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EIG Week in Review (Aug 1, 2014)

August 1, 2014

Highlights

  • UPDATE:  State Department Global Database Crash
  • UPDATE:  USCIS Conducting Site Visits for L-1 Petitions
  • UPDATE:  Irish Employment Permits (Amendment) Bill 2014 Signed into Law
  • Foreign Workers in Italy Who Lose Employment May Obtain One-Year Permit of Stay 
  • Kenya, Uganda, and Rwanda Remove Immigration Barriers to Facilitate Cross-Border Businesses

UPDATE:  State Department Global Database Crash

As an update to last week’s post, the U.S. Department of State Consular Consolidated Database (CCD) is back online, but delays in visa issuance still persist due to extensive backlogs.  The State Department confirmed that the CCD is still performing below its normal operational capacity, but roughly 220,000 nonimmigrant visas were issued between July 20th and July 28th.  While this is a large number, it amounts to only half of the volume during normal operational capacity.

The State Department hopes to have the issue resolved in a few weeks, but there is no clear timeline for when the system is expected to be functioning as usual.  In light of the backlog, visa processing centers are prioritizing immigrant visas, adoption cases, and emergency nonimmigrant visa cases and are printing visas for these cases with very few delays.

Online status systems are also back online, but applicants who wish to check their status may receive a message that their application is undergoing administrative processing.  It is suggested that all U.S. visa applicants make sure to have copies of all documents that were submitted for processing, monitor the tracking of all visa and passport applications, monitor timing and delivery of individual passports and original documentation, assure that there are no errors on received documentation, and contact U.S. employers in case of processing delays.

The State Department has also published an FAQ pertaining to the database crash, available at:  http://travel.state.gov/content/passports/english/news/ccd-performance-issues.html.

UPDATE:  USCIS Conducting Site Visits for L-1 Petitions

This past February we reported that USCIS was gearing up to implement its Fraud Detection and National Security (FDNS) Division’s Site Inspection Program to inspect employers of L-1 visa holders.  USCIS has now begun this process and, currently, is only conducting post-adjudication approval site visits of L-1A petition extensions that were filed with a USCIS Service Center.

At this time, it is unknown if and/or when the site visit program will be expanded to include L-1B and blanket L-1 petitions.  Nevertheless, as a precautionary measure, employers who have filed L-1 extension petitions on behalf of employees who initially entered the U.S. pursuant to an L-1 blanket petition should be prepared for site visits pertaining to those employees.

Subjects of the site inspections are typically chosen at random and primarily conducted without advance notice. The site inspectors are not authorized to make decisions on immigration benefit petitions or applications, but if the inspector has a concern, he or she will inform the agency, potentially resulting in further action by USCIS regarding the case in question.

The objective of the site visit is to confirm that the employer is a bona fide organization that knowingly filed the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition.  Specifically, site inspectors generally take the following action:

  • Verify the existence of the petitioning entity
  • Verify information submitted with the petition (including supporting documentation)
  • Verify the identity of the foreign national employee
  • Review personnel documents (including payroll records)
  • Confirm the foreign national employee’s work location, employment workspace, hours, salary, and job duties
  • Speak directly with the L-1 employee and company representative(s)
  • Take digital photographs of the worksite

Pursuant to federal regulations, employers must file amended L-1 petitions whenever there is a significant and material change in an L-1 employee’s job duties.  During the L-1 site visit, company representatives must be able to explain why a change in job title and/or job duties was permissible without filing an amended L-1 petition, or be prepared to provide a copy of the amended petition, for employees whose job title and/or duties differ from those reflected in the original petition.

It is advisable for employers of L-1 visa holders to have a main point of contact in the event of a site visit and to have documentation organized and available for FDNS review.  Frequently, the inspectors will ask to speak with the signatory of the L-1 petition; in the event this individual is unavailable, employers should have another company representative readily available to answer questions and provide relevant documentation.

UPDATE:  Irish Employment Permits (Amendment) Bill 2014 Signed into Law

As an update to our previous report, the President of Ireland signed the Employment Permits (Amendment) Bill 2014 into law on July 25, 2014, and provisions of the bill will go into effect beginning September 1, 2014. The Bill provides for the following permit types:

  1. Critical Skills Employment Permits (replacing the Irish Green Card Permit)
  2. Intra-Company Transfer Employment Permits
  3. Dependant/Partner/Spousal (DPS) Employment Permits
  4. General Employment Permits
  5. Contract For Services Employment Permits
  6. Reactivation Employment Permits
  7. Internship Employment Permits
  8. Sports and Cultural Employment Permits
  9. Exchange Agreements Employment Permits

The expansion of the employment permits regime has been identified as a key platform of the Irish Government’s Action Plan to create 100,000 jobs by 2016.  It is intended that the Bill will enable a more flexible and robust application process.

Foreign Workers in Italy Who Lose Employment May Obtain One-Year Permit of Stay

An Italian appellate court recently held that foreign workers who have lost their employment contracts as a result of their employer no longer being in business may obtain a one-year permit of stay.  This rule was narrowly tailored toward foreign nationals working for an Italian employer pursuant to a subordinate work permit.  The rationale behind the ruling is to allow the foreign national the opportunity to search for a new job after their employment has ended.

Kenya, Uganda, and Rwanda Remove Immigration Barriers to Facilitate Cross-Border Businesses

Kenyan, Ugandan, and Rwandan professionals, ranging from businessmen, lawyers, doctors, teachers, and media personnel, will soon be able to establish businesses across borders without immigration-related restrictions.  The memorandum of understanding allowing for such arrangement is expected to be signed in October 2014 in Kampala, pursuant to the Northern Corridor Initiative.

The agreement aims to eliminate all restrictions in order to free movement of labor and capital among the tripartite members of the broader East African Community.  If approved, professionals will be afforded the same rights and treatment as nationals, enabling cross-border development of job markets.  Leaders of these regions have expressed their eagerness to expand and invest in critical labor shortage sectors, such as infrastructure, mining, health, manufacturing, and construction.