DOL UPDATES PERM PROCESSING TIMES The U.S. Department of Labor recently posted updated PERM processing dates. DOL reports that as of August 22, 2011, it was processing the following PERM cases: Analyst Review: May 2011 Audits: December 2010 Requests for Reconsideration: January 2009 Government Error Reconsiderations: Current Cases in Analyst Review are undergoing initial review these are the cases for which DOL is currently issuing certifications and audit notices. Cases in Audit were issued audit notices by DOL, and the employer submitted an audit response to DOL for review. It is important to note that DOL uses the date of original filing (i.e., the priority date) to determine processing times for all PERM cases. For example, DOL is reviewing audit responses for PERM cases that were filed in December 2010 and earlier; however, the employer s audit response may have been submitted several months after that date. Cases in Requests for Reconsideration are denied cases where either a request for reconsideration by DOL or a request for appellate review (i.e., an appeal) was submitted. DOL forwards appeals directly to the Board of Alien Labor Certification Appeals (BALCA) for review upon receipt. Requests for reconsideration by the Certifying Officer are reviewed by date of initial filing, not by date of receipt of the request note that DOL previously referred to these cases as appeals, but renamed the category to better describe the types of cases being reviewed. Government Error Reconsiderations are requests for review of denials based solely on an error by DOL, i.e., cases denied for failure to respond to an audit, but the employer did in fact submit a timely audit response. While an employer may ask for its request to be considered under government error, DOL is the sole arbiter in determining whether the decision was government error. If DOL does not find that the decision is reversible due to government error, the case will move to the Requests for Reconsideration queue for further processing. DOL has previously advised that if no decision is issued within 45 days of submitting a government error request for review, the employer should assume that government error was not found, and the

5 Immigration Spotlight August 2011 Jackson & Hertogs LLP Page DOL NEWS (cont d) case has moved to the standard request for reconsideration queue for processing. Inquiries and Follow up: DOL advises that if a pending application was filed more than three months prior to the reported processing month, an inquiry may be made on the status of the pending application. Whether a case is behind the processing times will depend on what processing queue the case is in at DOL. For example, under the DOL s standards, a case filed in January 2011 would be overdue for initial Analyst Review (May 2011), but not overdue under the Audit Review (December 2010) processing date. Jackson & Hertogs is monitoring the status of our pending PERM cases, and following up with DOL when cases are behind the reported processing times. DOS NEWS SEPTEMBER VISA BULLETIN: LIMITED PROGRESS IN EB2 AND EB3 The Department of State (DOS) Visa Bulletin for September 2011 shows limited progress in the employment-based (EB) categories. There were no changes in the employment-based second preference (EB2) category for India-born and China-born individuals, and the priority date remains at April 15, All countries other than India and China remain "current" in the EB2 category. Employment-based first preference (EB1) also remains current for all countries. The employment-based third preference (EB3) numbers for all countries other than India and China advanced less than a month, from November 1, 2005 to November 22, EB3 India moved forward just over one month, from June 1, 2002 to July 8, EB3 China moved forward one week, from July 8, 2004 to July 15, It is important to note that "nationality" for immigrant visa allotment is not the same as citizenship. Generally, DOS looks at the country of birth in determining whether a person is a national of a given country. As a result, persons who become citizens of other countries (i.e., Indians who become Canadian citizens) are still considered nationals of their birth country for immigrant visa purposes. For general information on visa retrogression, please see our FAQ on this subject. For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page, which includes detailed nationality-specific charts of quota movement since 1996.

6 Immigration Spotlight August 2011 Jackson & Hertogs LLP Page IRS NEWS OFFSHORE ACCOUNTS OR INCOME AUGUST 31, 2011 DEADLINE TO REPORT The Internal Revenue Service (IRS) announced an Offshore Voluntary Disclosure Initiative in February 2011 for taxpayers with unreported foreign financial accounts, income, or entities (such as corporations, partnerships, or trusts) to come forward and report these accounts and/or income to the IRS. Note that the reporting requirement applies to all US residents as defined under the tax laws, which includes US citizens, permanent residents, and many nonimmigrant visa holders. While this initiative is not an amnesty for all penalties, participants in the initiative will be shielded from certain criminal penalties that would otherwise apply from failure to timely disclose foreign accounts, assets, and foreign income. Taxpayers that wish to participate in this initiative have until August 31, 2011 to file information with the IRS regarding their offshore accounts, entities, or income. Please consult with your tax professional or financial advisor if you wish to take advantage of this IRS program. J&H NEWS J&H WEBINARS September 28 NIV Basics This webinar will present a broad overview of nonimmigrant issues, including a review of nonimmigrant visa categories and processes. We will review the H-1B non-immigrant temporary worker visa from the perspective of the sponsoring employer. We will explain such terms as specialty occupation and prevailing wage as they relate to H-1B eligibility. We will also look at the visa categories created solely for citizens of certain countries (e.g., Canada, Mexico, Chile, Singapore, & Australia) that have entered into free trade agreements with the United States. Further, certain international transferees, citizens of countries sharing nationality with foreign-owned corporations, and foreign nationals of extraordinary ability can also be eligible for visas. IMMIGRATION TRIVIA True or False? My company is sponsoring an H-1B visa for a beneficiary that will need to perform services in more than one work location therefore an itinerary of services or engagements must be included. location for the beneficiary. regulations requiring that you file an LCA specific to each work Answer: True. You will need to submit a complete itinerary of Furthermore, you must comply with Department of Labor beneficiary to perform services in more than one work location. services or engagements, as described in the USCIS memo on comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the Determining Employer-Employee Relationships, in order to