Hello and welcome to the September Immigration newsletter.

As September is drawing to a close, we take a moment to remember the tragedy that was inflicted on this country and all of humanity on September 11, 2001. We also pause to remember the men, women and children who died on that fateful day and the brave men and women who have died for our country on the battlefield in the war on terror. Somber ceremonies and memorial services were held across the nation and in other parts of the world as well, as people revisited those dark moments, attempting to erase the pain and appreciate the sacrifices made, and challenges overcome in the war against terror across the world.

In other news, the state of economy continues to dominate the headlines. President Obama most recently revealed the “American Jobs Act”, urging lawmakers in Congress to pass it ‘right away’. The measures in the bill, which President Obama claim could create 1.9 million jobs, include tax credits for employers who hire more workers, funding to prevent additional layoffs of teachers, and more money for infrastructure and school construction projects. With opinions on the bill appearing divided (as usual) and with the Presidential elections a little over one year away, it would not be unreasonable to imagine that the administration may have to overcome some stiff opposition in Congress for the bill to pass in its current state. 

In the field of immigration, one of the most notable developments this September was USCIS’ announcement that Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program applicants will now be able to communicate directly with USCIS adjudicators via e-mail to quickly resolve issues and questions that arise during the adjudication process. USCIS indicated that implementation of enhancements to the EB-5 program, which is designed to stimulate the U.S. economy through job creation and capital investment by foreign investors, is a high priority. Considering the ease with which information can be communicated through emails, it is a very welcome move and could considerably speed-up the adjudication of EB-5 Regional Center applications. Hopefully, successful implementation of the e-mail component may encourage USCIS to expand it to other adjudication categories across the board. 

In an another important development, a federal court in Alabama issued an order temporarily delaying the effective date of Alabama's controversial immigration law, HB 56, which was to take effect on September 1, 2011, observing that there was not enough time to address all the legal arguments from various parties over the law’s constitutionality. It is reported that under the provisions of this controversial law, law enforcement officers have to check the citizenship status of any person they suspect of being an illegal immigrant. The law makes it a crime to knowingly provide transportation for or harbor an illegal immigrant, and people are forbidden from renting illegal immigrants’ property or knowingly employing them. Employers have to check a suspected illegal immigrants’ status through the federal E-Verify system and Public schools have to report suspected illegal immigrants to state authorities. The injunction will remain in effect until September 29, 2011, or until the court enters its ruling whichever is first, and therefore, a clearer picture on the legality of the enactment could emerge by the month-end.

In some other immigration news:

1. The Office of Foreign labor Certification (OFLC) issued Questions and Answers regarding the extensive and prohibitive delays in Issuing Prevailing Wage Determinations (PWD) and H-1B Labor Condition Applications (LCA). The OFLC reminded employers that they can obtain a prevailing wage on their own without the assistance of the NPWC. The OFLC observed that that DOL’s regulations provide the employer with alternative sources for obtaining a prevailing wage in support of an H-1B application. OFLC mentioned that as long as the employer provides a prevailing wage in support of its H-1B application, whether through obtaining a PWD from the NPWC or through the other listed sources, there should not be any adverse consequences to the foreign worker on whose behalf the H-1B application was filed. OFLC however cautioned that if the H-1B employer selects an incorrect prevailing wage, then the employer is responsible for that wage attestation in the event of an investigation or enforcement action.

2. The Department of Homeland Security published a Business Transformation Regulation intended to promote the migration of USCIS filings from a paper-based environment to an electronic one, revising more than 50 parts of DHS regulations. The new regulations will become effective on Nov. 28, 2011.

3. USCIS issued a Policy Memorandum providing guidance regarding amendments to the Immigration and Nationality Act that extend the ability to self-petition to battered or abused parents of U.S. citizens. USCIS observed that an abused parent, stepparent, or adoptive parent of a U.S. citizen is eligible to apply for VAWA (Violence Against Women Act of 1994) relief provided that the self-petitioner is a “parent”, as defined in the Act and has or had a qualifying relationship to a U.S. citizen son or daughter. Additionally, the qualifying relationship must have been in existence at the time of the abuse and at the time of filing.

Meanwhile, the H-1B cap count continues to move forward and has almost reached its half-way mark. As of September 9, 2011, USCIS has received 32,200 regular cap eligible cases out of 65,000, and 16,700 master’s cap cases out of 20,000. With the number of H-1B applications filed seeming to accelerate towards the cap limit, employers who intend to employ foreign workers should not assume anything or leave things to the last moment. Make sure to contact VisaPro to discuss all options as soon as a position is offered.

Other Developments in Immigration Law

USCIS issues Policy Memoranda on Changes of Status to B-2 and Extensions of B-2 Status for Cohabitating Partners and other Nonimmigrant Household Members

USCIS has recently issued a Policy Memoranda on Changes to B-2 Status, and Extensions of B-2 Status, for Cohabitating Partners and Other Nonimmigrant Household Members, clarifying that a cohabitating family member’s relationship to the nonimmigrant principal alien in another status will be considered a favorable factor in allowing them to obtain or remain eligible for B-2 classification, and that a change to and/or one or more extensions of B-2 classification is appropriate in the exercise of discretion for household members of a principal nonimmigrant visa holder, when other eligibility requirements are met. This policy memo seeks to bring USCIS into line with Department of State policy regarding the issuance of B-2 visa for cohabiting family members. It is important to remind our readers that cohabiting partners, regardless of their marital relationship, may also avail themselves of B-2 status or the visa.

USCIS publishes Final Rule establishing Transitional Worker Classification for workers in CNMI

USCIS has recently published a final rule that establishes a Transitional Worker (CW) classification for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification allows employers in the CNMI to hire nonimmigrant workers who are otherwise ineligible to work. A limited number of CW visas are available each fiscal year and the numerical limitation for FY 2011 is 22,417 and for FY 2012 will be 22,416. The final rule also provides for the grant of derivative CW status to spouses and minor children of CW workers.

Immigration Articles and Other Fun Stuff

Coinciding with the start of the school year across much of the United States and Teacher’s Day celebrations in India, our In Focus section for this month, titled ‘U.S. Visa for Teachers: H1B, O-1, TN, P-3, And More..’ presents a snapshot of the various nonimmigrant visa options that are available to foreign national teachers and professors desirous of coming to teach in the U.S., including the H1B, O-1, TN and P-3 classifications.

Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 42.86% of the respondents think USCIS’ new entrepreneur and investor initiatives will actually promote startup enterprises and spur job creation in the U.S. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.

We congratulate Abhinav Sinha for winning last month’s Immigration Quiz. We received a significant number of responses from our readers who came up with some creative solutions to support their position, but Abhinav Sinha gave the best answer and

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See you next month with a lot more noise from the Immigration World!