Bender’s Immigration Bulletin – April 1, 2011

Bender’s Immigration Bulletin – April 1, 2011


Humanitarian Relief Efforts: Japanese Nationals

On March 17, 2011, USCIS issued a press release reminding Japanese nationals affected by the disastrous event of March 2011 of immigration benefits available upon request. Temporary relief measures include:

  The grant of an application for change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;

  Re-parole of individuals granted parole by USCIS;

  Extension of certain grants of advance parole, and expedited processing of advance parole requests;

  Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;

  Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);

  Expedited employment authorization where appropriate; and

  Assistance to LPRs stranded overseas without immigration documents such as green cards [USCIS and the DOS will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office].

Visitors traveling under the Visa Waiver Program may visit a local USCIS office for assistance. Japanese nationals who are at a U.S. airport may contact the U.S. Customs and Border Protection office there. For more information on USCIS humanitarian programs, visit U.S. Citizenship and Immigration Services or call the National Customer Service Center at 1-800-375-5283.

Unexpected Urgent Refugee and Migration Needs Related to Libya and Côte d’Ivoire

In two memoranda, issued on March 7 to the Secretary of State, President Obama declared his determination that it is in the national interest to provide assistance pursuant to the Migration and Refugee Assistance Act of 1962, as amended, 22 U.S.C. §2601, in amounts not to exceed $15 million (Libya) and $12.6 million (Côte d’Ivoire), made available from the United States Emergency Refugee and Migration Assistance Fund, in order to meet the unexpected and urgent refugee and migration needs of these countries. Use of the funds includes contributions to international, governmental, and nongovernmental organizations and payment of administrative expenses of the Bureau of Population, Refugees, and Migration of the Department of State. Presidential Determination No. 2011–8 of March 7, 2011 (Libya) and Presidential Determination No. 2011–7 of March 7, 2011 (Côte d’Ivoire) will be published in the Federal Register at some future date.

H-1B Cap Exemptions: Non Profits Related to, or Affiliated with, Institutions of Higher Education 

University Campus Building

On March 18, 2011, USCIS announced that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with institutions of higher education. Effective immediately and until further guidance is issued, USCIS will be applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

During this interim period USCIS will give deference to prior determinations made after June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education and, therefore, exempt from the H-1B statutory cap. The burden remains on the petitioner to show that its organization previously received approvals of its request for exemption. Note too that significant changes in circumstances or clear error in the prior adjudication will obviate deference to the prior determination.

Petitioners may satisfy the burden of showing prior approval by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. In addition, it is suggested that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006. Evidence of previous determinations of cap exemption will be considered on a case by case basis only when submitted with a Form I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. Petitioners are accordingly advised not to send separate correspondence containing their cap-exemption evidence to USCIS on this issue.

These measures will remain in place on an interim basis as USCIS engages the public with regard to forthcoming guidance.

DOL Proposes New H-2B Regulations

In a Notice of Proposed Rule Making (NPRM) at 76 Fed. Reg. 15130 (Mar. 18, 2011), the Department of Labor has proposed changes to the H-2B program designed to address past abuses, noncompliance and criminal activity. The proposed changes concern the process by which employers obtain temporary labor certifications from DOL, provide for increased protections for both U.S. and foreign workers, and enhance enforcement. The Department has solicited comments on the proposed rule that may be submitted on or before May 17, 2011. The Summary of the proposed rule appears in the Government Documents section of this issue of Bender’s Immigration Bulletin.

DOL has proposed that the current application process be bifurcated into a registration phase, addressing the employer’s temporary need, and an application phase, addressing the labor market test. This bifurcated process will enable the Department to prevent employers without a legitimate temporary need from even filing an application. The current process where the adjudication of temporary need is concurrent with the evaluation of the labor market test often results in delays in processing employer applications for H–2B labor certifications. DOL believes that bifurcating this process will:

  facilitate the timely processing of applications; and

  allow employers to conduct the labor market test closer to the date of need without the simultaneous adjudication of temporary need.

Because registration may be valid for up to three years, employers will be able to commence the process at the second phase without having to reestablish temporary need for the second and third years of registration, absent significant change in conditions, saving employer and public resources from re-adjudication of an obvious legitimate need. Additionally, removing employers without demonstrable temporary need from the application process further enables the Department and State Wage Authorities to focus their resources on administering in a timely manner the labor market test. A registration process enables DOL to provide better service to employers with legitimate temporary need, as well as the public by being able to focus on ensuring that U.S. workers are afforded full access to these job opportunities.

DOL anticipates that the return to the certification model, used in the H-2B program from its inception until January 2009, and recently re-introduced into the H–2A program, will create no significant additional burdens on employers: There are changes neither to the obligations with which employers must comply nor to the documentation that employers must maintain. The changes reflect an adjustment to the timing and circumstances under which the evidence of compliance must be produced for review. The agency anticipates these changes will enhance overall program integrity.

DOL prefers a compliance-demonstration model. However, it has proposed for dual consideration an alternative that retains the current attestation-based application system. DOL wishes to receive comments on the alternative of maintaining the current or some modification of the current attestation-based program design and on whether it should develop certain attestations that can be required of all employers (e.g., an attestation for certain kinds of recruitment), or for only certain program compliance requirements. DOL would like comments to specifically address:

  The guidance DOL could provide that would benefit a first-time or sporadic employer  to avoid mistakes in making attestations of compliance with program obligations;

  The guidance that would benefit frequent users of the program with respect to repeated errors in recruitment;

  The guidance that would benefit frequent users with regard to their unique situations;

  Whether pre-certification audits could augment post-certification audits in an attestation-based program model or the manner in which DOL could obtain information in the absence of supervised activity in order to arrive at certification while ensuring compliance with program obligations;

  Additional sanctions against employers that would ensure compliance with program requirements, given the potential for fraud in the H– 2B program; and

  The other kinds of actions DOL could take to prevent an H–2B employer from filing attestations that do not meet program requirements.

In addition, the NPRM includes the proposal of new Part 503 to title 29, Code of Federal Regulations, setting forth the Wage and Hour Division’s investigative and enforcement roles.

Interim EADs Issued to Salvadorans

USCIS issued some existing Salvadoran Temporary Protected Status beneficiaries with interim Employment Authorization Documents while continuing to process their re-registration applications. USCIS mailed approximately 4,500 EADs, delivered around March 9, to Salvadorans who had not yet received final action on their re-registration applications.

The original expiration date for Salvadoran EADs was September 9, 2010. USCIS automatically extended the validity period to March 9, 2011.

USCIS has processed over 208,000 Salvadoran re-registration applications for the current TPS extension period ending March 9, 2012.

USCIS Offers Protection for Victims of Human Trafficking

USCIS will permit victims of human trafficking and sexual exploitation and others who have filed civil actions against their employers and held A-3 or G-5 visas to remain and work legally in the United States while their civil cases are pending. This new policy is part of the Department of Homeland Security’s Blue Campaign to combat human trafficking.

In compliance with the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, USCIS will add this small population to the existing list of groups eligible for deferred action on a case-by-case basis to allow A-3 and G-5 nonimmigrants to resolve pending litigation they have filed regarding a violation of the terms of their employment contract or conditions related to human trafficking and similar violations.

To request deferred action and work authorization, an A-3 or G-5 nonimmigrant must file:

  A cover letter requesting deferred action and outlining the violation of the terms of his or her employment contract or conditions and the ongoing civil action;

  An Application for Employment Authorization, Form I-765;

  Proof of legal entry into the United States in A-3 or G-5 nonimmigrant status; and

  A copy of the civil complaint filed in court as supporting documentation.

An A-3 or G-5 nonimmigrant may request deferred action from the Vermont Service Center. If an A-3 or G-5 nonimmigrant is approved for deferred action, USCIS will adjudicate the application for employment authorization and, if it is approved, issue a one-year employment authorization document. If the individual’s civil action is still pending after a year, he or she may apply for renewal of deferred action.

USCIS Closes Vietnam Field Office

USCIS announced the permanent closure of its field office in Ho Chi Minh City, Vietnam as of March 31, 2011. Beginning March 25, applications and petitions previously accepted by the Ho Chi Minh City office may be filed with the Department of State Consular Section there. Where authorized, the Consular Section will assume responsibility for processing certain cases. It will send other applications and petitions to the USCIS Field Office in Bangkok, Thailand.

New ICE Mobile Website

ICE launched a mobile website on March 7 to improve the user experience for individuals accessing from portable, handheld devices like smartphones and tablets. Users can access the mobile site by visiting Immigration and Customs Enforcement mobile site. The mobile site includes five sections: Latest News, Law Enforcement, Detainee Location Information, Students, and Careers. The mobile website was developed based on a review of visitation statistics at

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

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