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NEWSLETTERS

February 2013 Newsletter

FEBRUARY 2013
The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our February 2013 newsletter covering immigration topics that are of interest to our clients.

Headlines:

  1. President Obama Speaks on Immigration Reform, Senators Announce Bipartisan Agreement – President Obama spoke on his immigration reform proposal one day after a bipartisan group of senators also proposed principles for comprehensive immigration reform.
  2. USCIS Updates FAQ on DACA, Releases Latest Statistics – USCIS has posted new information on the definition of DACA, accrual of unlawful presence, continuous residence requirements, the effect of traveling outside the United States, violations of status, DACA for those living in the Commonwealth of the Northern Mariana Islands, fee waivers, and other related issues.  USCIS approved 154,404 DACA cases as of January 17, 2013.
  3. USCIS Discusses New Policy Manual, Upcoming Guidelines for Precedent Decisions at Stakeholder Engagement – The manual replaces the Adjudicators' Field Manual and policy memoranda that are in place today.  Also, the agency plans to publish guidelines for issuing precedent decisions soon.
  4. Reminder: New Fee for Permanent Residence Takes Effect February 1 – As of February 1, 2013, USCIS has begun collecting a new immigrant fee of $165 from foreign nationals seeking permanent residence through consular immigrant processing.
  5. H-1B Filing Starts April 1 – Companies should prepare to file H-1B petitions, and evaluate their anticipated hiring needs for H-1B professionals for the new fiscal year period beginning on October 1, 2013.
  6. USCIS Announces Forms Improvement Initiative – Among other things, the agency is publishing many forms in a two-column, Adobe fillable format that restricts incorrect entries and provides informational pop-up boxes to assist users.
  7. OFLC Issues FAQs on H-2A Temporary Agricultural Foreign Labor Certification Program – The FAQs include information on pre-filing; filing; job offers, assurances, and obligations; rates of pay; post-certification; labor certification fee requirements and processes; labor certification determinations; special procedures; H-2A labor contractors; and positive recruitment and hiring of U.S. workers.
  8. New Publications and Items of Interest – New Publications and Items of Interest
  9. Klasko News – Annual Spring Seminar, awards, upcoming and recent speaking engagements.

1.  President Obama Speaks on Immigration Reform, Senators Announce Bipartisan Agreement

On January 28, 2013, President Obama spoke in Las Vegas, Nevada, on his immigration reform ideas and released a statement one day after a bipartisan group of senators proposed principles for comprehensive immigration reform.  A fact sheet on President Obama's immigration reform proposal outlines four principles:

First, continue to strengthen our borders.  Second, crack down on companies that hire undocumented workers.  Third, hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks.  Fourth, streamline the legal immigration system for families, workers, and employers.

Among other things, President Obama's proposal includes providing visas to foreign entrepreneurs who want to start businesses in the United States and “helping the most promising foreign graduate students in science and math stay in this country after graduation, rather than take their skills to other countries.”  He also would provide a legal way for undocumented people to “earn citizenship” by passing national security and criminal background checks, paying taxes and a penalty, “going to the back of the line,” and learning English.  Young people could earn citizenship more quickly by serving in the military or pursuing higher education.

The President is proposing the following measures, according to the fact sheet:

  • Mandatory, phased-in electronic employment verification.  The President's proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify that the people they hire are eligible to work in the United States.  Penalties for hiring undocumented workers are significantly increased, and new penalties are established for committing fraud and identity theft.  The new mandatory program ensures the privacy and confidentiality of all workers' personal information and includes important procedural protections.  Mandatory electronic employment verification would be phased in over five years with exemptions for certain small businesses.

  • Combat fraud and identity theft.  The proposal also mandates a fraud resistant, tamper resistant Social Security card and requires workers to use fraud and tamper resistant documents to prove authorization to work in the United States.  The proposal also seeks to establish a voluntary pilot program to evaluate new methods to authenticate identity and combat identity theft.

  • Protections for all workers.  The President's proposal protects workers against retaliation for exercising their labor rights.  It increases the penalties for employers who hire undocumented workers to skirt the workplace standards that protect all workers.  And it creates a “labor law enforcement fund” to help ensure that industries that employ significant numbers of immigrant workers comply with labor laws.

The proposal also would eliminate annual country caps for employment-sponsored immigration and add visas to the system.  It would allow “greater flexibility” to designate countries for participation in the Visa Waiver Program, and would “staple” green cards to advanced STEM (science, technology, engineering, and mathematics) graduates with master's degrees or Ph.D.'s who have found employment in the United States.  The proposal would require employers to pay a fee to support education and training “to grow the next generation of American workers in STEM careers.”

President Obama's proposal would permanently authorize immigrant visa opportunities for regional center (pooled investment) programs; and provide incentives for visa requestors to invest in programs that support national priorities, including economic development in rural and economically depressed regions.  The proposal would create a new visa category for a limited number of highly skilled and specialized employees of federal national security science and technology laboratories who have been in the United States for two years.

In the Senate, a bipartisan group of senators, Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Dick Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.) have proposed the following four “basic legislative pillars”:

  1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;

  2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;

  3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and

  4. Establish an improved process for admitting future workers to serve our nation's workforce needs, while simultaneously protecting all workers.

Among other things, they propose that those who have been working in the U.S. agricultural industry without legal status and who “commit to the long-term stability of our nation's agricultural industries” will be able to “earn a path to citizenship through a different process under our new agricultural worker program.”

The senators also lament the “broken” U.S. immigration system that “sadly discourages the world's best and brightest citizens from coming to the United States and remaining in our country to contribute to our economy.”  This failure, the senators note, makes legal entry into the United States “insurmountably difficult for well-meaning immigrants” and “unarguably discourages innovation and economic growth,” in addition to creating substantial visa backlogs that force families to live apart and incentivize undocumented immigration.

To address these challenges, the senators propose a “new immigration system” that recognizes the characteristics that will “help build the American economy and strengthen American families,” in addition to reducing backlogs in the family and employment visa categories.  Among other things, they propose permanent resident status to immigrants who have received a Ph.D. or master's degree in science, technology, engineering, or mathematics from a U.S. university.

The senators also recommend a mandatory employment verification system with stiff penalties for egregious offenses.

For unauthorized workers, the senators propose legislation that would:

  • Allow employers to hire immigrants if it can be demonstrated that they were unsuccessful in recruiting an American to fill an open position and the hiring of an immigrant will not displace American workers;

  • Create a workable program to meet the needs of America's agricultural industry, including dairy, to find agricultural workers when American workers are not available to fill open positions;

  • Allow more lower-skilled immigrants to come to the U.S. when our economy is creating jobs, and fewer when our economy is not creating jobs;

  • Protect workers by ensuring strong labor protections; and

  • Permit workers who have succeeded in the workplace and contributed to their communities over many years to earn green cards.

President Obama's Fact Sheet

President Obama's Speech Transcript

Senators' Statement announcing their framework for immigration reform

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2.  USCIS Updates FAQ on DACA, Releases Latest Statistics

U.S. Citizenship and Immigration Services (USCIS) recently updated its FAQ on Deferred Action for Childhood Arrivals (DACA), and released related statistics.

The latest version of the FAQ was released on January 18, 2013.  USCIS posted new information on the definition of DACA, accrual of unlawful presence, continuous residence requirements, the effect of traveling outside the United States, violations of status, DACA for those living in the Commonwealth of the Northern Mariana Islands, fee waivers, and other issues.

USCIS also released the latest statistics on DACA as of January 17, 2013.  As of that date, USCIS had approved 154,404 cases and rejected 13,366, of a total of 407,899 received and 394,533 accepted for review.

The new updates are marked in the latest FAQ.

STATISTICS

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3.  USCIS Discusses New Policy Manual, Upcoming Guidelines for Precedent Decisions at Stakeholder Engagement

U.S. Citizenship and Immigration Services (USCIS) held a stakeholder engagement on January 15, 2013, at which Director Alejandro Mayorkas discussed the first volume of a comprehensive new online Policy Manual, among other things.  He noted that the first volume covers Citizenship and Naturalization and that the transition to a centralized online policy resource is the result of an agency-wide review of all adjudication and customer service policies.  He said the manual replaces the Adjudicators' Field Manual and policy memoranda that are in place today.  During the engagement, Director Mayorkas also highlighted new citizenship and naturalization-related policies, provided updates on other issues, and took questions.

Director Mayorkas also noted that the agency plans to publish guidelines for issuing precedent decisions soon.

USCIS's notes on the engagement have not yet been released.

New Policy Manual

Announcement about the new Policy Manual

As content becomes available for each volume, USCIS will notify the public and invite comment on new or substantially changed policies.  Public engagement opportunities will be announced on USCIS's Web site.

Announcement about the stakeholder engagement

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4.  Reminder: New Fee for Permanent Residence Takes Effect February 1

As of February 1, 2013, U.S. Citizenship and Immigration Services (USCIS) has begun collecting a new immigrant fee of $165 from foreign nationals seeking permanent residence in the United States.  This new fee was established in USCIS's final rule adjusting fees for immigration applications and petitions announced on September 24, 2010.  USCIS said the fee will help to recoup costs for staff time to handle, file, and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card.

USCIS NOTICE

RELATED FEDERAL REGISTER NOTICE

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5.  H-1B Filing Starts April 1

KRSS reminds clients that the H-1B filing for the next fiscal year opens on April 1, 2013.

Companies should prepare to file H-1B petitions, and evaluate their anticipated hiring needs for H-1B professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2013.  That is the date on which new H-1B visas become available under the annual cap.  Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, thus April 1, 2013, signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached.  The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.

The H-1B cap for fiscal year 2013 was reached in June 2012.  The pace of hiring this year means that the demand for new H-1B workers could result in the new cap being reached sometime in April.  As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more.  Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap.  All other employers should be aware of the H-1B cap.

KRSS recommends that clients keep their attorney apprised of all new hires needing H-1B status as of October 1, 2014.  Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014.

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6.  USCIS Announces Forms Improvement Initiative

U.S. Citizenship and Immigration Services (USCIS) recently announced improvements to its online forms.  Among other things, the agency is publishing many forms in a two-column, Adobe fillable format.  USCIS said that when completed electronically, this format restricts incorrect entries and provides informational pop-up boxes to assist users.

Other changes include:

  • Including plain-language, comprehensive instructions in several naturalization forms;

  • Centralizing filing locations at USCIS Lockbox facilities.  Beginning in February 2013, those filing Form N-470, Application to Preserve Residence for Naturalization Purposes, should mail their applications to the Dallas Lockbox facility;

  • Publishing high-volume forms with 2D barcode technology.  The barcode at the bottom of the page will store the data entered on the form via a computer.  USCIS will then be able to scan the information from the barcode and upload it directly to USCIS systems;

  • Enhancing Web content, including posting filing addresses and detailed fee information on forms' landing pages.

The latest fee schedule is available at http://www.uscis.gov/files/form/g-1055.pdf.  Fee information is also available in the instructions to forms and in detailed fee charts on many form landing pages.

The announcement is available here.  Additional details are available here.

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7.  OFLC Issues FAQs on H-2A Temporary Agricultural Foreign Labor Certification Program

The Office of Foreign Labor Certification (OFLC) of the Department of Labor's Employment and Training Administration recently released rounds 7 and 8 of its FAQs on the 2010 final rule on the H-2A temporary agricultural foreign labor certification program.

Round 7 FAQ.  The round 7 FAQ includes information on pre-filing; filing; job offers, assurances, and obligations; rates of pay; post-certification; labor certification fee requirements and processes; and labor certification determinations.

Round 8 FAQ.  The round 8 FAQ includes information on special procedures (such as for employers engaged in itinerant custom combine activities); pre-filing; filing; job offers, assurances, and obligations, including rates of pay, pre-employment costs, and reimbursements; H-2A labor contractors; and positive recruitment and hiring of U.S. workers.

The FAQ notes that the Agricultural Online Wage Library, available at http://www.foreignlaborcert.doleta.gov/aowl.cfm, reflects the current prevailing wage rate for agricultural occupations.

FAQ #7 is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQ_Round%207_final.pdf.

FAQ #8 is available at http://www.foreignlaborcert.doleta.gov/pdf/h2a_round8.pdf.

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8.  New Publications and Items of Interest

ICE SEVP spring 2013 conference overview.  U.S. Immigration and Customs Enforcement has released the “SEVP Conference Overview: Spring 2013.”  The publication includes updates on initial school certification and recertification; Form I-17; Form I-901 fee payment confirmations; “Study in the States”; a rule to support implementation of pending enhancements to SEVIS and expansion of enforcement capabilities for SEVP; and other issues.  PUBLICATION

H-2A, H-2B Ombudsman Programs.  The Department of Labor's Office of Foreign Labor Certification (OFLC) has established the H-2A and H-2B Ombudsman Programs.  The programs are intended to facilitate fair and equitable resolution of concerns that arise within the H-2A and H-2B program communities, by conducting “independent and impartial” inquiries into issues related to the administration of the programs.  The Ombudsman Programs also identify concerns of agricultural employers and worker advocate organizations in dealing with the OFLC and propose internal recommendations designed to continuously improve the quality of services provided by the OFLC.  There is no fee for using the Ombudsman Programs.  Additional information, including ways in which the Ombudsman Programs can and cannot help, is available at HERE for the H-2A program and HERE for the H-2B program.

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9.  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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10.  Klasko News

Save the Date: 2013 Annual Spring Seminar is Tuesday, April 23!

Mark your calendars for Klasko, Rulon, Stock & Seltzer's annual Spring Seminar to be held on Tuesday, April 23, 2013 from 9:30 am – 1:00 pm at the Radisson Plaza-Warwick Philadelphia Hotel.

Topics will include:

  • Legislative/Immigration Reform Update
  • Employment Eligibility Verification
  • Prevailing Wage Issues
  • University/Hospital Roundtable
  • Corporate Roundtable
  • J-1 Waivers
  • CBP Program Update
  • Security Clearance and Administrative Processes
  • Report from SCOPS
  • And much more!

We invite professionals involved in employment-based immigration to attend! There is no cost for this program.  Registration details forthcoming.

News and Noteworthy

H. Ronald Klasko (Ron), William A. Stock (Bill), Suzanne Seltzer and Elise A. Fialkowski have been named among the world’s leading Corporate Immigration Lawyers by clients and peers in Who’s Who Legal.  The International Who’s Who of Corporate Immigration Lawyers 2013 and the International Who’s Who of Business Lawyers 2014 will be published in the Who’s Who Legal Magazine.  We congratulate Ron, Bill, Suzanne and Elise on once again being selected and honored as the world’s leading Corporate Immigration Lawyers.

Upcoming Speaking Engagements

Suzanne will be presenting “Post Student Years: Immigration Options” at Columbia University on March 1, 2013.  Suzanne will discuss non-immigrant status, H-1B requirements, H-1B alternatives, and permanent residency among other topics.  For more information on this talk, write to Suzanne at sseltzer@klaskolaw.com.

Suzanne will serve as a speaker for the NAFSA sponsored webinar titled “Navigating the Nuances of Prevailing Wage Determinations” on March 13, 2013.  The current prevailing wage determination process is frustrating to many practitioners who will eventually encounter similar challenges, catching some practitioners and institutions off guard and unprepared.  This webinar will offer strategies to address the challenges inherent in the current PWD process including ways scholar advisers, human resources professionals, and legal counsel can work together to improve the likelihood prevailing wage determinations are accurate and consistent.  To register or for more information on this webinar, click here.

Bill will be at Pennsylvania State University’s Hershey Medical School on March 19 and at PSU College Park (Main Campus) on March 20.  Bill will discuss H-1B visas, H-1B quota, options for dealing with H-1B quota, quota-exempt employment, strategies to enhance chances of getting H-1B, other visa options, permanent residence status, among other topics.



Recent Speaking Engagements

Matthew T. Galati (Matt) spoke at the University of Maryland in Baltimore on February 22, 2013.  Matt discussed immigrant and nonimmigrant visa options.  For more information or a copy of this presentation, write to Matt at mgalati@klaskolaw.com.

Bill gave several talks at Duke University on February 20-21, 2013.  Bill talked with MBA students on Wednesday and discussed various immigration options with undergraduates, postdocs and graduate students on Thursday, February 21.  For more information on this event, visit our events calendar or contact Bill at wstock@klaskolaw.com.

Ron and Bill both presented panels at the AILA South Florida Chapter CLE on February 7, 2013.  Ron moderated “Litigating Business Cases in Federal Court” and served as a panelist for the session “E-2 and EB-5, Selecting the Best Option.”  Bill presented “Tips for Avoiding Labor Certification,” and on “Employer Compliance and Sanctions: What Advice Should You Give Your Client?”  For more on this event, contact Ron at rklasko@klaskolaw.com or Bill at wstock@klaskolaw.com.

Suzanne discussed “Recent Trends in RFEs” as part of a panel presentation at the AILA NY Chapter conference on February 4, 2013 in New York, NY.  The panel discussed trends in RFEs for H-1Bs, Ls, and immigrant visa petitions and also addressed the recently released USCIS’ O-1 RFE templates.  If you have any questions on RFE templates or trends, send an email to Suzanne at sseltzer@klaskolaw.com.

Suzanne presented a two part presentation to clinicians and researchers at Columbia Medical School on January 31, 2013.  Suzanne discussed “J-1 Waivers & Options” and “Pathways to Permanent Residency.”  To view the PowerPoint presentation for this talk, click here.

Matt spoke at the Manhattan School of Music in New York, NY on Thursday, January 31, 2013 at a program organized by the Manhattan School of Music and the Center for Music Entrepreneurship (CME).  Matt presented an immigration primer and discussed nonimmigrant and immigrant visa options for professionals and entrepreneurs in the arts.  Contact Matt at mgalati@klaskolaw.com to request a copy of this presentation.
 

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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 © 2013 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.

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