Archive for the ‘Agency Updates’ Category
Wednesday, April 3rd, 2013
When considering the prospects of new immigration legislation from Congress aimed to modernize the system or address legalizing the millions of individuals out of status over the past few years, many of us have felt like Charlie Brown trying to kick a field goal. Time and time again we’ve been disappointed when Lucy pulled the ball away.
Discussion of immigration reform has been incessant since the last “major” revision to the Immigration and Nationality Act in 1996. The first version of the DREAM Act was introduced in Congress in 2001, but despite reintroductions and revisions, it has never made it to the Oval Office for signature. Six years later, the Comprehensive Immigration Reform Act of 2007 was introduced in the Senate but failed to materialize support to bring about an up-or-down vote. Indeed, for the past decade, only relatively minor piecemeal legislation and Executive Branch policies revising enforcement priorities have been the headline-grabbing changes to the system.
But this year (and this Congress) is shaping to be quite different.
News broke Friday night that the AFL-CIO and the Chamber of Commerce reached a deal on a new relatively lower-skill “guest worker” visa, presumptively dubbed the W-visa. Led by the so-called Senate bipartisan “Gang of Eight,” the two constituent groups have reached a preliminary deal which allows workers the opportunity to receive employment-authorized visas without depressing U.S. workers’ wages. For years the lack of a consensus as to a visa category which allows those to take jobs in the service industries and agriculture – which some say is a major driver of illegal immigration – has stymied comprehensive reforms notwithstanding a broader consensus on legalization and increased enforcement.
The agreement reached by the two groups sets forth the following general provisions:
- The volume of W-visas will be capped, yet fluctuate from year to year in response to the economy. The first year, slated to begin in 2015, will cap W-visas at 20,000. The numbers will then increase to 35,000 in the second year, 55,000 in the third, and 75,000 in the fourth.
- In the fifth year, the number of W-visas will be capped at a maximum of 200,000 but the actual number available to employers will be determined by a new Bureau of Immigration and Labor Market Conditions, relying upon on labor market data. For instance, if economic indicators are weak, there could be as few as 20,000 W-visas in any given cycle.
- Similar to the H-1B, W-visa employers will need to comply with wage restrictions that require them to pay the greater of 1) the actual wages paid by an employer to U.S. workers with similar levels of experience in similar positions, or 2) the “prevailing wage” determined by the Department of Labor for the occupational category in question.
- However, unlike the H-1B, the W-visa is not temporary, but transitional. Beneficiaries will have the ability to self-petition for Green Cards after a year. Furthermore, the W-visa will not be tied to a single, discrete employer, allowing workers to leave abusive businesses.
- W-visa workers will be protected by state and federal employment laws. W-visa beneficiaries cannot be used by employers who have laid off workers within the preceding 90 days, and those enduring a strike or lockout.
This new agreement, forged in principle between two groups which historically have not seen-eye-to-eye, evidences a strong break in past failures to bridge the gap between organized labor and business on this hot-button issue.
Politicians from both sides of the aisle have expressed optimism that comprehensive legislation will soon be introduced. On Sunday, Senator Chuck Schumer (D-NY) told NBC’s Meet the Press that he is “very, very optimistic” that the group of lawmakers will have a deal this week and that legislation could be introduced as early as the next. Another Member of the Gang of Eight, Senator Lindsey Graham (R-SC), told CNN’s State of the Union that “[C]onceptually, we have an agreement between business and labor, between ourselves.”
But don’t pop the champagne quite just yet. Members have cautioned that while there may be an emerging agreement for the basic principles behind Comprehensive Immigration Reform, legislation has still yet to be drafted. Senator Marco Rubio (R-FL) cautioned to the Associated Press that “[A]rriving at a final product will require it to be properly submitted for the American people’s consideration, through the other 92 senators from 43 states that weren’t part of this initial drafting process.”
Monday, February 25th, 2013
USCIS issued its third draft EB-5 policy memorandum on February 14, 2013. It is open for public comment through April 1, 2013.
While the draft policy memorandum technically does not establish USCIS binding policy, it is a window into its present thinking on various subjects relating to EB-5 adjudications.
This blog will discuss the highlights of the draft policy memorandum in terms of either new policies or clarifications of previously unclear policies. It is not meant to be a summary of the entire memorandum, most of which merely restates existing law and policy.
It is important to note initially that the memorandum is not an exhaustive memorandum in that it does not cover most aspects of I-924 adjudications, including adjudications of EB-5 projects. For example, it makes no reference to use of EB-5 money to pay back bridge financing; whether EB-5 loans can be paid back to a new commercial enterprise before conditions are removed; whether direct employees of the job-creating entity (indirect employees of the new commercial enterprise) must be “qualifying employees”; etc.
Perhaps the most significant change in policy articulated in the draft memorandum relates to the “material change”. The draft policy memorandum, if implemented, would reverse the policy contained in the December 11, 2009 Neufeld Memorandum, which established the material change standard. The draft memorandum appears to have gotten it right. The agency draws a distinction between a material change occurring between the filing and the adjudication of Form I-526 or the filing of Form I-526 and the approval of conditional permanent residence status), which would require a new I-526 petition, and a material change occurring after approval of the I-526 petition, which would not require a new or amended I-526 petition. The stipulations are that the changed business plan must still fall within the I-924-approved industries for the regional center and that the investment capital be “expeditiously redirected into the alternate project, such that USCIS can conclude that the full amount of capital was at risk and fully available to the job creating entities throughout the period of conditional residence.”
USCIS appears to draw a distinction between a material change to a business plan and a complete change in either the job creating entity or the new commercial enterprise. USCIS leaves that area rather ambiguous stating that it “may not comply with the requirements to invest and sustain the investment.” The meaning of that sentence is unclear and needs to be clarified.
USCIS states an intent to develop a mechanism for a petitioner to notify the agency when there are substantive material changes. This would be welcome, and it is an improvement that has been suggested on multiple occasions.
Finally, on the subject of material change, USCIS notes that it may need to revisit issues that had been adjudicated in the I-526 process when there is a material change in the business plan. Examples given are when the investment proceeds are diverted from one industry to another with different multipliers for job creation projections, when the number of investors in a project have changed dramatically or when certain assumptions made in the economic report were not satisfied.
The second area where USCIS states new policy relates to the timing of job creation, specifically with respect to adjudication of the condition removal petition. USCIS restates its position that, in the adjudication of the I-526 petition, the agency must be satisfied that the jobs will be created within 2 ½ years of the approval of the I-526 petition. This author has opined on a number of occasions that this standard is incorrect, and it may be a subject of a separate blog in the near future. For now it remains USCIS policy.
The important new language in the memorandum relates to adjudication of I-829 petitions. First, the memorandum notes that the regulations allow for “substantial compliance” with both the capital investment requirement and the job creation requirement. This is not new, but is a helpful indication that the Service realizes that its regulations do not require full compliance, but only substantial compliance.
The key language relates to the regulatory requirement at the I-829 stage that the jobs be created “within a reasonable time”. USCIS for the first time establishes a one year period after the I-829 filing deadline as generally being considered a “reasonable time” (Director Mayorkas, at various public meetings, had previously advocated 6 months). The draft memorandum states that jobs that will be created within a year of the I-829 filing deadline will “ordinarily” be considered to be created within a reasonable period of time, whereas jobs projected to be created after that timeframe usually will not be considered to be created within a reasonable time (absent extreme circumstances, such as force majeure.)
Various parts of the memorandum deal with geographical areas, either for purposes of a regional center or for purposes of determination of a targeted employment area. The memorandum iterates the standard that the new commercial enterprise must be “principally doing business” in the TEA and adds that a majority of the required jobs must be created in the TEA. The memorandum provides more detail than previously available regarding factors used to determine where businesses “principally do business.”
Helpfully, USCIS reiterates its deference to state determinations of the appropriate geographical area that has been designated as the TEA. This had previously been clarified after USCIS had earlier challenged state geographical TEA determinations.
Another area where USCIS has, at different times, taken varying positions is the issue of whether indirect jobs can be created outside the geographical boundaries of a regional center. In its most recent prior iteration of policy, USCIS had indicated that these jobs can be counted subject to case by case determination. In this draft policy memorandum USCIS eliminates any conditions whatsoever and simply states that indirect jobs can qualify even if they are located outside of the geographical boundaries of the regional center.
The least helpful language related to geography relates to the determination of the geographical boundaries of a new regional center. Those of us who work with developers in creating new regional centers are very aware of USCIS’ restrictive policies in recent times on this subject. USCIS states that the supply chain, as well as the labor pool, for proposed projects will be important in determining the reasonableness of a proposed regional center’s geographic boundaries. The most disturbing language relates to the regional center having to prove that the proposed economic activity “will substantially promote economic growth in the proposed area as a whole.” Does this mean that every project in the regional center must impact every area of the regional center? This is particularly problematic with respect to previously-approved regional centers with a broad geographical area.
The memorandum clarifies some previously-held agency positions relating to the requirement that the investment be “at risk”. Significantly, USCIS states that if an investor is guaranteed the right to eventual ownership or use of a particular asset, including a real estate interest, the value of the guaranteed ownership or use of such asset will be subtracted from the amount of the investor’s capital contribution in determining how much money was placed at risk. The draft memorandum also states a previously-stated, but rarely- used, position that the investor’s money may be held in escrow not only until approval of the I-526 petition, but also until the investor becomes a conditional permanent resident. Finally, the memorandum confirms that an investor can receive a return on his or her capital during or after the conditional residency period, so long as the return was not previously guaranteed and so long as the funds are not a return of the investor’s principal (but rather a return on principal; namely a profit).
The draft memorandum reiterates some helpful language from the previous draft memorandum regarding the so-called fund model of investments across a portfolio of businesses. In summary, USCIS states that the investment must be made into a single commercial enterprise, but that commercial enterprise can deploy the capital among various wholly owned subsidiaries (in the case of a direct EB-5) or unrelated entities (in the case of regional center EB-5s). Left unstated is the agency position on the extent to which a specific investor’s funds must be traced to a specific job-creating entity and the impact if one of several job-creating entities does not create sufficient jobs.
Briefly, the following are other points of note in the draft policy memorandum:
Converting a restaurant into a nightclub or adding substantial crop production to an existing livestock farm are cited as two examples of a restructuring or reorganization that would be sufficient to establish a new commercial enterprise.
Where a new commercial enterprise has owners who are not seeking to enter the EB-5 program, the source of their capital must be derived by lawful means.
The EB-5 investment can be used for non-job-creating purposes as long as it helps the new commercial enterprise create 10 jobs. Examples are purchasing land, obtaining licenses, staffing a hotel, etc. The memorandum also includes in this list of examples “paying financing costs to unrelated third parties”. It is not clear if this is meant to expand or liberalize the agency’s previous policy on using EB-5 funds to repay bridge financing.
USCIS states: “In general, multiple EB-5 investors petitioning through different regional centers or on a standalone basis may not claim credit for the same specific new job.” This, of course, is not controversial. However, it is interesting to speculate whether this is meant to articulate an agency position that multiple regional centers can be used for the same project as long as there is no double counting of jobs.
The draft memorandum references regional center amendments. It does not reference the need for an amendment to change industry code. Is this intentional? It does not clearly indicate whether a change in economic methodology requires an amendment (the Service has taken different positions on this at different times).
Finally, the policy memorandum discusses the agency’s “deference” policy. Deference will be provided to a determination in an approved I-924 or I-526, but will not apply to a different project or the same project with material changes to the project plan.
In summary, there are some useful clarifications or expansions of previous policy in this third draft policy memorandum. Subject to clarifying or changing a small number of policy statements, the publication of the memorandum as a final policy document will be a step forward. The next step would be a separate policy memorandum covering many of the issues not covered in this draft, especially relating to I-924 and project adjudications.
Tuesday, December 11th, 2012
Please note this blog post is a republication of a post that was published last week. Due to a technical problem, the text of the post was deleted during transmission.
The adjudication of I-924 applications for regional center designation, amendments of regional center designations for geography or industry code and exemplar I-526 (project pre-approval) has, for all practical purposes, ground to a halt. This is not news. Its roots can be traced to the months preceding the February 9, 2012 announcement by USCIS of the implementation of its new policy on “tenant occupancy methodology.” Many I-924 applications were pending for lengthy periods of time – sometimes one year or longer – at the time the new policy was announced. Those applications, as well as virtually all of the applications filed in the intervening months, have remained pending. One RFE on these applications is a minimum. Many have been the subject of two or three RFEs. Virtually all such applications have one thing in common – they remain pending. Approvals or denials are a rarity.
There are various speculations as to the reason that USCIS refuses to adjudicate these applications. Perhaps we will explore some of the possible theories in a future blog. Suffice for now to state that I believe the number one candidate is the failure of USCIS after nearly one year to formulate its policy on tenant occupancy coupled with the fact that most I-924 applications either have some element of tenant occupancy contained within them or the Service believes that its policy on tenant occupancy could ultimately affect its adjudication of the remaining petitions.
This state of affairs raises two issues. First, what to do about it. Second, how it changes strategies for regional centers and project developers.
Regional centers and project developers have two choices:
- Be patient and hope that some action is imminent even though no signs presently point in that direction; or
- File a mandamus action in federal court.
For those unfamiliar with mandamus, it is the procedure established by Congress to empower federal courts to force government agencies to adjudicate – approve or deny – pending applications for which adjudication has been unreasonably delayed. The procedure is relatively straightforward and often results in prompt adjudication of the pending application. In almost all cases, USCIS adjudicates the petition prior to the court order because USCIS is responsible for paying the legal fees of the petitioner if the court grants the mandamus and determines that the USCIS inaction was not “substantially justified.”
The last time we experienced pervasive USCIS delays was when large number of applications for adjustment of status to permanent residence and applications for naturalization were held up pending indefinite delays in the FBI issuing security clearances. Many hundreds of mandamus actions were filed, resulting in USCIS not only taking action on the pending applications but also revising its procedures so as not to delay such applications in the future.
So how has the USCIS inaction changed the strategy for developers with projects seeking EB-5 capital? Unless the developer is willing to wait an indeterminate amount of time – probably at least one year or longer – for approval of a new regional center application, an amendment or an exemplar I-526 petition, the strategy of choice is to find an existing regional center that is approved for the geographical area and the industry code of the project and negotiate an arrangement whereby that regional center will “host”, “sponsor” or “adopt” the project. Such an arrangement allows the developer to market the project immediately rather than waiting a year or more to begin marketing for investors.
This strategy may be implemented in conjunction with filing of an I-924 application. The I-924 application could be based on a hypothetical project, which will enable the developer to market future projects under its own regional designation assuming that the I-924 is eventually approved.
Another option that we have advised developers to consider is a direct EB-5 proceeding concurrently with the adjudication of the I-924 application for regional center designation. If the project will have enough direct employees to raise sufficient capital to move the project forward, the project can be marketed to direct EB-5 investors with future investors relying on indirect and induced employment once the regional center is approved.
One of the indirect results of the I-924 stalemate is the realization by investors and investors’ agents that looking for projects that have been “pre-approved” is no longer an option. Since the project pre-approval requires the filing of an amended I-924, since the quoted processing time for amended I-924s is ten months and since all of these applications get at least one RFE, investors and their agents are coming to realize that investment opportunities being offered in the marketplace are likely not to be pre-reviewed or pre-approved by USCIS.
Finally, one last strategy being considered by developers is purchasing an existing regional center that has an approval for the desired geographical area and industry code. Unfortunately, this is not a complete solution to the problem. USCIS takes the position that a change of ownership requires an I-924 amendment filing. Although it is unclear whether the amendment filing is more in the nature of a notification or a request for approval, it is possible that USCIS will take the position that I-526 petitions filed while the amendment application is pending are not approvable and may even have to be refiled after the amendment is approved.
This entire scenario is indeed unfortunate. An exemplary government program that brings foreign direct investment to the U.S. and creates countless numbers of jobs is being thwarted by government inaction. The purpose of this article is to clarify that some options may be available to counteract this dilemma and hopefully to once again put the EB-5 program in motion, so that it can achieve its laudable goal.
Tuesday, August 14th, 2012
Human Resources personnel possessing that keen eye for detail required for properly completing Form I-9 might have taken note that the current version of the form (Rev. 08/07/09 Y) contains an Office of Management and Budget control number expiration date of August 31, 2012. Yet to date, the Department of Homeland Security has not finalized a replacement form. In an announcement made yesterday on I-9 Central, USCIS has directed all employers to continue using the current version “until further notice.”
USCIS has directed employers to continue to use the Rev. 08/07/09 Y version even after the OMB control number expiration date of August 31, 2012 has passed, signaling that a new form will probably not be available for public consumption within the next two weeks. Back in March, the government proposed changes to the I-9 and created a draft two-page document with expanded instructions, subject to notice and comment from the general public. As we await the government to review its feedback and weigh its options for revision, yesterday’s announcement clarifies that employers should continue to use the current form and follow the current instructions until a new version is finalized.
We will continue our coverage of this issue as it unfolds. In the meantime, you can head over to our Worksite Compliance web site for our coverage involving issues relating to employment of work-authorized individuals, the latest developments in I-9 audits, E-Verify, and general immigration-related employment guidance.
If you have any questions regarding your company’s Form I-9 procedures, contact your Klasko Law attorney for specific guidance.
Thursday, July 26th, 2012
Editor’s Note: Amanda Ketchum, a Senior Paralegal at the firm, is on leave for an internship this summer. Below is a guest post about her recent activities.
I can’t believe that my time in Rwanda is more than halfway over! Here’s what I’ve been up to:
Things have been falling into a pretty steady routine in terms of attending meetings and writing reports, but I occasionally get the odd assignment here and there. As this past week was a holiday for both the U.S. and Rwanda (who celebrates their Liberation Day on July 4th), I was tasked with various party-planning duties. Last week I called about 70 different people (including the President’s and Prime Minister’s offices!) to confirm whether or not they’d be attending the Embassy’s official (formal) celebration. At the actual event, my job was to greet arriving guests and show them around the compound (basically, point them in the direction of the refreshments!). I actually got to greet the Foreign Minister of Rwanda (equivalent to our Secretary of State) which was really exciting.
With the Pennsylvania Flag at the Embassy party
This afternoon is the Embassy’s “unofficial” Independence Day celebration, and they’re inviting all U.S. citizens who are currently in Rwanda to come to the Embassy for food, games, and fun. My only job will be to supervise some children’s games for about an hour, but the rest of the time I’ll get to enjoy the event, so I’m excited! Right now I’m working on compiling biographies of important Rwandan ministers and officials that will be put into a binder for the new Deputy Chief of Mission (“DCM” – the person next in line under the Ambassador), who will be arriving at Post in a couple of weeks. The new DCM will use these biographies before making courtesy calls to these influential Rwandans at their respective ministries/organizations.
On weekends I’ve been able to do some exciting things. A few weeks ago I camped out overnight at Akagera National Park – a safari park in the eastern part of Rwanda, near the Tanzania border. That was my first time that I’d ever been camping, and (aside from accidentally pitching our tent on a slight hill and waking up all scrunched onto one side of the tent), it actually wasn’t bad! We got to see some really cool including baboons, zebras, and giraffes. The best part was that you could get pretty close to the animals – like the pictured giraffe – and they didn’t run away! This coming weekend is the Kigali Music Festival, and some friends and I are planning on picnicking and attending some of the concerts throughout the weekend.
Monday, June 11th, 2012
Editor’s Note: Amanda Ketchum, a Senior Paralegal at the firm, is on leave for an internship this summer. Below is a guest post about her activities so far.
My First Three Weeks
At the top of Mt Kigali, Rwanda
In connection with my graduate studies, I recently received an opportunity to spend the summer interning with the U.S. State Department. Specifically, I’m spending ten weeks working in the Political & Economic section of the U.S. Embassy in Kigali, Rwanda. This section is responsible for analyzing and reporting on the full range of political activities in Rwanda, including the government, foreign affairs, human rights, the judiciary, political-military issues, and social and religious affairs. The section also provides Washington and Embassy officials with reporting and analysis of significant economic and financial developments in Rwanda in order to advance U.S. economic and commercial policies. Although I’ve only been here for just over three weeks, I have already had a lot of fantastic experiences – both in and outside of work. I’ve also been able to meet some really wonderful people who have gone out of their way to make sure that I’m settling in and having a good time. Here’s what I’ve been up to so far:
Work – My first assignment was to develop a new “Business” section of the Kigali Embassy’s website, which includes information on doing business in Rwanda (for U.S. companies), doing business in the U.S. (for Rwandan companies), and key business links and economic reports for those looking to brush up on their U.S.-Rwandan bilateral investment treaties. Here’s the link to the section of the site that I helped develop with the Embassy’s Economic/Commercial Officer, Joe Palombo.
On a more day-to-day basis, I’ve been attending meetings at various Rwandan ministries and judicial offices and drafting summaries of these meetings that are turned into cables (memos) and distributed to officials in D.C. and to other Embassies worldwide. I’ve also been attending various Embassy meetings to be briefed on the current state of affairs from a variety of different intra-post departments, including the Consular (yay!) and Public Diplomacy sections of the Embassy, as well as the CDC, USAID, and Peace Corps, which all have a strong presence here.
Fun –As I’m here during the dry season (sunny with highs in the 70’s/80’s every day), it means that there are plenty of outdoorsy activities to keep me occupied on the weekends. Two weekends ago I ran in the Kigali Peace Marathon (not the actual marathon – but the 5K portion of the run!) which was really great. After the race, one of the Consular officers hosted a barbeque at his house, so I more than made up for all the calories I burned off during the run. There was also a volleyball game that turned into a pretty intense (but fun!) tournament, however, so I was able to re-burn off my grilled goat kabobs. Last weekend, a group of friends and I went hiking on Mt. Kigali, which (I just found out thanks to Wikipedia) is 6,075 feet above sea level. The picture above shows of all of us who made the hike, as well as some local children that decided to follow us on our trip. The picture was taken by a Rwandan that said he never used a camera before, so it’s a little off-center, but you get the idea! Next weekend I’ll be camping in Akagera National Park in the eastern part of Rwanda, and will be able to get up close to some wild animals. I’ll be sure to send updates and pictures along!
Wednesday, April 4th, 2012
As Bill Stock mentioned in a client alert last month, the Department of State has halted the dramatic acceleration of India and China’s EB-2 priority dates which we had observed throughout much of 2011. Instead, the Visa Control Office of the State Department predicted significant retrogression in these two categories, walking back priority dates approximately three years from May 1, 2010 to August 2007.
In response to questions from the immigration law community last week, Department of State Chief of Immigrant Visa Control and Reporting Charlie Oppenheim provided an updated forecast of employment-based visa date movements for the months of May through July:
Employment-Based Priority Dates (May-July 2012)
Projected Movement from April 2012 Visa Bulletin
||Expected to stay current
|Second – Worldwide
||Expected to stay current
|Second – India & China
||Retrogression to August 15, 2007 (now May 1, 2010)
||Three to five weeks forward (now April 8, 2006)
|Third – India
||Two weeks forward (now September 1, 2002)
|Third – China
||Up to six weeks forward (now March 1, 2005)
||Expected to stay current
||Expected to stay current
Mr. Oppenheim has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007 or later. Mr. Oppenheim stated that visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.
We have recommended that any EB-2 adjustment applicant with a priority date before March 2010 file immediately, so that his or her application is received at USCIS on or before April 30, 2012. USCIS will continue to accept for processing those applications for adjustment of status for individuals with priority dates prior to the date established in the April 2012 Visa Bulletin until the end of this month. Those cases with priority dates of August 15, 2007 or later will be forwarded to and held by Visa Control at the Department of State in a “pending” file until new visas are available on October 1, 2012, the beginning of the 2013 fiscal year. Applicants will still be eligible for employment authorization and advance parole travel authorization. The May Visa Bulletin is expected to address the EB-2 movement.
Contact your Klasko Law attorney if you have specific questions regarding eligibility for filing of adjustment of status and other benefits.
Friday, March 23rd, 2012
Late today, USCIS posted an announcement on its website that nationals of Syria will be eligible to apply for Temporary Protected Status (TPS) in the near future. USCIS indicated that Syrians would be designated for an 18-month period of protection, and that details of how and when to apply would be forthcoming in the Federal Register next week.
TPS is a temporary form of permission to remain in the United States for humanitarian reasons. TPS prevents the removal of nationals of countries undergoing civil strife, natural disasters, and similar country conditions. It provides work authorization during the period of TPS, but does not provide for any long-term status or permanent residence after the government decides TPS is no longer warranted.
Nationals of Syria eligible for TPS should consult an attorney about the advantages and disadvantages of applying before seeking TPS, particularly if they currently hold a lawful nonimmigrant status. In addition, Syrian nationals who fear to return to Syria should consult an attorney to discuss other possible forms of relief from removal.
Monday, March 12th, 2012
In a recent decision, Matter of Mercer University, the Board of Alien Labor Certification Appeals (BALCA) – the Department of Labor’s appeal body – adopted a flexible approach to determining who qualifies for optional special recruitment. This type of recruitment under the PERM regulations can be performed when an employer is preparing to file a labor certification for an employee qualifying as a “college or university teacher,” and is completed under the different standard of having to demonstrate that the foreign national on whose behalf the labor certification is being filed, was the “best qualified” of all the candidates.
BALCA reviewed this case after it was by the Certifying Officer because he did not believe that the position in question, a librarian position titled “Instructional Coordinator,” included teaching responsibilities. Specifically, in the decision denying the Application for Permanent Labor Certification , the certifying officer found that “the principal duties described [were] not those involved in teaching, evaluating and advising students within an assigned instructor workload in a classroom setting.” Mercer University, however, argued that its requirement that the instructional coordinator “participate in instruction activities” clearly referred to “college and university teaching” job duties needing to be performed in this position. Additionally, Mercer University argued that there has never been a requirement setting forth the minimum amount of teaching duties to be performed in order for the position to qualify for optional special recruitment under the PERM regulations.
BALCA reviewed the job duties of the position, as well as the documentation prepared by Mercer University prior to the filing of the Application for Permanent Labor Certification. Upon completing this review, BALCA found that the responsibilities of teaching were clearly reflected in the job duties of the position as well as the employer’s education and experience requirements, and that the documentation contained in the labor certification file clearly described the foreign national as having teaching responsibilities. Finally, BALCA agreed with the employer and stressed that the regulations lack any requirements of “special definitions” to describe the position or duties of college or university teacher. BALCA further noted that the Application for Permanent Labor Certification clearly set forth that teaching responsibilities were part of the job duties of the Instructional Coordinator with Mercer University. In so finding, BALCA reaffirmed the long held belief of institutions of higher education, and immigration law practitioners, that in order to qualify for optional special recruitment under the regulation, the position must involve any amount of teaching with a college or university.
Wednesday, January 11th, 2012
Foreign nationals who are immediate relatives of U.S. citizens currently in the U.S. seeking to become lawful permanent residents, but who originally entered without inspection, could soon benefit from a change in the waiver application process being proposed by U.S. Citizenship and Immigration Services. On Friday, January 6, 2012, USCIS announced that it intends to develop a framework allowing certain foreign nationals who have accrued unlawful presence in the U.S., and are thus inadmissible without a waiver, to file their waiver applications (Forms I-601) stateside.
This change would significantly reduce the time that U.S. citizens are separated from their immediate relatives, as foreign nationals are currently required to remain outside the U.S. while their immigrant visa application and their waiver application are adjudicated. This USCIS proposal clarified that only foreign nationals who are immediate relatives of U.S. citizen spouses or parents would be able to take advantage of this change. This proposal is not expected to be implemented until the end of this year. We will continue to monitor and report on the progress of this important development.
Immigration law bars certain foreign nationals from being admitted into the U.S. (receiving permanent residence or any other visa) (more…)