|
A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP In this Issue:
New ID Verification System Implemented For N.J. Driver’s License Effective September 2, 2003, the New Jersey Motor Vehicle Commission (“MVC”) requires all applicants for New Jersey driver licenses, non-driver identification cards and boat licenses to present proofs of age, identity and address. Applicants will be required to prove their identity through a prescribed combination of documents. Each type of document is assigned a point value, and the total point value of all documents presented must be at least six (6) points. Applicants must also prove that their presence in this country is authorized under federal law. For a detailed description of the new New Jersey driver license requirements, please visit http://www.state.nj.us/mvc/6pointhome.html. Temporary Protected Status for El Salvador, Somalia, Sudan, Burundi and Liberia Extended; Temporary Protected Status for Sierra Leone Terminated El Salvador – As part of the Administration’s ongoing efforts to assist El Salvador in recovering from the devastating earthquakes that affected the nation, the Bureau of Citizenship and Immigration Services (BCIS) announced an extension of Temporary Protected Status (TPS) for El Salvador for a period of 18-months until March 9, 2005. This TPS extension, which covers approximately 290,000 Salvadoran registrants, is effective September 9, 2003 and will remain in effect until March 9, 2005. Salvadorans who have been granted TPS must re-register during the re-registration period. The re-registration period begins July 16, 2003 and will remain in effect until September 15, 2003. In an effort both to provide ample time for eligible Salvadorans to re-register and to prevent potential gaps in employment authorization while they wait for their applications to be processed, BCIS is granting an automatic extension of the expiration date of the Employment Authorization Document (EAD) to March 9, 2004. The automatic EAD extension does not relieve beneficiaries of the responsibility to re-register for TPS benefits. Reregistration is limited to those who registered under the initial designation, which ended on September 9, 2002, and also timely reregistered under the extensions of designation. Certain nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) who previously did not apply for TPS may be eligible to apply under the late initial registration provisions. Somalia. On July 21, 2003, the BCIS announced that TPS would be extended for Somalia for 12 months, until September 17, 2004. The 60-day reregistration period began on July 21, 2003, and will remain in effect until September 19, 2003. Sudan. The DHS published notice in the Federal Register extending TPS designation for Sudan for a 12 month period, until November 2, 2004. The 60-day registration period runs from September 3, 2003 to November 3, 2003. Burundi. The DHS published notice in the Federal Register extending TPS designation for Burundi for a 12 month period. The 60-day registration period runs from September 3, 2003 to November 3, 2003. Liberia. TPS designation for Liberia is extended for a 12 month period, until October 1, 2004. The 60-day registration period runs October 6, 2003. Sierra Leone. The DHS published notice in the Federal Register terminating TPS designation for Sierra Leone, effective May 3, 2004. Individuals granted temporary protected status under the Sierra Leone TPS designation will automatically retain that status and have their current EADs extended until May 3, 2004. Important reminder to all employers: BCIS reminds employers that the laws prohibiting unfair, immigration-related employment practices remain in full force. Employers with questions should call the BCIS, Office of Business Liaison Employer Hotline at 1-800-357-2099 or the Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices Employer Hotline at 1-800-255-8155. The OSC’s Employee Hotline is 1-800-255-7688. For more information, please visit the BCIS web site (http://www.immigration.gov/graphics/index.htm) or call the BCIS National Customer Service Center at 1-800-375-5283. Visa Waiver Travel Requires Machine-Readable Passport Starting October 1, 2003, travelers entering the United States under the Visa Waiver Program must have a machine-readable passport. Any traveler without a machine-readable passport will be required to obtain a visa before coming to the United States. This requirement is mandated by the USA PATRIOT Act of 2001. Immigration inspectors may deny entry to any traveler attempting to enter on a visa-waiver basis without a machine-readable passport after October 1, 2003. Countries participating in the Visa Waiver Program have long been required to have a program for the issuance of machine-readable passports, but the October 1, 2003 requirement makes the use of such a passport mandatory for visa-free entry. It applies to both adults and children. Citizens of Belgium have been required to present a machine-readable passport for visa-waiver entry since May 15, 2003. Citizens of Visa Waiver Program countries are permitted to enter the United States for general business or tourist purposes for a maximum of 90 days without needing a visa. The 27 countries currently in the Visa Waiver Program are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The machine-readable passport requirement applies to all categories of passport: regular, official or diplomatic. If a traveler has any doubt about whether a passport qualifies as machine-readable, he or she should check with the passport-issuing authority for that country. Machine-readable passports enhance security as they can be scanned at entry and exit points to verify the integrity of the passport data. Because machine-readable passports facilitate rapid and precise identification, they enable faster processing of travelers at ports of entry. They also provide for advance passenger information, so border inspectors can do much of their processing before a flight arrives. A traveler who uses a non-machine-readable passport, even if from a Visa Waiver Program country, will have to apply for a nonimmigrant visa at a U.S. Embassy or Consulate. The worldwide US-visa application fee is $100 US. The U.S. nonimmigrant visa contains machine-readable biographical data. The Visa Waiver Program requirements can be found at the Department of State’s Visa Services web site, http://travel.state.gov/vwp.html. The 2005 Diversity (Lottery) Immigrant Visa Program (DV-2005) Entries for the DV-2005 Diversity Visa Lottery must be submitted electronically between Saturday, November 1, 2003 and Tuesday, December 30, 2003. Applicants may access the electronic Diversity Visa entry form at www.dvlottery.state.gov during the 60-day registration period beginning November 1. Paper entries will not be accepted. L-1 Visas and U.S. Economic Growth: Preserving and Strengthening the Intracompany Transferee Visa Category Issue: For almost 35 years, the L-1 Visa has been a vital tool for both U.S. companies with an international presence, and international firms expanding into the U.S. Although not a heavily utilized visa, the L-1 visa has done much to foster foreign investment in the U.S. It is the principal immigration vehicle foreign companies use to build U.S. factories, open offices, and hire significant numbers of U.S. workers to staff their U.S. operations. Unless foreign companies are able to bring key personnel to their American operations, they are unlikely to establish or expand their presence in our country. Recent proposals to restrict use of the L-1 visa would unnecessarily limit its legitimate use, thereby diminishing the economic competitiveness of U.S. companies, impeding foreign investment in the U.S., and resulting in the loss of American jobs. Background: Through the L-1 visa (created in 1970), large and small American-based companies have brought in qualified personnel from their operations abroad to the U.S. Foreign-based companies also have used this visa to invest in the U.S. economy by establishing and expanding business operations here. L-1 visa holders enter the U.S. on a temporary basis either on an L-1(A) visa for executive or managerial positions or on an L-1(B) visa which requires the employee to possess specialized or advanced knowledge that generally is not found in the particular industry. In most cases, the foreign national must have worked for the multinational firm abroad for a full year before being eligible for the visa category. According to the most recent available data from the Department of State, L visas comprise just 0.02% (112,624) of the total number of visas issued by the Department of State (“DOS”) during FY 2002. L visa issuance peaked in FY 2001 at 120,538, reflecting the economic boom. Usage has subsequently declined. As of May 31, 2003, the DOS had issued a total of 69,105 L visas this fiscal year. Out of this total, only slightly more than half of those visas were L-1 principal visa holders, with the rest taken by spouses and minor children of the L-1 principal. Current Issues: Current law prohibits using an L visa to send a foreign national to the United States to work alongside the workforce of a third party, under the control of the third party, performing the same kind of work done by the third entity’s employees and displacing U.S. employees. According to current law and DOS guidance issued over seven years ago, an L-1 visa holder can visit a third party site only when the petitioning organization controls the time, place, and content of the work assignment, and, in the case of an L-1(B) visa, if the visa holder possesses specialized knowledge unique to the petitioning company. For example, if an international company has developed proprietary computer software that will improve a U.S. company’s production capabilities, it is permissible for an L-1 visa holder to install the software at the third-party client site and train the client’s workforce in its very specialized uses. The ability of an L-1 intracompany transferee to visit customer sites promotes business profits, lowers costs to consumers through the development of innovative products and services, and, as experience has shown, leads to the creation of jobs for American workers. Some L visas recently were granted in which the visa holder was assigned at a third party site and was not using specialized knowledge or under the control of the petitioning employer. These visas were erroneously granted and are clearly prohibited by current law and DOS guidance. This prohibition needs to be enforced. Reportedly, the State Department already has taken steps to clarify the L visa requirements upon learning that a limited number of L-1 visas were inappropriately granted. In the wake of these erroneously issued L-1 visas, two bills have been introduced that would substantially restrict the use of this visa. Both bills promote reform of such breadth that they would dramatically reduce the benefits of the L-1 visa and hurt American workers and employers. Representative John Mica (R-FL) introduced H.R. 2154, which would require all employers petitioning for an L-1 visa to file attestations with the Department of Labor (DOL) and would unnecessarily restrict legitimate uses of the L-1 visa. Representative Rosa De Lauro (D-CT) introduced H.R. 2702, which includes provisions that would effectively negate the L visa category by requiring a length DOL application process and a prevailing wage determination that does not recognize the total compensation and expatriate benefits packages offered transferred international personnel, and which would impose an inadequate cap as well as an educational degree requirement. These provisions would halt the expedient transfer of international personnel so necessary today and stifle a job-creating visa that has operated with a nearly unblemished record for over 30 years. Both bills also would subject the L visa to DOL regulations. Experience has shown that DOL regulations often are oppressive in practice and only questionably effective. To impose such regulations on the L-1 visa would lead to excessive bureaucratic red tape that would frustrate the primary purpose of this visa category: a vehicle to expeditiously shift key personnel from international offices to U.S. affiliated operations. AILA’s Position: AILA opposes measures that would unnecessarily restrict companies’ ability to use this visa category. A narrowly tailored solution is available that would address the concerns noted above. AILA supports a new statutory construct that would refine the current law by prohibiting the use of L-1 visas in simple contract labor arrangements, in which a third party (other than the petitioner) controls the beneficiary’s work and essential elements of the beneficiary’s employment. The petitioning company or a qualified related organization should be required to supervise the L-1 worker and to control the essential elements of the employment, including the individual’s work product, time, place and content of work. In addition, the beneficiary should possess specialized knowledge of the petitioner’s product, service, research, equipment, techniques, management or other interests and its application in international markets, or an advanced level of knowledge or expertise concerning the organization’s processes and procedures. Specialized knowledge is not general knowledge held commonly throughout the industry. AILA’s proposal would strengthen the law in several ways. It would preclude abuse of the L visa category in simple contract labor arrangements. It would maintain the efficiency of a visa category vital for U.S. companies’ transfer of key international employees to the United States. And it would continue to permit the American economy and U.S. workers and employers to benefit from foreign companies’ investment in the United States. H-1B Cap to Revert to 65,000 on October 1, 2003; Education and Training Funded by the H-1B Visa Fee to Sunset on October 1, 2003 Unless Congress acts, the $1,000 “training fee” for H-1B petitions will sunset on October 1, 2003, leaving only the $130 filing fee (and a premium processing fee if you go that route). AILA is talking to BCIS to determine how the agency will handle the transitional period, and we will keep you advised of the results of those discussions. Also sunsetting are the dependent attestations and the ability of the Labor Department to initiate an investigation without a complaint from an aggrieved party. Finally, the cap on the number of new petitions that can be approved in a fiscal year will decrease from the current level of 195,000 to 65,000. It is possible that Congress will act on any or all of these items, but unlikely that such action could take place before October 1. Portions of this newsletter have been reprinted with permission from AILA The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
The immigration law practice of Meyner and Landis LLP provides a full scope of immigration law services. This includes representation of large and small businesses seeking to recruit and retain foreign nationals to meet staffing goals; foreign nationals seeking work or trader or investor opportunities or wanting to achieve family reunification; and foreign nationals in deportation proceedings, including those who face removal from the U.S. due to criminal convictions.
More
Meyner and Landis LLP
One Gateway Center
Suite 2500
Newark, NJ 07102
Tel: (973) 624-2800
Fax: (973) 624-0356
© 2008 by Meyner and Landis LLP. All rights reserved. Disclaimer