May 2010 Newsletter
The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our May 2010 newsletter covering immigration topics that are of interest to our clients.
- USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs – USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public.
- DOS Requests Comments on SEVIS – The SEVIS forms have been revised to clarify language used and remove unnecessary data collection.
- Dept. of State Discusses Visa Number Availability – The Mexico employment third and "Other Worker" categories have become "unavailable," and a cut-off date may need to be established for the employment fourth preference category as early as June.
- USCIS Redesigns Green Card – USCIS will replace green cards already in circulation as individuals apply for renewal or replacement.
- State Dept. Proposes Expanded Safety Measures for Secondary School Exchange Programs – Calling for an accelerated timetable for the proposed rule and the comment period, the Department noted that a number of recent incidents with respect to student placement and oversight demand immediate attention.
- USCIS Extends TPS Designations for Honduras, Nicaragua – The extension of the TPS designation of both countries is effective July 6, 2010, and will remain in effect through January 5, 2012; the re registration period ends on July 6, 2010.
- Can Immigration Law Be REPAIRed? Some Senators Think So – Under the Democrats' REPAIR (Real Enforcement with Practical Answers for Immigration Reform) proposal, a green card would be available immediately to foreign students with an advanced degree from a U.S. institution in a field of science, technology, engineering, or mathematics with an offer of employment from a U.S. employer in a related field.
- Government Agency Links
- New Publications and Items of Interest
- Klasko News – KRSS in the community and speaking engagements.
1. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs
U.S. Citizenship and Immigration Services (USCIS) has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS invited outside stakeholders to identify their highest priorities for the policy review through a two-week survey that ended on April 29, 2010. USCIS said it will publish a summary of the results later this spring.
Throughout the policy review, USCIS said it will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are "informed, responsive, and effective."
As part of USCIS's overall efforts to review agency policies, on April 12, 2010, USCIS Director Alejandro Mayorkas and the head of the Service Center Operations Directorate, Donald Neufeld, held a listening session for U.S. national stakeholders to review and revise the Request for Evidence (RFE) templates. This was the first time that the USCIS held a dialogue with stakeholders to obtain their feedback on how to improve the RFE process and to clarify any concerns that have arisen due to recent changes. The reviewed types included the O (extraordinary ability or expertise), P (athletes and entertainers), Q (cultural exchange), and EB-1 (first preference extraordinary ability) visa categories.
At the session, a number of people asked about a January 8, 2010, guidance memorandum by Mr. Neufeld, and expressed unease about the number of RFEs that are being issued on cases that used to be approved. Mr. Mayorkas and Mr. Neufeld replied that they will offer more opportunities for the public to understand the adjudication process while taking into account the needs of employers, attorneys, and immigrants.
Click here for a related Q&A on the USCIS agency-wide policy review.
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2. DOS Requests Comments on SEVIS
The Department of State has issued a request for comments on the recording, reporting, and data collection requirements under the Student and Exchange Visitor Information System (SEVIS). SEVIS is used to monitor foreign students and exchange students in the United States. The forms have been revised to clarify language used and remove unnecessary data collection. Comments will be accepted up to 60 days from April 22, 2010, and may be submitted by e-mail, mail, or online to the location named in the notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-9325.pdf.
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3. Dept. of State Discusses Visa Number Availability
Due to continued heavy applicant demand, primarily by U.S. Citizenship and Immigration Service offices for adjustment of status cases, the annual limits for the Mexico employment third and "Other Worker" categories have been reached. As a result, both categories have become "unavailable," the Department of State Visa Bulletin for May 2010 notes. Visa numbers will become available once again in October 2010 with the start of the new fiscal year.
The Visa Bulletin for May 2010 also notes that applicant demand for employment fourth preference numbers remains very heavy. It is likely that a cut-off date will need to be established in an effort to keep number use within the annual limits. Depending upon number use, this action could occur as early as June, the Visa Bulletin warns.
The May Visa Bulletin also notes that during the past 15 months, the demand for numbers in the family-sponsored preference categories has been very low. As a result, cut-off dates for most family preference categories have been advancing at a very rapid pace in an attempt to generate demand so that the annual numerical limits may be fully used. The Visa Office warns that if demand for family-sponsored green cards begins to materialize, cut-off date movements may begin to slow or stop.
The May Visa Bulletin includes a reminder that any changes of address for applicants processing their case overseas should be reported to the National Visa Center so that information regarding the processing of the case at an overseas post may be sent to the applicant. The May Visa Bulletin notes:
When contacting the National Visa Center (NVC) directly about an immigrant visa application case, always include the following information:
- The NVC case number
- Name of the principal applicant
- Principal applicant’s date of birth
- Name of the petitioner
- Petitioner’s date of birth
The public may submit inquiries to the NVC via e-mail at: email@example.com.
[T]o ensure a prompt response:
- Provide the relevant NVC Case Number on the subject line of the e-mail.
- Provide the applicant’s name and date of birth, and the petitioner’s name and date of birth.
- Provide the name of the law office requesting information.
- Provide the name of the employer if the petition is employment based.
- Refer to only one case per e-mail message.
Telephone operators are available to respond to inquiries Monday through Friday from 7:30 am until 12:00 am (EST). Please call (603) 334-0700
National Visa Center
31 Rochester Avenue, Suite 200
Portsmouth, NH 03801-2915
The May 2010 Visa Bulletin is available at:
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4. USCIS Redesigns Green Card
U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2010, that it has redesigned the Permanent Resident Card, commonly known as the green card, to incorporate several major new security features. The card will be colored green.
The redesigned card includes optical media to store biometrics identification data; and holographic images, laser engraved fingerprints, and high-resolution micro-images intended to make the card "nearly impossible" to reproduce. Tighter integration of the card design with personalized elements is intended to make it difficult to alter the card if stolen. Radio Frequency Identification (RFID) capability will allow Customs and Border Protection officers at ports of entry to read the card from a distance and compare it immediately to file data. A preprinted return address will enable the easy return of a lost card to USCIS.
USCIS said it will replace green cards already in circulation as individuals apply for renewal or replacement.
Click here for a related fact sheet.
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5. State Dept. Proposes Expanded Safety Measures for Secondary School Exchange Programs
The Department of State (DOS) has proposed new program administration requirements for the secondary school student exchange program. The proposed regulations govern DOS-designated exchange visitor programs under which foreign secondary school students (ages 15 to 18½) may study in the U.S. at accredited public or private secondary schools for an academic semester or an academic year while living with American host families or residing at accredited U.S. boarding schools. The Department proposes to amend existing regulations regarding the screening, selection, school enrollment, orientation, and quality assurance monitoring on behalf of student participants; and the screening, selection, orientation, and quality assurance monitoring of host families and field staff.
Via the proposed rule, DOS is soliciting public comments regarding these proposed changes, which the agency said are intended "to address the need for greater clarity in current existing regulatory language," and "to better protect the health, safety, and welfare of these participants [through] enhanced clarity of existing regulations." Due to the academic calendar and the screening and selection cycle for the secondary school student program, the comment period of this proposed rule has been set at 30 days, ending on June 2, 2010.
"Concerns regarding the safety and welfare of [the] secondary school student population necessitate a shorter comment period," DOS said. "To provide sponsors with sufficient time to prepare for implementation of changes in program administration to be effective in the academic year 2011/2012, the Department would like to accelerate this rulemaking."
DOS noted that although a majority of the Department's nearly 28,000 annual exchanges of secondary school students result in positive experiences for both the exchange students and the U.S. host families, a number of recent incidents with respect to student placement and oversight "demand the Department's immediate attention."
Without elaborating on the incidents, DOS outlined 16 measures that the agency believes will enhance the safety and welfare of foreign secondary school students studying in the U.S. The measures include requiring photographs of potential host family homes; personal character references for host family applicants; confirmation of host family incomes by program sponsors using objective information; and expanding background checks of adult host family members to include a Federal Bureau of Investigation (FBI)-based criminal background check and a check of the National Sex Offender Registry.
DOS noted that Congress's Child Safety Pilot Program, which provides youth-serving volunteer organizations with access to the FBI's criminal history database, has found that of the nearly 69,000 volunteers screened during the pilot, more than 6 percent had criminal records of concern, and more than 41 percent of those with criminal records of concern had committed crimes in states other than where they were applying to volunteer, meaning that only a nationwide check would have caught those records.
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6. USCIS Extends TPS Designations for Honduras, Nicaragua
U.S. Citizenship and Immigration Services (USCIS) announced on May 5, 2010, that temporary protected status (TPS) designations for Honduras and Nicaragua would be extended for 18 months. The extension of the TPS designation of both countries is effective July 6, 2010, and will remain in effect through January 5, 2012. The 60-day re-registration period began May 5, 2010, and will remain in effect until July 6, 2010.
Re-registration is limited to persons who previously registered for TPS under the previous designations and whose applications have been granted or remain pending. Certain nationals of Honduras and Nicaragua (or those having no nationality who last habitually resided in those countries) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions. New employment authorization documents (EADs) with a January 5, 2012, expiration date will be issued to eligible TPS beneficiaries who timely re-register and apply for EADs.
Given the timeframes involved with processing TPS re-registration applications, USCIS noted that all re-registrants may not receive new EADs until after their current EADs expire on July 5, 2010. Accordingly, USCIS is automatically extending the validity of EADs issued under the TPS designation of Nicaragua for 6 months, through January 5, 2011, and the notices explain how TPS beneficiaries and their employers may determine which EADs have been automatically extended.
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7. Can Immigration Law Be REPAIRed? Some Senators Think So
Several Democratic senators recently announced a 26-page "framework of concrete bipartisan ideas" for immigration reform, called REPAIR (Real Enforcement with Practical Answers for Immigration Reform). The proposal by Sens. Harry Reid (D-Nev.), Richard Durbin (D-Ill.), Charles Schumer (D-N.Y.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Cal.), and Robert Menendez (D-N.J.), calls for increasing enforcement, border security, and verification resources and efforts, along with expanded employment measures. Under the proposal, a green card (permanent residence) would be "immediately available" to foreign students with an advanced degree from a U.S. institution in a field of science, technology, engineering, or mathematics who has an offer of employment from a U.S. employer in a related field. To address the fact that "workers from some countries face unreasonably long backlogs that have no responsiveness to America’s economic needs," the proposal eliminates the per-country employment immigration caps. Also, the EB-5 program would be made permanent and adapted to increase foreign investment in the U.S.
Among other things, the proposal would create a new "BELIEVE" (Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment) system and a provisional H-2C visa for nonseasonal, nonagricultural workers. Workers in the H-2C program would be permitted to earn lawful permanent residence if they met "sufficient integration metrics to demonstrate that they have successfully become part of the American economy and society."
The proposal would amend current law regarding H-1B employer application requirements to: (1) revise wage determination requirements; (2) require Internet posting and description of employment positions; (3) increase U.S. worker displacement protections; (4) apply certain requirements to all H-1B employers rather than just to H-1B dependent employers; (5) prohibit employer advertising that makes a position available only to, or gives priority to, H-1B nonimmigrants; and (6) limit the number of H-1B and L-1 employees that an employer of 50 or more workers in the U.S. may hire. The proposal also would authorize the Department of Labor to investigate applications for fraud, and conduct H-1B compliance audits.
"I say to my Republican colleagues, work with us to fix this broken system, don't just say no," Sen. Reid pleaded. Although Senate Democrats called the outline bipartisan, Republicans criticized the proposal. Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.) said in a statement that "Congress should focus on border security first." Rep. John Boehner (R-Ohio) called the proposal a "cynical ploy to try to engage voters, some segment of voters, to show up in this November's elections."
House Speaker Nancy Pelosi (D-Cal.) said, "If there is going to be any movement in this regard, it will require presidential leadership." President Barack Obama was quoted as saying that there may "not be an appetite" to pass immigration reform in Congress this year.
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8. 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:
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9. New Publications of Interest
Immigration and occupations. The New York Times recently analyzed Census data and surveys of American attitudes about immigration. The analysis found that although the common perception is that a surge in immigration has overwhelmed the U.S. with low-wage foreign laborers, in reality the 25 million immigrants who live in the largest metropolitan areas in the U.S. are nearly evenly distributed across jobs and incomes, and in 14 of the 25 largest metro areas, more immigrants are employed in white-collar occupations (e.g., professionals, technicians, administrators) than in lower-wage work (e.g., construction, manufacturing, cleaning). The conclusions were based on Census data, a survey published in February's American Political Science Review, and data analysis conducted by the Fiscal Policy Institute for the New York Times.
Green card statistics. The Department of Homeland Security's Office of Immigration Statistics released its Annual Flow Report in April 2010. The report shows that in 2009, a total of 1,130,818 persons became legal permanent residents (LPRs) in the U.S. Nearly two-thirds were granted green cards based on a family relationship. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent). Legal immigration increased 2.1 percent from 1,107,126 in 2008 to 1,130,818 in 2009. LPR adjustments of status increased 4.2 percent from 640,568 in 2008 to 667,776 in 2009. Adjustments of status in 2009 were driven by a decrease in applications pending a decision rather than an increasing number of applications received during 2009. Fifty-nine percent of new LPRs in 2009 were adjustments of status and 41 percent were new arrivals. California was the state of residence of one-fifth (20 percent) of persons gaining LPR status in 2009. Other leading states of residence included New York (13 percent), Florida (11 percent), Texas (8.4 percent), and New Jersey (5.2 percent).
Labor certification planning guidance for SWAs. The Department of Labor's Employment and Training Administration released a guidance letter on April 6, 2010, to State Workforce Agencies (SWAs). The letter defines the roles SWAs play in programs administered by the Office of Foreign Labor Certification (OFLC), among other things. The letter notes that labor certification programs are undergoing a number of changes in fiscal year 2010, such as the inclusion of the Commonwealth of the Northern Mariana Islands under U.S. immigration laws; centralization of prevailing wage determinations in the National Prevailing Wage and Helpdesk Center; and the effects of the amended H-2A regulations on SWA responsibilities.
Evaluation of limited English proficient and Hispanic Worker Initiative. This report by the Department of Labor's Employment and Training Administration discusses the design of the five Limited English Proficient and Hispanic Workforce Initiative (LEPHWI) projects; describes implementation activities to recruit participants and employers and to develop and deliver training; and describes partnerships to address the needs of LEP individuals during training and placement. The report presents the outcomes for each project, draws comparisons across all five projects in key program areas, and identifies promising practices. The LEPHWI was a strategic effort to improve access to employment and training services for LEP persons and to better serve Hispanic workers through workforce investment programs that address their specific employment challenges, including language and occupational skills.
GAO report on American Samoa and CNMI minimum wage increases and effects. The Government Accountability Office (GAO) issued a report in April 2010, entitled American Samoa and Commonwealth of the Northern Mariana Islands: Wages, Employment, Employer Actions, Earnings, and Worker Views Since Minimum Wage Increases Began. The report discusses employers' cost-cutting measures and worker reactions.
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10. Klasko News
KRSS in the Community
On Sunday, May 16, 2010, KRSS laced up its running shoes for a good cause. A 23-member team, made up of the firm’s attorneys, paralegals, and administrative staff as well as their friends and loved ones, turned out for the 31st Annual Philadelphia Bar Association 5K Run/Walk along Martin Luther King, Jr. Drive. This highly successful charity race raises money for the Support Center for Child Advocates, a non-profit organization which offers free legal and social services to Philadelphia’s abused and neglected children. We are proud of all our runners and walkers on completing the race and contributing to a great cause!
Recent Speaking Engagements
On May 20, 2010, H. Ronald Klasko (Ron) discussed "EB-5s" at the New York Chapter of AILA. Ron hosted a 3 hour program on individual and regional center EB-5s. For more information on this topic, please contact Ron at firstname.lastname@example.org.
On May 19, 2010, H. Ronald Klasko (Ron) discussed "Immigration 2010" at the Consular Corps of Philadelphia. Ron spoke about hot immigration issues of interest to foreign consulates in Philadelphia. For more information on this topic, please contact Ron at email@example.com.
On May 19, 2010, William A. Stock (Bill) discussed "Current Visa Issues for Researchers and Physicians" at Fox Chase Cancer Center. Bill updated researchers and physicians on H-1B compliance, travel issues, permanent residence options and other current immigration topics. The PowerPoint presentation is available here.
On May 7, 2010, William A. Stock (Bill) discussed "R, H & L Site Visits and Document Enforcement" at the Minnesota/Dakotas AILA Chapter Conference. Bill discussed how to counsel employers facing site visits from USCIS to verify immigration filings, and on how to handle DOL enforcement proceedings.
On May 6, 2010, H. Ronald Klasko (Ron) discussed "Immigration Options for Scholars and Researchers" at the University of Texas Southwestern Medical Center at Dallas. Ron spoke about visa options and permanent residence options for scientific researchers. The PowerPoint presentation is available here.
On May 5, 2010, William A. Stock (Bill) discussed "Immigration Aspects of Mergers and Acquisitions" at the New York State Bar Association. Bill led a panel discussion of immigration issues that can arise during a merger/acquisition transaction, including due diligence on immigration compliance and maintenance of employment authorization for key personnel after the transaction. For more information, please contact Bill at firstname.lastname@example.org.
On May 5, 2010, H. Ronald Klasko (Ron) discussed "J-1 Waivers for Clinicians and Researchers" and "Permanent Residence Options for Clinicians and Researchers" at the University of Texas Health Science Center at Houston. Ron spoke about permanent residence and J-1 waivers for clinical doctors and medical researchers. To view the PowerPoint presentation for the J-1 waivers, click here and for the permanent residence options, click here.
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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright © 2010 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.
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