• Eleven New Countries Eligible for H-2A and H-2B visas

The following eleven countries are now eligible for H-2A and H-2B visas: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and United Kingdom. [Available at www.dhs.gov].

• Revisions to Form I-601, Application for Waiver of Ground of Inadmissibility

USCIS announced numerous revisions to Form I-601, the Application for Waiver of Ground of Inadmissibility. As of January 4, 2010, persons with HIV infection are no longer inadmissible to the United States and are no longer required to file Form I-601 because of their HIV status. Additionally, USCIS has announced revised filing instructions and addresses for the filing of Form I-601 starting on January 27, 2010. [87 IR 257; February 1, 2010].

• USCIS Extends Validity of Medical Certifications for Adjustment of Status Applications

USCIS issued, on December 10, 2009, a policy memorandum extending the validity of medical certifications on Form I-693, Medical Examination of foreign nationals seeking adjustment of status.  As a general rule, the endorsement of a civil surgeon on such a form is valid for one year.  However, some applications for adjustment of status remain pending for more than a year.  Therefore, USCIS has decided to extend the validity of the civil surgeon’s endorsement on Form I-693 until the time of adjustment of status.  Such policy will remain in effect until January 1, 2011 and it applies only to those applications where no Class A or Class B medical condition (other than a Class B condition annotated in section 6, Part 2) was certified. [Available at www.uscis.gov].

• ESTA Mandatory for Visa Waiver Travelers to the United States 

CBP recently announced that travelers from the 35 countries whose citizens can enter the United States without a visa could be barred from boarding flights to the US beginning March 2010 if they don’t first register with ESTA.  According to CBP, even though compliance has been high, CBP calculated that approximately 4,000 travelers a day did not register.  Therefore, CBP has initiated a 60-day transition to enforce ESTA compliance for air carriers. [87 IR 201; January 25, 2010][Available, also, at www.aila.org].

• USCIS Issues Memo on Employer-Employee Relationship in H-1B Petitions

On January 13, 2010, USCIS issued a memorandum providing guidance on the requirements for establishing an employer-employee relationship in H-1B petitions.  The memorandum provides examples of cases involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.  The memorandum explains that USCIS will consider many factors in evaluating the employer's right to control the employee such as : 1) the manner and extent to which the employer supervises the employee; 2)the employer's right to control the employee's daily work product; and 3)the employer's right to hire, fire, and pay the employee. The memorandum describes evidence which proves existence of an employer-employee relationship such as: an itinerary of services or engagements; a signed employment agreement; and, relevant portions of valid contract statements of work, work orders, or service agreements with the end-user client. [87 IR 141; January 18, 2010][Available, also, at www.uscis.gov].

• CBP Inspections of H-1B Visa Holders

CBP is subjecting H-1B visa holders to more scrutiny at ports of entry because of increased fraud in H-1B cases. Officers may call the employer to determine admissibility.  However, CBP will not permit the foreign national to call his/her attorney.  CBP may call the attorney themselves.  CBP now has the technology to verify that the foreign national who was interviewed at the embassy is the same foreign national presenting at the port of entry as well as the ability to access DOL information. Some foreign nationals have not been allowed to withdraw their border applications for admission.  CBP has suggested that Chief Counsel will be consulted to determine whether a foreign national can withdraw his/her application. [Notes from NJ AILA Meeting 1/26/2010; available at www.ilw.com].

• New Illinois Law Places Additional Obligations on Employers Using E-Verify

Beginning January 1, 2010, the Illinois Right to Privacy in the Workplace Act places new obligations on employers using E-Verify.  Under such new law, Illinois employers must provide additional attestations at the time of enrollment in E-Verify and they must confirm certain information on the Illinois Department of Labor’s (IDOL) “E-Verify Employer Attestation Form.”  Those employers who have already enrolled in E-Verify must complete the attestation form before January 30, 2010.  [Available at www.vedderprice.com].

• New Form DS-160 , Nonimmigrant Visa Electronic Application

The new DS-160 online application form used to collect the necessary application information from individuals applying for nonimmigrant visas will be submitted electronically to the Department of State.  Consular officers will use the information and a personal interview to determine an applicant’s eligibility for a nonimmigrant visa. At the present time, only certain U.S. embassies and consulates are using Form DS-160. [Available at www.travel.state.gov]

• E-Verify Photo Tool
  
  

When employers who use E-Verify are presented a photo by the employee that does not match the photo in E-Verify, the employer must notify the employee of the discrepancy.  If the employee contests, then the employer must send a copy of the document to DHS at the following address: U.S. Citizenship and Immigration Services, 10 Fountain Plaza, 3rd Floor, Buffalo, NY 14202 Attn: Status Verification Office- Photo Tool. [Available at www.uscis.gov].

• Pilgrim's Pride Corp. – ICE Reached a Non-Prosecution Agreement with U.S. Attorney's Office

On December 30, 2009, ICE reached a non-prosecution agreement with the U.S. Attorney's Office, Eastern District of Texas, and Pilgrim's Pride Corporation regarding the unlawful hiring and employment of unauthorized workers at Pilgrim's Pride plants.  Pilgrim's Pride did not admit to any criminal or civil misconduct but agreed to pay a $4.5 million fine and will adopt more stringent immigration compliance practices to ensure it only hires legal workers. ICE investigation involved worksites in Texas, Florida, West Virginia, Arkansas, and Tennessee. [Available at www.online.wsj.com]. 

• BIA decision– Portable Legal Permanent Residence 

Under the American Competitiveness in the Twenty-First Century Act, applicants for legal permanent residence based on approved immigrant visa petitions are allowed to change jobs so long as the new job is in the same or similar occupational classification and the legal permanent residence application has been pending for at least 180 days.   The new case of Matter of Neto overrules the Matter of Perez-Vargas case and allows Immigration Judges to determine whether the validity of an foreign national’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the foreign national’s change in jobs or employers. [87 IR 200; January 25, 2010; Matter of Marcal Neto, 25 I. & N. Dec. 169 (B.I.A. Jan. 21, 2010)] [Available, also, at www.justice.gov/eoir/vll/intdec/vol25/3669.pdf]. 

• U.S. Supreme Court Decision – Federal Courts May Review BIA Denials of Motions to Reopen

The U.S. Supreme Court held, in Kucana v. Holder, that INA §242(a)(2) applies only to Attorney General's determinations made discretionary by the Attorney General himself through regulation reversing the Seventh Circuit's decision, where the court held that it lacked jurisdiction to consider an foreign national's petition to review a decision of the Board of Immigration Appeals thereby denying the motion to reopen asylum proceedings. [87 IR 185; January 25, 2010; Kucana v. Holder, 2010 WL 173368 (U.S. Jan. 20, 2010)]. 

• BALCA decision – Additional Recruitment Steps Required for Professional Position 

Employer filed a PERM application on behalf of foreign national for professional position of manager analyst.  The CO denied the application because the employer did not conduct the additional recruitment required when recruiting professional foreign nationals.  The employer asserted that it was in compliance after providing dates for the job order and after having published the ad on such position in two Sunday newspapers and one with the state workforce agency. The Board affirmed the CO's denial stating that for professional positions an employer must conduct at least three additional recruitment steps from a list of 10 options. [87 IR 100; January 11, 2010; Matter of Home 4U Realty, 2009-PER-00076 (BALCA Dec. 17, 2009)]. 

• BALCA decision – Advertisements 

Employer filed a PERM application on behalf of foreign national for the position of hair stylist. Employer's first newspaper ad ran in The Star Ledger on a Sunday, but its second ad ran in The Jersey Journal on a Saturday. The CO denied the application because a Sunday edition of a newspaper of general circulation was available for the second advertisement but was not used. Employer submitted proof that The Jersey Journal "is published daily except Sundays and holidays." The Board affirmed the denial of certification because the employer presumably could have published a second Sunday ad in the Star Ledger rather than switching, without explanation, to the Jersey Journal. [97 IR 100; January 11, 2010; Matter of Samia's Salon of Jersey City Corp., 2009-PER-00254 (BALCA Dec. 17, 2009)].

IR-Interpreter Releases; IB-Bender’s Immigration Bulletin; American Immigration Lawyers Association Monthly Journal; AILA - American Immigration Lawyer’s Association