Business Immigration Monthly

Transcription

1 Business Immigration Monthly June 2009 TOPIC OVERVIEW MFEM Attorneys Attend AILA Annual Conference Travel Document Requirements Became Effective on June 1, DOS Opens a New Passport Office in Minneapolis...5 DOS Issues Cable to Posts Regarding Student/Exchange Visitor Update The USCIS Extends the Entry Date for J-1s Who Seek to Qualify for the Conrad 30 Program...7 Automatic Revalidation Unavailable to Citizens of Iran, Syria, Sudan and Cuba...7 DOS Opens a New Passport Office in Detroit H-1B Quota for Fiscal Year 2010 Not Met During Initial Filing Period (Updated: June 1, 2009)...8 DOS Releases June 2009 Visa Bulletin EB-3 Category Remains Unavaialble...9 DOS Publishes a Revised Exchange Visitor List...9 DHS Announces a New Worksite Enforcement Strategy MFEM NEWS Mr. Bob White of the Firm s Immigration Group is Appointed to the AILA Verification and Documentation Liaison Committee MFEM Attorneys Attend AILA Annual Conference Three attorneys from Masuda Funai s Immigration Group recently attended the annual American Immigration Lawyers Association s (AILA) National Conference in Las Vegas, Nevada. The following are some highlights from the Annual Conference: The USCIS has reorganized its liaison function with its different stakeholders. Stakeholders (including AILA) will only be able to directly contact the USCIS for assistance after the attorney of record, employer or applicant first contacts the National Customer Service Center (NCSC) to submit an inquiry. If the attorney of record, employer or applicant does not receive a response from the inquiry after 30 days, the attorney, employer or applicant may then contact the specific USCIS Service Center at a special address. After allowing the service center an additional 30 days to respond to the inquiry, the stakeholder s liaison may then contact the appropriate service center directly for assistance. The USCIS did indicate that it will accept more immediate inquiries from the stakeholders in emergent situations. The USCIS Fraud Detection and National Security (FDNS) will be expanding the number of audits and site reviews that it completes. The FDNS is now contracting with independent contractors to complete random site visits on petitioners and applicants who have filed various petition types. The USCIS would not specify which petition types will be receiving greater scrutiny. However, it was indicated that the USCIS has a significant amount of funding for this new program. It is uncertain as to what will be done with the information gained during the site visits. The USCIS would not directly comment on the increased site visits by FDNS other than stating that this is a continuing part of USCIS mission to reduce and eliminate fraud in all of its programs. U.S. Customs and Border Protection (CBP) indicated it is now processing Freedom of Information Act (FOIA) requests within 20 business days. Masuda Funai s Business Immigration Monthly is provided as a free service of the firm regarding legal developments. It is not a substitute for legal counseling and may constitute advertising material Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved.

2 The U.S. Department of State (DOS) indicated that its MANTIS security clearances for individuals who are believed to be working on certain sensitive technologies should now processed within one month or less. The DOS stated that it recently instituted a new Security Advisory Opinion (SAO) procedure which should significantly reduce the security clearance processing time. The USCIS indicated that it has a five-phase plan for implementing filings through a lockbox and not directly through its service centers. The USCIS currently indicated that it is in Phase 2 of this five-phase plan. Ultimately, within the next three years, all petitions filed with the USCIS will be filed at a lockbox location. The USCIS indicated that Phase 3 of the plan should be implemented within the next year and will require that all Form I-129 Petitions for a Nonimmigrant Worker be filed at a lockbox location and not through a specific service center. The USCIS indicated that it plans for all of its petition types to be within normal processing times by September 30, In late 2007, the USCIS developed a surge response plan due to the tremendous number of filings that the USCIS received in the summer of The USCIS is currently shifting petitions based upon service center capacity. The USCIS indicated that the California Service Center (CSC) has a tremendous amount of capacity and thus it has shifted more than 40,000 Form I-751 petitions to this center. The USCIS also indicated that individually filed Forms I-130 will be shifted in the future from the California Service Center to its field offices for adjudication. The USCIS has indicated that it will not be issuing transfer notices to petitioners or applicants when a case is transferred because it does not believe that the transfer will ultimately affect the beneficiary and may cause more concern than necessary. The USCIS has indicated that it will be issuing national guidance on the processing of H-1B petitions for all types of consulting companies within the next few weeks. The USCIS would not indicate what will be contained in this guidance. However, it appears that the USCIS may want to more uniformly and aggressively review H-1B petitions filed by of consulting companies. The USCIS recently issued a Memorandum providing guidance to its service centers about the processing of H- 1B petitions for physical therapist, occupational therapist and other healthcare workers that require licensure. Prior to the issuance of this memorandum, the USCIS CSC was routinely denying H-1B petitions for physical therapist and occupational therapists who did not possess Master s Degrees based upon its interpretation of the U.S. Department of Labor s (DOL) Occupational Outlook Handbook. The guidance from USCIS headquarters indicated that its officers should not solely rely upon the OOH but instead should rely on state licensure requirements. For those H-1B cases that were denied prior to the issuance of this guidance, the USCIS CSC indicated that it will accept a Motion to Reopen outside of the 30 day filing window so that it can adjudicate the H-1B petition based upon the new guidance. However, the CSC indicated that the USCIS filing fee of $585 will be required to be submitted with the motion. After many attorneys indicated that this does not seem to be appropriate because the cases were denied due to USCIS error, USCIS national headquarters staff indicated that they would review the issue again before guidance about how employers should file the Motion to Reopen. The CSC indicated that its approval rate for O and P nonimmigrant petitions is around 91%. The USCIS indicated that it will be reinstating Premium Processing for most Form I-140 petitions (excluding EB-1 Multi-National Managers and Executives and EB-2 National Interest Waivers) by the end of the summer 2009 when its Form I-140 backlog has been eliminated Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 2

3 The USCIS Nebraska Service Center (NSC) indicated that adjustment of status applications filed by dependent spouses who have been married for less than two years to the principal applicant must include evidence of the bona fides of the marriage with the initial adjustment of status filing. The USCIS indicated that it is currently pre-adjudicating all employment-based adjustment of status applications pending with its service centers. The USCIS stated that it has currently completed the preadjudication of 110,000 employment-based adjustment of status applications. The USCIS also indicated that it believes that it will complete the pre-adjudication of all its pending adjustment of status applications by the end of August. As part of the pre-adjudication process, the USCIS has requested visa numbers from the DOS Visa Office. Each year the government may issue 140,000 employment-based immigrant visas. The USCIS stated that by the end of August when its pre-adjudication has been completed, it believes that it will have requested all of the employment-based immigrant visa numbers for the next fiscal year. However, individual countries may not receive more than 7% of the available immigrant visa numbers each year. Therefore, the DOS has indicated that most of the currently retrogressed employment-based immigrant visa categories will very slowly advance during the next fiscal year. However, the USCIS indicated that there should not be a repeat of the July 2007 Visa Bulletin when all employment-based categories became available because the DOS Visa Office will now know the exact number of adjustment of status applications pending with the USCIS. A foreign national who applies for a nonimmigrant visa and who is determined to be inadmissible to the United States may apply for a nonimmigrant visa waiver. The waiver is initially reviewed by the U.S. Consulate abroad and the U.S. Consulate determines whether to recommend the approval of the waiver to the USCIS Administrative Review Office (ARO). If a waiver is recommended by the Consulate, the ARO adjudication time is normally 14 days. If the recommendation is not made, the applicant may apply for review through the DOS Visa Office. However, the Visa Office normally does not overturn a Consulate s decision. If the applicant is Canadian and thus visa exempt, the processing times through the ARO are longer. It normally takes 60 to 90 days for the ARO to review a waiver application filed by a Canadian applicant at a port-of-entry. The DOL s Wage Hour Division is increasing its number of investigators by 250 within the next year with a focus on the H-1B Labor Condition Application (LCA) program. The DOL indicated that it is concerned about the availability of U.S. workers in the PERM program due to the fact that the current unemployment rate is 9.4%. The DOL stated that it is currently subjecting petitions for a Financial Analyst in the New York area to supervised recruitment. Of those petitions subject to supervised recruitment so far, 45% have been denied, 25% have been withdrawn and 15% have been approved. The DOL is currently creating a new business line at its Atlanta National Processing Center for PERM supervised recruitment. It will begin hiring for this new line within the next 4-6 weeks and it plans to implement this new business line prior to October 1, When this new business line is created, it is assumed that the number of supervised recruitments in the PERM process will significantly increase. The DOL indicated that it is opening a new office in Washington, DC which will focus on Helpdesk requests and will be reviewing and issuing all prevailing wage determinations. The DOL stated that this office should be staffed and functioning by late fall. The DOL stated that its new icert system has been available since April 15, It stated that 3,000 accounts have already been created in the system. It stated that as of July 1, 2009, the current LCA system will be deactivated. However, the DOL will continue the current system for approximately one year so that employers can withdraw LCA applications previously filed through this system. After this system is deactivated, the DOL stated that it will provide guidance about how to withdraw previously filed LCAs Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 3

4 The DOL stated that the icert system will experience an outage on August 14, 2009 for enhancements to the system. One of the enhancements will be the inclusion of a withdrawal function for LCAs filed through the system. The DOL stated that eventually all foreign labor certification applications will be included in the icert system. The highest priority currently is to create a prevailing wage system within the icert system by January 1, After this functionality is introduced, the DOL will create an H-2B module in the icert system. The DOL stated that it is uncertain as to when the H-2B module will be added to the system. The DOL stated that it will be delaying the implementation of PERM processing through the icert system. The DOL stated that it is uncertain as to how long the delay of the implementation of the PERM module will be. Previously, the DOL stated that it will be rolling out the PERM functionality in September The DOL again confirmed that it will take at least seven working days for the processing of an LCA through the icert system. However, if in an LCA is pulled for additional review, there is no guaranteed processing time. One reason why an LCA may be pulled from the normal processing stream is due to the fact that an employer has filed a significant number of LCAs with the DOL and has not indicated that it is H-1B dependent. However, the DOL would not comment on which factors will automatically pull an LCA from the normal processing stream. The DOL stated that it currently has 56,000 pending PERM applications. 54% of these applications are pending for final review. 38% of the applications are pending for audit review. 6% are pending for appeals. The DOL is now including current processing times on the home page of the icert system. However, the DOL indicated that these processing time frames are based upon the latest filing date pulled by at least one of the analysts at its national processing centers. The dates do not indicate completion dates and thus there may be a three to four month discrepancy between the date on the DOL s website and the date on which some of the analysts are currently processing. The DOL stated that prevailing wage requests through the H-2B program must now be filed through the DOL s national processing center in Chicago. The DOL currently has 1,000 requests pending. The DOL has received approximately 1,400 applications. The DOL is currently taking approximately 30 days to review prevailing wage requests. When the new DOL center in Washington, D.C becomes active and prevailing wage requests are determined through the center, the DOL still would not commit to a lesser processing time. Therefore, the DOL strongly suggested that employers file prevailing wage requests as soon as possible. The USCIS stated that as of June 1, 2009, it has received 45,800 H-1B quota cases. However, the USCIS stated that it will still be reengineering the H-1B quota process for the next fiscal year even though the quota was not reached this year during the initial filing period. In the reengineering process, employers will pre-register for the H-1B quota. The USCIS will then notify the winners of the H-1B random selection process and these employers will then submit their winning H-1B petitions to the USCIS. The USCIS is currently upgrading the Permanent Resident Card. Therefore, the processing of current Permanent Resident Cards will be delayed in the upgrade process. The USCIS indicated that the new cards may include biometric chips. The USCIS confirmed that it does not have a current time frame for the release of a regulation requiring foreign nationals with permanent resident cards without expiration dates to obtain new Permanent Resident Cards. The USCIS indicated that it will be implementing its Transformation Program within the next two years. As part of this program, employers and applicants will be filing their petitions with the USCIS on-line. The USCIS indicated that it will begin with naturalization applications. After the naturalization application process is 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 4

5 implemented, the USCIS will then proceed to nonimmigrant visa applications. The on-line processing will require credit card payments and it will an account-based system. The government has created a Directorate of National Intelligence. Different law enforcement agencies participate in this Directorate. The DOL s Wage and Hour Division provides information about the results of its audits to this Directorate. Immigration and Customs Enforcement (ICE) can review information provided by the DOL to the Directorate with the DOL s knowledge. ICE may commence its own investigation of an employer based upon the information provided by the DOL to the Directorate. ICE is currently data mining the E-Verify system for compliance trends with employers. ICE may use information from the E-Verify system as part of an audit even if the E-Verify system subcontractors has indicated all of an employer s employees are employment authorized. The E-Verify requirement for certain federal contractors and has been postponed again until September 8, It is currently believed that within this current postponement period, the U.S. Department of Homeland Security (DHS) will modify the applicable regulation to remove the requirement that existing employees assigned to the contract must have their employment eligibility verified through the E-Verify system. It is assumed that when this requirement is removed, the government will then proceed with the implementation of the E-Verify requirement for certain federal contractors and sub-contractors. Travel Document Requirements Became Effective on June 1, 2009 The travel requirements implemented under the Western Hemisphere Travel Initiative (WHTI) go into effect on June 1, 2009 for U.S. and Canadian citizens applying for admission to the U.S. at land and sea ports of entry. U.S. and Canadian citizens who lack WHTI-compliant documents but are otherwise admissible will not be denied admission into the United States around June 1. Instead, travelers will be encouraged to continue their travel plans and to obtain secure WHTI travel documents as soon as possible. Examples of WHTI-compliant documents for entry into the United States at land and sea ports include: * U.S. or Canadian passports; * Trusted Traveler Card (NEXUS, SENTRI, or FAST/EXPRES); * U.S. Passport Card; * State or province-issued Enhanced Driver s Licenses. U.S. and Canadian citizen children under the age of 16 who arrive by land or sea from Canada, Mexico or the Caribbean need only present proof of citizenship, such as an original or copy of their birth certificate, a consular report of birth abroad, a naturalization certificate, or a Canadian citizenship card. Lawful permanent residents should continue to present their Form I-551, Lawful Permanent Resident card. DOS Opens a New Passport Office in Minneapolis The DOS opened a Passport Agency on May 18, 2009 in Minneapolis, Minnesota. The new Minneapolis Passport Agency is located in downtown Minneapolis at 212 South Third Avenue. The Minneapolis Passport Agency was opened to serve U.S. citizens in the North Central order region. It will be especially convenient for those U.S. citizens who need passports issued on an urgent basis. It also has the capability to issue U.S. passport books on-site to qualifying applicants. Complete information regarding the location and the hours of operation can be found at or by calling the National Passport Information Center Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 5

6 DOS Issues Cable to Posts Regarding Student/Exchange Visitor Update The DOS recently updated sections of its Foreign Affairs Manuel to provide guidance regarding student and exchange visitor issues. The following notable updates have been made: The DOS has created a new Student/Exchange Visitor Visa Center to respond to inquiries about individual student and exchange visitor visa cases. The Center can be reached via at fmjvisas@state.gov and typically receives almost 900 inquiries a month. The DOS has instructed that the SEVIS record is the definitive record to determine student or exchange visitor visa eligibility. A new version of SEVIS form is expected to be released by spring It will remove the requirement for the paper forms, but until then F/M/J visa applicants must present signed I-20 or DS-2019 forms. The DOS has instructed that a form which contains minor errors (e.g., a program start date that is off one day) can nevertheless be processed. However, if the form indicates an unrealizable program start date, or has a typographic error in the biographic data section, the information must be corrected in SEVIS. The issuer then must consider whether the error would cause the traveler difficulty at the port of entry. If it would, the applicant should be instructed to travel with a corrected hard copy of the form. The DOS also instructed that attendance at a lesser-known college, English language program, or a community college is not, in itself, a reason for refusing a student visa applicant. A student must be able to demonstrate that he has a long-term educational plan which includes initial attendance at a community college or English language program, and then a transfer to a four-year college. The DOS has stated that in evaluating the student s long-term goals, the officer should keep in mind that the choice of school is not nearly as important as why he/she chose it. The DOS reminded posts that J exchange visitors are required to have adequate medical insurance in order to participate in an exchange program. F and M students are not required to have medical insurance in order to qualify for a visa. However, most universities require it. The DOS stated that a student s assurance that he will be able to afford any health care expenses in the United States could certainly help a student overcome public charge concerns. The DOS has decided to terminate its summer Au Pair Pilot Program that began in the summer of It will be discontinued at the end of the 2009 summer placement period. The DOS has extended a two-year Pilot program by the Center for International Education through February 15, The Pilot Program will add a second teacher exchange sponsor, the Foreign Academic and Cultural Exchange Services (FACES). The Pilot Program, started in February 2007 exchange visitor teachers, was meant to provide an opportunity to evaluate the need for and acceptance of a reduced experience requirement. The Pilot is being conducted by the Center for International Education, Inc. and Foreign Academic and Cultural Exchange Services (FACES), DOS-designated Exchange Visitor Program sponsors, and limited to nationals of nine countries: Australia, Canada, Columbia, New Zealand, South Africa, Spain, United Kingdom, Ireland, and Venezuela. Participants in this pilot program are not required to have three years of prior teaching experience. They are required to be eligible for employment as a teacher in their home country as demonstrated by a provisional or full teaching certificate, license, or other credential that permits employment as a teacher in the respective home country. They must also present a signed letter of acceptance for a full time teaching position from a U.S. accredited school (K-12), on school letterhead and signed by the appropriate school official. All other eligibility requirements for this exchange category must be met. The DOS instructs posts to ensure that student and exchange visitor visa applicants are given priority when scheduling appointments for interviews. In addition, the DOS instructs posts to provide information 2009 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 6

7 regarding the availability of expedited appointments on each post s website, recorded information and via call centers. The DOS emphasizes that whenever possible, every applicant should be able to receive an appointment before his/her program start date. Priority should go to first-time applicants, while repeat applicants can be placed on a lower-priority tier. The USCIS Extends the Entry Date for J-1s Who Seek to Qualify for the Conrad 30 Program On March 20, 2009, President Obama singed a law that extends the date by which international medical graduates have to be granted J-1 nonimmigrant status in order to later qualify for the Conrad 30 program. International Medical Graduates who are granted J-1 status by September 30, 2009, either by admission to the U.S. or a change of status, will later qualify for the Conrad 30 Waiver Program. The most recent sunset date for qualifying J-1 admission was March 6, Physicians who acquired J-1 status before September 30, 2009, may pursue a waiver of the two-year foreign residence requirement under the Conrad State 30 program, if they meet all the eligibility requirements. The Conrad 30 Program, permits each state health department to submit a request to the DOS to grant a waiver to the J-1 international medical graduate to complete a two-year home residency requirement. If the state health department s waiver request is approved, the J-1 physician is required to practice medicine in a medically underserved or shortage area for a three-year period. The Department of Health and Human Services designates the medical shortage areas. Automatic Revalidation Unavailable to citizens of Iran, Syria, Sudan and Cuba On May 7, 2009, the USCIS announced that automatic revalidation was not available to nationals of Iran, Syria, Sudan and Cuba. Automatic Revalidation applies to the expired nonimmigrant visas of aliens who have been out of the U.S. for thirty days or less in contiguous territories (Canada and Mexico). The DOS confirmed that if a citizen of Iran, Syria, Sudan or Cuba travels to a contiguous territory for a day and has an expired visa, but a valid extension approval notice of status, he will need to obtain a visa to return to the U.S. F-1 and J-1 students are eligible for automatic revalidation if they travel to contiguous territories and adjacent islands other than Cuba. M-1 students can only apply for automatic revalidation readmission after an absence of less than 30 days solely from contiguous territories. A nonimmigrant who is eligible for readmission under the automatic revalidation provisions may not be readmitted if he or she applied for a new visa and the decision is pending or the nonimmigrant s visa application has been denied. DOS Opens a New Passport Office in Detroit The DOS inaugurated the new Detroit Passport Agency on May 11, The new Passport Agency is located in downtown Detroit, just minutes from the Ambassador Bridge and the Detroit/Windsor Tunnel. The Detroit Passport Agency will be especially convenient to those U.S. citizens who are planning travel within 14 days and require an emergency passport. It also has the capability to issue U.S. passport books on-site to qualifying applicants and will have the capability of issuing new U.S. passport cards in late Spring Complete information regarding the location and the hours of operation are listed below: The Detroit Passport Agency 211 West Fort Street, 2nd Floor Detroit, MI Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 7

8 Hours of Operation, by appointment only: 9:00 am to 3:00 pm Eastern Time Monday through Friday except Federal holidays DOL Delays Implementation of icert LCA System The DOL has indicated that it will delay the mandatory use of the new icert system for Labor Condition Applications (LCA) as part of the H-1B process until June 30, However, the system is currently available and remains an option for the submission of LCAs. The icert system was initially supposed to become mandatory for LCA processing on May 15, However, the DOL indicated that it was delaying the mandatory use of the new system for LCA processing to the DOL additional time to resolve some issues with the system. Our firm has been using the system on a very limited basis. However, even with our firm s limited usage, we have experienced numerous issues with the system, including being timed out of the system while attempting to input a new LCA and in registering users in the new system. The DOL said that the additional time will allow the DOL to resolve many of the issues that have been brought to its attention by current users. Additional information about the implementation of the DOL s new icert system will be contained in our firm s future Immigration Updates. H-1B Quota for Fiscal Year 2010 Not Met During Initial Filing Period (UPDATED June 1, 2009) The USCIS announced on April 8, 2009 that the H-1B quota for fiscal year 2010 (October 1, 2009 through September 30, 2010) WAS NOT met during the initial filing period. (April 1, 2009 through April 7, 2009). Therefore, the USCIS continues to accept H-1B petition filings under both the regular H-1B quota and the U.S. Master s or higher Degree exemption quota. The regular H-1B quota is limited to 65,000 and the U.S. Master s or higher Degree exemption is limited to an additional 20,000. The USCIS stated that it will continue to monitor filings and notify the public when either of the two quotas has been met. When either of the quotas has been met, a random selection process will be conducted only on the petitions received on the date which the quota is actually met. The petitions received before this date will be accepted and adjudicated by the USCIS. As of June 1, 2009, approximately 45,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For the past few years, the H-1B quota has been met during the initial filing period and the USCIS has had to conduct random selection processes of the petitions received. However, it appears that due to the current economic conditions, employers have not filed as many petitions as they have in the past. Therefore, unlike in previous years, the quota for fiscal year 2010 has not been met during the initial filing period and all H-1B petitions filed during the initial filing period will be accepted by the USCIS for processing. Additional information about the H-1B quota for fiscal year 2010 will be contained in our firm s future Immigration Updates when it becomes available Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 8

9 DOS Releases June 2009 Visa Bulletin EB-3 Category Remains Unavailable The DOS recently released its June 2009 Visa Bulletin. Last month, the DOS made the EB-3 category completely Unavailable. This category remains Unavailable in June 2009 and will continue to remain Unavailable until the government s next fiscal year which begins on October 1, Additionally, the DOS has severely retrogressed the EB-2 Indian national category. The DOS stated that at this time it could not estimate if this severe retrogression will continue until the beginning of the government s next fiscal year. Finally, the DOS stated that demand in the currently Available preference categories remains heavy. Therefore, the DOS may have to either retrogress some or all of these categories or make some of the categories Unavailable before the end of this fiscal year. The following is an overview of how the various employment-based preference categories have either progressed or retrogressed since the beginning of the current retrogression in October 2005: Oct 2005 Dec 2007 Jun 2008 Apr 2009 May 2009 June 2009 EB-3 World 03/01/01 09/01/02 03/01/06 03/01/03 U U EB-2 China 05/01/00 01/01/03 04/01/04 02/15/05 2/15/05 2/15/05 EB-3 China 05/01/00 10/15/01 03/22/03 03/01/03 U U EB-2 India 11/01/99 01/01/02 04/01/04 02/15/04 2/15/04 01/01/00 EB-3 India 01/01/98 05/01/01 11/01/01 11/01/01 U U EB-3 Other Workers 10/01/00 10/01/01 01/01/03 03/15/03 03/01/01 U Additional information about the advancement of the employment-based immigrant visa categories will be contained in our firm s future Immigration Updates. The DOS Publishes a Revised Exchange Visitor List Effective June 28, 2009, the DOS will begin utilizing an updated Exchange Visitor List. The Exchange Visitor Skills List is a list of specialized knowledge and skills that are deemed necessary for the development of an exchange visitor's home country. It is used by consular officers to determine whether an exchange visitor applying for a J-visa is subject to Section 212(e) of the Immigration and Nationality Act (INA), as amended. Any alien who obtained an exchange visitor visa and/or became a participant in an Exchange Visitor Program involving a designated field of specialized knowledge or skill was subject to the two-year foreign residence (home country physical presence) requirement of INA Section 212(e). The Exchange Visitor List was first published on April 25, 1972, and revised on February 10, New lists were published on June 12, 1984 and January 16, Exchange visitors who entered the United States prior to the effective date shall continue to be governed by the 1997 Exchange Visitor Skills List, as amended Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 9

10 The DHS Announces a New Worksite Enforcement Strategy On April 30, 2009, the DHS announced a new worksite enforcement strategy which focuses on targeting employers who knowingly hire illegal workers and criminal aliens. The DHS stated in its announcement that in order to target the root cause of illegal immigration, the enforcement arm of its agency, ICE will focus its resources on the criminal prosecution of employers who knowingly hire illegal workers. While ICE will continue to arrest and initiate removal proceedings against illegal workers who are found in the course of worksite enforcement actions, this will be done in a manner consistent with immigration law and DHS priorities. In addition, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment. The DHS affirmed that ICE officers will be held to high investigative standards including: investigating the mistreatment of workers, trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct; and obtaining indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite. The DHS promised that existing humanitarian guidelines will remain in effect where worksite enforcements involve 25 or more illegal workers, a reduction from the previous threshold of 150. MFEM NEWS: Mr. Bob White of the Firm s Immigration Group is Appointed to the AILA Verification and Documentation Liaison Committee Mr. Bob White of the firm s Immigration Group has been appointed to the American Immigration Lawyers Association s (AILA) Verification and Documentation Liaison Committee. This committee coordinates and responds to Interior Enforcement audits and raids conducted by Immigration and Custom Enforcement (ICE), U.S. Citizenship and Immigration Service s (USCIS) Fraud Detection and National Security (FDNS) Division, the USCIS E-Verify program and the DOL s Employment Standards Administration (ESA). Due to the significant increase in the number of audits being conducted by the USCIS FDNS and the DOL ESA s Wage and Hour Division, the Committee has created a Working Group to specifically address the issues arising from the audits being conducted by these divisions. Mr. Bob White will be co-coordinating this Working Group on behalf of AILA. For more information about this or any other immigration law topic, please contact Bob White, at or via at rwhite@masudafunai.com. Weekly Immigration Updates are provided in the Immigration Group Section of our firm s website at Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 10

11 About the Immigration Group The Immigration Group of Masuda Funai provides immigration representations to publicly traded companies, privately held corporations, educational institutions, notfor-profit organizations and individuals in business immigration matters. As one of the larger immigration groups in the United States, we annually file more than 2,500 petitions on behalf of approximately 275 different corporate employers from such diverse industries as automotive-related, computer consulting, machine tool manufacturing, electronics, construction and equipment, banking and financial, health care and high tech. Attorneys in the Immigration Group include: About Masuda Funai Masuda Funai is a full-service law firm representing international and domestic companies operating and investing in the United States. Our 45 attorneys located in Chicago, Schaumburg and Los Angeles counsel clients in every aspect of business, including establishing, acquiring, and financing operations; ownership, development and leasing of real estate; transfer of overseas employees to the U.S.; employment, labor, and benefits counseling and dispute resolution; intellectual property, copyright and trademark; business litigation; creditors' rights and business risk management; structuring the distribution and sale of products and services throughout the U.S.; and estate planning and administration. Kathleen M. Gaber, Chair Dayne Kono Esther Contreras Stephen M. Proctor Bryan Y. Funai Fazila Vaid Colin Hara Robert S. White Eldon Kakuda CHICAGO 203 North LaSalle Street Suite 2500 Chicago, Illinois TEL FAX LOS ANGELES South Vermont Avenue Suite 420 Torrance, California TEL FAX SCHAUMBURG 1475 East Woodfield Road Suite 800 Schaumburg, Illinois TEL FAX Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. 11