Blog • Gibney Anthony & Flaherty LLP

Immigration Alert: June 2012 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 11 May 2012 14:50:00 -0500

The U.S. Department of State (DOS) has published the June 2012 Visa Bulletin. Due to continued high demand, immigrant visa numbers for Chinese and Indian nationals in the employment-based second preference category (EB-2) have become unavailable. DOS has stated that the EB-2 category will remain unavailable for China and India for the duration of Fiscal Year (FY) 2012 (i.e., through September 30, 2012), with visa numbers expected to become available again in October 2012. USCIS will continue to accept I-485 Applications to Adjust Status for Indian and Chinese nationals in the EB-2 category for the remainder of May, based on the originally announced May 2012 cut-off dates.

In contrast, the priority cut off dates for China and India in the employment-based, third preference (EB-3) category advanced slightly, to August 8, 2005 and September 15, 2002 respectively.

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

*DOS has projected that, based on the current rate of demand, it may be necessary to establish a cut-off date for the EB-1 category near the end of FY 2012 in order to limit usage within the annual numerical quota.

Employment-based, second preference (EB-2):

Worldwide: Current
China: Unavailable
India: Unavailable
Mexico: Current
Philippines: Current

*DOS has projected that, based on the current rate of demand, it may be necessary to establish a cut-off date for the EB-2 category for all countries other than China and India. Such action may occur at any time during the remaining months of FY 2012.

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: June 8, 2006
China: August 8, 2005
India: September 15, 2002
Mexico: June 8, 2006
Philippines: May 22, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: June 8, 2006
China: April 22, 2003
India: September 15, 2002
Mexico: June 8, 2006
Philippines: June 8, 2006

The full text of the June 2012 Visa Bulletin is available at:
http://travel.state.gov/visa/bulletin/bulletin_1360.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: H-1B Cap Update

Marian Pierce — Tue, 24 Apr 2012 12:53:47 -0500

On April 24, 2012, U.S. Citizenship & Immigration Services (“USCIS”) announced that, as of April 20, 2012, approximately 25,000 H-1B cap-subject petitions were receipted. In addition, USCIS has received approximately 10,900 H-1B petitions for aliens with U.S. advanced degrees.
Accordingly, USCIS reported a total of 35,900 H-1B cap cases filed for Fiscal Year (FY) 2013, a marked increase from the last count of 30,300 only one week earlier.

As we reported previously, the rate of filings for April has increased dramatically for FY 2013 when compared to FY 2012. Employers considering filing cap-subject H-1B petitions are encouraged to expedite initiating cases so that they may be filed as soon as possible. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for FY 2013 (October 1, 2012 to September 30, 2013), and will not accept new cap-subject filings until April 1, 2013, for employment start dates of October 1, 2013.

By law, each year 65,000 visas are available for regular H-1B cap petitions. An additional 20,000 visas are made available for U.S. Master H-1B cap petitions (advanced degrees awarded at U.S. universities).

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: H-1B Cap Update

Michael Hawkes — Wed, 18 Apr 2012 13:58:59 -0500

U.S. Citizenship & Immigration Services (“USCIS”) announced that, as of April 13, 2012, approximately 20,600 H-1B cap-subject petitions were receipted. In addition, USCIS has received approximately 9,700 H-1B petitions for aliens with U.S. advanced degrees.
Accordingly, USCIS reported a total of 30,300 H-1B cap cases filed for Fiscal Year (FY) 2013, a marked increase from the last count of 25,600 only four days earlier.

The rate of filings for April has increased dramatically for FY 2013 when compared to FY 2012. Employers considering filing cap-subject H-1B petitions are encouraged to expedite initiating cases so that they may be filed as soon as possible. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for FY 2013 (October 1, 2012 to September 30, 2013), and will not accept new cap-subject filings until April 1, 2013, for employment start dates of October 1, 2013.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: H-1B Cap Update

Michael Hawkes — Tue, 10 Apr 2012 12:56:24 -0500

On April 9, 2012, U.S. Citizenship & Immigration Services (“USCIS”) announced that approximately 17,400 H-1B cap-subject petitions were receipted. In addition, they have received approximately 8,200 H-1B petitions for aliens with U.S. advanced degrees.

USCIS began accepting H-1B petitions for Fiscal Year 2013, which runs from October 1, 2012 to September 30, 2013, on April 2, 2012. According to USCIS, this is almost double the number of filings received by USCIS during this time last year.

By law, each year 65,000 visas are available for regular H-1B cap petitions. An additional 20,000 visas are made available for Master H-1B cap petitions (advanced degrees awarded at U.S. universities).

For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert at:
http://www.gibney.com/news/read/7499edbf4430340e0b6bf0dfb7c8c3fa4bba5e54. If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: CBP Proposes New Definition of Family Members Residing in Household

Michael Hawkes — Tue, 03 Apr 2012 08:15:11 -0500

On March 27, 2012, U.S. Customs and Border Protection (CBP) announced a proposal to expand the term “members of a family residing in one household” to allow more residents traveling together on their return to the United States to make a single family customs declaration for items acquired abroad. The proposed change would define “members of a family residing in one household” to include foster children, stepchildren, half-siblings, legal wards, other dependents, and individuals with an in loco parentis or guardianship relationship. The definition would also include two adults who are in a committed relationship including, but not limited to, long-term companions and couples in civil unions or domestic partnerships where the partners share financial assets and obligations, and are not married to or the partner of someone else. In addition, “members of a family residing in one household” would continue to encompass relationships of blood, adoption and marriage. The expanded definition would not extend to roommates or other cohabitants who do not meet these requirements.

The proposed changes would not alter the residency requirement for family household members which provides that the family members must live together in one household at their last permanent residence and must intend to live together in one household upon their arrival in the United States.

CBP maintains this proposed change more accurately reflects relationships between members of the public who are traveling together as a family. Moreover, CBP anticipates that the proposed change will reduce the amount of paperwork that CBP officers must review during the inspection process, and, therefore, will facilitate more efficient passenger processing.

Immigration Alert: Leglislation Introduced to Qualify Israeli Investors for E-2 Visas

Michael Hawkes — Tue, 03 Apr 2012 08:11:53 -0500

On February 9, 2012, Rep. Berman (D.-Calif.) introduced H.R. 3992, which would add Israel to the list of countries eligible to receive E-2 nonimmigrant visas as investors if Israel provides reciprocal nonimmigrant status to U.S. nationals in Israel. The bill was passed by a voice vote on February 28, 2012 by the House Judiciary committee, and was subsequently passed by the House of Representatives on March 19, 2012 by a vote of 371-0.

On May 9, 2011, a companion bill, S. 921, was introduced in the Senate by Sen. Schumer (D.-N.Y.), Sen. Kirk (R.-Ill.) and Sen. Kyl (R.-Ariz.). The Senate Judiciary committee has yet to consider the bill.

If enacted, both H.R. 3992 and S. 921 would permit Israeli nationals to obtain E-2 visas to develop and direct the operations of an enterprise in which an Israeli investor has invested or is actively in the process of investing, a substantial amount of capital.

Gibney will continue to monitor the status of this legislation and provide updates as they become available.

Immigration Alert: Fiscal Year 2013 H-1B Cap Now Open

Michael Hawkes — Mon, 02 Apr 2012 13:16:00 -0500

Today marks the beginning of the filing period for H-1B petitions subject to cap limits for the fiscal year (FY) 2013, which runs from October 1st, 2012 to September 30th, 2013.

The H-1B visa category is reserved for employer-sponsored “specialty” or “professional” occupations which require at least a Bachelor’s degree in a specialized field. The non-immigrant visa category has a limit of six (6) years, with the ability to extend if green card sponsorship is pursued.

By law, each year 65,000 visas are available for Regular H-1B cap petitions (Bachelor’s degrees). An additional 20,000 visas are made available for Master H-1B cap petitions (advanced degrees awarded at U.S. universities). If more than 65,000 Regular H-1B cap cases are received at the U.S. Citizenship and Immigration Services (USCIS) within the first five (5) business days of the FY (from April 2nd to 6th), USCIS provides for a lottery to determine which cases are selected. Master H-1B cap petitions will still continue to count against the 20,000 visa limit until it is reached.

The H-1B cap has not been reached in the first five (5) days since FY 2009. For example, in FY 2012, the H-1B Master’s cap was reached on October 21st, 2011, and the Regular H-1B cap was reached on November 22nd, 2011. However, as the number of cap petitions received by USCIS is unpredictable, it is recommended that employers file their cap-subject H-1B petitions on or as soon after April 2nd as possible in order to ensure inclusion in the FY2013 cap. Once the H-1B cap is met, the next possible time to file cap-subject H-1B petitions will be in FY 2014 (with filing starting April 1st, 2013 and an H-1B start date of October 1st, 2013 or later).

Immigration Alert: E-Verify Mandatory for Alabama Employers Beginning April 1, 2012

Michael Hawkes — Fri, 30 Mar 2012 13:42:44 -0500

Beginning April 1, 2012, all employers within the State of Alabama are required to register for and utilize E-Verify, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration. Use of the otherwise voluntary E-Verify system was made mandatory as part of the Beason-Hammon Alabama Taxpayer & Citizen Protection Act (H.B. 56), signed by Governor Robert Bentley in June 2011. Following their enrollment in E-Verify, employers in Alabama must use the online system to verify the employment authorization of all newly hired employees.

To assist smaller employers within the state, H.B. 56 also established the Alabama E-Verify Employer Agent Office to provide assistance to employers with 25 or fewer employees. In essence, the State has registered itself as an “employer agent” within the federal E-Verify system, and employers may elect to designate the State of Alabama to conduct the online employment eligibility verification process on their behalf. Further information about this program may be found on the website of the Alabama Department of Homeland Security.

Seventeen (17) states now have laws related to the mandatory use of E-Verify for some or all employers. Given that cities, counties, and other jurisdictions are also enacting similar measures, it is critical for employers to be mindful of this complex patchwork of laws, and to develop strategies to ensure compliance in all employment matters.

Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement, or for advice on developing protocols and best practices concerning immigration-related onboarding processes.

Gibney IP Partner to Speak at USPTO Lecture Series

Michael Hawkes — Thu, 29 Mar 2012 10:49:04 -0500

The United States Patent & Trademark Office (USPTO) has invited Gibney Intellectual Property Partner, Angelo Mazza, to speak on April 12, 2012 in Alexandria, VA at a new lecture series designed for USPTO examining attorneys. Mr. Mazza, who specializes in trademark and internet enforcement, will join Assistant U.S. Attorney, John Zacharia of the Computer Crime & Intellectual Property Section (CCIPS) of the U.S. Department of Justice (DOJ) in addressing a group of several hundred examining attorneys invited to attend the lecture series.

Intellectual Property Attorney Michael Lee to Speak at Chicago Comic & Entertainment Expo

Michael Hawkes — Wed, 14 Mar 2012 15:44:15 -0500

Gibney Senior Counsel, Michael Lee will speak at the Chicago Comic and Entertainment Expo (C2E2) on Friday, April 13, 2012 from 2:30pm to 3:30pm. Mr. Lee will give a presentation entitled, The Legal Aspects of Becoming Famous: How to Protect Yourself and Your Creations.

This seminar will focus on:

Intellectual property protection basics
Overview of copyrights and trademarks
Overview of fair use
What to do if someone improperly uses your works

For further information on C2E2 please visit http://www.c2e2.com/

Gibney Immigration Attorney, Deborah Davy to Speak on Panel in New York

Michael Hawkes — Wed, 14 Mar 2012 15:41:45 -0500

On Tuesday, April 3, 2012, Gibney Senior Counsel, Deborah Davy, will speak on a panel at the New York “Totally Expat Show” held by the Forum for Expatriate Management (FEM). The panel discussion, running from 10:20 to 11:05am will center on current immigration compliance issues around the globe.

Topics:

Current trends in immigration compliance
Increased government enforcement globally
Conducting business and complying with immigration law

Gibney professionals will also be present in the show’s exhibit hall to answer questions about global mobility legal services including Expat Protection Planning.

Immigration Alert: April 2012 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 13 Mar 2012 11:39:07 -0500

The U.S. Department of State (DOS) has published the April 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category remained unchanged from last month’s bulletin. However, the priority cut off dates for China and India in the employment-based, third preference (EB-3) category advanced slightly, to March 1, 2005 and September 1, 2002 respectively. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 1, 2010
India: May 1, 2010
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: April 8, 2006
China: March 1, 2005
India: September 1, 2002
Mexico: April 8, 2006
Philippines: April 8, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: April 8, 2006
China: April 22, 2003
India: September 1, 2002
Mexico: April 8, 2006
Philippines: April 8, 2006

The full text of the April 2012 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5674.html#
If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Gibney Immigration Partner to Speak at Ontario - New York Legal Summit Examining Cross-Border Issues

Michael Hawkes — Fri, 09 Mar 2012 07:09:41 -0600

On March 28, 2012 Immigration Partner Claire Razzolini will co-moderate a panel discussion in Toronto at the Ontario – New York Legal Summit. The panel, entitled “Both Sides Now – An in Depth Examination of Selected Topics in Canada and US Immigration,” will discuss varying approaches to immigration in the United States and Canada on matters pertaining to the following:

Business visitors;
Work visas;
Permanent resident sponsorship and the impact of economic factors;
Inadmissibility issues;
Worksite enforcement; and
Current trends in policy and legislation

The Ontario – New York Legal Summit is an historic two-day event that will feature triple track programming in the areas of Commercial, Litigation and General Law. It is being held by the New York State Bar and Ontario Bar Associations in cooperation with the Law Society of Upper Canada. For more information please visit http://www.nysba.org/OBANYLegalSummit.

IP News: Gibney Partners to Speak at the Practicing Law Institute in New York on March 28th

Michael Hawkes — Thu, 08 Mar 2012 06:57:00 -0600

At a PLI workshop for IP practitioners on March 28th, Gibney Partners Brian Brokate and Angelo Mazza will be among faculty discussing criminal and civil IP enforcement programs and legal updates from the perspective of government and federal agencies, in-house brand counsel and outside private practitioners. The program will also discuss how these groups work together to undertake coordinated efforts.

Specific topics for the full-day event will include:

Current Government IP Enforcement Programs and Coordinating Enforcement Matters with Government Officials
Trademark, Patent, and Copyright Enforcement Updates
Practical Advice on Stopping Blatant Infringements
Ethics – Conflicts of Interest

Click here for more details or to register.

Global Immigration Alert - United Kingdom: London 2012 Olympic and Paralympic Games

Michael Hawkes — Wed, 07 Mar 2012 13:34:00 -0600

The 2012 Olympic Games in London is quickly approaching and will be the biggest event the UK has hosted. Specifically, the Olympics and Paralympics will run from the end of July until mid-September 2012. During this period it is expected that Central London will have to accommodate approximately 9 million Olympic Games spectators, 2 million Paralympic Games spectators and almost 300,000 athletes and their supporters, officials and media personnel.

Travel to the UK:

Individuals traveling to the UK for this main event as spectators are strongly urged to plan ahead and make travel arrangements as soon as possible. In preparation for your travel during this eventful Summer 2012 period to London, please note the following tips:

Find out if you need a visa to travel to the UK. If so, apply now to avoid any interruptions in UK visa processing that may hinder your travel.
Be sure your passport has ample validity for your upcoming travel.
Upon arrival, stay in family groups and have your travel documents and passports available and ready to present to the UK immigration officers.
Have landing cards fully completed and ready.
Use automatic e-passport gates (where available, if you have a ‘chipped’ passport).
Use the separate EEA/EU channel if you are a national of the EU or EEA.
Know what you can and cannot bring when traveling to the UK. Please see: http://www.ukba.homeoffice.gov.uk/customs-travel/customs/.

These pointers can help the entry process move along and keep delays to the minimum.

Please also note that there will be dedicated lanes set up at the UK Border for game officials, athletes, family members of athletes, coaches and media. These lanes are not for spectators as the entry process is different.

U.S. Visa Processing at the US Embassy in London:

The U.S. Embassy in London has advised that the Summer Olympics in London will have a significant impact on U.S. Non-Immigrant Visa (NIV) processing for all applicants applying for U.S visa stamps.

In preparation for the Olympics, the Embassy will begin concentrating its resources on U.S. Citizen services and has confirmed that there will be limited visa appointment availability during the months of July and August, with priority given to F and J student visa applications in advance of the fall school term. Because of this, the Embassy is encouraging all NIV applicants to apply for their visa stamps during the spring and early summer, or to wait to apply in the fall, as appointment availability cannot be guaranteed during the months of July and August.

As such, for any employee that may require a visa during this time, we would recommend that applicants plan ahead and apply early.

Immigration Alert: H-1B Filings for Fiscal Year 2013

Michael Hawkes — Wed, 07 Mar 2012 13:28:00 -0600

April 2, 2012 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2013 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Background

H-1B cap cases generally fall within two categories:

“Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 2 as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Potential beneficiaries who should be considered for H-1B status include, but are not limited to: potential new hires from overseas, students in F-1 status, J-1 exchange visitors, L-1B visa holders or employees working in TN status who wish to change to H-1B status in the coming year.

Last year, the H-1B cap was not reached until November 22, 2011. This was two months earlier than the preceding fiscal year, during which the H-1B cap was reached on January 26, 2011. It is anticipated that H-1B cap filings will continue to rise as the economy continues to recover, resulting in earlier H-1B visa exhaustion.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2013 annual cap. These include the following:

Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Status of Proposed Changes to the Filing Procedure

To date, USCIS has not implemented any changes to H-1B cap filing procedures. In October 2011 USCIS rescinded a plan that would have required employers to pre-register with USCIS before filing an H-1B cap petition for the upcoming fiscal year. USCIS now plans to incorporate the objectives of this plan into its ongoing USCIS Transformation initiative, which intends to mandate e-filing of applications for immigration benefits by 2014. Gibney will continue to monitor this matter, and provide additional information concerning changes to the H-1B cap program as they develop.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Webinar to be Held on March 28, 2012

Michael Hawkes — Tue, 06 Mar 2012 12:19:31 -0600

Webinar - HR Managers: What You Need to Know About Family Immigration Issues

Wednesday, March 28, 2012 at 12:00 pm EST

Please join us for this informative webinar. RSVP by clicking on the registration link below.

http://bit.ly/gibney-webinar

Today's global HR professionals are attuned to common immigration challenges that affect their internationally mobile employees.

Do you know what issues confront their accompanying family members, and how they can impact short and long-term planning for international employment?

Join Us for this webinar that will examine:

How the U.S. and other countries define "family" and treat cohabiting partners;
Rights and restrictions for those accompanying individuals, as well as domestic employees; and
Other issues that confront families during the process of applying for permanent residence status and in acquiring citizenship around the world.

The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit.

Immigration Alert: March 2012 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 13 Feb 2012 10:41:55 -0600

The U.S. Department of State (DOS) has published the March 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced four months, to May 1, 2010. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 1, 2010
India: May 1, 2010
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: March 15, 2006
China: January 1, 2005
India: August 22, 2002
Mexico: March 15, 2006
Philippines: March 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: March 15, 2006
China: April 22, 2003
India: August 22, 2002
Mexico: March 15, 2006
Philippines: March 15, 2006

The full text of the March 2012 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5664.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Please click here to receive client alerts by email.

Immigration Alert: President Obama Issues Executive Order to Improve Visa and Foreign Visitor Processing

Michael Hawkes — Fri, 27 Jan 2012 13:06:34 -0600

On January 19, 2012, President Obama signed an Executive Order aimed at improving U.S. visa and foreign visitor processing, and promoting travel to the United States. Highlighting the importance of travel and tourism to the U.S. economy and job creation, the President charged several government agencies, including the Department of Homeland Security (DHS) and Department of State (DOS), with leading new initiatives and identifying strategies to enhance and expedite travel to the United States.

In issuing the Executive Order, President Obama recognized that stringent security measures imposed after 2001 may have contributed to at least a 30 percent decrease in the U.S. market share of travel and tourism globally between 2000 and 2010, and stated that a coordinated policy and new initiatives, consistent with national security, are needed to support the U.S. travel and tourism industry moving into the 21st century.

Improvements to visa and foreign visitor processing were identified as key goals, and the President ordered that an interagency process be adopted within 60 days to coordinate the implementation of regulatory changes and the evaluation of legislative proposals aimed at improving and expediting travel to the United States. In addition, the President ordered DHS and DOS to develop a joint implementation plan to achieve several specific visa goals including:

Increase nonimmigrant visa processing capacity in China and Brazil by 40 percent in 2012;
Ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application (recognizing resource and security considerations);
Increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and
Expand reciprocal recognition programs for expedited travel, such as the Global Entry program.

Requiring periodic progress reports on these stated goals, the President also directed that a publicly available website be established by the Department of Commerce to provide relevant metrics from the federal government, including information and statistics on visa processing, and entry times into the United States.

The Executive Order also establishes a Task Force on Travel and Competitiveness comprised of several federal agencies, including, but not limited to, DHS, DOS, and the Department the Labor. The Task Force is charged with developing a National Travel and Tourism Strategy and is responsible for recommending new policies and initiatives to promote travel opportunities throughout the United States, with the goal of increasing the United States market share of worldwide travel.

The Presidential Executive Order comes at a time when DOS has released information reflecting a significant increase in demand for U.S. visas globally. In a recent statement, DOS indicated that U.S. consulates worldwide had processed 9.6 million visa applications in fiscal year 2011, representing a 17 percent increase over the previous fiscal year. In its statement, DOS noted significant demand from some of the world’s fastest-growing economies, including Brazil, and China, where during the past five years, visa issuance has increased 234 percent and 51 percent respectively. In fiscal year 2011, more than one million visas were processed in China, an increase of more than 35 percent over the previous year.

Like the Startup America initiative, this Executive Order is one more signal from the White House recognizing the importance of foreign nationals to the United States economy. Additional information may be found at Executive Order and State Department Supports Global Travel Growth.

Gibney will continue to monitor these and related developments and provide reports and updates as they become available.

Please click here to receive client alerts by email.

Immigration Alert: February 2012 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 09 Jan 2012 15:04:07 -0600

The U.S. Department of State (DOS) has published the February 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced one year, to January 1, 2010. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. As a result of this advancement, many foreign nationals previously subject to visa retrogression will become eligible to file adjustment of status applications in February. It is important to note that all foreign nationals must be in the United States on the date of filing an adjustment of status application. Eligible applicants should consider any international travel plans accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: January 1, 2010
India: January 1, 2010
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: February 22, 2006
China: December 1, 2004
India: August 15, 2002
Mexico: February 22, 2006
Philippines: February 22, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: February 22, 2006
China: April 22, 2003
India: August 15, 2002
Mexico: February 22, 2006
Philippines: February 22, 2006

The full text of the February 2012 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5640.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Please click here to receive client alerts by email.

Immigration Alert: New State Laws Mandating Use of E-Verify Take Effect in 2012

Michael Hawkes — Thu, 05 Jan 2012 11:55:00 -0600

On January 1, 2012, new laws took effect in five (5) states, requiring employers to register for and use the otherwise voluntary federal E-Verify system. Many of these laws were passed following the U.S. Supreme Court’s May 2011 decision upholding Arizona’s right to mandate the use of E-Verify, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration.

Alabama (HB56): Effective January 1, 2012, all employers who wish to contract with the state, or with any city, county, or public authority within Alabama, must be registered with E-Verify, and must affirm that all subcontractors with which they do business will also participate in E-Verify.

Beginning April 1, 2012, all employers operating within Alabama will be required to register for and use E-Verify.

Georgia (HB87): Effective January 1, 2012, all employers with 500 or more employees must register for and use E-Verify. Employers with 100 to 499 employees must be registered with E-Verify by July 1, 2012; and employers with 11 to 99 employees must register beginning January 1, 2013. Employers with 10 or fewer employees are exempted from the law.

Louisiana (HB342): Effective January 1, 2012, any employer contracting with state or local governments within Louisiana must register for and use E-Verify through the term of the contract. In addition, state contractors must affirm that subcontractors hired as a result of the state or local contract also participate in E-Verify.

In addition, as of this past August 2011, all employers are required to either retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process or participate in E-Verify. (While the Form I-9 process is mandatory under federal law, retention of photocopies is generally optional.)

South Carolina (SB20): Effective January 1, 2012, all employers operating within the state will be required to register for and use E-Verify.

Tennessee (HB1378): Effective January 1, 2012, on a rolling basis, employers must either retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process, or participate in E-Verify. Employers with 500 or more employees must comply beginning January 1, 2012. Employers with 200 to 499 employees must comply beginning July 1, 2012; and employers with 6 to 199 employees must comply beginning January 1, 2013. Employers with 5 or fewer employees are exempted from the law.

Also effective this year, a new law in North Carolina will require all employers with 500 or more employees to register for and use E-Verify beginning October 1, 2012.

On the other side of the spectrum, California passed legislation in October 2011 that preempts county, municipal, and other local government laws that mandate the use of E-Verify. Participation in E-Verify is therefore voluntary in California according to state law, except to the extent it is mandatory under federal law – i.e., for certain federal contractors.

It is additionally important for employers to comply with all federal anti-discrimination laws during the onboarding process. With new state laws increasing the penalties for employers who fail to properly verify the employment authorization of their employees, there is an increased risk that employers may engage in conduct prohibited by federal law, notably the Immigration Reform and Control Act (IRCA), which protects employees from discrimination, including “document abuse,” in the Form I-9 and E-Verify processes. Employers must be aware of IRCA prohibitions against requesting specific types of identification or employment authorization documentation during the onboarding process (e.g., proof of U.S. citizenship), as well as laws requiring equal treatment of anyone who is authorized to work in the United States, regardless of citizenship, immigration status, nationality, name, accent, or appearance. State laws mandating the use of E-Verify do not protect employers from federal discrimination claims under IRCA and other federal laws, or from potential fines or prosecution. General information about federal anti-discrimination laws is available from the U.S. Department of Justice at: http://www.justice.gov/crt/about/osc/htm/employer.php

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Immigration Alert: Fairness for High-Skilled Immigrants Act Placed on Hold

Michael Hawkes — Fri, 16 Dec 2011 13:37:33 -0600

We recently reported that on November 29, 2011 the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (H.R. 3012) by a vote of 389-15. If enacted as passed by the House of Representatives, H.R. 3012 would eliminate the per-country limit, currently 7%, on employment-based green card allocation for any given country during the government’s fiscal year. However, the bill would only reallocate visas and would not increase the overall number of immigrant visas available each year.

H.R. 3012 then moved to the U.S. Senate for consideration. On November 30, 2011 Senator Grassley (R-IA) placed the bill on hold, and, on December 15, 2011, offered an amendment that would make dramatic changes to the bill, including elimination of the family-based per county limit increase and reducing the employment-based per country limit to 15%. Additionally, Senator Grassley’s amendment would eliminate the diversity visa (lottery) program and amend the bill to introduce increased enforcement and U.S. worker protection provisions to the H-1B and L-1 visa programs.

Senator Grassley’s amendment was met with objection, and, as a result, H.R. 3012 will remain on hold. The American Immigration Lawyers Association reports that while other senators may try to negotiate a compromise to move the bill forward, at this time, such a compromise appears unlikely.

Gibney will continue to monitor the progress of this legislation in the Senate and provide updates as they become available. If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: January 2012 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 09 Dec 2011 14:59:32 -0600

The U.S. Department of State (DOS) has published the January 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced more than nine months, to January 1, 2009. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. As a result of this advancement, many foreign nationals previously subject to visa retrogression will become eligible to file adjustment of status applications in January. It is important to note that all foreign nationals must be in the United States on the date of filing an adjustment of status application. Eligible applicants should consider any international travel plans, including holiday travel, accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: January 1, 2009
India: January 1, 2009
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: February 1, 2006
China: October 15, 2004
India: August 8, 2002
Mexico: February 1, 2006
Philippines: February 1, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: February 1, 2006
China: April 22, 2003
India: August 1, 2002
Mexico: February 1, 2006
Philippines: February 1, 2006

The full text of the January 2012 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5630.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Fairness for High-Skilled Immigrants Act (H.R. 3012) Passes in U.S. House of Representatives

Michael Hawkes — Wed, 30 Nov 2011 07:07:00 -0600

On November 29, 2011 the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (H.R. 3012) by an overwhelmingly favorable vote of 389-15. The bill now moves to the U.S. Senate for consideration. To take effect, the bill must pass the Senate and be signed into law by the President.

If enacted, H.R. 3012 would eliminate the per-country limit, currently 7%, on employment-based green card allocation for any given country during the government’s fiscal year. It also proposes to increase the country-specific quotas for family-based green cards. The bill would not increase the overall number of immigrant visas available each year; it would only reallocate them. As a result, while the proposed legislation would incrementally increase the number of immigrant visas that are distributed to nationals of retrogressed countries such as India, China, Mexico and Philippines annually over the next three years, because there is no provision to increase the overall number of visas available, the bill’s reallocation scheme would likely slow the immigrant visa wait times for nationals from other countries.

Gibney will continue to monitor the progress of this legislation in the Senate and provide updates as they become available.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Reached November 22, 2011

Michael Hawkes — Mon, 28 Nov 2011 13:24:26 -0600

United States Citizenship and Immigration Services announced that it has received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year (FY) 2012 (October 1, 2011 to September 30, 2012). Any cap-subject petitions received after November 22, 2011 will be rejected. Petitions on behalf of existing H-1B workers filed previously against the cap are not subject to the cap and therefore will continue to be accepted.

USCIS will begin accepting new H-1B petitions on April 1, 2012 for FY 2013 (October 1, 2012 to September 30, 2013). Gibney will work with clients to explore alternatives and options for employees unable to obtain H-1B visas during the remainder of FY 2011.

For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert. If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Form I-9 CNMI No Longer Valid

Michael Hawkes — Mon, 28 Nov 2011 07:33:00 -0600

After November 27, 2011, employers in the Commonwealth of the Northern Mariana Islands (CNMI) will no longer be able to use Form I-9 CNMI. Form I-9 CNMI was a version of Form I-9, valid only in the CNMI, that contained additional List A documents issued by the CNMI government. Employers must use the standard Form I-9 to verify the work authorization of employees hired in the CNMI on or after November 28, 2011.

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Global Immigration Alert - Canada: Changes in Federal Skilled Worker Program

Michael Hawkes — Wed, 23 Nov 2011 06:38:18 -0600

Increase in Quota for Federal Skilled Workers

Citizenship & Immigration Canada (CIC) has announced an increase in its Federal Skilled Worker Program (FSWP) quota for 2012. The FSWP is the principal method to apply for permanent resident or landed status in Canada. The CIC 2011 Immigration Levels Plan for the FSWP quota allowed for 47,400 workers; CIC expects to admit up to 57,000 workers in 2012.

New Scheme for PhD Students and Graduates

Effective November 5, 2011, CIC has implemented a new eligibility scheme for international students pursuing doctorate degrees (PhDs) at Canadian institutions. Applicants must meet one of the following criteria:

Currently enrolled in a doctorate degree (PhD) program administered by a provincially or territorially accredited private or public post-secondary Canadian educational institution located within Canada, and completed at least two years of study towards their degree. The applicant must also be in good academic standing, and may not be a recipient of the Government of Canada Award for financial assistance (which requires the recipient’s return to the home country for the application of knowledge and skills acquired in Canada); or
Completed a doctorate degree (PhD) program from a provincially or territorially accredited private or public post-secondary Canadian educational institution located within Canada less than 12 months prior to application submission. As above, applicants must not have received the Government of Canada Award for financial assistance. If an applicant was a recipient of such an award, all terms and requirements of the award must have been satisfied.

Up to 1000 new FWSP applications by international students will be considered for processing each year.

Gibney will continue to monitor implementation of the new program and provide updates as they become available.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Australia: Priority Processing and Sponsor Accreditation for Subclass 457 Visas

Michael Hawkes — Wed, 23 Nov 2011 06:36:14 -0600

Effective November 7, 2011, employers in Australia may apply for Accredited Status and priority processing to sponsor Temporary Business Entry (Long Stay) visa (Subclass 457) nominations and visa applications for their employees. Applications for Accredited Status may be filed through a new sponsorship application submission or through submission of currently available sponsorship agreements. The validity period for the visa will be up to six years.

To qualify for Accredited Status, sponsors must meet new requirements in addition to those currently in place. Specifically, employers must meet the following criteria in addition to standard requirements:

Must be a government agency, publicly-listed company, or a private company with a minimum of AUS$4 million turnover (gross income) per year for the last three years;
Must have been an active subclass 457 visa sponsor for the past three years, with no more than a six month break in active status. Moreover, regardless of the length of time, the break must not be the result of any sanctions placed on the employer and its eligibility for sponsorship;
Must have no formal warnings and sanctions on-record issued by the Department of Immigration and Citizenship or the Department of Education, Employment and Workplace Relations;
Must have at least 30 primary subclass 457 visas granted in the last 12 months;
Must have filed a large number of decision-ready applications over the previous two years;
Must have an application denial rate of less than 3% for the immediately preceding three year period; and
Over 75% of its workforce must be Australian nationals, and the sponsor must intend and commit to maintaining this profile.

Gibney will continue to monitor implementation of these changes and provide relevant updates as they become available.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - France: Introduction of Blue Card

Michael Hawkes — Tue, 22 Nov 2011 06:47:20 -0600

On May 25, 2009, the European Union passed the EU Blue Card Directive (Council Directive 2009/50/EC) whereby 24 participating countries in the European Union agreed to implement the Blue Card in an effort to attract highly skilled non-EU citizens by facilitating employment and long-term residence. The Directive was scheduled to be implemented by member states in June 2011. However, several member states have yet to adopt and implement the Directive. Notably, the United Kingdom, Ireland and Denmark have decided not to participate and will maintain separate immigration policies.

This November, the French government has taken the final steps to implement its version of the Blue Card, expected to be available by 2012. The Blue Card will broaden the number of work permit categories in France.

Qualifications for the Blue Card

To qualify for the Blue Card, a foreign national must have an employment contract for at least one year, must be paid at least 1.5 times the minimum salary set by the Ministry of Interior, and must have either a three-year degree or at least five years of relevant work experience. The Blue Card does not require preliminary labor market testing. The French Blue Card is expected to be implemented once the French Ministry of Interior announces the minimum salary requirements for the program.

Applicants for the Blue Card must apply within one month of entry into France. Once issued, the Blue Card will be valid for the length of proposed employment, with a maximum validity of three years. It will be renewable. Accompanying spouses will be issued a Private and Family Life category work permit, valid for one year initially and renewable on an annual basis while the principal applicant’s Blue Card remains valid. The French authorities estimate that the processing time for Blue Cards will be 90 days for the principal applicant and 180 days for the accompanying spouse.

Foreign nationals holding Blue Cards for at least 18 months from other EU member states will automatically qualify for the French Blue Card. Qualifying foreign nationals may enter France without a long stay visa and must apply for the French Blue Card within one month of arrival.

French Blue Card holders and their accompanying dependents will qualify for EU long-term resident permits after five years of residence in the EU, provided that the foreign national resided in France for the last two years of the qualifying period.

Expansion of Rights Beyond Immediate Family

The right of entry to France for family members of an EU citizen, other than a spouse or child, will be expanded to include distant family members under the following circumstances:

If in the country of origin, the family member is a dependent or part of the household of an EU citizen;
If for serious health reasons, an EU citizen must take care of the family member;
If the family member demonstrates lasting personal and family ties, other than through marriage, with an EU citizen, such as in the case of common-law marriage. This also applies to same-sex partners if they are recognized as a common-law spouse in the EU country of origin.

Applications for right of entry for distant family members will be adjudicated on a case-by-case basis following review of their application and supporting evidence.

Gibney will continue to monitor implementation of the Blue Card and provide updates as they become available.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Year End Consular Closings

Michael Hawkes — Mon, 21 Nov 2011 15:04:47 -0600

The holiday season is a hectic time for international travel. Consulates are exceptionally busy due to the high volume of visa applicants and offices frequently close during home country and local holidays. We encourage corporate HR personnel, business travelers and foreign nationals to take proactive steps to plan ahead for visa issuance prior to travel.

Holidays and closures should be noted for the following foreign consulates in the United States:

Australia:
November 24 & 25 – Thanksgiving
December 26, 27 & 28 – Christmas
January 2, 2012 – New Year’s Holiday

Brazil:
November 24 & 25 – Thanksgiving
December 26 – Christmas
January 2 – New Year’s Holiday

Canada:
November 24 – Thanksgiving
December 26 & 27 – Christmas
January 2, 2012 – New Year’s Holiday

China:
November 23 & 25 – Thanksgiving
December 26 - Christmas

France:
November 24 – Thanksgiving

Germany:
November 24 – Thanksgiving
December 26 – Christmas

India:
November 24 & 25 – Thanksgiving
December 26 – Christmas
January 2, 2012 – New Year’s Holiday

Ireland:
November 24 & 25 – Thanksgiving
December 26 & 27 - Christmas

Japan:
November 24 & 25 – Thanksgiving
December 23, 26, 29, 30 – Christmas/Year’s End holiday
January 2 – New Year’s Holiday

Mexico:
November 24 & 25 - Thanksgiving

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Immigration Alert: December 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 14 Nov 2011 13:20:35 -0600

The U.S. Department of State (DOS) has published the December 2011 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced more than four months, to March 15, 2008. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. As a result of this advancement, many foreign nationals previously subject to visa retrogression will become eligible to file adjustment of status applications in December. It is important to note that all foreign nationals must be in the United States on the date of filing an adjustment of status application. Eligible applicants should consider any international travel plans, including holiday travel, accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: March 15, 2008
India: March 15, 2008
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 15, 2006
China: September 8, 2004
India: August 1, 2002
Mexico: January 15, 2006
Philippines: January 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: January 1, 2006
China: April 22, 2003
India: July 22, 2002
Mexico: January 1, 2006
Philippines: January 1, 2006

The December advancement of EB-2 priority dates for Indian and Chinese nationals is consistent with DOS predictions that we may expect to see EB-2 priority dates advance at this rate over the next few months. However, these advancements are predicted to be followed by a slow-down and possible retrogression commencing in March 2012, and for the remainder of the 2012 fiscal year (through September 30, 2012).

The full text of the December 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5603.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Holiday Travel Reminders for International Travelers

Michael Hawkes — Mon, 07 Nov 2011 12:51:27 -0600

The holiday season is a hectic time for international travel. Consulates, airports, and ports of entry are exceptionally busy due to the higher volume of travelers and visa applicants. We encourage corporate HR personnel, business travelers, and foreign nationals to take proactive steps and plan ahead prior to travel.

Here are a few key points to remember:

Passports: All travelers, including U.S. and Canadian citizens, should confirm the validity of passports for themselves and all accompanying family members. Passports should be extended or renewed in advance to ensure at least six months of validity at the time of entry to the United States.

Visa Waiver Travelers to the U.S.: The Electronic Screening System for Travel Authorization (ESTA) is a mandatory, online pre-screening for Visa Waiver Program (VWP) travelers. ESTA is only for travelers who are citizens of designated VWP countries and who wish to enter the U.S. for appropriate business or tourism purposes. VWP travelers should complete the online pre-screening process at least 72 hours prior to departure. Once approved, the authorization is granted for up to two years or until the expiration of the traveler’s passport, whichever comes first. For more information regarding the VWP, please visit http://www.travel.state.gov/visa/temp/without/without_1990.html.

Security Screening: Many countries around the world have increased security measures and screening procedures. Under the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, nearly all non-U.S. citizens, including U.S. permanent residents (“green card” holders), are required to provide biometrics upon entry.

Proof of employment: Foreign national employees entering the U.S. on nonimmigrant work-authorized visas are encouraged to carry evidence of current employment, including an updated employment verification letter issued by the employer and recent pay stubs.

Plan ahead for visa issuance: Foreign nationals requiring visa issuance at a U.S. embassy or consulate abroad during the holiday season should check that consulate’s website well in advance of travel to review instructions specific to that post. U.S. embassies and consulates abroad may be short-staffed, especially around U.S. and local holidays (both of which are observed). Consular procedures vary widely from post to post and are subject to change with little or no notice. Links to U.S. consular posts around the world and answers to frequently asked questions about visa issuance are available on the website of the Department of State at http://www.travel.state.gov/visa/visa_1750.html. When planning for travel and visa issuance, be sure to check estimated appointment and processing times by visiting http://travel.state.gov/visa/temp/wait/wait_4638.html. Be aware that these are estimates only; some visa applications require further administrative processing, which is determined after the visa applicant’s interview by a consular officer. When administrative processing is required, the timing will vary based on the individual circumstances of each case.

Port of Entry: Foreign nationals entering the U.S. pursuant to any nonimmigrant visa category should always check their new I-94 card immediately after issuance and while still in the inspection area. Inspecting officers can make errors, and it is the traveler’s responsibility to verify that the new I-94 reflects the correct visa category and expiration date. Any errors should be brought to an officer’s attention immediately. It is burdensome to correct such mistakes after an individual has left the port of entry.

Advance Parole: Applicants for Adjustment of Status (AOS) must ensure that they have a valid Advance Parole document prior to departure from the United States, and valid for reentry on the anticipated return date to the United States. Please note that there are exceptions for H and L visa holders who are maintaining valid H and L status. Immigration counsel should be contacted if there is any question as to whether an AOS applicant has valid documents permitting international travel, as failure to possess such documents could result in abandonment of the adjustment of status application.

If you have any questions regarding this alert, or travel, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Master's Cap Reached

Michael Hawkes — Thu, 27 Oct 2011 07:38:56 -0500

U.S. Citizenship & Immigration Services (USCIS) has announced that as of October 21, 2011, the U.S. Master’s H-1B Cap of 20,000 visas has been reached for fiscal year (FY) 2012, which runs from October 1, 2011 to September 30, 2012. Going forward, H-1B petitions filed for individuals holding a U.S. Master’s degree will be counted against the H-1B Regular Cap. USCIS also announced that, to date, 46,200 H-1B petitions have been filed under the 65,000 H-1B Regular Cap.

Since May, the number of monthly H-1B Regular Cap petition filings has been increasing by approximately 1,000 petitions per month. Notably, from September to October, the number of filings increased by more than 2,000 petitions over the preceding month’s filings. While we cannot predict when the cap will be reached, if the increased rate of filing continues, as is expected now that the Master’s Cap set aside has been exhausted, the H-1B Regular Cap may be reached soon.

Once the H-1B Regular Cap has been reached, USCIS will stop accepting new H-1B petitions for FY 2012. On April 1, 2012, USCIS will begin accepting new applications for FY 2013, which runs from October 1, 2012 to September 30, 2013.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Gibney Partner to Speak at Immigration Conference in London

Michael Hawkes — Fri, 21 Oct 2011 10:26:12 -0500

On November 1, 2011, Gibney Partner, Stephen Maltby, will address an audience of international business leaders in London at a conference hosted by BritishAmerican Business in association with Magrath LLP. The conference will include prominent speakers from the U.K. Border Agency (UKBA), Migration Advisory Committee (MAC) and the U.S. Embassy. Mr. Maltby will speak on U.S. Immigration Policy in the 21st Century.

Other topics will include:
• The Current U.K. Immigration landscape
• Changes to the points based system in 2011
• The outlook for 2012
• The results of MAC and UKBA consultations
• An update from the U.S. Embassy, London
• Changes to the U.S. immigration system

For more information on this conference or BritishAmerican Business please visit http://www.babinc.org/events/430.

Gibney Partners Attend Intercontinental Group of Accountants & Lawyers ("IGAL") Meeting in Chandigarh, India

Michael Hawkes — Thu, 20 Oct 2011 13:36:48 -0500

This month, Gibney Partners, Brian Brokate and Frederick Anthony, joined delegates from around the world at the IGAL annual meeting in Chandigarh, India. With delegates from 48 countries and six continents , IGAL’s mission is to provide a global forum for the professional exchange of ideas, firm management, and social interaction and to reduce the obstacles of doing business in a foreign environment from afar.

SS Sodhi, the former Chief Justice of India's Allahabad High Court, commented for the Chandigarh Tribune that the event was a " landmark in opening up the Indian legal system and making foreign courts and jurisdictions more easily accessible to Indians." Read the article here.

Mr. Brokate and Mr. Anthony are both IGAL delegates , and Mr. Anthony also serves on IGAL’s Board of Directors.

For more information on IGAL please visit http://www.igal-network.com.

Immigration Alert: November 2011 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 07 Oct 2011 14:22:51 -0500

The U.S. Department of State (DOS) has published the November 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current

China: November 1, 2007

India: November 1, 2007

Mexico: Current

Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: December 22, 2005

China: August 22, 2004

India: July 22, 2002

Mexico: December 22, 2005

Philippines: December 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 15, 2005

China: April 22, 2003

India: June 15, 2002

Mexico: November 15, 2005

Philippines: November 15, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the November 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html#

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Leads Panel at Women in Technology International Summit in Silicon Valley

Michael Hawkes — Tue, 04 Oct 2011 10:30:20 -0500

On Tuesday, October 04, 2011 at 2:15 pm, Deborah Davy and Minal Shah, Senior Counsel in Gibney’s Immigration Practice Group are leading a panel discussion entitled, “Expanding Business to New Territories and Securing the Best Talent Internationally.” Hosted by Women in Technology International (WITI), this year’s conference is being held in San Jose, California from October 2 to October 4, 2011.

The panel addresses overcoming obstacles to hiring foreign nationals in the United States and international assignment and travel policies, and compares various models and solutions for global mobility executives. The panelists will also explore how companies are meeting the challenges of establishing overseas offices while complying with immigration and regulatory schemes in emerging markets. The panel includes experts in human resources and global mobility as well as corporate legal counsel.

WITI is the world's leading professional organization for executive women in technology. For more information please visit www.witi.com.

Immigration Alert: 2013 Diversity Visa Lottery

Michael Hawkes — Mon, 03 Oct 2011 07:04:01 -0500

1. What: The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2013 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

2. When: The U.S. Department of State will accept applications for the 2013 diversity lottery between noon Eastern Daylight Time (EDT) on Tuesday, October 4, 2011, and noon Eastern Daylight Time (EDT) on Saturday, November 5, 2011.

3. Who: In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

Nationality: No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2013 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, 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.

Education/Work: In order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years training or experience.

4. How: Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s website: http://www.dvlottery.state.gov. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery.

A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the State Department’s website. Note: each spouse may submit their own application if they otherwise qualify. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

Winners of the lottery will be selected in a computerized random process. After entering the lottery, it is critical to safeguard the confirmation page as that will be the only way to check the status of a diversity lottery application. As of May 1, 2012, applicants may use the number from their confirmation page to view the Entry Status Check section of the E-DV website at www.dvlottery.state.gov to see whether their lottery application has been selected. This is an important change from prior years when the U.S. Department of State mailed winning applicants notification letters and instructions. This year, winners will not receive anything in the mail and must retain their confirmation page in order to check their application’s status on the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. Rather, selected individuals (and their dependents) are deemed eligible to apply for lawful permanent resident status. In order to become a permanent resident of the U.S., a lottery winner’s application for permanent residence must be filed and approved between October 1, 2012 and September 30, 2013. The permanent residence application may be filed either via adjustment of status (the foreign national must be in the U.S. in a valid nonimmigrant status) or via consular processing.

More lottery winners are selected than there are immigrant visas available because it is presumed that some winners will not be eligible to become permanent residents of the U.S. Hence, some winners of the lottery may ultimately be unable to become permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

5. More Information: Instructions for filing an application for the 2013 Diversity Visa Lottery, and information regarding photograph specifications, may be obtained from the U.S. Department of State’s website: http://travel.state.gov/pdf/DV_2013_instructions.pdf.

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Immigration Alert: H-1B Update for Fiscal Year 2012

Michael Hawkes — Wed, 28 Sep 2011 06:54:44 -0500

Quota Update

As of September 9, 2011, U.S. Citizenship & Immigration Services (USCIS) has announced that approximately 32,200 H-1B petitions have been filed under the 65,000 H-1B Regular Cap and approximately 16,700 H-1B petitions have been filed under the 20,000 H-1B Master’s exemption for fiscal year 2012 (October 1, 2011 to September 30, 2012).

Once the cap has been reached, USCIS will stop accepting new H-1B petitions for fiscal year 2012. On April 1, 2012, USCIS will begin accepting new applications for fiscal year 2013 (October 1, 2012 to September 30, 2013).

Reminders for Those with October 1, 2011 New H-1B Start Date

Change of Status: For H-1B Cap petitions that were filed as “change of status” effective October 1, 2011, the beneficiary’s status will change from the current nonimmigrant status to H-1B on October 1, 2011, if the beneficiary:

1. Was physically present in the U.S. for the entire period from the date the petition was receipted by USCIS through the date the application was approved; and

2. Is physically present in the U.S. on October 1, 2011 for the change of status to take effect.

After October 1, 2011, if the beneficiary departs the U.S., s/he must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in H-1B status. Most U.S. Consulates require a personal interview to apply for a visa, and most require 4 to 6 weeks to schedule an interview. Actual visa processing times vary by Consulate. The beneficiary is advised to check the website of the Consulate they intend to visit for further information relating to the scheduling of an interview and visa processing information.

Consular Notification: For H-1B Cap petitions that were filed as “consular notification” effective October 1, 2011, the beneficiary’s status will not change from the current nonimmigrant status to H-1B without further action. In order to activate H-1B status, the beneficiary must depart the U.S., obtain an H-1B visa at a U.S. Consulate abroad, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S.

Taxes for F-1 and J-1: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, please note that once an F-1 or J-1 changes status to H-1B, they will no longer be exempt from FICA tax.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: House Committee Approves Legal Workforce Act

Michael Hawkes — Fri, 23 Sep 2011 13:44:00 -0500

On September 21, 2011 the House Judiciary Committee approved the Legal Workforce Act (H.R. 2885), which, if enacted, would amend the Immigration and Nationality Act to mandate the use of E-Verify for all U.S. employers. Enrollment in the E-Verify program would be mandatory for employers with more than 10,000 employees within six months of enactment, and would be gradually phased-in to include all U.S. employers. The bill now moves to the full House of Representatives, where the Speaker of the House will decide whether to bring it up for a vote. A similar bill has been introduced in the Senate (S. 1196).

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Immigration Alert: Fairness for High-Skilled Immigrants Act Introduced in Congress

Michael Hawkes — Fri, 23 Sep 2011 12:16:00 -0500

On September 23, 2011, Rep. Jason Chaffetz (R-UT) introduced the Fairness for High-Skilled Immigrants Act (H.R. 3012). The bill proposes to eliminate the per-country limit (currently 7%) on employment-based visa allocation for any given country during the fiscal year. The law does not propose to increase the total number of immigrant visas available annually. The bill would increase the per-country numerical limitation for family-based immigrant visas from 7% to 15%.

If enacted, the proposed legislation would incrementally increase the number of immigrant visas that are distributed to nationals of retrogressed countries such as India, China, Mexico and Philippines annually over the next three years. Because there is no provision to increase the overall number of visas available, the bill’s reallocation scheme would improve the immigrant visa wait times for Indian and Chinese green card applicants, but would likely slow the immigration visa wait times for nationals of other countries.

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Immigration Alert: October 2011 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 13 Sep 2011 07:57:53 -0500

The U.S. Department of State (DOS) has published the October 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 15, 2007
India: July 15, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: December 8, 2005
China: August 8, 2004
India: July 15, 2002
Mexico: December 8, 2005
Philippines: December 8, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: September 15, 2005
China: April 22, 2003
India: June 8, 2002
Mexico: September 15, 2005
Philippines: September 15, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

October marks the first month of the government’s Fiscal Year (FY) 2012. The Department of State offered some assessment of visa availability in the coming months of FY 2012. Specifically, with respect to China and India in the EB-2 preference category, DOS noted that the October cut-off date is approaching the most favorable date previously reached for applicants from China and India. This rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all employment-based number use. DOS cautions that once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-off dates at some point during the year is a distinct possibility.

The full text of the October 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5560.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Attorneys and Paralegals Participate in Fundraiser to End Domestic Violence

Michael Hawkes — Thu, 01 Sep 2011 13:22:10 -0500

On Thursday, October 6, 2011, Gibney attorneys and paralegals will participate in a unique fundraiser called Story by Story—Climbing to End Domestic Violence. This event directly benefits inMotion, a nonprofit that provides free legal services to battered women and children. 1,000 inMotion supporters will come together to climb the stairs of 1411 Broadway—a 42-story skyscraper in the heart of Manhattan's Fashion District and Times Square.

Gibney's Pro Bono Committee has organized a team that has more than doubled its fundraising goal.

For details, please see http://www.storybystory.org/about-story-by-story/event-information-program.

To visit Gibney’s team page, please see http://StorybyStory.kintera.org/stair-climb/gibney.

Global Immigration Alert - Argentina: Elimination of the Balance Sheet Requirement from Sponsoring Companies

Michael Hawkes — Wed, 31 Aug 2011 07:20:00 -0500

Effective August 17, 2011, companies in Argentina will no longer be required to submit annual balance sheets to the Immigration Directorate’s National Corporate Registry Office (Registro Nacional Unico de Requirentes de Extranjeros (RENURE)) when applying for or renewing company registration for sponsorship applications in order to employ foreign nationals.

The elimination of the balance sheet requirement will speed up the registration and renewal processes by releasing companies from the task of obtaining confidential financial information from company directors.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Gibney Expands and Relocates San Francisco Office

Michael Hawkes — Mon, 22 Aug 2011 08:20:05 -0500

Gibney, Anthony & Flaherty, LLP is pleased to announce the expansion and relocation of our San Francisco office to:

455 Market Street, Suite 2200
San Francisco, CA 94105
415.901.2270

Gibney, Anthony & Flaherty, LLP is dedicated to delivering personalized counsel and legal representation of the highest quality to our clients. Gibney’s Immigration Practice Group includes more than 80 professionals in New York and San Francisco dedicated to the provision of immigration services, as well as a global network that provides immigration services in over 120 countries. For more information about our services and diverse areas of practice, please visit http://www.gibney.com/.

We look forward to greeting clients and friends in our new space. Click here for a map and information about the building.

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Immigration Alert: September 2011 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 18 Aug 2011 12:30:43 -0500

The U.S. Department of State (DOS) has published the September 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: April 15, 2007
India: April 15, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: November 22, 2005
China: July 15, 2004
India: July 8, 2002
Mexico: November 22, 2005
Philippines: November 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: August 1, 2005
China: April 22, 2003
India: June 1, 2002
Mexico: August 1, 2005
Philippines: August 1, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the September 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5542.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: Chile - Chilean Nationals to Gain Online Access to Australian Tourist Visa Application

Michael Hawkes — Fri, 12 Aug 2011 07:14:00 -0500

Effective September 20, 2011, Chilean citizens may apply for an Australian e676 tourist visa online.

The e676 electronic tourist visa does not require a label to be placed inside a traveller’s passport. Instead, a notification providing visa details is sent to the applicant via email and airlines are able to confirm the visa validity through an electronic Advanced Passenger Processing System. Applicants may print a copy of their visa approval notification email to carry with them when travelling to Australia.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert - Startup America - The Immigration Initiative

Michael Hawkes — Fri, 05 Aug 2011 11:37:00 -0500

In January 2011, the White House launched the “Startup America” program, a public/private sector initiative aimed at accelerating job growth by promoting entrepreneurialism and reducing existing barriers to entrepreneurial activities. The promotion of immigrant-led entrepreneurship is one component of the initiative.

Marking the sixth month anniversary of the program in August 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas affirmed that U.S. immigration laws are viewed as critical to the economic stimulus effort. In order to attract and retain highly skilled entrepreneurs, USCIS announced that it would:

Provide enhancements to the EB-5 immigrant visa investor program to streamline the process, establish direct lines of communication between USCIS and applicants, and explore resolutions to outstanding problems with the program by commissioning a panel of experts;
Expand Premium Processing Service to expedite adjudication of immigrant petitions for multinational executives and managers (EB-1-3); and,
Launch new engagement opportunities for entrepreneurs and startup companies, including:
- “Entrepreneurs in Residence” - a series of summits to be held with USCIS and industry leaders to obtain and utilize high-level input in order to create and implement effective solutions to overcome barriers faced by entrepreneurs, as well as strengthening the overall relationship between USCIS and entrepreneurial industries; and,
- “Conversations with the Director” - a series of small group meetings with Director Mayorkas, providing a forum to discuss immigration issues important to communities around the country.

USCIS reaffirmed that entrepreneurs may obtain an immigrant visa (“green card”) by satisfying regulatory requirements under existing law for employment-based sponsorship, and noting that entrepreneurs may also qualify for National Interest Waivers (waiving the specific requirement of a job offer from a U.S. employer) under the employment-based second preference visa category if they can demonstrate that their business endeavors are in the national interest of the United States. USCIS also clarified that the H-1B nonimmigrant visa is available to entrepreneurs who are the sole owners of petitioning companies, and that these companies may establish a valid employer-employee relationship for the purpose of qualifying for the H-1B visa.

Although many of the measures cited above are already memorialized in current USCIS regulations and procedures, the comments of Secretary Napolitano and Director Mayorkas underscore the view that attracting foreign talent and investment is critical to fueling the nation’s economic growth and creating jobs. It is hoped that the Startup America platform and its proposed immigration components will ensure that existing immigration law is applied in a manner that will realize the full potential of entrepreneurial immigrants.

Additional information about the Startup America initiative is available at:

Startup America - White House

Startup America - USCIS

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Immigration Alert: August 2011 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 13 Jul 2011 13:49:26 -0500

The U.S. Department of State (DOS) has published the August 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: April 15, 2007
India: April 15, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: November 1, 2005
China: July 8, 2004
India: June 1, 2002
Mexico: November 1, 2005
Philippines: November 1, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: May 1, 2005
China: April 22, 2003
India: June 1, 2002
Mexico: May 1, 2005
Philippines: May 1, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the August 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5518.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Ireland: Visa Waiver Pilot Program Announced

Michael Hawkes — Thu, 07 Jul 2011 12:06:38 -0500

The Irish Government will implement a Visa Waiver Program on a pilot basis effective July 1, 2011 through October 31, 2012. Under this pilot program, eligible nationals of the 14 countries listed below, who typically require a visa to enter Ireland, will be exempt from the visa requirement if they have already obtained a short term visa to enter the United Kingdom. In addition, special provisions will facilitate visits by foreign nationals of these 14 countries who are long-term residents in the U.K. The pilot program is designed to promote Ireland as a tourist destination.

The following countries will be eligible to participate in the pilot Visa Waiver Program:

Belarus	Bahrain
Montenegro	Kuwait
Russian Federation	Qatar
Servia	Saudi Arabia
Turkey	United Arab Emirates
Ukraine	Uzbekistan
Inda	People's Republic of China

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Russia: New Electronic Visa Application Form

Michael Hawkes — Fri, 01 Jul 2011 11:59:00 -0500

Effective July 1, 2011, all Russian visas applications filed in the United States will now be required to use an electronic visa application form, available online at: http://evisa.kdmid.ru

Russian visa applications prepared using the hard copy or manual visa application form will not be accepted after July 1, 2011.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: Mandatory E-Verify Law Introduced in Congress

Michael Hawkes — Fri, 24 Jun 2011 09:43:54 -0500

Last week, House Judiciary Committee Chairman Lamar Smith (R-TX) introduced The Legal Workforce Act (H.R. 2164), which would require all U.S. employers to use the federal database known as E-Verify to electronically verify the employment authorization of prospective employees before hiring. Should the bill become law, mandatory participation in E-Verify would be implemented on a rolling basis. The largest employers, with more than 10,000 employees, would be required to comply within six months of enactment. The smallest employers, with 19 or fewer employees, would have two years to comply. Any recruiters, employment referral agencies, and union halls would be required to participate in E-Verify within one year. In addition, employers using seasonal workers for “agricultural labor or services” would need to register for E-Verify within three years of the date of enactment.

The bill would pre-empt all state and local laws mandating E-Verify use for employment verification purposes, but would retain the ability of states and localities to grant business licenses on the condition that the employer use E-Verify. In addition, the bill would increase tenfold the current civil monetary fines on employers who knowingly employ unauthorized workers. However, the bill would grant employers safe harbor from prosecution if they use the E-Verify program in good faith and, through no fault of their own, receive an incorrect eligibility confirmation. The bill would also create a felony crime for persons found to have knowingly misused a Social Security Number.

Many Congressional sources believe The Legal Workforce Act has a good chance of passing the Republican-controlled House of Representatives. Sen. Chuck Grassley (R-IA) has sponsored a companion bill in the Senate – The Achieving Accountability Through Electronic Verification Act (S. 1196) – but its fate in the Democratic-controlled chamber is uncertain.

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Private Client Article: Foreign Account Owners - The IRS is Looking For You!

Michael Hawkes — Wed, 22 Jun 2011 09:48:46 -0500

Foreign accounts have become a hot button for the IRS in the past few years. The current situation started with the investigation of the large Swiss bank, UBS. The accusation was that UBS made it a business to assist US taxpayers with the use of offshore banking accounts to avoid paying US tax. The Internal Revenue Service served what is called a “John Doe” summons on UBS in an attempt to obtain the names of the owners of 52,000 US account holders. UBS negotiated that number down to 4,450.

In 2009 the IRS instituted a Voluntary Disclosure program allowing owners of foreign accounts to come forward without criminal prosecution in exchange for paying the tax due plus penalties and interest. Before that program ended on October 15, 2009 approximately 15,000 voluntary disclosures were processed. As part of that program the IRS required taxpayers to answer the five “W” questions – who, what, where, when and why – relating to their offshore accounts. The information collected in that program is now being used by the IRS to investigate and prosecute additional bankers, account holders and banks.

In April of this year the US government obtained court permission to serve a John Doe summons on HSBC. The summons directs HSBC USA to produce records identifying US taxpayers with accounts at HSBC in India. A spokesperson for HSBC reportedly provided the following statement to CNBC Correspondent Eamon Javers "While we haven't seen the summons, HSBC does not condone tax evasion and fully supports the US efforts to promote appropriate payment of taxes by US taxpayers. While complying with the law in all the jurisdictions in which it operates, including India, HSBC cooperates with requests from US authorities." It appears that HSBC is preparing to cooperate by disclosing the names of account owners.

The IRS has instituted the 2011 Offshore Voluntary Disclosure Initiative (2011 OVDI). That program allows taxpayers with undisclosed foreign accounts to avoid criminal prosecution but requires taxpayers to pay:

a miscellaneous penalty of 25% on the highest aggregate account balance covering the 2003 to 2010 time period
back taxes, interest, and accuracy / delinquency related penalties for the tax years ending 2003 through 2010.

There is a hard deadline for the 2011 OVDI. Taxpayers must satisfy all of the terms by August 31, 2011. Taxpayers with undisclosed foreign accounts should consult with their tax advisors immediately.

If you have any questions about this article, please contact Gerald J. Dunworth at gjdunworth@gibney.com

Immigration Alert: IDEA Act Introduced in Congress – Proposes Significant Changes to U.S. Employment-Based Immigration

Michael Hawkes — Tue, 21 Jun 2011 09:10:42 -0500

On June 14, 2011, Representative Zoe Lofgren (D-California) introduced the Immigration Driving Entrepreneurship in America (IDEA) Act of 2011. The proposed legislation aims to spur U.S. job creation, economic growth, and innovation through sweeping reform of U.S. employment-based immigration. Included in the bill are provisions that would create a fast track to U.S. permanent resident status for STEM (science, technology, engineering and mathematics) advanced-degree holders from specially designated U.S. universities. Another provision would create a permanent resident category for entrepreneurs who establish start-up businesses that create jobs in the United States. The bill also contains provisions to eliminate green card backlogs by recapturing unused immigrant visas that are lost annually due to government delays in adjudicating cases and eliminating spouses and minor children from visa quotas. The bill would also eliminate employment-based “per country” levels. Additionally, the bill aims to reform the current labor certification process by creating an “Established U.S. Recruiter” designation for certain employers, revising current recruitment requirements, and introducing application filing fees and premium processing service for labor certification applications.

On the nonimmigrant side, the F-1 student visa would be designated a “dual intent” visa, permitting students to remain in the country in temporary (student) status while also seeking permanent resident status, similar to the L-1 and H-1B visa. However, the proposed law would impose additional restrictions on the widely-used L-1 and H-1B visa programs. Specifically, the law proposes to impose a labor market test requirement on the H-1B visa and a prevailing wage requirement on the L-1 visa. The law would also amend the current prevailing wage system in a manner that would upwardly adjust wage levels.

The IDEA Act is in the very early stages of the legislative process and is not expected to advance rapidly through Congress. Gibney will continue to monitor the status of this legislation and will report on developments.

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Immigration Alert: July 2011 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 14 Jun 2011 14:17:06 -0500

The U.S. Department of State (DOS) has published the July 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: March 8, 2007
India: March 8, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: October 8, 2005
China: July 1, 2004
India: May 1, 2002
Mexico: July 1, 2005
Philippines: October 8, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 22, 2004
China: April 22, 2003
India: May 1, 2002
Mexico: November 22, 2004
Philippines: November 22, 2004

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the July 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5489.html.

If you have any questions about this alert please contact your Gibney representative or email at immigrationalerts@gibney.com.

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Immigration Alert: U.S. Supreme Court Upholds Arizona Law Mandating Use of E-Verify

Michael Hawkes — Thu, 26 May 2011 09:42:00 -0500

In recent years, Arizona and several other U.S. states have enacted laws which mandate the use of the otherwise voluntary federal E-Verify system and increasingly impose sanctions for knowingly or intentionally employing unauthorized aliens. The U.S. Chambers of Commerce organization challenged Arizona’s law -- the Legal Arizona Workers Act of 2007 -- on the grounds that federal law should preempt state law in matters of immigration. However, in May 2011, the U.S. Supreme Court affirmed a decision by the Ninth Circuit Court of Appeals, which held that the federal law in question, specifically the Immigration Reform and Control Act (IRCA), does not preempt Arizona state law from mandating the use of E-Verify for employers or from suspending or revoking the business licenses of employers that knowingly or intentionally employ unauthorized aliens. This landmark Supreme Court ruling, Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011), is likely to encourage other states to require the use of E-Verify by employers, and may lead to individual states expanding sanctions against non-compliant employers.

Enacted in 1986, IRCA makes it unlawful to knowingly hire unauthorized aliens, and requires that employers review certain documents in order to establish the employee’s eligibility for employment, subject to federal civil and criminal sanctions. The federal law limits the ability of states to bring charges against non-compliant employers, and instead reserves this authority for the Immigration and Customs Enforcement (ICE) Agency within the federal Department of Homeland Security (DHS). Indeed, IRCA expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.”

The program that became E-Verify was created in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Launched in 2007, E-Verify is an internet-based system administered by DHS that allows an employer to verify an employee’s work authorization based upon information provided for the Form I-9 employment verification process, cross-checked against a Social Security Administration database. The E-Verify system has been criticized for being error-prone and unable to detect identity theft; however, by choosing to participate in the E-Verify system, the employer can establish a rebuttable presumption that it has not violated IRCA’s prohibition of the employment of unauthorized aliens.

Although IIRIRA generally prohibits the Secretary of Homeland Security from requiring participation in E-Verify outside the federal government, in Chamber of Commerce v. Whiting, the Supreme Court held (in a split decision of five to three) that state law may require employers to use the federal E-Verify system and that IRCA does not impliedly preempt the Arizona law from doing so. The Supreme Court also held that IRCA does not preempt state law from suspending or revoking business licenses for knowingly or intentionally employing unauthorized aliens.

In delivering the opinion of the Court, Chief Justice Roberts, joined in full by Justices Scalia, Kennedy and Alito, and in part by Justice Thomas, held that the Arizona law does not in fact allow Arizona to impose “civil or criminal sanctions,” which IRCA specifically prohibits to the states. The Court reasoned that, because the Arizona law – which defines “license” to specifically include articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the state – is actually a business licensing law, and IRCA allows states to use such laws in immigration enforcement, it is not preempted. Moreover, the Court did not find any conflict between the Arizona law and federal immigration law. Therefore, the Court held that “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”

Regarding E-Verify, the Supreme Court held that Congress, in enacting IIRIRA, did not intend to prevent states from mandating participation in E-Verify at the state level, but only to limit the Secretary of Homeland Security in compelling the use of the E-Verify system beyond the federal government at the national level. The Supreme Court also rejected arguments from the Chamber of Commerce about the reliability of the E-Verify system, as well as the Chamber’s contention that the federal system would be overwhelmed and rendered ineffective if all states followed Arizona’s lead in mandating E-Verify.

In her dissent, Justice Sotomayor reasoned that IRCA only preserves states’ authority to impose licensing sanctions after a final federal determination is made that an employer has violated IRCA. She also reasoned that federal law preempts Arizona state law from mandating the use of E-Verify, observing that Arizona has effectively made a decision for Congress regarding use of a federal resource. Justice Sotomayor referred to significant policy objectives motivating Congress to make E-Verify voluntary, including cost concerns.

In his dissenting opinion, Justice Breyer (joined by Justice Ginsberg) reasoned that the Arizona state law does, in fact, impose a civil sanction upon those who employed unauthorized aliens because the “statute strays beyond the bounds of the federal licensing exception” and is therefore pre-empted by IRCA. Justice Breyer also agreed with the Chamber of Commerce’s concerns about E-Verify’s reliability and the likelihood that employers will err on the side of discrimination rather than risk hiring unauthorized workers and thus possibly triggering the so-called “business death penalty,” i.e., having their corporate charters revoked by the state. The Court majority rejected this argument stating “Only far more egregious violations of the law trigger that consequence … An employer acting in good faith need have no fear of the consequences.”

This Supreme Court decision is a milestone in the ongoing struggle between the federal government and its immigration-related agencies and those states legislatures that believe that federal law is not stringent enough with respect to the regulation of immigration matters. Although the Court addressed only the Arizona law, the Whiting decision gives tacit approval to the actions of a growing number of states that require the use of E-Verify, or that impose penalties on employers for violations of federal law involving the employment of unauthorized workers. Given that cities, counties, and other jurisdictions are also enacting similar measures, it is critical for employers to be mindful of this complex patchwork of laws, and to develop strategies to ensure compliance in all employment matters. We will continue to update you on major developments in this regard.

If you have questions about your state’s E-Verify requirements, or about other immigration-related employment measures in your state, please do not hesitate to contact your designated Gibney representative. We would be pleased to advise on developing protocols and best practices concerning the use of E-Verify or other immigration-related onboarding processes.

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Immigration Alert: June 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 16 May 2011 05:33:46 -0500

The U.S. Department of State (DOS) has published the June 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: October 15, 2006
India: October 15, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: September 15, 2005
China: May 15, 2004
India: April 22, 2002
Mexico: December 22, 2004
Philippines: September 15, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 8, 2003
China: April 22, 2003
India: April 22, 2002
Mexico: November 8, 2003
Philippines: November 8, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the June 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5452.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Czech Republic: Biometric Resident Permit Cards Postponed

Michael Hawkes — Mon, 02 May 2011 12:03:00 -0500

The Czech Republic Ministry of the Interior has postponed the issuance of biometric residence permit cards for nationals of States not members of the European Union (EU) or the European Free Trade Association (EFTA) from May 1, 2011 until later in 2011. The government indicated that this delay is due to technical problems in the newly configured biometric data system.

As a temporary measure, new residence cards issued after May 1, 2011 will be issued without biometric data and will be in the form of a label affixed to the foreign national’s passport. These temporary cards will have a validity of six months. The fee for issuance of a residence permit card has increased to CZK 2,500 for adults and CZK 1,000 for children under the age of 15. Once the biometric data system is fully operational, temporary card holders will be issued their biometric residence permit cards without additional government fees.

A residence permit card issued before May 1, 2011 shall remain valid until the expiration or until there is reason to amend the permit. Once the residence permit card is renewed, a new card containing biometric data will be issued.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Germany: Introduction of Biometric Resident Permit Cards Postponed

Michael Hawkes — Mon, 25 Apr 2011 14:47:18 -0500

The German parliament has postponed the issuance of new biometric residence permit cards from May 1, 2011 to September 1, 2011 for foreign nationals of States not members of the European Union (EU) or European Free Trade Association (EFTA).

The introduction of biometric residence permit cards complies with EU Regulations no. 1030/2002 and 380/2008, calling for a uniform format for residence permits for non-EU/EEA nationals. The new residence permit cards will contain biometric information such as a photograph and two fingerprints of permit holders aged 6 years and older. The biometric residence permit cards will replace the current paper residence cards, and residence permits will no longer be stamped in the passports of foreign nationals.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Canada: Delays in Processing Time at Canadian Consulate in New York

Michael Hawkes — Mon, 25 Apr 2011 11:01:00 -0500

Visa applicants should expect processing delays at the Canadian Consulate in New York, due to the installation of a new computer system. Applications submitted in April 2011 may take longer to process. Average processing times for all visitor visa, work permit and study permit applications will be increased by 10 to 15 days. Same day service for walk-in clients will not be available during the system upgrade.

Also, effective February 1, 2011, the Canadian Consulate introduced a new form for Temporary Resident Visa (TRV) applications made outside Canada (IMM5252 01-2011). All TRV applicants must now submit this form. In addition, all TRV applicants who have accompanying family members must now submit a Family Information (IMM5645) form.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - India: Expanded Options for Business Visitors and Temporary Workers

Michael Hawkes — Fri, 15 Apr 2011 15:35:20 -0500

A number of recent reforms and procedural developments will make it easier to obtain visas for some employers and employees who are planning business visits or international assignments to India.

In Country Change of Status Options and Benefits for Dependants

Generally, business or employment visa holders cannot change status while in India. In recent months, the Indian government has outlined limited exceptions to this rule. As previously reported by Gibney, the FAQ issued in October 2010 provided guidance on change of status applications for certain business and employment visa holders who may be eligible for change of status to the Entry (X) visa category under the following circumstances: marriage to an Indian national, filing an application for Persons of Indian Origin, or as a foreign national dependent of a Medical Visa holder.

In March 2011, the Ministry of Home Affairs issued new guidelines for the Foreigners’ Registration Offices (FRO) and Foreigners’ Regional Registration Offices (FRRO) throughout India. These guidelines allow spouses of Intra-company Transfer Employment (E) visa holders to convert their Entry (X) visa to an employment visa in-country, without the need to depart, apply for, and re-enter India with a new visa.

To be eligible for a change of status, a spouse must hold an Entry (X) visa. The spouse must also qualify for an Employment (E) visa at a highly skilled or professional level, be engaged or appointed by an entity in India on a contract or employment basis, and be paid a minimum salary of US$25,000 per year. To request a change of status, the spouse must first obtain a pre-qualification report from the FRO or FRRO where they are registered. The spouse may then apply for the change of status at the Ministry of Home Affairs. Once the applicant’s status has been changed, the spouse will be subject to the terms and conditions applicable to the employment visa category.

The recent modifications and change of status guidelines provide significant benefits to accompanying dependents who wish to undertake employment while in India. These changes will allow eligible spouses to transition into new employment without having to return to their country of origin.

Clarification of Conference (C) Visa Eligibility and Procedure

In March 2011, the Ministry of Home Affairs (MHA) issued an FAQ regarding the procedures for obtaining a Conference (C) visa. Conference (C) visas are issued to foreign nationals attending international conferences, seminars and workshops organized in India by a Ministry or Department of the Government of India, State Governments, Public Sector Undertakings, Central Educational Institutions, Public Funded University or an organization owned and controlled by the Government of India or State Government, UN or its specialized agencies and reputed NGOs.

Applicants for a Conference (C) visa must possess a letter of invitation from the host organization. Additional approval will be required from the MHA and the Ministry of External Affairs (MEA) for participants from Afghanistan, China, Iran, Pakistan, Iraq, Sudan, foreigners of Pakistani origin and Stateless persons, as well as for those participants required to visit ‘Restricted’ or “Protected’ areas in India such as Jammu & Kashmir and the North Eastern States. In such cases, visa applications should be submitted at least 30 days prior to the commencement of the conference.

Upon approval, Conference (C) visas will be issued for the duration of the conference plus additional travel time. Consular officers, at their discretion, may issue visas for longer periods of time, not exceeding six months, if the participant wishes to combine tourism with attending the conference. Applicants requiring MHA and MEA approval will receive visas for the duration specified by MHA and MEA.

Foreign nationals attending conferences, seminars and workshops organized by private companies in India should apply for Business (B) visas.

Elimination of Birth Certificate Requirement for Visa Applicants Aged 18 and Over

Effective immediately, the Indian government has eliminated the requirement for submission of a birth certificate from United States visa applicants aged 18 and over. Minors (age 17 and under) are still required to submit a long form birth certificate showing the names of both parents. Consulates may still request a birth certificate from adult applicants, at their discretion.

Introduction of New Project (P) Visa

In October 2010, the Ministry of Home affairs announced a new Project (P) visa category for foreign nationals assigned to India for execution of projects in the power and steel industry sectors. This visa will be available only for skilled and highly skilled workers and will be subject to a limit of seven employees for each project. If additional personnel beyond the limit are required, approval from the Ministry of Labor & Employment is required. The visas are project and location specific.

An important restriction is that Project (P) visa holders will not be eligible for a regular Employment (E) visa with the same Indian company for a period of two years from the date of commissioning the project. This two-year ban should be considered when filing for this type of visa. Specific guidelines for Project (P) visa issuance by Indian Consulates in the United States are yet to be announced.

India continues to reform their immigration procedures and guidelines, often with little or no notice. Therefore, it is important to check with the Indian Consulate or Travisa Outsourcing (in the United States) regarding current procedures before any Indian visa applications are filed.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Gibney Partner Appointed to St. John's Riverside Hospital Board of Trustees

Michael Hawkes — Fri, 15 Apr 2011 12:17:22 -0500

Gibney Partner, Wm. Lee Kinnally, Jr. has been appointed to the Board of Trustees of St. John’s Riverside Hospital in Yonkers, New York.

St. John's Riverside Hospital is a comprehensive network of health care services that extends from Yonkers to the riverfront communities of Hastings-on-Hudson, Dobbs Ferry, Ardsley and Irvington. With roots in the community that date back nearly 140 years, St. John's was the first hospital in Westchester County.

The network is comprised of the Andrus Pavilion, Dobbs Ferry Pavilion, ParkCare Pavilion, Cochran School of Nursing and the Michael N. Malotz Skilled Nursing Pavilion.

Mr. Kinnally is also a member of the Westchester Fair Campaign Practices Committee and the Board of Assessment Review in Hastings-on-Hudson. He had served as a Trustee of the Village of Hastings-on-Hudson for over 13 years and was Mayor from 1993 to 2009.

Immigration Alert: May 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 11 Apr 2011 15:47:52 -0500

The U.S. Department of State (DOS) has published the May 2011 Visa Bulletin. As expected, the reallocation of approximately 12,000 unused visa numbers from the employment-based, first preference (EB-1) category resulted in advances for Chinese and Indian nationals in the employment-based, second preference (EB-2) category. The EB-2 priority cut-off date for Chinese nationals advanced to August 1, 2006, and the priority cut-off date for Indian nationals advanced to July 1, 2006. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Chinese nationals advanced to April 15, 2004. The EB-3 priority cut-off date for Indian nationals experienced a small advance, to April 15, 2002. The EB-3 priority cut-off date for Mexico advanced to September 8, 2004, and the priority cut-off date for Worldwide and the Philippines advanced to August 22, 2005.

There were also advances in the EB-3 “other worker” category, where priority cut-off dates for Worldwide and the Philippines advanced to September 8, 2003. The EB-3 “other worker” category priority cut-off date for India experienced a small gain, to April 15, 2002, and Mexico advanced to September 8, 2003. The EB-3 “other worker” category priority cut-off date for China remained unchanged at April 22, 2003.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

Employment-based, second preference (EB-2):

Worldwide: Current
China: August 1, 2006
India: July 1, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: August 22, 2005
China: April 15, 2004
India: April 15, 2002
Mexico: September 8, 2004
Philippines: August 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: September 8, 2003
China: April 22, 2003
India: April 15, 2002
Mexico: September 8, 2003
Philippines: September 8, 2003

The full text of the May 2011 Visa Bulletin is available at: http://www.travel.state.gov/visa/bulletin/bulletin_5424.html#.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Budget Impasse Could Affect U.S. Immigration Services

Michael Hawkes — Mon, 04 Apr 2011 15:53:00 -0500

Amid the ongoing political debate in Washington concerning the federal budget, employers and foreign nationals should be prepared for a possible disruption in immigration services if a congressional compromise is not reached by April 8, 2011, causing a government shutdown.

While it remains unclear as to exactly how a government shutdown would impact immigration services, “non-essential” government functions could be suspended and agencies may be impacted in different ways.

Because the U.S. Citizenship and Immigration Service (USCIS) is primarily a fee-based service, it may continue to operate. However, services may be impacted and processing times for petitions and applications may be delayed.

A government shutdown could have a significant impact on the U.S. Department of State and its ability to process visas at consulates abroad. Foreign nationals who require new visas to re-enter the United States are advised to check with consulates for any closure announcements and plan in advance for the possibility of delays during any shutdown.

The U.S. Customs and Border Protection Agency is deemed to be an essential government function and a shutdown would not completely halt its operations. However, staffing is expected to be reduced and processing at ports of entry may be subject to delays or longer lines.

Finally, as the Department of Labor (DOL) is a non fee-based agency, it is likely to be severely impacted by a government shutdown. The impact on DOL would likely include significant delays and backlogs in the processing of Labor Condition Applications and Labor Certification Applications, affecting employers’ ability to file H-1B petitions and secure priority dates for PERM applications.

While it appears that lawmakers are trying to avoid a government shutdown, no compromises have been reached to date. Gibney will monitor the budget process and work with clients to mitigate the impact of government processing delays to the extent possible.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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IP News: Gibney Partners to Co-Chair and Speak at PLI’s IP Enforcement and Litigation 2011 Event

Michael Hawkes — Tue, 29 Mar 2011 13:17:00 -0500

Gibney Partner Brian Brokate will co-chair PLI’s IP Enforcement and Litigation 2011: Civil and Criminal Update on March 30, 2011. Gibney Partner Angelo Mazza will also be speaking.

Why You Should Attend

The Anti-Counterfeiting Coalition estimates that counterfeiting costs U.S. businesses $200 billion to $250 billion annually. For many years, IP rights owners relied solely on private, costly, civil enforcement to obtain justice against IP infringers. Government programs did not rank IP crimes as a priority and therefore, did not have budgets to pursue such actions. Today, however, various federal agencies are undertaking coordinated efforts, including working with IP rights holders, to significantly strengthen IP enforcement programs. Civil and criminal programs are underway, using resources such as the DOJ, Customs and other agencies, to seize websites, domain names and financial accounts of those selling counterfeit goods online. This program is designed to bring you up to date on both civil and criminal enforcement efforts and to put you in a better position to protect your client's IP.

What You Will Learn

What government IP programs are currently being planned or are underway
Quick and cost-effective methods to stop Internet fraud, including phishing or other fraudulent websites that utilize trademarks
Steps to protect vulnerable entertainment properties before major events, such as motion picture releases or sporting events/concerts
Best practices for coordinating enforcement matters with government officials, including customs officers
Recent case law covering potential contributory infringers such as registrars, proxy companies, credit card suppliers, internet service providers, auction sites, etc.
Tips on when and how to use ITC proceedings for patent or other IP enforcement
Overview of patent enforcement issues, including the impact of the recent Supreme Court Bilski case
One full hour of ethics: Avoiding common problems related to enforcement, i.e. dealing with pro se defendants, undertaking investigations, use of social media sites for research

Who Should Attend

IP attorneys, general practitioners, in-house counsel and others charged with either protecting IP against infringement and counterfeiting, or advising on enforcement strategies and best practices. Don't miss this opportunity to get tips from government agency personnel and experienced IP counsel on the latest protection and enforcement programs.

PLI Group Discounts

Groups of 4-14 from the same organization, all registering at the same time, for a PLI program scheduled for presentation at the same site, are entitled to receive a group discount. For further discount information, please contact membership@pli.edu or call (800) 260-4PLI.

PLI Can Arrange Group Viewing to Your Firm

Contact the Groupcasts Department via email at groupcasts@pli.edu for more details.

Cancellations

All cancellations received 3 business days prior to the program will be refunded 100%. If you do not cancel within the allotted time period, payment is due in full. You may substitute another individual to attend the program at any time.

For additional information or to sign up for this event please visit the PLI website.

This intellectual property article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Global Immigration Alert - Australia: Introduction of Biometric Requirements for Certain Visa Applicants

Michael Hawkes — Thu, 24 Mar 2011 14:45:00 -0500

The Minister for Immigration and Citizenship has announced that biometric requirements will be implemented for visa applicants from Syria and Malaysia starting in April 2011, and for applicants from Lebanon, Kenya, Jordan and France starting in May 2011.

Applicants who submit paper application forms will need to provide a digital facial photograph and fingerprint scans at local visa application centers. Online applicants that are eligible for an electronic visa do not need to provide biometrics at this time.

Biometric requirements have already been implemented for Australian visa applicants in Bahrain, Bangladesh, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates, Yemen and Zimbabwe. More than 8,000 visa applicants have submitted biometric information since the commencement of the program in December 2010.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Gibney’s Immigration Practice Group Ranked by Chambers and Partners

Michael Hawkes — Thu, 17 Mar 2011 11:27:09 -0500

Gibney’s Immigration Practice Group and Partner, Stephen J.O. Maltby, have received the honor of being ranked as Leaders in their Fields in Chambers USA 2011. To be ranked, firms must have an outstanding reputation among their peers and clients. The guide will be released in June, 2011.

Chambers and Partners is a prestigious, independent law firm ranking journal that interviews over 20,000 attorneys annually to find the best in the industry. Chambers releases annual guides ranking the top law firms globally, in the United States, Europe, United Kingdom, Asia Pacific, and Latin America. For more information or to visit the Chambers and Partners site please visit http://www.chambersandpartners.com/

Immigration Alert: April 2011 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 11 Mar 2011 14:03:40 -0600

The U.S. Department of State (DOS) has published the April 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 22, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: July 22, 2005
China: March 1, 2004
Dominican Republic: July 22, 2005
India: April 8, 2002
Mexico: May 8, 2004
Philippines: July 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: July 22, 2003
China: April 22, 2003
Dominican Republic: July 22, 2003
India: April 8, 2002
Mexico: July 22, 2003
Philippines: July 22, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the April 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5368.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Canada: Amendments to Temporary Foreign Worker Program

Michael Hawkes — Wed, 09 Mar 2011 07:42:14 -0600

Effective April 1, 2011, employers and certain temporary foreign workers will be subject to additional requirements under new Temporary Foreign Worker Program regulations. These include:

a more rigorous assessment of the genuineness of the job offer;
a two-year prohibition from hiring temporary foreign workers for employers who fail to meet their commitments to workers with respect to wages, working conditions, and occupation; and
a limit to the length of time a temporary foreign worker may work in Canada before returning home.

The Canadian government intends to review employers seeking to hire temporary foreign workers to ensure past compliance with program requirements before authorization to hire foreign workers will be granted. Employers found to have violated worker rights may be refused authorization to hire a foreign worker. Employers that have not met their previous commitments to foreign workers may be denied access to the temporary foreign worker program for two years. Offending employers’ names would also be published on the Citizenship and Immigration Canada website to inform other temporary foreign workers already in Canada. Employers will be given the opportunity to defend the company’s actions prior to any government action taken against them.

A four-year cumulative limit will also be imposed on certain temporary foreign workers’ employment in Canada. After a four-year maximum temporary work term, certain foreign workers will be required to depart Canada and wait four years before becoming eligible to apply for an additional period of temporary work in Canada. The limit does not affect eligibility for permanent residence; qualified foreign workers may still apply for permanent residence at any time while they are legally in Canada or after their departure. This four year limit does not apply to foreign nationals entering Canada under a Labor Market Opinion exemption category, i.e., Intra Company Transfers.

These changes are intended to ensure that employers strictly comply with the Temporary Foreign Worker Program. Employers will also need to plan in advance if they wish to continue to employ foreign workers beyond the established limits on periods of temporary stay.

For additional information, please visit Citizenship and Immigration Canada at http://www.cic.gc.ca/english/department/media/releases/2010/2010-08-18.asp. For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Colombia - Temporary Work Visa Applications Streamlined

Michael Hawkes — Tue, 08 Mar 2011 07:17:00 -0600

Effective March 8, 2011, foreign nationals applying for a Colombian Temporary Work Visa (TWV) are no longer required to submit a Certificate of Proportionality with their applications.

The Ministry of Social Protection previously required a Certificate of Proportionality to confirm Colombian companies adhered to the required ratio of Colombian nationals to foreign national employees provided for in the Colombian Labor Code.

The elimination of the Certificate of Proportionality will reduce documentary requirements and processing times for TWV applications.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - United Kingdom: Proposed Changes to the Points-Based System

Michael Hawkes — Mon, 07 Mar 2011 13:35:11 -0600

The U.K. Border Agency has announced proposed changes in the operation of the Tier 2 category of the Points-Based System and provided guidance on the permanent cap. These changes are proposed to take effect on April 6, 2011. The proposals discussed below are subject to confirmation by Parliament in March 2011. The general information herein is provided so that individuals and employers may plan ahead for recruitment, but is subject to change.

Tier 2 (General) – Restricted Certificates of Sponsorship

If proposed changes take effect on April 6, 2011, certain eligibility criteria will change and an annual cap will be introduced on certain Tier 2 applications. The Tier 2 (General) category will be deemed restricted and subject to an annual cap of 20,700. These Certificates of Sponsorship (CoS) will be divided into twelve months allocations of 1500 per month. If the monthly allocation is not reached, any places that are unused each month will be rolled over to the following month. In the event that the monthly allocation is over subscribed, CoS applications will be ranked using a points system designed to favor jobs on the shortage occupation list, scientific researchers and those with a higher salary. Once a CoS has been issued to an employer, it must be assigned to the prospective employee within 3 months.

For CoS applications in the restricted category, the sponsor must attest that

the occupation is on the Shortage Occupation List; or
the sponsor has carried out a Resident Labour Market Test (RLMT).

The sponsor will also be asked to confirm that:

the job is on the published Graduate Occupations List of jobs eligible for Tier 2; and
the role meets the requirements for the occupation as specified on the Shortage Occupation List or the sponsor has carried out a RLMT; and
the job meets the minimum applicable salary requirements.

Unrestricted Certificate of Sponsorship

The Tier 2 (Intra Company Transfer) category, which is not part of the annual cap and therefore deemed unrestricted, will be changed in 3 ways:

the job will have to be in an occupation on the graduate occupation list or the U.K. ’s Shortage Occupation List;
those paid between £24,000 and GBP£40,000 will be allowed to remain in the U.K. for no longer than 12 months, at which point they must leave and will not be able to re-apply for 12 months; and
only those paid GBP£40,000 or more will be able to stay for more than a year. They will be granted a stay of 3 years with the possibility of extending for a further 2 years.

The other categories not subject to the cap and deemed unrestricted include the following:

Foreign nationals already in the U.K. under Tier 2 (General) or under the work permit scheme who are filing an extension of stay;
Foreign nationals already in the U.K. under Tier 2 (General) or under the work permit scheme who are filing a change of employer;
Foreign nationals already in the U.K. under the Tier 1 (General) or the Highly Skilled Migrant Program who must file a change to an employer-sponsored status under the Tier 2 (General); and
Foreign nationals who are new hires and their annual salary exceeds GBP£150,000.

Importantly, prior to March 11, 2011 employers are required to apply for their annual unrestricted CoS allocations. We anticipate additional changes and guidance once Parliament has acted.

Gibney will continue to monitor changes and provide updates. Please contact your Gibney representative if you have any questions.

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Global Immigration Alert – China: Changes to Visa Application Process

Michael Hawkes — Wed, 02 Mar 2011 07:59:38 -0600

On January 1, 2011, the Chinese Embassy in Washington, D.C. announced implementation of a new Visa Application Form (Form V.2011A) for all tourist, business visa, and employment visa applications. While the new form may be utilized immediately, Chinese consular posts will continue to accept the prior version of the Visa Application Form until June 30, 2011.

In addition, effective immediately, foreign nationals who are applying for visas in the following categories must submit a new Supplementary Visa Application Form (Form V.2011B):

Z-visa to work in China
X-visa to study in China
Visas to accommodate persons traveling under the same passport, i.e., dependent children

The Supplementary Visa Application Form is now required for all foreign nationals applying for one of the visa categories listed above when they apply for the visa in a country other than their country of origin or citizenship.

In addition, at least one consular post indicated there are plans to eliminate same day visa processing as early as March 2011. While no official announcement has been issued concerning this development, such a change would have a significant impact on visa processing resulting in longer processing times impacting business travelers. Gibney will continue to monitor developments and provide updates as they become available.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Gibney Sponsors GDC 2011 Event for Women In Gaming International

Michael Hawkes — Wed, 02 Mar 2011 07:57:25 -0600

Gibney, Anthony & Flaherty LLP is pleased to support Women In Gaming International (WIGI) and sponsor the Game Developers Conference (GDC) 2011 reception. This year's reception will be held at the California Historical Society Museum in San Francisco on Wednesday, March 2, 2011. Through dedicated representation in the areas of Intellectual Property, Business, Immigration and Global Mobility, among others, Gibney supports the growth of innovative companies and entrepreneurial individuals in the fields of gaming and entertainment publishing, social media, and software development.

For more information about WIGI and details regarding the GDC 2011 WIGI reception, please visit http://www.womeningamesinternational.org/.

Estate Planning: Gibney Partner Quoted in News Article

Michael Hawkes — Thu, 24 Feb 2011 10:51:48 -0600

Gibney Partner, Gerald Dunworth, was quoted in a BNET article entitled, “Today’s To-Do List: Create a Succession Plan for the Unexpected”. This article describes estate planning considerations for business owners.

Mr. Dunworth was quoted on valuation of a business:

"The most difficult part of the plan is usually putting a value on the business,” says Gerald Dunworth, a partner at the New York law firm Gibney, Anthony & Flaherty. “This is important for two reasons: 1) the individuals in the family who do not participate will often think mom and dad gave the business siblings a big gift, and 2) the value will have to be justified to the IRS if an estate tax return is required.”

Please view the full article at http://www.bnet.com/blog/small-biz-advice/today-8217s-to-do-list-create-a-succession-plan-for-the-unexpected/244.

This estate planning article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: H-1B Filings for Fiscal Year 2012

Michael Hawkes — Tue, 22 Feb 2011 15:46:51 -0600

April 1, 2011 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2012 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Background

H-1B cap cases generally fall within two categories:

“Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1, as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Last year, due to the economic recession and late-enacted legislation preventing certain employers from filing H-1B cap-subject petitions, USCIS received a relatively small number of the H-1B petitions needed to meet the FY 2011 cap in the first five days of filing, and the H-1B cap was not reached until January 26, 2011. However, it is anticipated that a far greater number of H-1B cap cases will be filed this year due to signs of economic recovery and the sunset on February 17, 2011 of restrictions imposed under the Employ American Workers Act of 2009.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2012 annual cap. These include the following:

Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

New Form I-129

U.S. employers petitioning for nonimmigrant workers must utilize the revised version of the Form I-129, which became effective in December 2010. USCIS delayed implementation of the new section six, entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The certification regarding compliance with export control regulations will have to be completed on all Forms I-129 filed on or after February 20, 2011 (Please refer to Gibney’s Immigration Alert from December 3, 2010 for details.)

Proposed Changes to the Filing Procedure

In December 2010, the Office of Management and Budget (OMB) approved a proposed rule that would require employers to pre-register with U.S. Citizenship and Immigration Services (USCIS) before filing an H-1B cap petition. Details of the proposed rule are confidential and will not be disclosed until the proposed rule is published for public comment in the Federal Register. Pre-registration would not be implemented until an interim or final version of the regulation is approved by OMB and published. Though no date has been specified, a pre-registration system could be implemented for the Fiscal Year 2012 H-1B filing season, which begins April 1, 2011.

The purpose of the proposed system is to streamline the H-1B cap filing process. The new procedure, if implemented, will allow employers to register online and wait until they are awarded an H-1B cap number in the annual lottery before submitting a full petition with supporting documentation. The agency anticipates that it will eventually use a pre-registration system for other classifications that are subject to annual caps, like the H-2B. Gibney will continue to monitor developments and provide updates on any new procedures.

Please contact your designated Gibney representative should you require guidance on how to complete the new Form I-129 or if have any questions regarding the foregoing.

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Immigration Alert: USCIS To Issue Combined EAD and Advance Parole Card

Michael Hawkes — Thu, 17 Feb 2011 15:07:07 -0600

On February 11, 2011, United States Citizenship and Immigration Services (USCIS) announced that it would begin issuing a combined Employment Authorization and Advance Parole card (Advance Parole EAD card) for certain adjustment of status applicants who have filed a Form I-485 Application to Register Permanent Residence or Adjust Status.

Prior to this announcement, employment- and family-based adjustment of status applicants received two separate documents - an Employment Authorization Document (EAD) card and an Advance Parole (AP) travel document - to allow for work and travel authorization while the I-485 is pending adjudication with USCIS. Under the new process, which is effective immediately, applicants who concurrently file for an EAD (Form I-765) and for Advance Parole (Form I-131) will receive a single combined Advance Parole EAD card, authorizing both work and travel for the duration of its validity. The Advance Parole EAD card will appear similar to the current EAD card, but will also state “Serves as I-512 Advance Parole,” indicating its dual function. According to USCIS, the card will generally be issued for one or two years of validity, depending on visa availability. However, USCIS reserves its discretion to issue the card for other periods of validity based on circumstantial factors.

The Advance Parole EAD card will be issued only when an applicant’s EAD and AP applications (Forms I-765 and I-131, respectively) are concurrently submitted to USCIS. Because USCIS rules prohibit renewal of EAD and AP documents beyond four (4) months of a document’s expiration, some applicants may find it necessary to file separate EAD and AP applications in order to maintain seamless work and travel authorization. These applicants would then receive separately issued AP and EAD documents.

USCIS confirms that employers may accept the new Advance Parole EAD card as a List A document when verifying an individual’s work authorization for I-9 purposes.

For additional information regarding the new Advance Parole EAD card, please see USCIS Q&A.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: March 2011 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 15 Feb 2011 07:49:00 -0600

The U.S. Department of State (DOS) has published the March 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 8, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: July 1, 2005
China: January 22, 2004
Dominican Republic: July 1, 2005
India: March 15, 2002
Mexico: January 8, 2004
Philippines: July 1, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: June 15, 2003
China: April 22, 2003
Dominican Republic: June 15, 2003
India: March 15, 2002
Mexico: May 1, 2003
Philippines: June 15, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the March 2011 Visa Bulletin is available at: http://travel.state.gov/visa/bulletin/bulletin_5337.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Intellectual Property Attorney Walter-Michael Lee to Speak at Chicago Comic & Entertainment Expo

Michael Hawkes — Thu, 03 Feb 2011 08:35:30 -0600

Gibney attorney, Walter-Michael Lee will speak at the Chicago Comic & Entertainment Expo (C2E2) on Friday, March 18, 2011 from 5pm to 6pm. Mr. Lee will give a presentation entitled, Intellectual Property 101: How to Protect Your Intellectual Property and Not Infringe Others’.

Lecture Description:

Panel Room 4[473]
Intellectual Property 101: How To Protect Your Intellectual Property and Not Infringe Others'
Friday, March 18th 5:00PM - 6:00PM

You have created your own comic book hero, he can protect the world, but only you can protect your rights. In this seminar, you'll learn the basics of protecting your intellectual property and how not to infringe upon other people's works. Scheduled topics to be discussed include the following: an overview of copyrights, trademarks, fair use, what to do if someone is improperly using your works and how to avoid improperly using someone else's works.

C2E2 will be held in Chicago from March 18th to 20th. For more information or to register for this event please visit http://www.c2e2.com.

Immigration Practice Group Hosts February 3rd Seminar on Global Mobility - Recovery & Reform in 2011: Is Your Company Ready?

Michael Hawkes — Tue, 01 Feb 2011 07:40:16 -0600

On February 3, 2011 Gibney will hold a seminar entitled, Recovery and Reform in 2011: Is Your Company Ready?
Details are as follows:

Continental Breakfast 8:30 am - 9:00 am PST
Seminar 9:00 am - 10:30 am PST

Location

The Hilton Santa Clara
4949 Great America Parkway
Santa Clara, CA 95054

Topics for Discussion

The speakers will discuss global trends in immigration and individual/mobility taxation, including how companies can prepare for anticipated economic growth and legal reforms in key jurisdictions:

1. United States
2. United Kingdom
3. India
4. China

Speakers


Minal Shah Gibney, Anthony & Flaherty, LLP	Deborah Davy Gibney, Anthony & Flaherty, LLP	Brent Bergan Global Mobility Tax, LLP	Claudia Howe Global Mobility Tax, LLP

If you have questions about this seminar or are interested in receiving invitations to future seminars please send your name and contact info to seminars@gibney.com

Immigration Alert: H-1B Cap Reached January 26, 2011

Michael Hawkes — Fri, 28 Jan 2011 13:25:49 -0600

United States Citizenship and Immigration Services (“USCIS”) announced yesterday, January 27, 2011, that it has received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on January 26, 2011. USCIS will reject new H-1B petitions for Fiscal Year 2011 that are received after January 26, 2011.

USCIS will begin accepting new H-1B petitions on April 1, 2011 for the following Fiscal Year 2012 (October 1, 2011 to September 30, 2012).

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Immigration Alert: February 2011 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 14 Jan 2011 07:42:14 -0600

The U.S. Department of State (DOS) has published the February 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 1, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: April 1, 2005
China: January 1, 2004
Dominican Republic: April 1, 2005
India: February 22, 2002
Mexico: July 8, 2003
Philippines: April 1, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: May 1, 2003
China: April 22, 2003
Dominican Republic: May 1, 2003
India: February 22, 2002
Mexico: May 1, 2003
Philippines: May 1, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the February 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5228.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Approaching

Michael Hawkes — Wed, 05 Jan 2011 15:09:26 -0600

On January 4, 2010, U.S. Citizenship & Immigration Services (“USCIS”) announced that, as of December 31, 2010, approximately 57,300 H-1B cap-subject petitions had been filed. We anticipate that USCIS will soon announce the cap has been reached. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for fiscal year 2011 (October 1, 2010 to September 30, 2011). Employers preparing new H-1B petitions are encouraged to expedite processing as soon as possible.

On April 1, 2011, USCIS will begin accepting applications for fiscal year 2012 (October 1, 2011 to September 30, 2012).

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Global Immigration Alert - South Korea: Changes to Streamline the Employment Visa Process

Michael Hawkes — Wed, 05 Jan 2011 14:30:00 -0600

Korea recently implemented two changes that will streamline procedures for foreign nationals:

1) Certain foreign workers no longer need to obtain advance approval before changing their place of employment; and
2) Re-entry permits requirements are waived for holders of long-term work visas who depart Korea for less than one year.

Reporting Requirements Simplified

Effective January 1, 2011, certain foreign nationals who wish to add to or change their place of employment will no longer need to obtain advance approval. However, the foreign national must report the change within five days to the Immigration Office having jurisdiction over his or her place of residence. This new procedure applies to the following employment visa categories:

• E-1 (Professorship)
• E-2 (Foreign Language Instructor)
• EE-3 (Research)
• E-4 (Technological Transfer)
• E-5 (Professional Employment)
• E-6 (Arts & Performance)*
• E-7 (Special Occupation)**

*Excludes those who are employed at hotels or pleasure resorts (E-6-2)
** Excludes sales person, head cooks and cooks

Changes to Re-Entry Permit Requirements

Effective December 1, 2010, foreign nationals holding long-term work visas are no longer required to obtain a re-entry permit if they depart Korea and re-enter within one year. Previously, foreign nationals were required to obtain re-entry permits for each return trip. The new rules apply to the following visa categories:

• A-1 (Diplomatic)
• A-2 (Official Business)
• A-3 (Convention/Agreements)
• D-1 (Cultural Arts)
• D-2 (Students)
• D-3 (Industrial Training)
• D-4 (Gen. Training)
• D-5 (Journalism)
• D-6 (Religious Affairs)
• D-7 (Supervisory Intracompany Transfer)
• D-8 (Corporate Investment)
• D-9 (Trade Management)
• D-10 (Job Seeking)
• E-1 (Professorship)
• E-2 (Foreign Language Instructor)
• E-3 (Research)
• E-4 (Technological Transfer)
• E-5 (Professional Employment)
• E-6 (Arts & Performance)
• E-7 (Special Occupation)
• E-9 (Non-professional employment)
• E-10 (Vessel Crew)
• F-1 (Family Visitation)
• F-2 (Residential)
• F-3 (Dependent Family)
• G-1 (Miscellaneous)
• H-1 (Working Holiday)
• HH-2 (Working visit)

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Practice Head to Speak at City Bar CLE Event

Michael Hawkes — Tue, 21 Dec 2010 07:28:48 -0600

On Thursday, January 13, 2011 from 6:00 to 8:15 the New York City Bar Center for CLE will be hosting a program entitled, Immigration Law in the Workplace: the Current Compliance Landscape. There will be three lectures that describe U.S. immigration worksite compliance. Please see the full agenda.

Gibney Immigration Partner, Stephen J.O. Maltby, will be speaking during a session entitled, "How to Represent Your Client During a Government Audit or Investigation by ICE". This session will lay out exactly what will happen during a government investigation and the proven strategies for dealing with a Notice of Intent to Fine and negotiating with the government.

For more information on CLE events hosted by the New York City Bar please visit www.nycbar.org/CLE/index.php.

Global Immigration Alert: Costa Rica - Expansion of Entry Visa Exemption for Non-Residents

Michael Hawkes — Tue, 14 Dec 2010 07:10:00 -0600

On December 22, 2010 the General Office of Migration of Costa Rica, Direccion General de Migracion y Extrajeri (DBME), announced that certain foreign nationals who previously required a visa to enter Costa Rica are now exempt provided that they hold valid tourist, business, or crewmember visas issued by Japan or South Korea. The Japanese or South Korean visa must be endorsed in the foreign national’s passport and must be valid for a minimum of three months beyond the intended length of stay in Costa Rica.

This exemption applies to foreign nationals in the third and fourth group as designated by the circular letter summary (DG-3312-201). For a complete list of foreign nationals eligible for this exemption, please visit: http://www.migracion.go.cr/visas/Directrices%20visas.pdf.

This visa exemption for group 3 and group 4 is further expanded if the foreign national is a permanent resident of the United States, Canada, or an EU country, or if the foreign national holds a tourist, business, crewmember, work permit, or student visa from one of these countries that is valid for a minimum of six months beyond the intended length of stay in Costa Rica.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: January 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 13 Dec 2010 15:54:10 -0600

The U.S. Department of State (DOS) has published the January 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: June 22, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: March 22, 2005
China: December 15, 2003
Dominican Republic: March 22, 2005
India: February 1, 2002
Mexico: April 15, 2003
Philippines: March 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: April 22, 2003
China: April 22, 2003
Dominican Republic: April 22, 2003
India: February 1, 2002
Mexico: April 15, 2003
Philippines: April 22, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the January 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5212.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Hong Kong: Procedural Changes Affecting Foreign National Residents

Michael Hawkes — Fri, 10 Dec 2010 14:50:00 -0600

On December 6, 2010, Hong Kong introduced two optional procedures for foreign nationals residing in Hong Kong, outlined below.

Registration of Outbound Travel Information

The government launched the Registration of Outbound Travel Information (ROTI) service to facilitate communication and assistance for foreign nationals in the event of an emergency. Hong Kong residents can register their contact details and itineraries for travel outside Hong Kong. ROTI registrants will also receive updates via Outbound Travel Alerts.

Online Application for Extension of Stay

Through the Government of Hong Kong website (http://www.immd.gov.hk/ehtml/public_5.htm), foreign nationals may now apply for an extension of stay online. Applications should be submitted no later than four weeks prior to the expiration of the foreign national’s current visa. This service is only available to foreign nationals who are physically present in Hong Kong at the time the application is filed and who are personally able to collect their extended visa. The following immigration categories are eligible:

General Employment Policy
Admission Scheme for Mainland Talents and Professionals
Immigration Arrangements for Non-local Graduates (IANG)
Supplementary Labor Scheme
Student status or their dependants
Dependants of Hong Kong permanent residents or residents who are not subject to a limit of stay (i.e. residents with the right to land, or unconditional stay)

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: New Form I-129 Requires U.S. Employers to Certify Compliance with U.S. Export Control Regulations

Michael Hawkes — Fri, 03 Dec 2010 07:59:38 -0600

Effective December 23, 2010, U.S. employers petitioning for nonimmigrant workers will be required to utilize a revised version of Form I-129 containing a new section entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” This section must be completed by petitioning employers when sponsoring foreign nationals for H-1B, H-1B1 Chile/Singapore, L-1, or O-1A status. The petitioning employer will be required to certify that it has reviewed both the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) to determine whether a license to release controlled technology or technical data to the designated foreign national beneficiary of the petition is required by law. Release of controlled technology to a foreign national is deemed to be an export to the foreign national’s country or countries of nationality. If a license is required, the petitioner must certify that such controlled technology or technical data will not be released to the beneficiary until the license has been obtained from the U.S. Department of State and/or the U.S. Department of Commerce. If no license is required, the petitioner may simply indicate this on the Form I-129.

These licensure requirements only pertain to the aforementioned visa categories and are expected to affect only a small percentage of employers as most technology and technical data is not subject to export control. However, employers will need to verify whether their technologies and technical data are covered under the EAR and ITAR regulations and develop internal access policies and secure licenses as appropriate. The technologies or technical data controlled for release to foreign nationals usually refer to either “dual-use” technologies or defense items, and can be found on EAR’s Commerce Controlled List and on ITAR’s U.S. Munitions List.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Tax Alert: Tax Planning for 2011

Michael Hawkes — Wed, 01 Dec 2010 15:34:50 -0600

In the coming years tax rates are scheduled to increase on a number of fronts. First and most pressing, in 2011 the tax cuts enacted by the Economic Growth Tax Relief Reconciliation Act (“EGTRRA”) are set to expire. The highest rate on ordinary income will increase from 35% to 39.6%, the tax on capital gains is increasing from 15% to 20% and the tax on qualified dividends is increasing from 15% to 39.6%.

Also, under the Patient Protection and Affordable Care Act (“PPAC”) beginning in 2013, taxpayers with income over $250,000 will pay up to 3.8% Medicare tax on net investment income.

In the wake of impending tax law changes you should evaluate the tax planning opportunities available to you. The following planning opportunities presented are based on the principals of timing recognition of income. Timing will have the largest impact on minimizing the inevitable increase in taxes. The longstanding tax savings principal has been that the deferral of income tax will allow you to take advantage of the time value of money. The longer you can defer paying your tax the longer the opportunity to invest that money and increase its value. However, in a market producing minimal returns and impending increases in tax rates, deferral may no longer be the right choice. Taxpayers should give serious consideration to accelerating income for 2010 and deferring deductions into 2011.

METHODS OF ACCELERATING INCOME IN 2010

1. Evaluate the Built in Capital Gains in Your Investments (Stocks, Mutual Funds, Etc.)

By taking stock of your built in gain, you can potentially recognize your unrealized gain at 15% rather than 20%. The basis of the amount you reinvest in the market will be the value you pay now rather than years ago when you may have purchased the stock initially. You will only have to pay the increased rate of tax on appreciation after the reinvestment.

Whether it’s beneficial to accelerate your income is dependant on a number of factors such as your market rate of return on the investment and how long you hold the investment. It is not beneficial for investments with a consistently high return (8% and above) that you intend to keep for 5 years or more. On the other hand if the rate of return is lower and you are likely to sell in the near future it would be beneficial to make the sale in 2010 while the capital gains tax rate is still lower.

Additional factors to consider are the commissions and fees involved and whether there is the possibility that gain will never be recognized. No gain will be recognized if you hold the assets until you die (your descendents receive a stepped up basis) or if you contribute the assets for a charitable purposes.

As you reinvest in the market you should consider which investments will produce the greatest after tax yield. Given the slated increase in the tax on dividends, dividend producing equities may yield a lower after tax return that non-dividend producing equities. If a particular dividend producing equity appeals to you consider holding the investment in your IRA rather than in your individual brokerage account. Further, you may want to consider investing in municipal bonds or other tax free vehicles.

2. If Turning 70 ½ This Year Consider Not Deferring Your Required Minimum Distribution to April 2011

Although a major benefit of retirement plans is the ability to defer your income, deferral is not always the best option. Beginning in the year you turn 70 ½ you must start taking required minimum distributions from your retirement plans. However, you are allowed to defer your first required minimum distribution until April of the year following the year in which you turn 70 ½. Although deferral has been the favored option for most, the increase in ordinary income tax rates is likely going to outweigh the benefit of deferral if you have or will turn 70 ½ in 2010.

3. Review Your Stock Options

The taxation of non statutory stock options is all about timing, and as discussed throughout this article, given the increase in taxes slotted for 2011, timing is the name of the game. In general, unrestricted non qualified stock options are included as ordinary income in the year that they are exercised. Once the option has been exercised any future appreciation on the purchased stock is taxed as capital gains.

If you have flexibility in the timing of when you exercise your unrestricted options you may want to consider exercising in 2010 rather than 2011, after the ordinary income tax rates increase.

As discussed above, other factors must be considered in making these decisions, such as the projected performance of the stock.

4. Limited Planning Opportunities for Grants of Restricted Stock

In general, grants of restricted stock from your employer are included in income in the year that the restriction lapses. This is applicable to restricted stock you receive outright or restricted stock that you have to pay for (i.e. an option). However, the holder of restricted stock is permitted to make an election to include the value of the stock (less exercise price, if any, in the case of an option). This is called a 83(b) election. A 83(b) election must be made with the Internal Revenue Service (“IRS”) no later than 30 days following the grant of the restricted stock or the exercise of the option to acquire the restricted stock. Once the value of the stock has been included in your ordinary income any future appreciation is taxed as capital gains.

Because of the 30 day requirement, there is a small window for planning with restricted stock. However, if you are going to exercise restricted stock options in 2010 or have recently received grants of restricted stock, you should consider making an 83(b) election to include the amount in your ordinary income for 2010.
As discussed above, other factors must be considered in making these decisions, such as the projected performance of the stock.

5. Consider Converting Your Traditional IRA to a ROTH IRA

If you choose to covert your traditional IRA to a Roth IRAs you will pay ordinary income tax on the taxable amount that is converted. The advantage of the conversion is that all future distributions are made tax free and you will not be required to take required minimum distributions. There is nothing that prohibits an individual who has begun required minimum distributions from converting their traditional IRAs to a Roth IRA; however, if an individual is subject to required minimum distributions for 2010 they must take their 2010 required minimum distribution even if they convert their IRA to a Roth IRA.

Furthermore, effective December 31, 2009, the Tax Increase Prevention Act of 2005 eliminates the income limitation on converting traditional IRAs to Roth IRAs. So now anyone can convert their traditional IRA to a Roth IRA.

Although this is a complete repeal and not just a window for 2010, taxpayers should seriously consider making the conversion while the income tax rates are lower. Taxpayers that convert their traditional IRAs to Roth IRAs in 2010 will include 50% of the taxable amount in income in 2011 and 50% in 2012, unless they elect to include the entire amount in income in 2010. As discussed throughout this article you should seriously consider whether the benefit of deferring income into subsequent tax years outweighs the increased tax rates.

The following example will help illustrate how it is possible that deferral of tax is not always the ideal solution in a climate of increasing tax rates. The taxable portion of your traditional IRA is $500,000 in 2010, you’re in the highest tax bracket and you choose to convert to a Roth IRA. If you elect to include the amount in income in 2010, the tax on the conversion is $175,000. Alternately, if you do not elect to include the amount in income in 2010, the tax in 2011 will be $99,000 and the tax in 2012 will be $99,000 ($198,000 total). The question you should be asking yourself is whether you can generate a return of at least $23,000 by deferring the tax into 2011 and 2012. That is a return of over 13% over the two years which for many individuals is unlikely given market conditions.

METHODS OF DEFERRING DEDUCTIONS/LOSSES INTO 2011

1. Evaluate the Built in Capital Losses in Your Investments (Stocks, Mutual Funds, Etc.)

In conjunction with assessing your built in capital gains, you should also be assessing your built in capital losses. By deferring your capital losses to 2011 you can be offsetting gain that will be taxed at the higher rate of 20%.

2. Consider Deferring Itemized Deductions into 2011

The value of your itemized deductions is greater when the tax rate is increased. Therefore, it is advantageous to defer your itemized deduction to the following year when there is going to be a stark increase in taxes.

As an individual cash method taxpayer you take itemized deductions in the year in which you make the actual payments. You may not have a say in when you make certain payments, for example, your monthly mortgage payment. However, there are a number of itemized deductions that you can control the timing of. Consider making your year end charitable contributions in January of 2011. Additionally, if your real estate taxes or mortgage payment is not due until January 2011 do not prepay in December 2010.

Consider the following example to illustrate this point. In 2010 you are in the highest tax bracket and your tax rate is 35% and you have $10,000 in charitable donations. That $10,000 saves you $3,500 in tax in 2010. If you wait to make the donations in January 2011, that same deduction will save your $3,960.

3. Determine Whether Your Business Should Defer Asset Acquisitions to 2011

As a business owner you are able to take certain additional depreciation deductions in the year of acquisition (“bonus depreciation”). For the same reason as articulated above with regards to itemized deductions, the value of additional depreciation is greater when the tax rate is higher. Therefore, if you are intending to make a large purchase of a depreciable asset in 2010 and the timing is otherwise flexible consider putting off the purchase till 2011.

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This tax article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: USCIS Fee Increases Effective November 23, 2010

Michael Hawkes — Tue, 09 Nov 2010 15:34:48 -0600

U.S. Citizenship and Immigration Services (USCIS) announced new government filing fees for immigration applications and petitions effective November 23, 2010. The final rule will increase overall fees by a weighted average of approximately 10 percent but will not increase the fee for the naturalization application. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories.

Adjusted fees for commonly filed petitions and applications include the following:

I-129	Petitioner for Nonimmigrant Worker	Increase from $320 to $325
I-907	Premium Processing Request	Increase from $1,000 to $1,225
I-539	Application to Change/Extend NIV Status	Decrease from $300 to $290
I-140	Immigrant Petition for Alien Worker	Increase from $475 to $580
I-130	Petition for Alien Relative	Increase from $335 to $420
I-485	Application for Permanent Residence Biometrics Fee	Increase from $930 to $985 Increase from $80 to $85
I-131	Application for Travel Document	Increase from $305 to $360
I-765	Application for Employment Authorization	Increase from $340 to $380

For additional information and a complete list of adjusted fees, please visit the USCIS website at www.uscis.gov.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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U.K. Upcoming Event: Nov. 18, 2010 Partner Stephen Maltby to Speak at Business Immigration Conference in London

Michael Hawkes — Mon, 01 Nov 2010 15:17:31 -0500

November 18, 2010: Business Immigration Conference in association with Magrath LLP in London

Immigration has been one of the biggest political issues of 2010. The new coalition government has introduced a radical new approach including the imposition of quotas for employment and business related migration. The policy will have a major impact upon the strategies undertaken by U.K. companies to recruit the best candidates for U.K. roles. A number of changes have been made to the points based system and employers and stakeholders have been invited again to respond to extensive consultations by the Migration Advisory Committee and the U.K. Border Agency. In the United States, the administration of Barack Obama has begun to implement a new approach to the issues surrounding immigration.

This annual Business Immigration Conference, in association with the U.S. Embassy in London and Magrath LLP, will include high level speakers from The Home Office, U.K. Border Agency, International Group and the U.S. Consulate. The following issues will be addressed:

The imposition of caps and quotas for skilled migrants
How to maintain a Grade A sponsor license
Changes to the Points Based System
The results of MAC and UKBA consultations
What does the future hold?
Changes to the U.S. Immigration system
An update from the U.S. Consulate

Confirmed speakers:

Mark Franks, Head of Secretariat, Migration Advisory Committee (MAC)
Tom Hadley, Director of External Relations, The Recruitment and Employment Confederation
Christine Kagarise, Nonimmigrant Visa Chief, U.S. Embassy
Stephen Maltby, Partner, Gibney, Anthony & Flaherty, LLP, New York
Jonathan Nancekivell-Smith, International Group, UK Border Agency
Jeremy Oppenheim, Regional Director, UK Border Agency

Upcoming Global Immigration Webinar - November 3, 2010

Michael Hawkes — Mon, 25 Oct 2010 07:47:00 -0500

On November 3, 2010 at 9am PDT / 12pm EDT, Gibney will hold a webinar entitled Overseas Assignments: Relocation, Immigration and Tax Considerations. The webinar will be moderated by Gibney’s Immigration Practice Head, Stephen J.O. Maltby.

Webinar Topics:

I. Host Country Relocation Issues:

What to expect when moving overseas and how to capitalize on the relocation investment

II. Maintaining U.S. Immigration Status While Abroad

How assignments abroad impact foreign nationals with respect to U.S. work visas, lawful permanent residence and eligibility for naturalization

III. Emergency Planning

Legal planning considerations when moving abroad
U.S. Tax residency rules

To register for this webinar please visit:
http://www.gibney.com/seminar-signup

Our Panel:


Stephen Maltby Partner Gibney, Anthony & Flaherty, LLP	Lisa Smith Director, International Client Services Graebel	Deborah Davy Senior Counsel Gibney, Anthony & Flaherty, LLP	Gerald Dunworth Partner Gibney, Anthony & Flaherty, LLP

For additional information about Gibney Seminars / Webinars please contact us as seminars@gibney.com

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Immigration Alert: November 2010 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 14 Oct 2010 15:32:50 -0500

The U.S. Department of State (DOS) has published the November 2010 Visa Bulletin. There are modest advances in priority dates across most categories. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
"Current" means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: June 1, 2006
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 22, 2005
China: November 22, 2003
India: January 22, 2002
Mexico: May 1, 2001
Philippines: January 22, 2005

Employment-based, third preference (EB-3) "other" workers:

Worldwide: April 1, 2003
China: April 1, 2003
India: January 22, 2002
Mexico: May 1, 2001
Philippines: April 1, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the November 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5172.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: October 2010 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 15 Sep 2010 13:54:08 -0500

The U.S. Department of State (DOS) has published the October 2010 Visa Bulletin. With the start of the government’s new fiscal year on October 1, there are modest advances in priority dates across most categories and priority dates once again become available for Mexican nationals in the employment-based, third preference categories. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 22, 2006
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 8, 2005
China: November 8, 2003
India: January 15, 2002
Mexico: April 22, 2001
Philippines: January 8, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: March 22, 2003
China: March 22, 2003
India: January 15, 2002
Mexico: April 22, 2001
Philippines: March 22, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the October 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5145.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Final DHS Form I-9 Rules Take Effect

Michael Hawkes — Wed, 25 Aug 2010 13:46:51 -0500

On August 23, 2010 the finalized Form I-9 regulation recently issued by the Department Homeland Security takes effect. The new regulation allows employers to electronically complete, sign, and retain Forms I-9 and clarifies the rules for electronically creating and storing Forms I-9. The new regulation also mandates that employers must complete Section 2 of Form I-9 within three business, rather than calendar, days. More information about the new I-9 regulation can be found here, and the full text of the new regulation is available here.

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Immigration Alert: DHS to Introduce ESTA Fee for Visa Waiver Travelers

Michael Hawkes — Wed, 25 Aug 2010 13:44:33 -0500

Beginning September 8, 2010, the U.S. Department of Homeland Security (DHS) will require Visa Waiver Program (VWP) travelers to pay a $14 fee when registering with the Electronic System for Travel Authorization (ESTA) online prior to traveling to the United States. The fee, authorized by the Travel Promotion Act of 2009, will be utilized to fund programs to promote travel and tourism in the United States.

As of September 8, the $14 ESTA application fee must be paid when the ESTA applicant completes the online ESTA registration form prior to traveling to the United States. The fee must be paid by MasterCard, Visa, American Express or Discover credit card, or by a debit card containing the Visa or MasterCard logo. Instructions for payment will be included with the online ESTA registration form. DHS is exploring other payment options and may implement them at a future date. VWP travelers who have already secured ESTA authorization are not required to re-register when the fees take effect. Their ESTA authorization will remain valid for travel through their current ESTA expiration date.

The Visa Waiver Program & ESTA

The VWP permits citizens and nationals of designated countries to visit the United States for a 90-day period for business or tourism without obtaining a visa provided that they have an e-passport and provided that they have obtained authorization for travel from ESTA. A list of VWP eligible countries may be found at http://travel.state.gov/visa/temp/without/without_1990.html#countries.

ESTA is an online program to pre-screen VWP travelers to determine whether they are admissible to the United States and whether they pose any security or law enforcement risk. ESTA provides VWP travelers with authorization to travel to the United States by air or by sea carrier prior to embarking on such travel. ESTA registration is mandatory for all VWP travelers. ESTA applications may be submitted any time prior to traveling to the United States. Approved ESTA applications are valid for travel to the United States for two (2) years or for the validity period of the applicant’s passport, whichever is less. VWP travelers must obtain a new ESTA authorization if they are issued a new passport, change their name, change their gender, change their citizenship or if any of the answers provided on the initial application change. ESTA is not a guarantee of admission to the United States under the VWP. Rather, ESTA approval provides authorization to board an air or sea carrier to travel to the United States under the VWP. A U.S. Customs and Border Protection officer at the port of entry will continue to determine whether the individual traveler is ultimately admissible to the United States.

Additional information from U.S. Customs and Border Protection regarding ESTA is available at http://www.cbp.gov/xp/cgov/travel/id_visa/esta. Information regarding additional requirements for travel under the VWP, including e-passport requirements, is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/.

If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Provides Guidance on New Law Raising L-1 and H-1B Fees for Some Employers

Michael Hawkes — Wed, 25 Aug 2010 13:41:54 -0500

U.S. Citizenship and Immigration Services (USCIS) has provided preliminary guidance as to how it will implement the L-1 and H-1B fee provisions of the Emergency Border Security Supplemental Appropriations Act of 2010, signed into law on August 13, 2010, and effective immediately.

Which employers are subject to the new fees?

USCIS confirmed that petitioners who employ more than 50 persons in the United States, and whose U.S. workforce is comprised of more than 50% H-1B or L nonimmigrant workers (the “50/50 rule”) are subject to the new fees. Only persons employed by the petitioner within the geographic confines of the United States should be counted; however, both part-time and full-time employees must be counted in determining the workforce and percentage of H-1B and L visa holders. In terms of calculating the percentage of L visa holders, petitioners must include L-2 visa holders working pursuant to an Employment Authorization Document (EAD), in addition to L-1A and L-1B visa holders.

What are the new fees and which petitions are impacted?

Petitioners subject to the 50/50 rule must submit a supplemental L-1 filing fee of $2,250 for initial petitions to grant a foreign national L-1 status to work for the petitioner and for petitions to obtain authorization for a foreign national to change employers in order to work for the petitioner in L-1 status.

Likewise, petitioners subject to the 50/50 rule must submit a supplemental H-1B filing fee of $2,000 for initial petitions to grant a foreign national H-1B status to work for the petitioner and for petitions to obtain authorization for a foreign national to change employers in order to work for the petitioner in H-1B status. The fee is required for those covered petitions postmarked on or after August 14, 2010.

The supplemental fees are not required for petitions to extend or amend H or L status of a foreign national already employed by the petitioner, or for derivative beneficiary (H-4, L-2) applications. Although L-2 visa holders working pursuant to an EAD must be included when determining the percentage of L visa holders in the U.S. workforce, these foreign nationals are not required to pay any supplemental filing fees when filing applications for L-2 status or EADs.

USCIS declined to comment on how the Department of State may implement the new fee requirements for L-1 blanket petitions filed at U.S. consulates abroad.

Companies should work closely with immigration counsel to determine the law’s applicability to its petitions and how best to present petitions to USCIS if not subject to the new fee requirements in order to minimize delays in adjudication.

Gibney will continue to monitor this matter and provide updates as they become available.

If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New Law Raises L-1 and H-1B Fees for Some Employers

Michael Hawkes — Wed, 18 Aug 2010 16:59:40 -0500

On August 13, 2010, President Obama signed into law the Emergency Border Security Supplemental Appropriations Act of 2010. Among provisions that provide additional funding for law enforcement activities along the southwest border, the law raises the L-1 and H-1B filing fee and fraud prevention and detection fee for some employers. Specifically, for U.S. employers with more than 50 employees and a workforce comprised of more than 50% H-1B or L-1 nonimmigrant workers, the required filing fee and fraud prevention and detection fee is raised by $2,000 for H-1B petitions and $2,250 for L-1 petitions. The fee increase is scheduled to sunset on September 30, 2014.

While the law is effective immediately, we await further guidance from U.S. Citizenship and Immigration Services (USCIS) regarding how companies should count employees to determine the percentage of H-1B and L-1 visa holders, including how companies should treat different legal entities within the same group of companies. Furthermore, additional direction from USCIS is required regarding the collection of fees, including fees for Blanket L petitions filed at U.S. consulates abroad. USCIS is expected to provide implementing guidance later this week. Gibney will continue to monitor this matter and provide updates as they become available.

If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: September 2010 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 13 Aug 2010 14:44:40 -0500

The U.S. Department of State (DOS) has published the September 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off dates for Chinese and Indian nationals advanced to May 8, 2006. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Chinese nationals advanced to October 22, 2003. The EB-3 “professional and skilled worker” priority cut-off date for Indian nationals remains unchanged at January 1, 2002. The priority cut-off date for Worldwide, the Dominican Republic and the Philippines advanced to December 15, 2004.

In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to March 22, 2003. The EB-3 “other worker” category priority cut-off date for India remained unchanged at January 1, 2002. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year (FY), in October 2010.

The full text of the September 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5113.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Partner Speaks at Intellectual Property Owners Association Annual Meeting

Michael Hawkes — Fri, 06 Aug 2010 12:58:23 -0500

Gibney intellectual property practice head, Brian W. Brokate, will be speaking at the IPO’s Annual Meeting in a panel discussion entitled, “Stopping Counterfeiting Around the World: A ‘How To’ Session”. This discussion will focus on what companies who have discovered trademark infringement against their marks should do and the civil and criminal options available to them in pursuing counterfeiters. Information will be provided on current trends in intellectual property protection and anti-counterfeiting.

The IPO Annual Meeting will be held from September 12 through September 14 at the Hyatt Regency in Atlanta, GA. Mr. Brokate’s panel will be from 8am to 9:30am in the Regency Ballroom on Tuesday, September 14, 2010. For more information on the IPO and the Annual Meeting please visit www.ipo.org.

Immigration Alert: DHS Finalizes I-9 Employment Form Rule

Michael Hawkes — Wed, 04 Aug 2010 17:19:37 -0500

On July 22, 2010 the U.S. Department of Homeland Security finalized a regulation allowing employers to electronically complete, sign, and retain Forms I-9. DHS adopted an interim rule in 2006 allowing electronic storage of Forms I-9. The new regulation contains several modifications to the interim rule: employers must complete Form I-9 within three business, rather than calendar days; employers may use paper, electronic, or a combination of paper and electronic Forms; employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations; employers need not retain audit trails each time a Form I-9 is electronically viewed; and employers are not required to provide a confirmation of a Form I-9 transaction unless the employee requests a copy. The full text of the new regulation is available here.

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Gibney Partner Organizes Charity Auction

Michael Hawkes — Mon, 02 Aug 2010 13:53:43 -0500

Gibney partner, Angelo E.P. Mazza, organized a raffle and silent auction in conjunction with the International AntiCounterfeiting Coalition (IACC) to benefit the Children’s Hospital Boston. On Monday, July 26, 2010, Angelo proudly donated $13,760 to the hospital on behalf of the IACC. Funds will benefit children and their families receiving care.

Children’s Hospital Boston employs 963 active medical and dental staff as well as 897 residents and fellows, 1,570 nursing and clinical personnel and 5,200 other full and part time employees. They also have a diverse, trained team of more than 800 volunteers.

For more information on Children’s Hospital Boston please visit: http://www.childrenshospital.org/.

For more information on the IACC please visit: http://www.iacc.org

Pictured are John Cassillo (RIAA), 2010 IACC Spring Conference Co-Chair, Linda Barchiesi, Bob Barchiesi, IACC President, Angelo Mazza and Tara Hardimon, Children’s Hospital Boston. Missing from the picture are Lisa Rogan (Acushnet Company) and Vanessa Backman (Apple), 2010 IACC Spring Meeting Co-Chairs.

Gibney Partner to Speak at PLI Intellectual Property Law Institute 2010

Michael Hawkes — Tue, 27 Jul 2010 17:44:12 -0500

Gibney’s intellectual property practice head, Brian W. Brokate, will give a lecture at this year’s IP Law Institute entitled, “What’s New in Anti-Counterfeiting” on September 23, 2010 at 1:45 pm. The lecture will cover hot button issues regarding anti-counterfeiting efforts including:

Liability of Internet “middlemen”
Tiffany v. eBay updates: The Second Circuit’s decision (auction sites)
Third party liability against search engines, ISPs and payment services
ACTA updates: The latest and greatest leaks of this secret plurilateral trade agreement
Educating the consumer and use of online resources

The Intellectual Property Law Institute is an annual event held by the Practicing Law Institute (PLI) that brings together thought leaders in the fields of intellectual property rights and anti-counterfeiting. It discusses the latest information and trends seen in intellectual property protection. The New York City Seminar is located at 810 Seventh Ave (at 53rd St) on the 21st floor. For more information or to register for the events please visit www.pli.edu.

Employee Benefits Alert: The Patient Protection and Affordable Care Act - Grandfathered Plans

Michael Hawkes — Tue, 20 Jul 2010 20:32:31 -0500

The Patient Protection and Affordable Care Act (the “Act”) implemented numerous insurance and benefit reforms for group health plans. However, many of these changes will not apply to “grandfathered plans.” Plans in effect on March 23, 2010, the date of enactment, are grandfathered plans.

Preserving Grandfathered Status

In order to take advantage of grandfathered status the plan must not do any of the following:

Eliminate or substantially reduce benefits (For example - no longer covering healthcare services for a major diagnosis category such as diabetes, cystic fibrosis, or HIV/AIDS);
Increase coinsurance charges;
Increase copayment levels by more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation plus 15 percentage points. (For example - increasing copayments from $30 to $50 between 2010 and 2012);
Increase deductibles by more than the medical inflation percentage plus 15 percentage points. (For example - increasing the deductible from $500 to $750);
Decrease the percentage of employer cost sharing by greater than 5 percentage points. (For example - decreasing the employer cost-sharing percentage and increasing employee cost-sharing percentages from 10% to 20%);
Add or tighten annual limits on what the insurer pays – capping or decreasing the annual dollar amount covered by a plan for specific services or adding an annual dollar limit maximum where one did not exist on March 23, 2010; and
Change insurance companies – purchasing insurance from an insurance company other than the insurance company providing the insurance on March 23, 2010. (For example, if a plan solicits and then moves their coverage to another carrier, it will lose its grandfathered status).

These restrictions are effective from the date of enactment, March 23, 2010. However, agencies may disregard changes that modestly exceed the changes made before June 14, 2010, the date the regulations were published. For change made in good faith compliance with the terms of the Act prior to June 14, 2010, plans may revoke any impermissible changes prior to the start of the next plan year on or after September 23, 2010.

Preserving grandfathered status puts numerous limitations on the plan; therefore, you should determine whether the benefits of retaining grandfathered status are worth the limitations imposed. Below are some of the provisions of the Act that do not apply to grandfathered plans.

The plan must permit an individual to select a participating primary care provider, or pediatrician in the case of a child. The plan must provide direct access to obstetrical or gynecological care without a referral and the plan must not require prior authorization or increased cost sharing for out-of-network emergency services.
The plans must provide an effective internal appeals process for coverage determinations and claims and comply with any applicable State external review processes. If the State has not established an external review process that meets minimum standards or the plan is self-insured, the plan or issuer shall implement an external review process that meets standards established by the Federal government.
Plans must not discriminate against health care providers acting within the scope of their professional license and applicable State laws.
Plans must cover certain preventive services, immunizations, and screenings, without any cost sharing.
Plans must disclose, to the Federal government and the State insurance commissioner, certain enrollee information such as claims payment policies and practices and enrollee rights. Additionally, such plans are required to provide information to enrollees on the amount of cost-sharing for a specific item or service.
The requirement that plans not discriminate in favor of highly compensated individuals, previously applicable to cafeteria plans, is now applicable to all fully-insured group health plans.
Plans are prohibited from requiring the disclosure or collection of any information relating to the presence or storage of a lawfully possessed firearm or ammunition in the residence or the lawful use, possession or storage of a firearm or ammunition by an individual.

A grandfathered plan is still required to comply with several provisions of the Act. For the first plan year following September 23, 2010 (most commonly calendar year 2011), the plan must still: (1) eliminate lifetime dollar limits on benefits; (2) not permit recession of coverage except in the case of fraud or material misrepresentation of a material fact; and (3) permit dependants to remain covered up to age 26 as long as the dependant does not have coverage from his/her own employment. Additional requirements become effective for plan years on of after January 1, 2014.

Additionally, if you choose to maintain the plan as a grandfathered plan, you must include a statement in any plan material provided to a participant or beneficiary describing the benefits provided under the plan, stating that the plan believes it is a grandfathered plan within the meaning of section 1251 of the Act and provide contact information for questions and complaints. In the event that you choose to maintain the plan as a grandfathered plan please contact us regarding updating your plan materials, including your Summary Plan Description.

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This employee benefits article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Gibney Partner Quoted in Justice Sotomayor Biography

Michael Hawkes — Tue, 20 Jul 2010 19:11:25 -0500

In Antonia Felix’s biography of Justice Sonia Sotomayor entitled, Sonia Sotomayor: The True American Dream, she describes Justice Sotomayor’s ascent from modest beginnings, growing up in public housing in the Bronx up to her modern day post as Associate Justice to the Supreme Court of the United States.

Sonia Sotomayor attended Princeton for undergraduate studies and Yale University School of Law for her JD. She excelled in both schools and was offered a position as a prosecutor in New York’s district attorneys office where she was able to work on a wide array of criminal proceedings ranging from drugs to organized crime and everything in between.

From there Sonia Sotomayor worked at Pavia & Harcourt primarily dealing with anti-counterfeiting and intellectual property law. After her tenure with Pavia & Harcourt she served as a federal judge in the Southern District of New York and eventually received a nomination from President Clinton to serve as a judge in the Second Circuit Court of Appeals. In 2009 President Obama, impressed by Sotomayor’s background and experience, nominated her to her current position as Supreme Court Justice.

It was during her time engaged an anti-counterfeiting practice that Gibney Partner, Brian W. Brokate, was able to collaborate with Justice Sotomayor. They worked together on various committees to combat counterfeiting and on joint enforcement actions. When asked by the author to describe her Mr. Brokate said she was a great listener who worked for consensus. “Of all the committees I’ve worked on over the years, this was really collaborative.” He also had a chance at the time to get to know her outside of the courtroom. “We had many discussions about things other than law, especially music. She really liked certain rock bands and loved the symphony as well”.

Immigration Alert: USCIS Clarifies "What's the Hire Date for E-Verify"

Michael Hawkes — Mon, 19 Jul 2010 17:22:00 -0500

In June 2010, U.S. Citizenship and Immigration Services (USCIS) provided additional guidance for employers regarding the date of hire for purposes of completing E-Verify, the online system for registered employers to electronically verify an employee’s authorization to work in the United States.
USCIS addressed questions raised by E-Verify registered employers regarding the requirement to complete E-Verify within three days of hire and different requirements for Form I-9 compliance. The E-Verify hire date may vary depending on when a new employee starts work for pay and when an E-Verify case is created. The guidance issued by USCIS, entitled “What’s the Hire Date For E-Verify,” specifies that if a case is created in E-Verify before an employee starts work for pay, then the E-Verify hire date is the date the E-Verify case is created. Alternatively, if a case is created in E-Verify on or after an employee starts work for pay, then the E-Verify hire date is the date the employee started work for pay.

For the full text of USCIS guidance “What’s The Hire Date For E-Verify,” please click here.

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Gibney Attorneys Write Featured Article in IP Litigator

Michael Hawkes — Wed, 14 Jul 2010 19:05:20 -0500

Gibney Partner Brian W. Brokate and Associate Christina L. Winsor coauthored an article which will appear in the upcoming issue of the IP Litigator. The article entitled, “Contributory Liability Against Third Party Internet Infringement of Trademarks”, provides readers with a background of contributory liability standards in the United States and European Union. The article explores online infringement issues by examining current cases involving internet service providers, online auction sites, social networks and search engines. The article is set to appear in the July/August edition of IP Litigator.

Immigration Alert: August 2010 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 14 Jul 2010 12:50:19 -0500

The U.S. Department of State (DOS) has published the August 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off dates for Chinese and Indian nationals advanced to March 1, 2006. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Chinese nationals advanced to September 22, 2003. The EB-3 “professional and skilled worker” priority cut-off date for Indian nationals advanced to January 1, 2002. Cut-off date for Worldwide, the Dominican Republic and the Philippines advanced to June 1, 2004.

In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to May 15, 2002 and India advanced to January 1, 2002. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year (FY), in October 2010.

The full text of the August 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5092.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Practice Group Hosts July 13 Webinar on Global Immigration Compliance

Michael Hawkes — Thu, 01 Jul 2010 08:04:00 -0500

On July 13, 2010 Gibney will hold a webinar entitled, Global Immigration Compliance: Updates on Enforcement Trends and Reform in Selected Jurisdictions

Details are as follows:

Time & Date:

Tuesday July 13, 2010
9:00 - 10:00 am PDT / 12:00 - 1:00 pm EDT / 5:00 - 6:00 pm GMT

Topics:

Introduction & Overview

United Kingdom - Magrath LLP

Legal Right to Work - Compliance and Penalties
Employer Obligations Under the Points Based System
How to Maintain an "A" Rating with UK Border Agency

Canada - Green and Spiegel LLP

Temporary Foreign Worker Program - Penalties for Noncompliance
Immigration and Refugee Protection Act - Offenses and Penalties
Hot Topics - Work Permits
Facilitated Processing Visa Category Ends - What's Next?

APAC - Global Trends in Immigration Reform - Gibney, Anthony & Flaherty, LLP

India, Australia and Japan
Best Practices - Corporate Policies

Speakers:

Stephen J.O. Maltby - Gibney, Anthony & Flaherty, LLP
Ben C.P. Sheldrick - Magrath, LLP
Evan J. Green - Green and Spiegel, LLP
Deborah B. Davy - Gibney, Anthony & Flaherty, LLP

To register please visit www.gibney.com/register

If you have questions about this seminar or are interested in receiving invitations to future seminars please send your name and contact info to seminars@gibney.com

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Immigration Alert: July 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 15 Jun 2010 13:00:59 -0500

The U.S. Department of State (DOS) has published the July 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off date for Indian nationals advanced to October 1, 2005. However, the EB-2 priority cut-off date for Chinese nationals remains unchanged from June, at November 22, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Indian nationals advanced to November 22, 2001. The EB-3 “professional and skilled worker” priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to August 15, 2003. In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines is unchanged from June, at June 1, 2001. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year (FY), in October 2010.

Priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category.

DOS also projected “best case scenarios” for employment-based visa availability and priority cut-off dates through the end of FY 2010 based on current demand, as follows:

EB-1 All countries: Current
EB-2 China and India: March or April 2006
EB-3 Worldwide: June through September 2004
EB-3 China: October through December 2003
EB-3 India: February 2002
EB-3 Mexico: Unavailable
EB-3 Philippines: June through September 2004

As noted, these are projections. Actual availability and priority cut-off dates will be announced in the August and September Visa Bulletins.

The full text of the July 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5019.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney News: Gibney Attorney meets with USCIS Director

Michael Hawkes — Fri, 11 Jun 2010 18:38:59 -0500

Gibney attorney Judi McManigal attended an immigration stakeholders meeting with the U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas. Director Mayorkas provided an overview of USCIS goals in the upcoming year, then Ms. McManigal and other attendees asked questions and provided suggestions. Recommendations included improvement of the 800 customer service line, reconsideration of the H-1B memo regarding employer/employee relationships, and thoughful adjudication of petitions filed by small businesses, who have very adequate ability to pay but may need to demonstrate that ability in more non-traditional ways.

Immigration Alert: USCIS Announces E-Verify Redesign

Michael Hawkes — Fri, 11 Jun 2010 14:19:00 -0500

On June 13, 2010 USCIS will launch a redesigned E-Verify website intended to enhance the system’s usability, security, accuracy and efficiency. The redesigned website will feature new menus, case alerts, simplified terms, and an improved news section. New icons will also be introduced to allow users to easily identify cases that need attention. While existing usernames and passwords will remain valid, E-Verify users will be required to take a short tutorial to learn about the changes when they first log into the redesigned site. More information about the redesign is available here.

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Gibney Partner Stephen J.O. Maltby Moderates Panel at 2010 ACIP Annual Symposium

Michael Hawkes — Fri, 11 Jun 2010 12:41:36 -0500

On Wednesday, June 9, 2010, immigration practice head, Stephen J.O. Maltby moderated a panel discussion at the American Council on International Personnel (ACIP) Annual Symposium in Washington, D.C. entitled, "Meet the Investigators". The discussion centered around the U.S. government departments in charge of worksite investigation.

Speakers included Ronald Atkinson, Kurt Fitz-Randolph and Diane Koplewski.

The 2010 ACIP Annual Symposium focused on "Immigration Compliance in a Changing Global Market".

Global Immigration Alert - Canada: Facilitated Processing for IT Specialists to End

Michael Hawkes — Wed, 09 Jun 2010 12:37:29 -0500

Effective October 1, 2010, facilitated processing for Information Technology Specialist (“IT Specialist”) visas under the Temporary Foreign Worker Program (“TFWP”) in Canada will no longer be available. Under facilitated processing, employers were not required to test the labor market for available workers and IT Specialist visa applicants were able to apply for work permits at a Canadian consulate or Port of Entry. In announcing the program’s termination, the Canadian government indicated that its aim is to ensure that the hiring of foreign workers will not adversely affect the labor market in Canada.

Canada previously implemented facilitated processing for the IT Specialist visa category for the following high demand occupations:

Senior animation effects editors;
Embedded systems software designers;
MIS software designers;
Software developers - services;
Software products developers;
Telecommunications software designers; and,
Multimedia software developers.

Effective October 1, 2010, employers that wish to hire temporary foreign workers in these occupations will be required to file a Labour Market Opinion (“LMO”). Pursuant to TFWP guidelines, employers will be required to undertake recruitment and advertising efforts prior to filing for the LMO. LMO guidelines require that the employer demonstrate the following:

Wage offered meets or exceeds the prevailing wage rate for the geographic location and occupation;
Position was advertised in accordance with TFWP guidelines;
Employer recruited for and attempted to hire Canadian workers;
Working conditions meet Canadian standards;
Employer has made efforts to create new jobs or retain jobs for Canadians;
Employer will transfer new skills and knowledge to foreign national; and,
Hiring the foreign worker will not cause a labour dispute.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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HSA Contribution Limits Remain the Same for 2011

Michael Hawkes — Wed, 02 Jun 2010 16:05:31 -0500

The Internal Revenue Service recently released Revenue Procedure 2010-22, a notice outlining the 2011 minimums and maximums for health savings accounts plans and high-deductible health plans. The amounts remained unchanged from 2010 because there was no cost of living adjustment for 2011.

The maximum HSA contribution that can be made in 2011 is $3,050 for employee-only coverage and $6,150 for family coverage.

In addition, the minimum deductible will stay at $1,200 for single coverage and $2,400 for family coverage.

The maximum out-of-pocket employee expense, including deductibles, will stay at $5,950 for single coverage and $11,900 for family coverage.

Gibney Webinar: The Worksite Investigator is Knocking Are You Ready?

Michael Hawkes — Fri, 21 May 2010 14:36:58 -0500

On May 25, 2010 at 2:00p.m. EDT, Gibney will hold a webinar. The webinar will explore the federal agencies that are active in worksite investigations. Led by an expert panel, participants will learn about what to expect when an investigator comes knocking at the door. The discussion will center on the trends and triggers in investigations by USCIS, ICE and DOL, as well as proactive steps for employers to ensure compliance.

See our invitation here.

Global Immigration Alert - Mexico: Mexico Waives Visa Requirements for U.S. Nonimmigrant Visa Holders

Michael Hawkes — Fri, 21 May 2010 13:50:23 -0500

Effective May 1, 2010, Mexico’s National Institute of Migration (INM) announced that foreign nationals of any nationality who hold valid U.S. nonimmigrant or immigrant visa status may apply for admission to Mexico at all ports of entry (land, sea and air) without first obtaining a visa to enter Mexico. Under the new rule, these foreign nationals may be admitted to Mexico by providing the following documentation:

Valid passport
Completed Multiple Immigration From (FMM- Visitor’s Permit)
Evidence of valid U.S. immigration status (I-94, I-797, or Lawful Permanent Residence Card).

The Mexican immigration official at the port of entry will collect data related to the foreign national’s biographic information and details pertaining to his or her U.S. immigration status and will maintain the data in Mexico’s Internal System of Immigration Operations (SIOM). Barring any legal impediments, the foreign national will be granted temporary status as a tourist, commuter, or business visitor, will receive a stamp in his or her passport, and will be admitted to Mexico accordingly. Foreign nationals not admitted at initial inspection will be sent to secondary inspection, where an immigration supervisor will review inspection procedures and make a determination whether to admit the individual or deny admission.

This new regulation was adopted to simplify and facilitate travel to Mexico and to encourage the arrival of tourists and business visitors to promote investments, employment opportunities, and regional developments.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Global Immigration Alert - United Kingdom: UK Introduces Priority Processing

Michael Hawkes — Thu, 20 May 2010 19:07:22 -0500

The United Kingdom Border Agency (UKBA) International Group announced that consular posts in New York, Chicago and Los Angeles will offer fee-based priority processing for all visa applications that require expedited processing, similar to the premium processing program offered by U.S. Citizenship and Immigration Services. Effective June 1, 2010, applicants requesting priority processing of their UK visa applications will be charged a non-refundable fee of $150 in addition to the underlying visa application fee. UKBA indicated that it will endeavor to process visa applications within 48 hours, but it would not guarantee this timeframe or the outcome of the visa application. If an applicant does not request priority processing, the application will be treated as a standard application and the application must be submitted by mail. The standard processing time is anticipated to be five (5) business days.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Redesigns the Green Card

Michael Hawkes — Thu, 20 May 2010 18:46:58 -0500

U.S. Citizenship and Immigration Services (USCIS) announced last week that it will begin issuing newly redesigned U.S. Permanent Resident Cards as of May 11, 2010. Taking a cue from the document’s nickname, the new cards are tinted green, and will incorporate a host of new security measures intended to prevent fraud while making authentic documents easy to identify and trace.

Why did USCIS redesign the Permanent Resident Card?

The new Permanent Resident Card – or “Green Card” – is the result of a collaborative effort by USCIS, Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and the Department of Homeland Security (DHS) Screening Coordination Office aimed at reducing immigration fraud. The now aptly named and redesigned Green Card is intended to prevent counterfeiting, obstruct tampering and facilitate quick and accurate authentication of the card holder’s right to live and work in the United States.

What does the new card look like?

As the name suggests, the new Green Cards are, literally, green, making them easy for agents of all immigration, law enforcement and customs agencies to identify at a glance. Each card will also include a unique background design, as well as holographic infogram stamp and laser engraving of the card holder’s index fingerprint.

Artwork incorporated into each card will feature difficult to reproduce fine-line drawings, with some portions printed using color-shift inks. The photo, previously found only on the front of the card, will now also be printed on the back under a tamper-resistance shield. A sample image of the new card is available at www.uscis.gov.

Are there other changes?

In addition to the updates in the card’s appearance, USCIS has implemented several new, state-of-the art security measures. These less visible changes are intended to make valid documents easier for enforcement officers to verify and the cards more difficult to reproduce or alter.

Ultraviolet technology and tactile clues will assist CBP officials in identifying authentic cards, and a unique serial number allows officials to efficiently collect and review an individual’s information using Radio Frequency Identification (RFID) technology. Tamper-resistant materials mean the new cards will show evidence of alteration immediately, and more detailed photographs make card sharing or exchange difficult.

What will happen to the old cards?

USCIS plans to gradually phase out the old Permanent Resident Cards as individuals renew their documents. Most existing Permanent Resident Cards carry an expiration date (10 year validity period for permanent residents; 2 years for conditional permanent residents), and those cards remain valid through the expiration date printed in the lower right corner of the card. Holders of these cards will receive the redesigned Green Card when seeking a card renewal or replacement. Other existing Permanent Resident Cards have no expiration date, and, likewise, those cards remain valid. However, USCIS recommends that holders of cards without an expiration date apply to replace their cards with the redesigned version.

Additional information about the redesigned Green Card is available at www.uscis.gov. If you have any questions regarding the new Green Card please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: June 2010 U.S. Visa Bulletin Released

Michael Hawkes — Sun, 16 May 2010 16:17:03 -0500

The U.S. Department of State (DOS) has published the June 2010 Visa Bulletin. There are modest advancements in some of the employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to November 22, 2005. However, the EB-2 priority cut-off date for Indian nationals remains unchanged from May, at February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The EB-3 “professional and skilled worker” category, the priority cut-off date for Indian nationals advanced to October 22, 2001. The EB-3 “professional and skilled worker” priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to June 22, 2003. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year, in October 2010.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines is unchanged from May, at June 1, 2001.

The full text of the June 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4879.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: India - Zero Tolerance Mandated for Indian Visa Applications

Michael Hawkes — Thu, 29 Apr 2010 16:37:20 -0500

The Indian Embassy outsources receipt of tourist, business, and work permit visa applications to the India Visa Center-Travisa Outsourcing Office (“Travisa”). Tourist, business and work permit visa applications are submitted directly to Travisa, and Travisa, in turn, submits the application to the Indian Consulate having jurisdiction over the foreign national.

On April 21, 2010, Travisa announced that implementation of regulatory changes made by the Ministry of Home Affairs in the last quarter of 2009 resulted in a significantly higher denial rate for visa applications. In addition, due to submission of several fraudulent visa applications, four third-party visa services were barred from filing additional applications. Travisa, under the direction of the India Embassy, indicated that it will adopt a “zero tolerance” policy for visa applications that are improperly completed or missing supporting documentation expressly requested on visa application checklists. If Travisa rejects the visa application, it will return the filing fee to the applicant. However, if the Indian Embassy or Consulate rejects the application, the filing fee will not be refunded.

Additionally, Travisa stated that the Indian Embassy will track all denials so that it can determine if there is a pattern of fraud or misrepresentation. If a third-party visa service has a significant denial rate or perceived pattern of filing fraudulent applications, it will be barred from filing additional applications.

Third-Party Visa Service Registration Required

Commencing May 3, 2010, all third-party visa services will be required to register with the office of Travisa where it plans to file visa applications, including Washington D.C., New York, Chicago, Houston, and San Francisco. All third-party visa service couriers will be required to provide photo company identification in order to submit applications.

Travisa indicated that priority processing will be given first to individual applications, second to third-party visa service applications, and third to applications submitted by mail. Importantly, the Indian Embassy stated that personal interviews will be required on an ad hoc basis and that the number of interviews will increase over time.

Best Practices

The following best practices are recommended when filing Indian visa applications:

Review the visa application for completeness;
Sign application (the signatures must match the foreign national’s passport);
Ensure inviting company letterhead matches the applicant’s destination;
Provide all documentation on checklist (for example, provide an original long-form birth certificate); and
Provide proof of jurisdiction. The address on the visa application must match the address on the applicant’s driver’s license or utility bill (only water, gas, electric, and sewage bills will be accepted).

Summary

It is increasingly important to properly complete Indian visa applications well in advance of travel. All visa applications should be reviewed carefully prior to submission and all required documentation should be secured in advance of filing.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Brazil - Appointment-Based Registration Procedures Reversed in Sao Paulo

Michael Hawkes — Wed, 28 Apr 2010 12:52:28 -0500

The government of Brazil recently made changes to its in-country registration procedures impacting foreign nationals situated in São Paulo.

Overview

All foreign nationals who will be in Brazil for more than 90 days are required to register with Brazil’s Federal Police. Registration for work permit holders must be done within 30 days of the foreign national’s first entry into Brazil pursuant to an endorsed work visa in their passport. Failure to comply with the registration requirement may result in cancellation of the work visa or denial of future entry into Brazil. Equally important, foreign nationals who do not comply with the registration process will not be granted a National Registry of Foreigners Card (RNE) or Social Employment and Social Security Booklet (CTPS). Foreign nationals are required to obtain these forms of identification in order to be placed on local payroll, to open bank accounts, and to apply for driver’s licenses.

Recent Changes

Within one month of implementing an appointment-based registration procedure for the São Paulo region, Brazil’s Federal Police Department’s Foreign Division reversed the procedure, and reinstated same-day processing. The appointment-based registration procedure, which required foreign nationals entering Brazil on a work permit and located in São Paulo to make on-line appointments to register, resulted in significant delays of upwards of 60 days to secure an appointment, and 30 additional days to be issued an RNE. While foreign nationals are permitted to work in Brazil with an approved work visa, they may not be placed on Brazilian payroll until the RNE is issued, and they may not travel outside of Brazil before the registration process is completed.

The Federal Police have now returned to utilizing a same-day registration system in São Paulo and card issuance is taking 5 to 7 hours. Foreign nationals who previously applied for registration under the appointment-based registration system are still required to wait for their registration appointment. However, if a foreign national awaiting a registration appointment has urgent international travel, he or she may file for same-day registration one day in advance of departure on a confirmed international flight.

Full compliance with Brazil’s registration procedures is essential to avoiding cancellation of a foreign national’s work visa. Please contact your designated Gibney representative if you have any questions about Brazil’s current procedures, or email immigrationalerts@gibney.com.

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Gibney's IP Practice Group Hosts Russian Delegation

Michael Hawkes — Thu, 22 Apr 2010 14:01:47 -0500

On Wednesday, April 28, 2010, Gibney, Anthony & Flaherty, LLP will host and present a seminar with the U.S. Department of Commerce on enforcing Intellectual Property rights in the United States. The seminar will be presented to a delegation of judges from Russia.

Speakers will include:

Brian W. Brokate, Head of Gibney’s Intellectual Property Practice Group
Rosanna M. Fox, Associate in Gibney's Immigration Practice Group
Douglas A. Miro, Partner at Ostrolenk Faber, LLP
Representatives from the U.S. Department of Commerce
Kathleen McGee, Mayor's Office of Special Enforcement
Bob Barchiesi, International Anti-Counterfeiting Coalition
John Cassillo, Recording Industry Association of America

Global Immigration Alert - South Africa: 2010 FIFA World Cup Travel Tips and Visa Requirements

Michael Hawkes — Wed, 21 Apr 2010 20:31:39 -0500

The 2010 FIFA World Cup will be held from June 11, 2010 through July 11, 2010 in nine cities across South Africa, including Cape Town, Durban, Johannesburg, Bloemfontein, Pretoria, Rustenburg, Port Elizabeth, Polokwane, and Nelspruit. Foreign nationals planning to attend the 2010 FIFA World Cup in South Africa should determine if a visa is required for their visit as soon as possible.

Citizens of certain countries, including the United States and United Kingdom, may be exempt from a visa requirement if entering South Africa for tourism or limited business purposes for a maximum period of stay of 90 days or less. For more information regarding who is eligible for the visa exemption, please visit http://www.southafrica-newyork.net/homeaffairs/visaexempt.htm. General information regarding entry requirements and the application process for individuals requiring a visa is provided below.

Entry Requirements

When entering South Africa, a foreign national’s passport must be valid for a minimum period of 30 days beyond the intended stay in the country. The foreign national must also have two blank pages in his or her passport for the entry stamp. A Yellow Fever Vaccination Certificate may also be required for a foreign national arriving from an infected Yellow Fever country. For a list of Yellow Fever countries and vaccination requirements, please visit the Center for Disease Control and Prevention website at http://www.cdc.gov/.

Visa Processing Times and Document Requirements

Generally, the following documents are needed for a visitor’s permit application:

Passport valid for at least 30 days beyond intended stay;
Completed visa application BI-84 Form 11;
Two passport photographs;
Evidence of immigration status (for example, for foreign nationals situated in the United States, an I-94, I-797, or I-551 permanent resident card);
Proof of sufficient funds for the duration of the stay (for example, a copy of recent bank statement and/or credit card);
Copy of confirmed hotel reservation;
Copy of confirmed airline ticket/itinerary showing a round-trip itinerary;
Original Yellow Fever Certificate, if applicable;
Copy of current Medical Insurance Policy showing details of coverage for international travel;
Evidence of the purpose of the trip such as a copy of ticket voucher for the 2010 FIFA World Cup;
Government filing fees. Filing fees vary by country of nationality. There are proposals to waive government filing fees for the 2010 FIFA World Cup, but no formal announcement has been made to date.

Please note that documents required may vary based on the applicant’s background, specific travel plans, and nationality. For more information regarding visa requirements, application and consular procedures, please visit the South African Embassy website at http://www.southafrica-newyork.net/homeaffairs/visitorsvisa.htm#visas. Processing times are currently estimated at 5 working days from the date the application is filed. We recommend that applications be filed as soon as possible to avoid delays that may occur due to increased demand related to the 2010 FIFA World Cup.

Summary

As the proud host of the 2010 FIFA World Cup, South Africa will be welcoming many foreign nationals to the country in June and July. However, immigration officials intend to be vigilant throughout the World Cup to ensure that foreign nationals do not overstay their visas and do not engage in unauthorized employment. Foreign nationals intending to travel to South Africa during this period should plan now to ensure timely filing of visa applications if required and to secure all documentation required for entry into the country.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Issues "E-Verify Enrollment Quick Reference Guide"

Michael Hawkes — Mon, 19 Apr 2010 16:17:24 -0500

In March 2010 U.S. Citizenship and Immigration Services (USCIS) issued an “E-Verify Enrollment Quick Reference Guide” for employers who elect to enroll their companies in E-Verify.

This guide follows the more comprehensive “Quick Reference Guide for Employers” issued in March 2009, and provides specific guidance on E-Verify enrollment procedures, including company registration, user role designation, and selection of verification locations and hiring sites. Additionally, the guide provides an enrollment process overview with step-by-step instructions for enrolling a company in the E-Verify Program. The guide can be downloaded here.

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Immigration Alert: May 2010 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 15 Apr 2010 19:33:26 -0500

The U.S. Department of State (DOS) has published the May 2010 Visa Bulletin. There are modest advancements in some of the employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to September 22, 2005. However, the EB-2 priority cut-off date for Indian nationals remains unchanged from April, at February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to April 22, 2003. The EB-3 “professional and skilled worker” priority cut-off date for Indian nationals advanced to October 1, 2001. However, due to heavy applicant demand, visas became “unavailable” for Mexican nationals in the EB-3 “professional and skilled worker” and EB-3 “other worker” categories. Visas are not expected to become available for Mexican nationals in the EB-3 categories until the start of the new fiscal year, in October 2010.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off date for Worldwide, China, India and the Philippines is unchanged from April at June 1, 2001.

The full text of the May 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4805.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: U.S. Visa Waiver Program to Include Greece

Michael Hawkes — Wed, 31 Mar 2010 19:42:34 -0500

Secretary of Homeland Security Janet Napolitano recently announced Greece’s designation as a member of the Visa Waiver Program. Greek citizens will be able to visit the United States under the Visa Waiver Program (VWP) commencing April 5, 2010.

The VWP permits eligible citizens and nationals of designated countries to visit the United States for a 90-day period for business or tourism without obtaining a visa. Citizens of VWP countries may travel to the United States provided that they have an electronically readable passport and have obtained authorization for travel from Electronic Screening System for Travel Authorization (ESTA) prior to initiating travel.

For more information regarding the VWP, list of designated countries, and ESTA requirements, please visit the Department of State website at http://www.travel.state.gov/visa/temp/without/without_1261.html.

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Global Immigration Alert: Mexico Immigration Reform Will Impact Business Travelers

Michael Hawkes — Thu, 25 Mar 2010 19:22:14 -0500

On January 29, 2010, Mexico’s National Migration Institute (NMI) published a Manual of Criteria and Migration Procedures (“the Manual”). The Manual simplifies the process for obtaining nonimmigrant visas, extends the authorized period of admission pursuant to these visas from 30 days to 180 days, and changes Mexican visa terminology. The changes will take effect May 1, 2010.

New Short-Term Visa Introduced: Forma Migratoria Multiple (FMM)

The Manual combines the current FM-T (Tourist), FM-TTV (business, investor, or transfer of personnel), FM-3 (Business), and FM-3 (Technical) visas into one category, the Forma Migratoria Multiple (FMM). The FMM will allow for a maximum period of stay of 180 days in Mexico. The visa holder’s immigration status under the FMM will be further classified as follows: (a) Tourist; (b) Business; (c) Visitor with Lucrative Activities; or (d) Visitor with Non-Lucrative Activities. The visa holder may perform productive work under the FMM(c) (Visitor with Lucrative Activities) and FMM(d) (Visitor with Non-Lucrative Activities) for a maximum period of 180 days. The distinction between the FMM(c), Visitor with Non-Lucrative Activities, and FMM(d), Visitor with Lucrative Activities, turns on the source of the visa holder’s salary. If the foreign national receives a salary or other economic compensation from within Mexico, he or she will fall within FMM(c), Visitor with Lucrative Activities. If the foreign national receives compensation from their home country, i.e., outside of Mexico, he or she will be classified as an FMM(d), Visitor with Non-Lucrative Activities.

FMM applications will be processed differently, depending on the foreign national’s nationality and corresponding group type. There are three group types in Mexico. Group 1 consists of restricted nationalities. For this group, visa applications require prior authorization from NMI before an entry visa may be issued at a Mexican consulate and prior to the applicant entering Mexico. Group 2 consists of regulated nationalities. Foreign nationals falling within Group 2 must apply for an entry visa at a Mexican consulate prior to entering Mexico. Group 3 consists of liberated nationalities or countries, each of which falls under Mexico’s visa waiver provisions. Foreign nationals within Group 3 may obtain an FMM visa upon arrival at a Mexican port of entry without prior clearance from a Mexican consulate or NMI.

Business Visitor: Criteria Defined

Mexico’s NMI defines the criteria for a business visitor, FMM(b), and limits permissible business visitor activities to the following:

Conducting meetings or holding general discussions;
Participating in seminars, conferences, or trade fairs;
Engaging in commercial exchange of goods or services;
Establishing, developing, or managing foreign investments; and
Providing special services previously agreed to or established in transference of technology contracts, patents, trademarks and intellectual property, equipment dealings, and staff training.
To qualify for the FMM(b), the foreign national’s primary residence must be outside of Mexico, and he or she may not be placed on the payroll of a Mexican company. In addition, the individual may not receive remuneration for any services provided to a Mexican entity, except for reimbursement for travel expenses such as meals, airline tickets, or accommodations.

Travel Restrictions Removed for FM-TTV Visa Holders

The FM-TTV is presently a 30-day, multiple entry visa that may be applied for at a Mexican port of entry. When a FM-TTV visa holder applies for a change of status to FM-3 employment, or applies to report a change in conditions, such as changes to job duties, domicile or marital status, the visa holder is required to file an exit and re-entry permit, or risk cancellation of his or her application to change status or conditions. With implementation of the Manual, the FM-TTV will change to the FMM, the validity period will increase to 180 days, and the travel restrictions associated with filing an application to change status or conditions will be removed, allowing these foreign nationals to travel during the pendency of change of status or condition applications.

New Immigration Cards

In the coming weeks, NMI will publish criteria for new migration cards. The proposed migration cards will replace the FM-2 (Immigrant) and FM-3 (Business and Technical) passport-like booklets which are currently issued at Mexican consular posts. Mexican consular posts will no longer issue these booklets. Instead, once an immigration petition is approved by NMI, the Mexican consular post will endorse an entry visa in the foreign national’s passport. These entry visas will allow the foreign national to enter Mexico within one year of issuance. Upon entry into Mexico, the foreign national will be required to obtain the new migration card within 30 days.

Summary

As set forth above, implementation of the Manual will streamline the process for obtaining nonimmigrant business and employment visas in Mexico. The most significant change relates to the creation of two short-term employment visa categories, the FMM(c) and the FMM(d), which may be used for short-term assignments of less than 180 days. The Manual also removed travel restrictions for foreign nationals with pending applications to change nonimmigrant status.

Gibney will continue to monitor the implementation of these new rules in Mexico, and will provide updates once the NMI publishes additional information. If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Immigration Alert: DHS Announces New E-Verify Civil Rights Initiatives

Michael Hawkes — Thu, 25 Mar 2010 17:46:40 -0500

On March 17, 2010, the Department of Homeland Security (DHS) announced three new initiatives concerning E-Verify, the voluntary web-based system operated in partnership by U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration that allows participating employers to electronically verify the employment eligibility of newly hired workers. Information regarding the DHS announcement is available here.

The most significant of these initiatives is an information-sharing agreement signed by USCIS, a division of DHS, and the U.S. Department of Justice, Office of Special Counsel (OSC), which is charged with enforcing federal civil rights laws, including those regarding immigration-related unfair employment practices. As one of the two agencies with responsibility for administrating E-Verify, USCIS will provide OSC with query data and other information that may assist it in identifying instances of potential discrimination resulting from employer misuse of E-Verify. The agreement specifies four categories of prohibited actions by employers that are the subject of OSC’s jurisdiction: citizenship status discrimination, national origin discrimination, document abuse, and retaliation. At the same time, OSC will provide USCIS with reports of employer misuse of E-Verify that fall outside of the Justice Department’s enforcement arena.

DHS also announced the launch of a new E-Verify hotline designed to respond to inquiries, issues, and complaints by employees. The hotline will offer information about E-Verify and I-9 processes, will facilitate an employee’s response to a tentative non-confirmation or perceived final non-confirmation errors, or allow an employee to file a complaint about possible discrimination or employer misuse of E-Verify. USCIS will share such complaints with OSC pursuant to the agreement described above.

Finally, USCIS has produced two educational training videos that explain E-Verify procedures and policies, as well as employee rights and employer responsibilities. The videos are entitled “Understanding E-Verify: Employer Responsibilities and Worker Rights” and “Know Your Rights: Employee Rights and Responsibilities.” They are available in both English and Spanish at http://www.dhs.gov/e-verify.

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Immigration Alert: April 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 16 Mar 2010 16:32:22 -0500

The U.S. Department of State (DOS) has published the April 2010 Visa Bulletin. There are modest advancements in some of the employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to August 22, 2005. However, the EB-2 priority cut-off date for Indian nationals remains unchanged from March, at February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to February 1, 2003. The EB-3 priority cut-off date for Indian nationals advanced to September 8, 2001, and the EB-3 priority cut-off date for Mexican nationals is unchanged from March, at July 1, 2002.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off date for all foreign nationals is unchanged from March, at June 1, 2001.

The full text of the April 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4747.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Debuts at the Game Developers Conference in San Francisco

Michael Hawkes — Fri, 12 Mar 2010 20:31:52 -0600

Gibney made its debut at the 2010 annual Game Developers Conference in San Francisco from March 9 - 13, 2010. Gibney showed its support for Women in Games International, co-sponsoring their event at the California Historical Society on Wednesday, March 10, 2010. Gibney attorneys are also participating in several programs and are on hand in the Exhibit Hall to provide information regarding our practice areas, with a special focus on Intellectual Property and Global Immigration Services. For more information regarding the conference, visit www.gdconf.com.

Immigration Alert: ICE Issues 180 Audit Notices to Businesses in Five States

Michael Hawkes — Thu, 11 Mar 2010 21:37:10 -0600

On March 2, 2010, U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, announced that 180 businesses in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee were issued Notices of Inspection (NOIs), indicating that ICE intends to inspect their Forms I-9 and other hiring records to determine their compliance with employment eligibility verification laws. A copy of the ICE announcement is available at http://www.ice.gov/pi/nr/1003/100302neworleans.htm. This is the third round in a series of ICE audit notifications in the last eight months, following the issuance of 652 NOIs in July 2009 and another 1,000 in November 2009.

ICE’s NOI initiative is the direct result of a comprehensive strategy launched last year to establish strong Form I-9 compliance mechanisms as a means to deter the employment of unauthorized workers. ICE’s efforts dovetail with those of U.S. Citizenship and Immigration Services and the U.S. Department of Labor, both of which have significantly stepped-up their compliance and anti-fraud operations in the past year.

In this era of increased enforcement, employers who make substantive errors or uncorrected technical errors on their Forms I-9 can be held liable by ICE and may be subject to heavy fines or other civil penalties. Gibney strongly recommends that employers conduct periodic internal audits of their Forms I-9 and take appropriate corrective action as needed. Good faith compliance with legal record-keeping requirements can serve to mitigate any fines that may be imposed as a result of errors or omissions on Forms I-9. Company representatives responsible for the completion of Forms I-9 should also receive specialized training in the employment verification process.

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IP Article: Partner Angelo Mazza Quoted in Hartford Advocate

Michael Hawkes — Fri, 05 Mar 2010 18:19:00 -0600

Counterfeit Wars

Fake products are a $250 billion business in the United States, and stamping them out will take what one attorney calls a "Hundred Years War" - Tuesday, March 02, 2010; By Daniel D'Ambrosio

It had been a long, hot July day at Pocono Raceway when Carolyn Donohue, assistant to the president at luxury purse maker Dooney & Bourke of Norwalk, Conn. — and life-long NASCAR fan — sat in the back of her son Tom's van, shoes off, tired, stuck in bumper-to-bumper traffic.

Settling in for the long trip home to Connecticut from Pennsylvania after the day's race, Donohue's son suddenly pulled to the side of the road. There were state troopers everywhere, watching over the mass exodus of race fans and their vehicles.

"Ma, there's Dooney fakes over there!" said an indignant Tom. "You got to take care of them."

Vendors of all descriptions lined the road into the track, hoping to cash in on the tens of thousands of fans leaving the raceway. Dirty from the track, and a little annoyed by this intrusion into her life outside of work, Donohue nevertheless pulled on her shoes and slid out of the van. Sure enough she saw stacks of fake Dooneys in one of the roadside booths.

Walking up to the vendor with her son watching nearby, Donohue said, "Listen to me. I'm from Dooney & Bourke. I'm tired and I don't have the time, but I will go over and get that state trooper right now. Get this shit out of here."

As the vendor scrambled to load up his van to leave, Donohue turned to her son, "Tom, please, could we go home?" Three weeks later, armed with the license plate number she had taken down, a private investigator working for Donohue nailed the Pocono vendor for selling counterfeit Dooney bags.

Counterfeit goods are ubiquitous in the United States, reaching from centers of distribution on Canal Street in New York and Santee Alley in Los Angeles into every corner of the nation, from sidewalks and storefronts in cities like Hartford, New Haven and Bridgeport to flea markets in small rural towns in Connecticut and beyond, and venues like Pocono Raceway and Comcast Theater in Hartford, where police regularly bust parking lot vendors selling bootleg CDs and T-shirts at concerts by major acts.

The range of counterfeited products goes from fashion apparel and perfumes — recent news stories reveal cat urine is used in some of the fake scents — to aircraft parts and automotive brake shoes made of sawdust. In December 1995, after American Airlines flight 965 smashed into a mountainside in Buga, Colombia, the Associated Press reported "outlaw salvagers didn't even wait for all 159 victims' bodies to be collected before they moved in."

The salvagers collected engine thrust reversers, cockpit avionics and other valuable parts and flew them off the mountain in helicopters. The parts later turned up on the black market in Miami, "a hub of the thriving black market in recycled, stolen and counterfeit aircraft parts." It was counterfeit bolts, bushings and brackets that were blamed for the worst confirmed crash involving bogus parts, when the tail section of a turboprop plane tore lose on a flight over the North Sea in September 1989, killing 55.

Roger Schmedlem, a private investigator in Michigan who specializes in counterfeit cases for corporate clients like Disney and Oakley sunglasses, claims "every commercial airliner flying today has counterfeit parts on it." The overall scale of the counterfeit business is staggering.

"The estimate across the United States is this counterfeit industry is about a $250 billion business," says Bob Barchiesi, president of the International AntiCounterfeiting Coalition, an industry group formed in 1979. "It costs legitimate business 750,000 jobs in the U.S."

Most counterfeit goods sold in the United States are made in China — some 90 percent according to Barchiesi.

"Quite frankly [counterfeiting] supports an underground economy in China. It's big business," says Barchiesi.

And the profit margins are high, according to Barchiesi, who retired from the major case narcotic unit of the New York Police Department before taking over at IACC.

"It's low risk and high reward," says Barchiesi. "The profit margin on cocaine is 100 percent or 200 percent. On some of these counterfeited goods it's 400 percent, and they don't pay taxes."

The huge amounts of tax-free cash generated by counterfeiting are increasingly winding up in the hands of terrorist groups. The New York Times quoted the secretary general of Interpol in 2003 saying counterfeiting "is becoming the preferred method of funding for a number of terrorist groups."

A 2004 report by the comptroller of New York, William Thompson, estimated $23 billion was spent on counterfeit goods in the city in 2003, depriving New York of about $1 billion in tax revenue. Thompson's report cites bootleg compact discs to illustrate the gigantic size of the problem in New York.

"Seizure statistics for 2003 indicate that nearly 2.5 million illicit sound recordings were seized in the NYC area, and that approximately 17 million illicit sound recordings made their way undiscovered to the streets of New York City for sale to the public," states the report. With an average price of $5 per disc, that means bootleg CD sales in New York amounted to $85 million in 2003.

Although the report, called "Bootleg Billions," has not been updated since 2004, seizure statistics released by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement in October 2009 show the total value of counterfeit product seizures has increased by more than 25 percent each year since 2005, with the exception of last year when there was a small decrease.

Marcy Forman, director of the National Intellectual Property Rights Coordination Center in Washington, D.C., says the IPR Center, which brings together ICE, CBP, the FBI and other federal investigators, is still trying to get its arms around the worldwide criminal enterprise behind counterfeiting.

"We're trying to identify the individuals," says Forman. "As you know you can't just chop off the tail of a snake, you have to go to the head, starting with manufacturing — those engaged in reproducing the goods, shutting down their factories."

That's problematic, given that most of those factories are in China. Forman says there's progress on that front, despite the fact that she couldn't definitively point to cases involving factory closures in China.

"I just met with a group of Chinese officials that addressed IPR issues less than two weeks ago," she says. "They're very amenable to partnering with us to go after counterfeiters."

On the local front, a bust on Feb. 4 in Hartford at Do It All clothing store on Main Street, owned by 38-year-old Roosevelt Holmes of East Hartford, netted more than 1,200 different counterfeit products, including Juicy Couture necklaces, Timberland boots, Nike sneakers, Coach, Louis Vuitton — and yes, Dooney & Bourke — handbags, plus DVDs of movies like Precious, Lovely Bones, Sherlock Holmes and Legion, and "vast amounts of blank CDs," according to Lt. Charles Cochran, commander of the vice and narcotics squad for Hartford Police.

Holmes and three of his clerks, including his mother, were arrested.

"Apparently they were doing it all," says Cochran.

Hartford Police made a second arrest that same day in front of 825 Main St., where 45-year-old Mambaye Mbaye of Hartford was selling out of his van. There were 35 items on Mbaye's folding table, including — again — Dooney & Bourke purses, along with Coach, Fendi, Louis Vuitton, Chanel, Gucci and Nike purses.

A 15-year veteran, Cochran came off the street five years ago, but said when he was working his beat there was a guy who supplied large amounts of CDs to street vendors and talked freely about his illicit business. He claimed he made $3,000 weekly from each of seven locations around the city.

"Getting arrested was the cost of doing business to him," says Cochran. "A $15,000 fine was no big deal, only a week of proceeds."

Connecticut has strong statutes on the books where counterfeiting is concerned, with fines up to $250,000 and jail time up to five years, or both. Those penalties mirror the federal statute for counterfeiting, which also calls for fines up to $250,000 and jail time up to five years, or both.

In Bridgeport, detectives Frank Podpolucha and Erno Nandori say they're not seeing much counterfeiting any more after "very aggressive" efforts in the past few years to target bogus DVD sales on street corners and in downtown stores.

"I think the word spreads quickly when you make a big bust," says Podpolucha. "They were on the street corners at one time and we targeted them hard. Narcotics and vice also hit them a couple of times."

In New Haven, spokesman Joe Avery says police have made some "incredible hauls" of bootleg tapes and CDs at the flea market on Ella Grasso Boulevard. Bruce Foucart, special agent in charge for ICE in New England, cites a recent case involving undercover agents in the New Haven office who cracked an online community, known as the "warez scene," where computer software, games and other copyrighted materials are reproduced and distributed. Five arrests of defendants in Florida, Minnesota, North Carolina, Georgia and New York resulted.

In December, says Foucart, Operation Holiday Hoax in 41 cities around the country plus Puerto Rico and Mexico resulted in the seizure of more than 700,000 products ranging from cosmetics to holiday ornaments. In Mexico alone authorities seized 225 tons of counterfeit products.

"What we're finding is these criminal organizations who are involved with IPR [violations] are also involved with other crimes," says Foucart. "They're involved in narcotics trafficking, human smuggling, they don't limit themselves to [counterfeiting]."

Still, says Cochran, jail terms are rare, and short. And the counterfeiters' customers have a hard time seeing what the big deal is.

"It's not a violent crime, it's copyright infringement, a white-collar crime," said Cochran. "[Counterfeiters are] looked at as providing a service to the community. If you're living in the projects and you don't have the money to see Sherlock Holmes you can buy a DVD for your whole family for $3."

The way customers see it, says Cochran, Brad Pitt can probably afford not to get his royalties on one more DVD. And for Hartford cops, chronically short on manpower, the focus is on drugs, not bootleg copies of The Wolfman.

"We have very limited manpower which we target toward gateway crimes like selling drugs," said Cochran. "The people that buy the drugs commit other crimes, like burglaries. We are trying to intervene in that chain, and [counterfeit products] don't so much fit [in that chain]."

Carolyn Donohue has spent her professional life working at the iconic Dooney & Bourke, whose purses and bags sell for $200 or more and sit on the shelves of stores like Saks Fifth Avenue.

She joined the company just a few years after it was founded in 1975 by Peter Dooney and Rick Bourke. Dooney still runs the company out of a quirky low-slung brick building in East Norwalk. There is no Dooney & Bourke sign anywhere on the building, and pulling into the parking lot recently, I called Donohue on my cell phone, convinced I was in the wrong place. I wasn't.

"We like to keep a low profile," said a casually but elegantly dressed Donohue as we settled on well-worn couches to talk in a room sporting a giant moose head on the wall. Peter Dooney had picked it up somewhere, and it fit perfectly in the informal atmosphere of the office.

Donohue received her first tip about counterfeit bags in 1993, when "somebody called" and said there were fake Dooneys being sold in Baton Rouge, La. She was caught by surprise.

"We did an investigation and all of a sudden we started getting flooded with phone calls of fakes being sold throughout the United States," said Donohue. "I flew all over the country on raids with federal agencies, local law enforcement and investigators, taking product down."

At the height of the counterfeit outbreak in the mid to late 1990s, Donohue had more than 14,000 entries in her computer of people and places selling fake Dooneys; there were license plate numbers, street corners, flea markets, nail salons, and more, says Donohue. Most of the tips came from loyal Dooney & Bourke customers.

"There are dedicated customers out there who are outraged at what's going on," said Donohue. "They want good product. Because they paid $250 for that bag they don't want you walking down the street saying, 'I only paid $25.'"

Donohue says she went flat out from 1993 until 2001 or 2002 when the counterfeiting slowed down. She had the entire country covered by a team of investigators — and still does — who would follow up on tips and make the cases for local law enforcement. But whenever her presence was requested, and it often was, Donohue would go. She wanted everyone to know that Dooney & Bourke took this seriously.

"If I was requested by the FBI or Customs to show up, that was important to do that," said Donohue. "I was on the road all the time. It was exhausting."

Somewhere back in the bowels of the building in East Norwalk — I wasn't allowed to see — long-time Dooney & Bourke employees were cutting leather and stitching seams on the latest purses and bags, just as they have since 1975. At first Dooney was entirely American made. Now there are factories in Puerto Rico, Mexico, Italy and China. But the designs and specifications for materials and manufacturing still originate from the desk of Peter Dooney, according to Donohue.

Now the counterfeiting is gaining momentum again. When Dooney introduces a new design or a new collection, it shows up on Canal Street in a flash and then goes "all over," says Donohue.

"I want it to stop," she said. "I don't want to lose my job. I don't want these little ladies working back here for 30 years to lose their jobs. It's a good company. Peter Dooney is a good man. I take it personally."

Angelo Mazza is a partner in the New York law firm Gibney, Anthony and Flaherty, general counsel to Rolex watch, a company that has had to deal with its share of counterfeiters. But like most law firms and investigators dealing with the counterfeit trade, Mazza's firm serves a large number of clients who pool their resources to fight off the fakes.

Over 20 years of dealing with counterfeiters, Mazza says he's seen a dramatic increase in both the sophistication and range of those products. Moving beyond the traditional sneakers and apparel luxury goods, counterfeiters are faking toothpaste, infant formula, pharmaceuticals, and even basic infrastructure items like circuit breakers, often with disastrous results.

The Internet has made it especially difficult to shut down the sale of counterfeit drugs like fake Viagra, says Mazza, which often have no active ingredients but do have ingredients like chalk and road paint.

Mazza is under no illusions concerning the struggle to fend off counterfeiters, calling it a "hundred years war." And he says the approach to fighting counterfeiters must be "multi-pronged." The city of New York, for example, recently began going after the landlords of the buildings where counterfeiters set up shop rather than trying to chase down individual sellers.

Jason Post, spokesman for Mayor Michael Bloomberg, says the city has brought more than a dozen cases against landlords since 2006 and has received closing orders in most cases, forcing landlords into changing their ways.

"When landlords are threatened with the loss of their property and court orders, we found we increased the chances buildings can be put to legitimate use," says Post.

Mazza likens it to trying to stamp out cockroaches.

"You want to step on them, that's fine. Spray them with chemicals and stuff steel wool into the baseboards, that's fine," he says. "Individually all those things are good but together they have a greater impact."

Ultimately, says Mazza, the only way counterfeiting will end is the same way the drug war will be won — and we all know how well that's going. It comes down to demand, he says. People have to realize buying fakes isn't done in good fun. There's a "whole trail of exploitation" that goes along with counterfeit goods, Mazza says, from children forced to assemble fake watches because their fingers are small, to the effects of shoddy goods on the public health and safety.

"You don't start off thinking you're going to buy a counterfeit good and support a whole host of illegal activities," says Mazza, "but that's what lies behind each purchase."

What to do with those tons of counterfeit goods? Everyone agrees that products like watches or DVDs should be destroyed, and they are. But in the past, various nonprofits have put fake designer clothing seized by authorities to good use, distributing it to the needy after removing labels and defacing trademarks.

That's why the New York Police Department drew the attention of The New York Times in January when the paper learned police had rented an industrial shredder last year to destroy 12 truckloads of bootleg clothing, including "winter jackets, shirts, pants and underwear." More truckloads were shipped to an incinerator in Long Island.

When asked by the Times, the police department, which had provided clothing to nonprofits like the New York City Clothing Bank in the past, said no one asked for the knockoffs in 2009, "an explanation that was bewildering to the operators of the clothing bank, who run a warehouse that supplies clothing to needy New Yorkers." The clothing bank told the Times they had made "many requests" for the clothing.

Global Immigration Alert: United Kingdom Immigration Reform Updates

Michael Hawkes — Thu, 18 Feb 2010 17:01:12 -0600

Proposed Changes Impacting Intra-company Transferees

In January 2010, the Migration Advisory Committee (MAC) made recommendations to the United Kingdom Border Agency (UKBA), including proposed changes to the criteria for foreign workers in the Tier 2 (Intra-company Transferee) category under the points-based system.

Under current regulations, a foreign national must have been employed at a headquarters, branch, or other affiliate office outside the U.K. for at least six months to qualify as a Tier 2 (Intra-company Transferee) employee. The foreign national employee must be paid a salary comparable to a U.K. worker. Further, foreign nationals who currently hold a U.K. work permit valid for five years (including Intra-company Transferees) are eligible for Indefinite Leave to Remain or permanent residence in the U.K.

In response to a perceived loophole in the wage requirement and concerns regarding depression of wages by technology companies who sponsored foreign nationals under Tier 2 (Intra-company Transferee) at lower salaries than U.K. resident workers, MAC has proposed some changes to Tier 2 (Intra-company Transferee) criteria. Based on these recommendations, it is anticipated that in April 2010, UKBA may eliminate Tier 2 (Intra-company Transferee) eligibility for Indefinite Leave to Remain and it may increase the qualifying employment period abroad from six months to twelve months. A change to the qualifying employment period outside the U.K. would not affect the temporary employment of those currently residing in the U.K. as Tier 2 (Intra-company Transferee) employees. However, the proposed changes to permanent residence eligibility would mean that foreign nationals in the U.K. under Tier 2 could no longer automatically qualify for U.K. permanent residence. This is a significant change impacting foreign nationals seeking a path to permanent residence, and those impacted may wish to consider a different category, such as Tier 2 (General) or Tier 1 (General). Gibney will monitor these proposed changes and provide updates as they become available.

National Identity Cards

The UKBA has significantly expanded the national identity card requirement. There are three types of national identity cards issued by the U.K. The first type is for British citizens who use the national identity card to evidence right to work in the U.K. This type may also be used as a passport within the European Economic Area (EEA) and Switzerland. The second type is an identification card for citizens of the EEA or Switzerland who live in the U.K. and is used to confirm identity and eligibility to work. The third type of national identity card was introduced on a limited basis in November 2008 for foreign students and their dependents and for spouses or partners of permanent residents when applying for an extension of stay. Effective January 2010, this type of card was expanded to include all foreign nationals sponsored under the Tier 2 (Skilled Migrant Workers) category and their dependents when applying for an extension of stay in the U.K.

Under current system, when applying for an extension of stay, foreign nationals must make biometrics appointments to capture fingerprints and photographs. The identity card is granted upon approval of the extension application. The card confirms the foreign national’s nationality, identity, and immigration status, and their right to work or study in the U.K. At present, the national identity card requirement does not affect foreign nationals who settle in the U.K. or who are permanent residents.

The UKBA implemented the identity card requirement for Tier 2 (Skilled Migrant Workers) ahead of schedule. The large number of impacted individuals has caused significant delays in the processing of extension of stay applications, known as Further Leave to Remain in the U.K. There are typically two ways to file an extension of stay application in the U.K.: by mail or by making a premium appointment at the UKBA. There are very few premium appointments currently available, and the UKBA recently reported that the earliest appointment dates are in late March 2010. As a result of the unavailability of premium appointments, some foreign nationals are filing their extension applications by mail. This can restrict travel for six to eight weeks or longer because a passport must be submitted with the application. One option for foreign nationals who need to extend their stay and who also need to travel may include filing for a U.K. entry clearance at a British Consular post in their home country. Additionally, Gibney is monitoring the availability of premium processing appointments for its clients.

Due to anticipated delays in processing, Gibney encourages clients to initiate applications to extend stay in the U.K. well in advance of status expiration dates in order to evaluate the best options for foreign national employees and to ensure ongoing compliance.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Norway: New Immigration Act Impacts Foreign Workers

Michael Hawkes — Thu, 11 Feb 2010 19:36:22 -0600

In January 2010, Norway implemented a new Immigration Act (“the Act”). The Act placed restrictions on certain foreign workers and changed the terminology for work and residence permit categories. All applications are now classified as residence permits and each permit designates whether a foreign national is entitled to work and whether there are any restrictions. Additionally, foreign national employees are now required to provide evidence to verify whether they will be employed directly by a Norwegian company or by a foreign entity and seconded to Norway.

Employees of Norwegian Companies

Foreign nationals who will be employed directly by Norwegian companies may file residence permit applications in Norway at a local police office or a service center for foreign workers. Generally the employee must wait until his or her residence permit is approved to commence employment. In limited cases, the foreign national may also apply for a discretionary “early work start” temporary permit that allows the employee to begin working immediately and is valid until the residence permit is adjudicated. Foreign nationals who are issued new residence permits based on employment with Norwegian companies may be granted permits valid for a maximum period of three years, and are eligible to apply for permanent residence permits after three years. Dependent family members may also apply for residence permits with the principal applicant while remaining in Norway.

Employees of Foreign Companies

Foreign nationals who will remain employees of foreign companies and who will be seconded to Norway for a temporary period may apply for residence permits while in Norway under the same process described above, and may also be issued “early work start” permits. However, the Act requires foreign nationals seconded to Norway to produce additional documentary evidence regarding their employment terms. Foreign nationals who are issued residence permits based on secondment in Norway may generally receive residence permits with an initial validity period of one year, and in certain circumstances, may be granted permits valid up to two years. This type of resident permit may be renewed for a maximum permissible period of four years. Significantly, foreign nationals holding this type of residence permit are not eligible to apply for permanent residence status. Furthermore, their dependent family members may not file residence permit applications in Norway; instead, dependents must apply for residence permits at the Norwegian consulate in their home country. Current consular processing times for these applications are approximately two to three months.

Online Applications

Pursuant to the Act, nationals of countries in the European Economic Area (EEA) may submit applications to work and reside in Norway online. These online applications for residence permits are now streamlined for EEA nationals and require less documentation.

In summary, the Act makes it much easier to obtain residence permits for foreign nationals employed directly by Norwegian companies and their dependent family members. Conversely, the new regulations increase restrictions on temporary workers seconded to Norway while remaining on home country payroll. Therefore, it is important to review employment agreements and options for employees as soon as transfer to Norway is contemplated, to evaluate all options and identify the appropriate residence permit category and its implications.

Gibney will continue to monitor how the new law is implemented in Norway, and will work with clients to develop the most effective strategies.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Immigration Alert: March 2010 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 11 Feb 2010 16:02:55 -0600

The U.S. Department of State (DOS) has published the March 2010 Visa Bulletin. There are modest advancements in most employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to July 8, 2005 and the EB-2 priority cut-off date for Indian nationals advanced to February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to December 15, 2002. The EB-3 priority cut-off date for Indian nationals advanced to July 1, 2001, and the EB-3 priority cut-off date for Mexican nationals is unchanged at July 1, 2002.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off date for all foreign nationals is unchanged from February, at June 1, 2001.

The full text of the March 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4659.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Season Approaching

Michael Hawkes — Wed, 03 Feb 2010 20:15:46 -0600

April 1, 2010 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2011 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to consider their H-1B cap cases now, and initiate the preparation of cap cases as soon as possible to ensure timely filing of cases.

Background
H-1B cap cases generally fall within two categories:

1. “Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1, as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)

2. U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Last year, due to the economic recession and late-enacted legislation preventing certain employers from filing H-1B cap-subject petitions, USCIS received only half of the H-1B petitions needed to meet the FY 2010 cap in the first five days of filing, and the H-1B cap was not reached until December 21, 2009. However, it is anticipated that a far greater number of H-1B cap cases will be filed this year.

By USCIS regulation, if USCIS receives a sufficient number of petitions to reach the cap on any one of the first five business days of filing—this year, April 1 through April 7—USCIS may include all petitions filed on all five days in a random selection process. If more than 20,000 U.S. advanced degree petitions are received in the first five days of filing, USCIS will first conduct the random selection process for these petitions. U.S. advanced degree petitions not selected in this process will then be placed in the pool of standard cap petitions, and a second random selection process will be conducted for this combined group of petitions.

Those petitions not selected in either the U.S. advanced degree or standard cap random selection process will be rejected and the petition and filing fees will be returned to the petitioning employer.

2010 Filing Dates

By USCIS regulation, the earliest date a petitioner may file a FY 2011 H-1B cap-subject petition, which requests employment commencing on October 1, 2010, is April 1, 2010. This year, April 1 falls on a Thursday, meaning that FY 2011 H-1B cap cases may be sent to USCIS via overnight delivery service on Wednesday, March 31, 2010 to ensure delivery to USCIS on April 1, 2010. Although cases received by USCIS up until April 7 will be eligible for the random selection process should the lottery prove necessary, employers are strongly encouraged to file petitions by April 1 to ensure timely delivery of petitions to USCIS.

Labor Condition Applications and iCert Issues

After the April 2009 H-1B cap filing season, in May 2009, the Department of Labor (DOL) mandated use of a new web portal (“iCert”) for filing Labor Condition Applications. By USCIS regulation, before an H-1B petition may be filed, the petitioning employer must first file and obtain a certified Labor Condition Application (LCA) from DOL. Prior to implementation of iCert, LCA certification was nearly instantaneous. However, with implementation of iCert, the LCA review and certification process may take up to seven business days. In addition, DOL has experienced various technical problems with the iCert web portal, causing significant downtime resulting in filing and processing delays. With the H-1B cap season approaching, employers should allow additional time for H-1B petition preparation to account for LCA processing times and potential delays stemming from iCert technical problems. In addition, employers who have not previously filed LCAs using the iCert system must undergo a rigorous registration process before they can file LCAs using the system. Employers who are not yet registered on iCert should contact their designated Gibney representative immediately to ensure timely iCert registration to facilitate the filing of LCAs needed for H-1B cap-subject petitions.

Steps to Take Now

To the extent feasible, employers should now attempt to identify their H-1B cap candidates. Employers are encouraged to gather supporting documentation including education credentials (degree certificates and transcripts) and all applicable status documentation, including Forms I-20 and Employment Authorization Documents, issued to foreign nationals currently in the United States in F-1 student status. This documentation, along the company’s job description and salary data, should be forwarded to counsel as soon as possible for the purpose of both evaluating and preparing the H-1B petition and evaluating alternative immigration strategies. Ideally, preparation of H-1B cap cases should be initiated no later than March 1, 2010.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2011 annual cap. These include the following:

- Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.

- Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

H-1B Restrictions for TARP Recipients

Pursuant to the American Recovery and Reinvestment Act of 2009, enacted and effective on February 17, 2009, companies that received funding under Title I of the Emergency Economic Stabilization Act of 2008 (commonly referred to as “TARP fund recipients”) may face additional restrictions on filing H-1B petitions. These restrictions may apply to some H-1B cap-subject petitions, as well as some H-1B petitions described above that are not subject to the cap.

If you have any questions as to whether your company is subject to these restrictions, or about H-1B cap filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Releases Guidance Regarding Employment Relationships and Documentary Requirements for H-1B Employers

Michael Hawkes — Tue, 26 Jan 2010 14:44:19 -0600

U.S. Citizenship and Immigration Services (USCIS) has released a Memorandum (“the Memo”) addressing the employer-employee relationship that must exist between an H-1B petitioner and beneficiary.

The Memo sets forth that while control of the work of an H-1B beneficiary is the cardinal element in establishing the required employer-employee relationship between an H-1B petitioner and beneficiary, several factors are considered in making a totality of the circumstances determination as to whether the required employer-employee relationship exists. These factors include whether the petitioner hires, pays, and has the ability to fire the beneficiary; whether the petitioner claims the beneficiary for tax purposes; whether the petitioner provides the beneficiary employee benefits; and whether the petitioner controls the manner and means by which the beneficiary’s work is accomplished. The Memo provides that documentation should be presented at the time of filing an H-1B petition to establish that throughout the H-1B employment period, an employer-employee relationship between the petitioner and beneficiary will exist and that the employer will have the right to control the beneficiary’s work. Such documentary proof of the employer-employee relationship is required not only for initial H-1B petitions, but also for H-1B extension petitions.

The Memo also describes selected situations in which the employer-employee relationship required for H-1B petitions is generally not present, including a self-employed beneficiary, an independent contractor, and a “job-shop” placement by a petitioner who does not control the beneficiary’s work and deploys the beneficiary to fill core positions at third-party worksites.

In addition, the Memo reiterates the need for compliance with U.S. Department of Labor regulations requiring an H-1B petitioner to file a Labor Condition Application (“LCA”) for each location where an H-1B employee will work, as well as immigration regulations requiring submission of an itinerary indicating the name and address of all work locations where an H-1B beneficiary will provide services and the dates of each engagement.

The release of the Memo underscores the recent attention paid by various government agencies to off-site and third-party employment situations. Employers who place employees at third-party sites, as well as employers receiving employees from a third-party, should be aware of this increased governmental scrutiny and be prepared for unannounced in-person and telephonic investigations conducted by the government to attempt to detect fraud in third-party and off-site employment situations.

For additional information about the Memo and H-1B status generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: India Visa Update: Ongoing Immigration Reforms and Complications

Michael Hawkes — Fri, 22 Jan 2010 21:05:03 -0600

Consistent with global trends in immigration, in 2009, India made significant changes to their immigration policies and procedures to enforce immigration laws and provide increased protection of the Indian labor market. Historically, Indian authorities did not provide clear policy guidance on immigration regulations or processing of visas for tourism, business, and employment. The government made significant progress last year by issuing detailed guidance. However, some of the interpretive guidance has resulted in increased burdens for visa applicants.

New Resident Requirements

In October 2009, the Ministry of Home Affairs (MHA) released Frequently Asked Questions (FAQs) providing guidance regarding the processing of business and employment visas. The FAQs clarified that visas must be issued in the applicant’s country of origin/citizenship or in the country of domicile, provided the applicant has been a permanent resident in the country of domicile for more than two years. One Indian Consular Officer indicated that the residence requirement pertaining to adjudication of business and employment visas has caused “complications” due to the large volume of third country nationals residing lawfully in the United States who cannot meet the residence criteria and who are now required to return to their country of citizenship for visa issuance. A limited exception is available for third country nationals in the United States applying for Indian business or employment visas, provided the applicant holds a U.S. visa with a validity of three (3) years and the applicant has resided in the United States for two (2) years.

New Quota System for Indian Employment Visas

In December 2009, the Indian government announced a new quota system that, once implemented, would significantly reduce the number of foreign workers in India. The new quota system would require Indian employers sponsoring foreign nationals on “E” employment visas to certify that the total number of foreign nationals in their employment does not exceed one percent (1%) of their total workforce, or that the company employs a maximum of twenty (20) foreign nationals, whichever is less. Applications for extensions of employment visas filed in India will not be subject to the quota system.

The Indian authorities are still refining this quota system, and large companies and certain industries may be allocated higher quotas. We anticipate guidelines will be published shortly.

New Restrictions on Multiple-Entry Tourist Visas

In December 2009, the MHA published a new policy for tourist visas providing guidance regarding appropriate tourist activities. The policy was aimed at ensuring compliance and controlling “abuse or misuse” of the tourist visa category. Tourist visas will only be granted to foreign nationals who do not have a residence or occupation in India and whose sole objective is to visit India for sight-seeing, recreation, or visiting family or friends. Foreign nationals in India on a tourist visa may not extend or change status to another visa category while remaining in India.

Under the new policy, tourist visa holders are not allowed to revisit the country within two months of departure if their prior visit was more than ninety (90) days in duration or if they have been in the country for more than 180 days cumulatively in the last year. If a foreign national wishes to visit India within the restricted two (2) month period, the foreign national will be required to obtain special permission from an Indian Consulate. If the Indian Consulate grants special permission, the foreign national will be required to register with the Foreign Regional Registration Office within fourteen (14) days of arrival.

Introduction of “Tourist Visa-on-Arrival”

On January 1, 2010, the MHA announced a temporary one-year program to allow citizens of five countries – Finland, Japan, Luxembourg, New Zealand, and Singapore – to apply for a tourist visas upon arrival at airports in Delhi, Mumbai, Chennai, and Kolkata. These single-entry visas have a maximum validity period of thirty (30) days.

Summary

Recent Indian immigration reforms and visa issuance policies have met with mixed reviews. Gibney will continue to monitor and report on regulatory and policy developments, as we anticipate ongoing changes as new immigration policies and procedures are implemented in India and at consular posts around the world. If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Immigration Alert: February 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 12 Jan 2010 16:52:15 -0600

The U.S. Department of State (DOS) has published the February 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to May 22, 2005. The EB-2 priority cut-off date for Indian nationals remains unchanged from January, at January 22, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to September 22, 2002. The EB-3 priority cut-off date for Indian nationals is unchanged from January, at June 22, 2001, and the EB-3 priority cut-off date for Mexican nationals is also unchanged, at July 1, 2002.

The full text of the February 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4611.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Megan O'Connor and Trisha Yukawa Named Partners

Mon, 11 Jan 2010 17:18:00 -0600

Gibney, Anthony & Flaherty LLP is pleased to announce that attorneys Megan O’Connor and Trisha Yukawa have become Partners in the firm.

Ms. O’Connor practices in the area of U.S. immigration, assisting corporate and individual clients in obtaining immigrant and nonimmigrant visas and providing advice on nationality issues. She graduated from Fordham University School of Law in 2001, where she served as an editor of the Fordham Intellectual Property, Media and Entertainment Law Journal, as a board member of the Fordham Immigration Advocacy Project, and as a legal intern with local community organizations on immigration issues relating to minors.

Ms. Yukawa practices in the area of U.S. Immigration & Nationality law. She provides advice concerning the employment of foreign nationals in the U.S., including assisting corporate clients in obtaining and maintaining U.S. work authorization for employees pursuant to a wide range of nonimmigrant categories. Ms. Yukawa graduated from Washington University School of Law, where she received the Charles Trobman Award in Immigration Law.

Immigration Alert: H-1B Cap Reached December 21, 2009

Michael Hawkes — Wed, 06 Jan 2010 21:23:00 -0600

United States Citizenship and Immigration Services announced that it has received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year 2010 (October 1, 2009 to September 30, 2010). USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will reject new H-1B petitions for fiscal year 2010 that are received after December 21, 2009.

USCIS will begin accepting new H-1B petitions on April 1, 2010 for the following Fiscal Year 2011 (October 1, 2010 to September 30, 2011).

For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert here. If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Test

Tue, 22 Dec 2009 22:26:14 -0600

USCIS Director Mayorkas to Hold External Stakeholders Meeting

Thu, 17 Dec 2009 19:55:46 -0600

On January 21, 2010, Gibney Associate, Judi McManigal, will attend an External Stakeholders’ Roundtable Meeting with Director Alejandro Mayorkas of the United States Citizenship and Immigration Services (USCIS). The meeting will run from 2:00 pm to 3:30 pm in the USCIS Information Room at 444 Washington St., San Francisco, CA.

Mayorkas is the first USCIS director that has met with external stakeholders in San Francisco.

Immigration Alert: January 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 15 Dec 2009 14:02:00 -0600

The U.S. Department of State (DOS) has published the January 2010 Visa Bulletin. In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to August 1, 2002. The EB-3 priority cut-off date for Indian nationals advanced from May 1, 2001 to June 22, 2001 and the EB-3 priority cut-off date for Mexican nationals advanced from June 1, 2002 to July 1, 2002. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to May 1, 2005. The EB-2 priority cut-off date for Indian nationals remains unchanged from December, at January 22, 2005. The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The full text of the January 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4597.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Article by Stephen Maltby on US Immigration: a new era of protectionism and enforcement

Wed, 09 Dec 2009 21:31:00 -0600

In the US, as elsewhere, the recession of 2008-2009 has fuelled the long-standing debate on business immigration: should immigration policies restrict the hiring of foreign personnel in response to rising local unemployment, or do protectionist immigration policies impede economic recovery and growth by inhibiting access to foreign skills and talent that can yield innovation and competitiveness?

Read the full article here.

This article was originally printed in British American Business and is reprinted with kind permission from Roxby Media.

Immigration Alert: H-1B Cap Approaching

Michael Hawkes — Tue, 01 Dec 2009 19:10:00 -0600

On November 30, 2009, USCIS announced that, as of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. We anticipate that USCIS will soon announce the cap has been reached. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for fiscal year 2010 (October 1, 2009 to September 30, 2010). Employers preparing new H-1B petitions are encouraged to expedite processing as soon as possible.

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Immigration Alert: ICE Issues Notices of Inspection to 1000 U.S. Employers

Michael Hawkes — Thu, 19 Nov 2009 21:56:00 -0600

On November 19, 2009, Department of Homeland Security Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country to compel production of their Forms I-9 and to audit their hiring and business records. This number surpassed the delivery of 652 NOIs to businesses on July 1, 2009, which had exceeded the number of NOIs issued for all of fiscal year (FY) 2008. Furthermore, the news release provided the following statistics regarding the number of NOIs issued since April 30, 2009:

45 businesses and 47 individuals have been debarred from government contracting
142 Notices of Intent to Fine (NIF) were issued imposing fines totaling $15,865,181
45 Final Orders were issued imposing fines of $798,179 (compared to eight Final Orders totaling $196,523 for the same period of FY 2008)
1,897 cases initiated (compared to 605 cases initiated during the same period of FY 2008)
1,069 Form I-9 inspections (compared to 503 Form I-9 inspections for all of FY 2008)

According to Assistant Secretary Morton, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.... We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”

Gibney strongly recommends that employers conduct audits of their Forms I-9 and take appropriate corrective action as needed. Good faith compliance with legal record-keeping requirements can serve to mitigate any fines that may be imposed as a result of errors or omissions on form. In addition, company representatives responsible for completion of Forms I-9 should receive specialized training.
Please contact your designated Gibney representative for additional information.

A copy of the ICE announcement may be located at http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm.

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Immigration Alert: USCIS Issues Revised Form I-9 Inspection Overview

Michael Hawkes — Thu, 19 Nov 2009 15:02:00 -0600

On November 19, 2009, USCIS issued a “Form I-9 Inspection Overview,” which provides a general description of U.S. Immigration and Customs Enforcement’s Form I-9 inspection process.

Employers are required by law to complete a Form I-9 verifying the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. Employers are additionally obligated to maintain Forms I-9 for inspection.

The overview provides a step by step description of the inspection process, from issuing a Notice of Inspection to contesting a Notice of Intent to Fine. Additional information provided includes:

- A flowchart of the Form I-9 inspection process
- A list of the most common notices issued by ICE as a result of the Form I-9 inspection
- Permitted time for employer responses to notices of inspection, notices of technical or procedural violations, and notices of intent to fine
- Potential penalties, including fines, criminal prosecution, and ineligibility for federal contracts and other government benefits
- Methodology for calculating fine amounts
- Employer options in response to a Notice of Intent to Fine.

The overview can be located at
http://www.ice.gov/doclib/foia/dro_policy_memos/formi9inspectionoverview.pdf

If you have any questions about Form I-9 inspections, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: December 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 16 Nov 2009 20:02:09 -0600

The U.S. Department of State (DOS) has published the December 2009 Visa Bulletin. In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Indian nationals advanced slightly from April 22, 2001 to May 1, 2001. The EB-3 priority cut-off dates for Worldwide, China, Mexico, and the Philippines remain at June 1, 2002, unchanged from last month. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, the priority cut-off dates for Chinese and Indian nationals remain unchanged from November, at April 1, 2005 and January 22, 2005 respectively. The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide, China, Mexico and the Philippines: June 1, 2001; India: May 1, 2001.

The full text of the December 2009 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Senior Counsel Minal Shah Selected to Super Lawyers Northern California 2009

Tue, 03 Nov 2009 17:44:00 -0600

Minal Shah

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Global Immigration Update India: Indian Authorities Issue Guidance on Immigration Reforms

Michael Hawkes — Fri, 30 Oct 2009 19:44:00 -0500

India has undertaken significant immigration reforms impacting the issuance of business and employment visas for foreign nationals. In August 2009, the Ministry of Commerce and Industry issued a letter providing guidance regarding eligibility and visa requirements, and in October 2009, the Ministry of Home Affairs (MHA) issued further clarification in a detailed list of Frequently Asked Questions (FAQs). The FAQs provide guidance for determining the appropriate visa categories for foreign nationals doing business in India and the conditions for granting either a “B” business visa or an “E” employment visa. The FAQs also outline procedures for filing and adjudicating applications at Indian Consulates and detail specific security clearance requirements for Chinese nationals.

Business Visas - Eligibility

For the first time, Indian authorities defined eligibility criteria for the “B” business visa and limited permissible business visitor activities to the following:

• Establish or explore the possibility of establishing a business venture;
• Purchase or sell industrial or commercial products;
• Conduct technical meetings or hold general discussions;
• Recruit foreign workers;
• Participate in exhibitions, trade fairs, and business fairs;
• Monitor the progress of ongoing projects and conduct meetings to provide high level technical guidance;
• Participate in pre-sales or post-sales activity not amounting to actual execution of any contract or project; and,
• Conduct in-house training for foreign trainees of multinational companies.

Foreign nationals in India on pre-existing business visas for the purpose of executing a project/contract are required to depart the country by October 31, 2009. If business-related activities fall outside of the permissible business visa activities, an employment visa is required.

Business Visas – Processing and Validity

New application procedures outlined in the FAQs require business visas to be issued in the applicant’s country of origin/citizenship or in the current country of domicile, provided that the period of permanent residence in the country of domicile is at least two years. The FAQs are silent regarding procedures for third country nationals in the United States on nonimmigrant visas.

A business visa may be granted for a maximum validity period of ten (10) years under certain circumstances; however, the Indian Consulate retains discretion to designate a shorter period. Under current guidelines, if the applicant requests more than a one (1) year validity period, the applicant must provide sufficient evidence to document their specific travel plans in the form of confirmed travel itineraries. When entering India pursuant to a valid business visa, the maximum period of stay per visit is 180 days.

Employment Visas - Eligibility

The FAQs also provide eligibility criteria for “E” employment visas and address the type of business activities that require an employment visa. Applicants for employment visas must fall within one of the following categories:

• Skilled and qualified professional worker;
• Individual engaged by a company or organization in India on a contract basis; or,
• Individual employed at a senior level in a skilled position as a technical expert, a senior executive, or an individual employed in managerial position.

Employment visas are not granted for routine, ordinary, or clerical jobs, nor for jobs in which large numbers of qualified Indians are available.

Foreign nationals entering India to perform the following activities may be eligible for employment visas:

• Execute project or contract irrespective of the duration of the visit;
• Conduct training for the personnel of the Indian company;
• Repair any plant or machinery as part of a warranty or annual maintenance contract;
• Install or commission equipment or machinery, and consult pursuant to a contract;
• Provide technical support or services, transfer of knowledge, and service supplies where the Indian company pays fees or royalties; and,
• Engage in self-employment to provide engineering, medial, accounting, legal, or other highly skilled services.

Employment Visas – Processing and Validity

Employment visas are subject to the new requirement that visas must be issued from the country of origin/citizenship or from the country of domicile, provided that the period of permanent residence of the applicant is for more than two (2) years.

“E” employment visas will be granted for one year and may be extended in India by the MHA. If additional extensions are required, the Foreign Regional Registration Office (FRRO) may grant extensions for a maximum period of five (5) years. Foreign nationals who hold employment visas are required to register with the FRRO within two (2) weeks of their date of arrival in India.

Chinese nationals applying for employment visas will be required to complete additional security clearance procedures. The Indian Consulate and the sponsoring employer must send a copy of the visa application to the Ministry of Home Affairs (MHA) for security clearances. The MHA will forward the application to the Intelligence Bureau (IB) and the Ministry of Labour (MOL). The security clearances are expected to take at least sixty (60) days, and may significantly delay processing for Chinese nationals. Failure to comply with the security measures may result in steep penalties imposed on Chinese nationals and their sponsoring employers.

Summary

As a result of these unprecedented changes, and given the increased scrutiny of applications and additional employer obligations and penalties for non-compliance, it is important that employers review the activities of their current employees in India to ensure continuing eligibility for visas. In addition, employers should also plan ahead for employees commencing the Indian business or employment visa application process.

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Partner Stephen F. Ruffino Selected to Super Lawyers New York Metro 2009

Tue, 27 Oct 2009 17:39:00 -0500

Stephen F. Ruffino

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Immigration Alert: USCIS Issues Revised "E-Verify: Supplemental Guide for Federal Contractors"

Michael Hawkes — Fri, 23 Oct 2009 15:50:00 -0500

On October 21, 2009, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised “E-Verify: Supplemental Guide for Federal Contractors.”

The revised guide addresses updated E-Verify functionality, including creation of two new
E-Verify user designations to distinguish federal contractors whose enrollment in E-Verify is mandatory from federal contractors whose enrollment is voluntary (replacing the single designation of “Federal Contractor”). It also clarifies that once an eligible E-Verify user chooses to verify all existing employees, that decision cannot be changed. Additionally, the revised guide provides clarification on the handling of expired “List B” documents when updating existing Forms I-9 in conjunction with the use of E-Verify.

The revised guide can be located at
http://www.uscis.gov/USCIS/Controlled%20Vocabulary/Native%20Documents/Supplemental%20Guidance%20for%20Federal%20Contractors%20090109%20FINALa(1).pdf.

If you have any questions about E-Verify functionality, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: November 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 21 Oct 2009 19:22:00 -0500

The U.S. Department of State (DOS) has published the November 2009 Visa Bulletin. In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Chinese and Mexican nationals advanced to June 1, 2002. The cut-off date for Indian nationals advanced slightly from April 15, 2001 to April 22, 2001. The EB-3 priority cut-off dates for Worldwide and the Philippines remain at June 1, 2002, unchanged from last month. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to April 1, 2005. The EB-2 priority cut-off date for Indian nationals remains at January 22, 2005, unchanged from October. The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide, China, Mexico and the Philippines: June 1, 2001; India: April 22, 2001.

The full text of the November 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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IP Article: When, Where, How & Who: Anticounterfeiting Enforcement in the Wake of eBay and the Struggling Economy, by IP Attorneys Brian W. Brokate and Christina Winsor

Wed, 21 Oct 2009 17:16:00 -0500

Intellectual Property Head Brian W. Brokate and Associate Christina L. Winsor authored this article in the 15th Annual Institute on Intellectual Property Law published by the Practising Law Institute, 2009.

This material has been published as part of “Intellectual Property Law Institute 2009" by Practising Law Institute, and is available at 1-800-260-4754; www.pli.edu (c) The Practising Law Institute). Reproduced with permission. All rights reserved.

Read the article in full.

Immigration Practice Group Hosts November 3rd Seminar on Global Mobility: Corporate Trends and Best Practices for International Assignments

Wed, 21 Oct 2009 16:57:00 -0500

Our Immigration Practice Group is pleased to present a seminar on:

Global Mobility: Corporate Trends and Best Practices for International Assignments

Tuesday, November 3, 2009
Continental Breakfast 8:30am – 9:00am
Seminar 9:00am – 10:30am
The Fairmont San Jose
170 S. Market Street
San Jose, CA 95113

Topics

· International Assignment Agreements and Compensation

· Arrangements

· Employment terms and conditions

· Reconciling home and host country plans

· Emergency Protection Planning for Business Travelers and

· International Assignments

· Legal documents for executives and their families

· Estate Planning considerations

· Global Mobility and Worksite Enforcement

· Global trends in immigration protectionism

· Increased obligations for employee tracking and record retention

· Legislative and Policy Updates - U.S.

· E-Verify for Federal Contractors

· USCIS & DOL Immigration Updates

Presenters:

Stephen J.O. Maltby, Esq.
Frederick W. Anthony, Esq.
Gerald J. Dunworth, Esq.
Deborah B. Davy, Esq.
Minal A. Shah, Esq.

If you are interested in attending the seminar, please send your name and contact information to seminars@gibney.com

Immigration Article: Immigration Score Card--Adaptability of Points-Based Systems to Changing Economic Conditions by Attorney Deborah Davy

Michael Hawkes — Tue, 20 Oct 2009 19:32:00 -0500

Immigration Senior Counsel Deborah Davy authored this article in the Expatriate Adviser, Autumn 2009.

Read article in full.

Immigration Alert: DHS Increases Fraud Investigations at U.S. Companies

Michael Hawkes — Tue, 22 Sep 2009 20:31:00 -0500

The Department of Homeland Security (DHS) has recently stepped-up investigations of U.S. employers as part of a broad initiative to uncover fraud in the filing of employment-based immigration petitions, and to enforce compliance with Form I-9 employment verification requirements.

The Fraud Detection and National Security (FDNS) unit of U.S. Citizenship and Immigration Services (USCIS) has deployed officers and contract investigators to make on-site visits to employers for the purpose of verifying information in immigration petitions previously filed by the employer on behalf of foreign national employees. The initiative is funded, in part, by the $500 “fraud fee” USCIS collects with the filing of an H-1B or L-1 petition. Typically FDNS site visits are unannounced, and questions range from details pertaining to a specific immigration petition (such as an H-1B or L-1 petition) to the company’s immigration program generally. The FDNS investigator may ask to speak with both the company representative identified as the signatory on the petition, as well as the foreign national beneficiary, to verify the information in the petition. The investigator may also ask to see related company records, such as payroll records, to verify information in the petition.

Initial reports suggest that most on-site visits have been non-adversarial in nature, and Gibney encourages its clients to cooperate with investigators. Immigration counsel should be contacted as soon as the investigator makes contact with the company. The investigator may permit counsel to attend the meeting personally or telephonically to assist in providing the information requested. If counsel is not permitted or able to attend, the company representative may ask the investigator for any additional time needed to gather data responsive to the investigator's questions, and to confer with counsel regarding the same.

While FDNS focuses on investigating immigration benefit programs, U.S. Immigration and Customs Enforcement (ICE) has increased audits of companies to ensure compliance with employment verification laws and regulations. ICE investigations typically commence with a Notice of Investigation (NOI) sent to the employer, requesting access to documentation related to the employer’s Forms I-9. Most NOIs provide the employer with three days to present the documentation requested. Immigration counsel should be contacted immediately upon receipt of an NOI, so that counsel may work with ICE and the company to facilitate the timing and control the scope of the investigation.

In view of these investigatory initiatives, companies should carefully review their immigration compliance programs. Where the company lacks a formal and comprehensive program, one should be established and implemented. Current practices should be reviewed and evaluated, and an audit of the company’s Forms I-9, H-1B and Labor Condition Application documentation, PERM labor certification documentation, and immigration sponsorship practices is advisable.

Gibney has extensive tools and resources available to assist our clients in implementing and maintaining best practices for immigration compliance, and we remain available to prepare compliance policies, conduct on-site audits of existing practices, and provide training for company personnel upon request.

Please contact your designated Gibney representative if you have any questions concerning this alert or how we may assist in preparing for and facilitating an on-site investigation.

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Immigration Alert: October 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 14 Sep 2009 20:35:00 -0500

The U.S. Department of State (DOS) has published the October 2009 Visa Bulletin. With the start of the government’s new fiscal year on October 1, visa numbers are once again available in the employment-based, third preference (EB-3) category after having been unavailable for several months. In the EB-3 “professional and skilled worker” category, priority cut-off dates are as follows: Worldwide and the Philippines: June 1, 2002; China: February 22, 2002; India: April 15, 2001; Mexico: May 1, 2002. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, priority cut-off dates advanced to March 22, 2005 for Chinese nationals, and to January 22, 2005 for Indian nationals. EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide, China, Mexico and the Philippines: June 1, 2001; India: April 15, 2001.

The full text of the October 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4575.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Issues E-Verify: Supplemental Guide for Federal Contractors

Michael Hawkes — Wed, 09 Sep 2009 15:57:00 -0500

On September 8, 2009, the amended Federal Appropriation Regulation (“FAR”) became effective. The amended FAR requires that most federal contracts contain a clause mandating that contractors and subcontractors use E-Verify to electronically verify the work authorization of certain employees.

In conjunction with implementation of the amended FAR, on September 8, 2009, U.S. Citizenship and Immigration Services (“USCIS”) issued the “E-Verify: Supplemental Guide for Federal Contractors.” This supplemental guide provides specific guidance on which federal contractors are obligated to use E-Verify under the amended rule and details which of their employees may or must have their work authorization electronically verified using E-Verify. The guide also provides a timeline for the enrollment in and the use of E-Verify for those federal contractors.

If you have any questions about E-Verify requirements or functionality, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

The supplemental guide can be located at
http://www.uscis.gov/USCIS/E-Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FINAL.pdf.

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Immigration Alert: E-Verify Mandate for Federal Contractors Effective September 8, 2009

Michael Hawkes — Tue, 01 Sep 2009 20:38:00 -0500

The U.S. District Court for the District of Maryland has upheld the amended Federal Appropriation Regulations mandating use of E-Verify for federal contractors, rejecting legal challenges to the validity of the rule filed by the U.S. Chamber of Commerce and other groups. Scheduled to take effect on September 8, 2009, the rule will require that most federal contracts contain a clause mandating that contractors and subcontractors use E-Verify to electronically verify the work authorization of all new employees and certain existing employees assigned to the contract.

What Types of Contracts Are Subject to the Rule?

Existing federal contracts and subcontracts are not subject to the new regulations unless and until the contract is modified to include an E-Verify clause. A contractor or subcontractor only becomes subject to these E-Verify requirements upon signing a federal contract on or after September 8, 2009 that contains the relevant E-Verify clause.

The following types of contracts signed on or after September 8, 2009 will be required to contain the E-Verify clause:

(1) Contracts for work to be performed in the United States with a period of performance of more than 120 days and with value of more than $100,000, unless the contract is exclusively for commercially available off-the-shelf (“COTS”) items; and,

(2) Subcontracts for services, including construction, with a value of at least $3,000 where the primary contract contains the E-Verify clause.

Which Employees Are Impacted?

If a federal contract contains the E-Verify clause, the regulations require that the contractors and subcontractors utilize E-Verify to verify the work authorization of the following employees:

(1) All new employees hired on or after enrollment in E-Verify; and,

(2) All existing employees who are “assigned to the contract.” An employee is considered “assigned to the contract” if he/she was hired after November 6, 1986, and directly performs work in the United States under a contract containing the E-Verify clause. Employees who normally perform support work and do not perform any of the substantial duties under the contract need not be processed through E-Verify.

What is the Timeline for Compliance?

Employers awarded a federal contract requiring the use of E-Verify will have 30 days from the date of contract execution to enroll in E-Verify. Employers will have 90 days to begin using E-Verify for all new employees and existing employees assigned to the contract. Employers already enrolled in E-Verify for at least 90 days must continue to verify new employees and will have 30 days from the award of the contract to update their profile as a federal contractor, and 90 days to E-Verify existing employees assigned to the contract.

Many employers have raised concerns regarding the difficulty of identifying which employees are “assigned to the contract.” The regulations do provide employers the option of verifying their entire workforce (hired after November 6, 1986), including existing employees not assigned to a federal contract. If the company chooses this option, it must update its E-Verify profile and commence E-Verify queries for its existing employees within 180 days of updating its profile.

It is important to note that, under the current rules, an employer may not use E-Verify to verify the work authorization of existing employees unless the employer is subject to the federal contractor rule.

For more information regarding the federal contractor rule, please visit the USCIS website at www.uscis.gov.

About E-Verify

Over the past several years, the U.S. Department of Homeland Security (DHS) has invested heavily in developing an electronic employment verification system and increased worksite enforcement, leading to the current E-Verify program. Employers who register for E-Verify agree to use the online system to verify the work authorization for each new employee. Employers check basic Form I-9 information and social security numbers against records in the Social Security Administration (SSA) and DHS database. Employers must accept reporting obligations in addition to maintaining Forms I-9 and must agree to take certain steps, including possibly terminating an employee or documenting the reasons for continued employment, if the employer cannot confirm the employee’s work authorization through E-Verify. Although registration is free, training of personnel and other administrative costs may be significant. Employers are permitted to utilize Designated Agents to assist in their administration of E-Verify procedures.

E-Verify continues to be controversial and is opposed by many business groups, local governments and civil rights advocates. Many groups have expressed concerns about the reliability of federal databases, the administrative burdens on employers, wider government access to employer records, and the system’s ability to properly identify those with employment authorized nonimmigrant status. Despite concerns, the Obama administration has expressed its support for the federal contractor regulations, and DHS has indicated its intent to fully enforce these regulations. The impact of the new rule is far reaching, affecting nearly all federal appropriations. Many companies seeking to do business with the federal government or to benefit from stimulus funds offered by the American Recovery and Reinvestment Act of 2009 will now be required to participate in E-Verify.

Gibney strongly encourages employers who believe they are subject to these regulations, as well as employers considering voluntary registration in E-Verify, to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Please note also that Gibney Onboarding Services LLC is authorized by DHS and SSA to serve as a Designated Agent for employers in connection with their administration of and compliance with E-Verify procedures. Gibney will continue to provide relevant updates, trainings and seminars regarding this and other worksite enforcement initiatives.

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Immigration Alert: September 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 12 Aug 2009 20:41:00 -0500

The U.S. Department of State (DOS) has published the September 2009 Visa Bulletin. In the employment-based second preference (EB-2) category, priority cut-off dates for Chinese and Indian nationals advanced for the second month in a row, from October 1, 2003 to January 8, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In other preference categories, priority cut-off dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current.

Visa numbers remain “unavailable” in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. Individuals in the EB-3 preference categories may not file adjustment of status or immigrant visa applications, nor may their adjustment of status applications be approved until visas are once again available.

The full text of the September 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4558.html.

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Partner Stephen J.O. Maltby Named to Advisory Panel for British Airways' "Face of Opportunity" Contest

Tue, 21 Jul 2009 20:43:00 -0500

Between July 14 and July 31, British Airways is holding the "Face of Opportunity" contest to find the brightest entrepreneurial minds in the U.S. and what they could accomplish with their businesses if they had the chance to have face to face meetings abroad. The prize for winning entries is a complimentary round-trip flight to London or beyond from New York, Chicago and Los Angeles.

Gibney Partner Stephen J.O. Maltby was named by British Airways as one of an elite group of entrepreneurs who were asked to speak about why face to face meetings are important for business and help define the selection criteria for the contest.

Global Immigration Alert - Japan: New System of Residence Management

Michael Hawkes — Wed, 15 Jul 2009 14:48:00 -0500

The Japanese Immigration Bureau has announced significant changes to the Immigration Control and Refugee Recognition Act that will take effect over the next three years. The Immigration Bureau has introduced these changes to increase control over the entry, residence, and departure of foreign nationals in Japan. As discussed below, major changes include increased validity periods for employment visas and Re-entry Permits and the abolishment of Alien Registration Cards.

Validity Period Extended for Employment Visas and Re-entry Permits
Effective July 2010, the validity of employment visas will be extended from 3 to 5 years.

Re-entry permits will no longer be required if re-entry to Japan is made within one year of departure. Under the prior system, foreign nationals were required to hold a re-entry permit if they travelled outside of Japan for any period. Under the new re-entry permit regulations, if a foreign national travels outside of Japan for more than one year without first obtaining a re-entry permit, it will be necessary to apply for a new Certificate of Eligibility and entry visa prior to returning to Japan in employment-authorized status. The re-entry permit validity will also be extended from 3 to 5 years.

Alien Registration Cards (“ARC”) No Longer Issued
Under the new system, the Alien Registration Card (ARC) will no longer be issued, and will be replaced by a resident card, or “Zairyu Card” that will be issued automatically at the Port of Entry to all foreign nationals granted a stay of more than 3 months. The current requirement to register with the local municipal office within 90 days will be abolished. However, Zairyu Card holders will be required to report their residential address to the local municipal office within 14 days of arrival in Japan. Zairyu Cards will be valid for the duration of the underlying entry visa.

Zairyu Cards will include the holder’s name, residential address, visa type, and expiration date and must be carried at all times as proof of identity and legal immigration status. Any change in circumstances, including change in name, address, nationality, marital status, or employment, must be reported to the Immigration Bureau within 14 days.

Current ARC holders are expected to have the Zairyu Card issued at the time of extending their current resident status. Permanent Resident status holders are expected to make arrangements to visit the Immigration Bureau within 3 years of the introduction of the new card to request a Zairyu Card.

We will continue to provide updates on these changes and provide procedural changes as they are implemented.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: August 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 13 Jul 2009 20:50:00 -0500

The U.S. Department of State (DOS) has published the August 2009 Visa Bulletin. In the employment-based second preference (EB-2) category, priority cut-off dates for Chinese and Indian nationals advanced from January 1, 2000 to October 1, 2003. This advancement occurred despite DOS warnings last month that the EB-2 category for Indian and Chinese nationals might become unavailable in August. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current.

For more information see the full text of the August 2009 Visa Bulletin.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Attorney J. Claire Razzolini Becomes Partner

Mon, 13 Jul 2009 20:47:00 -0500

Gibney, Anthony & Flaherty LLP is pleased to announce that attorney J. Claire Razzolini has become a Partner in the firm.

Ms. Razzolini practices in the area of U.S. immigration and nationality law, counseling established global companies regarding the employment of foreign nationals and related federal compliance issues. She represents corporate and individual clients before the U.S. Department of Homeland Security, the U.S. Department of Labor, and the U.S. Department of State, and has extensive experience securing temporary employment authorization, permanent resident status, and naturalization benefits on behalf of foreign nationals. She is a frequent speaker on U.S. immigration best practices.

Ms. Razzolini was awarded a Bachelor of Arts degree magna cum laude from the State University of New York at Fredonia, a Master of Arts degree from Boston College, and a Juris Doctor cum laude from the University at Buffalo School of Law, where she was a member of the Buffalo Law Review. She is admitted to practice in New York and before the U.S. Western District of New York.

Immigration Alert: DHS Announces Intent to Implement Federal Contractor E-Verify Rule

Michael Hawkes — Fri, 10 Jul 2009 21:07:00 -0500

On July 8, 2009 Department of Homeland Security (DHS) Secretary Napolitano announced the Obama Administration’s support of the Federal Acquisitions Regulatory Council final rule requiring federal contractors and subcontractors to verify the work authorization of employees utilizing the E-Verify system. With this announcement, the Administration signals its support of the E-Verify program and its intent to implement the federal contractor E-Verify rule commencing September 8, 2009.

DHS’s endorsement of the federal contractor E-Verify rule came after implementation of the rule was postponed several times to afford the Obama Administration an opportunity to review the rule. As we previously reported, on November 14, 2008, the federal government published a final regulation requiring certain federal contractors to utilize the E-Verify system to verify the work authorization of their employees. The rule was initially set to take effect on January 15, 2009. However, a lawsuit challenging the validity of rule was filed by several groups led by the U.S. Chamber of Commerce, and implementation of the rule was postponed numerous times as a result of the litigation and the change in presidential administrations. As of this date, it is not clear what impact DHS’s stated intent to implement the rule on September 8, 2009 will have on the pending litigation related to the rule’s implementation.

Once implemented, the current version of the rule will require that certain federal contracts contain a clause requiring contractors to verify the work authorization of all new employees and certain existing employees assigned to the contract utilizing the E-Verify system. For additional details regarding the federal contractor rule, please see Gibney’s Immigration Alert “Final Regulations Published on E-Verify Requirements for Federal Contractors,” here.

In the same announcement, DHS stated that it intends to withdraw the Social Security “No-Match” regulation that was announced in 2007 but never implemented. The No-Match regulation proposed procedures for employers to follow upon receipt of a Social Security Administration (SSA) letter indicating that an employee’s name and social security number did not match SSA records, or a DHS letter questioning an employee’s work eligibility.

The July 8, 2009 DHS announcement regarding both rules is available at http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm.

Gibney strongly encourages employers who believe they may be subject to the federal contractor E-Verify rule, as well as employers considering voluntary registration in the E-Verify program, to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Gibney will continue to provide relevant updates, resources, trainings, and seminars regarding this and other worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com. For information regarding Gibney Onboarding Services, LLC, an E-Verify Designated Agent, please contact jcline@gibneyonboarding.com.

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Partner John Macaluso to Speak At International Anticounterfeiting Coalition Conference

Mon, 29 Jun 2009 21:19:00 -0500

Partner John Macaluso will be a featured speaker at the upcoming fall conference of the International Anticounterfeiting Coalition (IACC) which will be held October 14-16, 2009 in Atlanta, Georgia. Mr. Macaluso serves as the chair of the Business-to-Consumer Working Group of the IACC Internet Committee.

Mr. Macaluso specializes in litigating trademark infringement and counterfeiting cases, trademark prosecution and enforcement and domain name dispute resolution. Mr. Macaluso also counsels clients in the luxury goods, fashion, sports and entertainment industries in developing nationwide programs to protect and enforce Intellectual Property rights. He has advised federal, state and local law enforcement agencies with implementing procedures to combat the counterfeiting of trademarked goods, as well as trained members of these agencies as an expert in the identification of counterfeit merchandise.

For further details on the conference and to register, please go to http://www.iacc.org/conferences/upcoming.php?id=19.

Immigration Alert: USCIS Update Continuing Validity of Form I-9

Michael Hawkes — Mon, 29 Jun 2009 21:15:00 -0500

U.S. Citizenship and Immigration Services (USCIS) has advised that the current Form I-9 (Rev. 02/02/09) will remain valid beyond June 30, 2009, despite the June 30 expiration date that appears on the top of the form. U.S. employers should continue to use Form I-9 (Rev. 02/02/09) for employment eligibility verification. The Form I-9 is available at http://www.uscis.gov/files/form/i-9.pdf.

USCIS has requested a formal extension of the Form I-9 from the Office of Management and Budget (OMB). While the request is pending with OMB, the Form I-9 (Rev. 02/02/09) will remain valid. Once the extension request is approved, employers will have the option of using the Form I-9 carrying the 02/02/09 revision date, or the Form I-9 with the new revision date.

Gibney will continue to monitor this matter and keep you apprised of related developments. If you have any questions about Form I-9 Employment Eligibility Verification, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Partner Angelo Mazza to Speak at Product Authentication & Brand Security Conference 2009

Fri, 26 Jun 2009 21:22:00 -0500

Partner Angelo E.P. Mazza will be a featured speaker at the 2009 Product Authentication & Brand Security (PABS) North America Conference to be held October 26-27, 2009 in Chicago, Illinois.

The conference is a forum for discussing the main issues, legal aspects, strategies and technology solutions for the fight against counterfeiting and piracy.

Mr. Mazza specializes in brand protection and IP enforcement.

For more information, and to register for the conference, go to: http://www.bpcouncil.com/viewarticle.aspx?articleID=901

Immigration Alert: July 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 15 Jun 2009 21:24:00 -0500

The U.S. Department of State (DOS) has published the July 2009 Visa Bulletin. Due to continuing high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, the employment-based second preference (EB-2) category for Chinese nationals has retrogressed significantly, from February 15, 2005 to January 1, 2000. The priority cut-off date for Indian nationals in the EB-2 category is likewise January 1, 2000. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current.

DOS reports that applicant demand for visa numbers has been high throughout the year. As a result, visa availability for many employment-based applicants during the remainder of the fiscal year (i.e., through September 30, 2009) is unlikely. Though DOS predicts that the EB-1 worldwide category will remain current for the reminder of the fiscal year, the EB-1 category for Indian and Chinese nationals could require the establishment of a priority cut-off date in August or September. DOS also indicates that the EB-2 category for Indian and Chinese nationals may become unavailable in August or September, and, as we noted previously, EB-3 will remain unavailable for the reminder of the fiscal year.

The full text of the July 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4512.html.

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Immigration Alert: Implementation of E-Verify Rule for Federal Contractors Again Postponed

Michael Hawkes — Tue, 02 Jun 2009 21:28:00 -0500

The U.S. Chamber of Commerce has announced that implementation of the final rule requiring federal contractors and subcontractors to verify the work authorization of employees utilizing the E-Verify system has been suspended until September 8, 2009. Implementation of the rule, initially set to take effect on January 15, 2009, has been postponed several times pursuant to litigation challenging the rule’s validity, led by the U.S. Chamber of Commerce. The Chamber of Commerce announced last week that the litigants agreed to extend the rule’s applicability date to September 8, 2009 in order to allow the Obama Administration more time to complete its review of the rule.

If implemented, the rule would require that certain federal contracts contain a clause requiring contractors to verify the work authorization of all new employees and certain existing employees assigned to the contract utilizing the E-Verify system. For additional details regarding the federal contractor rule, please see Gibney’s Immigration Alerts “U.S. Department of Justice Delays Implementation of E-Verify Requirements for Federal Contractors” , and “Final Regulations Published on E-Verify Requirements for Federal Contractors” .

Gibney strongly encourages employers who believe they may be subject to the rule, as well as employers considering voluntary registration in the E-Verify program, to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Gibney will continue to provide relevant updates, trainings and seminars regarding this and other worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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IP Article: Recent Developments in Case Law and Legislative Action: An Analysis of Counterfeiting Enforcement

Tue, 02 Jun 2009 16:31:00 -0500

Partner Brian W. Brokate and associate Christina L. Winsor article titled, "Recent Developments in Case Law and Legislative Action: An Analysis of Counterfeiting Enforcement" in The Computer and Internet Lawyer.

Read full article here.

Partner Brian W. Brokate to Speak at PLI's 15th Annual Institute on Intellectual Property Law 2009

Mon, 25 May 2009 21:32:00 -0500

Brian W. Brokate, head of Gibney's Intellectual Property Department, will speak at the Practising Law Institute's 15th Annual Institute on Intellectual Property Law 2009, to be held in New York City, October 1-2, 2009.

The seminar is a "must attend" program for IP lawyers and will cover many of the most important developments in patent, trademark, copyright, and trade secret law.

For more information, and to register for the program, visit the website at: http://www.pli.edu/product/seminar_detail.asp?id=48984.

Immigration Alert: June 1, 2009 Deadline Approaching for Implementation of New Travel Document Requirements at Land and Sea Ports

Michael Hawkes — Wed, 20 May 2009 21:34:00 -0500

As a reminder, commencing June 1, 2009, all travelers entering the United States at land and sea ports will be required to present an approved travel document establishing identity and citizenship. This change primarily affects citizens of the United States, Canada and Bermuda who currently may be admitted at U.S. land and sea ports by presenting a government-issued photo identity document and a second document establishing citizenship.

Effective June 1, 2009, approved travel documents for U.S., Canadian and Bermudian citizens will include the following:

--Passport;
--U.S. Passport Card;
--Trusted Travel Cards (NEXUS, SENTRI, or FAST);
--State- or Province-issued Enhanced Driver’s License (when available – this secure driver’s license will denote identity and citizenship);
--U.S. Military Identification Cards when presented by members of the U.S. armed forces traveling on official Military Orders;
--U.S. Merchant Mariner Document (for U.S. citizens, when conducting official maritime business); and,
--Form I-872 American Indian Card, or Enhanced Tribal Card (when available).

U.S. and Canadian citizens under the age of 16 may enter the United States at land and sea ports with proof of citizenship, such as a birth certificate, naturalization certificate, citizenship card, or passport.

Other Travelers

All existing nonimmigrant visa and passport requirements for travelers other than U.S., Canadian and Bermudian citizens remain in place and are not altered by the changes taking effect June 1, 2009. U.S. permanent residents should present their Permanent Resident Card (I-551) or other evidence of lawful permanent resident status, and Mexican citizens, including minor children, must present a valid passport and a B-1/B-2 nonimmigrant visa, Border Crossing Card or other appropriate visa.

Additional information regarding the new requirements may be found in our Immigration Alert “New Document Requirements for U.S., Canadian and Bermudian Citizens at U.S. Land and Sea Ports Effective June 1, 2009” . You may also visit the U.S. Customs and Border Protection website at http://www.cbp.gov and http://www.getyouhome.gov/html/eng_map.html.

If you have any questions about this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: June 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 11 May 2009 21:39:00 -0500

The U.S. Department of State (DOS) has published the June 2009 Visa Bulletin. Due to continuing high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, the employment-based second preference (EB-2) category for Indian nationals has retrogressed significantly, from February 15, 2004 to January 1, 2000. At this time, DOS is unable to estimate whether this retrogression will remain in effect for the rest of the fiscal year, i.e., through September 30, 2009.

Visa numbers remain “unavailable” in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories. As we reported last month, EB-3 is likely to remain unavailable for the remainder of the fiscal year. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. Individuals in the EB-3 preference categories may not file adjustment of status or immigrant visa applications, nor may their adjustment of status applications be approved until visas are once again available.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals remains at February 15, 2005, unchanged from the May 2009 Visa Bulletin. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

DOS reports that applicant demand for visa numbers has been high throughout the year. As a result, visa availability for employment-based applicants during the remainder of the fiscal year is not assured. Establishment of cut-off dates for categories that are now “current,” as well as further retrogression in categories already subject to cut-off dates, is possible.

The full text of the June 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice.
The contents of this article may be considered attorney advertising in some states.

Immigration Alert: Longer Processing Times Projected for DOL

Michael Hawkes — Fri, 08 May 2009 21:43:00 -0500

The U.S. Department of Labor (DOL) has introduced a new electronic portal, iCert, for the filing of Labor Condition Applications (LCAs) utilized for H-1B, H-1B1, and E-3 petitions. Use of the iCert system to file LCAs will be mandatory as of May 15, 2009.

Preliminary reports indicate that there are problems with iCert functionality, and DOL is working to resolve those issues. However, even with improved functionality, DOL has advised that employers should no longer expect immediate certification of LCAs upon filing, as is common under the current system. With implementation of iCert, DOL may take up to seven (7) business days to certify LCAs submitted through the system. Because a certified LCA must be obtained from DOL prior to filing an H-1B, H-1B1, or E-3 petition, longer LCA processing times will necessarily delay the filing of these petitions, and, in turn, how quickly an H-1B, H-1B1, or E-3 worker may commence new employment with the sponsoring employer pursuant to an approved petition. To the extent possible, employers should plan ahead and anticipate that the preparation and filing of an H-1B, H-1B1, or E-3 petition may take an additional one (1) to two (2) weeks due to longer LCA processing times.

The iCert system for LCAs is part of a larger initiative by DOL, which includes new online application procedures for PERM labor certification applications that are scheduled for implementation later this year. Gibney will continue to monitor this matter and provide updates as they become available. If you have any questions about the DOL’s LCA program, the new iCert system, or immigration matters generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Implementation of E-Verify Requirements for Federal Contractors Further Postponed

Michael Hawkes — Thu, 30 Apr 2009 15:59:00 -0500

The Federal Acquisitions Regulatory Councils have further postponed the final rule requiring federal contractors and subcontractors to verify the work authorization of employees utilizing the E-Verify system. Implementation of the final rule is now postponed until June 30, 2009.

As we previously reported, on November 14, 2008, the federal government published final regulations requiring certain federal contractors to utilize the E-Verify system to verify the work authorization of their employees. The rule was initially set to take effect on January 15, 2009. A lawsuit was filed by several groups challenging the validity of rule, and, as a result, on January 9, 2009, the U.S. Department of Justice agreed to suspend implementation of the rule until February 20, 2009. The litigants later announced that the implementation date would be delayed until May 21, 2009. The rule has now been further postponed, until June 30, 2009, to provide the Obama Administration with additional time to review the matter.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: May 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 22 Apr 2009 16:04:00 -0500

The U.S. Department of State (DOS) has published the May 2009 Visa Bulletin. Due to high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories, visa numbers are unavailable for all countries in these preference categories. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. Individuals in the EB-3 preference categories may not file adjustment of status or immigrant visa applications, nor may their adjustment of status applications be approved, until visas are once again available. According to DOS, visa availability in the EB-3 “professional and skilled worker” and “other worker” categories will resume in October 2009, the first month of the government’s new fiscal year.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals remains at February 15, 2005, unchanged from the April 2009 Visa Bulletin. Similarly, the EB-2 priority cut-off date for Indian nationals remains at February 15, 2004, also unchanged from the April 2009 Visa Bulletin. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the May 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4454.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B UPDATE

Michael Hawkes — Tue, 21 Apr 2009 16:15:00 -0500

United States Citizenship and Immigration Services (“USCIS”) has announced that it will continue to accept H-1B petitions subject to the cap for Fiscal Year 2010 because the numerical limit has not been reached.

On April 9, 2009, USCIS announced that it has received approximately 42,000 H-1B petitions to be counted against the FY2010 cap of 65,000 H-1B visas. The agency has received approximately 20,000 petitions to be counted against the “master's cap” for individuals holding an advanced degree from a U.S. university, and will likely close the pool for master’s cap cases soon. Once the 20,000 limit is reached, any petitions filed under the master’s cap will be added to the pool of cases subject to the “regular H cap.” Pursuant to the regulations issued last year, on the day USCIS determines that sufficient petitions have been received, USCIS will conduct a random selection lottery from among petitions received on that day to allocate remaining visas. We cannot predict when the cap may be reached.

USCIS confirmed that H-1B petitions received within the first five business days will be assigned a receipt date of April 7, 2009, and the fifteen-day adjudication timeline for Premium Processing cases received within the first five business days began on April 7, 2009.

Please note that the process outlined above does not apply to H-1B petitions that are not subject to the cap, such as extensions for those already in H-1B status or other exempt filings. For additional background information regarding the H-1B cap and which petitions are not subject to the cap, please see Gibney’s Immigration Alert, published February 23, 2009 here.

Finally, USCIS and the Federal Reserve Board provided additional guidance last week regarding the Employ American Workers Act (“EAWA”), enacted on February 17, 2009 as part of the federal economic stimulus bill. The EAWA placed restrictions on certain types of H-1B petitions for new employees filed by recipients of funding under the Emergency Economic Stabilization Act or Section 13 of the Federal Reserve Act. The agencies provided some useful clarification regarding their interpretation of the types of funds and petitions covered by the EAWA. Since its passage, Gibney has been working closely with clients and federal agencies to assess the impact of the EAWA.

If you have any questions as to whether your company is subject to these restrictions, or about H-1B filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Employee Benefits Alert: Annual Funding Notice

Michael Hawkes — Tue, 21 Apr 2009 16:08:00 -0500

Pension Protection Act (“PPA”) Section 501(a) amended ERISA Section 101(f) to require all defined benefit plans subject to PBGC to provide an annual funding notice. The plan administrator needs to provide the notice to each participant (and beneficiary), the PBGC, the labor organization representing participants, and, in the case of a multiemployer plan, to each employer that has an obligation to contribute to the plan. Previously, the annual funding notice requirement applied only to multiemployer plans. The new requirement is effective for plan years beginning after December 31, 2007. For a large plan, the deadline for providing the notice is 120 days after the close of the year (April 30, 2009 for calendar year plans). A small plan must provide the notice by the earlier of: (1) the date it files its Form 5500; or (2) the deadline for filing the Form 5500. Accordingly, a small plan will need to coordinate the filing of its Form 5500 and the date it provides the annual funding notice. In other words, if the employer completes its Form 5500 before the Form 5500 filing deadline but it has not completed the annual funding notice, it should delay the Form 5500 filing until it has completed the annual funding notice.

PPA required the DOL to issue regulations and a sample notice by August 17, 2007. The DOL did not meet that deadline. With the recent change in the political leadership at the DOL, the DOL provided guidance and the sample notices in the form of a Field Assistance Bulletin (FAB 2009-01). The FAB contains two model funding notices: a multiemployer notice and a single employer notice (the single employer notice is reproduced below). The DOL does not require a plan administrator to use one of the model notices. However, the DOL will consider a plan administrator that uses one of the model notices as satisfying the notice requirements.

Defined benefit plans subject to the annual funding notice do not need to provide summary annual reports (SARs). Many commentators have indicated that all defined benefit plans are exempt from the SAR requirement. However, only defined benefit plans subject to PBGC are exempt.

If you have any questions please contact us at telephone 212-688-5151 or email: knsacks@gibney.com.

MODEL DEPT OF LABOR ANNUAL FUNDING NOTICE FOR SINGLE EMPLOYER PLAN

For

[insert name of pension plan]

Introduction

This notice includes important funding information about your pension plan (“the Plan”). This notice also provides a summary of federal rules governing the termination of single-employer defined benefit pension plans and of benefit payments guaranteed by the Pension Benefit Guaranty Corporation (PBGC), a federal agency. This notice is for the plan year beginning [insert beginning date] and ending [insert ending date] (“Plan Year”).

Funding Target Attainment Percentage

The funding target attainment percentage of a plan is a measure of how well the plan is funded on a particular date. This percentage for a plan year is obtained by dividing the Plan's Net Plan Assets by Plan Liabilities on the Valuation Date. In general, the higher the percentage, the better funded the plan. The Plan's funding target attainment percentage for the Plan Year and 2 preceding plan years is shown in the chart below, along with a statement of the value of the Plan's assets and liabilities for the same period. [insert Plan Year, e.g., 2011] [insert plan year preceding Plan Year, e.g., 2010] [insert plan year 2 years preceding Plan year, e.g., 2009] 1. Valuation Date [insert date] [insert date] [insert date] 2. Plan Assets a. Total Plan Assets [insert amount] [insert amount] [insert amount] b. Funding Standard Carryover Balance [insert amount] [insert amount] [insert amount] c. Prefunding Balance [insert amount] [insert amount] [insert amount] d. Net Plan Assets (a) - (b) - (c) = (d) [insert amount] [insert amount] [insert amount] 3. Plan Liabilities [insert amount] [insert amount] [insert amount] 4. At-Risk Liabilities [insert amount] [insert amount] [insert amount] 5. Funding Target Attainment Percentage (2d)/(3) [insert percentage] [insert percentage] [insert percentage]

==============================================================================
                [insert Plan Year,    [insert plan year      [insert plan year
                   e.g., 2011]        preceding Plan Year,   2 years preceding
                                         e.g., 2010]         Plan year, e.g.,
                                                                   2009]

==============================================================================
1. Valuation
     Date         [insert date]         [insert date]           [insert date]
2. Plan Assets
a. Total
       Plan
       Assets     [insert amount]       [insert amount]         [insert amount]
b. Funding
       Standard
       Carryover
       Balance    [insert amount]       [insert amount]         [insert amount]
c. Prefunding
      Balance     [insert amount]       [insert amount]         [insert amount]
d. Net Plan
       Assets
     (a) - (b)
    - (c) = (d)   [insert amount]       [insert amount]         [insert amount]
3. Plan
     Liabilities [insert amount]       [insert amount]         [insert amount]
4. At-Risk
     Liabilities [insert amount]       [insert amount]         [insert amount]
5. Funding Target
     Attainment
     Percentage
     (2d)/(3)        [insert              [insert                 [insert
                    percentage]          percentage]             percentage]

(Instructions: Report Valuation Date entries in accordance with section 303(g)(2) of ERISA. Report Total Plan Assets in accordance with section 303(g)(3) of ERISA. Report credit balances (i.e., funding standard carryover balance and prefunding balance) in accordance with section 303(f) of ERISA. Report Net Plan Assets, Plan Liabilities (i.e., funding target), and Funding Target Attainment Percentage in accordance with section 303(d)(2) of ERISA. The amount reported as “Plan Liabilities” should be the funding target determined without regard to at-risk assumptions, even if the plan is in at-risk status. At-Risk Liabilities are determined under section 303(i) of ERISA (taking into account section 303(i)(5) of ERISA). Report At-Risk Liabilities for any year covered by this chart in which the Plan was in “at-risk” status within the meaning of section 303(i) of ERISA, only if At-Risk Liabilities are greater than Plan Liabilities; otherwise insert “not applicable” in the appropriate box. Round off all amounts in this notice to the nearest dollar.)

Credit Balances

Credit balances were subtracted from the Plan's assets before calculating the funding target attainment percentage in the chart above. While pension plans are permitted to maintain credit balances (called “funding standard carryover balance” or “prefunding balance”) for funding purposes, such credits may not be taken into account when calculating a plan's funding target attainment percentage. A plan might have a credit balance, for example, if in a prior year an employer made contributions at a level in excess of the minimum level required by law. Generally, the excess payments are counted as “credits” and may be applied in future years toward the minimum level of contributions a plan sponsor is required by law to make to the plan in those years.

At-Risk Status

If a plan's funding target attainment percentage for the prior plan year is below a specified legal threshold, the plan is considered under law to be in “at-risk” status. “At-risk” plans are required to use actuarial assumptions that result in a higher value of plan liabilities and, consequently, require more funding by the employer. For example, plans in “at-risk” status are required to assume that all workers eligible to retire in the next 10 years will do so as soon as they can, and that they will take their distribution in whatever form would create the highest cost to the plan, without regard to whether those workers actually do so. The Plan has been determined to be in “at-risk” status in [enter year or years covered by the chart above]. The increased liabilities to the Plan as a result of being in "at-risk" status are reflected in the At-Risk Liabilities row in the chart above.

(Instructions: Include the preceding discussion, entitled At-Risk Status, only in the case of a plan required to report At-Risk Liabilities.)

Fair Market Value of Assets

Asset values in the chart above are actuarial values, not market values. Market values tend to show a clearer picture of a plan's funded status as of a given point in time. However, because market values can fluctuate daily based on factors in the marketplace, such as changes in the stock market, pension law allows plans to use actuarial values for funding purposes. While actuarial values fluctuate less than market values, they are estimates. As of [enter the last day of the Plan Year], the fair market value of the Plan's assets was [enter amount]. On this same date, the Plan's liabilities were [enter amount].

(Instructions: Insert the fair market value of the plan's assets as of the last day of the plan year. You may include contributions made after the end of the plan year to which the notice relates and before the date the notice is timely furnished but only if such contributions are attributable to such plan year for funding purposes. A plan's liabilities as of the last day of the plan year are equal to the present value, as of the last day of the plan year, of benefits accrued as of that same date. With the exception of the interest rate assumption, the present value should be determined using assumptions used to determine the funding target under section 303. The interest rate assumption is the rate provided under section 4006(a)(3)(E)(iv), but using the last month of the year to which the notice relates rather than the month preceding the first month of the year to which the notice relates.)

Participant Information

The total number of participants in the plan as of the Plan's valuation date was [insert number]. Of this number, [insert number] were active participants, [insert number] were retired or separated from service and receiving benefits, and [insert number] were retired or separated from service and entitled to future benefits.
Funding & Investment Policies
The law requires that every pension plan have a procedure for establishing a funding policy to carry out the plan objectives. A funding policy relates to the level of contributions needed to pay for promised benefits. The funding policy of the Plan is [insert a summary statement of the Plan's funding policy].

Once money is contributed to the Plan, the money is invested by plan officials called fiduciaries. Specific investments are made in accordance with the Plan's investment policy. Generally speaking, an investment policy is a written statement that provides the fiduciaries who are responsible for plan investments with guidelines or general instructions concerning various types or categories of investment management decisions. The investment policy of the Plan is [insert a summary statement of the Plan's investment policy].

In accordance with the Plan's investment policy, the Plan's assets were allocated among the following categories of investments, as of the end of the Plan Year. These allocations are percentages of total assets: Asset Allocations Percentage 1. Interest-bearing cash 2. U.S. Government securities 3. Corporate debt instruments (other than employer securities): Preferred All other 4. Corporate stocks (other than employer securities): Preferred Common 5. Partnership/joint venture interests 6. Real estate (other than employer real property) 7. Loans (other than to participants) 8. Participant loans 9. Value of interest in common/collective trusts 10. Value of interest in pooled separate accounts 11. Value of interest in master trust investment accounts 12. Value of interest in 103-12 investment entities 13. Value of interest in registered investment companies (e.g., mutual funds) 14. Value of funds held in insurance co. general account (unallocated contracts) 15. Employer-related investments: Employer Securities Employer real property 16. Buildings and other property used in plan operation 17. Other

Asset Allocations Percentage

1. Interest-bearing cash
                                                                   ----------
2. U.S. Government securities
                                                                   ----------
3. Corporate debt instruments (other than employer securities):
     Preferred
                                                                   ----------
     All other
                                                                   ----------
4. Corporate stocks (other than employer securities):
     Preferred
                                                                   ----------
     Common
                                                                   ----------
5. Partnership/joint venture interests
                                                                   ----------
6. Real estate (other than employer real property)
                                                                   ----------
7. Loans (other than to participants)
                                                                   ----------
8. Participant loans
                                                                   ----------
9. Value of interest in common/collective trusts
                                                                   ----------
10. Value of interest in pooled separate accounts
                                                                   ----------
11. Value of interest in master trust investment accounts
                                                                   ----------
12. Value of interest in 103-12 investment entities
                                                                   ----------
13. Value of interest in registered investment companies
      (e.g., mutual funds)
                                                                   ----------
14. Value of funds held in insurance co. general account
      (unallocated contracts)
                                                                   ----------
15. Employer-related investments:
      Employer Securities
                                                                   ----------
      Employer real property
                                                                   ----------
16. Buildings and other property used in plan operation
                                                                   ----------
17. Other
                                                                   ----------
Events with Material Effect on Assets or Liabilities

Federal law requires the plan administrator to provide in this notice a written explanation of events, taking effect in the current plan year, which are expected to have a material effect on plan liabilities or assets. For the plan year beginning on [insert beginning of plan year for year after plan year to which notice relates] and ending on [insert end of plan year for year after plan year to which notice relates], the following events are expected to have such an effect: [insert explanation of any plan amendment, scheduled benefit increase or reduction, or other known event taking effect in the current plan year and having a material effect on plan liabilities or assets for the year, as well as a projection to the end of the current plan year of the effect of the amendment, scheduled increase or reduction, or event on plan liabilities].

(Instructions: Include the preceding discussion, entitled Events with Material Effect on Assets or Liabilities, only if applicable.)

Right to Request a Copy of the Annual Report

A pension plan is required to file with the US Department of Labor an annual report (i.e., Form 5500) containing financial and other information about the plan. Copies of the annual report are available from the US Department of Labor, Employee Benefits Security Administration's Public Disclosure Room at 200 Constitution Avenue, NW, Room N-1513, Washington, DC 20210, or by calling 202.693.8673. Or you may obtain a copy of the Plan's annual report by making a written request to the plan administrator. [If the Plan's annual report is available on an Intranet web site maintained by the plan sponsor (or plan administrator on behalf of the plan sponsor), modify the preceding sentence to include a statement that the Form also may be obtained through that web site and include the web site address.]

Summary of Rules Governing Termination of Single-Employer Plans

Employers can end a pension plan through a process called “plan termination.” There are two ways an employer can terminate its pension plan. The employer can end the plan in a “standard termination” but only after showing the PBGC that the plan has enough money to pay all benefits owed to participants. The plan must either purchase an annuity from an insurance company (which will provide you with lifetime benefits when you retire) or, if your plan allows, issue one lump-sum payment that covers your entire benefit. Before purchasing your annuity, your plan administrator must give you advance notice that identifies the insurance company (or companies) that your employer may select to provide the annuity. The PBGC's guarantee ends when your employer purchases your annuity or gives you the lump-sum payment.

If the plan is not fully-funded, the employer may apply for a distress termination if the employer is in financial distress. To do so, however, the employer must prove to a bankruptcy court or to the PBGC that the employer cannot remain in business unless the plan is terminated. If the application is granted, the PBGC will take over the plan as trustee and pay plan benefits, up to the legal limits, using plan assets and PBGC guarantee funds.

Under certain circumstances, the PBGC may take action on its own to end a pension plan. Most terminations initiated by the PBGC occur when the PBGC determines that plan termination is needed to protect the interests of plan participants or of the PBGC insurance program. The PBGC can do so if, for example, a plan does not have enough money to pay benefits currently due. Benefit Payments Guaranteed by the PBGC

If a single-employer pension plan terminates without enough money to pay all benefits, the PBGC will take over the plan and pay pension benefits through its insurance program. Most participants and beneficiaries receive all of the pension benefits they would have received under their plan, but some people may lose certain benefits that are not guaranteed.

The PBGC pays pension benefits up to certain maximum limits. The maximum guaranteed benefit is [insert amount from PBGC web site, www.pbgc.gov, applicable for the current plan year] per month, or [insert amount from PBGC web site, www.pbgc.gov, applicable for the current plan year] per year, payable in the form of a straight life annuity, for a 65-year-old person in a plan that terminates in [insert current plan year]. The maximum benefit may be reduced for an individual who is younger than age 65. [If the Plan does not provide for commencement of benefits before age 65, you may omit this sentence.] The maximum benefit will also be reduced when a benefit is provided to a survivor of a plan participant.

The PBGC guarantees “basic benefits” earned before a plan is terminated, which includes [Include the following guarantees that apply to benefits available under the Plan.]:

pension benefits at normal retirement age;

most early retirement benefits;

annuity benefits for survivors of plan participants; and

disability benefits for a disability that occurred before the date the plan terminated.

The PBGC does not guarantee certain types of benefits [Include the following guarantee limits that apply to the benefits available under the Plan.]:

The PBGC does not guarantee benefits for which you do not have a vested right when a plan terminates, usually because you have not worked enough years for the company.

The PBGC does not guarantee benefits for which you have not met all age, service, or other requirements at the time the plan terminates.

Benefit increases and new benefits that have been in place for less than one year are not guaranteed. Those that have been in place for less than five years are only partly guaranteed.

Early retirement payments that are greater than payments at normal retirement age may not be guaranteed. For example, a supplemental benefit that stops when you become eligible for Social Security may not be guaranteed.

Benefits other than pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay, are not guaranteed.

The PBGC generally does not pay lump sums exceeding $5,000.

Even if certain benefits are not guaranteed, participants and beneficiaries still may receive some of those benefits from the PBGC depending on how much money the terminated plan has and how much the PBGC collects from the employer.

Corporate Information on File with PBGC

The law requires a plan sponsor to provide the PBGC with financial information about the sponsor and the plan under certain circumstances, such as when the funding target attainment percentage of the plan (or any other pension plan sponsored by a member of the sponsor's controlled group) falls below 80 percent (other triggers may also apply). The sponsor of the Plan, [enter name of plan sponsor], and each member of its controlled group, if any, was subject to this requirement to provide corporate financial information and plan actuarial information to the PBGC. The PBGC uses this information for oversight and monitoring purposes.

(Instructions: Insert the preceding paragraph entitled “Corporate Information on File with PBGC” only if a reporting under section 4010 of ERISA was required for the Plan Year.)

Where to Get More Information

For more information about this notice, you may contact [enter name of plan administrator and if applicable, principal administrative officer], at [enter phone number and address and insert email address if appropriate]. For identification purposes, the official plan number is [enter plan number] and the plan sponsor's employer identification number or “EIN” is [enter EIN of plan sponsor]. For more information about the PBGC and benefit guarantees, go to PBGC's Web site, www.pbgc.gov, or call PBGC toll-free at 1.800.400.7242 (TTY/TDD users may call the Federal relay service toll free at 1.800.877.8339 and ask to be connected to 1.800.400.7242).

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This Employee Benefits article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: Reminder: New Document Requirements for U.S., Canadian and Bermudian Citizens at U.S. Land and Sea Ports Effective June 1, 2009

Michael Hawkes — Wed, 08 Apr 2009 16:37:00 -0500

Commencing June 1, 2009, all travelers entering the United States at land and sea ports will be required to present an approved travel document establishing identity and citizenship to enter the United States. This change primarily affects citizens of the United States, Canada and Bermuda who currently may be admitted at U.S. land and sea ports by presenting a government-issued photo identity document and a second document establishing citizenship.

Effective June 1, 2009, approved travel documents for these individuals will include the following:

The requirement to present an approved travel document at land and sea ports as of June 1, 2009 is mandated by the Western Hemisphere Travel Initiative (WHTI), a joint program of the U.S. Department of Homeland Security and the U.S. Department of State. This requirement finalizes implementation of the second phase of the WHTI. The requirement to present an approved travel document establishing both identity and citizenship has been in effect for air travelers since January 23, 2007.

For U.S., Canadian and Bermudian travelers who have yet to obtain a WHTI-compliant document, the interim “Two Document Option” (discussed in our Immigration Alert “New Procedures for U.S. and Canadian Citizens at U.S. Land and Sea Ports Effective January 31, 2008” will only remain an option until May 31, 2009. As of June 1, 2009, one of the WHTI-compliant documents referenced above will be required for admission to the United States. U.S. Customs and Border Protection (CBP) urges travelers to obtain an approved WHTI document now in order to avoid delays at ports of entry as of June 1, as CBP officers attempt to verify citizenship and identity.

Other Travelers

For additional information, you may visit the U.S. Customs and Border Protection website at http://www.cbp.govand http://www.getyouhome.gov/html/eng_map.html.

If you have any questions about this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Required Use of Revised Form I-9 Takes Effect Today

Michael Hawkes — Fri, 03 Apr 2009 16:43:00 -0500

U.S. employers are reminded that, effective today, all employers are required to use the revised Form I-9 with revision date “Rev. 02/02/09” appearing in the lower right-hand corner of the form. Previous versions of the Form I-9 may no longer be used. The new Form I-9 is available at http://www.uscis.gov/files/form/i-9.pdf.

On December 17, 2008, U.S. Citizenship and Immigration Services (USCIS) published an interim final rule amending its regulations governing Form I-9 Employment Eligibility Verification. Implementation of the rule was subsequently postponed to provide the Department of Homeland Security and the Obama Administration an opportunity to review the rule. The rule is now in effect. The major change in the employment eligibility verification process is that, effective today, employers may no longer accept expired documents to verify employment authorization and identity on the Form I-9. Employers may only accept unexpired documents. Documents that do not contain an expiration date, such as Social Security cards, are deemed to be unexpired.

The rule also makes changes to the list of acceptable documents that evidence both identity and employment authorization, also known as List A documents, as follows:

Adding as a List A document a temporary I-551 printed notation on a machine-readable immigrant visa;
Adding as a List A document a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association; and,
Eliminating from List A obsolete and now-expired documents (Forms I-688, I-688A, and I-688B).
For more information, please see our Immigration Alert “USCIS Announces Revision of Form I-9” available here. Additional information is also available at http://www.uscis.gov/portal/site/uscis/menuitem... The Form I-9 “Handbook for Employers” has also been updated, and is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

If you have any questions about Form I-9 Employment Eligibility Verification, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Employee Benefits Alert: COBRA Premium Assistance/ Extended Election Period

Michael Hawkes — Mon, 30 Mar 2009 17:31:00 -0500

Most employers are well aware that the federal government has implemented a program to provide a 65% subsidy for health insurance premiums under COBRA to those who were involuntarily terminated from employment between September 1, 2008 and December 31, 2009. The Department of Labor (DOL) just issued four model notices (described below) to be used by employers when fulfilling the notice requirements under the new COBRA Premium Assistance/Extended Election Period.

Each of the model notices includes the forms the DOL envisions are necessary for the individuals to make the necessary subsidy application and/or elections based on their circumstances. While these forms are not mandatory, they will likely be considered a safe harbor for employers provided reasonable care is taken in evaluating the forms for any necessary modifications based on the employer’s particular facts and circumstances. It is important to review the forms carefully to make any necessary edits and to determine the individuals to whom each specific notice should be sent.

Also, to supplement the model forms provided by the DOL, we have drafted two additional documents that employers may find useful in making the necessary notifications. The first is a sample cover letter to be used when sending out the applicable DOL COBRA notice. This sample cover letter is designed to summarize the information in the notices. The second document is a sample waiver form for individuals who decide to waive their rights to the subsidy.

Although not specifically addressed in any of the DOL model notices, it is important for employers to remember that former employees and their dependents that have an overlapping election period (the traditional COBRA election period overlaps with the Extended Election Period) may have the choice of effective dates for COBRA coverage; either the date coverage was lost due to the qualifying event or the date coverage is effective based on the Extended Election Period.

EMPLOYERS SUBJECT TO STATE "MINICOBRA" INSURED PLAN REQUIREMENTS

For employers who have fully insured health plans that are NOT subject to the federal COBRA requirements, the DOL has drafted a model form (the Model Alternative Notice discussed below) for use by the insurance carriers. It is important that each employer who may be affected by this requirement contact their insurance carrier to determine how the carrier will be implementing these requirements, including the recovery of the premium assistance tax credit.

DESCRIPTION OF DOL MODEL FORMS

1. Model General Notice Full Version – Every plan participant receives a basic COBRA notice, regardless of what qualifying event occurred. Any employee who has a qualifying event from now to the end of 2009 should receive the new combined form called the “general notice.” (This form includes all the information that was previously communicated in COBRA notices, plus the required information on the new subsidy program.)

2. Model General Notice Abbreviated Version - Anyone who already received the basic COBRA notice after September 1, 2008 and who DID elect COBRA coverage should be sent the “abbreviated notice” now. This goes to all who had a qualifying event, even if you believe that they were not involuntarily terminated.

3. Model Notice in Connection with Extended Election Periods - Anyone who previously received a basic COBRA notice, but who declined coverage or who accepted coverage then let it lapse, receives the notice of “extended” election rights.

4. Model Alternative Notice – For use where coverage is subject to state COBRA (not Federal COBRA) requirements during the period that begins with September 1, 2008 and ending with December 31, 2009.

MODIFYING THE NOTICES

Employers will need to add some customized information – for example, plan contact information - to the DOL model notices and forms. Employers are permitted (and may want) to customize other sections such as reformatting the COBRA Continuation Coverage Election Form.

Please contact Ken Sacks or Meredith Saccardi if you have any questions regarding these new COBRA requirements or if you would like us to assist you in customizing the new COBRA Continuation Notices.

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Employee Benefits Alert: New Enrollment Options Under the Children's Health Insurance Program Reauthorization Act of 2009

Michael Hawkes — Thu, 26 Mar 2009 17:35:00 -0500

The Children’s Health Insurance Program Reauthorization Act of 2009 (the “Act”) was enacted February 4, 2009. The Act requires group health plans and insurance carriers to implement new enrollment options, provide notice to employees of potential opportunities under state Medicaid and state Children’s Health Insurance Programs (“CHIP”) and provide disclosure to the state, upon request, regarding group health plan coverage.

New Enrollment Options

The group health plan or insurance carrier must permit an employee (or dependant) who is eligible to enroll, but is not enrolled in the plan, to enroll for coverage if: (1) the employee (or dependant) who was covered under state Medicaid or a state CHIP program terminated coverage under the state program because they are no longer eligible; or (2) the employee (or dependant) becomes eligible for premium assistance under state Medicaid or the state CHIP program. The employee must request coverage no later than 60 days after the date eligibility is lost or the date the employee (or dependent) is determined to be eligible for state premium assistance.

Plans must provide the new enrollment options as of April 1, 2009.

Notice to Employees

Employers must provide each employee with notice which will inform the employees of the potential opportunities for state Medicaid and the state CHIP program, how the employees can contact the appropriate agency, and how to apply for assistance. The employer may provide the notice as part of the new benefits package given to new hires, concurrently with materials provided to the employees in connection with the open enrollment and election process conducted under the plan, or with the summary plan description.

The Department of Health and Human Services and the Department of Labor have been charged with drafting state specific model notices for employers to provide to their employees. Employers are required to provide the model notices beginning with the first day of the first plan year after the model notices are issued. If regulations with the model notices are issued before the end of 2009, calendar year plans will be required to provide the new notice by January 1, 2010. If regulations are issued in January or February 2010, calendar year plans will have until January 1, 2011.

Disclosure

Upon request by the state, the administrator of a group health plan must disclose information about the benefits available under the group health plan with sufficient specificity as to allow the state to determine the cost-effectiveness of the state providing medical or child health assistance through premium assistance to purchase coverage under the group health plan

Once again the Department of Health and Human Services and the Department of Labor will be drafting a Model Disclosure Form. Plan administrators compliance with the disclosure requirements must begin no later than the first plan year following the issuance of the model disclosure forms.

Recommendations

First, plan documents will need to be amended to provide for the new enrollment options. Self insured plans will also want to contact their stop loss carrier to request an appropriate amendment to the stop loss contract. Second, although the summary of material modification does not have to be distributed until July 31, 2010 for calendar year plans (210 days after the close of the plan year in which the enrollment plan change was made) it would be good form for employers to do so as soon as possible.

Model notices are scheduled to be issued within one year of the enactment of the Act (i.e. by February 4, 2010). If the model notice is issued by the end of 2009, employers with calendar year plans will have to provide notice to employees as early as January 1, 2010.

The timeline for the issuance of the model disclosure forms is slightly longer, therefore it is likely the form will not be published until 2010 and therefore a plan administrator for a calendar year plan should be prepared to provide model disclosures by January 1, 2011.

Please contact us if you have any questions at telephone 212-688-5151 or email fwanthony@gibney.com.

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Immigration Alert: April 2009 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 17 Mar 2009 17:38:00 -0500

The U.S. Department of State (DOS) has published the April 2009 Visa Bulletin. In the employment-based third preference (EB-3) category, priority dates advanced slightly for Chinese and Indian nationals, but retrogressed for Worldwide, Mexican and Filipino nationals.

Priority cut-off dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals is February 15, 2005 and the EB-2 priority cut-off date for Indian nationals is February 15, 2004, also unchanged from the March 2009 Visa Bulletin. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the EB-3 professional and skilled worker category, the priority cut-off dates for Worldwide, Mexican and Filipino nationals retrogressed to March 1, 2003. The EB-3 cut-off date for Chinese nationals advanced to March 1, 2003, and the cut-off date for Indian nationals in this category advanced to November 1, 2001. In the EB-3 “other worker” category, priority cut-off dates retrogressed for all nationals, to March 1, 2001.

The full text of the April 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4438.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Partner Angelo Mazza Interviewed by Sky Radio: The Problem of Counterfeit Goods and the Importance of Protecting Your Brand

Wed, 11 Mar 2009 15:24:00 -0500

Mr. Mazza discusses the widespread problem of counterfeiting, the important work of the International Anti-Counterfeiting Coalition (IACC) and strategies for protecting your brand.

Click on the image below to listen to Sky Radio's Interview with IP Partner Angelo Mazza:

Employee Benefits Alert: Worker, Retiree and Employer Recovery Act

Michael Hawkes — Tue, 10 Mar 2009 17:43:00 -0500

The Workers, Retiree and Employer Recovery Act (the “Act”), H.R. 7327, enacted December 23, 2008, makes several notable changes to the Pension Protection Act (“PPA”).

NON SPOUSE BENEFICIARY ROLLOVERS

For plan years beginning after 2009, qualified retirement plans must offer non-spouse beneficiaries the opportunity to roll over an inherited plan into IRAs which have been set up to receive the rollover on the beneficiaries’ behalf and to provide direct rollover notice as a condition to qualification. The transfer is treated as an eligible rollover distribution for purposes of Internal Revenue Code section 402(c).

SUSPENSION OF REQUIRED MINIMUM DISTRIBUTIONS FOR 2009

No minimum distribution is required for calendar year 2009 from employer provided qualified retirement plans and individual retirement accounts and annuities. The relief applies to lifetime distributions as well as after death distributions to beneficiaries.

Generally, if an individual were to turn 70 ½ in 2009, his distribution for 2009 would have to be made by April 2010. However, under this new provision no distribution will have to be made until the end of the 2010 calendar year.

An individual who turned 70 ½ in 2008 would still have to take a required minimum distribution by April 2009.

EXTENSION OF SHORTFALL TRANSITION RULES

Under the PPA, when a plan’s funding target for the year exceeds the plan’s assets the plan has a funding shortfall base which must be amortized. However, the PPA created a transition rule where there is no funding shortfall base which would need to be amortized if the plan’s funding target is at least equal to an applicable percentage of the plan’s assets – 92% for 2008, 94% for 2009 and 96% for 2010. In order to have been eligible for the transition rule the plan had to have met the applicable percentage in the prior year.

Anticipating plans inability to meet the applicable percentages due to the failing economy, the Act amends this transition rule. Now, the transition rule is available to plans even if they did not meet the previous year’s applicable percentage. Therefore, if a plan was funded 91% for 2008, now the plan can continue to use the transition rule for 2009 and only needs to be 94% funded rather than 100%.

TEMPORARY RELIEF FROM THE LIMITATION ON BENEFIT ACCRUALS

The PPA required a plan which had a severe funding shortfall to freeze benefit accruals and provide written notice to all plan participants and beneficiaries. A plan had a severe funding shortfall if the ratio of the plan’s assets to the plan’s funding target for the year was less than 60%.

The Act provides relief to plans with a first plan year beginning between October 1, 2008 and September 30, 2009 and allows plans to use the higher of the ratio from the previous or current year to determine whether there is a severe funding shortfall.

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Partner Angelo Mazza to Present on Best (and Worst) Practices for Protecting Your Brand Online

Fri, 06 Mar 2009 17:46:00 -0600

Event Date and Time:

Tuesday, March 17, 2009 10am PT / 1pm ET 5pm UK / 6pm CET

Webinar meeting description:

In today’s economy, it’s not just budgets that are under attack—it’s brands, too.

Increasingly, cybercriminals are leveraging famous brands to drive click fraud, manipulate SEO results, divert Web traffic, and sell counterfeit goods, among other nefarious activities. As a result, marketers are experiencing wasted ad spend, lost revenues and most importantly, erosion of brand equity and customer trust.

As you’re being asked to do more with less, you can’t afford to let these fraudsters diminish your online ROI and damage the value you’ve built in your brand. Learn how one brand protection expert, representing many of the world’s top luxury brands, effectively addresses these challenges and protects famous brands online.

During this one-hour American Marketing Association webinar, you’ll hear how:

--Cybercriminals hijack brands and use marketing tactics such as paid search and SEO to divert your prospects & customers
--Leading marketers are defending their brand integrity and customer loyalty by preventing brand abuse with proven strategies
--You can increase revenues & profit margins by clamping down on brand abuse, unauthorized sales and counterfeit goods—enabling customers to buy more confidently from reputable sources

Also, find out how other marketers are tackling these challenges. The brand protection experts from MarkMonitor will present their latest market research on brand abuse—including the latest stats and trends in online counterfeit, piracy and gray market sales.

Featured speakers:
Angelo Mazza, Partner, Gibney, Anthony & Flaherty, LLP
Frederick Felman, Chief Marketing Officer, MarkMonitor
Alli Libb, Moderator, American Marketing Association

Immigration Alert: H-1B Cap Season Approaching

Michael Hawkes — Tue, 24 Feb 2009 17:57:00 -0600

April 1, 2009 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2010 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to consider their H-1B cap cases now, and initiate the preparation of cap cases as soon as possible to ensure timely filing of cases.

Background
H-1B cap cases generally fall within two categories:

1) “Standard” Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1, as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)

2) U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.
Under rules implemented last year, if USCIS receives a sufficient number of petitions to reach the cap on any one of the first five business days of filing – this year, April 1 through April 7 – USCIS will include all petitions filed on all five days in a random selection process. If more than 20,000 U.S. advanced degree petitions are received in the first five days of filing, USCIS will first conduct the random selection process for these petitions. U.S. advanced degree petitions not selected in this process will then be placed in the pool of standard cap petitions, and a second random selection process will be conducted for this combined group of petitions.

Last year USCIS received nearly 163,000 H-1B cap-subject petitions during the first five business days of filing. Although it is anticipated that fewer H-1B cap cases will be filed this year due to the economic downturn, it is still projected that the number of petitions filed will exceed the number of visas available, again triggering the requirement for USCIS to conduct a computerized lottery to select cases for adjudication.

2009 Filing Dates

By USCIS regulation, the earliest date a petitioner may file a petition requesting cap subject FY 2010 H-1B employment commencing October 1, 2009, is April 1, 2009. This year, April 1 falls on a Wednesday, meaning that FY 2010 H-1B cap cases may be sent to USCIS via overnight delivery service on Tuesday, March 31, 2009 to ensure delivery to USCIS on April 1, 2009. Although cases received by USCIS up until April 7 will be eligible for the random selection process should the lottery again prove necessary, employers are strongly encouraged to file petitions by April 1 to ensure timely delivery of petitions to USCIS.

Steps to Take Now

To the extent feasible, employers should now attempt to identify their H-1B cap candidates. Employers are encouraged to gather supporting documentation including education credentials (degree certificates and transcripts) and all applicable status documentation, including I-20 documents and Employment Authorization Documents issued to foreign nationals currently in the United States in F-1 (student) status. This documentation, along the company’s job description and salary data, should be forwarded to counsel as soon as possible for the purpose of both evaluating and preparing the H-1B petition and evaluating alternative immigration strategies.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2010 annual cap. These include the following:

-- Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.

-- Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations and governmental research organizations are cap-exempt.

H-1B Restrictions for TARP Recipients

Pursuant to the American Recovery and Reinvestment Act of 2009, enacted and effective on February 17, 2009, companies that received funding under title I of the Emergency Economic Stabilization Act of 2008 (commonly referred to as “TARP fund recipients”) face additional restrictions on filing H-1B petitions. These restrictions may apply to some H-1B cap-subject petitions as well as some H-1B petitions described above that are not subject to the cap.

If you have any questions as to whether your company is subject to these new restrictions, or about H-1B cap filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: March 2009 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 10 Feb 2009 18:00:00 -0600

The U.S. Department of State (DOS) has published the March 2009 Visa Bulletin. Priority dates advanced slightly for Chinese and Indian nationals in the employment-based second preference (EB-2) category. In the employment-based third preference (EB-3) category, priority dates also advanced slightly for Chinese and Mexican nationals, but remained the same for Indian, Filipino and Worldwide nationals.

In the EB-2 category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals advanced from January 1, 2005 to February 15, 2005 and the EB-2 priority cut-off date for Indian nationals advanced from January 1, 2004 to February 15, 2004. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the EB-3 professional and skilled worker category, the priority cut-off dates for Worldwide and Filipino nationals remain at May 1, 2005, and the cut-off date for Indian nationals remains at October 15, 2001. The EB-3 professional and skilled worker cut-off date for Chinese nationals advanced to October 22, 2002, and the cut-off date for Mexican nationals advanced to August 15, 2003. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide and Filipino nationals – March 15, 2003; Indian nationals – October 15, 2001; Mexican nationals – March 15, 2003; and, Chinese nationals – October 22, 2002.

The full text of the March 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4427.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Implementation of New Form I-9 Postponed

Michael Hawkes — Mon, 02 Feb 2009 18:05:00 -0600

USCIS has postponed implementation of a rule requiring use of a new Form I-9 until April 3, 2009. The rule was set to take effect today but has been postponed to give the Department of Homeland Security and the Obama Administration an opportunity to review the rule further. In the interim, employers should continue using the current version of the Form I-9 dated “06/05/07.”

In addition to postponing implementation of the rule, USCIS has reopened the public comment period on the rule for 30 days, until March 4, 2009.

Background

On December 17, 2008, USCIS published a rule amending its regulations governing Form I-9 Employment Eligibility Verification. As currently written, once implemented, the rule would amend the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9. Employers would no longer be permitted to accept expired documents to verify employment authorization and identity on the Form I-9. Only unexpired documents would be acceptable. Documents that do not contain an expiration date, such as Social Security cards, would be deemed to be unexpired.

For more information, please see our Immigration Alert “USCIS Announces Revision of Form I-9” available here. Additional information is also available at http://www.uscis.gov/portal/site/uscis.

Gibney will continue to monitor developments with respect to final implementation of this rule and provide relevant updates. If you have any questions about Form I-9 Employment Eligibility Verification, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: Federal Contractor E-Verify Requirements Suspended until May 21, 2009

Michael Hawkes — Fri, 30 Jan 2009 18:09:00 -0600

As we previously reported, a lawsuit was filed by several groups challenging the validity of regulations requiring certain federal contractors to utilize the E-Verify system to verify work authorization of employees. As a result, on January 9, 2009, the U.S. Department of Justice (DOJ) agreed to suspend implementation of the regulations until February 20, 2009. The litigants, led by the U.S. Chamber of Commerce, have now announced that the implementation date will be pushed back further, to May 21, 2009.

The regulations at issue mandate that most federal contractors and subcontractors utilize an electronic employment eligibility verification system to verify work authorization for employees, and were initially set to take effect on January 15, 2009. If implemented, the regulations would require that certain federal contracts contain a clause requiring contractors to verify the work authorization of all new employees and certain existing employees assigned to the contract utilizing the E-Verify system. According to the U.S. Chamber of Commerce, the suspension of the regulations until May 21, 2009 is intended to give President Obama’s Administration an opportunity to review the regulations. Gibney will continue to monitor this matter and provide relevant updates, trainings and seminars regarding this and other worksite enforcement initiatives.

For additional details regarding the federal contractor regulation, please see Gibney’s Immigration Alerts “U.S. Department of Justice Delays Implementation of E-Verify Requirements for Federal Contractors” and “Final Regulations Published on E-Verify Requirements for Federal Contractors” .

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Practice Group Hosts February 26th Seminar on Navigating a Changing Landscape: Immigration and Workforce Planning

Thu, 29 Jan 2009 18:20:00 -0600

Our Immigration Practice Group is pleased to present a seminar on:

Navigating a Changing Landscape:
Immigration and Workforce Planning

Thursday, February 26, 2009
Continental Breakfast 8:00am – 8:30am
Seminar 8:30am – 10:00am
The Fairmont San Jose
170 S. Market Street
San Jose, CA 95113

Topics

Impact of Restructuring on Your Immigration Program
•Layoffs
•Permanent Residence Options
•Job Changes: Location, Salary & Duties

U.S. Department of Labor Updates
•New PERM Forms
•Audits
•Changes to LCA System

USCIS Updates
•H-1B Cap Season
•New Form I-9
•E-Verify

Global Mobility & Regional Updates
•EMEA
•Asia Pacific
•Americas

Presenters:

Stephen J.O. Maltby, Esq.
J. Claire Razzolini, Esq.
Minal A. Shah, Esq.
Deborah B. Davy, Esq.

If you are interested in attending the seminar, please send your name and contact information to seminars@gibney.com.

Immigration Alert: New Procedures at U.S. Ports of Entry for Non-Citizens

Michael Hawkes — Tue, 27 Jan 2009 18:22:00 -0600

Expansion of US-VISIT

Under the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, the Department of Homeland Security (DHS) collects biometric data from certain travelers entering the United States in order to verify the individual’s identity and to perform security checks. Under revised federal regulations effective January 18, 2009, many individuals, including permanent residents, not previously subject to US-VISIT procedures will be required to provide biometrics (digital fingerprints and a photograph) upon entry to the U.S.

Previously, only travelers with certain nonimmigrant visas or those traveling without visas pursuant to the Visa Waiver Program (VWP) were subject to US-VISIT procedures. Under the new rule, nearly all non-U.S. citizens will be required to provide biometrics upon entry.

The following is a list of travelers who are newly required to undergo US-VISIT procedures as of January 18, 2009:

- Lawful Permanent Residents of the United States (LPRs);
Persons entering the United States who seek admission on immigrant visas;

- Persons entering the United States who seek admission as refugees and/or asylees;

- Canadian citizens who are required to obtain a Form I-94 (Arrival-Departure Record) upon entry (i.e. those applying for admission in the following nonimmigrant classifications: C, D, F, H, I, J, L, M, O, P, Q-1, Q-3, R, S, T, TN) or who require a waiver of inadmissibility to enter the United States;

- Persons paroled into the United States; and

- Persons applying for admission under the Guam VWP.

The following is additional information regarding the expansion of US-VISIT procedures:

- Canadian citizens applying for admission to the United States in B-1/B-2 status as visitors for business or pleasure are not required to enroll in US-VISIT at this time, unless the individual requires a waiver of inadmissibility to enter the United States.

- H-1B visa holders will follow existing protocols and will be screened through US-VISIT when applying for a new multiple-entry Form I-94 or when referred to secondary inspection for other reasons.

- At seaports, LPRs returning from a “closed” loop cruise (cruises that begin and end at the same port in the United States) will be exempt from US-VISIT processing. LPRs returning from an “open” cruise will be subject to US-VISIT processing.

- At land border ports of entry, non-U.S. citizens entering or re-entering the United States, including LPRs and all other non-U.S. citizens included in this final rule, will be processed at the discretion of CBP officers, and will now be subject to US-VISIT only if they are referred to secondary inspection.

- Non-U.S. citizens who seek admission with Border Crossing Cards and who do not have a Form I-94 will still go through US-VISIT procedures, at the discretion of CBP officers.

Certain non-U.S. citizens are exempt from US-VISIT requirements, including those under 14 or over 79 years of age and holders of certain diplomatic and official visas (e.g. A, G and NATO). Individuals subject to the National Security Entry-Exit Registration System (NSEERS) must undergo separate procedures under that system.

New Biometric Technology

DHS also announced that upgraded biometric technology is in place at major United States ports of entry. DHS will utilize this upgraded technology to obtain ten (10) fingerprints from travelers who are subject to US-VISIT when seeking admission to the United States. Previous systems only collected two fingerprints. International visitors who are subject to US-VISIT procedures should expect to encounter the new upgrade when they enter the United States. The DHS has stated that “collecting 10 fingerprints increases fingerprint matching accuracy and reduces the possibility that the system will misidentify an international visitor.”

Additional information regarding US-VISIT is available at http://www.dhs.gov/xtrvlsec/programs/content_multi_image_0006.shtm

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Employee Benefits Alert: Recent Changes to Self Insured Medical Plans

Michael Hawkes — Thu, 22 Jan 2009 18:25:00 -0600

Recently there have been a number of changes in the law effecting self-insured health benefits. Some of the notable changes are as follows.

Mental Health Parity

The new Economic Stabilization Act (the “Act”), introduced new law which requires parity in coverage between mental and physical medical coverage. The Act requires benefit plans which offer medical/surgical benefits and mental health/substance abuse benefits to have equality between deductibles, co-payments, co-insurance, out of network coverage and limits on the scope and duration of treatment.

Calendar year plans must be in compliance with this provision of the Act by January 1, 2010. Employers with fifty or fewer employees are exempt from the new law.

Defining a Dependent

Under the Working Families Tax Relief Act of 2004, a non-custodial parent was only allowed to claim a child as a dependent if the custodial parent released a claim to the exemption. Now, under Revenue Ruling 2008-48 both parents can claim an exemption for the child if the dependent: (1) receives over half of his or her support during the calendar year from the parents, (2) is in the custody of one or both of the parents for more than half of the calendar year, (3) is otherwise a qualifying child or relative of the child’s parents.

This Revenue Ruling was effective August 18, 2008 and can be applied to tax years beginning after December 31, 2004, so long as the statute of limitations did not run on the claim for refund prior to August 18, 2008.

Your company may see an increase in the enrollment of dependants as a result of the new definition. Additionally, depending on the terms of your company’s benefits plan, you may want to amend the plan to comply with the new definition, and/or address how the plan will deal with a dependant with double coverage.
Maternity Leave

New regulation, 73 FR 62410, issued October 20, 2008, mandates group health plans and insurers cover hospital stays of at least forty-eight hours for new mothers and their infants, increased to ninety-six hours for births by caesarean section. The regulations further state that plans which require notice of pregnancy for coverage, the plan must waive or modify the notice requirement for individuals who enroll in the plan after the notice was required to be made.

Group health plans must comply with the new regulations by the first day of the plan year beginning on or after January 1, 2009.

Genetic Non-Discrimination

The Genetic Information Nondiscrimination Act (“GINA”), enacted May 21, 2008, prevents employers and group health plans from discriminating on the basis of genetic information. GINA prohibits enrollment restrictions and a premium adjustment based on genetic information and prevents health plans and insurers from requesting or requiring a participant to take genetic tests. GINA imposes an initial penalty of $100 a day for the improper use of genetic information, which is increased to $2,500 a day if the impropriety is not corrected.

GINA is effective eighteen months after enactment, or November 2010.

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Immigration Alert: February 2009 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 15 Jan 2009 18:28:00 -0600

The U.S. Department of State (DOS) has published the February 2009 Visa Bulletin. Priority dates advanced slightly for Chinese and Indian nationals in the employment-based second preference (EB-2) category. In the employment-based third preference (EB-3) category, priority dates also advanced slightly for Chinese and Mexican nationals, but remained the same for Indian, Filipino and Worldwide nationals.

In the EB-2 category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals advanced from July 8, 2004 to January 1, 2005 and the EB-2 priority cut-off date for Indian nationals advanced from July 1, 2003 to January 1, 2004. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the EB-3 professional and skilled worker category, the priority cut-off dates for Worldwide and Filipino nationals remain at May 1, 2005, and the cut-off date for Indian nationals remains at October 15, 2001. The EB-3 professional and skilled worker cut-off date for Chinese nationals advanced to October 1, 2002, and the cut-off date for Mexican nationals advanced to April 1, 2003. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide and Filipino nationals – March 15, 2003; Indian and Mexican nationals – October 15, 2001; and, Chinese nationals – October 1, 2002.

The full text of the February 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4417.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: U.S. Department of Justice Delays Implementation of E-Verify Requirements for Federal Contractors

Michael Hawkes — Wed, 14 Jan 2009 18:31:00 -0600

In response to a lawsuit filed by several groups challenging the validity of regulations requiring certain federal contractors to utilize the E-Verify system to verify work authorization of employees, the U.S. Department of Justice (DOJ) has agreed to suspend implementation of the regulations until February 20, 2009.

Background: Federal Contractor Regulation

In June 2008 President Bush signed an Executive Order mandating that federal contractors utilize an electronic employment eligibility verification system to verify work authorization for employees. Final regulations implementing the order were published on November 14, 2008 and were set to take effect on January 15, 2009. The final regulations require that certain federal contracts contain a clause requiring contractors to verify the work authorization of all new employees and certain existing employees assigned to the contract utilizing the E-Verify system. Existing federal contracts and subcontracts are not subject to the regulations unless and until the contract is modified to include an E-Verify clause. A contractor or subcontractor only becomes subject to these E-Verify requirements upon signing a federal contract that contains the relevant E-Verify clause after the effective date of the regulation, currently delayed until February 20, 2009.

For additional details regarding the federal contractor regulation, please see Gibney’s Immigration Alert published on November 14, 2008, “Final Regulations Published on E-Verify Requirements for Federal Contractors” .

Legal Challenge

On December 23, 2008, the U.S. Chamber of Commerce, the Society for Human Resource Management and other industry groups filed a lawsuit seeking an injunction to stop implementation of the rule. The lawsuit, Chamber of Commerce of the United States of America, et al. v. Chertoff, et al., is currently pending in the U.S. District Court for the District of Maryland. The lawsuit challenges the final rule on several grounds, including the administrative burden and costs imposed on employers associated with implementation of the regulations. The lawsuit seeks to have the rule declared invalid. The DOJ has agreed to suspend implementation of the rule until February 20, 2009 while litigation continues.

Gibney strongly encourages employers who believe they may be subject to the federal contractor regulations discussed above as well as employers considering voluntary registration in E-Verify to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Gibney will continue to provide relevant updates, trainings and seminars regarding worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Attorney Walter-Michael Lee to Speak at New York Comic Con (NYCC)

Tue, 13 Jan 2009 18:37:00 -0600

New York Comic Con will take place February 6 – 8 at the Jacob K. Javits Center in New York City. Tickets and programming information are accessible at www.nycomiccon.com

Session One:

How to Safeguard Your or Your Company's Intellectual Property

You or your company have created the ultimate spandex-clad protector, but how do you protect him or her from being ripped off? Through this seminar, you will learn how to protect the intellectual property in your work and ideas and discover how to avoid costly infringement lawsuits over copyrights, trademarks, rights of publicity, and other sensitive legal areas. This seminar will further discuss methods of protection for you or your company, fair use, protecting rights in ideas, combating counterfeiting and piracy, and litigation methods and strategies.

This seminar is conducted by attorneys Walter-Michael Lee from the IP Practice Group of Gibney, Anthony & Flaherty, LLP, Thomas A. Crowell, IP and Entertainment Law practitioner with The Law Office of Thomas A. Crowell, LLC, and Sheafe B. Walker, Employment Law practitioner with The Law Office of Thomas A. Crowell, LLC.

Friday - 11:15 AM to 12:30 PM - Panel Room 8

Session Two:

Intellectual Property 101

Your superhero has the power to bend time, space, and reality… but can he or she land a licensing deal? And just how do you protect your rights? Artists often spend years creating winning characters or works, only to lose at the bargaining table because they haven't prepared for the deal or have failed to properly protect their rights. In this seminar, you'll learn to prepare the legal aspects of your creations for they're ready to be sold and also how to protect your works. Scheduled topics to be discussed include an overview of copyrights, trademarks, and rights in ideas, the importance and how to register your copyrights and trademarks, what to do if someone is improperly using your works or ideas, non-disclosure agreements, work for hire relationships, the pitfalls of joint authorship, employment contracts, and negotiating licensing agreements.

This seminar will be conducted by attorneys Thomas A. Crowell, an IP and Entertainment Law practitioner with The Law Office of Thomas A. Crowell, LLC, Walter-Michael Lee from the IP Practice Group of Gibney, Anthony & Flaherty, LLP, and Sheafe B. Walker, an Employment Law practitioner with The Law Office of Thomas A. Crowell, LLC.

Saturday - 2:45 PM to 3:45 PM - Panel Room 10

Immigration Alert: Reminder - ESTA Authorization Required for Visa Waiver Travel as of January 12, 2009

Michael Hawkes — Fri, 09 Jan 2009 18:41:00 -0600

This is a reminder that as of January 12, 2009, all foreign nationals traveling to the United States under the Visa Waiver Program (VWP) are required to obtain authorization from the Electronic Screening System for Travel Authorization (ESTA) prior to traveling to the United States. VWP travelers who fail to obtain the requisite ESTA approval may be denied permission to board an air or sea carrier and/or denied admission to the United States.

Currently only citizens of the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, Malta, and Slovakia are subject to the ESTA requirement. As of Monday, January 12, 2009, ESTA authorization will likewise be mandatory for VWP travel for the following 27 countries:

Andorra
Austria
Australia
Belgium
Brunei
Denmark
Finland
France
Germany
Iceland
Ireland
Italy
Japan
Liechtenstein
Luxembourg
Monaco
the Netherlands
New Zealand
Norway
Portugal
San Marino
Singapore
Slovenia
Spain
Sweden
Switzerland
United Kingdom

What is ESTA?

To obtain ESTA authorization, VWP travelers must complete an online application at https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_cEB26A509-E632-2C65-5BFB-DB414AB05F04_k3BC0CF89-073C-06D7-BA3B-CC8A4DD871C5. The online application requests the same biographic data (name, date of birth, passport information) and eligibility information (such as information regarding communicable diseases, arrests, past history of visa revocation, etc.) currently provided on the Form I-94W when traveling to the United States.

ESTA applications may be submitted any time prior to traveling to the United States. Currently there is no fee for an ESTA application. The Department of Homeland Security recommends that ESTA applications be submitted no later than 72 hours prior to the planned travel. The ESTA applicant is not required to have specific travel plans in order to apply; therefore, it is advisable to apply as soon as travel is contemplated to ensure that appropriate authorizations are in place prior to traveling.

Approved ESTA applications are valid for travel to the United States for two (2) years or for the validity period of the applicant’s passport, whichever is less. VWP travelers must obtain a new ESTA authorization if they are issued a new passport, change their name, change their gender, change their citizenship or if any of the answers provided on the initial application change.

Additional Information

Additional information about ESTA is available from U.S. Customs and Border Protection at http://www.customs.gov/xp/cgov/travel/id_visa/esta/.

Information regarding additional requirements for travel under the VWP, including e-passport requirements, is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/.

If you have any questions regarding any of the information in this alert, or immigration matters generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Announces Revision of Form I-9

Michael Hawkes — Tue, 23 Dec 2008 18:47:00 -0600

On December 17, 2008 the United States Citizenship and Immigration Services (USCIS) published an interim final rule amending its regulations governing Form I-9 Employment Eligibility Verification. The rule, effective February 2, 2009, amends the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9.

USCIS is expected to make the new Form I-9 available for use by February 2, 2009. Although the new rule provides a sample of the revised Form I-9 for informational purposes only, employers are advised to continue using the current version of the Form I-9 (dated 06/05/2007) until the official revised version is published.

When the new rule takes effect, employers may no longer accept expired documents to verify employment authorization and identity on the Form I-9. Employers may only accept unexpired documents. Documents that do not contain an expiration date, such as Social Security cards, are deemed to be unexpired.

The rule makes changes to the list of acceptable documents that evidence both identity and employment authorization, also known as List A documents, as follows:

- Adding as a List A document the new U.S. Passport Card;
- Adding as a List A document a temporary I-551 printed notation on a machine-readable immigrant visa;
- Adding as a List A document a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association; and
- Eliminating from List A obsolete and now-expired documents (Forms I-688, I-688A, and I-688B).

The rule also makes some changes to the Form I-9 itself. For instance, in Section 1, the form adds a category for noncitizen nationals, including certain Pacific Islanders and certain children of noncitizen nationals born abroad. Section 1 also includes a minor technical change to the form requesting the specific month/day/year of the expiration date for work authorization, if applicable.

USCIS is accepting comments on the interim rule through February 2, 2009. For more information, visit www.uscis.gov. Gibney will continue to monitor regulatory changes and provide relevant updates.

If you have any questions about Form I-9 Employment Eligibility Verification, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: January 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 17 Dec 2008 18:51:00 -0600

The U.S. Department of State (DOS) has published the January 2009 Visa Bulletin. Priority dates advanced slightly for Chinese and Indian nationals in the employment-based second preference (EB-2) and third preference (EB-3) categories, as well as for Mexican nationals in the EB-3 category.

In the EB-2 category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals advanced from June 1, 2004 to July 8, 2004 and the EB-2 priority cut-off date for Indian nationals advanced one month, from June 1, 2003 to July 1, 2003. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the EB-3 professional and skilled worker category, the priority cut-off dates for Worldwide and Filipino nationals remain at May 1, 2005. Other EB-3 cut-off dates for professional and skilled workers advanced as follows: China – June 1, 2002; India – October 15, 2001; and, Mexico – November 15, 2002. The priority cut-off date for the EB-3 “other worker” category advanced from January 15, 2003 to March 15, 2003 for all foreign nationals.

The full text of the January 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4406.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: DHS Announces Expansion of Visa Waiver Program & ESTA Requirements

Michael Hawkes — Mon, 17 Nov 2008 18:54:00 -0600

The Department of Homeland Security (DHS) has announced the expansion of the Visa Waiver Program (VWP) to include seven additional countries effective today. The seven new VWP countries are the Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia.

The VWP permits citizens and nationals of designated countries to visit the United States for a 90-day period for business or tourism without obtaining a visa. Citizens of the seven new countries may travel to the United States under the VWP effective immediately provided that they have an e-passport and provided that they have obtained authorization for travel from Electronic Screening System for Travel Authorization (ESTA).

What is ESTA?

Who is Required to Register with ESTA?

Presently, only citizens of the seven newly added VWP countries are required to obtain ESTA authorization for immediate travel to the United States under the VWP.

ESTA registration for citizens of the remaining twenty-seven (27) designated VWP countries traveling to the United States under the VWP will remain voluntary until January 12, 2009. As of January 12, 2009, ESTA registration will likewise be mandatory for VWP travel for the following 27 countries:

Andorra
Austria
Australia
Belgium
Brunei
Denmark
Finland
France
Germany
Iceland
Ireland
Ireland
Japan
Liechtenstein
Luxembourg
Monaco
the Netherlands
New Zealand
Norway
Portugal
San Marino
Singapore
Slovenia
Spain
Sweden
Switzerland
United Kingdom

Citizens of these 27 countries intending to travel to the United States under the VWP in the future may voluntarily register in ESTA now, and Gibney strongly recommends that they do so to avoid potential delays in January.

How Does ESTA Work?

Under ESTA, VWP travelers are required to log onto a web-based system and complete an online application providing the same biographic data (name, date of birth, passport information) and eligibility information (such as information regarding communicable diseases, arrests, past history of visa revocation, etc.) currently provided on the Form I-94W. The paper Form I-94W is currently completed by VWP travelers en route to the United States and is presented to U.S. Customs and Border Protection (CPB) officers at immigration inspection when entering the United States.

ESTA applications may be submitted any time prior to traveling to the United States. Currently there is no fee for an ESTA application. DHS recommends that ESTA applications be submitted no later than 72 hours prior to the planned travel. The ESTA applicant is not required to have specific travel plans in order to apply; therefore, it is advisable to apply as soon as travel is contemplated to ensure that appropriate authorizations are in place.

Once the ESTA application is submitted online, it will be checked against various law enforcement databases, including lost and stolen passport databases and security watchlists, and a response will be generated. Possible responses include:

- Authorization Approved. DHS expects that most applicants will receive an immediate determination that the individual is eligible to travel to the United States.
- Authorization Pending. Applicants receiving this response will be required to check back within 72 hours to receive a final response.
- Travel Not Authorized. Applicants who receive this response will be required to obtain a visa to travel to the United States.

VWP travelers must still complete a paper Form I-94W to secure admission to the United States, but DHS expects that this requirement will be eliminated once ESTA becomes mandatory in January 2009. CBP will retain the authority to revoke ESTA authorization at any time and for any reason.

What ESTA is Not

ESTA is not a visa. ESTA approval may not be substituted for a visa when U.S. law requires a visa for admission to the United States. Individuals who possess valid nonimmigrant visas or other travel authorization, such as a lawful permanent resident card or an advance parole document, may continue to travel to the United States pursuant to the terms and conditions of those documents, and are not required to obtain ESTA approval. Moreover, U.S. citizens will not be required to obtain ESTA approval for international travel.

ESTA is also not a guarantee of admission to the United States under the VWP. Rather, ESTA approval provides authorization to board an air or sea carrier to travel to the United States under the VWP. A CBP officer at the port of entry will continue to determine whether the individual traveler is ultimately admissible to the United States.

Looking Ahead

VWP travelers who fail to obtain the requisite ESTA approval may be denied boarding of an air or sea carrier and/or denied admission to the United States. Frequent VWP travelers, and particularly those who may need to travel on short notice, should consider the impact on ESTA on their travel requirements. Such travelers should plan to obtain ESTA approval well in advance of scheduled travel or obtain an appropriate visa to facilitate travel to the United States. If a VWP traveler has previously been denied a visa or has any question as to his or her eligibility for admission to the United States under the VWP, it is advisable to consult with counsel now to identify potential issues that may adversely impact ESTA approval or visa issuance.

Additional information from U.S. Customs and Border Protection regarding ESTA is available at http://www.customs.gov/xp/cgov/travel/id_visa/esta/.

Information regarding additional requirements for travel under the VWP, including e-passport requirements, is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/.

If you have any questions regarding any of the information in this alert, or immigration matters generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Final Regulations Published on E-Verify Requirements for Federal Contractors

Michael Hawkes — Fri, 14 Nov 2008 16:16:00 -0600

On November 14, 2008, the federal government published its final regulations requiring certain federal contractors to utilize the E-Verify system to verify the work authorization of its employees. The final regulations will become effective on January 15, 2009.

Pursuant to the new regulations, many federal contracts executed on or after January 15, 2009 will be required to contain a clause committing contractors to electronically verify the work authorization of certain employees through the E-Verify system. Existing federal contracts and subcontracts are not subject to the new regulations unless and until the contract is modified to include an E-Verify clause. Otherwise, a contractor or subcontractor only becomes subject to these E-Verify requirements upon signing a federal contract on or after January 15, 2009 that contains the relevant E-Verify clause.

The following types of contracts signed on or after January 15, 2009 will contain the E-Verify clause:

1. Contracts for work to be performed in the United States with a period of performance of more than 120 days and with value of more than $100,000 (unless the contract is exclusively for commercially available off-the-shelf (COTS) items); and
2. Subcontracts with a value of at least $3,000 where the primary contract contains the E-Verify clause.

If a federal contract contains the E-Verify clause, the regulations require that the contractors and subcontractors utilize E-Verify to verify the work authorization of the following employees:

1. All new employees hired on or after January 15, 2009; and
2. All existing employees who are “assigned to the contract.” An employee is considered “assigned to the contract” if he/she was hired after November 6, 1986, and directly performs work in the United States under a contract containing the E-Verify clause. Employees who normally perform support work and do not perform any of the substantial duties under the contract need not be processed through E-Verify.

Companies awarded a federal contract requiring the use of E-Verify will have 30 days from the date of contract execution to enroll in and begin using E-Verify for newly hired employees. Companies will have 90 days to begin using E-Verify for existing employees assigned to the contract. Companies who sign a contract containing the E-Verify clause will also have the option of verifying their entire workforce, including existing employees not assigned to a federal contract. If the company chooses this option, it must update its E-Verify profile and commence E-Verify queries for its existing employees within 180 days of updating its profile.

About E-Verify
Over the past several years, the U.S. Department of Homeland Security (DHS) has invested heavily in developing a robust electronic employment verification system, leading to the current E-Verify program. Employers who register for E-Verify agree to use the online system to verify the work authorization for each new employee. Employers check basic Form I-9 information and social security numbers against records in the Social Security Administration (SSA) and DHS database. Employers must accept reporting obligations in addition to maintaining Forms I-9 and must agree to take certain steps, including possibly terminating an employee if E-Verify cannot confirm their work authorization. Although registration is free, training of personnel and other administrative costs may be significant. Employers are permitted to utilize Designated Agents to assist in their administration of E-Verify procedures.

E-Verify continues to be controversial and is opposed by many business groups, state and local governments, and civil rights advocates. Many groups have expressed concerns about the reliability of federal databases, the administrative burdens on employers, wider government access to employer records, and the system’s ability to properly identify those with employment authorized nonimmigrant status.

Gibney strongly encourages employers who believe they are subject to the new regulations discussed above and employers considering voluntary registration in E-Verify to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Please note also that Gibney Onboarding Services LLC is authorized by DHS and SSA to serve as a Designated Agent for employers in connection with their administration of and compliance with E-Verify procedures. Gibney will continue to provide relevant updates, trainings and seminars regarding worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Practice Group Hosts November 13th Seminar on Intracompany Transfers: Global Perspective & Country Overviews

Wed, 12 Nov 2008 19:06:00 -0600

Our Immigration Practice Group is pleased to present a seminar on

Intracompany Transfers:
Global Perspectives & Country Overviews

Thursday, November 13, 2008
Seminar 9:00am - 10:30am

The Pyramid Center
600 Montgomery St., 48th Floor
San Francisco, CA 94111

Continental Breakfast will be served

Presenters:

Minal A. Shah, Esq.
Deborah B. Davy, Esq.

If you are interested in attending the seminar, please send your name and contact information to seminars@gibney.com.

Immigration Alert: December 2008 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 10 Nov 2008 19:09:00 -0600

The U.S. Department of State (DOS) has published the December 2008 Visa Bulletin. There are no changes to the priority cut-off dates in the employment-based first preference (EB-1), second preference (EB-2), and third preference (EB-3) categories.

Priority cut-off dates remain “current” for all foreign nationals in the EB-1 category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-2 category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals is June 1, 2004 and the EB-2 priority cut-off date for Indian nationals is June 1, 2003. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the EB-3 professional and skilled worker category, the priority cut-off dates for Worldwide and Filipino nationals remain at May 1, 2005. Other EB-3 cut-off dates for professional and skilled workers are as follows: China – February 1, 2002; India –October 1, 2001; and, Mexico – September 1, 2002. The priority cut-off date for the EB-3 “other worker” category is January 15, 2003 for all foreign nationals.

The full text of the December 2008 Visa Bulletin is available at
http://travel.state.gov/visa/frvi/bulletin/bulletin_4384.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Increases Admission Periods for TN Professionals

Michael Hawkes — Fri, 17 Oct 2008 19:14:00 -0500

On October 16, 2008 the U.S. Citizenship and Immigration Services (USCIS) published a final rule increasing the initial admission period for Canadian and Mexican professionals admitted pursuant to the North American Free Trade Agreement (NAFTA) in TN status from one year to three years. The rule, effective immediately, also permits extensions of TN status in three-year increments.

TN status is available to Canadian and Mexican citizens with appropriate professional credentials who work in certain professions designated in NAFTA. Eligible TN professions include, but are not limited to, accountants, attorneys, computer systems analysts, economists, engineers, graphic designers, pharmacists, and scientists. Prior to issuance of this rule, the initial TN admission period was one year, and extensions of stay were likewise granted in one-year increments.

The three-year initial admission and extension periods for TN professionals are now consistent with the initial admission and permissible extension increments for the H-1B specialty occupation visa program. However, unlike the H-1B, the maximum permissible period of stay for TN professionals is not capped at six years. TN professionals may extend their status indefinitely, provided that they continue to engage in designated professional business activities for U.S. employers and provided that they maintain the requisite nonimmigrant intent to depart the United States at the conclusion of their temporary stay.

For additional information about this alert and TN status generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: November 2008 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 14 Oct 2008 19:17:00 -0500

The U.S. Department of State (DOS) has published the November 2008 Visa Bulletin. There are modest advancements in priority cut-off dates in the employment-based, second preference (EB-2) and employment-based, third preference (EB-3) categories.

In the EB-3 professional and skilled worker category, priority cut-off dates for Worldwide and Filipino nationals advanced from January 1, 2005 to May 1, 2005. Other EB-3 cut-off dates for professional and skilled workers advanced as follows: China – from October 1, 2001 to February 1, 2002; India – from July 1, 2001 to October 1, 2001; and, Mexico – from July 1, 2002 to September 1, 2002. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications in November.

In the EB-2 category, priority cut-off dates for Chinese nationals advanced from April 1, 2004 to June 1, 2004. EB-2 priority cut-off dates for Indian nationals advanced from April 1, 2003 to June 1, 2003. In other EB-2 classifications, priority dates for Worldwide, Mexican and Filipino foreign nationals remain “current,” unchanged from the October 2008 Visa Bulletin. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Priority cut-off dates also remain current for all foreign nationals in the employment-based, first preference (EB-1) category. Priority cut-off dates for the EB-3 “other worker” category advanced slightly for nationals of all countries, from January 1, 2003 to January 15, 2003.

The full text of the November 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4371.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New Expatriation Act

Michael Hawkes — Thu, 02 Oct 2008 19:21:00 -0500

The Heroes Earnings Assistance and Relief Tax Act (the “Act”), enacted on June 17, 2008, implemented a new tax regime for expatriates.

Who Does This Act Apply To?

The Act applies to a Covered Expatriate. A Covered Expatriate is any U.S. citizen who relinquishes his citizenship and any long-term lawful Permanent Resident who ceases to hold such status – the citizen or Permanent Resident must meet one of the following requirements at the date of expatriation: (1) had an average annual net income tax liability of more than $139,000 (subject to increases for inflation after 2008) for the immediately preceding period of 5 taxable years; (2) had a net worth of $2 million or more, or (3) fails to certify that he/she met the requirements of the Internal Revenue Code for the 5 preceding years.

A long-term permanent Permanent Resident is an individual who is a lawful permanent resident of the U.S. in at least 8 taxable years during the period of 15 taxable years ending with the date of expatriation. There are limited exceptions.

In General

The Act consists of three key elements, each of which is discussed below:

~ The mark-to-market tax on the Covered Expatriate’s worldwide assets.
~ A tax on certain gifts and bequests made by the Covered Expatriate to any U.S. person;
~ A repeal of the current so-called 10-year “shadow period” for Covered Expatriates.

The Mark-To-Market Tax

Expatriates used to be taxed under an alternative tax regime for a period of ten years following expatriation. Now, expatriates will be subject to a one time only exit tax under a “mark to market” approach. The expatriate is deemed to have sold all of his/her assets for fair market value the day before he/she expatriates. The expatriate then pays a one time tax on any gain in excess of $600,000 (adjusted for inflation).

Exceptions

• Security: The expatriate can defer payment of the tax on property until the property is actually sold if he/she furnishes adequate security. However, the expatriate must also waive all treaty rights.
• Deferred Compensation: An expatriate may elect to be subject to a 30% withholding on deferred compensation (i.e. pension, 401k plans, etc.) if the compensation is paid by a United States person or entity and the expatriate notified the payor of such election and signs a waiver of treaty rights regarding withholding.
• Individual Retirement Accounts (“IRAs”): The expatriate is treated as having received his entire interest the day before he/she expatriates; however, no early withdrawal penalties shall apply and appropriate adjustments will be made to future payments to reflect the exit tax paid.
• Non-Grantor Trusts: Interests in a non-grantor trust are not subject to the exit tax; however, taxable distributions will be subject to the 30% withholding and if the Trust distributes appreciated property it must recognize the built in gain.

Gift Tax Consequences

The Act also provides that all gifts, in excess of the annual $12,000 exclusion, and bequests are subject to the highest rate of gift/estate tax in effect at the time of the gift/bequest (currently about 45%). The recipient, not the expatriate, is subject to the tax.

Exceptions:

• Amounts which were timely reported on gift and estate tax returns are not subject;
• This rule does not apply to gifts and bequests to spouses or charities; and
• A credit is given for any foreign estate and gift tax paid.

Repeal of the 10-Year Shadow Period

Prior law subjected expatriates to a so-called 10-year “shadow period”, which resulted in a Covered Expatriate being taxed as a U.S. citizen in any of the 10 years following expatriation in which the expatriate spent 30 days or more in the U.S. In addition, prior law taxed expatriates on all U.S. source income and gain during the shadow period. Under the Act, individuals who expatriate on or after the date of enactment are not subject to the shadow period.

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Immigration Alert: President Signs Law Extending E-Verify Program

Michael Hawkes — Wed, 01 Oct 2008 19:24:00 -0500

On September 30, 2008, President Bush signed into law the Consolidated Security Disaster Assistance, and Continuing Appropriations Act, 2009 (hereinafter “the Act”). The Act, which extends funding for government operations, temporarily extends the Basic Pilot electronic employment eligibility verification program, now known as E-Verify, until March 6, 2009.

As passed, the Act does not contain provisions to recapture employment-based and family-based immigrant visas lost to bureaucratic delays, as was proposed in a Senate bill (S. 3414), which also would have extended the E-Verify Program. The visa recapture provisions are expected to be taken up by Congress again in Spring 2009.

Despite the substantial government investment in E-Verify, there was some question as to whether funding for the program would be extended, due to the controversial nature of the program. E-Verify is an internet-based system operated by U.S. Immigration and Citizenship Services (USCIS) in partnership with the Social Security Administration (SSA). Registered employers utilize the system to verify the employment-authorized status of new hires. Employer participants enrolling in E-Verify must enter into a Memorandum of Understanding with the Department of Homeland Security and SSA to participate in E-Verify, and once enrolled, employers must verify all new hires at registered worksites using the E-Verify system.

Proposed regulations implementing an Executive Order that would require federal contractors to register for E-Verify have not been finalized. For more information about E-Verify, please see our Immigration Alerts "Executive Order Requires Use of E-Verify for Federal Government Contracts," , and "New F-1 Optional Practical Training Rule" (discussing, infra, the use of E-Verify.

Gibney strongly encourages any employer considering enrolling in E-Verify to contact their designated Gibney representative to discuss the legal requirements and implications of registering for the program.

If you have any questions regarding E-Verify or any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Article in American British Business: The Challenge of Change (reprinted with kind permission from Roxby Media Ltd.)

Wed, 01 Oct 2008 14:39:00 -0500

Congressional inactivity, state action and tightened security – will a new Administration and Congress finally provide comprehensive immigration reform in 2009? Stephen Maltby of Gibney, Anthony & Flaherty LLP comments.

Read the full article here.

IP Article: Gibney Partner Brian Brokate to Speak on "What's New in Anti-Counterfeiting"

Thu, 18 Sep 2008 14:37:00 -0500

PLI's 14th Annual Intellectual Property Law Institute
Sep. 18 - 19, 2008
PLI New York Center-New York, NY

- Analyzing third-party and auction site liability: Tiffany v. eBay

- Counterfeit/piracy/”freemium”/cross subsidies

- Enlisting customs and law enforcement

- Internet issues - DMCA/eBay’s ‘VERO’ program

- Examining K & N Engineering v. Bulat and its impact on statutory damages

- Insights into what the recent decisions mean for strategies

Global Immigration Alert: United Kingdom: Deadline Approaching for Employers to Obtain Sponsor License

Michael Hawkes — Wed, 17 Sep 2008 14:34:00 -0500

In February 2008, The United Kingdom Border Agency (UKBA) introduced a new Points-Based System (PBS) to replace the current work permit scheme. The new PBS represents a radical change from the prior system and divides all foreign national applicants into one of five tiers. The UKBA has published a statement of intent under the new PBS, providing updated guidelines for Tier 2 Skilled Workers and Tier 5 Temporary Workers and Youth Mobility. The UKBA announced that employers who wish to sponsor foreign nationals from outside the European Economic Area (EEA) under Tier 2 or Tier 5 must have a sponsor license in place by the end of November 2008.

To obtain a sponsor license, employers must complete an online application and agree to an on-site visit from the UKBA as part of the pre-license process. This may lead to additional delays in sponsor license issuance. Employers must be able to demonstrate the ability to comply with sponsorship requirements, including demonstrating adequate systems for compliance and record-keeping. Additionally, there are significant reporting requirements associated with maintaining a sponsor license, including a requirement that the employer holding the license notify the UKBA if sponsored employees are terminated or if sponsored employees fail to comply with immigration requirements.

Due to the high volume of employers expected to apply, the UKBA estimates that processing for a sponsor license and work authorization may take eight (8) weeks or longer. The UKBA is advising employers to apply for a sponsor license as soon as possible and no later than October 1, 2008 to ensure timely processing.

Upon approval of the sponsor license, the employer may issue certificates of sponsorship to eligible foreign nationals. The guidelines provide three possible categories for employers to sponsor skilled workers under Tier 2: positions on the Migration Advisory Committee (MAC) shortage occupations list; positions that passed the resident labor market test; or positions eligible as Intra-company transfers (ICT). In order to qualify under the PBS, the foreign national must have a minimum of 70 points. Points are awarded for qualifications, attributes, maintenance requirements, prospective earnings, and competence in English. Foreign nationals meeting the PBS requirements will be granted leave in the UK for the duration of their assignment or for a maximum period of three years. Once a foreign national is issued a certificate of sponsorship for a qualifying position, he or she must obtain an entry clearance at a British Consulate having jurisdiction over their residence. Qualifying foreign nationals must also obtain a biometric identity card prior to entering the UK.

Please note that although the UKBA has announced target dates for implementation of the employer sponsor license requirement, further delays are possible. Gibney will continue to monitor and report developments.

For more information about the PBS, the five tiers, and sponsorship duties, please refer to the Gibney Article: The United Kingdom Introduces Radical Immigration Reform (May 2008), available here. Additional information and updates are also available on the UKBA website at www.ukba.homeoffice.gov.uk.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: October 2008 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 15 Sep 2008 14:32:00 -0500

In the employment-based, second preference (EB-2) category, priority cut-off dates retrogressed for Chinese nationals, from August 1, 2006 to April 1, 2004. EB-2 priority cut-off dates retrogressed further for Indian nationals in the EB-2 category, to April 1, 2003. In other EB-2 classifications, priority dates for worldwide, Mexican and Filipino foreign nationals remain “current,” unchanged from the September 2008 Visa Bulletin. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. Priority cut-off dates for the EB-3 “other worker” category returned to January 1, 2003 for nationals of all countries after having been “unavailable” since the August 2008 Visa Bulletin.

The full text of the October 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4357.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Practice Group Hosts September 18th Seminar on U.S. and Global Immigration: Corporate Compliance in an Enforcement Era

Wed, 27 Aug 2008 14:29:00 -0500

Our Immigration Practice Group will host a seminar on

U.S. and Global Immigration: Corporate Compliance in an
Enforcement Era

Thursday, September 18, 2008
Continental Breakfast 8:00am – 8:30am
Seminar 8:30am – 10:30am

The Fairmont San Jose
170 S. Market Street
San Jose, CA 95113

Topics
PART I: U.S. Immigration

PERM Labor Certification
- Increased Oversight by Department of Labor
- Best Practices for Recruitment Programs
- Audit Trends

Worksite Enforcement
- E-Verify Developments

USCIS Benefits Update

PART II: Global Mobility

Corporate Trends in International Assignments
- Global Security and Compliance Issues
- New ESTA Requirements for Visa Waiver Countries

Regional Updates
- EMEA - Europe, Middle East and Africa
- Americas - Central and South America
- Asia Pacific

Open Forum:

Other Topics of Interest in U.S. and Global Immigration

Presenters:

Stephen J. O. Maltby, Esq,
J. Claire Razzolini, Esq.
Minal A. Shah, Esq.
Deborah B. Davy, Esq.

If you are interested in attending the seminar, please send your name and contact information to seminars@gibney.com

Immigration Alert: September 2008 Visa Bulletin Released

Michael Hawkes — Thu, 14 Aug 2008 14:27:00 -0500

The U.S. Department of State (DOS) has published the September 2008 Visa Bulletin. Priority dates advanced slightly for Chinese and Indian nationals in the employment-based second preference (EB-2) category, from June 1, 2006 to August 1, 2006. In other EB-2 classifications, priority dates for worldwide, Mexican and Filipino foreign nationals remain current, unchanged from the August 2008 Visa Bulletin. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category. Priority dates also remain current for all foreign nationals in the employment-based first preference (EB-1) category.

Due to high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, visa numbers remain unavailable in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. According to DOS, EB-3 will remain unavailable for the remainder of fiscal year 2008. Originally DOS predicted that in October 2008, the first month of the new fiscal year, the EB-3 category would return to the cut-off dates previously established for June 2008. However, due to heavy demand, DOS now predicts that it may be necessary in October to establish EB-3 cut-off dates which are earlier than those which had applied in June 2008. A final decision on this matter will not be made until early September, and will be reflected in the October 2008 Visa Bulletin when it is published.

The full text of the September 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4328.html.

If you have any questions about any of the items in this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Employee Benefits Alert: New Investment Disclosure Regulations

Michael Hawkes — Wed, 30 Jul 2008 14:24:00 -0500

The Department of Labor (“DOL”) has proposed new investment disclosure regulations which are to be effective for plan years beginning on or after January 1, 2009. The regulations would apply to all plans which provide for participant-directed investments.

The proposed regulations address the DOL’s view that fiduciaries of all participant-directed individual account plans have a duty to furnish participants and beneficiaries information necessary to carry out their account management and investment responsibilities in an informed manner.

The regulations provide that prior to a participant entering a plan and annually, thereafter, the plan would need to furnish the participant with general plan information, administrative expense information, individual expense information and investment related information.

General plan information includes: any restrictions on transfer to or from a designated investment alternative; the exercise of voting, tender and similar rights held with an investment, as well as any restrictions on such rights; the specific designated investment alternatives offered under the plan; and any designated investment managers to whom participants and beneficiaries may give investment directions.

Administrative expense information includes: an explanation of any fees and expenses for plan administrative services (e.g., legal, accounting, recordkeeping) that may be charged against the individual accounts of participants or beneficiaries and the basis on which such charges will be allocated to, or affect the balance of, each individual account.

Individual expense information is identical to the type of information furnished regarding administrative expenses, except that it is those expenses which are assessed on an individual basis rather than on a plan wide basis.

Investment information includes: the name and category (e.g., money market mutual fund, balanced fund, index fund, and whether the investment alternative is actively or passively managed) of the designated investment alternative and a web site address that is sufficiently specific to lead participants and beneficiaries to supplemental information regarding the investment alternative, including its principal strategies, risks, performance and costs.

The information can be provided in a benefits statement or in the Summary Plan Description (the “SPD”) and the DOL provides a recommended form for providing the information.

In addition to the annual information which must be provided, the plan sponsor must provide each participant with a statement of fees charged (plan wide and individually) at least quarterly.

The new required disclosures do not diminish the plan sponsor’s fiduciary responsibility to prudently choose investment alternatives for the participants to choose from.

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Immigration Alert: DHS to Launch Program for Electronic Screening of Visa Waiver Travelers

Michael Hawkes — Fri, 18 Jul 2008 14:22:00 -0500

The Department of Homeland Security (DHS) has announced an Electronic Screening System for Travel Authorization (ESTA) for travelers to the United States under the Visa Waiver Program (VWP). ESTA will be introduced on a voluntary basis on August 1, 2008, and it is expected to become mandatory for all VWP travelers on or about January 12, 2009.

What is ESTA?

ESTA is a new online program to pre-screen VWP travelers to determine whether they are admissible to the United States and whether they pose any security or law enforcement risk. ESTA provides VWP travelers with authorization to travel to the United States by air or by sea carrier prior to embarking on such travel. The VWP currently permits citizens and nationals of designated countries to visit the United States for a 90-day period for business or tourism without obtaining a visa. The designated VWP countries are as follows:

Andorra
Austria
Australia
Belgium
Brunei
Denmark
Finland
France
Germany
Iceland
Ireland
Italy
Japan
Liechtenstein
Lukembourg
Monaco
the Netherlands
New Zealand
Norway
Portugal
San Marino
Singapore
Slovenia
Spain
Sweden
Switzerland
United Kingdom

Pursuant to The Implementing Recommendations of the 9/11 Commission Act of 2007, DHS is required to implement ESTA for all VWP travelers. DHS is introducing ESTA on a voluntary basis as of August 1, 2008. Initially only an English language version of ESTA will be available, but additional languages are expected to be added by October 15, 2008. ESTA will become mandatory 60 days after DHS publishes a notice in the Federal Register. DHS estimates that the notice will be published in November 2008, with mandatory implementation of ESTA targeted for January 12, 2009.

How Does ESTA Work

Under ESTA, VWP travelers will be required to log onto a web-based system and complete an online application providing the same biographic data (name, date of birth, passport information) and eligibility information (such as information regarding communicable diseases, arrests, past history of visa revocation, etc.) currently provided on the Form I-94W. The paper Form I-94W is currently completed by VWP travelers en route to the United States and is presented to U.S. Customs and Border Protection (CPB) officers at immigration inspection when entering the United States.

- Authorization Approved. DHS expects that most applicants will receive an immediate determination that the individual is eligible to travel to the United States.

- Authorization Pending. Applicants receiving this response will be required to check back within 72 hours to receive a final response.

- Travel Not Authorized. Applicants who receive this response will be required to obtain a visa to travel to the United States.

What ESTA is Not

ESTA is not a visa. ESTA approval may not be substituted for a visa when U.S. law requires a visa for admission to the United States. Individuals who possess valid nonimmigrant visas or other travel authorization, such as a lawful permanent resident card or an advance parole document, may continue to travel to the United States pursuant to the terms and conditions of their visas, and are not required to obtain ESTA approval. Moreover, U.S. citizens will not be required to obtain ESTA approval for international travel.

Looking Ahead

As a reminder, although ESTA may be utilized on a voluntary basis as of August 1, 2008, it is not yet mandatory, and is not expected to be so until January 12, 2009. Once mandatory, VWP travelers who fail to obtain ESTA approval may be denied boarding of an air or sea carrier and/or denied admission to the United States. Frequent VWP travelers, and particularly those who may need to travel on short notice, should consider the impact on ESTA on their travel requirements. Such travelers should plan to obtain ESTA approval well in advance of scheduled travel or obtain an appropriate visa to facilitate travel to the United States. If a VWP traveler has previously been denied a visa or has any question as to his or her eligibility for admission to the United States under the VWP, it is advisable to consult with counsel now to identify potential issues that may adversely impact ESTA approval or visa issuance.

We will continue to monitor implementation of the ESTA program and provide updates as they become available. Additional information from U.S. Customs and Border Protection regarding ESTA is also available at http://www.customs.gov/xp/cgov/travel/id_visa/esta/.

If you have any questions regarding any of the information in this alert, or immigration matters generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: August 2008 Visa Bulletin Released

Michael Hawkes — Mon, 14 Jul 2008 14:20:00 -0500

The Department of State (DOS) has published the August 2008 Visa Bulletin. Priority dates advanced for Chinese and Indian nationals in the employment-based second preference (EB-2) category, from April 1, 2004 to June 1, 2006. In other EB-2 classifications, priority dates for worldwide, Mexican and Filipino foreign nationals remain current, unchanged from the July 2008 Visa Bulletin. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category. Priority dates also remain current for all foreign nationals in the employment-based first preference (EB-1) category.

As reported last month, due to high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, visa numbers remain unavailable in the employment-based third preference (EB-3) “professional and skilled worker” category. “Unavailable” means that the annual limit for this category has been reached, and there are no visa numbers available for issuance. As of August 2008, visa numbers are also unavailable in the EB-3 “other worker” category for all foreign nationals. According to DOS, EB-3 will remain unavailable for the remainder of Fiscal Year 2008. It is expected that the EB-3 “professional and skilled worker” category will return to the cut-off dates previously established for June 2008 as of October 2008, the first month of the new fiscal year. Similarly, priority dates for the EB-3 “other worker” category are then expected to return to a cut-off date of January 1, 2003.

The full text of the August 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4310.html.

If you have any questions about any of the items in this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Tax Article: Revised Discrimination Testing Under the New Proposed Cafeteria Regulations

Tue, 24 Jun 2008 14:17:00 -0500

Under Internal Revenue Code (“Code”) Section 125, a cafeteria plan generally may not discriminate in favor of highly compensated or key employees as to eligibility to participate, contributions, or benefits. Proposed regulations issued by the IRS on August 6, 2007, which are scheduled to take effect for plan years beginning after 2008, but upon which taxpayers may currently rely, clarify the statutory nondiscrimination requirement and supply key definitions intended to assist employers in meeting the requirements under Code Sec. 125.

The new proposed regulations provide additional guidance on the cafeteria plan nondiscrimination rules, including definitions of key terms, guidance on the eligibility test and the contributions and benefits tests, descriptions of employees allowed to be excluded from testing and a safe harbor nondiscrimination test for premium-only- plans.

Specifically, the new proposed regulations define several key terms, including highly compensated individual or participant (consistent with the Code Section 414(q) definition of highly compensated employee), officer, five percent shareholder, key employee and compensation. The new proposed regulations also provide guidance on the nondiscrimination as to eligibility requirement by incorporating some of the rules under Code Section 410(b) (specifically the rules under Treasury Reg. Sections 1.410(b)-4(b) and (c) dealing with reasonable classification, the safe harbor percentage test and the unsafe harbor percentage component of the facts and circumstances test).

The new proposed regulations also provide additional guidance on the contributions and benefits test and, unlike the prior proposed regulations, the new proposed regulations provide an objective test to determine when the actual election of benefits is discriminatory. Specifically, the new proposed regulations provide that a cafeteria plan must give each similarly situated participant a uniform opportunity to elect qualified benefits, and that highly compensated participants must not actually disproportionately elect qualified benefits. Finally, the new rules provide guidance on the safe harbor for cafeteria plans providing health benefits and create a safe harbor for premium-only-plans that satisfy certain requirements.

We recommend that all employers test their plans to determine whether they pass the discrimination tests under the new rules. Since there are serious consequences for failure to satisfy these tests, we recommend that you act now to determine whether changes will be necessary for next year.

Please contact us at 212-688-5151 if you have any questions regarding the above.

Immigration Alert: July 2008 Visa Bulletin Released

Michael Hawkes — Fri, 13 Jun 2008 14:15:00 -0500

U.S. IMMIGRATION UPDATE

July 2008 Visa Bulletin
Premium Processing for I-140 Petitions
Multiple Year Employment Authorization Documents

July 2008 Visa Bulletin Released

The Department of State (DOS) has published the July 2008 Visa Bulletin. Due to high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, visa numbers are unavailable in the employment-based third preference (EB-3) professional and skilled worker category as of July 1. “Unavailable” means that the annual limit for this category has been reached, and there are no visa numbers available for issuance. According to DOS, EB-3 will remain unavailable for the remainder of fiscal year 2008. It is expected that EB-3 will return to the cut-off dates previously established for June 2008 as of October 2008, the first month of the new fiscal year.

In other employment-based preference categories, cut-off dates are unchanged from the June 2008 Visa Bulletin. Priority dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. Likewise, in the employment-based second preference (EB-2) category, priority dates for worldwide, Mexican and Filipino foreign nationals remain current. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category. Priority dates are retrogressed for Chinese and Indian nationals in the EB-2 category, with a cut-off date of April 1, 2004 established for both. The cut-off date for the employment-based third preference “other worker” category for all foreign nationals is January 1, 2003.

The full text of the July 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4252.html.

Restoration of Premium Processing for Some I-140 Petitions

United States Citizenship and Immigration Services (USCIS) has announced that as of June 16, 2008, USCIS will resume premium processing service for some employment-based permanent resident petitions. Premium processing will be made available in very limited circumstances, and exclusively for beneficiaries of petitions who are reaching their maximum period of permissible stay in H-1B status, and who require an approved I-140 petition to request an extension of H-1B status pursuant to the provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC 21”).

To qualify for premium processing, as of the date of filing the premium processing request, petition beneficiaries must meet the following criteria:

1. currently hold H-1B status;
2. will reach the end of their 6th year of H-1B nonimmigrant stay in 60 days;
3. are only eligible for a three-year extension of stay as the beneficiary of an approved I-140 petition and are otherwise eligible for lawful permanent resident status except that a visa number is unavailable due to retrogression, pursuant to AC 21, Section 104(c); and,
4. are not eligible for a one-year extension of stay based on a labor certification and/or I-140 petition that has been pending for 365 days or more, pursuant to AC 21, Section 106(a).

If you have any questions as to whether a particular petition may be eligible for premium processing pursuant to these guidelines, please contact your designated Gibney representative.

Multiple Year Employment Authorization Documents

In other immigration news, in his State of Immigration Address on June 9, 2008, Department of Homeland Security Secretary Michael Chertoff announced that USCIS intends to extend the validity period of the employment authorization document (EAD) issued to adjustment of status applicants from one (1) year to two (2) years. According to Secretary Chertoff, commencing later in June, USCIS will begin to issue 2-year EADs to adjustment of status applicants if their application is expected to be pending for more than one year. This suggests that the 2-year EAD will be available for those adjustment of status applicants subject to visa retrogression, whose adjustment of status applications cannot be approved due to the unavailability of visa numbers. Secretary Chertoff did not address how the change in procedure will be implemented. We will provide more information about this and other immigration developments as additional details become available.

If you have any questions about any of the items in this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Practice Group Hosts Seminar on E-Verify and Worksite Enforcement: A Government Perspective

Tue, 10 Jun 2008 14:12:00 -0500

Our Immigration Practice Group is pleased to host a presentation by the Department of Homeland Security for Bay Area employers:

E-VERIFY AND WORKSITE ENFORCEMENT: A GOVERNMENT PERSPECTIVE

Thursday, June 19, 2008
Presentation: 10:00am - 11:00am
Discussion: 11:00am - 11:45am
Hilton Santa Clara
4949 Great America Parkway
Santa Clara, CA 95054

Presentation conducted by

David R. Moss
Senior Special Agent
IMAGE Program Coordinator
U.S. Immigration & Customs Enforcement

Presentation regarding E-Verify and Worksite Enforcement will be followed by a discussion with Minal A. Shah and Deborah B. Davy of Gibney Anthony & Flaherty LLP.

Kindly RSVP to seminars@gibney.com
or (415) 901-2272 by June 13, 2008

Immigration Alert: Executive Order Requires Use of E-Verify for Federal Government Contracts

Michael Hawkes — Tue, 10 Jun 2008 14:10:00 -0500

On June 9, 2008, the President amended Executive Order 12989 to restrict issuance of federal government contracts only to employers that use an electronic employment eligibility verification system designated by the Department of Homeland Security (DHS). E-Verify is the system currently sanctioned by DHS for this purpose.

Specifically, the Executive Order provides that as a condition of each contract with executive departments and agencies of the federal government, employers must agree to use a designated electronic employment eligibility verification system to verify the employment eligibility of:

1. all persons hired during the contract term by the contractor to perform employment duties within the United States; and,

2. all persons assigned by the contractor to perform work within the United States on the federal contract

The Executive Order requires electronic verification of new and pre-existing employees, a major difference from the current E-Verify registration requirements, which are limited to newly hired employees. There is no effective date or deadline specified in the Executive Order, and the issuance of regulations and procedures by DHS and other agencies will be required for full implementation. Gibney encourages employers to begin evaluating the impact of this Executive Order on their business.

About E-Verify

Over the past several years, DHS has invested heavily in developing a robust electronic employment verification system, leading to the current E-Verify program. Employers who register for E-Verify agree to use the online system to verify the work authorization for each new employee. Employers check basic Form I-9 information and social security numbers against records in Social Security Administration and DHS databases. Employers must accept reporting obligations in addition to maintaining Forms I-9 and must agree to take certain steps, including possibly terminating an employee, if E-Verify cannot confirm their work authorization. Although registration is free, training of personnel and other administrative costs may be significant.

Participation in E-Verify continues to be controversial, and is opposed by many business groups, state and local governments, and civil rights advocates. Many groups have expressed concerns about the reliability of federal databases, the administrative burdens on employers, wider government access to employer records, and the system’s ability to properly identify those with employment authorized nonimmigrant status. Efforts by DHS to improve the program are ongoing.

E-Verify is still voluntary for most employers. As of April 2008, less than one percent (1%) of U.S. employers were registered for E-Verify. However, things are changing rapidly. In addition to the amendments to Executive Order 12989 noted above, some states are requiring participation in E-Verify for employers with state contracts, and Arizona is requiring E-Verify for all employers. In April 2008, USCIS extended employment authorization for certain foreign students in F-1 status graduating with “STEM” degrees in science, technology, engineering, and mathematics fields, but only if their employers are registered for E-Verify. There are a number of proposals to expand, eliminate or modify the current E-Verify program, and action from Congress is expected as funding for E-Verify expires in September 2008.

Gibney strongly encourages any employer considering registration in E-Verify to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Gibney will continue to provide relevant updates, trainings and seminars regarding worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Proposes to Increase TN Admission Periods

Michael Hawkes — Fri, 09 May 2008 14:09:00 -0500

Today U.S. Citizenship and Immigration Services (USCIS) published a Notice of Proposed Rulemaking to increase the initial admission period for Canadian and Mexican Trade-NAFTA (TN) professionals from one year to three years. The proposed rule would also permit extensions of stay in three-year increments. The changes are to take effect when the proposed rule becomes final, a date not yet determined.

The proposed three-year initial admission and extension periods for TN professionals more closely mirror the USCIS H-1B specialty occupation visa program. However, unlike the H-1B, the maximum permissible period of stay for TN professionals is not capped at six years. TN professionals may extend their status indefinitely, provided that they continue to engage in designated professional business activities for U.S. employers and provided that they maintain the requisite nonimmigrant intent to depart the United States at the conclusion of their stay.

TN status is available to Canadian and Mexican citizens with appropriate professional credentials who work in certain professions designated in the North American Free Trade Agreement. Eligible TN professions include, but are not limited to, accountants, attorneys, computer systems analysts, economists, engineers, graphic designers, pharmacists, and scientists. Current regulations provide for an initial TN admission period of one year, with extensions of stay available in one-year increments.

We will continue to monitor the status of this proposed rule and provide updates as they become available. For additional information about this alert and TN status generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - UK: The United Kingdom Introduces Radical Immigration Reform

Michael Hawkes — Fri, 09 May 2008 14:06:00 -0500

The United Kingdom Border Agency (UKBA) has introduced a Points-Based System (PBS) to replace the current work permit scheme. These changes will have a significant impact upon UK employers. New compliance regulations will impose both civil and criminal penalties for those companies whose employees do not comply with the immigration entry requirements and conditions of stay. Therefore, employers should take the initiative and institute the appropriate compliance measures to safeguard their employees and company.

I. THE FIVE-TIER APPROACH TO THE POINTS-BASED SYSTEM

Launched in February 2008, the PBS will be implemented in phases through the first quarter of 2009 and will divide all applicants into one of five tiers. The UKBA believes that instituting this new PBS will provide clear guidelines for regularizing visa entry into the UK and will help prevent illegal employment. The five tiers are summarized below:

Tier One: This tier was introduced in February 2008 and will be phased in through the summer of 2008. Tier One is comprised of highly skilled individuals who contribute to the growth and productivity of the UK economy. This tier specifically targets the Highly Skilled Migrants Programme, but includes a broader category of highly skilled professionals such as entrepreneurs, investors and post-study workers. Applicants under Tier One do not require a sponsor, which is a mandatory requirement under the other tiers. Under the PBS, each applicant must have a minimum of 75 points to qualify and this is based on the applicant’s education, experience in and out of the UK, age, and previous salary.

Tier Two: This tier will commence in the fourth quarter of 2008 and replaces the work permit scheme. All Tier Two applicants require a job offer from a registered sponsor who can issue a certificate of sponsorship directly for the employee. The applicant must work in an occupation listed by the Skills Advisory Body (SAB) as a shortage occupation or participate in a Resident Labour Market Test (RMLT). Each applicant must meet the 50 minimum standards under the PBS, which are based on National Vocational Qualifications (NVQ) Level 3 standards. In addition, the applicant must meet the compulsory English language skills requirement. Tier Two also includes intracompany tranfers (ICTs).

Under Tier Two, employees will be initially granted a maximum period of three years stay in the UK, provided this term is consistent with their employment contract. The employee may extend their stay for an additional two years. Once the employee has continually remained in the UK for a five year period, they may apply for Indefinite Leave to Remain (permanent residence) in the UK

Tier Three: There has not been a set time for the introduction of this tier; however, it is expected to take effect in the fourth quarter of 2008. Tier Three is intended to allow a limited number of temporary low-skilled workers into the UK for short periods of time. This tier will be very restrictive and will not allow dependents to accompany applicants, nor will it provide a path to settlement or permanent residence in the UK Tier Three also requires that the applicant have a job offer from a registered sponsor who has prior approval from the UKBA regarding the specific occupation.

Tier Four: This tier is for students and is expected to be implemented during the first quarter of 2009. The student will be required to obtain a certificate of sponsorship from the registered list of approved educational institutions in the UK The student’s nonimmigrant status is tied to the educational institution and is limited to a specified course of study.

Tier Five: This tier will commence in the third quarter of 2008 and will include temporary workers such as Youth Mobility that will replace the Working Holidaymaker Scheme (WHM), Religious workers, Temporary Exchange workers, Creative and Sports workers, au pairs, and trainees. Tier Five will combine all of these temporary workers into one PBS, and each applicant will be required to have a licensed sponsor. The Tier Five applicant will be admitted into the UK for a maximum period of two years.

II. REGISTRATION PROCESS FOR SPONSORSHIPS LICENSED UNDER THE PBS

The UKBA introduced the licensed sponsorship system on March 1, 2008 for employers utilizing the PBS. In order to obtain a license, each employer must demonstrate the following:

• The employer is a bona fide organization operating lawfully in the UK
• The employer is trustworthy; the UKBA will consider the history and background of the organization and key personnel
• The employer is capable of carrying out its duties as a sponsor (see below)

The sponsorship application is filed electronically. The employer is then required to print and sign the submission sheet, and submit it with the supporting documentation and the correct government filing fee within 10 working days. Each employer will be granted an A rating or a B rating, which will be posted on the public register. Once an employer has an approved license, the employer may issue a certificate of sponsorship to an individual employee applicant when the tiers open. The certificate of sponsorship is not a paper document as in the current work permit scheme; rather, a unique reference number is granted for each employer application. The sponsoring employer provides the employee applicant with this number, which is used to file an employment entry clearance visa at the British Consulate having jurisdiction over their place of residence.

III. EMPLOYER PREPARATION FOR A LICENCE APPLICATION

Many employers have started preparing for their license application for sponsorship, and employers should consider filing in June or July 2008 after careful review of the registration process with counsel. Key considerations when preparing the sponsorship application include:

• Collect requisite documentation for each UK entity sponsoring employees. Importantly, all documents are required to be certified photocopies. Limited Companies are required to provide four documents to evidence their trading presence in the UK Examples of acceptable documents include: Audited Annual and Financial Reports, annual self-assessment tax return to HM Revenue & Customs (HMRC), HMRC Registration, VAT Registration Number and Certificate, Company Tax Returns, Corporate Bank Statements, Proof of Business Premises by either purchase or lease. Public Limited Companies are required to provide their London Stock Exchange Number or listing on Alternative Investment Market, plus one additional form of evidence such as one listed above under the Limited Companies.
• Anticipate which companies within your corporate group will need to apply for a license application and begin preparing a comprehensive group structure chart of all subsidiaries.
• Consider whether the company should register for a license as a single group or separately in branches.
• Consider the number of certificates of sponsorship that the company is likely to need per year and how to justify this estimate as it is a required field on the application. These estimates will be used to limit the number of employees sponsored.
• Consider the appropriate individual to serve as the company’s Authorization Officer, responsible for providing certificates of sponsorship to each employee and tracking all activities being performed by the employee for the sponsoring company. Identify the Key Contact who will serve as the main point of contact between the UKBA and the employer sponsor under the PBS.
• Define the organization’s size, sector, and other business details.
• Expect a pre-approval compliance visit from the UKBA to ensure that the company has adequate compliance tools in place to accommodate foreign nationals.

IV. SPONSORSHIP DUTIES UNDER THE PBS

Under the new PBS, the UKBA has outlined the sponsorship duties for recordkeeping, reporting and compliance. All employer sponsors must maintain prescribed records and associated documents for each sponsored employee, and these records must be made available to the UKBA upon request. There is also an ongoing requirement that sponsoring employers must monitor each employee’s immigration status once a year.

Every employer is required to report the following activities or changes in the sponsored employment to the UKBA within ten (10) business days:

• If a sponsored employee does not show up for their first day of employment, regardless of the reason.
• If a sponsored employee takes unexplained absences for more than 10 days.
• If a sponsored employee is terminated, for any reason.
• If there is any material change to the terms and conditions of employment.
• If an employee is involved in any terrorist or criminal activity.

Employers will be required to check the immigration status documents of their employees according to a “3-Step test”. This 3-Step test must be implemented for all new employees to a sponsored company prior to their employment:

1. Request employee’s original immigration status documents
2. Check the validity of the documents
3. Maintain copies of the documents

There are two lists of documents that the sponsored employee must produce. List A includes documents that do not expire and establish that the employee is not restricted from residing in the UK lawfully, i.e., passports or birth certificates. List B includes documents that demonstrate that the sponsored employee has a right to work and reside in the UK on a temporary basis, i.e., work permit issued by the Home Office or UKBA. The sponsored employee’s documentation shall be reviewed by the employer annually.

In order to ensure compliance with the UKBA, employers should take reasonable steps to review the validity of the documents and should maintain copies of all employees’ documents for a minimum of two years after the employee’s exit from the company. The employer should conduct the same document check and record keeping for all new employees joining their company. Employers should develop an ongoing system for review of employee documentation and maintain an accurate record keeping system.

V. PENALTY FOR NONCOMPLIANCE FOR ILLEGAL IMMIGRATION

On February 29, 2008, as directed by the Immigration, Asylum and Nationality Act 2006, a new penalty regime came into effect. This new scheme establishes both civil penalties for employing illegal workers and separate criminal offences for knowingly employing an illegal worker. The maximum penalty an employer could be fined for illegally employing a foreign national is £10,000 or $20,000. The penalties may be increased or decreased depending on the preventative measures the employer took in their bookkeeping and reporting systems, such as routine application of the 3-Step Test above, as well as their willingness to cooperate with the UKBA.
Gibney, Anthony & Flaherty, LLP will continue to provide updates regarding UK migration. For more information or specific legal advice, please contact your Gibney representative.

Immigration Practice Group Hosts Seminar on Hiring and Retaining International Personnel, May 15th in San Francisco

Wed, 23 Apr 2008 14:04:00 -0500

Our Immigration Practice Group presents a seminar on Hiring and Retaining International Personnel:Strategies and Emerging Issues in U.S. and Global Immigration

Thursday, May 15, 2008

Continental Breakfast 8:00 – 8:30am
Seminar 8:30 – 10:00am

Hilton Santa Clara
4949 Great America Parkway
Santa Clara, CA 95054

Topics

PART I: Hiring Foreign Nationals in the U.S.

Pre-Employment Inquiries
- Best Practices for Interviewing Candidates

Onboarding Process for New Hires
- I-9 Compliance
- Evaluating the E-Verify Option
- Update on SSA No-Match Regulations

Emerging & Evolving Issues in U.S. Immigration
- New Rules Extending F-1 Optional Practical Training
- USCIS Benefits Update
- Department of Labor PERM Update

PART II: International Assignments

Retaining U.S. Status While Abroad
- Nonimmigrant Status, Re-Entry Permits, N-470s

Trends in Overseas Assignments
- Regional Strategies
– Choosing the Right Country

Regional Updates
- EMEA - Europe, Middle East and Africa
- Americas - Central and South America
- Asia Pacific

Kindly RSVP to seminars@gibney.com
or (415) 901-2272 by May 9, 2008

* Pre-approved for PHR, SPHR and GPHR Recertification Credit by HRCI

Immigration Alert: USCIS Conducts H-1B Cap Random Selection Process

Michael Hawkes — Tue, 15 Apr 2008 14:03:00 -0500

On April 14, 2008, U.S. Citizenship & Immigration Services (USCIS) conducted the computer-generated random selection process for both U.S. advanced degree H-1B cap petitions and standard H-1B cap petitions filed under the fiscal year (FY) 2009 H-1B cap.

USCIS assigned each petition a unique identifier, and has notified the appropriate USCIS service centers which H-1B petitions were selected for adjudication. The service centers will proceed to process the selected petitions, and receipt notices for these petitions should be issued by June 2, 2008. The full adjudication process is expected to take eight to ten weeks. For petitions selected for adjudication that were filed utilizing premium processing service, the 15-day premium processing period commenced April 14.

USCIS will return unselected petitions with the fees to employers or their authorized representatives. Duplicate filings, prohibited by regulation, will be retuned without refund of the filing fees.

USCIS has also “wait-listed” some H-1B petitions so that if petitions selected in the random selection process are subsequently denied, withdrawn or otherwise found to be ineligible, USCIS may replace the denied/withdrawn petition with one from the wait-list for adjudication. USCIS will issue letters to wait-listed petitioners to advise them that their petition has been wait-listed. USCIS expects that for each wait-listed petition, it will either issue a receipt notice (signaling that the case will be adjudicated) or it will return the petition with fees within six to eight weeks.

If you have any questions regarding this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: May 2008 Visa Bulletin Released

Michael Hawkes — Mon, 14 Apr 2008 13:59:00 -0500

The Department of State (DOS) has published the May 2008 Visa Bulletin. Priority dates advanced in all employment-based categories that are subject to retrogression. Priority dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The cut-off date for Chinese and Indian nationals in the employment-based second preference (EB-2) category advanced slightly from December 1, 2003 to January 1, 2004. In other EB-2 classifications, priority dates for worldwide, Mexican and Filipino foreign nationals remain current, unchanged from the April 2008 Visa Bulletin.

In the employment-based third preference (EB-3) professional and skilled worker category, the worldwide and Philippines priority cut-off dates advanced from July 1, 2005 to March 1, 2006. The priority cut-off date for nationals from China advanced from February 8, 2003 to March 22, 2003. Priority cut-off dates for nationals from India and Mexico also advanced, from October 1, 2001 to November 1, 2001 for Indian nationals and July 1, 2002 for Mexican nationals. The third preference “other worker” category for all foreign nationals also advanced from March 1, 2002 to January 1, 2003.

The full text of the May 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4205.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Reached for Fiscal Year 2009

Michael Hawkes — Fri, 11 Apr 2008 22:01:00 -0500

On April 10, 2008, U.S. Citizenship & Immigration Services (USCIS) announced its preliminary estimate that nearly 163,000 H-1B cap-subject petitions were received during the five-day H-1B filing period ending April 7, 2008. Of these, more than 31,200 petitions were filed in the U.S. advanced degree category. As expected, the number of H-1B petitions received exceeds the number of H-1B visas available. H-1B visas are capped at 65,000 annually, with 6,800 of those visas set aside for nationals of Chile and Singapore pursuant to trade agreements with those countries. USCIS allocates an additional 20,000 H-1B visas for individuals holding a U.S. advanced degree.

Pursuant to regulation, USCIS will conduct a computer-generated selection process to determine which petitions will be selected for adjudication. First USCIS will conduct the random selection process for H-1B petitions received in the U.S. advanced degree category, and 20,000 of the estimated 31,200 petitions received will be selected for adjudication. Those U.S. advanced degree petitions not selected in the first selection process will be placed in the pool of standard H-1B cap petitions, and a second selection process will be conducted for this combined group of petitions. Given the high demand and the limited number of visas available, a significant number of H-1B petitions received during the filing period will be rejected after the random selection process is completed.

USCIS expects to begin the random selection process next week and it may require several weeks to complete. We will continue to monitor the process and provide updates as they become available.

For information regarding the H-1B cap and which petitions are not subject to the annual limit, please see our February 1, 2008 Immigration Alert H-1B Cap Season Approaching, available here. If you have any questions regarding this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New F-1 Optional Practical Training Rule

Michael Hawkes — Tue, 08 Apr 2008 21:58:00 -0500

Today the Department of Homeland Security (DHS) published an Interim Final Rule amending its regulations governing authorized periods of Optional Practical Training (OPT) for some F-1 students. The rule, effective immediately, provides for a 17-month extension of post-completion OPT for certain Science, Technology, Engineering and Mathematics (STEM) degree holders whose employers participate in the E-Verify program. The rule also extends the authorized period of stay and OPT employment for F-1 students who are beneficiaries of H-1B change of status petitions requesting an employment start date of October 1 and whose F-1 status expires before that date. Finally, the rule expands the period during which students may apply for OPT and codifies the permissible period of unemployment during the period of authorized OPT.

Extension of OPT for STEM Degree Holders
Under the new rule, a student currently working pursuant to 12-month post-completion OPT may apply for a 17-month extension of OPT if the student has successfully completed a bachelor’s, master’s or doctoral degree in a STEM field designated on the DHS Stem Designated Degree Program List. In addition, the student must have a job offer from a U.S. employer that is enrolled in DHS’ E-Verify employment verification system.

The Designated School Official (DSO) must certify that the student’s field of study is on the STEM designated list. The STEM degree fields identified in the interim rule include Actuarial Science; Computer Science Applications (except Data Entry/Microcomputer Applications); Engineering; Engineering Technologies; Biological and Medical Sciences; Mathematics and Statistics; Military Technologies; Physical Sciences; Science Technologies; and Medical Scientist. Upon obtaining DSO authorization, the student may apply for an extension of employment authorization on Form I-765, Application for Employment Authorization. The student requesting the extension may continue to work pursuant to the previously issued Employment Authorization Document (EAD) until a decision is made on the extension application or for 180 days while the application is pending, whichever occurs first.

Students seeking the STEM 17-month OPT extension must also have a job offer with a U.S. employer enrolled in DHS’ E-Verify employment verification program. This requirement may ultimately limit the number of students who will benefit from the STEM extension provision. E-Verify is an internet-based system operated by U.S. Immigration and Citizenship Services (USCIS) in partnership with the Social Security Administration (SSA). Employer participants must enter into a Memorandum of Understanding with DHS and SSA to participate in E-Verify, and once enrolled, employers must verify all new hires (and not just F-1 OPT new hires) at the registered worksite using the E-Verify system.

Participation in the E-Verify program is controversial, as the system is considered by many to be flawed due to its reliance on inaccurate and outdated federal databases. Currently, less than one percent of the total number of employers in the U.S. are enrolled in E-Verify. Gibney strongly encourages any employer considering registration in E-Verify to contact their designated Gibney representative to discuss the legal implications of registration.

In addition to requiring E-Verify enrollment, the rule also requires employers of F-1 students qualifying for the 17-month extension to report to the student’s DSO within 48 hours if the student’s employment ends prior to the end of the authorized OPT period.

“Cap-Gap” Relief
The rule also provides for the extension of the authorized period of stay and employment for F-1 students subject to the “cap-gap.” A cap-gap occurs when an F-1 student’s authorized period of stay (including authorized period of post-completion OPT and the ensuing 60-day departure preparation period) expires before the H-1B petition takes effect on October 1. Prior to implementation of the new rule, a student with a cap-gap was required to depart the U.S. and remain abroad until the effective date of the H-1B petition. The new rule automatically extends status and employment authorization for F-1 students until October 1 if they are beneficiaries of H-1B change of status petitions with an October 1 start date. These students are permitted to remain in the U.S. and work until October 1, at which time, the H-1B petition, if approved, takes effect. By regulation, the F-1 employment authorization is only extended until October 1; presumably, if the H-1B petition is not approved by October 1, the F-1 student must cease employment until the H-1B petition is approved. If the H-1B petition is ultimately denied or rejected, the student will have the standard 60-day period to depart the U.S.

This provision is available to all F-1 students with pending H-1B change of status petitions requesting an October 1 start date. It is not limited to STEM degree holders or to those working with employers enrolled in E-Verify. We await further guidance from USCIS as to how an F-1 student who is the beneficiary of an H-1B petition previously filed for consular notification (and not change of status) in anticipation of a cap-gap may take advantage of this provision.

Other Provisions
Under the new rule, F-1 students are permitted to apply for post-completion OPT during the 60-day departure preparation period after they have completed their studies. Previously students were required to apply for OPT prior to completing their course requirements.

Finally, for the first time, the regulation specifies the maximum period during which an F-1 student may be unemployed while holding post-completion OPT. A student granted 12-month OPT is permitted an aggregate period of 90 days of unemployment. This period increases to 120 days if the student is granted the 17-month STEM extension.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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IP Article: Gibney Partner Brian Brokate Quoted in New York Post Article

Sun, 06 Apr 2008 21:55:00 -0500

'SEX AND THE SLUTTY' BLOWUP

By: PHILIP RECCHIA

April 6, 2008 -- Sarah Jessica Parker is the unwitting inspiration for a new X-rated blowup doll whose packaging uses a look-alike model and references to Parker's character, Carrie Bradshaw, in the hit HBO show "Sex and the City."

Plastered on the box is a picture of a wavy-haired model in a sequin minidress holding a cosmopolitan. The labeling is in the same font as the "Sex and the City" typography.

The doll retails online for about $20 and is the latest in a line of celebrity blowups from Pipedream Products.

The Chatsworth, Calif., sex-toy company's Web site touts the doll with mock laudatory newspaper reviews, like this one from "USGay Today": "From laptops to lap dances, this high-class piece of a - - is gonna show you her Lower East Side!"

"I would think HBO would make an effort to stop this on the basis of trademark infringement," Brian Brokate, a Manhattan intellectual-property attorney, told The Post.

"The courts don't look kindly on this type of thing, which demeans the show and tarnishes the star's image," he added.

"Sex and the City: The Movie," starring Parker, 43, is due in theaters next months.

Immigration Alert: New Rule for H-1B Cap Petition Processing

Michael Hawkes — Wed, 26 Mar 2008 21:53:00 -0500

On March 24, 2008 the Department of Homeland Security published an Interim Final Rule amending its regulations governing the filing of H-1B petitions subject to annual numeric limitations (the “cap”). The rule, effective immediately, impacts H-1B cap petitions filed on April 1, 2008. The basic limit on H-1B visas and the filing process remain unchanged. The new rule prohibits multiple filings for the same beneficiary, expands the qualifying period for the H-1B random selection process, and provides for denial of petitions erroneously claiming cap exemption.

Prohibition on Multiple Filings for Same Beneficiary
Under the new rule, USCIS will deny all multiple H-1B cap petitions filed by the same employer for the same beneficiary in the same fiscal year, even if each petition contains a distinct job offer, and even if one petition is filed under the standard H-1B cap and one petition is filed under the U.S. advanced degree cap. (For a background discussion of the standard and U.S. advanced degree H-1B cap, please see our February 1, 2008 Immigration Alert H-1B Cap Season Approaching, available here.) Related employers, such as parent, subsidiary or affiliated companies, may file H-1B cap petitions on behalf of the same beneficiary for distinct positions provided that each related employer can demonstrate a legitimate business need to hire the beneficiary within the corporate structure. USCIS cautions against using this exception to file multiple petitions for the same beneficiary solely to increase the odds of being selected in the H-1B random selection process. USCIS may deny or revoke all petitions filed by related employers for the same beneficiary if it determines that the affiliated employers failed to establish a legitimate business need for filing multiple petitions.

Random Selection Qualifying Period Expanded
The rule also changes the random selection procedures utilized if the number of H-1B cap petitions received by USCIS exceeds the number of H-1B visas available in the fiscal year. Specifically, if USCIS receives a sufficient number of petitions to reach the cap on any one of the first five business days of filing, (this year, April 1 through April 7), USCIS will include all petitions filed on all five days in the random selection process. This is likely to have the effect of increasing the number of petitions included in the random selection process, thereby decreasing the odds of any one H-1B petition being selected for adjudication.

If more than 20,000 U.S. advanced degree petitions are received in the first five days of filing, USCIS will first conduct the random selection process for these petitions. U.S. advanced degree petitions not selected in this process will then be placed in the pool of standard cap petitions, and a second random selection process will be conducted for this combined group of petitions.

Denial of Petitions Erroneously Claiming Cap Exemption
Finally, the new rule addresses USCIS processing of H-1B petitions that are filed after the cap is reached and which claim to be cap-exempt. If USCIS determines that the petition is, in fact, cap-subject, USCIS will deny (and not reject) the petition. As a result, the petitioning employer will lose all H-1B petition filing fees.

Additional information about the changes in H-1B cap procedures is available at www.uscis.gov. If you have any questions regarding this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: April 2008 Visa Bulletin Released

Michael Hawkes — Mon, 17 Mar 2008 21:50:00 -0500

The Department of State (DOS) has published the April 2008 Visa Bulletin. Visa numbers are once again available for Indian nationals in the employment-based second preference (EB-2) category. The cut-off date in this category advanced to December 1, 2003, meaning that, as of April 1, immigrant visas are available for Indian nationals who have EB-2 priority dates before December 1, 2003. In other EB-2 classifications, priority dates for worldwide, Chinese, Mexican and Filipino foreign nationals remain unchanged from the March 2008 Visa Bulletin.

Priority dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based third preference (EB-3) professional and skilled worker category, the worldwide and Philippines priority cut-off dates advanced from January 1, 2005 to July 1, 2005. The priority cut-off date for nationals from China advanced from December 1, 2002 to February 8, 2003. Priority cut-off dates for nationals from India and Mexico also advanced to October 1, 2001. The third preference “other worker” category for all foreign nationals also advanced slightly, from January 1, 2002 to March 1, 2002.

The full text of the April 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4177.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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WWD.com Article: Counterfeit Crackdown: New York Police Shutter Canal Street Buildings

Wed, 27 Feb 2008 21:46:00 -0600

By Ross Tucker

NEW YORK — The Counterfeit Triangle has been flattened.

A collection of buildings in Chinatown occupying a city block and operating as a virtual mall for counterfeit goods was raided by New York City police officers Tuesday morning, resulting in the seizure of more than $1 million in knockoff accessories and fragrances bearing some of the fashion industry's best-known labels, including Prada, Fendi, Coach, Rolex, Gucci, Dolce & Gabbana, Burberry, Calvin Klein — and even Dora the Explorer.

The three raided buildings comprised what the Mayor's Office of Special Enforcement and the NYPD dubbed the "Counterfeit Triangle," a reference to the shape of the block formed by Canal, Walker and Centre Streets. The block was found to house 32 storefronts illegally selling fake goods. All three buildings are owned by the Vincent Terranova estate, a landlord who city officials said has knowingly rented out space to counterfeit retailers dating as far back as 1999.

And Mayor Michael Bloomberg trumpeted during a press conference that the bust, which he said was one of the largest takedowns of trademark copiers in the city's history, shows New York's get-tough attitude toward counterfeiters.

"Today, the message we're sending to counterfeiting operators and their landlords throughout the city is, whoever you are, wherever you are, we are going to shut you down," Bloomberg said.

The mayor added, "[The Counterfeit Triangle] has been one of the most notorious knockoff shopping malls in the five boroughs, one with more than 150 employees operating with impunity 10 or more hours a day, seven days a week, even while the building owners were under a long-standing federal court order to stop counterfeiting activities."

Investigators involved in undercover operations that began in January said they made purchases of counterfeit goods from as many as 56 separate vendors who had set up shop in the buildings. Kevin Dougherty, president of private investigations firm Counter-Tech Investigations Inc., which was involved in the probe, said it likely would take two days to empty out the contents of the buildings, but the majority of items seized so far had been handbags, scarves, belts, watches and fragrances.

"This is really the best event that's happened to Canal Street," said Dougherty, who added that searches of the buildings uncovered additional storage rooms and backroom retail operations.

No arrests have been made, but city officials will move quickly to issue violations of health and safety codes that will result in orders to vacate the premises, effectively shutting the buildings down.

This strategy has been successfully employed elsewhere in the city and puts the burden of counterfeiting on the shoulders of landlords. In 2003, the Mayor's Office and the NYPD began a joint initiative to clean up a stretch of buildings on Broadway in the 20s and 30s that were subdividing floors into makeshift stalls for counterfeit vendors. Rooms filled from floor to ceiling with counterfeit apparel and footwear were rampant before the police started raiding buildings and issuing violations that allowed them to remove the vendors and padlock the doors.

By 2005, the Mayor's Office and the NYPD had seized more than $45 million in counterfeit merchandise and taken 13 of the largest buildings involved off the market. Police Commissioner Raymond Kelly said during the press conference Tuesday that citywide in 2006, more than $25 million in counterfeit goods were seized, 75 warrants issued and almost 100 arrests made. Last year, seven locations were closed and $500,000 in fines collected. The products seized included everything from DVDs to computer games to apparel.

Dougherty believes the Midtown effort was the "single most important event that defined enforcement in New York" and noted that several buildings in the area remain closed. The city also has been vigilant in revisiting buildings in Midtown that have reopened to make sure illegal activity does not resume. Dougherty believes landlords are getting the message.

"The landlords from Canal Street will not want to bear the same brunt as those on Broadway," he said.

Bloomberg sees the counterfeiting industry as a direct threat to the economic vitality of the city and its ability to draw some of the world's biggest brand names to conduct business here.

"We want all companies in this country and this world to understand if they come to New York, we will protect their rights," Bloomberg said. "We're going to go after anybody that tries to defraud them."

Intellectual property lawyers and brand owners praised the work of the Mayor's Office of Special Enforcement and the NYPD, and believe that the strategy of going after landlords is having a lasting impact.

"The strategy has paid off very well," said Brian Brokate, partner with Gibney, Anthony and Flaherty LLP, which represents several of the brands involved. "It takes months for the landlords to go through nuisance abatement proceedings to get their property back. The premises are not recovered without significant expenditure of time and money from a landlord. What it does is keep the building clean. Landlords become very vigilant."

This strategy has been applied to the Canal Street area before, but not on such a large scale, according to Brokate.

Heather McDonald, a partner with Baker Hostetler LLP, whose firm also represents several brands found in the raid, said that, although there have been larger seizures in dollar terms, the raid served as an example of the sustained pressure being applied by the city.

"The fact that the city took steps to rid the city of a chronic problem is significant," said McDonald.

Bloomberg also had a message for the throngs of tourists that continue to flood Chinatown in search of knockoff labels: "This is the wrong place to come if you want to buy stolen merchandise. We are not a place that engages in criminal activity."

IP Article: Mayor Bloomberg, Commissioner Kelly and Special Enforcement Director Hyman Announce Major Counterfeit Goods Seizure In Chinatown's Counterfeit Triangle

Tue, 26 Feb 2008 21:40:00 -0600

PR- 065-08
February 26, 2008

Mayor's Office of Special Enforcement Wins Court Action to Shutter 32 Illegal Storefronts Today

Mayor Michael R. Bloomberg, Police Commissioner Raymond W. Kelly and Director of the Mayor's Office of Special Enforcement Shari C. Hyman today announced that the City raided dozens of storefronts on a single triangular block of Manhattan's Chinatown that are notorious locations for the sale of counterfeits. The counterfeit goods seized by the Mayor's Office of Special Enforcement and the Police Department's (NYPD ) 5th Precinct and Patrol Borough Manhattan South, including fake Rolex, Coach and Gucci products, have an estimated street value of over $1,000,000. In an accompanying lawsuit, the City won a Temporary Restraining Order to shutter the storefronts. The owner of the so-called Counterfeit Triangle will have to replace the counterfeit vendors with legitimate businesses and pay a substantial fine to the City before the buildings can be reopened. Today's seizures and lawsuit are the culmination of a two-month investigation by the Mayor's Office of Special Enforcement and the NYPD.

"Counterfeit goods cheat the City, consumers, legitimate business owners, and trademark holders and their proliferation is standing in the way of the revitalization of Chinatown," said Mayor Bloomberg. "Not only are counterfeit goods usually inferior in quality, they are sold by unscrupulous merchants that have been linked to money laundering operations. I want to make hosting counterfeiters a losing business proposition for property owners, and that's why after we seize counterfeit goods we are using the Nuisance Abatement law to close the buildings down."

"Each corner of this triangle flouted the law and lowered the quality of life in the area. Using Nuisance Abatement laws we will make sure this activity is gone for good," said Shari C. Hyman, Director of the Mayor's Office of Special Enforcement. "This is the largest single operation my office has conducted, and I hope the entire Counterfeit Triangle is transformed into legitimate tax-paying businesses."

"We need consumers to help us instead of burying their heads in the sand," said Commissioner Kelly. "No matter how 'victimless' a crime may appear, when you scratch the surface you are bound to find some unpleasant realities. That's true in the knock-off trade. The NYPD will continue to do its part to stop the counterfeiters. But we need educated consumers to do their part too."

"A tremendous thanks to Mayor Bloomberg and the Office of Special Enforcement for recognizing the pervasive crime of trademark counterfeiting and stepping up to the plate," said Brian W. Brokate, Partner at Gibney, Anthony & Flaherty, LLP acting as General Counsel for Rolex. "Rolex applauds all of their efforts, particularly today's raid and lawsuit."

"We want to thank Mayor Bloomberg, Police Commissioner Kelly, Criminal Justice Coordinator John Feinblatt and Office of Special Enforcement Director Shari Hyman for this operation, the size and scope of which is unprecedented," said Robert Barchiesi, President of the International Anticounterfeiting Coalition. "It is a sign that this Administration takes trademark infringement seriously.

The Counterfeit Triangle, a notorious location for the sale of counterfeit goods, is bounded by Canal Street, Walker Street and Centre Street, and consists of 32 storefronts. As part of the Mayor's Office of Special Enforcement investigation, 42 undercover purchases were made in various storefronts. The investigation uncovered counterfeits of Coach, Gucci, Dolce & Gabbanna, Dior, Prada, Rolex, Fendi, Burberry, Calvin Klein, Dora the Explorer and Oakley. The building addresses in the Counterfeit Triangle that were the subject of today's raids are 224 - 230 Canal Street; 232 Canal Street; 234 - 238 Canal Street; 106 Baxter Street; 112 - 116 Walker Street; 118 Walker Street; 120-124 Walker Street; and 152-156 Centre Street.

Mayor Bloomberg created the Office of Special Enforcement by Executive Order in December, 2006. It replaced the former Office of Midtown Enforcement and expanded its activities to all five boroughs. The Office of Special Enforcement is responsible for coordinating enforcement efforts across City agencies to address quality of life issues related to notorious adult use locations, lawless clubs, trademark counterfeiting bazaars and illegal conversions of apartment buildings into hotels. The Office of Special Enforcement and its predecessor has, since 2003, shut down 23 counterfeiting locations, seized some $60 million in knock-off goods and forced building owners and counterfeiters to pay $1.5 million in fines to the people of New York City.

Immigration Alert: March 2008 Visa Bulletin Released â€“ Advances in Most Categories

Michael Hawkes — Wed, 20 Feb 2008 21:38:00 -0600

The Department of State (DOS) has published the March 2008 Visa Bulletin. The availability of immigrant visa numbers in each category listed on the Visa Bulletin determines whether an application for permanent residence may be filed or approved. If a cut-off date is listed, the applicant must have a priority date that is earlier than the cut-off date to be eligible to apply for permanent residence.

Due to extremely high demand for visa numbers for Indian nationals in the employment-based second preference (EB-2) category, visa numbers remain unavailable in this category. “Unavailable” means that the annual limit for this category has been reached, and there are no visa numbers available for issuance. In other EB-2 classifications, priority dates for worldwide, Mexican and Filipino foreign nationals remain "current", unchanged from the February 2008 Visa Bulletin. The cut-off date for Chinese nationals advanced from January 1, 2003 to December 1, 2003.

In the employment-based third preference (EB-3) professional and skilled worker category, the worldwide and Philippines priority cut-off dates advanced significantly from November 1, 2002 to January 1, 2005. The cut-off dates for nationals from China advanced to December 1, 2002, and India also advanced to August 1, 2001. The EB-3 professional and skilled worker priority cut-off date for Mexico moved forward slightly to May 1, 2001. The third preference “other worker” category for all foreign nationals also advanced, with a priority cut-off date of January 1, 2002.

The full text of the March 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3953.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Attorney Christina Gardner to Speak on March 4th "Life After Law School" Panel

Tue, 19 Feb 2008 21:35:00 -0600

The Entertainment Law Initiative and St. John’s University School of Law Present:

Life after Law School

A cross section of entertainment law practitioners put “life after law school” and the transitional phase from law student to practicing attorney into perspective or at least offer a little insight. Topics will include: (i) traditional vs. non-traditional careers; (ii) internships (when and where to look); (iii) the importance of legal writing; (iv) the importance of “staying current”; and (v) networking. This seminar is in memory of Prof. Joseph J. Beard, a distinguished professor and a compassionate mentor.

Keith Hauprich (moderator)

Panelists will include:

Bob Donnelly, Joe Salvo, Rick Meuser, Matt Finkelstein, Chris Papaleo, Evan Krauss, Rich Pawelczyk, Christina Gardner, Deborah Rigaud, & Mordecai Goldstein

March 4, 2008 at 2pm
St. John's University School of Law
Manhattan Campus Room 123
101 Murray St.
New York, NY 10007

To RSVP Contact Brittany White
BWhite@cherrylane.com
212-561-3723

Immigration Alert: H-1B Cap Season Approaching

Michael Hawkes — Fri, 01 Feb 2008 21:31:00 -0600

April 1, 2008 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2009 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation commencing early in the new year. We encourage employers to consider their H-1B cap cases now, and initiate the preparation of cap cases as soon as possible to ensure timely filing of cases.

Background

H-1B cap cases generally fall within two categories:

Last year USCIS received a sufficient number of standard H-1B petitions to meet and exceed the FY 2008 standard H-1B cap on the first day of filing (April 1). In fact, USCIS received nearly twice as many petitions as visas available. By regulation, when USCIS receives a sufficient number of petitions to meet the FY H-1B cap on the first day of filing, it collects all petitions received on both April 1 and April 2, and conducts a computerized lottery to determine which cases will be selected for adjudication and allocation of an H-1B visa, if approved. The allocation of 20,000 visas for U.S. advanced degree H-1B cases was reached on April 30, 2007.

2008 Filing Dates

By USCIS regulation, the earliest date a petitioner may file a petition requesting cap subject FY 2009 H-1B employment commencing October 1, 2008, is April 1, 2008. This year, April 1 falls on a Tuesday, meaning that FY 2009 H-1B cap cases should be sent to USCIS via overnight delivery service on Monday, March 31, 2008 to ensure delivery to USCIS on April 1, 2008. Given that last year USCIS received a sufficient number of standard H-1B petitions to meet and exceed the FY 2008 H-1B cap on April 1, for all practical purposes, March 31, 2008 is also the last day employers should plan to send FY 2009 H-1B cap cases to USCIS in anticipation of receiving a FY 2009 H-1B visa.

Changes in 2008

At a recent conference of the American Immigration Lawyers Association, a USCIS representative stated that few changes for FY 2009 H-1B cap filings are expected. Any changes are likely to address minor filing procedures such as mailing addresses and envelope identification instructions. The USCIS representative did state that there may be a regulatory change officially prohibiting duplicate filings by the same employer for the same individual based on different job opportunities or submitting both a standard and a U.S. advanced degree cap petition for the same individual. Under this proposal, if duplicate filings are received, both petitions will be denied.

Steps to Take Now

To the extent feasible, employers should now attempt to identify their H-1B cap candidates. Employers are encouraged to gather supporting documentation including education credentials (degree certificates and transcripts) and all applicable status documentation, including I-20 documents and Employment Authorization Documents issued to foreign nationals currently in the United States in F-1 (student) status. This documentation, along with the company’s job description, salary data and related information, should be forwarded to counsel as soon as possible for the purpose of both evaluating and preparing the H-1B petition and evaluating alternative immigration strategies.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2009 annual cap. These include the following:

- Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals for whom an H-1B petition was previously approved and who were counted against the cap within the last six years, are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.

- Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated non profit entities, nonprofit research organization and governmental research organizations are cap-exempt.

If you have any questions as to whether a petition is subject to the cap, or about H-1B cap filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New Procedures for U.S. and Canadian Citizens at U.S. Land and Sea Ports Effective January 31, 2008

Michael Hawkes — Mon, 28 Jan 2008 21:29:00 -0600

Commencing January 31, 2008, travelers entering the United States at land and sea ports will be required to present documentary evidence of citizenship and identity to gain admission. This change primarily affects U.S. and Canadian citizens who heretofore have been able to secure admission to the United States at land and sea ports by making an oral declaration of citizenship. Effective January 31, U.S. and Canadian citizens age 19 years and older will be required to present documents establishing both citizenship and identity from an approved list of secure documents. U.S. and Canadian citizens have the option of presenting a single document establishing both identity and citizenship or they may present two documents, one establishing identity and one establishing citizenship.

Single Document Option. One of the following documents should be presented to prove both identity and citizenship:

- U.S. or Canadian Passport
- U.S. Passport Card (available spring 2008)
- Trusted Travel Cards (NEXUS, SENTRI, or FAST)
- State or Provincial Issued Enhanced Driver’s License (when available – this secure driver’s license will denote identity and citizenship.)
- Enhanced Tribal Cards (when available)
- U.S. Military Identification with Military Travel Orders
- U.S. Merchant Mariner Document
- Native American Tribal Photo Identification Card
- Form I-872 American Indian Card
- Indian and Northern Affairs Canada (INAC) Card

Two Document Option. U.S. and Canadian citizens who do not have a single document establishing both identity and citizenship must present one identification document and one citizenship document from each of the lists below:

Identification Documents (All must have a photo, name and date of birth.)

- Driver’s license or identification card issued by a federal, state, provincial, county, territory, or municipal authority
- U.S. or Canadian military identification card

Citizenship Documents

- U.S. or Canadian birth certificate issued by a federal, state, provincial, county, territory or municipal authority
- U.S. Consular report of birth abroad
- U.S. Certificate of Naturalization
- U.S. Certificate of Citizenship
- U.S. Citizen Identification Card
- Canadian Citizenship Card
- Canadian certificate of citizenship without photo

U.S. and Canadian citizen children 18 years and younger will only be required to present a birth certificate issued by a federal, state, provincial, county, or municipal authority.

Other Travelers

All existing nonimmigrant visa and passport requirements for travelers other than U.S. and Canadian citizens will remain in effect and are not altered by the changes taking effect January 31, 2008. U.S. Permanent Residents should present their Permanent Resident Card (I-551) or other evidence of lawful permanent resident status, and Mexican citizens, including minor children, must present a valid passport and a B-1/B-2 nonimmigrant visa or a Border Crossing Card.

For additional information, you may visit the U.S. Customs and Border Protection website at www.cbp.gov.

If you have any questions about this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Tax Article: 409A Correction Program

Tue, 15 Jan 2008 21:27:00 -0600

In order to qualify for the relief provided for in the Notice, there are specific requirements with respect to notices that must be attached to the tax returns of the service recipient, the information that must be provided to the service provider and, in certain cases, information that must be attached to the tax return of the service provider.

It is important to identify and correct 409A operational errors quickly and in the manner required by the Notice in order to minimize or eliminate 409A penalties.

If you identify a 409A operational error and would like assistance to ensure that the correction of the error complies with the requirements of the Notice, please contact Fred Anthony at (212) 705-9802 or Ken Sacks at (212) 705-9859.

IP Article: Election of Statutory Damages Precludes the Award of Attorney's Fees Ninth Circuit Court of Appeals

Michael Hawkes — Tue, 15 Jan 2008 21:24:00 -0600

On December 18, 2007, the Ninth Circuit Court of Appeals held that a plaintiff will not be granted attorney’s fees if it elects to recover statutory damages as opposed to actual damages. On appeal from the Central District of California, the Court upheld the $20,000 statutory damages award but reversed and denied the $100,000 award for attorney’s fee.

For several decades, appellee K&N Engineering (“K&N”) has been engaged in the design, manufacture and distribution of aftermarket automotive air filters and related products. K&N’s stylized logo, the basis for two of K&N’s trademarks, appears on decals included with many of its products. K&N has sold such decals on the internet as one method of distribution. Appellants were selling unauthorized decals bearing the K&N logo on eBay. K&N filed its complaint alleging trademark infringement, counterfeiting, dilution and related state law statutory and common law causes of action. Pursuant to 15 U.S.C. § 1117(c)(1) and (b), the district court awarded K&N statutory damages of $20,000 and attorney’s fees of $100,000. Appellants appealed.

On appeal, appellants argued that K&N’s election to receive statutory damages under 15. U.S.C. § 1117(c), precluded it from an award of attorney’s fees under § 1117(b). The Court interpreted the statute through plain meaning and first discussed the award of actual damages in § 1117(a), which grants the award of attorney’s fees. Next, the court discussed § 1117(b) – the award of three times the actual damages, plus attorney’s fees. Finally, it looked to § 1117(c) – the election of statutory damages. The Court stated that § 1117(c) makes no provision for attorney’s fees, nor does it authorize such fees for a plaintiff seeking statutory damages. The Court, from this line of analysis, concluded that the election of statutory damages under § 1117(c) precludes an award of attorney’s fees under § 1117(b) and reversed the district court’s award of attorney’s fees.

No other U.S. Circuit has made such a decision and it is not likely to occur, at least any time soon, due the legal precedent heavily contradicting this decision and social policies behind the statute. As for now, attorneys before the Ninth Circuit are laborers to this judgment. Strategies for litigation may change. Plaintiffs will weigh an award consisting of lower actual damages and attorney’s fees with an award for statutory damages, hoping that the sum is sufficient to cover the fees and costs of litigation. In light of this decision, plaintiffs may wish to argue that attorney’s fees are indeed granted through the means of incorporation into the statutory award. Instead of attorney’s fees being awarded “in addition” to the statutory damages, the single final judgment takes both into account. Both are factored into the damages sum, not to exceed the maximum award, per mark, of one million dollars.

In time, this decision may be reversed. Arguments of precedent against this outcome are tremendous. However, for a reversal, the Ninth Circuit has to review its own decision or K&N must appeal to the Supreme Court (there has been no word on an appeal at this point). Many seem to think that this decision will not stand and look back to the long line of copyright and trademark cases granting attorney’s fees separate from statutory damages. Trademark Law and its policies have roots grounded in Copyright Law. As Trademark Law developed, and still is developing, the legislature was inclined to consult with copyright laws to set its standards and principles. Therefore, the law of Trademarks mimics that of Copyrights, in many respects, and under Copyright Law, attorney’s fees have traditionally been a separate award from statutory damages.

Also, under the Lanham Act, judges have very broad discretion when it comes to granting attorney’s fees. If the statutory criterion is not met, a judge can deny attorney’s fees. For example, a judge’s discretion addresses the situation of the occasional over-zealous client and litigator, knowingly litigating over a small amount, yet never settling in order to “prove a point.” It also addresses circumstances of long and involved investigations, needing extensive man hours and expertise to calculate damages (even if the sum is small), creating hefty, yet quite legitimate attorney’s fees. The judge’s experience and wisdom determines whether or not attorney’s fees will be granted. The point – attorney’s fees are never simply granted. This holding seems unproductive after taking into account this discretionary power, coupled with the fact that attorney’s fees will still be a factor in the ultimate statutory damages award.

There are also social policy arguments in favor of attorney’s fees. Normally, statutory damages are elected when actual profits and damages are unavailable or extremely difficult to calculate. Statutory damages were originally constructed to protect rights holders from criminals that did not keep adequate records of their criminal activities. This is often the situation in counterfeiting cases, where plaintiffs are left with no choice but to elect for statutory damages. The denial of attorney’s fees in such cases may deter litigation against criminals. Criminals should not be rewarded for keeping poor records.

It seems that the interpretation of the statute until now has been to substitute statutory damages for actual damages in sections (a) and (b), thereby granting attorney’s fees along with the election of statutory damages. Why the attorney’s fees were taken out of the equation in section (c) is baffling.

For further information regarding this decision, please contact Christina L. Gardner - cgardner@gibney.com

Immigration Alert: February 2008 Visa Bulletin Released

Michael Hawkes — Thu, 10 Jan 2008 17:42:00 -0600

The Department of State (DOS) has published the February 2008 Visa Bulletin. Due to extremely high demand for visa numbers for Indian nationals in the employment-based second preference (EB-2) category, visa numbers are unavailable in this category as of February 1. “Unavailable” means that the annual limit for this category has been reached, and there are no visa numbers available for issuance. In other EB-2 classifications, priority dates for worldwide, Chinese, Mexican and Filipino foreign nationals remain unchanged from the January 2008 Visa Bulletin.

In the employment-base third preference (EB-3) professional and skilled worker category, the worldwide and Philippines priority cut-off dates advanced from October 15, 2002 to November 1, 2002. The cut-off dates for nationals from China and India also advanced slightly to November 15, 2001 and May 8, 2001, respectively. The EB-3 professional and skilled worker priority cut-off date for Mexico remains April 22, 2001, unchanged from January. The third preference “other worker” category for all foreign nationals is also unchanged, with a priority cut-off date of October 1, 2001.

The full text of the February 2008 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3925.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Practice Group Hosts February, 27th Seminar on Emerging Issues in U.S. & Global Immigration

Wed, 09 Jan 2008 21:19:00 -0600

Our Immigration Practice Group presents a seminar on Emerging Issues in U.S. & Global Immigration:

Wednesday, February 27, 2008
Seminar 4:00 - 6:15pm
Reception 6:15 - 8:00pm
The Pyramid Center
600 Montgomery St., 48th Floor
San Francisco, CA 94111

Topics:

PART I: U.S. IMMIGRATION AND WORKSITE ENFORCEMENT

Worksite Enforcement

• I-9 compliance and electronic verification / E-Verify

• Enforcement trends and proactive steps for HR and employment counsel

Adjustment Portability Under AC21

• Implications for recruiting and retention six months after the July 2007 Visa Bulletin

Preparing for the H-1B Lottery

• Best practices and alternatives to the H-1B visa Legislative Updates

PART II: GLOBAL MOBILITY - CHALLENGES AND STRATEGIES

Keys to a Successful Program

• Compliance and strategies for an effective Global
Mobility Program

Regional Updates

• EMEA - Europe, Middle East and Africa

• Americas - Central and South America

• Asia Pacific

Presenters:

Stephen J. O. Maltby, Esq,
J. Claire Razzolini, Esq.
Minal A. Shah, Esq.
Deborah B. Davy, Esq.

If you are interested in attending the seminar, please send your name and contact information to seminars@gibney.com

Gibney Partner Steve Ruffino to Speak at February, 28th Advanced Human Resource Audits Seminar in New York, NY

Tue, 08 Jan 2008 21:16:00 -0600

Benefits of Attending this Event:

Are you asking for an employment lawsuit - without even realizing it?

If you own a small business or are responsible for human resource management, you probably agree that employment and labor issues continue to top the list of challenges facing your company. New developments and trends are occurring more rapidly than ever in state and federal legislatures and in the courts.

This seminar will be a detailed how-to course you can take with you and use the next time employment topics become an issue. It's not enough to have a strategy that helps you win the lawsuit when it happens - we'll help you prevent the lawsuit and the legal fees that go with it. Our experienced faculty will present handy tips in an easy-to-use, easy-to-understand format - with a minimum of legalese. You'll gain helpful strategies on virtually all areas of concern to an employer, including the most recent developments and trends.

In One Day, You'll Learn To:

- Implement and use advanced human resource auditing techniques

- Enhance your HR auditing activities

- Strengthen your organization's internal controls

- Assess your exposure to employment practices liabilities - and minimize it

- Stay abreast of how recent federal and state laws and court decisions impact your HR management responsibilities

Who Should Attend?

This one-day seminar is designed for human resource professionals, controllers, accountants, business owners and managers, presidents, vice presidents, payroll professionals, operations managers, finance managers and attorneys.

Continuing Education Units

AIPB 8.0
APA 6.0
HRCI 6.5
HRPD 1.0
IACET 0.65
CPE 8.0 including Personnel/HR 8
NY CLE 8.0 including Areas of Professional Practice 8

To learn more or to register for this event, please visit the following site: http://www.lorman.com/seminars/seminar_details.php?sku=377230

Gibney Opens San Francisco Office

Wed, 02 Jan 2008 21:14:00 -0600

Gibney, Anthony & Flaherty, LLP is pleased to announce
the opening of our San Francisco office.

Two Transamerica Center
505 Sansome Street, Suite 1200
San Francisco, California 94111
Main: (415) 901-2270
Fax: (415) 986-1374
www.gibney.com

Minal Shah has joined Gibney’s Immigration Practice Group
and is serving as Senior Counsel in San Francisco.

We are also pleased to announce the addition of Deborah Davy as Senior Counsel to our Global Immigration Practice.

Global Immigration Alert: Schengen Area Expands Today - Inclusion of Nine New Schengen Member States

Michael Hawkes — Fri, 21 Dec 2007 21:11:00 -0600

Effective today, December 21, 2007, nine additional countries have been added to the current group of fifteen Schengen member states. The new member countries are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia.

Historical Information

With its inception in June 1985, the Schengen Agreement (the “Agreement”) introduced the abolition of systematic border controls between the contracting parties. The Agreement contains provisions for a uniform policy on entry and temporary stay of persons, the harmonization of external border controls, and cross-border police cooperation. Previously there were fifteen states party to the Agreement: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, and Sweden (collectively “Signatory States”). The Republic of Ireland and the United Kingdom take part in police cooperation measures, but not the common border control and visa provisions.

The Signatory States issue a uniform visa, the Schengen Visa, to foreign nationals who may not enter the Schengen region under a visa-exemption status. The Schengen Visa is issued by the consular post of one of the Signatory States and is valid for travel throughout the entire Schengen region.

Provisions for New Schengen Member States

Effective today, consular posts of the nine new Schengen member states have commenced issuing Schengen Visas to foreign nationals who require a visa to enter the Schengen region. Schengen Visa issuance procedures previously in place continue to apply:

If entry is sought into one Schengen country, an application for the visa should be submitted to the consular post of that particular country.
If entry is sought into several Schengen countries, an application for the visa should be submitted to the consular post of the country that is the main destination.

If entry is sought into several Schengen countries without a main destination, an application should be submitted to the country that is the first point of entry into the Schengen region.

Pursuant to existing Schengen regulations, all non-European Economic Area (EEA) foreign nationals (those who are visa exempt and those who require visa) remain restricted to a maximum allowable stay in the entire Schengen region of a cumulative 90 days within a six month period. The six month period commences with the first date of entry into the Schengen region.

For additional information please visit the website of the Council of the European Union at http://www.consilium.europa.eu/.

For specific questions please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: Nonimmigrant Visa Fees to Increase January 1, 2008

Michael Hawkes — Thu, 20 Dec 2007 21:08:00 -0600

Effective January 1, 2008, the application fee for U.S. nonimmigrant visas will increase $31, from $100 to $131. The fee increase applies both to nonimmigrant visas issued on machine-readable foils in passports (MRVs) and to border crossing cards (BCCs) issued to certain applicants in Mexico. The U. S. Department of State (DOS) has announced that applicants who paid the $100 application fee before January 1, 2008 and who appear for a visa interview before January 31, 2008 will not be charged the additional fee. Applicants who paid the prior $100 application fee and who appear for a visa interview after January 31, 2008 must pay the $31 difference before they will be interviewed.

For more information on the nonimmigrant fee increase, please visit the DOS website at http://www.state.gov/r/pa/prs/ps/2007/dec/97384.htm. For information about specific procedures at various U.S. consular posts around the world, including visa fee payment procedures, please visit http://www.usembassy.state.gov.

If you have any questions about the foregoing, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New Verification Procedures May Cause Delays in Nonimmigrant Visa Issuance

Michael Hawkes — Tue, 11 Dec 2007 19:45:00 -0600

The U.S. Department of State (DOS) announced that effective November 2007, U.S. consular posts are now required to access a new electronic report in the Consolidated Consular Database (CCD) to verify approval of nonimmigrant petitions by the U.S. Citizenship and Immigration Service (USCIS) prior to visa issuance. The electronic report, generated by the Petition Information Management Service (PIMS), is created by the Kentucky Consular Center (KCC) and will now serve as the primary source of evidence used to verify petition approval prior to the issuance of visas for nonimmigrant petition-based categories, including H, L, O, P, and Q.

The PIMS report contains a record of all petitioners having approved petitions recorded by KCC since 2004. In addition, records contain information from KCC's Fraud Prevention Unit. In response to questions from the American Immigration Lawyers Association, DOS has reported that data is not currently being electronically transferred from USCIS Service Centers to the KCC. Rather, the Service Centers mail and fax information to the KCC, which then enters data and scans the material into PIMS. According to DOS, new petitions are generally available in PIMS between 24 and 48 hours after receipt from the Service Center. However, if a consular post is unable to verify petition approval through the PIMS report, the post must e-mail the KCC, which should then verify approval of the petition in approximately two working days. The original I-797, Notice of Approval, issued by USCIS may still be used by foreign nationals to schedule visa appointments at U.S. consular posts. Some consular posts may also permit the original I-797, Notice of Approval, to be submitted prior to the visa appointment to begin the PIMS verification process early and reduce potential delays. However, the PIMS electronic record shall serve as the primary evidence of petition approval required for visa issuance.

Since the implementation of PIMS, Gibney has received reports of delays in visa issuance. For instance, in a departure from past practice, consular posts in Canada are unlikely to provide next day service, and visa issuance may be delayed as long as 4-5 days at some posts to allow time for the necessary PIMS verification. Delays are likely to continue until technical reporting issues are resolved.

Foreign nationals requiring visa issuance are cautioned to plan ahead and check the U.S. consular website for specific procedures and visa wait times. Foreign nationals should plan to allow at least several days for visas to be issued, even where next day processing was previously available. Links to visa wait times at U.S. consular posts around the world are available on the DOS website at http://www.travel.state.gov/visa/temp/wait/tempvisitors_wait.php.

If you have any questions about the foregoing, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Requires Use of Revised Form I-9 by December 26th

Michael Hawkes — Tue, 27 Nov 2007 19:43:00 -0600

On November 26, 2007, U.S. Citizenship and Immigration Services (“USCIS”) issued a notice in the Federal Register advising that all U.S. employers must transition to the revised Employment Verification Eligibility Form I-9 not later than December 26, 2007. Employers who do not utilize the revised Form I-9 for newly hired employees and for employees requiring re-verification after December 26, 2007 will be subject to penalties under the Immigration and Nationality Act (INA). The publication of the notice follows the release of the revised Form I-9 on November 7, 2007.

According to the Notice published November 26, as of November 7, 2007, the amended Form I-9 (as annotated “(Rev. 06/05/07)N” in the lower right corner) is the only valid version of the form. However, the Department of Homeland Security (DHS) is granting employers a 30-day grace period commencing with the notice publication date to begin utilizing the revised Form I-9. Accordingly, DHS will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007. However, after December 26, employers will be subject to civil monetary penalties under the INA for failure to utilize the revised Form I-9.

As we previously reported, the revised Form I-9 reduces the number of documents used to confirm identity and employment eligibility, often referred to as “List A” documents. The new form lists the following documents in List A as evidence of both an employee’s identity and work eligibility:

- U.S. Passport (unexpired or expired)

- Permanent Resident Card (Form I-551)

- Unexpired Foreign Passport with a Temporary I-551 Stamp

- Unexpired Employment Authorization Document containing a photograph (Forms I-766, I-688, I-688A, I-688B)

- Unexpired Foreign Passport with an Unexpired Arrival/Departure Record (Form I-94) that bears the same name as the passport and contains the endorsement of the foreign national’s nonimmigrant status, if that status authorizes the foreign national to work for the employer.

In addition, the amended Form I-9 instructs employees that providing their Social Security number in Section 1 is now voluntary unless the employer participates in the government-sponsored E-Verify program. However, if an employee presents a Social Security card as evidence of work authorization, the employer must enter the number in Section 2 of Form I-9.

Employers are strongly encouraged to begin using the new Form I-9 immediately for newly hired employees or employees requiring re-verification. Employers are reminded that they should not complete the new form for current employees if there is a properly completed Form I-9 on file. In fact, USCIS cautions that requiring unnecessary verification may violate the INA’s anti-discrimination provisions. Employers having any questions as to whether and when re-verification is required should contact their designated Gibney representative.

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Immigration Alert: December 2007 Visa Bulletin Released

Michael Hawkes — Thu, 15 Nov 2007 19:41:00 -0600

The Department of State (DOS) has published the December 2007 Visa Bulletin. Second-preference employment-based priority dates retrogressed significantly for Chinese and Indian nationals, and the few advancements in priority dates in other categories were slight.

According to the December 2007 Visa Bulletin, priority dates remain “current” for all foreign nationals in the first-preference employment-based category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category. However, DOS predicts that due to increasing demand, cut-off dates for first-preference Chinese and Indian foreign nationals may be established during 2008.

In the second-preference employment-based category, priority dates remain current for worldwide, Mexican, and Filipino foreign nationals. However, priority dates for Chinese and Indian nationals in the second-preference category retrogressed from January 1, 2006 to January 1, 2003 for Chinese nationals and from April 1, 2004 to January 1, 2002 for Indian nationals. This means that only Chinese and Indian nationals with second-preference priority dates earlier than January 1, 2003 and January 1, 2002 respectively may apply for immigrant visas. DOS explained that retrogression was necessary due to an extraordinarily high demand for these categories, and it indicated that further retrogression for Chinese and Indian nationals is possible over the next several months.

In the third-preference professional and skilled worker category, the worldwide and Philippines priority dates advanced from August 1, 2002 to September 1, 2002. The priority dates for nationals from China and India also advanced slightly to October 15, 2001 and May 1, 2001 respectively. The priority cut-off date for Mexico remains April 22, 2001, unchanged from November. The third-preference “other worker” category for all foreign nationals is also unchanged, with a priority cut-off date of October 1, 2001. DOS noted, however, that if the current demand pattern continues, particularly in the “other worker” category, cut-off dates may retrogress later in Fiscal Year 2008.

The full text of the December 2007 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3841.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com

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Immigration Alert: USCIS Releases New Version of Form I-9

Michael Hawkes — Fri, 09 Nov 2007 19:38:00 -0600

U.S. Citizenship and Immigration Services (“USCIS”) has released a new version of Form I-9, Employment Eligibility Verification. According to a USCIS announcement today, as of November 7, 2007, the Form I-9 with a revision date of June 5, 2007 is the only version of the Form I-9 valid for use. However, USCIS also states that a Notice will be published in the Federal Register providing employers with a 30-day period, beginning on the Notice publication date, to transition to the new Form I-9. Although we expect that this apparent contradiction will be clarified in favor of allowing for the 30-day transition period, employers are strongly encouraged to begin using the new Form I-9 immediately for newly hired employees or employees requiring re-verification. Employers do not need to complete the new form for current employees.

The revised Form I-9 is part of USCIS’s ongoing effort to reduce the number of documents used to confirm identity and employment eligibility. The new version of the form eliminates several documents from List A documents previously designated to verify both an employee’s identity and employment eligibility. Specifically, the following documents have been eliminated as sole evidence of an employee’s identity and employment eligibility: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); Unexpired Reentry Permit (I-327); and Unexpired Refugee Travel Document (I-571).

The revised Form I-9 adds the most recent version of the Employment Authorization Document (Form I-766) as an acceptable List A document. The new form lists the following documents in List A as evidence of both an employee’s identity and work eligibility:

- U.S. Passport (unexpired or expired)

- Permanent Resident Card (Form I-551)

- Unexpired Foreign Passport with a Temporary I-551 Stamp

- Unexpired Employment Authorization Document containing a photograph (Forms I-766, I-688, I-688A, I-688B)

The revised Form I-9 can be found at www.uscis.gov/files/form/I-9.pdf. The “Handbook for Employers, Instructions for Completing the Form I-9,” which has also been revised, can be found at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

If you have any questions or concerns about using or completing the revised Form I-9, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Reminder to Plan Ahead for Holiday Travel

Michael Hawkes — Tue, 06 Nov 2007 19:35:00 -0600

The holiday season is a hectic time for international travel. Airports, consulates and ports of entry are exceptionally busy due to the large number of travelers, visa applicants and increased security measures. At Gibney, we want to remind corporate human resource personnel, business travelers and foreign nationals to take proactive steps and plan ahead to minimize the risk of delays.

A few things to remember:
International travelers should have a valid unexpired passport. U.S. and Canadian citizens are also now required to carry passports at most ports of entry as part of the increased security measures effective under the Western Hemisphere Travel Initiative (WHTI). For more information about WHTI passport and documentary requirements, please visit http://travel.state.gov/travel/cbpmc/cbpmc_2223.html.

Those requiring visa issuance at a consulate abroad should check the consulate’s website prior to travel for specific procedures. Consular procedures vary widely and are subject to change with little or no notice. Links to consular posts around the world are available on the U.S. Department of State’s website at http://www.travel.state.gov.

Plan ahead for visa issuance. The U.S. Department of State provides an online system to assist foreign nationals in planning for their travel and visa appointments. Visa processing times for both (1) the wait time to get an appointment and (2) the wait time from appointment to visa issuance at the various posts are available at http://travel.state.gov/visa/tempvisitors_wait.php. Please note that these timeframes are estimates only and may or may not be updated regularly. Actual processing times may be longer.

Keep in mind that consulates observe both U.S. and local holidays. In addition, many offices may be short-staffed due to vacations. It is more important during the holiday season to check with the consulate in advance to confirm office hours and current procedures, schedule a visa appointment in advance, and determine the likely timeframe for visa processing.

Employers are encouraged to provide a current employment verification letter to foreign national employees entering the U.S. on a temporary work visa.

If you have any questions or concerns about travel or document requirements, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New Visa Guidelines for Alcohol-Related Arrests or Convictions

Michael Hawkes — Thu, 25 Oct 2007 19:28:00 -0500

The U.S. Department of State (DOS) recently established nonimmigrant and immigrant visa processing guidelines for applicants who have been arrested or convicted of alcohol-related offenses. Under the new guidelines, consular officers must refer visa applicants to panel physicians for medical evaluations in the following circumstances:

The visa applicant has a single drunk driving arrest or conviction within the three previous calendar years; or
The visa applicant has two or more drunk driving arrests or convictions in any time period; or
The consular officer has any other reason to believe that the visa applicant has an alcohol-related problem. (This could include an arrest or conviction for any alcohol-related conduct, such as a disorderly conduct or public intoxication.)
It is noteworthy that mere arrest may trigger referral to the panel physician; a conviction is not required. The visa applicant may be found inadmissible if the panel physician establishes the present medical condition of alcohol abuse and that the condition is likely to result in a reoccurrence of harmful behavior in the future. An arrest or conviction for drunk driving or a diagnosis of alcohol abuse standing alone is not sufficient to find the visa applicant inadmissible. A visa applicant is not ineligible to receive a visa unless there is harmful behavior associated with the alcohol disorder that has posed, or is likely to pose, a threat to the property, safety, or welfare of the individual or others.

According to the American Immigration Lawyers Association, it is possible that foreign nationals applying to renew visas while abroad may find their valid visas cancelled if referral to a panel physician is deemed necessary under the new guidelines. In addition, nonimmigrant visa applicants who disclose a U.S. arrest for an alcohol-related offense must undergo additional criminal record screening prior to visa issuance, which may delay visa issuance from two days to two months, depending on the consular post. Visa applicants should disclose all alcohol-related arrests on the visa application as consular officers can independently ascertain this information. Failure to disclose an alcohol-related arrest or conviction on a visa application may result in a finding of misrepresentation on the part of the visa applicant which could render the applicant inadmissible even if the alcohol-related arrest does not.

Foreign nationals who meet any of the criteria outlined above are well-advised to gather all applicable arrest and certified court records, and work closely with counsel prior to applying for a visa abroad.

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Immigration Alert: Court Halts Implementation of "No-Match" Rule

Michael Hawkes — Thu, 11 Oct 2007 19:24:00 -0500

On October 10, 2007 the U.S. District Court for the Northern District of California issued a preliminary injunction preventing the U.S. Department of Homeland Security (DHS) from implementing regulations that would require employers to take specific action upon receipt of a "No-Match" letter from the Social Security Administration (SSA) or DHS. SSA "No-Match" letters are generally issued if the agency determines that an employee's name or social security number does not match SSA records. This determination could be based on errors in the SSA database, name changes, typographical errors in the employer's records, or false documentation. In conjunction with SSA, DHS proposes to issue letters to employers if it is unable to verify the authenticity of an employee's immigration status document or work authorization document.

DHS published the final regulation on August 15, 2007 but the legality of the regulation was immediately challenged by a consortium of unions and business groups, resulting in the preliminary injunction issued October 10, 2007. Additional hearings will be conducted to determine the legality of the regulation. This litigation is expected to continue for at least the next several months. During this period, the new regulation is not enforceable.

Under law currently in effect, employers are required to document an employee's work authorization and comply with I-9 regulations. An employer is not obligated to act in any specific manner or timeframe upon receipt of a "No-Match" letter, and a "No-Match" letter alone does not impart knowledge that the identified employees are unauthorized. If the new regulations are eventually implemented, an employer receiving a "No-Match" letter could be charged with having constructive knowledge of an employee's unauthorized work status, unless the employer takes specific steps within 30 days and the issue is resolved within 90 days.

SSA and DHS planned to issue "No-Match" letters to 140,000 employers, identifying approximately 8 million employees. In granting the preliminary injunction to prevent this action, the court noted the "severe" effect that the rule would have on employers and employees. The court cited the "significant expense" on employers attempting to comply and the irreparable harm to legally authorized workers who cannot resolve a mismatched report within the proposed timeframe.

Although implementation of the rule has been halted indefinitely until the legality of the regulation is determined, the rule further signals an increased emphasis on enforcement by DHS through its agency, Immigration Customs and Enforcement (ICE). In this climate, employers should consider undertaking internal audits of their I-9 programs to ensure compliance with existing law and regulations.

We will continue to provide updates and analysis on this issue. If you have any questions about the foregoing or how it affects you, please contact your designated Gibney representative or e-mail immigrationalerts@gibney.com.

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Immigration Alert: Department of State Releases October 2007 Visa Bulletin

Michael Hawkes — Thu, 06 Sep 2007 19:21:00 -0500

The Department of State (DOS) has published the October 2007 Visa Bulletin. As October marks the start of Fiscal Year (FY) 2008, additional immigrant visas are now available for allocation, resulting in advancement of priority cut-off dates in many employment-based preference categories. In a general improvement over last month's Visa Bulletin, no employment-based category is "unavailable" in October.

Specifically, according to the October 2007 Visa Bulletin, priority dates are "current" for all foreign nationals in the first-preference employment-based category. "Current" means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the second-preference employment-based category, priority dates are "current" for the worldwide, Mexican and Pilipino designations. However, priority dates for second-preference Chinese and Indian nationals did not improve, and cut-off dates are still in effect. The cut-off date for Chinese nationals holds steady at January 1, 2006 and likewise, for Indian nationals, the cut-off date remains April 1, 2004. This means that only Chinese and Indian nationals with second-preference priority dates earlier than January 1, 2006 and April 1, 2004 respectively may apply for immigrant visas.

In the third-preference category professional and skilled worker category, the worldwide priority cut-off date holds steady at August 1, 2002, while China, India and Mexico have advanced from "unavailable" under last month's Visa Bulletin, to a cut-off date of September 1, 2001 for Chinese nationals and April 22, 2001 for Indian and Mexican nationals.

The third preference "other workers" category has advanced from "unavailable" to a cut-off date of October 1, 2001 for all foreign nationals.

In issuing the October 2007 Visa Bulletin, the Department of State offered no predictions about visa availability for the employment-based categories in the coming months.

The full text of the October 2007 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3800.html

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Immigration Article: US Immigration Update by Partner Stephen J.O. Maltby

Wed, 01 Aug 2007 19:15:00 -0500

Immigration Head Stephen J.O. Maltby authored this article in American British Business 2007/08 (reprinted with kind permission from Roxby Media Ltd.) which discusses the Senate’s proposal for immigration reform.

Read the full article here.

Immigration Alert: New Department of Labor 'Substitutions Plus' Rule

Michael Hawkes — Thu, 17 May 2007 19:12:00 -0500

On May 17, 2007, the Department of Labor (DOL) issued its final rule entitled "Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity" (the final rule). The final rule will become effective on July 16, 2007 and will amend 20 C.F.R. Part 656. Some of the key provisions include the following:

1. Prohibition on Substitutions and Modifications to Labor Certification Applications

The primary amendment introduced by the final rule is the prohibition of substitution of alien beneficiaries (or change to the identity of an alien beneficiary named on a labor certification application). This prohibition will apply to all pending and approved labor certification applications - whether they were filed under the old system or under the new, PERM, system - as of July 16, 2007. It will not apply to any substitution requests currently in process or substitution requests made to the United States Citizenship & Immigration Services (USCIS) in conjunction with an I-140 Immigrant Petition for Alien Worker made prior to July 16, 2007. Any request for substitution made with the DOL or the USCIS on or after July 16, 2007 will be denied. As a result of this amendment, all labor certification applications pending or approved on or after July 16, 2007 will be valid only for the alien named on the original application.

The final rule also prohibits requests for modifications to labor certification applications submitted after July 16, 2007.

2. Institution of Validity Period for Labor Certification Applications

Until now, approved labor certification applications have been valid indefinitely. The final rule sets a validity period of 180 days after which the labor certification is deemed to expire. The practical effect of this amendment is that I-140 Immigrant Petitions based on labor certification applications will have to be filed before the labor certification application expires.

A labor certification application approved after July 16, 2007 will expire within 180 calendar days from the date the DOL granted the application. A labor certification application approved before July 16, 2007 will expire within 180 calendar days from July 16, 2007.

Despite the establishment of a validity period, the final rule states that the filing date of a labor certification application may be used as the priority date by the USCIS as appropriate, indicating that the labor certification application will not expire for the purpose of establishing a priority date. This preserves, for example, a foreign national's ability to obtain H-1B extensions beyond the six (6) year maximum since this ability hinges on the filing date of a labor certification application and /or the foreign national's priority date.

3. Prohibition on Payments Related to Labor Certification Applications

The final rule prohibits an employer from seeking or receiving payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer's attorneys' fees. Note that the final rule allows an employee to pay his or her own costs in connection with a labor certification application, including attorneys' fees, where the employee seeks the advice of independent counsel to represent his or her interests in the labor certification process. However, to the extent that any attorney is preparing and/ or filing a labor certification application and thus engaged by both the employer and the alien as a dual representative, the costs attributable to the labor certification application must be borne by the employer without any form of reimbursement.

This prohibition applies whether the employer seeks payment as an incentive or inducement to filing or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application. Under the final rule, payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary or benefits; kickbacks, bribes or tributes; in kind payments; and free labor.

When there is dual representation, it will, therefore, become mandatory for employers to bear all costs related to the preparation and filing of permanent labor certification applications, including attorneys' fees, without seeking any form of payment from the sponsored employee.

4. Consequences of Possible Fraud or Willful Misrepresentation

The final rule stiffens the penalties related to possible fraud or willful misrepresentation in connection with labor certification applications. Specifically, the final rule clarifies that if an employer, attorney or agent connected to a permanent labor certification application is involved in either possible fraud or willful misrepresentation, the DOL may, for up to 180 days, suspend the processing of any pending permanent labor certification application involving that employer, attorney or agent.

In this instance, the DOL will refer the matter to the Department of Justice or appropriate government agency for investigation. If 180 days pass without the conclusion of an investigation, the DOL may either continue to process some or all of the applications or extend the suspension period until the completion of any investigation and/ or judicial proceeding. Therefore, the 180 day suspension period is renewable indefinitely. Moreover, investigations could result in criminal penalties which include imprisonment of up to five (5) years. The DOL is not obligated to give notice of suspension to an identified employer, attorney or agent; an investigation may therefore ensue without the employer's or attorney's knowledge.

If an employer is found to have committed fraud or willful misrepresentation, the consequences at the DOL level will likely be denial of each application under suspension. Should an attorney or agent be found to have committed fraud or willful misrepresentation, the DOL will notify the employer(s) associated with the suspended application(s) of the finding and require the employer to notify the DOL in writing, within 30 days of the notification, whether the employer will withdraw the application, designate a new attorney or agent, or continue the application without representation.

Lastly, the final rule also enlists attorney debarment as a consequence of a finding of fraud or willful misrepresentation. An attorney may also be debarred if he or she facilitates or participates in the transfer of payments related to a labor certification application (i.e. allowing an employee to pay the employer's attorneys' fees or any other unauthorized costs related to the labor certification application) or participates in or facilitates a pattern or practice of failing to comply with the recruitment requirements of the labor certification application process.

Immigration Alert: DOL Proposed Rule on Labor Certification Substitutions Goes to the OMB

Michael Hawkes — Fri, 26 Jan 2007 19:09:00 -0600

On January 26, 2007, the U.S. Department of Labor (DOL) forwarded to the federal Office of Management and Budget (OMB) a final rule that would, among other things, prohibit the substitution of beneficiaries on labor certification applications pending with the agency.

On February 13, 2006, the DOL had proposed a rule that would eliminate labor certification substitutions. Currently, if an employer has applied for and received a labor certification on behalf on an employee for whom the employer no longer intends to file an I-140 immigrant visa petition, the employer may substitute another employee who meets the requirements set forth in the certification. This practice is based on the theory that the certification is tied to the position, not to the foreign national.

The rule proposed last February would put an end to this practice, as well as limit the validity of labor certifications to 45 days. This means that, upon approval of a labor certification, the employer will only have 45 days to file an I-140 petition on behalf of the foreign national.

It should be noted, however, that the status of a companion USCIS rule is unclear, and that implementation of the DOL rule without a companion USCIS rule would not prevent the substitution of a beneficiary at the I-140 stage.

The OMB generally has up to 90 days to approve, reject or send the rule back to the agency for revisions.

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Immigration Alert: State and Local Initiatives

Michael Hawkes — Thu, 30 Nov 2006 19:06:00 -0600

A perennial topic in American politics, immigration remains at the forefront of U.S. political debate. In recent years, much attention has been given to immigration enforcement, specifically the perceived lack of enforcement of immigration regulations by the Federal Government. In response, state and municipal governments have stepped up to fill this void with state laws and local ordinances, resulting in a hodgepodge of laws affecting foreign nationals and U.S. citizens.

States including Colorado, Georgia, Louisiana, Pennsylvania and Tennessee have enacted laws that would prohibit illegal immigrants from working on state contracts. The laws enacted by Colorado and Georgia attempt to work in concert with Federal immigration enforcement efforts by requiring companies that have contracts with the state and other governmental units to join the U.S. Immigration and Customs Enforcement agency's "Basic Pilot program." This voluntary program allows employers to access immigration and social security databases to confirm employment eligibility of its employees by submitting employee and I-9 information directly to USCIS with each new hire. These state laws carry with them penalties for noncompliance, although enforcement mechanisms appear to be lacking. The Colorado law assigns steep fines per violation per worker, the possibility of cancelled government contracts, as well as employer liability for damages the state may incur as a result of the cancelled contract. A number of states have also barred illegal immigrants from collecting unemployment benefits and worker's compensation. Opponents of such laws point to the fact that they could prove detrimental to U.S. businesses, by allowing illegal immigrants to sue employers for injuries incurred on the job - litigation that would be prohibited if the immigrant was eligible for workers compensation.

The local ordinances proposed and passed by cities across the country currently focus on prohibiting landlords from renting to illegal immigrants and imposing penalties on businesses for employing illegal immigrants, including loss of business licenses. These politically divisive ordinances are designed to drive illegal immigrants out of communities by restricting the availability of housing and employment to undocumented workers, and many contain language stating that illegal immigration contributes to high crime rates and a diminished quality of life.

Both the state and local laws generally lack clear enforcement mechanisms. They are also vulnerable to Federal challenge as unconstitutional on the doctrine of pre-emption and, for the ordinances restricting the availability of housing, as violating the federal Fair Housing Act. In addition, many of the laws are poorly drafted and vague, resulting in judicial intervention.

While many experts predict that these state and local immigration laws will be pre-empted by federal challenges, until then they have immediate impact on business owners and landlords. These ordinances also tend to place immigration verification burdens on those who are unprepared and often unable to meet them. While employers are already required to verify the employment eligibility of workers through the U.S. Citizenship & Immigration Services I-9 requirements, landlords generally have no such requirement with respect to tenants. The new laws restricting rentals generally fail to specifically define "illegal immigrant" or to provide landlords with the tools, training or information needed to verify a tenant's immigration status.

Another means by which states attempt to enforce immigration regulations is in connection with the issuance of driving licenses. Currently the issuance of driver's licenses is regulated on a state-by-state basis. While each state has different requirements for issuance of a driver's license, the majority of states require that a foreign national present proof of authorized status in the U.S. The guidance provided to motor vehicle employees as to who is in authorized status and what documentation must be presented is often inconsistent and inaccurate, and can vary from office to office even within a state.

For example, immigration regulations confirm that a foreign national remains in a period of authorized stay during the pendency of his/her application for an extension of status. During this period the foreign national, however, would not be in possession of a valid visa, Form I-94 or approval notice. As such, many individuals in this situation have been denied renewal of their driver's licenses. In another example of inconsistency in state driver's license requirements, the State of Florida carves out special exemptions for Canadian citizens applying for driver's licenses, allowing any Canadian national with appropriate proof of Canadian citizenship to obtain a one-year driver's license without any proof of authorized status in the United States.

Conclusion

The impact of immigration, both positive and negative, is usually seen most clearly at a local level. It is therefore understandable that these state and local governments feel the need to enact laws designed to enforce the immigration regulations in the absence of strong federal enforcement. The resulting patchwork of state and local laws affecting foreign nationals and those who interact with them, however, creates additional burdens and necessitates that special attention is paid not only to the federal immigration laws and regulations, but also to state and local laws which attempt to enforce these immigration regulations.

Immigration Alert: Secure Fence Act of 2006

Michael Hawkes — Thu, 26 Oct 2006 19:04:00 -0500

On October 26, 2006, President Bush signed into law the "Secure Fence Act of 2006." The Act calls for the Department of Homeland Security to "achieve and maintain operational control over the entire international land and maritime borders of the United States" by way of more effective use of personnel and technology at U.S. borders as well as physical infrastructure to prevent unlawful entry.

Specifically, the Act calls for the building of a fence and other security enhancements along the U.S.-Mexico border. The fence is to be built in five strategic sections, protecting areas most identified with unlawful entry, totaling about 700 miles. This section of the bill has been the subject of much controversy in the U.S. with detractors suggesting that a 700 mile fence on a 2,000 mile border will do little to stop undocumented aliens seeking entering the United States. Further, the Act earmarks no specific funds for the construction of the fence. The expenses are meant to be drawn from a previous spending bill authorizing $1.2 billion for border security. Estimates by various groups in the U.S. for the cost of the fence have ranged from $2 billion up to $9 billion.

Finally, the Act calls for the Department of Homeland Security to conduct a study of the feasibility of a state of-the-art infrastructure security system along the U.S.-Canada border. The study is to concentrate on (1) the necessity of such a system; (2) the feasibility of such a system; and (3) the economic impact implementing such a system will have along the northern border. Currently, well over $1 billion worth of business is transacted over the U.S.-Canada border every day.

Immigration Alert: Conversion of Traditional Recruitment to Reduction-in-Recruitment

Michael Hawkes — Fri, 06 Oct 2006 19:02:00 -0500

Most foreign nationals un the United States seeking employment based immigration visas ("Green Cards") must first be beneficiaries of approved labor certification from the Department of Labor (DOL). The labor certification process is designed to guarantee that: 1) there are not sufficient U.S. workers who are willing, able, qualified or available to take the position; and 2) employment of the foreign national will not adversely affect wages of similarly employed U.S. workers. This process involves the employer undergoing a series of recruitment steps to test the U.S. labor market and assess whether willing, able and qualified U.S. workers are available. Prior to the implementation of the PERM process in 2005, the Department of Labor processed most labor certification applications under a Traditional Recruitment (TR) standard. This process called for supervision of employers in their recruitment attempts.

This process was particularly time consuming, causing a sizeable backlog of applications. The DOL then began to encourage employers to use a more expeditious labor certification process, referred to as Reduction-in-Recruitment (RIR). This process allowed employers to recruit without the supervision of the DOL. The results of the recruitment were submitted to the DOL for verification that the recruitment complied with the applicable regulations. On August 3, 2001 the DOL put into place a rule that would allow employers to convert their existing TR applications to RIR.

The original rule allowed employers to convert only those applications waiting in the backlog that had been filed on or before August 3, 2001 to be converted. On October 6, 2006, in furtherance of its attempts to eliminate the backlog, the DOL announced that it would extend this deadline to applications filed on or before March 27, 2005. The only cases that are ineligible for conversion are those which the DOL has already commenced processing using the TR standard.

Immigration Alert: Border Tunnel Prevention Act of 2006

Michael Hawkes — Thu, 21 Sep 2006 18:59:00 -0500

On September 21, 2006, the U.S. House of Representatives unanimously passed the "Border Tunnel Prevention Act of 2006." This bill would criminalize the construction or the financing of an unauthorized tunnel or subterranean passage crossing any U.S. border with another country. The penalty for a violation would be a 20 year prison term. The bill also proposes that anyone who recklessly permits the construction of use of such a tunnel on his or her property would be subject to a 10 year prison term.

Additionally, anyone using an illegal tunnel to smuggle persons or goods would face double the penalty. The bill further authorizes the government to seize any and all property involved in, or traceable to, the construction or financing of a tunnel. Finally, the bill directs the U.S. sentencing commission to promulgate or amend federal sentencing guidelines to provide for increased penalties for criminal offenses related to the construction or financing of such a tunnel.

The bill was referred to the Senate on September 21, 2006, but has yet to be voted on.

Immigration Alert: The "IMAGE" Program

Michael Hawkes — Wed, 26 Jul 2006 18:57:00 -0500

The Immigration and Customs Enforcement agency (ICE) was created in March 2003 and is the largest investigative branch of the Department of Homeland Security (DHS). It is an amalgamation of the former Immigration and Naturalization Service (INS) and the former U.S. Customs Service, and was created post 9/11 to more effectively enforce immigration and customs laws and to protect the United States against further terrorist attacks.

Section 274A of the Immigration and Nationality Act (INA) requires employers to utilize Form I-9 to establish employee identities and verify that they are all authorized to work. ICE has responsibility for investigating and prosecuting incidents where persons are unlawfully employed in the United States. DHS, through ICE, has instituted the ICE Mutual Agreement between Government and Employers (IMAGE), a program designed to build contractual relationships between the government and private sector businesses, inducing a system of self-policing obligations to assist ICE in its duties of identifying undocumented workers and combating unlawful employment, including employment secured by fraudulent means such as presentation of false documents.

As part of the IMAGE program, ICE and U.S. Citizenship and Immigration Services (USCIS) provide education and training on proper hiring procedures, fraudulent document detection, use of the Basic Pilot Employment Verification Program, and anti-discrimination procedures. Employers seeking to participate in IMAGE must first agree to submit to an I-9 audit by ICE. They must then enroll and implement a list of ten DHS "best hiring practices", and later become "IMAGE Certified". The "best hiring practices" include:

- The Basic Pilot Employment Verification Program (discussed below);

- Annual I-9 audits by an external auditing firm or trained employee not otherwise involved in the I-9 and electronic verification process;

- Self-reporting procedures to report violations and deficiencies to ICE;

- A "Tip Line" for employees to report the employment of undocumented workers, and a protocol for responding to employee tips;

- An annual report to ICE to track results and assess program participation; and

- Protocols for responding to no-match letters issued by the Social Security Administration (SSA)

The Basic Pilot Employment Verification Program has been in operation since November 1997. Legislation signed by the President on December 3, 2003, extended the program until November 2008, expanding it to all 50 states and the District of Columbia. This current version of DHS's Basic Pilot Employment Verification Program is administered by USCIS, and provides an automated link to the SSA database and DHS immigration records. It is an internet-based system allowing employers to verify that newly hired employees are work authorized in the United States. There is no monetary fee charged for usage of this system, but there are many taxing responsibilities and obligations that need to be undertaken by the employer.

Employers can register for participation in the Basic Pilot Employment Verification Program at https://www.vis-dhs.com/EmployerRegistration, and must sign a Memorandum of Understanding (MOU) that sets forth the responsibilities of the SSA, DHS-USCIS, and the employer. Notably, several of the employer's responsibilities outlined in the MOU include that the following:

- Employer understands it is not exempted from I-9 responsibilities or other requirements;
DHS reserves the right to conduct Form I-9 compliance inspections and any other enforcement activity authorized by law;

- Employer agrees to complete both sections 1 & 2 of Form I-9 and initiate the Basic Pilot verification procedures within 3 business days after each employee has been hired;
Employer may be subject to appropriate legal action if it misuses the Basic Pilot procedures;

- Employer must understand that the initial inability of the SSA or DHS automated verification to verify work authorization, or a tentative non-confirmation, does not mean, and should not be interpreted as, an indication that the employee is not work authorized;

- Employer is subject to civil penalties pursuant to §274B of the INA if it uses the Basic Pilot program incorrectly;
- Employer, in essence, becomes the "safe-keeper" of the information it has received from SSA or DHS pursuant to the Basic Pilot program and must ensure that it is not used for any other purpose and to protect its confidentiality, acknowledging that any person who obtains the information under false pretenses or misuses it may be subject to criminal penalties (however, it is noted that no person or entity participating in the program shall be civilly or criminally liable for any action taken in good faith on information provided by the program).

Despite the significant responsibilities and obligations an employer inherits by joining the IMAGE program, the DHS announced in a press release dated July 26, 2006, that more than 10,000 employers across the United States were already using the Basic Pilot Employment Verification to check the work authorization of their newly hired employees and that new employers were signing up every day. Indeed, DHS sees the term "IMAGE certified" as becoming the industry standard.

Immigration Alert: BALCA Issues Favorable Decision in First Perm Case Health America

Michael Hawkes — Tue, 18 Jul 2006 18:56:00 -0500

On July 18, 2006, the Board of Alien Labor Certification Appeals (BALCA) issued its decision in Matter of HealthAmerica. This is the first BALCA decision issued following implementation of the PERM system for filing labor certifications in March 2005. The Board ruled that, for purposes of requests for reconsideration, "documentation 'submitted' in support of a labor certification application constructively includes the materials held by an employer under the recordkeeping provisions of PERM."

The case arose out of a clerical error on Form ETA 9089, which is the form used to file a labor certification under the PERM system. The regulations governing the PERM process require employers to run an advertisement in two Sunday editions of a newspaper of general circulation in the area of intended employment. In documenting the advertisement dates on the form, the attorney made a typographical error by specifying the wrong date, thereby indicating that one of the advertisements had been run on a Monday, not a Sunday. The Certifying Officer (CO) denied the application, on the ground that the advertisement had not run in two separate Sunday editions. The employer requested reconsideration and provided copies of the two Sunday newspaper advertisements that were actually run. The CO denied this request, citing a regulation, 20 C.F.R. § 656.24(g)(2), which states that no new evidence may be submitted with a request for reconsideration.

In introducing the PERM process in 2005, the Department of Labor aimed to streamline the labor certification system and thereby provide better service for employers. As PERM applications are electronically filed, it is not possible to to submit supporting documentation with an application and regulations confirm this. Supporting documentation is to be retained by the employer for five years from the date the application is filed. The CO's refusal of the request to reconsider on the ground that the newspaper advertisements were new evidence (i.e., they had never been filed before) presented a potential inability for employers to demonstrate compliance with the regulations in the face of a denial.

The HealthAmerica decision resolves this problem by treating all recruiting documentation that is retained by the employer as having been filed with the application. The decision indicated that, if the retained documentation were to be treated otherwise, employers would have no way to demonstrate their compliance with the regulations in the event of a minor, clerical error.

The increased speed and efficiency of the new PERM process brought with it the peril that a minor error in preparing the required electronic form could have potentially disastrous results for employers and their foreign-born employees. A simple clerical error like the one in this case could have potentially rendered an individual ineligible for permanent resident status. The BALCA decision is a victory for employers because it allows a CO who encounters an apparent clerical error to request the supporting documentation and make an informed decision, as opposed to merely denying the application outright.

Immigration Article in American British Business: Immigration Issues (reprinted with kind permission from Roxby Media Ltd.)

Sat, 01 Jul 2006 18:49:00 -0500

Stephen JO Maltby, a partner in the law firm Gibney, Anthony & Flaherty, LLP, examines visa laws and limitations for foreign businesses that are setting up in the US.

See the full article here.

Immigration Alert: Social Security Update for Spouses of E and L Visa Holders

Michael Hawkes — Sat, 01 Jul 2006 18:48:00 -0500

Since 2002, the spouses of E treaty traders/investors and L intracompany transferees have been eligible for employment authorization in the US. Following their arrival in E or L dependent status, these spouses may submit an application for an employment authorization document (EAD) to US Citizenship & Immigration Services (USCIS). Once in possession of the EAD card, the spouses apply for a Social Security Number at an office of the Social Security Administration.

The Social Security Administration recently announced that it would not require an EAD as proof of employment authorization for purposes of applying for a Social Security Number. This decision was made pursuant to unofficial guidance provided by USCIS that spouses of E and L visa holders are authorized to work "incident to status" and do not require any further authorization. The Social Security Administration will accept an application with proof of entry as an E or L dependent and proof of marriage in the form of a marriage certificate (translated into English, if necessary).

However, to date, USCIS has not made any official announcements that the E and L spouses do not require EAD's in order to work. According to the Immigration and Nationality Act, spouses of E and L visa holders shall be provided with an "employment authorized endorsement, or other appropriate work permit." The last official statement that the USCIS made on this topic, in a 2002 memo, was that spouses would need to apply for an EAD in order to obtain valid employment status. The immigration regulations have not been changed (despite the USCIS's declared intentions to do so) to include spouses of E and L visa holders in the category of foreign nationals who may work without an EAD.

In conclusion, it appears that the Social Security Administration will not require an EAD for spouses of E and L visa holders who are looking to procure a Social Security number. USCIS, however, seems to require one in order to maintain valid employment status. We recommend, as a general rule, that any spouse of an E or L visa holder who is planning on being employed should obtain an EAD from USCIS prior to the commencement of that employment.

Immigration Alert: Electronic Forms I-9 Completion and Storage

Michael Hawkes — Thu, 15 Jun 2006 18:46:00 -0500

On October 30, 2004, President Bush signed Public Law 109-390 and representatives of the DHS, including Immigration and Customs Enforcement ("ICE") and USCIS, began working jointly to develop regulations permitting employers to store electronic versions of Form I-9. Thereafter, a fact sheet published on the ICE website on April 28, 2005 gave effect to Public Law 109-390, referencing electronic record-keeping standards issues in Internal Revenue Service ("IRS") Rulings as helpful guidance for employers who wished to begin storing electronic versions of Form I-9. This general guidance was updated on June 15, 2006, when ICE published an interim final rule establishing formal standards and guidelines for electronic signatures and the electronic retention of Forms I-9 by employers. Currently, employers may continue to complete Forms I-9 on paper, or they may sign and retain these forms electronically so long as they abide by performance standards set forth in the interim final rule.

There are many potential benefits, including remedies for common I-9 compliance issues, when an employer opts to use an electronic system to complete and store Forms I-9. These may include:

- Saving storage space while maintaining the integrity and appearance of regular paper forms and allowing for easy searching and retrieval of I-9 forms for specific individuals

- Simplification of the re-verification process with the ability to easily call up and utilize previously completed I-9 forms

- Simplification of the I-9 form completion process by prompting users to proper completion of the I-9 form - producing an accurately completed form pursuant to I-9 regulations

- Protection against over-documentation conduct by HR professionals, while ensuring that all required fields are completed on the I-9 form

- Improvement of many of the problems associated with manual completion of the I-9 form including potential liability caused by negligent, ignorant, and discriminatory behavior

- Accurate tracking of work expiration dates and automatic reminders to submit proof of renewed authorization

ICE regulations published as an interim final rule released on June 15, 2006 adopt "product neutral" standards, rather than establishing specific requirements. However, as stated above, employers must retain minimum performance standards. The regulations are meant to provide a reasonable set of standards that are technology neutral and closely follow the already widely accepted electronic storage standards set forth in previously published IRS Rulings. This practice was seen as the least burdensome standard because there already exists wide-spread application of this standard in the business community. Furthermore, as additional guidance for employers, the regulations cite indexing systems utilized by the Securities and Exchange Commission and system requirements placed on Federal agencies by regulations which were promulgated by the National Archives and Records Administration.

DHS believes that most "off the shelf" computer programs and commercial automated data processing systems in use already comply with the standards required by the interim final rule. These standards include:

- Reasonable controls to ensure the integrity of the system

- Reasonable controls to prevent the accidental creation or deletion of stored Forms I-9

- Inspection and quality assurance program evidenced by regular evaluations of the system

- Retrieval system including an indexing system to facilitate searches, available upon request

- Ability to reproduce legible and readable hard copies.
Method to acknowledge that the attestation to be signed has been read by signatory and electronic signature is attached to form

A system involving the electronic storage and retrieval of Forms I-9 may be the best way for employers to accurately capture and retain Forms I-9 for compliance purposes. This will be especially true for larger companies, or companies with multiple offices in the United States. Ultimately, the employer must determine how best to use resources to comply with Form I-9 requirements.

Immigration Alert: Comprehensive Immigration Reform Act of 2006 (S.2611)

Michael Hawkes — Thu, 25 May 2006 18:44:00 -0500

As its title indicates, The Comprehensive Immigration Reform Act of 2006, Senate Bill 2611, is a massive piece of legislation that covers a broad spectrum of immigration related issues facing the U.S. at this time. The Bill was passed by the Senate on May 25, 2006, with a vote of 62 in favor, 36 opposed, and 2 not voting. The Bill reflects many political compromises and aims to achieve goals in the areas of increasing enforcement, legalizing undocumented persons, reducing backlogs and establishing market mechanisms to facilitate the immigration of highly skilled workers.

The Sections of the Bill are indicative of its content and include: Border Enforcement, Interior Enforcement, Unlawful Employment of Aliens, Temporary Worker Program with Labor Protections & Path to Permanent Status, Backlog Reduction, Work Authorization & Legalization of Undocumented Individuals, Miscellaneous Provisions, and Intercountry Adoption Reform. Of particular interest to employers, the Backlog Reduction Section of the Bill contains several measures that would significantly relieve the current severe backlogs in both family and employment based immigration by increasing the annual number of immigrant visas, with a particular focus on increasing the number of visas available for persons in skilled and scientific professions to meet market demands. The Section of the Bill entitled Unlawful Employment of Aliens creates a mandatory Electronic Employment Verification System for employers to ensure proper work authorization; this system would replace the existing I-9 employment verification system and contains several attestation requirements for employers. Title IV of the Bill, entitled Temporary Worker Program with Labor Protections & Path to Permanent Status creates a temporary worker program for low-skilled workers currently outside the U.S. and also a path for these workers to obtain permanent residence. Similarly, Title VI of the Bill, entitled Work Authorization & Legalization of Undocumented Individuals, provides a route to permanent legal residence for undocumented persons who have already worked a significant amount of time in the U.S. and includes an English language requirement; this Section also contains a route to permanent residence for undocumented college students who have graduated from high school. The provisions for Border Enforcement and Interior Enforcement authorize the allotment of additional resources for enforcement measures and expand criminal offenses for immigration violations.

The future of the Comprehensive Immigration Reform Act of 2006 is unknown at this time as the House of Representatives passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, which aims to achieve different goals and contains provisions at odds with those in the Senate Bill. It remains to be seen whether meaningful bipartisan legislation can be arrived at to address current issues in the U.S. immigration landscape.

Immigration Alert: The Rice-Chertoff Joint Vision

Michael Hawkes — Tue, 17 Jan 2006 18:42:00 -0600

The new e-passport requirement is part of a joint initiative of the US Departments of State and Homeland Security referred to as "The Rice-Chertoff Joint Vision." The initiative is organized into three parts: Renewing America’s Welcome with Improved Technology and Efficiency; Travel Documents for the 21st Century; and Smarter Screening.

A few highlights of The Rice-Chertoff Joint Vision (the Joint Vision):

- The Global Enrollment Network: Related to the e-passport requirement is the Global Enrollment Network (the Network). The Network is intended to align travel document application processes so data need only be captured once from an applicant, whether the person is encountered first by the Department of Homeland Security (e.g. applying for immigration benefits from within the US) or the Department of State (e.g. applying for immigration benefits at a US Consulate abroad). This data could then be viewed by both Department of Homeland Security (DHS) and Department of State (DOS) officers to verify a traveler’s identity, citizenship and other information that will help facilitate the admission process at the boarder. The latest correspondence from DOS is that the Network aims to collect ten fingerprints once and thereafter, biometric identity verification would use less than ten fingerprints.

- One-Stop Traveler Redress Process: The Joint Vision also aims to establish a government-wide traveler-screening-redress-process to enable travelers who are incorrectly selected for additional screening at the port of entry to resolve issues in one-stop. This redress process is not available at the visa-issuing stage; questions concerning visa applications should still be directed to appropriate US Consulates.

- Videoconferencing at US Consulates: This program is intended to expedite the issuance of visas and make the process easier for individuals who currently need to travel great distances for the visa interview. A pilot program has been initiated between Belfast and London. Participation of visa applicants is voluntary, and visas are not adjudicated over videoconferencing. Rather, test visa interviews will be conducted on visa applicants in Belfast whose visas have already been adjudicated by consular officers in London in order to test the possibilities of using this technology in real visa interviews.

- Expansion of Time for Foreign Students: To encourage students and academic study in the United States, student visas will be issued up to 120 days (as compared to 90 days) and allow entry 45 days (as compared to 30 days) in advance of studies. The 120 day amendment has already been implemented by DOS via cable notification to consular posts. The 45 day amendment, which would require a new regulation, has not yet been implemented by DHS.

- Enhanced Business Visa Center: The Center is designed to assist US businesses, their partners and their customers to obtain B-1, business visitor visas, more efficiently. (See http://travel.state.gov/visa/temp/types/types_2664.html).

- Paperless Visa Pilot Program: In order to expand the sharing, collection and use of information, DOS will pilot a fully electronic visa application by December 2006. Electronic information regarding visas, passports and biometric identity would become available to DHS officers.

Immigration Alert: The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005

Michael Hawkes — Fri, 16 Dec 2005 18:40:00 -0600

On December 16, 2005, the U.S. House of Representatives approved the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (hereinafter "H.R. 4437"). H.R. 4437 is aimed at increasing border security, augmenting the role of state and local law agencies in enforcing federal immigration law, criminalizing unlawful presence, expanding the grounds for detention, and enforcing prohibitions on employing unauthorized workers. It contains no provisions for the expansion of immigration benefits.

If enacted into law, H.R. 4437 would:

- Create a new federal crime of "unlawful presence", which is defined broadly to mean "present in violation of the immigration laws or regulations." Currently presence in the U.S. without valid status is a civil violation, and not a crime. H.R. 4437 could render even the most minor immigration violations a federal crime

- Require that all immigration violators, including those who overstay their authorized period of stay, be listed in Department of Justice's National Crime Information Center database

- Require local law enforcement to detain and verify the status of any alien who is apprehended for driving under the influence of alcohol or a related offense, and render deportable any alien unlawfully present and apprehended for one such offense

- Create new bars to Naturalization and limit judicial review of Naturalization decisions

- Require any applicant for a nonimmigrant visa to waive his or her right to a hearing before an immigration judge in the event that he or she is later charged with any immigration violation

- Require the Department of Homeland Security to construct an additional 700 mile fence along the U.S.-Mexican Border

- Increase fines for employers who hire undocumented workers

- Expand the definition "alien smuggling" (a criminal offense) to include any "offender" who provides basic services or assistance to any alien known to have lacked permission to enter or remain in the U.S. This could encompass social service organizations, refugee agencies, churches and attorneys, among others, who assist undocumented aliens. Family members and employers could also be penalized

- Eliminate the Diversity Visa Immigrant Program. Under current law, this program makes 55,000 permanent resident visas available annually to the natives of countries from which immigrant admissions totaled 50,000 or less over the preceding 5 years

Immigration Alert: New USCIS Recapture Procedures for H-1B and L-1 Nonimmigrants

Michael Hawkes — Fri, 21 Oct 2005 18:37:00 -0500

On October 21, 2005, U.S. Citizenship and Immigration Services (USCIS) issued guidelines clarifying the procedure used to calculate maximum periods of stay for H-1B and L-1 nonimmigrants. These guidelines were issued in accordance with the October 18, 2005 directive by the Acting Deputy Director of USCIS that adopted a recent decision by the Administrative Appeals Office (AAO).

Under the Immigration and Nationality Act (INA), H-1B and L-1 nonimmigrants1 are authorized to remain in the United States for limited periods2. The adopted AAO decision clarifies how USCIS should calculate when the maximum of six years is met for H-1B nonimmigrants. Based on the decision, the only time that may be included when calculating the six year maximum is the time "when the alien is lawfully admitted and physically present in the United States."3 The October 18, 2005 directive from the Acting Deputy Director indicated that this method would also be applied to L-1 nonimmigrants.

Time spent outside of the United States shall not be counted toward the maximum limits on nonimmigrant stay for these nonimmigrant classifications. Since time spent in the United States after lawful admission is the only time that counts toward the statutory maximums, a nonimmigrant traveling outside the United States will interrupt the "period of authorized admission." It is only upon return and lawful readmittance to the United States in H-1B or L-1 status that the clock begins to run again. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured.

Nonimmigrants who apply to recapture time spent outside of the United States and thus extend their H-1B or L-1 status carry the burden of proof to clearly establish the actual amount of time physically spent outside of the country. The USCIS guidelines indicate that the burden will be most clearly met by submission of a statement or chart illustrating the time spent outside of the country, accompanied by supporting documentary evidence. Examples of such evidence include:

- Copies of passport stamps;
- Copies of Forms I-94 (Arrival-Departure records); and
- Copies of plane tickets.

Applicants only need to demonstrate that they were outside of the U.S. for the period of time they are attempting to recapture. The USCIS guidelines also makes it clear that spouses or minor children of the principal nonimmigrant (H-4 or L-2 nonimmigrants) may also extend their status to reflect the time recaptured by the principal nonimmigrant.
The USCIS announcement and adopted decision are available at:
http://uscis.gov/graphics/lawsregs/admindec3/d2/2005/sep0205_02d2101.pdf

1. INA §101(a)(15)(H)(i)(b) and INA §101(a)(15)(L) --H-1B classification covers foreign workers coming temporarily to the U.S. to provide services in a "specialty occupation." L-1 classification is utilized by executive, managers, or specialized knowledge transferees.

2. INA §214(g)(4) governs the "period of authorized admission" for H-1B nonimmigrants and limits it to six (6) years. INA §214(c)(2)(D) governs the "period of authorized admission" for L nonimmigrants and limits it to seven (7) years for L visa holders in a managerial or executive capacity and five (5) years for those acting in a specialized knowledge capacity.)

3. The AAO arrives at this conclusion by looking at the plain statutory language of the statute (INA §101(a)(13)(A) and relying on Nair v. Coultice, 162 F.Supp. 2d 1209 (S.D.Cal 2001).

Immigration Alert: USCIS Clarifies Portability Issue in Denial of Adjustment of Status Applications

Michael Hawkes — Tue, 18 Oct 2005 18:35:00 -0500

On October 18, 2005, the Acting Deputy Director of the U.S. Citizenship and Immigration Services ("USCIS") announced the adoption of a recent decision from the Administrative Appeals Office ("AAO") clarifying that adjustment of status applications must be denied if an immigrant petition is denied, even if the petition is denied after the application has been pending for more than 180 days.

In general, foreign nationals may apply for eligibility to become admitted as permanent residents of the United States at a U.S. Embassy or Consulate overseas. Alternatively, foreign nationals already residing in the United States may apply to have their nonimmigrant status adjusted to that of permanent residents. In order to apply for adjustment of status, §245(a) of the Immigration and Nationality Act ("INA") states that the foreign national must (1) have an approved immigrant petition; (2) be eligible to receive an immigrant visa and be admissible to the United States for lawful permanent residence; and (3) an immigrant visa must be immediately available to him/her at the time the adjustment of status application is filed.

United States immigration laws allow employers to file immigrant petitions on behalf of their employees. Accordingly, before the foreign national employee can adjust his/her status to that of a lawful permanent resident, the employer must first file an immigrant petition on Form I-140. Once this petition is approved, the foreign national may adjust his/her status by applying for the employment-based immigrant visa. If the foreign national should later decide to leave his/her job, §204(j) of the INA allows for the employment-based immigrant petition to remain "valid" if the foreign national employee changes occupations or employers so long as "the new job is in the same or a similar occupational classification as the job for which the petition was filed." Accordingly, despite leaving the petitioning employer after his/her adjustment of status application has been pending for more than 180 days, the foreign national may still receive his/her lawful permanent resident status after "porting" to another occupation or employer, but only if it is in the "the same or similar occupational classification."

Although the adopted AAO decision did not clarify the congressional intent behind section 204(j) of the INA, the court disagreed with the argument that the USCIS loses its authority to deny an adjustment of status application if it had not adjudicated the underlying immigrant petition within 180 days. Instead, to properly benefit from the §204(j) provision of the INA when changing jobs, the court held that the immigrant visa petition "must be 'valid' to begin with if it is to 'remain valid with respect to a new job.'" Accordingly, an immigrant petition that has not been adjudicated for 180 days or more does not become "valid" simply by filing the petition with the USCIS and awaiting the passage of 180 days. Before the petition can be considered "valid", it must be filed on behalf of a foreign national that is "'entitled' to the requested classification and that petition must have been 'approved' by an [USCIS] officer pursuant to his or her authority under the [INA]."

The USCIS announcement and adopted decision is available at:
http://uscis.gov/graphics/lawsregs/admindec3/l1/2005/jan1205_02l1245.pdf

Immigration Alert: Anticipated Retrogression in the Employment-Based Visa Categories

Michael Hawkes — Wed, 14 Sep 2005 18:33:00 -0500

The U.S. Department of State ("DOS") issued a Visa Bulletin for September 2005 predicting an increased demand for several employment-based immigrant visa classifications. This increased demand is a result of an effort to reduce current backlogs in processing times with respect to Labor Certifications filed with the Department of Labor ("DOL") and immigrant petitions filed with the U.S. Citizenship and Immigration Services.1

The September Visa Bulletin already reflects an increased demand with respect to available visa numbers within the employment-based third preference ("EB-3") category2, as there are currently no available numbers for this category. Except for Schedule A workers, foreign nationals with approved labor certifications who wish to apply to adjust their status to lawful permanent resident ("LPR") under the EB-3 category may not do so until visa numbers become available again.3

The anticipated increase in demand for employment-based immigrant visa classification will also result in the oversubscription of visa numbers to nationals of certain countries in the EB-3 category, and possibly even employment-based second preference ("EB-2") category4. These countries include China, India, The Philippines, and possibly Mexico. The result will be longer wait times to adjust status to LPR for nationals of these countries because visa numbers will only be available for them if they have labor certifications or immigrant petitions filed by certain cut-off dates. Accordingly, the date that the labor certification or immigrant petition is filed (commonly referred to as the "priority date") will have to precede the DOS cut-off date before a foreign national from an oversubscribed country can adjust his/her existing status to LPR or apply for an immigrant visa abroad. The impact on foreign nationals from countries that are not oversubscribed (and therefore not subject to country specific cut-off dates) will be less extensive, but it is anticipated that there will be a worldwide cut-off date for the EB-3 category before December 2005.

September's DOS Visa Bulletin advises that cut-off dates for the EB-1 and EB-2 categories for China and India will be established no later than December. The bulletin cautions that current demand for employment numbers will remain high and that the cut-off dates imposed are likely to change slowly.

It should be noted that the supply-demand disparity resulting in the oversubscription of employment-based visa categories was already once ameliorated by the provisions of Section 104 of the American Competitiveness in the 21st Century Act ("AC21") on October 17, 2000. Congress had passed this law to provide for a rollover of unused visa numbers from undersubscribed countries to oversubscribed countries, resulting in a pool of approximately 130,000 additional employment-based numbers. These numbers have kept most employment-based visa categories current for some time. With the recent backlog reduction efforts of the DOL and the USCIS, this pool of numbers has now been used up, and the sole remediation of the problems involving oversubscribed numbers will necessarily be left to the natural progression of the supply and demand of intending immigrant workers, or Congressional action. The DOS' Visa Bulletin for September 2005 is available in its entirety at http://travel.state.gov/visa/frvi/bulletin/bulletin_2616.html

1. A Labor Certification is obtained from the DOL as part of a built-in protection for U.S. labor markets that is required for a large portion of the available employment-based immigrant visas.

2. The EB-3 classification is reserved for (1) skilled workers with 2+ years of experience, (2) professionals in a position requiring a baccalaureate degree, and (3) other workers with less than 2 years experience.

3. Schedule A workers include foreign nationals seeking to immigrate as nurses, physical therapists, or aliens of exceptional ability in the sciences or arts. An individual labor certification is not required for these positions because the DOL has formally acknowledged there is a shortage of available U.S. workers, making a test of U.S. labor markets unnecessary.

4. The EB-2 classification is reserved for (1) workers who are members of professions holding advanced degrees or their equivalent; and (2) workers who because of exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.

Immigration Alert: E-3 Treaty Professional Visa for Australian Nationals

Michael Hawkes — Wed, 24 Aug 2005 18:31:00 -0500

The E-3 visa classification was created by Section 501 of the Real ID Act of 2005. In many respects, the E-3 category is similar to the H-1B category. The E-3 visas are available to foreign workers who will be serving in a "specialty occupation", i.e. an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's degree (or its equivalent) at a minimum in the specific specialty. In addition, as with the H-1B visas, the USCIS requires employers to file a Labor Condition Application ("LCA") with the Department of Labor, which reflects the job offer at the appropriate prevailing wage rate.

There are, however, several notable differences between the H-1B and E-3 classifications. First, the E-3 classification is available only to nationals of Australia. In addition, unlike the H-1B category, the initial term of admission for E-3 visa classification is two years, and extensions can be sought in two-year increments. There is, however, no limit on the maximum length of stay in E-3 visa status. Therefore, presumably, extensions of stay may be granted indefinitely in the specified two-year increments. Another significant distinction is that dependent spouses of E-3 holders, upon arrival in the U.S. are eligible to apply for an employment authorization document.

As with E-1 and E-2 visa categories, no petition is necessary for an E-3 classification. An E-3 application is made directly at the consulate. In applying for the E-3 visa, the applicant must present the following documentation:

- the original or copy of the signed LCA;

- proof of Australian citizenship;

- a letter from the U.S. employer describing the specialty occupation to be engaged in, the anticipated length of stay, and the arrangements for remuneration; and
evidence that the foreign national meets the educational requirement for the specialty occupation, including licensure requirements.

At the same time, E-3 holders for whom the USCIS has approved an immigrant visa preference petition are not eligible to apply for adjustment of status. Instead, E-3 holders must apply for the permanent resident status at a U.S. consulate abroad.

There is an annual cap of 10,500 initial E-3 applications for each fiscal year that applies to principal E-3 holders. This cap applies to all initial E-3 applications made abroad and to all change of status to E-3 applications made through USCIS. The cap does not apply to extensions provided that the E-3 holder continues to be employed by the same employer named. In cases where the E-3 holder seeks to change employers either by applying for an extension within the U.S. or by applying for a new visa at a U.S. consulate abroad, such E-3 holder will be counted against the cap. The dependent spouse and children of an E-3 principal alien will not be counted against the annual cap.

Immigration Alert: H-1B Cap Reached for Fiscal Year 2006

Michael Hawkes — Fri, 12 Aug 2005 18:28:00 -0500

On August 12, 2005 U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap for fiscal year 2006 has been reached. Any petitions received after the 'final receipt date' of August 10, 2005 for fiscal year 2006 will be rejected. For petitions received on the 'final receipt date' USCIS will use a random, computer-generated selection process to select the proper number of petitions to meet the cap. For fiscal year 2006 the adjusted H-1B cap is 58,200. Employers wishing to petition for a fiscal year 2007 (employment start date of October 1, 2006) H-1B visa may first submit their petition on April 1, 2006.

The H-1B cap does not apply to current holders of an H-1B visa who petition to:

- Extend the amount of time they may remain in the United States

- Change the terms of their employment

- Change employers

- Work concurrently in a second H-1B position

Additionally, the H-1B cap does not apply to those who petition for H-1B employment at institutions of higher education (or related or affiliated nonprofit entities) or at a nonprofit or government research organization.

The H-1B Visa covers foreign workers coming temporarily to the US to provide services in a "specialty occupation." A petitioner applying for an H-1B classification must demonstrate that they are qualified to work in a specialty occupation. Common fields where some U.S. businesses employ foreign workers in specialty occupations are the fields of computer programming and engineering.

Additional information about the H-1B cap being reached is available at the USCIS website at http://uscis.gov/graphics/publicaffairs/newsrels/H-1Bcap_12Aug05.pdf.

The USCIS also has a frequently asked questions page about the H-1B visa that is available at http://uscis.gov/graphics/howdoi/h1b.htmf.

This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice.The contents of this article may be considered attorney advertising in some states.

Immigration Alert: The Visa Waiver Program and Machine-Readable Passport Requirements

Michael Hawkes — Fri, 08 Jul 2005 18:25:00 -0500

On May 12, 2005 the Department of Homeland Security announced that as of June 26, 2005 all persons traveling under the Visa Waiver Program (VWP) to the United States would be required to present a machine-readable passport (MRP) in order to travel under the VWP and without a visa.

The Visa Waiver Program enables nationals of the 27 countries listed below to travel to the United States for business or tourism without a visa so long as their stay is 90 days or less. Travelers eligible under the VWP may apply for a visa if they chose to do so. Also, some travelers from countries participating in the VWP may be ineligible under the program and required to apply for a visa.

The following countries participate in the Visa Waiver Program:

Andorra
Australia
Austria
Belgium
Brunei
Denmark
Finland
France
Germany Iceland
Ireland
Italy
Japan
Liechtenstein
Luxembourg
Monaco
the Netherlands
New Zealand Norway
Portugal
San Marino
Singapore
Slovenia
Spain
Sweden
Switzerland
United Kingdom

To travel to the United States under the Visa Waiver Program, travelers must present a machine-readable passport that is valid for six months past their expected stay in the United States. Dependant upon when a VWP traveler's MRP passport was issued, there are additional requirements as to what a traveler's MRP must contain:

- Machine-readable passports issued before 10/26/2005 do not have any further requirements

- Machine-readable passports issued between 10/26/2005 and 10/25/2006 require a digital photograph printed on the date page

- Machine-readable passports issued after 10/26/2006 require an integrated chip with information from the date page (e-passport)

Additionally, individuals traveling under the Visa Waiver program should also be aware that by presenting themselves for admission to the United States they are generally waiving their right to review or appeal of a Customs officer's decision at their point of entry. If the conditions of their admission are later violated they do not have the right to contest a removal order.

Finally, for nationals of Canada, Mexico, and Bermuda since their countries are not participants in the Visa Waiver Program there are other provisions which may allow for their visa-free travel to the United States.

Immigration Alert: Updated Department of Homeland Security Form I-9

Michael Hawkes — Fri, 08 Jul 2005 17:26:00 -0500

On June 21, 2005 the Department of Homeland Security (DHS) issued an updated form I-9. The updated form eliminates outdated references to the Immigration and Naturalization Service (INS) and the Department of Justice and replaces them with the appropriate references to DHS and its respective components.

Form I-9 is used by employers to verify their employees' eligibility and authorization to work in the United States. At this time there are no substantive changes to Form I-9 from the prior 11/21/91 edition; although the Department of Homeland Security is in the process of making substantive changes and will introduce a new Form I-9 at a later date. Currently, employers may meet the I-9 requirement by using any of the following editions of Form I-9 (the edition date is found on the lower right corner of the form):

- Form I-9 (Rev. 05/31/05)Y

- Form I-9 (Rev. 05/31/05)N

- Form I-9 (Rev. 11/21/91)N

Immigration Alert: The Real ID Act of 2005

Michael Hawkes — Wed, 01 Jun 2005 17:23:00 -0500

On May 11, 2005 President Bush signed into law H.R. 1268. The Act has two divisions. The first is an appropriations supplement commonly called "Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005". The second division of the Act addresses various aspects of immigration law and is commonly called the "REAL ID Act of 2005".

The REAL ID Act is divided into five sections which addresses various areas of immigration law, three of which directly affect employment based immigration.

Title II - Improved security for drivers' licenses and personal identification cards.

Title II of the REAL ID Act sets out new standards for all state issued drivers' licenses and identification cards that must be met in order for either to be accepted by any Federal agency. The requirements are detailed below and take affect in 3 years.

At a minimum, each state issued driver's license must contain the following information:

- The person's full legal name

- The person's date of birth

- The person's gender

- The person's driver's license or identification card number

- A digital photograph of the person

- The person's address of principle residence

- The person's signature

- Physical security features designed to prevent tampering, counterfeiting, ore duplication of the document for fraudulent purposes

- A common machine-readable technology, with defined minimum data elements

Additionally, in order to have a driver's license or personal identification card issued, one must:

- Present a verifiable photo identity document, documentation showing the person's date of birth, either the person's social security number or that they are not eligible for a social security number, and finally, documentation showing the person's name and address of principle residence

- Present documentary evidence that the person has lawful status in the United States

Title II also provides for temporary drivers' licenses and personal identification cards that expire after one year or at the end of the person's authorized stay in the United States; whichever occurs first. Temporary drivers' licenses or personal identification cards will be issued for the following individuals:

- Individuals with valid non-immigrant visa

- Individuals who have a pending application for asylum
Individual with a pending or approved application for temporary protected status

- Individuals with approved deferred action status

- Individuals with pending applications for adjustment of status to either legal permanent resident or conditional permanent resident status

Title IV - Temporary Workers

Title IV of the REAL ID Act is commonly called the "Save Our Small and Seasonal Businesses Act of 2005". Title IV of the Act addresses temporary workers who utilize the H-2B visa. There is a numerical limitation as to how many individuals may utilize the H-2B visa each fiscal year. Title IV excludes from counting against the cap those who previously (during any 1 of the 3 prior fiscal years) have been counted against it.

The Act also requires returning H-2B workers to provide additional information beyond that contained in their visa petition, adds an additional $150 fraud prevention fee to H-2B petitions filed by employers, and amends the sanctions which can be imposed upon H-2B employers who substantially fail to meet the conditions of the petition or willfully misrepresent material facts on the petition.

Title V - Miscellaneous Changes

Section 1 of Title V of the REAL ID Act creates an E-3 visa category for Australian nationals who perform specialty occupations in the United States. E-3 visas are limited to 10,500 for each fiscal year.

Section 2 of Title V of the REAL ID Act amends the American Competitiveness in the Twenty-first Century Act of 2000 by capping annual third-preference employment-based visas (EB-3) at 50,000 and recapturing any unused EB-3 visas from prior years.

Immigration Alert: The Consolidated Appropriations Act of 2005

Michael Hawkes — Wed, 09 Feb 2005 17:21:00 -0600

On December 8, 2004 President Bush signed into law H.R. 4818, also known as the Consolidated Appropriations Act of 2005.(1) Division J, Title IV of this new law includes several important provisions relating to the L-1 and H-1B nonimmigrant visa categories [L-1 Visa and H-1B Visa Reform Act (the "Act")]. Below we highlight primary changes to the L-1 and H-1B visa programs, as provided by the Act, in order of their implementation dates.

1. Effective Immediately: H-1B Visa User Fee Requirement of $1,500 (or $750 in certain cases), unless exempt

The American Competitiveness and Workforce Improvement Act of 1998 created a user fee of $500 that must be paid by petitioning employers on H-1B visa petitions.(2) This fee was later increased to $1,000 in October 2000.(3) These fees were temporary at the time due to a three year sunset provision and, therefore, were only applicable to H-1B petitions filed before October 1, 2003. The Consolidated Appropriations Act of 2005 now removes the sunset provision, making the user fee requirement permanent, and increases this fee to $1,500.

Accordingly, effective immediately, a $1,500 user fee is applicable to H-1B visa petitions for new employment and first-time H-1B visa petition extensions. This fee is reduced by 50% (to $750) for employers with no more than 25 full-time equivalent employees employed in the U.S.

Examples of employers that are exempt from these fees include:

- institutions of higher education and affiliated nonprofit entities;

- nonprofit research organizations; and

- governmental research organizations.

We note that second time H-1B visa petition extensions (or any subsequent H-1B visa petition extension beyond the second petition extension) are not subject to this user fee.

In sum, initial H-1B visa petitions for new employers and first time H-1B visa petition extensions will typically be subject to the following fees:

- $185 filing fee

- $1,500 user fee

- $1,000 optional premium processing fee (ensuring adjudication of petition within 15 days)

2. Effective March 8, 2005: H-1B Visa Reform Act

a. Prevailing Wage

The Act has changed the standards regarding the prevailing wage requirements for labor condition applications in two respects. First, employers will be required to pay salaries that are 100% of the prevailing wage (employers are currently permitted to pay a salary that is within 5% of the prevailing wage in certain circumstances). Additionally, the prevailing wage surveys must provide four levels of wages. These wage levels are to be commensurate with experience, education and the level of supervision. In situations where a 2-level wage survey is used (i.e. OES Electronic Wage Data Survey), the Act provides a formula for calculating two additional intermediate levels.(4)

b. H-1B Cap Exemption

The Act has created an important exemption from the H-1B cap. Foreign nationals who have earned Master's degrees or higher degrees from U.S. institutions of higher education are exempt from the numerical limitations imposed on H-1B nonimmigrants. This exemption, however, is subject to a 20,000 cap per fiscal year. Employers should take this into consideration now for potential hires beginning March 8, 2005. Please note that U.S. Citizenship and Immigration Services will not accept petitions filed prior to March 8, 2005 with a March 8, 2005 start date.

c. Fraud Prevention Fee
The Act has created a new $500 fraud prevention fee which is in addition to the fees described in Section 1 above, which is applicable to employers filing initial petitions for H-1B or L-1 Visa classification, and petitions involving a change of status or change of employer. This fee is also applicable to blanket L visa applications filed abroad.

3. Effective June 6, 2005: L-1 Visa Reform Act

Restrictions have been placed on where an L-1 visa holder can be stationed to work. For example, an L-1 visa holder may not be primarily stationed at the work site of another employer where either (1) the L-1 visa holder is controlled or supervised by an employer not affiliated with the petitioning employer; or (2) where there is an arrangement by the petitioning employer to provide the L-1 visa holder's labor for the third party. However, an L-1 visa holder may still be placed at the third party work site to provide a product or service involving specialized knowledge that is specific to the petitioning employer.

There will be a requirement of 1 year of continuous employment abroad for blanket L-1 petitions. We note that this is only applicable to initial classifications filed after June 6, 2005. Accordingly, only extension and amendment petitions for employees who already had more than 6 months but less than 1 year of employment abroad prior to June 6, 2005 remain unaffected by this provision.

Footnotes

(1) Pub. L. No. 108-447.

(2) Pub. L. No. 105-277, Title IV, 112 Stat. 2681; 65 Fed. Reg. 80110-239 (Dec. 20, 2000).

(3) H.R. 5362; Pub. Law No. 106-311.

(4) The formula is as follows: Two additional intermediate levels may be created by first obtaining the difference between the two wages provided by the 2-level wage survey. For example, if the two wages are $30,000 and $60,000, the difference is $30,000. Next, this difference is divided by 3. In the above example, $30,000 / 3 is $10,000. Finally, this number is added to the first level and subtracted from the second level to obtain the additional two intermediate levels. Accordingly, in the above example, this would create two additional levels of $40,000 and $50,000, respectively. The 4-level wage survey created would then be $30,000, $40,000, $50,000, and $60,000.

Immigration Alert: Frequently Asked Questions on PERM

Michael Hawkes — Wed, 09 Feb 2005 17:19:00 -0600

The attached list of questions and their answers will be revised and updated periodically as the government continues its commentary on the PERM regulation.

Should you have any questions relating to them, please do not hesitate to contact any of the lawyers in Gibney's Immigration Department.

PERM FAQ'S

1. What is a Labor Certification Application?

2. What is PERM?

3. How does PERM differ from the Traditional and RIR application methods?

4. Can an existing labor certification application be converted to PERM?

5. What is the importance of a Priority Date?

6. What recruitment efforts must be undertaken by PERM?

7. What must be included in the Sunday newspaper advertisement?

8. Must the employer give notice of the job opportunity to employees?

9. Must the employer place a job order with the State Workforce Agency?

10. What recruitment records need to be maintained and for how long?

11. What are PERM's Prevailing Wage requirements?

12. What is the impact of a layoff?

13. Does PERM permit job requirements that are justified by a business necessity?

14. Does PERM permit the use of alternative minimum requirements?

15. Does PERM permit a combination of duties?

16. Under PERM, can U.S. workers be rejected if they can be trained?

17. Does PERM permit the alien's use of experience obtained with the employer to qualify for the position?

1. WHAT IS A LABOR CERTIFICATION APPLICATION?

A labor certification application is an application to the U.S. Department of Labor, Employment and Training Administration ("DOL") to obtain a certification that (i) there are not sufficient U.S. workers ready, willing and able to occupy a position and (ii) there is no adverse impact on working conditions for U.S. workers. For many employment based immigrants, labor certification is the first step in the immigration process and accords the alien a priority date on the immigrant visa waiting list.

2. WHAT IS PERM?

PERM stands for Program Electronic Review Management. The term applies to the long awaited DOL regulations published on December 27, 2004 that establishes a new system for the filing of labor certification applications on behalf of certain foreign employees. Effective March 28, 2005 PERM is an attestation and audit system involving advertising, recruitment and record maintenance obligations.

3. HOW DOES PERM DIFFER FROM THE TRADITIONAL AND RIR LABOR CERTIFICATION APPLICATION METHODS?

Labor certifications applications have historically been filed under two methods, traditional and Reduction in Recruitment ("RIR"). The traditional method involves an application to the State Workforce Agency (SWA) and a SWA supervised recruitment program. The RIR approach eliminates the need for a state supervised recruitment effort based upon an employer recruitment program undertaken prior to filing the application. PERM incorporates principles and practices of both the traditional and RIR methods of filing labor certification applications.

PERM differs from the traditional and RIR methods, inter alia, in the following respects:

- Applications under PERM may be submitted online;

- PERM recruitment efforts and documentary requirements are generally more extensive than those utilized under RIR;

- PERM requires the employer to retain recruitment documentation that is subject to a DOL audit for five years from the date of filing the application);

- Applications may be selected for an audit either for cause or randomly; and

- PERM applications are expected to be adjudicated within 45 to 60 days. (Currently pending traditional and RIR cases are being handled within another Department of Labor program, known as the Backlog Reduction Program).

4. CAN AN EXISTING LABOR CERTIFICATION APPLICATION (TRADITIONAL AND RIR) BE CONVERTED TO PERM?

Although the PERM regulation does not utilize the term "conversion", employers may re-file a labor certification application under the PERM system. The original priority date can be retained providing:

- There is no job order placed by the SWA;

- The PERM application is identical to the existing application in terms of job title, job duties, job location, etc.; and

- The PERM prevailing wage, advertising and recruitment requirements have been met.

The benefit of this "conversion", if successful, is that an application would be processed more quickly. The risk is that if the "conversion" is unsuccessful, the application loses its priority date and may be subjected to a SWA supervised recruitment effort.

5. WHAT IS THE IMPORTANCE OF A PRIORITY DATE?

The filing of a labor certification application accords the alien a priority date on the immigrant visa waiting list. The priority date may be critical for two types of foreign nationals: H-1B visa holders and intending immigrants of certain nationalities and immigrant preference categories. The status of H-1B visa holders may be extended in annual increments beyond the maximum six years, providing a priority date was established before the 5th year anniversary of H-1B status. If the priority date is lost through the "conversion" process, the foreign national would not be able to extend his/her H-1B visa status beyond the 6th year limit and would have to depart the U.S., if no other visa option were available.

The priority date is also critical to individuals of certain nationalities and immigrant preference categories. As there is a quota per fiscal year on how many people may immigrate to the U.S., the priority date becomes important since it retains a foreign national's place in the queue for a visa number. Notwithstanding the fact that a labor certification application has been certified by the Department of Labor, if there is no visa number available based on nationality and visa category, an individual would be ineligible to proceed further in the greencard process (apply for adjustment of status or consular process) until a visa number is available. This situation could potentially leave a foreign national ineligible to remain in the U.S. if they have completed their period of stay in nonimmigrant visa status, and the period of stay could not be extended for the aforementioned reason.

6. WHAT RECRUITMENT EFFORTS MUST BE UNDERTAKEN BY PERM?

PERM requires mandatory recruitment efforts and additional efforts for professional positions, defined as those requiring a college degree or higher. The mandatory efforts include two Sunday advertisements in a newspaper of general circulation and the placement of a job order with the SWA. For positions requiring experience and an advanced degree, an appropriate professional journal can be used in lieu of the second Sunday advertisement. These mandatory recruitment efforts must be completed at least 30 days, and commenced not more than 180 days prior to filing.

For professional positions, PERM requires employers to undertake three additional recruitment steps prior to filing the application. The list includes the following acceptable sources:

- Job fairs;

- Employer's website;

- Job search website;

- On-campus recruiting;

- Trade or professional journals;

- Employee referral program that contains incentives;

- Campus placement offices, where the position does not require a degree;

- Local and ethnic newspapers;

- Radio and television advertisements.

These additional steps must not have commenced more than 180 days prior to filing, although one method can be conducted within the 30 days prior to filing.

The PERM regulation states that the additional recruitment steps only require employers to advertise for the occupation involved in the labor certification application, rather than for the particular job opportunity.

7. WHAT MUST BE INCLUDED IN THE SUNDAY NEWSPAPER ADVERTISEMENTS?

PERM requires employers to identify the name of the employer, the geographic area of the employment, and a job description sufficient and specific enough to apprise U.S. workers of the job opportunity. The advertisement must direct applicants to send resumes or report to the employer. The offered salary need not be included, but any stated salary, or wage range must meet or exceed the prevailing wage.

8. MUST THE EMPLOYER GIVE NOTICE OF THE JOB OPPORTUNITY TO EMPLOYEES?

PERM continues the existing requirement that a 10 day notice of the job opportunity be given to employees to provide them with an opportunity to comment on the application. The notice must be posted for 10 consecutive business days and contain the salary or a wage range, providing the lower level of the range meets or exceeds the prevailing wage. The notice must state, inter alia, that any person may provide documentary evidence bearing on the application to the DOL.

In addition to the posted notice, the employer must publish the notice in any and all in-house media, whether electronic or otherwise in accordance with normal procedures used in the organization for similar positions.

9. MUST THE EMPLOYER PLACE A JOB ORDER WITH THE WORKFORCE AGENCY?

The PERM regulation requires the employer to place a job order with the SWA for 30 days. The start and end of the job order must be placed on the labor certification application form, Form ETA 9089.

10. WHAT RECRUITMENT RECORDS NEED TO BE MAINTAINED AND FOR HOW LONG?

The employer must prepare a recruitment report that describes the recruitment steps and the results, including the number of hires, and the number of workers rejected, categorized by the lawful job related reasons for such rejection. The report and its supporting documents must be retained for five years from the date of filing. The Certifying Officer may request the U.S. workers' resumes or applications, sorted by the reasons for rejection.

11. WHAT ARE PERM'S PREVAILING WAGE REQUIREMENTS?

The PERM regulation requires the employer to obtain a prevailing determination from the SWA before filing an application with the DOL. The validity of the prevailing wage will be no less than 90 days and no more than one year from the determination. The employer must file an application or begin the pre-filing recruitment within the validity period specified by the SWA.

The prevailing wage required to be paid shall be 100% of the wage determined. Governmental surveys used to determine prevailing wages such as the OES shall provide at least 4 levels of wages commensurate with experience, education, and level of supervision.

12. WHAT IS THE IMPACT OF A LAYOFF?

The PERM regulation requires the employer to notify and consider workers it has laid off in the 6 months immediately prior to filing the application. The employer is required to notify and consider those laid-off workers in the occupation for which certification is sought or in a related occupation, which is defined as any occupation that requires workers to perform a majority of the essential duties involved in the job. General market conditions, including layoffs by other employers in the industry could result in an audit and supervised recruitment.

13. DOES PERM PERMIT JOB REQUIREMENTS THAT ARE JUSTIFIED BY A BUSINESS NECESSITY?

The PERM regulation retains the existing standard that permits the employer to articulate requirements for a position that exceed those normally required for similar jobs, providing they can be justified by a business necessity. To establish business necessity the employer must demonstrate that the requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform job duties, in a reasonable manner, as described.

One change in the PERM regulation relates to the standards that define what is normally required for a particular position. The DOL will no longer use the requirements for positions listed in the Dictionary of Occupational Titles, but will refer to the requirements assigned to occupations in the job zones listed in the Occupational Information Network (O*Net). In situations where the requirements for a position exceed those in O*Net, the employer must justify them with a business necessity.

14. DOES PERM PERMIT THE USE OF ALTERNATIVE MINIMUM REQUIREMENTS?

The PERM regulation adopts existing standards that permit the use of alternative requirements, providing they are substantially equivalent to the main job requirements. However, if the foreign national qualified for the position solely on the basis of the alternative requirements the DOL will regard the alternative requirements as being improperly tailored to the alien, unless the employer indicates its acceptance of any suitable combination of education, training or experience.

15. DOES PERM PERMIT A COMBINATION OF DUTIES?

The PERM regulation permits a "combination of occupations" within a position description, providing the employer normally employs workers in the combination of occupations, or that it is customary in the industry or there is a business necessity for the combination.

16. UNDER PERM, CAN U.S. WORKERS BE REJECTED IF THEY CAN BE TRAINED?

The PERM regulation defines a qualified worker to be a worker who, with a "reasonable period" of training may acquire a skill that is lacking. The determination of reasonableness will vary by occupation, industry and job opportunity.

17. DOES PERM PERMIT THE ALIEN'S USE OF EXPERIENCE OBTAINED WITH THE EMPLOYER TO QUALIFY FOR THE POSITION?

The PERM regulation adopts a standard regarding the use of experience gained with the employer that is comparable to that which is currently used. Specifically, experience gained with the employer cannot be utilized to qualify for the position if the experience is "substantially comparable," which is defined as the performance of the same duties more than 50% of the time. Position descriptions, percentage of time spent on various duties, organizational charts and payroll records may be used as evidence to demonstrate that the positions are not substantially comparable.

The term employer is defined as an entity that has the same Federal Employer Identification number. This definition now permits the use of experience obtained with a parent, subsidiary or affiliated employer, providing the FEINS are distinct.

Immigration Alert: Visitors to the United States to be Photographed, Fingerprinted Starting on September 30, 2004

Michael Hawkes — Wed, 14 Apr 2004 17:17:00 -0500

The United States Department of Homeland Security and the Department of State have requested that Congress extend the October 26, 2004 deadline for Visa Waiver Program (VWP)* countries to have machine-readable passports which include biometrics, since most of the countries will be unable to meet the original deadline. As a result of this extension, Homeland Security announced that VWP visitors will be subject to processing in the "US-VISIT" program starting on September 30, 2004. Under US-VISIT, eligible VWP travelers can continue to enter without visas for up to 90 days for business or tourist visits; however, they will be required to have their two index fingers scanned and a digital photograph taken at U.S. air and sea ports of entry.

The deadline for VWP countries to issue machine-readable passports with biometrics will most likely be extended for an additional two years, until October 2006.

The 27 VWP countries are as follows:
Andorra, Austria, Australia, 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 (for citizens with unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).

Immigration Article: NAFTA Professional Information (TD/TN Visas)

Michael Hawkes — Mon, 08 Mar 2004 17:14:00 -0600

The TD/TN visa was established under NAFTA in 1994 in order to facilitate temporary movement of qualified professionals among Mexico, Canada, and the US. As of January 1, 2004, Mexican nationals may apply directly to US consular posts for this visa. The U.S. Department of State website contains detailed information about the application process for a TN or TD visa at http://travel.state.gov/tn_visas.html. You may access the forms to begin the process at the following link: http://travel.state.gov/visaforms.html.

Minimum document requirements for each applicant (including dependents)

- A competed and signed application form DS-156 (standard visa application form)

- For all male applicants between the ages of 16 and 45, a completed DS-157 form

- Copy of current passport biographical data page showing validity for at least two months from date of personal interview

- Recent photo (37 x 37 mm)

- Copy of employment letter and/or job contract from employer indicating the pre-arranged business activities in the US. The position must be in a professional capacity consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.

- Evidence of all educational/work experience requirements for the position as listed in the Appendix, i.e. copy of diploma or letters from former employers

- A copy of the proof of relationship for all dependents, including marriage certificates, birth certificates, or other documentation that shows the relationship with the principal applicant. Please note: "Dependents" are defined as spouse and unmarried children under the age of 21

TN/TD Application Procedure (Mexico City)

1. Complete all necessary forms, obtain all necessary copies and prepare all necessary supporting documentation.
Contact the Consular Assistant to make arrangements for an appointment with the TN/TD Visa Consular Officer and to receive additional instructions.

2. At the interview, the applicant will present all required documentation as listed above to the Consular officer. The applicant should be prepared to briefly discuss their qualifications for employment, professional responsibilities, and travel plans.

3. After the initial interview, the officer will adjudicate the case.

4. The applicant will be asked to return a second time to receive the decision. If the visa is approved, the applicant will be required to pay $100 per year/per application for visa processing fees, or the amount listed in the reciprocity tables.

Contact information:
Consular Assistant from D.F. 5080-2000 x. 4581
Not D.F 011-5255-5080-2000 x. 4581

Please note:
US Law requires that eligibility be established for each visa. Please provide complete and well-organized information to support your request for a visa. Should you need more space for your responses, you may attach additional pages to the application. Every effort will be made to make this decision in a timely manner.

Global Immigration Alert - UK: UK Residence Permit Entry Clearance

Michael Hawkes — Wed, 01 Oct 2003 17:12:00 -0500

Member States of the European Union have recently agreed on a uniform format for Residence Permits that allow non-EU nationals to stay legally within their territories. As part of the agreement, the UK will initiate a Residence Permit Scheme on November 13, 2003. As of that date, all non-EU nationals who apply for an extension of stay in the UK will require a Residence Permit, and those who wish to enter the UK for a stay of more than six months will require prior Entry Clearance.

The new rule will affect U.S. nationals (and those from Canada, South Africa, Singapore, Malaysia, South Korea, Australia, New Zealand, Japan and Hong Kong ) who plan to enter the UK after November 13 as work permit holders for six months or longer. Previously, nationals of these countries could arrive at a UK port of entry with their work permits and be admitted for the validity period of the permit. Now they will need to apply for an Entry Clearance stamp with the British Consulate prior to their departure to the UK. Once the Entry Clearance stamp has been obtained, the work permit holders will not need to apply for Residence Permits after they have arrived in the UK.

The new rule does not affect the procedures for certain groups of people who are already required to apply for prior Entry Clearance, such as accompanying family members of work permit holders or "visa nationals." They will receive visa stamps which will act in lieu of a Residence Permit.

Work permit holders or business visitors who are staying in the UK for less than six months will not require prior Entry Clearance.

Immigration Alert: Machine-Readable Passport Update

Michael Hawkes — Wed, 01 Oct 2003 17:09:00 -0500

The United States Secretary of State has announced that there will be a one-year postponement of the Machine-Readable Passport requirement for 21 Visa Waiver Program countries, until October 26, 2004. The countries for which the postponement has been granted are: Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom.

As of October 1, 2003, visitors from 5 other countries -- Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia -- must present either a Machine-Readable Passport or a U.S. visa. Visitors from Belgium are already subject to this requirement.

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.

Immigration Alert: H-1B Visa Numbers for FY 2004

Michael Hawkes — Wed, 01 Oct 2003 17:07:00 -0500

Effective October 1, 2003, Congress' annual allotment for H-1B visas will be reduced from 195,000 to 65,000 for the fiscal year. The reduction will significantly impact the ability of U.S. companies to hire foreign nationals in nonimmigrant, temporary worker status.

In the past several years, the number of approved H-1B petitions has exceeded 65,000. Accordingly, we anticipate that the H-1B "cap" will be reached in the early months of 2004. The new limits will therefore need to be taken into consideration when recruiting candidates.

The H-1B cap will also affect the ability of university students to obtain work visas following their graduation in May/June 2004. If the 65,000 limit has been exceeded by that time, graduates will need to wait until October 1, 2004 for new H-1B visas to become available again.

Immigration Alert: Countries of Interest List May 2, 2003.

Michael Hawkes — Fri, 02 May 2003 17:03:00 -0500

"Countries of Interest" list apparently used by BCBP inspectors to determine who should be subjected to IDENT procedures (additional security checks) before entering the U.S.

1.Afghanistan
2.Algeria
3.Angola
4.Argentina
5.Armenia
6.Bahrain
7.Bhutan
8.Brazil
9.Congo
10.Cyprus
11.Democratic Republic of Congo
12.Egypt
13.Eritrea
14.Ethiopia
15.Georgia
16.India
17.Indonesia
18.Iran
19.Iraq
20.Israel
21.Jordan
22.Kazakhstan
23.Kenya
24.Kuwait
25.Kyrgyzstan
26.Lebanon
27.Liberia
28.Malaysia
29.Mongolia
30.Morocco
31.Myanmar
32.Nepal
33.Oman
34.Pakistan
35.Panama
36.Paraguay
37.Philippines
38.Qatar
39.Republic of Yemen (Sanaa)
40.SaudiArabia
41.Somalia
42.SriLanka
43.Sudan
44.Syria
45.Tajikistan
46.Tunisia
47.Turkey
48.Turkmenistan
49.United Arab Emirates
50.Uruguay
51.Uzbekistan
52.Venezuela
53.Yemen (Aden)
54.Yemen (Republic of Sanaa)

This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice.
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Immigration Alert: President Signs New Law for Extending H-1B Visas Beyond Six Years

Michael Hawkes — Sat, 02 Nov 2002 17:01:00 -0600

The President has signed into law HR 2215, the 21st Century Department of Justice Appropriations Authorization Act. This law includes an important provision for H-1B employees with pending labor certification applications at the Department of Labor. The new law allows for the H-1B period of stay of an H-1B employee for whom a labor certification application or immigrant petition has been filed and 365 days or more have elapsed since the filing of the application or the petition to be extended beyond the 6-year limit, in one-year increments, until a final decision is made--

(1) to deny the labor certification application, or, in a case in which such application is granted, to deny an immigrant petition filed on behalf of the alien pursuant to such grant;

(2) to deny the immigrant petition (if only an immigrant petition was filed and no labor certification was necessary); or

(3) to grant or deny the alien's application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence.

Immigration Article: National Security Entry Exit Registration System

Michael Hawkes — Tue, 01 Oct 2002 16:57:00 -0500

Effective October 1, 2002, new procedures were implemented by the Attorney General that expand the list of countries whose citizens are subject to special registration requirements upon entry into the United States. Pakistan, Saudi Arabia and Yemen were added to the list of four countries (Iraq, Iran, Sudan and Libya) which have been subjected to the special requirements since September 11, 2002. Male citizens or nationals from the three additional countries who are between the ages of 16 and 45 and are applying for admission to the United States will now be registered pursuant to the new special procedures, which include fingerprinting and photographing. INS officers at arriving ports-of-entry also have been given the right to exercise their discretion to apply these new registration requirements to any nonimmigrant alien, regardless of nationality, whom they have reason to believe meets certain criteria that would call for special examination in the interest of national security. In determining whether to use their discretionary power, inspecting officers may only take into account the following pre-existing criteria established by the Attorney General:

1. The nonimmigrant alien has failed to provide adequate or credible explanation regarding travel to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia or Malaysia.

2. The nonimmigrant alien has engaged in other travel without providing legitimate or satisfactory reasons for such travel.

3. The nonimmigrant alien has previously remained in the United States longer than authorized by the individual's nonimmigrant visa, and monitoring of this alien is now necessary for reasons of national security.

4. The nonimmigrant alien fits characterization standards set forth by current intelligence reports and updates.

5. The nonimmigrant alien is identified by local, state or federal law enforcement as requiring special examination in the interest of national security.

6. The nonimmigrant alien exhibits certain types of behavior or demeanor, or provides certain answers, that indicate that the alien should be scrutinized for reasons of national security.

7. The nonimmigrant alien offers information that provides the immigration officer with sufficient grounds to determine that the alien requires special monitoring in the interest of national security.

Immigration Alert: INS Releases Proposed Rule Governing Visitors and Students

Michael Hawkes — Sun, 14 Apr 2002 16:54:00 -0500

The U.S. Immigration and Naturalization Service (INS) has proposed to amend its regulations for visitors and students entering the U.S. by eliminating the minimum admission period of B-2 visitors for pleasure, reducing the maximum admission period of B-1 and B-2 visitors from 1 year to 6 months, and by implementing new requirements for visitors to extend their nonimmigrant status or change to a student nonimmigrant status in the U.S.

The INS has proposed that both B-1 and B-2 visa holders should be admitted for a period of time that is fair and reasonable for the completion of the purpose of their visit. In determining the reasonable period of the visit, the burden still rests with the alien to adequately establish the precise nature and purpose of the visit. If the INS Officer cannot determine a fair and reasonable period of admission, he/she will grant a 30 day period of admission to the alien.

The proposed rule also restates the general requirement for extensions of status, to provide that an alien requesting an extension of either B-1 or B-2 status bears the burden of proving that he or she has the adequate financial resources to continue his/her temporary stay in the U.S and that he/she is maintaining an unrelinquished residence abroad. Additionally, the INS will only grant extensions in limited circumstances (i.e. unexpected events, compelling humanitarian reasons, or as INS policy may direct), and only for a maximum period of six months.

The proposed rule also requires B nonimmigrant visitors to notify the INS upon initial entry of their intent to begin a course of study in the U.S. B visa holders will be prohibited from pursuing a course of study prior to an approval of a change to student status. For aliens coming to the U.S. to visit schools before enrolling, and want to change their status to a student nonimmigrant status will have to clearly state their intent to study in the U.S. when they initially apply for admission. INS Officers will note that the alien is a prospective student and make the proper notation on the alien's I-94 card. Aliens who file an application for a change of nonimmigrant status in order to change to student status without a Form I-94 that has been annotated by an inspecting INS Officer will be denied the change of nonimmigrant status. This rule will not apply to those already in the U.S. in B nonimmigrant visitor status, since they may have already started a course of study in reliance upon existing rules.

Immigration Alert: Attorney General Removes Argentina from Visa Waiver Program

Michael Hawkes — Wed, 13 Mar 2002 16:52:00 -0600

On February 20, 2002, the Department of Justice announced that Argentina's participation in the Visa Waiver Pilot program is no longer in-line with the enforcement of immigration laws of the United States. Please note that nationals of Argentina who plan to travel to the United States for legitimate business or pleasure are now required to obtain a non-immigrant visa at a U.S. consulate or embassy prior to their arrival into the U.S. Please note further that Argentine nationals who entered the U.S. under the VWP before the removal date, may remain in the U.S. for the period of time authorized on their date of admission. With the removal of Argentina, the following 28 countries remain in the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, The United Kingdom, and Uruguay.

Immigration Alert: State Department Amends Rule on Re-Admittance After Travel to Canada, Mexico

Michael Hawkes — Wed, 13 Mar 2002 16:49:00 -0600

A new Department of State interim rule will affect certain foreign nationals applying for re-admittance to the US after short trips to other North American countries. Under current regulations, nonimmigrant aliens can travel to Canada or Mexico for 30 days or less and be re-admitted to the US with an expired visa, as long as they possess a valid I-94 card and accompanying documentation verifying their current lawful status (such as an I-797 Approval Notice or valid I-20 or valid IAP-66). Under the amended rule, which is to take affect on April 1, 2002, nationals of countries designated as sponsors of terrorism (Iraq, Iran, Syria, Libya, Sudan, North Korea and Cuba) will no longer be able to qualify for this provision and must apply for a visa to re-enter the US. In addition, nationals of any other countries who apply for a visa at a US Consulate in Canada or Mexico during the 30-day period, and whose applications are denied for any reason, will be unable to re-enter the US with an expired visa. The Department of State has proposed the new rule due to the need for greater security screening of visa applicants in light of recent terrorist actions.

Immigration Alert: President Bush Signs Two Bills

Michael Hawkes — Wed, 16 Jan 2002 16:45:00 -0600

On January 16, 2002, President Bush signed two bills... (P.L. Nos. 107-124 and 107-125) which provide employment authorization to spouses of intra-company transferees (L-1 visa), treaty traders (E-1 visa), and treaty investors (E-2). PL 107-125 reduce the period of time during which certain intra-company transferees have to be continuously employed before applying for admission to the United States.

The spouse of an L-1, E-1 and E-2 visa holder will be required to obtain an employment authorization document (EAD) from the INS before they may commence employment. INS is currently drafting guidance on what the procedure will be for obtaining the EAD.

Stay tuned for further updates...

Immigration Alert: DOL Unveils its New "LCA On-Line System" on January 14, 2002

Michael Hawkes — Mon, 14 Jan 2002 16:39:00 -0600

This electronic system has been implemented so that employers or their agents can file LCAs-Form ETA 9035E with DOL via the Web. The advantage to on-line filing will be that within minutes the system will determine if the submitted LCA is certified or denied based on information that was entered onto the form. Once DOL grants certification, the employer or agent will then print and sign Form ETA 9035E, and may file a copy of the signed form with the Immigration and Naturalization Service.