International Law Bulletin - Vol. 18, No. 5
Vol. 18, No. 5 — May 2012
INTERNATIONAL BUSINESS AND TRADE
The Commerce Department preliminarily determined that China is dumping crystalline silicone photovoltaic cells and solar panels at margins ranging from 31.14% to 249.96% (Crystalline Silicone Photovoltaic Cells from China, ITA) (29 ITR 820; 5/24/12).
Export Trade Controls
The Department of State will coordinate with other federal agencies to issue a general license for U.S. businesses to invest in the economy in Burma and to allow access to international credit markets in dollar-based transactions (29 ITR 836; 5/24/12).
INTERNATIONAL AGREEMENTS AND INVESTMENTS
The Services Employees International Union and Mexican Labor lawyers sent a complaint to the government of Mexico charging that the new immigration law of the states of Alabama, Arizona, Georgia, South Carolina, Utah and other states violates Article 7 of the North American Agreement on labor and cooperation principles contained in the North American Free Trade Agreement (29 ITR 766; 5/10/12).
H.R. 4310 is designed to bolster global competitiveness of U.S. satellite manufacturers (29 ITR 822; 5/24/12).
A bill is under consideration in the Parliament to curb corruption and inefficiency in government procurement with the introduction of the Public Procurement Bill (29 ITR 837; 5/24/12).
The Commerce Department and the State Department proposed rules on regulatory changes involving the migration of items from the U.S. Munitions List (USML) Category XIII, covering auxiliary and miscellaneous articles to the “Dual-Use” Commerce Control List (CCL) (29 ITR 823; 5/24/12).
The Commerce Department Bureau of Industry and Security (BIS) published a proposed rule concerning explosives made from energetic materials as part of the Export Control Reform initiative to migrate the subject matter to the Export Control Classification Numbers (ECCN) on CCL list under the Export Administration Regulation (EAR) from the current placement in category V on the USML (77 Fed. Reg. 25932; 29 ITR 749; 5/10/12).
A bill was introduced in the Senate to keep Chinese solar panel manufacturers from benefiting from U.S. tax credits by imposing a 70% component U.S. origin requirement for solar panels sold by U.S. suppliers to U.S. agencies (29 ITR 840; 5/24/12).
The World Trade Organization (WTO) affirmed that a Chinese dumping investigation that led to imposition of duties on imports of U.S. grain-oriented flat-rolled electrical steel (GOS) violated global trade rules agreed by WTO (29 ITR 839; 5/24/12).
The Appellate Body of the WTO overturned two key findings in the dispute panel ruling that partially backed the complaint of Mexico against U.S. “Dolphin-Friendly” labeling requirements of U.S. law as discriminatory against Mexican origin tuna (29 ITR 841; 5/24/12).
The Court of International Trade (CIT) dismissed an action by the Customs and Border of Protection (CBP) that brought an action for negligence when the initial administrative action lodged a claim for “gross negligence” holding that CBP had failed to state a claim properly under the statute (US v. Nitek Electronics, Inc., Ct. Int’l Trade, No. 11-000078; SLIP Op. 12-50, 4/13/12; 29 ITR 804; 5/17/12).
A U.S. alfalfa seed distributor established facts justifying the issuance of an injunction extending to prohibit the use of a trademark in Saudi Arabia and other countries by finding that it was a valid public interest to prevent a U.S. based party from creating confusion in foreign markets by enforcing the relevant contractual obligations entered between the two U.S. companies. (See Services Inc. vs Winsor Grain, Inc., E.D. CAL., No. 1:10-CV-02185-AWI-GSA, 4/12/12; 29 ITR 725; 5/3/12).
USCIS Proposes Change for Waivers of Inadmissibility
There is a current process for filing for adjudication of certain applications for waivers of inadmissibility in connection with an immediate relative immigrant visa application (NPRM-77 Fed. Reg. 19009002/April 2, 2012). The rule would amend the regulations to allow certain relatives of U.S. citizens who are physically present in the U.S. to request provisional unlawful presence waivers under the Immigration and Nationality Act prior to departing from the U.S. for consular processing of their immigrant visa applications (89 IR 70) April 9, 2012).
The U.S. District Court for the Southern District Ohio Reversed the Decision of the USCIS Which Denied Employment of a Non Citizen as a “Market Research Analyst” Who Sought an H-1B Specialty Occupation Visa Classification
In Residential Financed Court v. U.S. Citizenship and Immigration Services, 2012 WL 832300 (S.D. Ohio 2012) the U.S. District Court ordered the USCIS to grant an H-1B petition to allow the plaintiff to employ a non citizen as a market research analyst holding that the plaintiff corporation adequately demonstrated the position of being an analyst was a “specialty occupation” within meaning of the Immigration and Nationality Act (INA Section 214) (I)(1)(B). The company provided evidence the position required Baccalaureate Degree and that the beneficiary had taken the required course work to acquit him to perform the occupation. After the employer responded to a Request For Evidence (RFE) the agency denied the petition reasoning that the Baccalaureate degree in a specific academic discipline is not required for the position of market research analyst and therefore not a “specialty occupation”. The plaintiff filed a complaint in federal district court pursuant to the Administrative Procedure Act (“APA”), 5 USCA Section 702 followed by Motion for Summary Judgment. The USCIS defended that the court lacked subject matter jurisdiction to which the court responded that the denial had deprived the employer of the ability to reach the presumed benefits of employing the beneficiary rejecting the contention that the company had to show it could not find another employee. The court determined the plaintiff had asserted a cognizable claim under USC Section 1331 and did not have to frame the complaint under 28 USCA Section 1346(a)(2) as advanced by USCIS. The USCIS asserted the “jurisdiction-stripping” provision for discretionary decisions rendered under the Immigration and Nationality Act (“INA”) prevented the court from exercising jurisdiction. Although the court ruled that it did not have jurisdiction to review the denial of an H-1B Extension Application, it determined that it did not preclude exercise jurisdiction concluding there is no explicit discretion component respecting the issue of whether the plaintiff sought to employ the beneficiary in a “specialty occupation.” Thus, the court declared the USCIS is bound by INA Section 214(a) (and underlying regulation 8 CFR 214.2 that provides judicially manageable standards which have been repeatedly used by the courts to evaluate agency action for abuse of discretion in granting or denying H-1B petitions concluding that considering treating the applicable statute as providing a blanket discretionary umbrella for all regulations related decisions that fall under that statute might work an unintended result. Standing on the analysis the court held the plaintiff is entitled to the relief sought if the denial of the petition is arbitrary, capricious, and abuse of discretion or otherwise not in accordance with the law the court faulted the USCIS for mischaracterizing the relevant evidence noting that it had done a “poor job of keeping the records straight” and chastised its inexplicable errors including misplaced references to U.S. Department of Labor sources such as the “Occupational Outlook.” It criticized the agency for incorrectly identifying the position describing the errors as a “litany of incompetence that presents fundamental misreading of the record, relevant sources and the point of the entire petition” finding that the USCIS had not engaged in rational decision making and concluded the decision to deny the petition was arbitrary and capricious.
PROTECTION AGAINST TERRORISM
The Department of Homeland Security extended the implementation of the July 2012 Statutory Deadline for 100% scanning overseas of cargo containers bound for the U.S. (29 ITR 824; 5/24/12).
The Transportation Security Administration (TSA) will implement the mandate that all cargo shipments loaded on international passenger aircraft bound for the U.S. shall be put into 100% screening of all air cargo shipments (29 ITR 825; 5/24/12).
The Administration signed an Executive Order that targets foreign evaders of sanctions involving Iran and Syria imposing sanctions against foreign individuals and entities that have violated, attempt to violate or conspired to violate U.S. sanctions against Iran or Syria effective May 1, 2012 (29 ITR 772; 5/10/12).
Sources: BLR – Bloomberg Law Reports Antitrust & Trade; BNA – BNA, Inc., Highlights: International Trade Daily (ITD), International Trade Reporter (ITR), International Trade Reporter Decisions (ITRD), TMIJ-Tax Management International Journal; IL – International Lawyer, SMU School of Law; FT – Financial Times; TE – The Economist Magazine; GATM – German American Trade Magazine of the German American Chamber of Commerce; WSJ – Wall Street Journal; ILN/ABA-International Law News, American Bar Association; International Law News, ILN (American Bar Association; LB-Lehman Brown China Business Insights International Accountants; and Lehman, Lee & Xu; China Patents in the News, January 2012.
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.