Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for February, 2012

2012 Elections – Foreigners, the U.S. Political Process and Permitted Activities

We are in the peak of the Republican Party primary season and we are very close to have the general Presidential election campaign under way.   Some of the candidates have expressed opinions on immigration, in connection with the campaign, or previously, and it is natural for some foreign citizens, both living in the U.S. and abroad, to be interested in contributing money and/or services to a candidate’s campaign.  However, there are strict rules that govern what a foreign citizen can do during an election campaign.

Our office receives an increasing number of inquiries about what kind of activities by foreign nationals are permitted in connection with the U.S. elections and this article seeks to provide some general guidance.   Please note that this general information article is not legal advice and we are happy to provide individual consultations and to analyze a specific case.

The Law

The relevant law is the Foreign Agents Registration Act (FARA) which was first enacted in 1966 and initially aimed to minimize foreign intervention in U.S. elections by establishing a number of limitations on foreign individuals.  In 1974, the prohibitions were incorporated into the Federal Election Campaign Act (FECA).

FECA prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.  It is also unlawful to help foreign nationals violate that ban or to solicit, receive or accept contributions or donations from them.  Persons who knowingly and willfully engage in these activities may be subject to fines and/or imprisonment.

Who Is a Foreign National?

The prohibition is very broad, but there are exceptions.  Although a “foreign national” is defined as broadly as a foreign person or entity, persons with green cards are excluded from the definition of a foreign person and should be eligible to contribute money and/or services to a political campaign.

Money

Based on the definition of “foreign national” and the exception for green card holders, it follows that only green card holders can contribute financially to the political campaign of a presidential candidate.   The limits of such financial contributions are outside of the scope of this article.

It should also be noted that it is unlawful to provide assistance to foreign nationals making contributions to political campaigns in violation of FECA.  It is also illegal to knowingly solicit, accept, or receive contributions or donations from foreign nationals.

Contribution of Services

Some foreign nationals who do not have green cards can nonetheless help a political campaign via voluntary non-monetary contribution of services.  The Act provides that that the “volunteer” exemption applies as long as the foreign national performing the service is not compensated by anyone.

The “non-compensated” rule is very vague, and as a result, the Federal Election Commission has addressed its nuances in a couple of advisory opinions.  In Advisory Opinion 1987-25, the Commission allowed a foreign national student to provide uncompensated volunteer services to a Presidential campaign.  By contrast, the decision in Advisory Opinion 1981-51 prohibited a foreign national artist from donating his services in connection with fundraising for a Senate campaign.    During the 2008 campaign, FEC ruled that Sir Elton John (a foreign national) organizing a $2.5 million fundraiser for Hillary Clinton’s campaign was “volunteer service.”

Conclusion

As the 2012 election season gets underway and more and more people are engaged in some capacity for some of the candidates’ campaigns, it is important to understand the restrictions imposed on foreign nationals from engaging and contributing to the political process.    Our office is happy to provide consultations or to help analyze a specific situation pertaining to a foreign national and the U.S. election process.

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PERM Filing Statistics and Current PERM Processing Times (February 15, 2012)

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 15, 2012.

PERM Processing Statistics

DOL has provided some useful statistics on the number of PERM cases processed for the FY2012 fiscal year (starting October 1, 2011) until February 15, 2012.   During this period, DOL has received 17,700 cases (in comparison, DOL had received 13,000 PERM applications as of January 6, 2012, suggesting a rate of approximately 800 PERM applications filed every week, at least for the past few weeks).

During this period, the government has also processed 16,555 PERM cases.  This suggests that DOL is more or less keeping up with the rate of filings and further suggesting that there should not be major change in the regular PERM processing times in the short term (see below for the current PERM processing times).   Out of the 16,555 PERM cases processed so far this fiscal year, 12,350 were certified, 3,312 were denied and 893 were withdrawn.    Out of the 24,400 “active” PERM cases as of February 15, 2012, about 60% were at analyst review, 26% were at audit review and 8% were on appeal.

Current PERM Processing Times

Most notable is the slight delay in the processing time for regular PERM applications — to approximately four months.  The processing times, as reported by DOL, are as follows:

  • Regular processing: October 2011.  DOL is processing PERM applications with priority dates in October of 2011.  There is slight delay (of one month) in the processing times, compared to the January 2012 report.  Accordingly, regular PERM processing times should be around three to four months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.
  • Audited applications: June 2011.  DOL is processing PERM audits which have a priority date of June 2011.  There is improvement (of one month) in the date for this type, suggesting that PERM audits should take a month less than previously.  Accordingly, audited PERM applications are processed approximately eight to nine months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration): August 2010.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which have a priority date of August 2010.   There is notable improvement in this category in comparison to prior months.   Comparing with the January 2012 report, this category has improved the processing time by four months.   Accordingly, PERM requests for reconsideration are processed approximately 16-18 months after the initial PERM was filed and its priority date established.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times).

Conclusion

The February 2012 PERM processing times report shows a very delay in the regular and appealed PERM processing times, while there is a slight improvement in the audited PERM processing times.   We hope that DOL would be able to continue to improve the PERM processing times over the next weeks and months.  We also hope the improvements in PERM audit and appeal processing times would continue in the spring.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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H-1B Beneficiary Attestation Introduced by US Consulate in Hyderabad

Among increased scrutiny and often long waiting period to obtain an H-1B (and sometimes even H-4 for their dependents) visa stamp, a number of US-based IT consulting employees are understandably nervous about traveling abroad and attending the H-1B visa stamp interview.

Our office handles a substantial number of such H-1B petitions and H-1B visa stamp applications and while we can confirm that a well-prepared H-1B stamping application has a very good chance of success, nonetheless, the scrutiny and level of review/delay has increased.

US Consulate in Hyderabad, India Introduces Attestation Document for H-1B Workers

We have learned that the US Consulate in Hyderabad has started requiring certain H-1B applicants (most likely who would be working for IT consulting companies) to sign a notarized statement attesting to a number of facts in relation to their third-party client placement and employment.     See a real (but redacted) attestation document.

H-1B Applicants in Hyderabad Must Attest to the Terms of Their H-1B Employment

The attestation seems to require the H-1B worker to provide or confirm (under oath and under penalty of permanent bar on admission to the United States) a number of facts relating to the H-1B employment.    First, the H-1B worker must confirm that he or she has read the Wilberforce pamphlet which has been provided to them by the Consulate.   The Wilberforce pamphlet is a document which is usually given out by U.S. Consulates to certain visa applicants informing them of their rights under the human trafficking and labor laws in the United States.

In addition, the H-1B workers must attest to key facts describing the employment – including name of end client, identities and contact information of supervisors, terms of employment and other facts describing the employer-employee relationship between the sponsor employer and the H-1B worker.

Importantly, the H-1B worker submits the statement under oath and subject to a permanent ban on entering the U.S. for providing false information.   Since the information required in the attestation often comes from the H-1B sponsor employer, the fact that the H-1B worker has to attest to facts to which he/she may not have direct knowledge should cause an H-1B worker to pause and ensure that all information is correct before signing his or her name.

Conclusion

It seems that the H-1B worker attestation introduced by the US Consulate in Hyderabad is a new approach in the H-1B visa stamping procedure — at least for Hyderabad.   We do not have direct reports of this kind of attestation being used by other Consulates; however, it is possible the use may spread.   We hope that this kind of attestation is limited only to cases in which the employment terms and the employer-employee relationship is not amply documented.   When the H-1B sponsor is willing and able to document amply the facts and the terms of the H-1B employment at a third-party client site, this attestation should not be needed.

Have you received or have been asked to sign similar attestation?   Please let us know.

We will continue to monitor developments on this topic and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Admission of Mexican TN Workers

Under the North American Free Trade Agreement (NAFTA), certain Canadian and Mexican professionals are allowed to enter the U.S. under the TN nonimmigrant classification to engage in certain TN-eligible occupations.   We wrote recently about Admission of TN Canadian Workers in the U.S.  This article is the second of the series and pertains to requirements and procedures for admission of Mexican TN workers in the U.S.

TN Admission Requirements

It is important to note that requirements for admission of Canadian and Mexican TN workers vary.   While a Canadian citizen TN worker may apply for TN classification at the border,  Mexican TN workers must first obtain a TN visa at a U.S. Consulate.     After obtaining a TN visa from the Consulate, a Mexican citizen may apply for admission in TN status at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station.

Visa Validity and Proper Period of Admission

A TN visa issued to a citizen of Mexico by a U.S. Consular officer is valid for a maximum of one year.  The TN visa validity limitation is required by the U.S. Department of State’s reciprocity schedule.   The validity of the TN visa, however, does not determine the period of time that a Mexican TN worker may be admitted in TN status — a Mexican TN worker may be admitted for a period of up to three years in TN status, provided that the passport will remain valid for the entire period.

A key document a Mexican TN worker should be ready to present is a TN support letter, prepared and issued by the intended US employer describing how the intended position and the employee qualify for TN status.

Not all Mexican TN workers are given a 3-year TN status, however.    If the intended employment is of shorter duration, as described in the TN employer support letter, the TN worker is likely to be given TN status only for the requested work period.

Conclusion

The requirement of a passport with sufficient validity and a proper TN employer support letter makes it important for Mexican TN workers to prepare a proper application for admission into the U.S. on TN status.   Unlike Canadian TN workers, Mexican TN workers must first go through the U.S. Consular visa application review process and often can document well their employment by the time they travel to the U.S. to seek admission on TN status.   Our office routinely handles Mexican TN worker applications and we are happy to assist with the preparation of proper TN visa application and admission paperwork.    Please feel free to contact us for assistance or with questions.

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March 2012 Visa Bulletin – EB-2 India and China Advance by Four Months; Slow Movement in EB-3; FB-1 Advances Again; Moderate Movement in FB2A

The U.S. State Department just released the March 2012 Visa Bulletin which is the sixth Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the continuing significant (but decreasing) forward movement in EB-2 India and China (by four months) and the continued forward movement in FB-1.

Summary of the March 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the March 2012 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China both move forward by four (4) months to May 1, 2010.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only three (3) weeks to March 15, 2006, EB-3 China  moves forward by one (1) month to January 1, 2005, while EB-3 India  moves forward by only one (1) week to August 22, 2002.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by three (3) weeks for ROW, Mexico and Philippines to March 15, 2006.  It also moves forward by one (1) week for India to August 22, 2002.

Summary of the March 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the March 2012 Visa Bulletin with respect to family-based petitions:

  • FB-1 moves forward (again, for sixth consecutive month).  FB-1 ROW, China and India all move forward by five (5) weeks to February 1, 2005.   FB-1 Mexico moves forward by one (1) week to May 1, 1993 and FB-1 Philippines moves forward by one (1) month to June 22, 1997.
  • FB-2A moves forward by six (6) weeks to July 22, 2009 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by seven (7) weeks to July 1, 2009.
  • FB-2B ROW, China and India move forward by one (1) month to November 15, 2003.  FB-2B Mexico remains unchanged at December 1, 1992.   FB-2B Philippines moves forward by five (5) weeks to December 8, 2001.

Substantial Movement in EB-2 India and China Continues (but May be Slowing);  Slow Movement  for EB-3; Continued (for Sixth Month) Forward Movement in FB-1

One of the major headlines this month, in the sixth Visa Bulletin for the Fiscal Year 2012 is the continued (but decreasing) forward movement in EB-2 India and China.    This is a confirmation of the Visa Bulletin Predictions provided by our office after meeting Mr. Charles Oppenheim on October 26, 2011 and the subsequent comments Mr. Oppenheim provided on January 19, 2012.   The slow movement across EB-3 especially EB-3 India continues, unfortunately.

We see continued forward movement in the FB-1 category which, for several months, had not changed.   This month’s forward movement is the sixth consecutive month with forward movement in the FB-1 category.   We continue to see the FB-2A category move forward, although by not as much as we saw for the last few months and after the significant retrogression during the months before.

EB-2 China and India Predictions

We can rely on Mr. Oppenheim’s January 19, 2012 comments regarding anticipated movements of the cutoff dates over the next few months.    After the forward movement in EB-2 China/India in March, there may be some additional forward movement in the April 2012 Visa Bulletin.   Afterwards, Mr. Oppenheim is expected to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.    Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India and EB-2 China.   Those applicants whose priority dates are current as of the March 2012 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the March 2012 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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