Bender's Immigration Bulletin: Edited News Excerpts For Oct. 1, 2011

Clarification

Katherine Brady, Update on INA § 212(h) Defense Strategies, 16 Bender's Immigr. Bull. 1497 (Sept. 15, 2011)

On page 1511, Part E (sentence following footnote 88), the article states that for persons subject to the seven-year requirement under the LPR bar, the seven-year period "does not start until the person has obtained permanent residence or some other potentially permanent status ... ." Ms. Brady clarifies that, in fact, counsel can argue that any continuous period of lawful presence should be accepted, including not only Family Unity, asylee, or refugee status but also a period granted pursuant to a visitor's visa. The period does not include time spent as an applicant for adjustment of status or asylum. See Matter of Rotimi, 24 I. & N. Dec. 567, 569 (BIA 2008).

DV 2013 Opens October 4

The online registration period for the 2013 Diversity Visa Program (DV-2013) begins Tuesday, October 4, 2011, at noon (Eastern Daylight Time) and concludes Saturday, November 5, 2011, at noon (EDT). Instructions and requirements for registrants may be found at http://travel.state.gov/ > Visas > Visa Types for Immigrants > Diversity Visa Program.

All Employment-Based Immigrant Visas Distributed for FY 2011

In response to an urgent communiqué from the Department of State on September 15, 2011, USCIS announced that all employment-based immigrant visas have been distributed for FY 2011. According to Department of State Visa Services, this action was precipitated by USCIS's August determination of large demand and subsequent processing. USCIS continued to accept applications for adjustment of status through September based on DOS's September Visa Bulletin. On October 3, it is anticipated that authorizations will be made covering all eligible cases entered in DOS's "Pending Demand" file between September 15 and September 30.

Numbers are available for all employment categories on October 1 for FY 2012 numerical allocation.

EB-5 Update

On September 13, USCIS's Office of Public Engagement notified stakeholders that USCIS was implementing the first phase of enhancements that were proposed by the agency on May 19, 2011. See 16 Bender's Immigration Bulletin 913, 953 (Appendix A). Effective immediately, Form I-924 applicants are able to communicate directly with USCIS adjudicators via e-mail. The e-mail address is provided in a Q & A that is reprinted infra as Appendix A. In the quarterly stakeholder meeting on September 15, Director Mayorkas indicated that the usage of the EB-5 visa had doubled in 2011 over 2010 (3,706 v. 1885). In addition, he presented common issues resulting in Requests for Evidence (RFE) or denials for I-924 applications. The list includes:

1. Form I-924, Part 7, Business Plan and Economic Analysis for Each Requested Industry Category: The application is either unsupported by a business plan and economic analysis for at least one investment project with sufficient and verifiable detail as to how capital investment offerings in the requested industry will create jobs; or there is insufficient evidence and/or narrative that the regional center investment project activities include the proposed number of investors, the timeline for starting and completing in the project, and/or a financial plan or budget that includes the capital required and expenditures for the project.

2. Form I-924, Part 7, Reliability and Appropriateness of Data Sources for Economic Model Inputs: The application references a data source based on a national or state economic model where more accurate data is available at the regional level or the data source does not provide economic or business activity estimates for the investment project.

3. Form I-924, Part 7, Choosing and Identifying Appropriate NAIC Codes: NAIC Codes should be appropriate for the requested industry and should not be unduly broad nor overly narrow. An overbroad NAIC Code may not be representative of the industry: An overly narrow NAIC code may be too restrictive for the scope of the contemplated investment project.

In addition, Exemplar Form I-526 submissions should be documented with detailed evidence so that the exemplar petition if approved will facilitate the review of individual Form I-526 petitions (Form I-924 instructions, page 1). The Exemplar Form I-526 petition should include: a business plan compliant with Matter of Ho, 22 I. & N. Dec. 206 (Assoc. Comm'r, Exam. 1998), and an associated economic analysis; project milestone timeframes, such as project commencement, key construction or implementation dates, completion date, and a time line for the requisite job creation; a clear request for approval of the Exemplar I-526 as well as a copy of the exemplar and all documents needed for I-526 approval (excluding the investor's capital investment information); and the amount and source of non-EB-5 financing needed for the project.

Please refer to the Agenda at http//:www.uscis.gov > Outreach >Notes from Previous Engagements > EB-5 Quarterly Stakeholder Meeting.

Suit Enjoining H-2B Wage Methodology Filed

On September 7, a lawsuit was filed in the Western District of Louisiana seeking declaratory relief and a preliminary injunction against the Departments of Labor and Homeland Security to prevent the new wage methodology from going to effect on September 30, 2011. The final rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, was published at 76 Fed. Reg. 45,667 (Aug. 1, 2011). See Louisiana Forestry Ass'n, Inc. v. Solis, 11-cv-01623-DDD-JDK.

Plaintiffs allege that the increased wages resulting from the 2011 wage methodology will have dramatic and adverse effects on their existing contracts and businesses and that the wage methodology promulgation was in contravention of the Administrative Procedure Act (5 U.S.C. § 701 et seq.), the Regulatory Flexibility Act (5 U.S.C. § 601 et seq.); the Immigration and Nationality Act of 1952 (INA, as amended, 8 U.S.C. § 1101 et seq.), and the Takings Clause of the Fifth Amendment. They seek to return to the wage methodology in effect in 2008. 

CNMI Transitional Worker Final Rule Published

USCIS published a thirty-eight-page final rule at 76 Fed. Reg. 55,502 (Sept. 7, 2011) establishing a Transitional Worker (CW) classification for workers in the Commonwealth of the Northern Mariana Islands. The CW classification allows employers in the CNMI to hire nonimmigrant workers who are otherwise ineligible to work.

A foreign worker may be eligible for CW status if he or she is:

  • ineligible for a nonimmigrant or immigrant classification under the Immigration and Nationality Act;
  • entering or staying in the CNMI to work as a needed foreign national worker to supplement the resident workforce;
  • the beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;
  • not present in the United States, other than the CNMI;
  • lawfully present in the CNMI or, if not present, intending to enter the CNMI with a visa; and
  • admissible to the United States or granted any necessary waiver of a ground of inadmissibility.

An employer may be eligible to petition for a CW worker if the employer:

  • is conducting a legitimate business, as defined in the final rule;
  • has considered all available U.S. workers for the position;
  • offers terms and conditions of employment consistent with the nature of the employer's business in the CNMI;
  • is complying with federal and CNMI employment requirements;
  • files a Form I-129CW, Petition for CNMI-Only Nonimmigrant Transitional Worker, and a CW-1 Classification Supplement with USCIS; and
  • submits the appropriate filing fees.

In most cases, employers may file for multiple beneficiaries on the same form. The filing fees needed to obtain CW status include:

  • A $325 fee for the Form I-129CW;
  • A mandatory CNMI education funding fee of $150 per beneficiary per year; and
  • A biometric fee of $85 if the worker is located in the CNMI.

A limited number of CW visas are available each fiscal year based on the CNMI government's estimate of nonresident workers. The numerical limitation for fiscal year 2011 is 22,417. For fiscal year 2012, it will be 22, 416. The final rule mandates that the limitation drop annually and that DHS determine the fiscal-year limitation for CW workers for subsequent years beginning in fiscal year 2013.

The CW visa classification is valid only in the CNMI and provides no basis for travel or work in any other part of the United States, except for nationals of the Philippines who may travel between the Philippines and the CNMI through the Guam airport. The final rule also provides for the grant of derivative CW status to spouses and minor children of CW workers.

A "Question and Answers" posted by USCIS is reprinted as Appendix B.

Study in the States

 DHS announced the launch of "Study in the States," a new initiative with its own website, http://studyinthestates.dhs.gov/, on September 16, 2011. The purpose of this initiative is to examine regulatory changes, expand public engagement between the government and academia, and provide a central information hub for DHS and its agency partners to provide up-to-date and relevant visa requirements in a streamlined format. A variety of social media tools will be employed: interactive, accessible information allowing visual navigation of the student visa process; links to social media websites where relevant visa requirements will be disseminated to international students, exchange visitors, and the academic community; and a blog with videos, public service announcements, relevant news, requirements, and helpful tips.

EOIR Disciplines Two Attorneys, Reinstates One

The Executive Office for Immigration Review recently took disciplinary action against two attorneys for violations of the rules of professional conduct for immigration practitioners. Gregory Wayne LePage was immediately suspended based on his resignation from the practice of law in Texas. Donovan E. Thomas was immediately suspended based on his disbarment in Maryland. Yan Wang was reinstated after she completed her six-month suspension.

U.S. Consulate Mumbai Resumes Interviews

On September 6, the U.S. Consulate General Mumbai announced the resumption of interviews in Mumbai for H and L visas. The Consulate building's aging infrastructure had forced the closure of several of the interview windows in Mumbai, limiting the number of applicants that could be accommodated since March 2011. For further information on H and L visa processing in Mumbai, go to http://mumbai .usconsulate.gov/interviews-and-appointments.html.

U.S. Embassies in Copenhagen and Oslo No Longer Handle Immigrant Visas

Effective October 1, 2011, U.S. Embassies Copenhagen and Oslo will no longer process immigrant visa (IV) including diversity visa (DV) applications. No such interviews will be scheduled or conducted after October 1. As of that date, the interviews and adjudications for residents of Denmark, Norway, and Sweden will take place at the U.S. Embassy in Stockholm, Sweden. The Embassies will continue to process all cases currently underway until December 31, after which all pending such cases will be transferred to Stockholm. Embassies Copenhagen and Oslo will continue to process all nonimmigrant visa applications. For further information and answers to frequently asked questions, go to http://norway.usembassy.gov/interview_se.html.

USCIS Engagement Session on TPS

On September 8, USCIS Office of Policy and Strategy and the Office of Public Engagement held an engagement to discuss the employment authorization of Temporary Protected Status beneficiaries and applicants. TPS beneficiaries are authorized to work based on their status. TPS applicants who are found to be prima facie eligible for TPS may also receive employment authorization, as a "temporary treatment benefit" while their TPS applications remain pending. USCIS is considering a regulatory change that would terminate TPS beneficiaries' employment authorization if TPS is withdrawn or denied, rather than allow it to exist until the expiration of their EADs.

Social Security Administration Changes Social Security Number Issuance

The Social Security Administration has changed the way Social Security Numbers are issued. Since its inception in 1936, the nine-digit SSN has comprised the three-digit area number (reflecting the state of the individual's birth), followed by the two-digit group number, and ending with the four-digit serial number. This methodology has limited the number of SSNs available for issuance to individuals by each state. The change, referred to as "randomization:"

  • eliminates the geographical significance of the first three digits by no longer allocating the area numbers for assignment to individuals in specific states;
  • eliminates the significance of the highest group number; as a result, the High Group List will be frozen in time and can be used for validation of SSNs issued prior to the randomization implementation date; and
  • introduces previously unassigned area numbers for assignment, excluding area numbers 000, 666, and 900-999.

SSA began the new assignment methodology on June 25, 2011. Further information about randomization is available at http://ssa.gov/employer/randomization.html.

[This is an excerpt from the Oct. 1, 2011, issue of Bender's Immigration Bulletin.] 

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