Vol. XXXXII A MONTHLY UPDATE ON IMMIGRATION November 2009In this Issue: Recent Immigration Law News & Policy Updates
CORPORATE AND BUSINESS IMMIGRATION LAW NEWS AND POLICY UPDATESOur Global Immigration Practice; Attendance at the Biennial Global Immigration Law Conference in LondonTo keep pace with our clients' growing needs in today's global economy, and to complement our full service U.S. business immigration practice, we have worked diligently to develop a network of reputable immigration law providers to regularly assist our clients with global immigration issues worldwide. In that connection, our attorneys recently attended the Biennial Global Immigration Law Conference hosted by the International Bar Association ("IBA") in London, England. While the November weather in London left something to be desired, the global relationships we forged with immigration counsel from around the world will be long-lasting and will greatly benefit our U.S. clientele with international business (or prospective business interests abroad). Our Immigration Law Group regularly assists our clients in facilitating global business travel and obtaining temporary work and permanent resident visas abroad. In this regard, we offer a single point of contact to a growing network of vetted immigration counsel whereby our firm maintains direct contact with the individual and his/her employer while maintaining careful oversight of all transactions to ensure they are performed timely and in the most cost-effective manner for our clients. Including pre-existing relationships, our Immigration Law Group is now networked with competent business immigration counsel in Canada, Mexico, Brazil, the United Kingdom, Spain, France, Italy, Germany, Belgium, the Netherlands, Switzerland, Turkey, Nigeria, Australia, New Zealand, Singapore, Israel, India, China, Hong Kong, and the Philippines. In closing, a few afterthoughts/tips from our brief but wonderful stay in London: Arbutus Restaurant's "saddle of rabbit and shoulder cottage pie" is much more appetizing than its description suggested... A guided tour of the Tower(s) of London by one of the Tower's watchful guards (the "Beefeaters") is well worth the wait... Be sure to reserve a table at China Tang at the Dorchester Hotel for the Peking duck and an unparalleled atmosphere... We would like to thank the IBA and our British colleagues for their kind hospitality which only added to the overall success of the IBA conference. USCIS Updates The Number Of H-1B Petitions Filed Under The CapUSCIS has once again updated its announcement regarding the number of H-1B petitions it has received and counted towards the H-1B cap. As of November 27, USCIS has received approximately 58,900 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. As such, USCIS continues to accept petitions subject to the general cap. Since the Service has received 20,000 petitions qualifying for the advanced degree cap exemption, any H1-B petitions filed on behalf of a foreign national with an advanced degree will now count toward the general H1-B cap of 65,000. Although USCIS will continue to accept both cap-subject petitions and advanced degree petitions until the cap is met, we would highly recommend that you act promptly if you are contemplating the sponsorship of a foreign national for an H-1B visa under the cap. Over the past several weeks, the cap has been filled at an increasing rate of nearly 2,000 petitions per week. At this rate, the FY 2010 H-1B cap could be reached at any moment if this increased demand continues, so time is of the essence!! What Does The Impending Expiration of the H-1C Nursing Relief Act Mean?Effective December 21, 2009, the "Nursing Relief for Disadvantaged Areas Reauthorization Act" ("NRDAA") will sunset without further action from Congress. By way of background, in 1999, the NRDAA established the H-1C Program to reduce the shortage of qualified nurses in health professional shortage areas. In December 2006, the Program was reauthorized through December 20, 2009 under the "Nursing Relief for Disadvantage Areas Reauthorization Act of 2005". The H-1C visa is limited to nurses who wish to work in health professional shortage areas. Only 500 H-1C visas are granted annually. The H-1C visa is valid for three years and cannot be extended under current regulations. To qualify for an H-1C visa, a nurse must have a full and unrestricted license to practice professional nursing in the country where he/she obtained his/her nursing education, or have received nursing education in the U.S.; have passed an appropriate examination (determined by the DHHS), or have a full and unrestricted license to practice as a registered nurse in the state of intended employment; and be fully qualified and eligible under the state laws and regulations of the state of intended employment to practice as a registered nurse immediately upon admission to the U.S. Under the H-1C Program, eligible hospitals filed attestations with the Department of Labor's, Employment and Training Administration ("ETA") to support nonimmigrant worker petitions filed with the Department of Homeland Security's U.S. Citizenship and Immigration Services. Absent further legislative action, the H-1C Program will not be reinstated and DOL will no longer accept H-1C Attestations on Form ETA 9081 for foreign nurse positions effective December 21, 2009. In the meantime, hospitals utilizing the H-1C Program may continue to file applications with DOL through its other programs including the H-1B Program and the PERM Program, as appropriate. USCIS Publishes Guidance On The Regulatory Requirements For Agents And Sponsors Of "O" And "P" PetitionsDonald Neufeld, Acting Associate Director, Domestic Operations of USCIS recently published guidance seeking to clarify the adjudicative standards associated with O and P petitions in the very specific instance where such petitions are filed by a petitioner acting as a U.S. agent for a beneficiary (or beneficiaries) who will be working for more than one employer within the same period. The guidance ("Neufeld Memo") also serves to reaffirm the definition of a U.S. sponsoring organization as it applies to the P Visa Classification. BackgroundThe O visa program is available to a person who can demonstrate an extraordinary ability in the sciences, arts, education, business or athletics, or those in the motion picture and television industry. O-1 and O-2 petitions may be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. The P-1 visa program is available to a person who performs as an athlete, individually or as a part of a team, that is "internationally recognized" [attained a high level of achievement], or a person who performs with (or an essential part of) an entertainment group that has been recognized internationally. The P-2 visa program is available to a person who performs as an artist or entertainer, individually or as a part of a group, who seeks to enter the U.S. as a part of a reciprocal exchange program between an organization in the U.S. and a foreign organization. The P-3 visa program is available to a person who performs as an artist, entertainer, teacher, trainer, coach, or interpreter, individually or as part of a group, in a musical, theatrical, or artistic performance or presentation which is culturally unique. P petitions may be filed by a U.S. employer, a U.S. agent, a U.S. sponsoring organization, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the O or P beneficiary (employee) plans to work concurrently for more than one employer within the same specified time period, each employer must file a separate petition with the Service Center which has jurisdiction over the area where the foreign national will perform services. See 8 CFR 214.2(o)(2)(iv)(B); 8 CFR 214.2(p)(2)(iv)(B). A way to avoid filing multiple petitions, when appropriate, is for an established agent (i.e. sports agent, fight promoter, art director) serve as the actual employer of the beneficiary. The Neufeld Memo's Guidance For "O" and "P" Petitions Filed By A U.S. AgentA petition filed by an "established agent" is subject to certain conditions. A petition involving multiple employers may be filed by a person or company in business as an agent that acts as the representative of both the employers and the beneficiary, so long as the following evidence is supplied:
See 8 CFR 214.2(o)(2)(iv)(E)(2) and (p)(2)(iv)(E)(2). In addition to the foregoing evidence, for an agent to be considered the actual employer of the beneficiary, the agent must also demonstrate that he/she is "in business as an agent." While the regulations do not specify the appropriate evidence to establish that one is "in business as an agent," the Neufeld Memo instructs adjudicators to "focus on whether the petitioner can establish that it is authorized to act as an agent for the other employers for the purposes of filing the petition." This guidance should serve to end some of the irregularities in adjudications of O and P petitions filed by U.S. agents. The Neufeld Memo instructs adjudicators that the petitioner is not required to demonstrate that he/she normally serves as an agent outside the context of the petition. Therefore, one need only establish that petitioner is duly authorized to act in the employers' place for the limited purpose of filing the O or P petition with USCIS to demonstrate that one is "in business as an agent". Conservatively, however, we would still recommend supplementing the petition with other forms of probative evidence to avoid an RFE, such as (i) a statement confirming the relevant information [itinerary, names and addresses of the series of employers] signed by the petitioner and the series of employers; (ii) other types of agency representation contracts; (iii) agency fee arrangements; and/or (iv) statements from the other employers regarding the nature of petitioner's representation of the employers and beneficiary. The Definition of "U.S. Sponsoring Organization" as it Applies to the P Visa ClassificationA "P" petition filed by a U.S. sponsoring organization is also subject to specific guidelines. A sponsoring organization is defined as "... an established organization in the U.S. which will not directly employ a P-1, P-2 or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition." A sponsoring organization therefore can qualify as a petitioner if it can provide evidence, such as a written contract between it and the beneficiary that, although it will not directly employ the beneficiary, it will guarantee the terms and conditions of the employment of the beneficiary. DHS Announces Rule Seeking Permanent Global Entry ProgramOn November 19, Department of Homeland Security ("DHS") Secretary Janet Napolitano announced the publication of a new proposed rule seeking to establish Global Entry [a U.S. Customs and Border Protection ("CBP") voluntary initiative that streamlines the international arrivals and admission process at airports for trusted travelers through biometric identification] as a permanent program. In support of the proposed rule, Secretary Napolitano said, "Global Entry expedites the customs and security process for trusted air travelers through biometric identification while helping DHS ensure the safety of all airline passengers... Making Global Entry permanent will improve customer service at airports across the country and enable law enforcement to focus on higher-risk travelers." Global Entry is currently available as a pilot program at 20 U.S. international airports. The program allows pre-approved members a streamlined, automated alternative to regular passport processing lines. The program currently reduces average wait times by more than 70 percent, with more than 75 percent of travelers using Global Entry processed in under five minutes. The proposed rule proposes federal regulations that would end the current pilot and make Global Entry permanent—allowing CBP to expand the program to additional U.S. international airports. Those members currently participating in the pilot program will have their time credited to the five year membership as proposed in the rule, so there will be no break in membership or need to re-apply when the program becomes permanent. HIV Travel Ban Lifted By CDCEffective January 10, 2010, the Centers for Disease Control and Prevention ("CDC") has amended its regulations to remove Human Immunodeficiency Virus ("HIV") infection from the definition of "communicable disease of public health significance" and has removed references to HIV from the scope of examinations for aliens. Prior to this final rule, aliens with the HIV infection were considered to have a "communicable disease..." and were, thus, deemed inadmissible into the United States pursuant to the Immigration and Nationality Act ("INA"). While HIV infection is a serious health condition, the CDC has determined that it does not fall within the category of "a communicable disease that is a significant public health risk" for introduction, transmission, and spread to the U.S. population through casual contact. As a result of this final rule, aliens will no longer be deemed inadmissible into the United States based solely on the ground that they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration. Portions of this Newsletter have been The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
Meyner and Landis LLP
One Gateway Center
Suite 2500
Newark, NJ 07102
Map
Tel: (973) 624-2800
Fax: (973) 624-0356
© 2012 by Meyner and Landis LLP. All rights reserved. Disclaimer