Business Immigration Monthly - September 2012

Date: 9/6/2012
 Business Immigration Monthly for September 2012

Internal Revenue Service Modifies the ITIN Process

The Internal Revenue Service ("IRS") recently announced an interim change to the Individual Tax Identification Number ("ITIN") procedure. ITINs are issued by the IRS for tax administration purposes for individuals who are not eligible to obtain a Social Security number ("SSN") from the Social Security Administration ("SSA"). The IRS indicated that it is making these changes in order to "strengthen its procedures for issuing ITINs". Most ITINs are issued during the tax filing season. Until it issues a regulation, the IRS will only issue ITINs when applications include original documents, such as passports and birth certificates or certified copies of these documents from the issuing agency. ITINs will no longer be issued based on applications supported by notarized copies of documents. The IRS indicated that these changes are effective immediately. However, the IRS indicated that it plans to issue a regulation regarding the issuance of ITINs sometime in early 2013.

Court Upholds H-2B Wage Role

A U.S. District Court recently upheld the validity of the Department of Homeland Security's ("DHS") authority to delegate to the U.S. Department of Labor ("DOL") the ability to create regulations for setting the prevailing wage rates paid to H-2B nonimmigrants. The H-2B program enables U.S. employers to employ foreign, unskilled, non-agricultural temporary workers in the U.S. As part of the program, employers are required to obtain temporary labor certifications from the DOL evidencing that there are no willing, able or qualified U.S. workers to perform the duties of the position and that the employment of the foreign workers will not adversely affect the wages and benefits of similarly employed workers. Unless the District Court's decision is appealed, the DOL's new wage rule will become effective on October 1, 2012. The wage rule significantly increases the prevailing wages for most H-2B occupations. It is estimated that on a consolidated basis, H-2B employers may be required to pay up to $847 million more in wages to H-2B workers as a result of the wage rule.

USCIS Provides Data About the L-1B Program

The U.S. Citizenship and Immigration Services ("USCIS") recently released information about the approval and denial rates in the L-1B specialized knowledge program from 2003 through 2011. The L-1B program allows a U.S. employer to transfer an employee with specialized knowledge relating to the organization's interests from one of its affiliated foreign offices to one of its offices when the employee has worked for at least one year in the previous three years. From 2003 to 2007, the USCIS approved between 91% to 94% of the L-1B petitions. However, the approval rate in the L-1B program significantly dropped beginning in 2008, even though there was no statutory or regulatory change in the program. The approval rate in calendar year 2011 was only 73%, which marks the lowest approval rate of any year since 2003. Additionally, the number of L-1B filings with the USCIS has significantly dropped from its high of close to 30,000 in 2007 to approximately 14,000 in 2011.

CBP and USCIS Cease Putting Admission Stamps on Form I-20 and Form DS-2019

Customs and Border Protection ("CBP") recently announced that beginning on August 10, 2012, it will no longer be providing admission stamps on the Form I-20 and Form DS-2019 to F, M and J nonimmigrants. CBP stated that this change was implemented in order to be consistent with the new USCIS policy change of not stamping the Form I-20 and Form DS-2019 as part of the change of status or extension adjudication process. USCIS indicated that it would stop this practice earlier this year when it launched its online immigration benefits system, ELIS. CBP stated that the admission stamp on the Form I-20 and Form DS-2019 is not an indicator of lawful status or academic program duration. However, Immigration and Custom Enforcement's Student Exchange Visitor Program ("SEVP") has indicated that some state and federal benefit-granting agencies have required F, M and J nonimmigrants to provide the stamped Form I-20 and Form DS-2019. SEVP indicated that if one of these agencies requests a stamped Form I-20 or Form DS-2019, the foreign national may make an appointment through the USCIS InfoPass online system to have a local USCIS office place the stamp on the form. However, SEVP indicated that this transitional step will only continue through November 21, 2012. After this date, SEVP indicated that foreign nationals who encounter a problem regarding this issue should contact SEVP. However, SEVP did not state what it will do if it is contacted by a a F or M nonimmigrant. DOS has not stated if J nonimmigrants should contact it if they encounter a similar issue.

USCIS Implements Deferred Action for Childhood Arrivals Program

On August 15, 2012, the USCIS began to accept applications from applicants who qualified for the Deferred Action for Childhood Arrivals (DACA) Program. The program is available to foreign nationals who meet the following criteria:

1. Are under the age of 31 as of June 15, 2012.

2. Came to the United States before reaching his/her 16th birthday.

3. Have continuously resided in the United States since June 15, 2007 up to the present date.

4. Were physically present in the United States on June 15, 2012 and at the time of making his/her request for consideration of deferred action with the USCIS.

5. Entered without inspection before June 15, 2012 or his/her lawful immigration status expired on or before June 15, 2012.

6. Are currently in school, have graduated or obtained a Certificate of Completion from high school, have obtained a GED Certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

7. Have not been convicted of a felony, significant misdemeanor (including DUI), three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

USCIS emphasized that the program does not confer lawful status upon a foreign national. However, an individual whose case has been deferred is eligible to receive an Employment Authorization Document ("EAD") for the period of deferred action, provided he or she can demonstrate "an economic necessity for employment". The granting of deferred action will be in two-year increments. However, the Department of Homeland Security ("DHS") can terminate or renew deferred action at any time at the agency's discretion. USCIS estimates that an estimated 1.76 million foreign nationals may qualify for benefits through the program.

Although foreign nationals who are eligible for deferred action may receive an EAD card, the U.S. Department of Health and Human Services has indicated that foreign nationals who are eligible for deferred action through this program will not be eligible for Medicaid and Children's Health Insurance Program ("CHIP"). Also, the governors of Texas, Arizona and Nebraska have indicated that foreign nationals who are eligible for this program will not be entitled to any state benefits in those states, including driver's license. Additionally, ICE officers have filed a lawsuit in a District Court in Texas to enjoin DHS from further implementing the program. The lawsuit alleges that the program violates federal law and requires ICE officers to violate their oaths to uphold and implement current federal law. This lawsuit is currently pending with the Texas District Court. Finally, USCIS has indicated that it will not be hiring additional staff to adjudicate the estimated 1.7 million filings through this program. Therefore, it is assumed that processing times at all of the USCIS Service Centers for its other benefits (including nonimmigrant petitions, immigrant petitions, EAD cards, etc.) will significantly increase in order to accommodate the processing of applications through this new program.

DOS Releases September 2012 Visa Bulletin – Little Movement in the Employment-Based Immigrant Visa Categories

The U.S. Department of State ("DOS") recently released its September 2012 Visa Bulletin. Similar to other recent Visa Bulletins, the September 2012 Visa Bulletin contains very little movement in the employment-based immigrant visa categories. The most significant advancement is in the EB-3 World category by three weeks to October 1, 2006. There is no advancement in the EB-2 World category (which remains at January 2009) and the EB-2 Indian and Chinese National Preference categories continue to remain Unavailable. It is assumed that the EB-2 World category will become Available again next month with the commencement of the government's new fiscal year. However, the EB-2 Indian and Chinese National Preference categories will not become Available. Instead, it is assumed that the DOS will re-establish a priority date similar to the last established date of August 2007.

The following is a comparison of priority date movement since the inception of the current retrogression in October 2005:



Dec 2007

Jun 2008

Aug 2009

Mar 2010

June 2012

Aug 2012

Sept 2012

EB-3 World

09/01/02

03/01/06

U

12/15/02

06/08/06

09/08/06

10/01/06

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

U

U

U

EB-3 China

10/15/01

03/22/03

U

12/15/02

08/08/05

11/08/05

12/15/05

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

U

U

U

EB-3 India

05/01/01

11/01/01

U

07/01/01

09/15/02

10/01/02

10/08/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

06/08/06

09/08/06

10/01/06

 
Additional information about the movement of the employment-based immigrant visa priority dates will be contained in our firm's future Immigration Updates when it becomes available.
 
DOS Provides Information About the Fiscal Year 2013 and 2014 Diversity Visa Lotteries
 
The DOS recently indicated that online registration for the Fiscal Year 2014 Diversity Visa Lottery program will begin on Tuesday, October 2, 2012 and conclude on Saturday, November 3, 2012. Although the DOS provided information about the registration dates, the DOS did not release information about the next Diversity Visa Lottery program. Additional information about this program will be available in our firm's Immigration Alert when it becomes available.
 
The DOS also indicated that individuals who submitted applications in the Fiscal Year 2013 Visa Lottery may now check on the DOS's website to confirm if they "won" the lottery. Please note that the DOS is no longer notifying individuals by mail if they "won" the lottery. Instead, individuals must confirm whether they won the lottery on the DOS website. Although the DOS updated its website on May 1, 2012 with the "winners" of the Fiscal Year 2013 Visa Lottery program, the DOS encouraged applicants who were not selected initially to recheck the website on or after October 1, 2012 because it may select more entries as "winners", depending on the response that the DOS receives to the initial group that was selected. The DOS reminded entrants that if they lost or misplaced the confirmation that they received when submitting the initial lottery application, that they will not be able to confirm whether or not they "won" the lottery. In the Fiscal Year 2013 Visa Lottery, the DOS only received approximately 12.5 million entries. This number is significantly less than the 19.6 million entries that it received for the Fiscal Year 2012 Visa Lottery.
 
USCIS Indicates that Employers Should Continue to Use the "Expired" Form I-9
 
The USCIS recently announced that employers should continue using the Form I-9 currently available on the USCIS website until further notice. Although this form indicates under the current Office of Management and Budget ("OMB") Control Number that it expires on August 31, 2012, the USCIS indicated that this form is not outdated as of this date. Instead, the USCIS said that the current form is still valid and that the USCIS will provide updated information about the new version of the form when it becomes available. The USCIS recently extended the comment period for the new form until September 21, 2012. After the comment period ends, the USCIS may then take time to further modify the new form to incorporate commenters' suggestions and recommendations into the formatting of the new form.
 
ICE SEVP Terminates SEVIS Access to PC Tech Learning Center
 
On August 9, 2012, ICE SEVP issued a Withdraw on Notice ("WON") to PC Tech Learning Center located in Jersey City, New Jersey. SEVP indicated that as a result of the issuance of the WON, PC Tech is no longer certified by SEVP to enroll nonimmigrant students and SEVP has terminated the records of all PC Tech's nonimmigrant students. SEVP indicated that PC Tech's nonimmigrant students have the following options:
 
1. Transfer to a new school that is willing to accept the student and to recommend reinstatement for the student. The new school should contact the SEVIS Help Desk to have the student's SEVIS records transferred. The student will then have to apply for reinstatement through the USCIS.
 
2. If a student is unwilling or unable to transfer, the student must depart the United States within seven (7) days of his/her record being terminated.
 
For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com.
 
Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.