November 2014 Newsletter
In This Issue
Labor Cert News: Atlanta NPC No Longer Forwarding to BALCA All PERM Requests for Reconsideration; Statistical Updates for FY 2014 Q4; H-1B Legacy Docs No Longer Available
The Department of Labor's Office of Foreign Labor Certification (OFLC) recently announced the following news:
Atlanta NPC change in process. As of October 27, 2014, the Atlanta National Processing Center will no longer automatically forward to the Board of Alien Labor Certification Appeals (BALCA) all PERM Requests for Reconsideration where the original case decision was upheld. Rather, a Notice of Decision will be issued when the case is upheld, and the employer must affirmatively request review before BALCA no later than 30 calendar days after the date the Notice of Decision is issued.
The announcement is available here.
Statistical updates for FY 2014 Q4. OFLC has issued updated program fact sheets with selected statistics for the permanent labor certification program, prevailing wage determination program, H-1B temporary visa program, H-2A temporary agricultural visa program, and H-2B temporary nonagricultural visa program. Reports are derived from program data as of September 30, 2014. The updated fact sheets are available here.
H-1B legacy records no longer available. On July 8, 2013, the National Archives and Records Administration (NARA) approved OFLC's revised retention schedule following a 30-day period of public notice and review. NARA determined that employer applications for labor certification and supporting documentation, whether retained in paper or electronic form, are temporary records and subject to destruction. The OFLC-approved disposition schedule authorizes the retention of records for five years after the date a final determination letter is issued or final action occurs, such as a withdrawn application, subject to an active investigation or litigation hold.
The records NARA identified as permanent records are the annual disclosure data files here, as well as the quarterly disclosure data files and the OFLC Annual Reports on the OFLC Performance.
Labor Condition Applications (LCAs) retained in the LCA Online System are all beyond the retention period of five years from a date of final determination or final action. Therefore, effective October 17, 2014, the LCA Online System has been decommissioned.
The OFLC said it will no longer respond to inquiries to search for records in response to Freedom of Information Act requests, or provide information for requests for duplicate certifications for LCA applications processed in the LCA Online System, in keeping with the OFLC records schedule.
USCIS Expands the Definition of "Mother" and "Parent" to Include Gestational Mothers Using Assisted Reproductive Technology (ART)
USCIS issued a new policy clarifying the definition of "mother" and "parent" under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers.
USCIS and the Department of State (DOS) concluded that the term "mother" and "parent" under the INA includes any mother who gave birth to the child and was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.
Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will be able to petition for her child based on their relationship, be eligible to have her child petition for her based on their relationship and be able to transmit US citizenship to her child, if she is a US citizen and all other
For more information, please click here.
U.S. Court of Appeals for D.C. Circuit Reverses District Court in Specialized Knowledge Case
The U.S. Court of Appeals for the District of Columbia Circuit recently reversed and remanded the district court's grant of summary judgment to the government in Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security.
The court noted that Fogo de Chao owns numerous Brazilian steakhouses that focus on the churrasco, a traditional festive style of preparing and serving meat derived from the gaucho culture of the Rio Grande do Sul region of southern Brazil. Following its success in Brazil, Fogo de Chao entered the U.S. market in 1997 and now has restaurants in 16 cities in the United States.
From 1997 to 2006, the Department of Homeland Security granted Fogo de Chao more than 200 L-1B visas for its churrasqueiro chefs to work in its U.S. restaurants. In 2010, Fogo de Chao sought to transfer another such chef, Rones Gasparetto, to the United States, reasoning that his distinctive cultural background and extensive experience cooking and serving meals in the churrasco style constituted "specialized knowledge." The Administrative Appeals Office (AAO) concluded, however, that Mr. Gasparetto's cultural background, knowledge, and training did not constitute specialized knowledge as a matter of law.
The D.C. Circuit held that it was unable to discern either a "sufficiently reasoned path" in the AAO's strict bar against culturally based skills or "substantial evidence supporting its factual finding" that Mr. Gasparetto did not complete the company training program. The court also referred to the government's dismissal of Fogo de Chao's argument that it would suffer economic hardship if it had to train another employee to perform the chef's duties. The court noted: "Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts....That specialized knowledge may ultimately be a 'relative and empty idea which cannot have plain meaning'...is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao's evidence of economic inconvenience threatens just that."
The appeals court generally noted, among other things, that deference is generally due to an agency's interpretation of a statute it administers and its own implementing regulations. No deference was due here, however, because the agency's "specialized knowledge" regulation merely restated the statute and added nothing of its own in which to ground an interpretation to which a court might defer. The AAO's decision, and any legal interpretations contained within it, "were the product of informal adjudication within [U.S. Citizenship and Immigration Services] rather than a formal adjudication or notice-and-comment rulemaking." Finally, the court did not find the government's arguments persuasive and agreed with Fogo de Chao that the agency's conclusion regarding the categorical irrelevance of culturally acquired knowledge was insufficiently reasoned to be sustained.
The D.C. Circuit's decision is available here.
US Embassy London- Update regarding E visa interviews in December
The E visa Team at the US Embassy in London has announced revised holiday opening times. The unit will not see registration applicants from December 22, 2014 through January 9, 2015. However, the unit will continue to see applicants of already registered companies through December 23, 2014 and will resume normal service for these applications on January 5, 2015.
Quarterly Listing of Renunciations published
The Internal Revenue Service has published its quarterly list of people who chose to renounce their US citizenship or long-term permanent resident (‘green card’) status during 2014’s third quarter. It included the names of 776 individuals- the third highest number of expatriates per quarter since 2007.
Click here for the document.
SEC Charges Immigration Attorneys with Defrauding Investors Seeking US Residence; SEC-USCIS Issue Joint Alert
The Securities and Exchange Commission recently charged a Los Angeles, California-based immigration attorney, his wife, and his law firm partner with conducting an investment scheme to defraud foreign investors trying to come to the United States through the EB-5 Immigrant Investor Program.
The SEC alleges that Justin Moongyu Lee, Rebecca Taewon Lee, and Thomas Edward Kent raised nearly $11.5 million from two dozen investors seeking to participate in the EB-5 program. The Lees and Mr. Kent informed investors that they would be EB-5?eligible if they invested in an ethanol production plant that they would build and operate in Ulysses, Kansas. However, they misappropriated the investors' money for other uses instead. They never built the plant and never created the promised jobs, and the Lees and Kent continued to misrepresent to investors that the project was ongoing.
In a parallel action, the U.S. Attorney's Office for the Central District of California announced criminal charges against Justin Lee.
According to the SEC's complaint filed in U.S. District Court for the Central District of California, the investors defrauded by the Lees and Kent were primarily of Chinese and Korean descent. Justin Lee and Mr. Kent applied to U.S. Citizenship and Immigration Services (USCIS) in 2006 for designation as a regional center under the EB-5 program. They claimed there would be "substantial economic benefit" and "thousands" of new jobs for the area in southwest Kansas. However, by mid-2008, construction of an ethanol plant at the site was no longer economically feasible, and the Lees and Mr. Kent concealed their failure to generate the jobs required by the EB-5 program by submitting false documents to USCIS.
In the meantime, the SEC alleges, when Justin Lee was running low on cash and having difficulty obtaining financing, he took money out of investor escrow accounts without the investors' knowledge before the approval of their applications for U.S. residence. Mr. Lee and his wife subsequently misused several million dollars raised from the ethanol plant investors for other undisclosed purposes, such as financing an iron ore project in the Philippines and repaying investors in other unrelated offerings.
According to the SEC's complaint, the Lees set up and conducted investor seminars in Los Angeles at which the purported ethanol plant project was the main focus of the presentation, despite the halt of construction in 2008. Mr. Kent, who visited the site frequently in 2008 and 2009 and knew no construction was taking place, also participated in the seminars. Investors continued to be misled that the proceeds from their investment were being used to construct an ethanol plant. In particular, the business plan updated in June 2010 and distributed to investors falsely represented that construction was "ongoing" and that the plant would be in operation before November 2011.
The SEC's complaint charges the Lees, Mr. Kent, and five companies founded and controlled by Justin Lee (American Immigrant Investment Fund I, Biofuel Venture IV, Biofuel Venture V, Nexland Investment Group, and Nexsun Ethanol) with violations of §§ 17(a)(1), (2), and (3) of the Securities Act of 1933 and § 10(b) of the Securities and Exchange Act of 1934 as well as Rule 10b-5(a) and (c). Justin Lee, Mr. Kent, and the entities also are charged with violating Rule 10b-5(b). The SEC's complaint seeks disgorgement, prejudgment interest, and penalties along with permanent injunctions.
The Association to Invest In the USA (IIUSA), a trade association representing more than 200 EB-5 regional centers, released a statement supporting the SEC's actions in this case.
SEC-USCIS joint alert:
In response to similar cases, in 2014 SEC and USCIS issued a joint alert cautioning potential EB-5 investors about phony regional centers posing as legitimate investment opportunities. The joint alert includes information about steps to take to research any offering that purports to be affiliated with the EB-5 program. For example, would-be investors should:
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News
We have all enjoyed the incredibly mild autumn so far and all enjoyed the warmest Halloween on record in the UK. Clients commented on our Halloween spirit as they munched on sweeties and admired our Halloween decorations. We’re all continuing our practice runs, but find the darker evenings a bit of a challenge.