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NYC Business Immigration Lawyer Newsletter

SEPTEMBER NYC BUSINESS IMMIGRATION LAWYER NEWSLETTER

DHS will allow 14,000 CW-1 nonimmigrants for FY 2014
WASHINGTON—The Department of Homeland Security (DHS) announced today a limit of 14,000 nonimmigrants for fiscal year (FY) 2014 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program. DHS published the notice in today’s Federal Register.

Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CW program is in effect until Dec. 31, 2014, during which time the CNMI’s nonresident worker program is being transitioned to the U.S. federal immigration system. This transition period was established by the Consolidated Natural Resources Act of 2008 (CNRA), which extended, for the first time, most provisions of U.S. immigration law to the CNMI.

The annual CNRA-required reduction in CW-1 workers will eliminate the CW nonimmigrant classification by the end of the transition period. DHS set the CW-1 limit for FY 2014 at 14,000 to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a CNRA requirement to reduce the numerical limit each year. The CW program will end Dec. 31, 2014, unless it is extended by the U.S. Secretary of Labor.

Today’s announcement does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay or they seek to change CW-1 employer. Approved petitions that request a work-start date in FY 2014 (between Oct. 1, 2013, and Sept. 30, 2014) will count toward the 14,000 limit. The numerical limit applies only to CW-1 principals. It does not directly affect persons currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.

A numerical limit of 15,000 CW-1s was set for FY 2013. As stated in the notice, as of Aug. 13, 2013, employersin the CNMI filed petitions for at least 7,323 transitional workers.

For more information and announcements about immigration benefits in the CNMI, please visit our CNMI Web page at www.uscis.gov/cnmi.

Government Shutdown
This shutdown looms large as communities across the country are gearing up for "The National Day of Dignity and Respect" happening this Saturday, October 5th. With over 130 events planned in 38 states, and hundreds of thousands of community members expected to come out in support, immigration reform will be the talk of the weekend. These marches, vigils and rallies will also set the stage for the Washington D.C. concert in support of immigration reform happening on October 8th.

Today, in sad news for immigration reform advocates (and supporters of ending the detention bed mandate), Republican Representative Spencer Bachus (AL) announced that he would not seek reelection in 2014. Rep. Bachus, representing one of the most conservative areas in the country, has been a vocal supporter of immigration reform over the past few months.


Diversity Immigrant Visa Program
DEPARTMENT OF STATE - SUMMARY: This public notice provides information on how to apply for the DV–2015 Program and is issued pursuant to 22 CFR 42.33(b)(3), implementing sections 201(a)(3), 201(e), 
203(c), and 204(a)(1)(I) of the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153, and 1154(a)(1)(I)). 
Instructions for the 2015 Diversity 
Immigrant Visa Program (DV–2015)

Program Overview 
The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State. Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as ‘‘diversity immigrants,’’ from countries with historically low rates of immigration to the United States. For fiscal year 2015, 50,000 diversity visas (DVs) will be available. There is no cost to register for the DV Program. Applicants who are selected in the lottery (‘‘selectees’’) must meet simple, but strict, eligibility requirements in order to qualify for a diversity visa. 
Selectees are chosen through a randomized computer drawing. Diversity visas are distributed among six geographic regions and no single country may receive more than seven percent of the available DVs in any one year. 
For DV–2015, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, HAITI, INDIA, JAMAICA, MEXICO, NIGERIA, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible. 
Changes in eligibility this year: For DV–2015, natives of Nigeria are no longer eligible. 

Eligibility 
Requirement #1: Individuals born in countries (listed below) whose natives qualify may be eligible to enter. If you were not born in an eligible country, there are two other ways you might be able to qualify. 

• Was your spouse born in a country whose natives are eligible? If yes, you can claim your spouse’s country of birth—provided that both you and your spouse are named on the selected entry, are issued diversity visas, and enter the United States simultaneously. 
• Were you born in a country whose natives are ineligible, but in which neither of your parents was born or legally resident at the time of your birth? If yes, you may claim nativity in one of your parents’ countries of birth if it is a country whose natives are eligible for the DV–2015 program. For more details on what this means, see the Frequently Asked Questions. 
Requirement #2: In addition, to meet the education/work experience requirement of the DV program, you must have either: 
• A high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; or
• Two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. 

Saturday, November 2, 2013. Do not wait until the last week of the registration period to enter, as heavy demand may result in Web site delays. 
No late entries or paper entries will be accepted. The law allows only one entry by or for each person during each registration period. The Department of State uses sophisticated technology to detect multiple entries. If you submit more than one entry you will be disqualified. 
Completing Your Electronic Entry for the DV–2014 Program Submit your Electronic Diversity Visa Entry Form (E–DV Entry Form or DS– 5501), online at www.dvlottery.state.gov. Incomplete entries will be disqualified. 

There is no cost to register for the DV Program. 
You are strongly encouraged to complete the entry form yourself, without a ‘‘Visa Consultant,’’ ‘‘Visa Agent,’’ or other facilitator who offers to help. If somebody else helps you, you should be present when your entry is prepared so that you can provide the correct answers to the questions and retain the confirmation page and your unique confirmation number. It is extremely important that you retain your confirmation page and unique confirmation number. Without this information, you will not be able to access the online system that will inform you of the status of your entry. 
Think carefully if someone else offers to keep this information for you. 

​New U.S. Supreme Court term
The U.S. Supreme Court will begin its new term on October and so far it has not added any crIminal immigration cases to its docket.  In the past the U.S. Supreme Court has issued decisions important decisions such as Descamps v. United States affecting the categorical approach, Chaidez v. United States about the retroactive application of Padilla v. Kentucky, and Moncrieffe v. Holder about the drug trafficking type of aggravated felony, Arizona v. United States, striking down an Arizona law that requires people to submit proof of citizenship when they register to vote, and Hollingsworth v. Perry where the Court held that petitioners did not have standing to defend California’s Proposition 8, California's voter-approved ballot measure barring same-sex couples from state-sanctioned marriage.
Let's wait. It’s still very early on in the Court’s calendar so we may still see an immigration case on the U.S. Supreme Court's docket. 

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JULY 2014 NEWSLETTER ​


Visa Appointment & Processing Wait Time. Click here.

Southwest Border Unaccompanied Alien Children

​Beginning last year and specifically in the last months, CBP has seen an overall increase in the apprehension of unaccompanied alien children from Central America at the Southwest Border, specially in the Rio Grande Valley. Click here

Leon Rodriguez Sworn in as USCIS Director

Leon Rodriguez was sworn on July 9, as the director of U.S. Citizenship and Immigration Services (USCIS) during a ceremony at USCIS headquarters. Rodriguez, born in Brooklyn, and raised in Miami, comes to USCIS with a broad legal background and will lead the nearly 18,000 employee agency charged with administering the nation’s immigration and naturalization system. Click here.


What Works In The Job Training:  A Synthesis of the Evidence

Executive Summary 

On January 30, 2014, President Barack Obama directed Vice President Joseph Biden to lead a Government-wide review of Federal programs in the workforce and training system to ensure they are designed to equip the nation’s workers with skills matching the needs of employers looking to hire. The review culminated in an action plan to make the system more job-driven, integrated, and effective.

To inform the development of the action plan, agencies were asked to summarize the evidence on adult and youth job training strategies and 
programs to “…determine what information is lacking and identify future research and evaluation that can be undertaken to ensure the 
Federal programs invest in effective practices.” This document, prepared by the Secretaries of Labor, Commerce, Education and Health and Human Services, with input from several other Federal agencies and staff, presents the results of that evidence summary. Click here


Let DREAMers Serve in The Military

As President Barack Obama weighs executive actions on immigration issues, U.S. Rep. Bill Foster (D-IL,11) is calling on the Department of Defense to allow young undocumented immigrants known as DREAMers to serve in the military.

In 2012, Obama set up the federal Deferred Action for Childhood Arrivals (DACA) program, which grants a two-year protection against deportation for DREAMers, or immigrants who came to the United States as young children prior to June of 2007. The program lets the immigrants work in the country legally, for example, but it does not provide them with a pathway to citizenship or allow them to join the U.S. Armed Forces. 

"To qualify for a DACA exemption, applicants must undergo background checks and finish high school," Foster said at a press conference Friday morning in Washington, D.C. "It is simply bad policy to turn away these young men and women while we struggle to find qualified Americans who are able and willing to serve. And it is morally reprehensible to deny these patriotic young men and women the opportunity to serve the country they love."

Foster, along with U.S. Rep. Jared Polis (D-CO,2) and 17 other members of Congress, introduced a House resolution Friday urging Secretary of Defense Chuck Hagel to let DREAMers enlist in the military. Proponents of such a move say DACA-eligible immigrants should be able to obtain a green card after serving in the military. 

"A year ago we sent a letter to the Department of Defense asking them to let DREAMers serve in the military," Foster said. "They told us it was a good idea, and they would study it. Well, it’s time to stop thinking and start acting."

The Obama administration could change the policy through executive action, the congressman said. 

"This is just one small fix we can make to our broken immigration system, but it’s a fix that will give hope and opportunity to thousands of DREAMERs while strengthening our military," Foster stressed. 


IMMIGRATION REFORM 2014

President Obama is weighing its options for immigration reform 2014 by using his executive power to make potentially sweeping changes to the nation’s immigration system without Congress, acknowledging the death of his more than year long effort to enact compromise legislation granting legal status to 11 million immigrants here illegally.

Mr. Obama said he had ordered a shift of immigration enforcement resources from the interior of the country toward the southern border, and was asking his team to report back to him by the end of the summer on additional actions he could take. The actions could be as far-reaching as giving work permits and protection from deportation to millions of immigrants now in the country.

Mr. Obama blamed congressional Republicans for the collapse of the legislative effort. “While I will continue to push House Republicans to drop the excuses and act — and I hope their constituents will, too — America cannot wait forever for them to act,” Mr. Obama said in a statement from the Rose Garden, in which he made plain his frustration about what he called Republicans’ failure “to pass a darn bill.”


Court Approves Settlement In Duran-Gonzalez v. DHS

Last week, the federal district court issued its final approval of a settlement agreement in a long pending Ninth Circuit-wide class action, Duran Gonzalez v. DHS. This case involves eligibility for adjustment of status under INA § 245(i) (with an accompanying I-212 waiver application) for individuals who previously were removed and subsequently entered the country without admission. After nearly eight years of litigation, we are pleased to announce that certain individuals with long standing ties to the United States will have the opportunity to apply for lawful permanent resident status in the United States.
August Newsletter By NYC Business Immigration Lawyer

Pursuant to the U.S. law, companies can not employ individuals who are not legally authorized to work in the United Sates – either U.S. citizens, or foreign citizens who do not have the necessary authorization. 

The Immigration and Nationality Act (INA) protects against unfair employment-immigration practice, such as 'document abuse’ where an employer, in seeking to comply with employment verification requirements, asks for more or different documents than required, or refuse to accept documents which are genuine on their face with the intent to discriminate. 

On August 14, 2013, the Department of Justice agreed to settle immigration-related discrimination claims against SOS Employment Group, a company based in Salt Lake City. 

The Department of Justice received allegations made by a work-authorized individual that SOS Employment Group was discriminating against an employee by asking for more or different documents than required. 

The Department’s investigation confirmed allegations, made by a work-authorized individual and when subsequently re-verifying the refugee’s employment authorization, rejected the employee’s valid driver’s license and unrestricted Social Security card and required him to produce a Department of Homeland Security Employment Authorization Document (EAD). The department’s investigation further determined that SOS Employment’s documentary demands were based on the individual’s status as a non-United States citizen. The anti-discrimination provision of the INA, prohibits employers from using discriminatory documentary policies, procedures or requirements based on citizens status or national origin when initially determining or subsequently re-verifying on employee’s authorization for employment. 

Under the terms of the settlement agreement, SOS Employment Group has agreed to pay $9,157.50 in back pay to victim and $1,200.00 in civil penalties to the United States, under the Justice Department training on the anti-discrimination provision of the INA and be subject to monitoring of its employment eligibility verification practices for a period of one year. 


Employers Must Pay Minimum and Overtime Wages to his Undocumented Workers

The 8th Circuit holds aliens, authorized to work or not, may recover unpaid and underpaid wages under the Fair Labor Standards Act of 1938 (F.L.S.A.), 29 U.S. C. sec. 201. Read the decision here. 

Commonsense immigration reform will strengthen New York's economy and creates jobs.

According to Regional Economic Models, Inc., a set of reforms that – like the Senate bill provides a pathway to earned citizenship and expands a high-skilled and other temporary worker programs would together boost New York's economic output by $3.4 billion and create approximately 33,476 new jobs in 2014. By 2045, the boost to New York's economic output would be around $17.7 billion, in 2012 dollars. 

• Immigrants already make important contributions to New York' s economy. For example, New York's labor force is 27.4% foreign-born. In 2009, immigrants accounted for 28% percent of total economic output in the New York metropolitan.Read here.


PREVAILING WAGE METHODOLOGY FOR TEMPORARY NON-AGRICULTURAL EMPLOYMENT

Department proposed to indefinitely delay the implementation of the wage methodology for temporary non-agricultural employment H-2B program

Prevailing Wage - The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the Department's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The requirement to pay prevailing wages as a minimum is true of most employment based visa programs involving the Department of Labor. In addition, the H-1B, H-1B1, and E-3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.

The National Prevailing Wage Center (NPWC) uses the Prevailing Wage Determination Policy Guidance in issuing wage determinations for the Nonagricultural Immigration Programs. The Department updated the guidance in November 2009 following the publication of the H-2B regulation and the corresponding changes to PERM, H-1B, H-1B1, H-1C and E-3 regulations that affected the prevailing wage determination process. 

The Department of Labor (DOL) has issued a notice in the Federal Register that it is proposing to indefinitely delay the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program in order to comply with legislation that prohibits the DOL from using any allocated funds to implement the program. The DOL states that the delay would be in place until such time as “Congress no longer prohibits� the DOL from implementing the rule. In addition, the DOL states in the notice that the indefinite delay will allow it to consider public comments sought in conjunction with an interim final rule (IFR) published April 24, 2013.

The IFR revised the methodology by which the DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with the application for certification. The 2011 Wage Rule was originally scheduled to become effective on January 1, 2012, and, as a result of litigation as well as congressional actions, the effective date has been extended a number of times, most recently to October 1, 2013.

I-9 VIOLATION

U.S. v. v. Phoraoh's Gentleman's Club Inc.

The Office of the Chief Administrative Hearing Officer (OCACHO) has jurisdiction over civil penalty cases arising under the INA sec. 274A, sec.274B, and sec. 274C. 

In a complaint filed by Immigration and Customs Enforcement (ICE) against Pharaoh's Gentleman's Club (Respondent), ICE's complaint alleged in Count I that Respondent, an 'adult entertainment' business in Cheektowaga, New York hired 30 named individuals and failed to prepare a Form I-9 for each within three days of hiring them and in Count II that Respondent hired 10 named individuals and failed to ensure that their I-9s were properly completed. Respondent admitted each of these violations but contested the amount of the appropriate penalties to be imposed. 

The OCAHO Administrative Judge (ALJ) noted ICE's burden of proof and observed that factors to considered in levying penalties include:
1. the size of the business of the employer,
2. the good faith of the Employer,
3. the seriousness of the violation(s),
4. whether or not the individuals involved were unauthorized aliens, and
5. any history of previous violations by the Employer.

The ALJ found that the record supported ICE's assessment that Respondent is a small business, that no unauthorized alien were found in the workforce, that there were no history of previous violations, and that the violations found were serious. However, while visual examination of the I-9 forms prepared for the employees named on Count I confirm that most of them have been backdated, she concluded that, absent some indication of what specific instructions were given to Respondent at the time of the notice of inspection, this fact alone was insufficient to support a find by a preponderance of the evidence that good faith was lacking since there were "other competing inferences that could reasonably be drawn in the absence of any information about the surrounding facts and circumstances." Although the record therefore did not support a find that good faith was lacking, she concluded that it did not support a finding that good faith was exercise either, so no finding were made with respect to this either. 

Since the amount ICE sought was more than one-third of Respondent's undistributed profits and in any event appeared "unduly harsh" in the light of the record and the financial setback that Respondent was experiencing, ALJ adjusted the penalties as a matter of discretion to $450. for each of the Count I violation and $400. for each of the Count II violation for a total of $17,500,00.

COMPREHENSIVE IMMIGRATION REFORM 2013

Forty-one leader in the immigration advocacy community hold noisy but peaceful sit-in on Capital Hill and are arrested after a demanding a vote on immigration reform. Protest is a part of effort to jolt House lawmakers' attention as they begin August recess. 





OCTOBER 2014 NEWSLETTER 

The Ebola Virus 
The American response to the Ebola virus continued to splinter Monday. New York and New Jersey, which had implemented quarantines in recent days, backed away from strict enforcement. Late Monday, the Army announced that it would quarantine all troops taking part in DOD's response to Ebola in West Africa. But the CDC issued new guidelines that ruled out organized quarantines.

USCIS Expands the Definition of “Mother” and “Parent” to Include Gestational Mothers Using Assisted Reproductive Technology (ART)
USCIS issued a new policy (PA-2014-009) clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers. USCIS and the Department of State (DOS), who exercise authority over these issues, collaborated in the development of this policy. USCIS and DOS concluded that the term “mother” and “parent” under the INA includes any mother who:

*    Gave birth to the child, and
*    Was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.
*    Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an         egg donor) will:

Be able to petition for her child based on their relationship
Be eligible to have her child petition for her based on their relationship
Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.

USCIS updated our policy manual, Adjudicator’s Field Manual, and Web pages to reflect this change.

New E-Verify Service Combats Fraud, Protects Identity, Educates Workers
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced the launch of myE-Verify—a new website designed for employees. myE-Verify is a one-stop shop for employees to create and maintain secure personal accounts and access new features for identity protection.  

“Since its inception, E-Verify has provided employees with valuable online tools and resources regarding the employment eligibility verification process,” said Director Rodríguez. “myE-Verify signifies a significant step forward for added transparency, features, and identity protection.”

myE-Verify gives workers a free and secure way to participate in the E-Verify process by accessing features dedicated for employees, including Self Check and the Employee Rights Toolkit. For added security, individuals will have their identities verified through Self Check, in order to create a myE-Verify account.

​Temporary Protected Status Extended for Honduras
Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status (TPS) for eligible nationals of Honduras for an additional 18 months, effective Jan. 6, 2015, through July 5, 2016.

Current TPS Honduras beneficiaries seeking to extend their TPS must re-register during the 60-day re-registration period that runs from Oct. 16, 2014 through Dec. 15, 2014. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. USCIS will not accept applications before Oct. 16, 2014.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible TPS Honduras beneficiaries (or persons without nationality who last habitually resided in Honduras) who re-register during the 60-day period and request a new EAD will receive one with an expiration date of July 5, 2016.

Temporary Protected Status Extended for Nicaragua
Secretary of Homeland Security Jeh Johnson will extend Temporary Protected Status (TPS) for eligible nationals of Nicaragua for an additional 18 months, effective Jan. 6, 2015, through July 5, 2016.

Current TPS Nicaragua beneficiaries seeking to extend their TPS must re-register during the 60-day re-registration period that runs from Oct. 16, 2014 through Dec. 15, 2014. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins. USCIS will not accept applications before Oct. 16, 2014.

The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible TPS Nicaragua beneficiaries (or persons without nationality who last habitually resided in Nicaragua) who re-register during the 60-day period and request a new EAD will receive one with an expiration date of July 5, 2016.