August 2009 — ABIL Facebook Twitter LinkedIn Home About ABIL Lawyers North America Canada Mexico United States South America Colombia Peru Europe Austria Belgium France Germany Italy Netherlands Poland Spain Switzerland Turkey United Kingdom Asia Pacific & Africa Australia Hong Kong Global Immigration North America Canada Mexico United States South America Brazil Colombia Peru Europe Austria Belgium France Germany Italy Netherlands Spain Switzerland Turkey United Kingdom Asia Pacific & Africa Australia China Hong Kong India Japan South Africa Services Corporate Services Compliance Services Global Immigration Services Government Policy Complex Cases Investment Services Litigation Services Pro Bono Services Industries Resources Blogs News Newsletters Videos & Recordings Articles Contact Search Menu Menu News from the Alliance of Business Immigration Lawyers Vol. 5, No. 8B • August 15, 2009 August 15, 2009 /in Immigration Insider /by ABIL Headlines: 1. USCIS Reopens FY 2009 H-2B Petition Filing Period – The Department of State received far fewer than expected requests for H-2B visas and has announced that it will immediately accept new H-2B petitions. 2. State Dept. Introduces Online Nonimmigrant Visa Application Form – The new DS-160 Web-based nonimmigrant visa application form is part of the Visa Office’s effort to automate the visa process to the extent possible. 3. State Dept. Announces Revised Exchange Visitor Skills List – Exchange visitors who entered the U.S. on a J-1 visa before June 28, 2009, will continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list. 4. Visa Waiver Program Emergency/Temporary Passports Must Be Electronic, CBP Says – All VWP emergency or temporary passports now must be e-Passports to be eligible for travel to the U.S. without a visa. 5. USCIS Extends TPS Designation, Work Authorization for Somalians – USCIS has extended the designation of Somalia for TPS for 18 months, through March 17, 2011. 6. State Dept. Updates Visa Medical Examination Forms – Medical exams that have been completed using the older version of the forms do not have to be repeated. 7. USCIS Resumes Premium Processing for Nonimmigrant Religious Workers – Only those petitioners who have successfully passed an on-site inspection are eligible to file under Premium Processing Service. 8. Tata America’s Foreign Workers in U.S. Win Right To Court Hearing – Tata’s noncitizen U.S. employees had been required to sign over their federal and state tax refund checks to Tata. 9. Recent News from ABIL Members – Recent News from ABIL Members 10. Government Agency Links – Government Agency Links Details: 1. USCIS Reopens FY 2009 H-2B Petition Filing Period On August 6, 2009, U.S. Citizenship and Immigration Services (USCIS) reopened the fiscal year (FY) 2009 H-2B petition filing period and announced that it will immediately accept new H-2B petitions. The H-2B program allows U.S. employers to bring foreign nationals to the U.S. to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, manufacturing, food service/processing, and resort/hospitality services. Although on January 7, 2009, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas and, as a result, has issued only 40,640 H-2B visas for FY 2009 to date. This means that approximately 25,000 visas could go unused because they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers. The normal (non-premium processing) adjudication timeframe for H-2B petitions is 60 days. USCIS said it will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions (Forms I-129) for FY 2009 visas must be received, evaluated, and adjudicated by the FY 2009 deadline of September 30, 2009, USCIS said it cannot guarantee approval of any H-2B petition by that date. The agency therefore encourages employers to file as soon as possible and to request premium processing by filing a Form I-907 and submitting the $1,000 premium processing fee, which will allow for expedited adjudication. The USCIS notice, which includes instructions on how to qualify for a FY 2009 H-2B cap number, is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/h-2b_petitions_fy09.pdf. A related Q&A is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/QA_USCIS_Reopens_H-2B_Filing.pdf. Information on how to use premium processing service is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD. A USCIS guide to hiring a foreign national for short-term employment in the U.S. is available at http://www.uscis.gov/files/article/E1eng.pdf. Back to Top 2. State Dept. Introduces Online Nonimmigrant Visa Application Form The Department of State (DOS) recently posted a cable sent to the field in May 2009 introducing the new DS-160 Web-based nonimmigrant visa application form, which is part of the Visa Office’s effort to automate the visa process to the extent possible. DOS noted that at least 12 posts currently require applicants to use the DS-160. The new form incorporates all of the current NIV forms (DS-156, 157, 158, 156K, 3032, and parts of the E visa application) into one interactive format, and allows applicants to upload a photo. It is hosted on the Consular Electronic Application Center, which eventually will host online immigrant visa and passport applications, online fee payments, “possible queuing systems,” and an online appointment system. When an applicant fills out and submits the form online, the cable noted, he or she receives a confirmation page with a barcode that allows consular officers to locate the applicant’s case in the Consular Consolidated Database system and load it into the nonimmigrant visa system. As noted above, 12 posts (including some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) are requiring use of the DS-160 by their applicants. These posts’ applicant volume makes up about a tenth of the worldwide NIV applicant workload, DOS noted. This summer, the agency is expanding DS-160 use to two additional posts in Mexico, as well as Australia. Current server capacity, however, does not allow DOS to expand DS-160 use more rapidly. The form is available in English and Spanish, but translations into Arabic, Japanese, Chinese, Russian, Serbian, and French are being developed. DOS hopes to have it available to all posts (and in the above languages) by the end of 2009. The DOS cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4547.html. Back to Top 3. State Dept. Announces Revised Exchange Visitor Skills List The Department of State (DOS) recently released a cable sent to the field in June 2009 announcing the revised 2009 J-1 Exchange Visitor Skills List. Exchange visitors who entered the U.S. on a J-1 visa before June 28, 2009, will continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list. Exchange visitors whose countries were removed from the revised 2009 skills list are retroactively not subject to the two-year home residence requirement based on the Exchange Visitor Skills List, even if they entered the U.S. before the effective date. The DOS cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4548.html. The revised list was published in the Federal Register at http://edocket.access.gpo.gov/2009/pdf/E9-9657.pdf. Back to Top 4. Visa Waiver Program Emergency/Temporary Passports Must Be Electronic, CBP Says All Visa Waiver Program (VWP) emergency or temporary passports now must be electronic passports (e-Passports) to be eligible for travel to the U.S. without a visa. This includes VWP applicants who present emergency or temporary passports to transit the U.S. An e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the bearer, and is distinguished by a gold-colored symbol on the passport’s front cover. VWP applicants arriving in the U.S. with a non-compliant passport may be required to undergo further processing and/or denied admission. U.S. Customs and Border Protection (CBP) may exercise discretion at the ports of entry in cases of medical or other emergency travel. The CBP notice released July 14, 2009, contains additional country-by-country details and is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/epssprt_vwp.xml. Back to Top 5. USCIS Extends TPS Designation, Work Authorization for Somalians U.S. Citizenship and Immigration Services (USCIS) has extended the designation of Somalia for temporary protected status (TPS) for 18 months, from its current expiration date of September 17, 2009, through March 17, 2011. USCIS also automatically extended the validity of employment authorization documents (EADs) issued under the TPS designation of Somalia for six months, through March 17, 2010, to give re-registrants sufficient time to receive their new EADs after their current EADs expire. The USCIS notice sets forth procedures necessary for nationals of Somalia, or those having no nationality who last habitually resided in Somalia) to re-register with USCIS for TPS. Re-registration is limited to persons who previously registered for TPS under the designation of Somalia and whose applications have been granted by, or remain pending with, USCIS. The 60-day re-registration period began on July 27, 2009, and will remain in effect until September 25, 2009. The notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-17862.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7862cb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Back to Top 6. State Dept. Updates Visa Medical Examination Forms Updated visa medical forms are now being used. The forms are: DS-2053 – Medical Examination for Immigrant or Refugee Applicant (1991 TB TIs) DS-2054 – Medical Examination for Immigrant or Refugee Applicant (2007 TB TIs) DS-3024 – Chest X-Ray and Classification Worksheet (1991 Centers for Disease Control (CDC) Technical Instructions (TIs) on tuberculosis (TB)) DS-3030 – Chest X-Ray and Classification Worksheet (2007 TB TIs) DS-3026 – Medical History of Physical Examination Worksheet (all posts), and DS-3025 – Vaccination Documentation Worksheet (all posts). The Department of State recently released a cable sent to the field in June 2009 listing the forms and noting that all posts should begin using the DS-2053, DS-3024, DS-3026, and DS-3025 forms immediately, and discontinue use of any older version of these forms. Medical exams that have been completed using the older version of the forms, however, do not have to be repeated. The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4550.html. Related information from the CDC, including CDC global TB control activities for U.S. immigration and TIs for TB screening and treatment, is available at http://www.cdc.gov/ncidod/dq/panel_2007.htm. Other CDC information on proposed vaccination criteria for U.S. immigration, and guidelines for medical examination of immigrants, is available at http://www.cdc.gov/ncidod/dq/refugee/index.htm. Back to Top 7. USCIS Resumes Premium Processing for Nonimmigrant Religious Workers After a suspension of several years, U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing service for nonimmigrant religious worker petitions filed by certain R-1 petitioners. Only those petitioners who have successfully passed an on-site inspection are eligible to file under premium processing service. Under premium processing service, USCIS guarantees petitioners that, for a $1,000 processing fee, within 15 calendar days of receipt it will issue either an approval notice or, where appropriate, a denial notice, a notice of intent to deny, or a request for evidence, or will open an investigation for fraud or misrepresentation. The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8b3dcb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3f4ecb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD Information on how to use premium processing service is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD. Back to Top 8. Tata America’s Foreign Workers in U.S. Win Right To Court Hearing The U.S. Court of Appeals for the Ninth Circuit has denied Tata America International Corp.’s attempt to compel arbitration in Mumbai, India, and dismiss a class action by Tata’s noncitizen U.S. employees, who had been required to sign over their federal and state tax refund checks to Tata. The suit, Vedachalan v. Tata America International Corp., included a proposed class of thousands of current and former noncitizen U.S. employees of Tata working in the U.S. According to plaintiffs’ representative Lieff Cabraser Heimann & Bernstein, LLP, the complaint claims that Tata has paid its employees less than promised; has failed to pay its employees overtime pay and has misclassified them as exempt from overtime; and has failed to compensate employees for earned but unused vacation pay. The complaint alleges further that Tata required its noncitizen U.S. employees to sign power of attorney agreements delegating an outside agency to calculate and submit each employee’s tax return to state and federal authorities. Tata then required its noncitizen employees who received tax refunds from state and federal tax authorities to endorse the tax refund checks and send them to Tata. A press release announcing the ruling is available at http://www.lieffcabraser.com/press_releases/20090731-lawsuit-against-tata.htm, and the decision is available at http://www.lieffcabraser.com/pdf/20090730-tata-order.pdf. Additional information on the lawsuit and related links are available at http://www.lieffcabraser.com/lawsuitagainsttata.htm. Back to Top 9. Recent News from ABIL Members Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) has added a new posting, “H-1B Investigations – USCIS Run Amok!” to his blog. The posting discusses a new benefit fraud assessment program run by U.S. Citizenship and Immigration Services, in which a private contractor is sending investigators to conduct thousands of site visits to H-1B employers to verify H-1B positions. Mr. Kuck asks: “[W]hy is USCIS spending money on a program ‘looking’ for problems when they would be better off using their resources to solve the problems they already have as an agency and better manage the extant operations that need to run more effectively?” The posting is available at http://www.immigration.net/blog/. Laura Danielson (bio: https://www.abil.com/lawyers/lawyers-danielson.cfm) was quoted in the Bureau of National Affairs’ Workplace Immigration Report’s August 10, 2009, issue regarding how employers should respond to an increase in I-9 audits. For most employers, she said the E-Verify program has “such strenuous requirements” that it is hard to see “how the benefits outweigh the disadvantages.” The article is available at http://www.fredlaw.com/bios/attorneys/danielsonlaura/BNAWorkplaceArticle.pdf. John Nahajzer (bio: https://www.abil.com/lawyers/lawyers-nahajzer.cfm) will be a presenter for a Business & Legal Reports 90-minute teleconference on the E-Verify program on August 27, 2009. For more information, see http://www.blr.com/product.cfm?product=30566200. Stephen Yale-Loehr (bio: ) was quoted in Inc. magazine’s Web site in an article about EB-5 visas and start-ups turning to foreign investors seeking U.S. citizenship. “Congress thinks it’s a good program because it’s what I call a win-win-win-win,” he said, but noted that “[i]t’s not for everyone.” The article is available at http://www.inc.com/news/articles/2009/08/capital.html. Mr. Yale-Loehr also recently authored “USCIS Clarifies Key Aspects of EB-5 Program,” discussing two USCIS memoranda and related issues, and providing practice pointers. The article is available at https://www.abil.com/articles/USCIS%20Clarifies%20Key%20Aspects%20of%20EB-5%20Program%20(Yale-Loehr).pdf. Back to Top 10. Government Agency Links Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers: USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html Back to Top https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2009-08-15 00:00:222019-09-17 19:16:51News from the Alliance of Business Immigration Lawyers Vol. 5, No. 8B • August 15, 2009 News from the Alliance of Business Immigration Lawyers Vol. 5, No. 8A • August 01, 2009 August 01, 2009 /in Immigration Insider /by ABIL Headlines: 1. USCIS Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied – Employers whose petitions were denied on certain bases should send an e-mail to the USCIS Service Center that issued the denial to request review. 2. DHS Secretary Announces Support for Federal Contractor E-Verify Rule, Intention to Rescind No-Match Rule – Janet Napolitano announced the Obama administration’s support for the delayed E-Verify regulation, and the DHS’s intention to rescind the Social Security No-Match Rule. 3. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations – 652 businesses around the country will be audited to determine their compliance. 4. Court Remands Case Denying Visa to Muslim Scholar – The court remanded the case to the district court for further proceedings. 5. Ninth Circuit Finds Sponsor Did Not Qualify Because Not Domiciled in U.S. – The sponsor/husband had resided in Japan for three years, owned no property in the U.S., and had a personal bank account in Japan. 6. Use of Covert Tactics Ethical in Unauthorized Practice of Law Investigations, Virginia UPL Committee Finds – It is ethical for staff counsel of the Virginia State Bar to direct a bar investigator, or other outside investigator or volunteer, to engage in covert techniques in any UPL investigation in which no other reasonable alternative is available. 7. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage – The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings. 8. ABIL Global: Canadian Immigration Law Update: – During the past year, Citizenship and Immigration Canada (CIC) has made significant changes to the Federal Skilled Worker application process. 9. Publications and Items of Interest – Publications and Items of Interest 10. Recent News from ABIL Members – Recent News from ABIL Members 11. Government Agency Links – Government Agency Links Details: 1. USCIS Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied U.S. Citizenship and Immigration Services (USCIS) issued guidance on July 17, 2009, to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation before May 20, 2009. If the I-129 was denied solely on the basis that the beneficiary did not possess a master’s or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009, memorandum on “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (see http://www.uscis.gov/files/nativedocuments/health_care_occupations_20may09.pdf). That memo provides clarification on the standards for H-1B health care specialty occupations. USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative. Employers whose I-129 petitions were denied on the above basis should send an e-mail to the USCIS Service Center that issued the denial to request review. An affirmative request for review from the petitioner or its representative is required to expedite this process, USCIS said. The agency said that it is providing a “special accommodation to the public” by initiating Service Motions to Reopen (upon receiving an e-mail request) in lieu of requiring petitioners to file an appeal. USCIS is not requiring petitioners to submit an appeal fee or any other fee in this instance. Requests should include “PT/OT Service Motion Request” in the subject line of the e-mail, and will be accepted through August 14, 2009. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be e-mailed to: csc-ncsc-followup@dhs.gov. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be e-mailed to: vsc.ncscfollowup@dhs.gov. Affected petitioners requesting USCIS review of their H-1B petitions are not required to submit a copy of the May 20, 2009, memorandum, but should explain how the beneficiary meets the standards set forth in that memorandum. Also, as with the reopening on a Service Motion, USCIS must be satisfied before approval that the beneficiary is currently eligible to practice in his or her respective health care occupation in the state of intended employment. USCIS advises petitioners to document this evidence. In any case where USCIS cannot make a final decision on the record before it, USCIS may request additional information. If the petition was denied upon additional grounds, or if the petitioner fails to submit requested evidence of the beneficiary’s continuing eligibility, the original denial of the case will be affirmed. The USCIS memo is available at http://www.uscis.gov/files/article/h-1b_health_care_professionals_17jul09.pdf. Back to Top 2. DHS Secretary Announces Support for Federal Contractor E-Verify Rule, Intention to Rescind No-Match Rule On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Obama administration’s support for a delayed regulation that will award federal contracts only to employers who use E-Verify to check employees’ work authorization. Secretary Napolitano also announced the Department’s intention to rescind a Social Security “No-Match” rule in favor of the E-Verify system. Following the previous announcement of the delay in the effective date of the new E-Verify rule until September 8, 2009, U.S. Citizenship and Immigration Services (USCIS) instructed federal contractors not to use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the Federal Acquisition Regulation’s E-Verify clause. The new final E-Verify rule will require federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S. A DHS press release said the Obama administration intends to “push ahead” with full implementation of the rule, which will apply to federal solicitations and contract awards government-wide starting on September 8, 2009. The DHS also will propose a new regulation rescinding the 2007 No-Match rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive Social Security no-match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records, often due to typographical errors or unreported name changes. The DHS said that E-Verify “addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.” The press release is available at http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm. Back to Top 3. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations It seems there is a hole in Krispy Kreme’s immigration compliance doughnut. On July 7, 2009, U.S. Immigration and Customs Enforcement (ICE) and the Butler County, Ohio, Sheriff’s Office announced a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for violations of immigration laws. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Butler County Sheriff’s Office that the company had employed dozens of undocumented workers at one of Krispy’s doughnut factories in Cincinnati. In other news, ICE recently found that nearly a third of 6,000 American Apparel workers may lack work authorization. Dov Charney, CEO of American Apparel, said, “Many of these employees, some of whom have worked at American Apparel for as long as a decade, have been responsible, hard-working employees who have made significant contributions to the Company’s growth and success. As a company that prides itself on being one of the last major apparel manufacturers still making clothing in the United States, at a ‘sweatshop free’ factory where we pay our garment workers some of the highest wages in the industry, it is the company’s hope–and my personal hope as an immigrant myself–that these employees are able to confirm their work authorization so that they may continue to work at American Apparel. The company remains very proud of its track record as an advocate for the comprehensive reform of the country’s immigration laws.” ICE has also announced that as part of a new auditing initiative, 652 businesses around the country will be audited to determine their levels of I-9 compliance. More information on the American Apparel case is available at http://investors.americanapparel.net/releasedetail.cfm?ReleaseID=393357. The ICE notice is available at http://www.ice.gov/pi/nr/0907/090707cincinnati.htm. Back to Top 4. Court Remands Case Denying Visa to Muslim Scholar Tariq Ramadan is a Swiss-born Islamic scholar whose work focuses on the integration of Muslim beliefs with Western European culture and society. Before August 2004, he traveled regularly to the U.S., giving lectures at institutions such as Harvard and Princeton and to the Department of State, and attending meetings and conferences. As a Swiss citizen, Ramadan was eligible to participate in the Visa Waiver Program (VWP). Thus, Ramadan did not need to apply for a visa to enter the U.S. for these short engagements. In January 2004, Ramadan accepted a tenured teaching position at the University of Notre Dame. Notre Dame submitted an H-1B visa petition on Ramadan’s behalf, which was approved in May 2004. Ramadan made arrangements for the move, scheduled for early August 2004. On July 28, 2004, however, the U.S. Embassy in Bern revoked his visa approval without an explanation. In response to press inquiries, a Department of Homeland Security (DHS) spokesperson stated that the basis for the revocation was a provision of the Immigration and Nationality Act (INA) that then permitted exclusion of prominent individuals who endorse or espouse terrorist activity. The Government later denied that this “endorse or espouse” provision provided the grounds for the revocation. The consulate advised Ramadan that he could re-apply for a visa. Notre Dame accordingly filed a second H-1B visa petition on October 4, 2004. By December 13, 2004, the DHS had not yet acted on the second petition, and on that date Ramadan resigned from the position at Notre Dame. On December 21, 2004, having been informed about the resignation, the DHS revoked the renewed H-1B petition. After this revocation, Ramadan could no longer take advantage of the VWP that had authorized his previous temporary entries. On September 16, 2005, Ramadan applied for a B visa to enter the U.S. for a short period of time to attend conferences. According to Ramadan, he was interviewed by consular and DHS officials at the U.S. Embassy in Bern, Switzerland, in 2005. He was questioned about his political views and associations. Ramadan informed officials that, between 1998 and 2002, he had donated approximately $1,336 to the Association de Secours Palestinien (ASP), which was designated by the U.S. Treasury Department as a terrorist organization due to its funding of Hamas. Ramadan received a telephone call on September 19, 2006, and a letter shortly thereafter, informing him that the consulate had denied his petition because he had provided material support to a terrorist organization. Consular officials based this decision on a security advisory opinion, Ramadan’s interviews, and “additional information provided by Washington.” On January 25, 2006, plaintiffs filed suit in the District Court challenging Ramadan’s ongoing exclusion from the U.S. The three plaintiff organizations (the American Academy of Religion, the American Association of University Professors, and the PEN American Center) appealed the denial of a visa to Ramadan on the grounds that it violated their First Amendment right to have Ramadan share his views with the organizations and with the public. The U.S. government contended that the visa was properly rejected on the ground that Mr. Ramadan’s contributions to the ASP, which provided some financial support to Hamas, rendered him inadmissible. The government prevailed, and the plaintiffs filed an appeal with the U.S. Court of Appeals for the Second Circuit. On July 17, 2009, the court of appeals remanded the case to the district court for further proceedings. Among other things, the Second Circuit concluded that the record did not establish that the consular officer who denied the visa confronted Ramadan with the allegation that he had knowingly rendered material support to a terrorist organization, thereby precluding an adequate opportunity for Ramadan to attempt to satisfy the statutory provision that exempts a visa applicant from exclusion under the “material support” subsection if he “can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.” The opinion is available at http://www.aclu.org/pdfs/safefree/americanacademyofreligion_secondcircuitruling.pdf. Back to Top 5. Ninth Circuit Finds Sponsor Did Not Qualify Because Not Domiciled in U.S. In an opinion on July 9, 2009, the U.S. Court of Appeals for the Ninth Circuit found that substantial evidence supported the Board of Immigration Appeals’ determination that a South Korean’s U.S. sponsor (and husband) did not qualify as a sponsor because he was not domiciled in the U.S. At the time of the adjustment of status hearing in 2001, the sponsor/husband had resided in Japan for three years, owned no property in the U.S., and had a personal bank account in Japan. He visited his wife in Hawaii three times in three years: once for a week, the second time for three to four days, and the last time to testify before the immigration judge. He stated that his long-term plan was to return to Hawaii and open a business, but he could not identify the specific date of his return. The opinion is available at http://www.metnews.com/sos.cgi?0709%2F07-74420. Back to Top 6. Use of Covert Tactics Ethical in Unauthorized Practice of Law Investigations, Virginia UPL Committee Finds The Virginia State Bar’s Unauthorized Practice of Law (UPL) Committee recently found that it is ethical for staff counsel of the Virginia State Bar to direct a bar investigator or other outside investigator or volunteer to engage in covert techniques in the investigation of the unauthorized practice of law in any case in which no other reasonable alternative is available. The Committee noted that law enforcement authorities, including government lawyers, are authorized to conduct or supervise undercover operations using deception to gather information about criminal conduct. The Committee’s opinion is that lawyers involved in or supervising undercover activity in such cases are not acting unethically despite the general prohibition against conduct involving fraud, dishonesty, deceit, or misrepresentation reflecting adversely on the lawyer’s fitness to practice law. The Committee has also stated that although undercover investigations involve some elements of misrepresentation and deceit, the conduct does not reflect adversely on the fitness or character of the lawyer directing or supervising a lawful criminal investigation. The Supreme Court of Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement” exception. This exception includes civil investigations using “testors” conducted under the supervision of government lawyers charged with investigation and prosecuting cases of housing discrimination. The Committee said it sees no principled distinction between these types of investigations, in which undercover operations have been approved, and a UPL investigation in which lawyers and agents of a governmental agency are charged by law with the investigation of conduct that is criminal or illegal. The Committee’s opinion is available at http://www.vacle.org/opinions/1845.htm. Back to Top 7. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage Donald Neufeld, U.S. Citizenship and Immigration Services Acting Associate Director, sent a memo to the field on I-751s filed before the termination of a marriage. The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings, but the marriage has not been terminated. The memo is available at http://www.uscis.gov/files/nativedocuments/i-751_Filed_%20Prior_Termination_3apr09.pdf. Back to Top 8. ABIL Global: Canadian Immigration Law Update: During the past year, Citizenship and Immigration Canada (CIC) has made significant changes to the Federal Skilled Worker application process, including the eligibility criteria. Most notably, CIC dramatically restricted the number of occupations under which skilled workers may be eligible to apply for Canadian permanent residence from hundreds of occupations to a meager 38, listed at http://www.cic.gc.ca/english/immigrate/skilled/apply-who-instructions.asp. CIC also introduced a new inland skilled worker permanent residence application category designed to facilitate and permanently integrate workers already in Canada. This inland permanent residence application process applies to students and workers who have obtained experience in Canada in occupations that require college education, apprenticeship training, a university education, or management experience. CIC has recognized that integration is an important aspect of the skilled worker program. To facilitate immigrant integration, CIC’s new criteria emphasizes language proficiency (in English or French) and occupations in demand, either because they are set out in the list noted above or because the foreign worker has gained the requisite minimum experience in Canada. The various Federal and Inland Skilled Workers Application changes reflect CIC’s position that a foreign national’s integration into Canada is best achieved through employment. Although this position has not translated to date into the facilitation of work permits for foreign nationals outside of Canada, it has resulted in a few new work permit policies that also are noteworthy: (1) work permits for spouses of foreign workers within a higher skill level range, (2) work permits for spouses of full-time students in Canada, (3) longer post-graduate work permits, and (4) work permits for working-age dependent children of workers destined for certain provinces. Notwithstanding the occupational restrictions set out above, Canada remains a good immigration alternative to the U.S. for foreign nationals seeking permanent immigration status. Foreign nationals employed in one of the 38 occupations listed above with proficiency in English or French may have a good likelihood of immigrating to Canada, even if they no longer have legal status in the U.S. Likewise, foreign nationals, with skilled job offers in Canada and language proficiency, may qualify for immigration regardless of whether their occupation is one of the listed 38 occupations. Back to Top 9. Publications and Items of Interest The Migration Policy Institute has released “Aligning Temporary Immigration Visas With U.S. Labor Market Needs: The Case for Provisional Visas,” by Demetrios G. Papademetriou, Doris Meissner, Marc R. Rosenblum, and Madeleine Sumption; and “The Next Generation of E-Verify: Getting Employment Verification Right,” by Doris Meissner and Marc R. Rosenblum. Links to the reports are available at http://www.migrationpolicy.org/pubs/. The Small Business Administration has released a research summary, “High-Tech Immigrant Entrepreneurship in the United States,” by the Corporate Research Board. The report quantifies the role of immigrants in high-tech entrepreneurship using the High-Impact, High-Tech Company Survey database. The authors also examine U.S. immigration policies and processes (especially the H-1B visa) relevant to high-tech immigrant entrepreneurship. The report is available at http://www.sba.gov/advo/research/rs349.pdf. The House Subcommittee on Government Management, Organization, and Procurement held a hearing on July 23, 2009, “E-Verify: Challenges and Opportunities. Links to the testimony are available at http://governmentmanagement.oversight.house.gov/story.asp?ID=2552. The Council on Foreign Relations has released “U.S. Immigration Policy.” The 168-page report argues that “the continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America’s economy, to jeopardize its diplomacy, and to imperil its national security.” A link to the report in PDF format is available at http://www.cfr.org/publication/19556/. Back to Top 10. Recent News from ABIL Members Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) testified on July 22, 2009, at an EB-5 immigrant investor oversight hearing before the Senate Judiciary Committee on the job creation and economic development potential of the EB-5 immigrant investor program. He noted that, if fully utilized, the EB-5 immigrant investor program could create over 100,000 new jobs for U.S. workers and $5 billion in new investments annually. His testimony is available at http://www.judiciary.senate.gov/hearings/testimony.cfm?id=3998&wit_id=8138 Mr. Yale-Loehr also was interviewed about the EB-5 program by WNYC, the public radio station in New York City, on July 23, 2009. To hear the interview, go to http://www.wnyc.org/news/articles/137276. Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published “Anti-Immigration Crazies Are No Laughing Matter,” available on his blog at http://www.nationofimmigrators.com/. In another blog posting, Mr. Paparelli asks, “Why the rush to put the immigration squeeze on now? Is this a cynical and heartless ploy to appease and co-opt the xenophobes in advance of the push this fall for comprehensive immigration reform?” For more, see http://www.nationofimmigrators.com/?p=258>http://www.nationofimmigrators.com/?p=258. H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) recently spoke at the Annual Conference of the American Immigration Lawyers Association (AILA). The speech, “High Rollers: EB-5 Investors,” was designed to educate U.S. immigration lawyers about the different ways foreigners can apply for this visa program, either via investing in government-designated Regional Centers or going a different route. In either case, the program is designed so that wealthy foreigners invest a substantial amount of funds in the U.S. in return for getting favored immigration status. Back to Top 11. Government Agency Links Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers: USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html Back to Top https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2009-08-01 00:00:172019-09-17 19:20:55News from the Alliance of Business Immigration Lawyers Vol. 5, No. 8A • August 01, 2009 Archive July 2020 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 January 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 December 2008 November 2008 October 2008 September 2008 August 2008 July 2008 June 2008 May 2008 April 2008 March 2008 February 2008 January 2008 December 2007 November 2007 October 2007 September 2007 August 2007 July 2007 June 2007 May 2007 April 2007 March 2007 February 2007 January 2007 December 2006 November 2006 October 2006 September 2006 August 2006 July 2006 June 2006 May 2006 April 2006 ABIL is a corporation with over 40 top-rated immigration law firms and 1,500+ professionals. News BRAZIL: Accepting Work Authorization Applications Thorugh New Digital Certificate System News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9D • September 22, 2019 News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9C • September 15, 2019 News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9B • September 08, 2019 Sign Up for our Newsletters Sign up for our Immigration Insider & Global Updates Newsletters Email (required) * Select list(s) to subscribe to ABIL Global Updates (bi-monthly) ABIL Immigration Insider (semi-monthly) Example: Yes, I would like to receive emails from ABIL. (You can unsubscribe anytime) Constant Contact Use. Please leave this field blank. By submitting this form, you are consenting to receive marketing emails from: Alliance of Business Immigration Lawyers, 11 Dupont Circle, N.W., Washington, DC, 20036, https://www.abil.com. 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