Flynn & Clark, P.C.
Immigration Update
October 2009
Ø 1. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits - Employers should prepare for unannounced, random immigration-related worksite inspections.
Ø 2. DHS Rescinds 'No-Match' Rules - DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification.
Ø 3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says; Two Employment Visa Categories Set To Expire - It has been necessary to hold most of the employment cut-off dates for November, and the Department said it is not possible to provide an estimate of future cut-off date movements.
Ø 4. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas - A commentator predicts that this news release "will shake up the world of arts and entertainment."
Ø 5. State Dept. Issues DV-2011 Visa Lottery Instructions - Entries for the DV-2011 Lottery must be submitted electronically by noon EST on Monday, November 30, 2009.
Ø 6. ABIL Global: Turkish Immigration - AMS Visas - An AMS visa is applicable to many categories of "assembly and maintenance" work, including computer software and hardware, complex machinery, energy equipment, manufacturing equipment and more.
Also in this issue:
Details...
1. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits
As part of the Department of Homeland Security's stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services. FDNS inspectors often use a script of questions and ask to speak with an employer representative and any foreign workers. FDNS is also using what it learns to add fraud indicators to its database in an effort to identify patterns and potential fraud during adjudications.
The Alliance of Business Immigration Lawyers (ABIL) recommends that employers prepare for immigration-related worksite inspections by developing and implementing robust compliance policies, auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. ABIL recommends designating an immigration compliance officer, who should contact immigration counsel immediately upon an FDNS site visit, and implementing an investigation response plan in advance that includes everyone from upper management to receptionists. Contact your ABIL attorney for help in preparing for potential onsite FDNS inspections.
2. DHS Rescinds 'No-Match' Rules
Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the final rules it promulgated in 2007 and 2008 relating to procedures that employers may take to acquire a safe harbor from receipt of "no-match" letters, which the Social Security Administration (SSA) sends to employers when the combination of an employee name and social security number does not match SSA records. DHS proposed to rescind the no-match rules on August 19, 2009, and is issuing this final rule without change.
Implementation of the 2007 final rule was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. After further review, DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS said that IMAGE is "designed to help the business community develop and implement hiring and employment verification best practices."
USCIS said that "[t]hese tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a No-Match letter." The agency said that a no-match letter is "reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA."
DHS also noted that "unscrupulous employers would continue to find ways to take advantage of the system, regardless of whether the No-Match rules were in place." The agency said it focuses criminal and civil enforcement efforts against "the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud"; and "employers in the Nation's critical infrastructure sites, including airports, seaports and power plants."
3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says
The State Department's Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.
Regarding the employment fourth preference "certain religious workers" category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued before that date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.
Regarding the employment fifth preference pilot categories (I5, R5), the immigrant investor pilot program was extended through October 30, 2009. I5 and R5 visas may be issued until the close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after October 30, 2009.
The cut-off dates for the categories mentioned above have been listed as "Unavailable" for November. If there is legislative action extending one or both of these categories for fiscal year 2010, the Department said, those cut-off dates would become "Current" for November. As noted in article #2 above, Congress is about to extend those two categories for three years.
The Visa Bulletin for November 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.
U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries "that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers."
USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an "established agent" files the petition.
A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:
· The supporting documentation includes a complete itinerary of the event or events.
· The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
· The contract between the employers and the beneficiary is submitted.
· The agent explains the terms and conditions of the employment and provides any required documentation.
In addition, USCIS pointed out, an agent who is also the beneficiary's employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be "in business" as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers' "agent" does not meet this condition, the agency said. "For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers."
Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is "in business as an agent," and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.
ABIL member Angelo Paparelli (http://www.abil.com/lawyers/lawyers-paparelli.cfm) predicts that this news release will shake up the world of arts and entertainment. As the "Nation of Immigrators" blog notes, "Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast. Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders."
The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf.
5. State Dept. Issues DV-2011 Visa Lottery Instructions
On October 6, 2009, the Department of State announced that entries for the DV-2011 Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009.
Applicants may access the electronic Diversity Visa (E-DV) Entry Form at http://www.dvlottery.state.gov/ during the registration period. Paper entries will not be accepted. The Department strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. No entries will be accepted after noon, EST, on November 30, 2009. All entries by an individual will be disqualified if more than one entry for that individual is received, regardless of who submitted the entry.
For DV-2011, no countries have been added or removed from the previous year's list of eligible countries. For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Flynn & Clark will be filing diversity visa applications for interested clients. For those who which to file on their own, the full instructions, including details on eligibility and how to apply, are available at http://edocket.access.gpo.gov/2009/pdf/E9-24077.pdf.
6. ABIL Global: Turkish Immigration - AMS Visas
Hans is a software technician working for Finance Software, GmbH, which produces highly specialized banking software products. Finance Software has signed a major contract to produce, install, and customize its software for a Turkish bank. Because the software products are very complex and must be customized on site, Hans must spend several months in Turkey for installation work. Does Hans need a work permit in Turkey? Fortunately not, but instead he will need to obtain an Assembly and Maintenance Service (AMS) visa.
Under Turkish immigration law, under certain conditions a work permit is not needed if an employee of a foreign entity engages in assembly and maintenance service work in Turkey for the benefit of a receiving Turkish company if the equipment subject to maintenance and installation services was imported to Turkey. An AMS visa is applicable to many categories of "assembly and maintenance" work, including computer software and hardware, complex machinery, energy equipment, manufacturing equipment and more, as evaluated on a case-by-case basis. Obtaining such a visa should be attempted whenever feasible given the difficulty and length of time it takes to obtain a work permit.
Documents required for filing an AMS visa application at a consular post vary somewhat from post to post, but generally include a petition, an invitation letter from the Turkish company, a sending employer letter, a visa application form, and ID photos. Additional documents requested by the post often may include a round-trip ticket, several months of the applicant's personal bank account records, the applicant's personal tax records, a diploma, and insurance coverage in Turkey. In the event that either the employing company or the customer company is not well known, the consular post may require additional documents regarding the companies.
An AMS visa generally is issued for up to 90 days. While working in Turkey pursuant to an AMS visa, employees should continue to be paid by the foreign entity that sent them. An AMS visa allows the employees to work only in the designated locality for the Turkish company, as designated within the scope of the visa. Although the application considers a request for a single or multiple entry visa, in practice, the Foreign Ministry issues only single entry visas. Additionally, an AMS visa is only issued once per year per employee. Therefore, if the employee departs Turkey during this initial 90-day period, he or she will not be able to re-enter Turkey in AMS visa status for one year.
If an AMS visa is issued for fewer than 90 days, and the assembly/maintenance work persists beyond the duration of the visa, lawful stay may be extended at the discretion of the government, but generally for no longer than a total of 90 days. Authorization to remain based on AMS grounds will be in the form of a specialized residency permit. This application is filed at the Foreigner's Division of the Police Department in the locality where the work is being done.
Although Turkish visa regulations do not provide many options for employment-based visas outside of the work permit regime, the AMS visa is a common option used by companies.
Flynn & Clark, P.C. is pleased to announce that VINCENT LAU (http://www.flynnclark.com/vince.html)has been elected by colleagues in the immigration bar to serve as a member of the Executive Board of the New England Chapter of the American Immigration Lawyers Association (AILA) AILA consists of over 10,000 members worldwide and a number of local chapters. The New England Chapter of AILA has been recognized for its long-standing commitment to delivering the latest immigration news and developments to its members, educating members on a wide range of immigration issues through monthly and annual conferences, and serving as liaisons among the different government agencies.
STEVE CLARK (http://www.flynnclark.com/steve.html) was a discussion leader at the AILA Advanced Business Immigration Issues seminar in Pittsburgh on October 3. He led discussions on worksite enforcement, PERM labor certifications, advising employers in a recession economy as well as employers undergoing a merger or acquisition.
He also presented at a panel on business immigration cases in an era of layoffs at the New England Chapter of the American Immigration Lawyers Association in Boston on October 17.
Mr. Clark will be presenting at an online seminar sponsored by ILW.com on November 18 on permanent residence for outstanding researchers, and national interest waivers as well as petitions for persons of extraordinary ability.
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/processTimesDisplay.do
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
Contact Your Flynn & Clark Attorney for Further Information
FLYNN & CLARK, P.C., is a member of ABIL, The Alliance of Business Immigration Lawyers. ABIL is an entity that offers a single point of contact for customer needs, news alerts, staff training and other programs that benefit the client through the collaboration of the 140 member attorneys and their 460 staff. Corporate counsel, human resource professionals, in-house immigration managers and other corporate decision-makers turn to ABIL attorneys for outstanding legal skills and services. ABIL's work also includes advocating for enlightened immigration reform, providing speakers and media sources, presenting conferences, publishing books and articles on cutting-edge immigration topics, and sharing best practices, all with the ultimate goal of offering value-added services to business immigration clients. This newsletter if produced through Flynn & Clark's collaboration with ABIL.
Disclaimer/Reminder
This e-mail 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.
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