August 2013 Newsletter
In This Issue
U.S. Embassy, London Implements New Visa Application Process
The new procedure for booking appointments at the U.S. Embassy, London went live on Friday, July 26. To book appointments and pay application fees applicants may either call the Embassy’s Call Centre or use the Embassy’s new online service here. The Application for Non-Immigrant Visa (Form DS-160) must be submitted on-line prior to the scheduling of the non-immigrant visa interview.
USCIS Updates DOMA FAQ
U.S. Citizenship and Immigration Services has updated its frequently asked questions (FAQ) on same-sex marriages under the Supreme Court's recent decision holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The latest FAQ notes that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas. Their eligibility will be determined according to applicable immigration law and they will not be denied because of a same-sex marriage.
The FAQ also notes that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses. The FAQ states that as a general matter, "the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes."
The FAQ also includes information about applying for benefits, what to do about previous denials, changes in eligibility based on same-sex marriage, residence requirements, inadmissibility waivers. It is available here.
U.S. Department of State Issues Cable Providing Guidance to Consular Posts Regarding Implementation of DOMA Ruling
Beginning immediately, consular officers should review visa applications filed by a same-sex spouse in the same manner as those filed by an opposite-sex spouse, unless a specific provision of the federal immigration laws requires a different approach
A same-sex marriage is now valid for immigration purposes, as long as the marriage is recognized in the "place of celebration." A same-sex marriage is valid for immigration purposes even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.
You may contact the Federal Benefits Section at the U.S. Embassy in a variety of ways but the most efficient way is by using their online form. The Federal Benefits Unit provides services for six federal benefits programs outside the U.S.. The largest program is the Social Security Administration. The FBU provides assistance to over 44,000 beneficiaries throughout the UK, Belgium, Luxembourg, and 16 countries in Africa.
U.S. Department of Labor Proposes To Delay Effective Date of H-2B Methodology Final Rule Indefinitely
The Department of Labor (DOL) proposes to delay indefinitely the effective date of the "Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program" final rule (2011 wage rule) "to comply with recurrent legislation that prohibits the [DOL] from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047."
The 2011 wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labour certifications to employ H-2B nonimmigrant workers. The 2011 wage rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. The Department is now proposing to delay the effective date of the 2011 wage rule "until such time as Congress no longer prohibits the [DOL] from implementing" it.
DOL explained that, among other things, the appropriations bill enacted in November 2011 prevented funding but did not prohibit the 2011 wage rule from going into effect. The DOL explained that the 2011 wage rule would supersede and nullify the prevailing wage provisions at 20 CFSR 655.10(b) of the DOL's existing H-2B regulations. Accordingly, in light of the November 2011 appropriations bill, the DOL decided to delay the effective date of the 2011 wage rule. If the wage rule had taken effect, the DOL explained, "[s]uch an occurrence would have rendered the H-2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer's request for an H-2B labor certification."
Subsequent appropriations legislation contained the same restriction prohibiting the DOL's use of appropriated funds to implement, administer, or enforce the 2011 wage rule and, the DOL said, necessitated subsequent extensions of the effective date of that rule. The DOL therefore now proposes to delay the effective date indefinitely until such time as the rule can be implemented with appropriated funds.
Additionally, the DOL and the Department of Homeland Security (DHS) recently promulgated an interim final rule, requesting comments, to establish a new wage methodology in response to CATA v. Solis, decided in 2013. The interim final rule requires prevailing wage determinations issued using the Occupational Employment Statistics (OES) survey to be based on the mean wage for an occupation in the area of intended employment, without tiers or skill levels. The comment period closed on June 10, 2013, and the DOL and DHS are reviewing the comments and determining whether further revisions to 20 CFSR 655.10(b) are warranted.
DOL explained that the confluence of the recent Congressional prohibition of implementation of the 2011 wage rule and the DOL's current review and consideration of comments made in response to the proposed new wage methodology require the indefinite delay of the effective date of the 2011 wage rule. Even if Congress lifts the prohibition of implementation of the 2011 wage rule, the DOL said it would need time to assess the current regulatory framework; consider any changed circumstances, novel concerns, or new information received; and minimize disruptions.
The DOL invites comment until August 9, 2013, on the proposed indefinite delay of the effective date of the 2011 wage rule. If Congress should no longer prohibit implementation, the DOL would publish a notice in the Federal Register within 45 days on the status of 20 CFR 655.10 and the effective date of the 2011 wage rule.
The DOL's Federal Register notice of proposed rulemaking is available here.
New Publications and Items of Interest
Selected statistics by program. The Department of Labor's Office of Foreign Labor Certification (OFLC) has updated program fact sheets with FY 2013 third-quarter selected statistics for the permanent labour certification, prevailing wage determination, H-1B temporary visa, H-2A temporary agricultural visa, and H-2B temporary non-agricultural visa programs. The updated fact sheets are available here (click on the "Selected Statistics by Program" tab under the introductory paragraph).
Also, The OFLC PERM, H-2A, H-2B, prevailing wage, and H-1B program disclosure data files for Quarter 3 of FY 2013 are now available. Click here to access the disclosure files and corresponding record layouts.
Stakeholder teleconference on business issues. USCIS' Nebraska Service Center will hold a stakeholder teleconference on business issues on Thursday, August 8, 2013, at 10 a.m. central time. Topics will include premium processing, I-140, I-360, I-485 EB, I-765 riding with EB I-485, I-131 riding with EB I-485, waivers as appropriate, I-824 as appropriate, and I-765(c)(9). Those wishing to be added to the distribution list for calls should email firstname.lastname@example.org. Call-in information will be released at a later date.
Department of Justice educational video on employment eligibility verification discrimination. The Department of Justice's Office of Special Counsel (OSC) released an educational video on July 11, 2013, to assist employers in avoiding charges of discrimination in the employment eligibility verification Form I-9 process and in the use of E-Verify. The video also helps educate employees about their legal rights. The OSC said it developed this video to address issues that frequently arise from calls to its hotline and charges filed. "Employers sometimes incorrectly believe that they need to request more documents than are necessary for the employment eligibility verification form I-9. Additionally, employers using E-Verify may improperly request specific documents due to misunderstanding of E-Verify requirements." OSC’s new video highlights some practices that are not permissible and that could lead to discrimination claims.
The OSC video may be viewed here. The notice announcing the video is available here. The latest OSC video is part of OSC's educational video series here. OSC also operates a hotline for employers and workers, providing guidance to employers on how to avoid discrimination and educating employees on their rights. In addition, OSC offers live webinars for both employers and employees. For more information about protections against employment discrimination under the immigration laws, call OSC's worker hotline at: 1-800-255-7688 (1-202-616-5525, TTY for the hearing impaired); call OSC's employer hotline at: 1-800-255-8155 (1-202-616-5525, TTY for the hearing impaired); email email@example.com; or visit the OSC website.
USCIS reports on H-1B. USCIS has released several fiscal year 2012 annual reports to Congress:
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:
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