Blog • Gibney Anthony & Flaherty LLP - Gibney, Anthony & Flaherty, LLP is a full-service commercial law firm with offices in New York and San Francisco. Practice areas include: Business Immigration, Intellectual Property, Business, Antitrust & Product Distribution, Labor & Employment, Litigation & Dispute Resolution, Private Client, Real Estate and Tax & Employee Benefits.

IP Spotlight: Joan Jett Sues Hot Topic for Trademark Infringement over Term ‘Blackheart’

Michael Hawkes — Mon, 17 Jun 2013 08:02:57 -0500

Rocker Joan Jett may love rock n’ roll but apparently she does not love trademark infringement. On June 12, 2013, Joan Jett brought suit on behalf of her record label Blackheart Records against retailer Hot Topic for trademark infringement and other claims. The lawsuit was sparked by Hot Topic’s use of the name “Blackheart” for its new rock and roll inspired collection. The Blackheart collection is extensive and includes lingerie, apparel, accessories, beauty products and more.

Joan Jett developed her signature rock star style during her days with the Runaways and later as lead singer of the band Joan Jett and the Blackhearts. When Jett was ready to move on, she started Blackheart Records. Blackheart Records not only promotes new bands but also sells merchandise, including apparel, under the Blackheart brand.

Hot Topic has a massive presence in malls across the country and is known for selling clothing and accessories that can be described as gothic or rock themed. According to the complaint, in 2010, Hot Topic sought to collaborate with Jett on the design for a new line which was to include apparel and other products. To Jett’s surprise, Hot Topic launched its own Blackheart collection just a couple years later in 2012. The new line is offered for sale online and in any of the 5 Blackheart retail stores around the country.

Hot Topic has responded to the suit accusing Jett and Blackheart Records of abandoning any trademark rights in apparel and accessories. Further, it asserts that it currently has 11 valid trademarks that have been issued by the United States Patent and Trademark Office for its use in many different arenas, including apparel, lingerie and retail stores, and it plans to defend them.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. He focuses his practive on Intellectual Property registration, protection and enforcement. He can be reached at (212) 688-5151 or mlee@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

IP Spotlight: 3D Realms Files Lawsuit against Gearbox over Royalties to “Duke Nukem Forever”

Michael Hawkes — Fri, 14 Jun 2013 10:10:56 -0500

On Friday June 7, 2013, Apogee Software Ltd., who maintains the brand 3D Realms Entertainment, filed suit against Gearbox Software LLC for breach of contract. The contract at issue is a 2010 agreement between 3D Realms and Gearbox involving rights to make video games based on “Duke Nukem.” Apogee claims that Gearbox owes it millions of dollars in royalties and advance payments, specifically concerning the game “Duke Nukem Forever”. Further, Apogee asserts that Gearbox intentionally prevented 3D Realms from auditing its royalties statement, which it claims it was entitled to do under the agreement.

However, as always, there are two sides to this story. Gearbox takes a completely opposite position, stating that it completely lived up to its obligations under the agreement. Moreover, Gearbox claims that the video game was an epic failure, and 3D Realms is just mad about it. Furthermore, Gearbox says 3D Realms is the only party who actually benefited from the transaction. In fact, Gearbox actually claims it lost money and suffered damage to its reputation as a result of the failed video game.

This is a prime example of why friends should be careful when they engage in business together. At the outset of the relationship, the President of Gearbox and the heads of 3D Realms were pals, having known each other through their experience in the video game industry. Needless to say, that friendship may have been spoiled.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Alert: Public Hearing Held on Proposed New York City Bill Criminalizing the Purchase of Counterfeit Goods

Michael Hawkes — Thu, 13 Jun 2013 14:40:53 -0500

In April, we featured a story on a controversial bill sponsored by New York City Councilwoman Margaret Chin, whose district includes Chinatown in Manhattan. That article can be found here. The bill as proposed aims to deplete the demand for counterfeit goods by criminalizing the actual purchase by anyone who knew or should have known the items were fake. On Thursday June 13, 2013, the New York City Council held a public hearing to consider the bill.

The bill was met with both support and scrutiny from members of the local community and legal and other professionals with a vested interest in stopping the counterfeiting problem in New York City. The panelists reiterated that counterfeiting is not a victimless crime and recapped the widespread effects of counterfeiting. To name a few, counterfeiting most directly hurts the companies and brands being knocked off, it deprives the city of an estimated $1 billion per year in tax revenues, promotes hazardous working conditions and child labor, funds other criminal activity (including global terrorism), and has an immediate effect on the residents of local neighborhoods infiltrated by it.

For those reasons, a consensus was reached on the ultimate goal of eliminating demand for counterfeit goods. However, the means of doing so seems to be the main sticking point. Some feel that the potential for jail time is too harsh a penalty. Others believe no penalty is even necessary, that simply creating a public awareness campaign and educating consumers will serve to deter purchasers of counterfeit goods. On the other hand, many supporters are all for the bill as is, including the fine and jail time, opining that this is exactly what we need to finally eradicate the pervasive problem. These supporters are of the opinion that instilling fear of severe consequences is not only necessary but is the only way to effectively prevent consumers from purchasing counterfeits. As many pointed out, this strategy already works in France.

Another concern addressed by the panel is the difficulty in proving the knowledge element. While it might be obvious to us that Canal Street bargain hunters know exactly what they’re doing when purchasing a new handbag, proving it in front of a court could prove challenging, if not impossible. However, as one lawyer pointed out, knowledge is an element of many other crimes, and courts have established a means of navigating the issue of proof in those instances. There is no reason the same result could not be accomplished here.

Overall, Councilwoman Chin received praise for taking initiative on this issue and for recognizing that something must be done. Upon conclusion of the hearing, many recommendations were set forth to help get some version of the bill passed. Some of the recommendations included: adding nuisance abatement language in the bill as an enumerated violation; lowering the potential fine as well as the standard of proof in order to increase the likelihood of enforcement and create revenues for the city; and adopting a two-tiered approach in which a standard fine would be issued with a more severe penalty attached if knowledge is shown. Other popular suggestions included initiating a widespread public awareness campaign, creating an incentive program to reward those who provide information to law enforcement, making Chinatown a “counterfeit-free zone,” and investigating tour bus companies who transport flocks of tourists to the famous Canal Street shopping district on a regular basis.

The next course of action on the bill has not yet been determined. The City Council can amend the proposed bill or call for a vote. We will keep you updated.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. He focuses his practice on Intellectual Property registration, protection and enforcement.

IP Spotlight: Appeals Court Revives ‘Ghost Rider’ Copyright Lawsuit against Marvel

Michael Hawkes — Wed, 12 Jun 2013 10:29:57 -0500

You can’t kill a comic book character very easily and Marvel learned the same thing about a lawsuit over a comic book character. On June 11, 2013, the Second Circuit Court of Appeals gave Gary Friedrich a second chance in his battle to secure rights in the Ghost Rider comic. Friedrich first started working on Ghost Rider with Marvel back in 1972. But when he got word in 2004 of the upcoming Ghost Rider movie, that’s when he got serious and filed suit for copyright infringement against Marvel, among others.

In a 2011 ruling, the district court granted summary judgment for Marvel, finding that Friedrich had handed over to Marvel any rights he had in the comic in a 1978 contract. However, in its recent decision, the Second Circuit vacated the judgment and remanded to the district court for further review. The Second Circuit based its decision on the contract language, finding that it was ambiguous.

In particular, the Second Circuit found it unclear whether the contract even included Ghost Rider, which was created years earlier. Further, the appeals court could not find clear intent to specifically include the renewal rights. The 1976 Copyright Act gives authors a right to renew the copyright upon expiration, regardless of whether they have transferred or assigned their rights during the original copyright term. Moreover, because the 1976 Act’s renewal rights were created to give authors a chance to renegotiate once they were better able to assess the value of their work, the Court noted that there is a strong presumption against the transfer of renewal rights.

On remand, the district court will have to address all the remaining issues to determine the rightful owner of Ghost Rider, including the meaning of the 1978 contract. Marvel will rely on its argument that Ghost Rider was created as part of a collaborative effort and Friedrich’s contribution was merely the idea, which is not protected under copyright law. But before anything, Friedrich must first overcome another hurdle – the statute of limitations (which runs for three years after the discovery of the infringement).

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Immigation Spotlight: Company Fined $15,600 for Failure to Timely Prepare I-9 Forms

Shiri Zuravicky — Mon, 10 Jun 2013 14:33:58 -0500

In U.S. v. Anodizing Industries, Inc., 10 OCAHO no. 1184 (2013), the Office of the Chief Administrative Hearing Officer (“OCAHO”) found that a California company failed to timely prepare Forms I-9 for twenty-six (26) employees, levying a total of $15,600 in civil penalties.

In response to a charge by Immigration and Customs Enforcement (“ICE”) that it had waited up to twenty-two years to complete Forms I-9 for certain employees, Anodizing asserted that its errors were of a technical nature where it had merely omitted responses to the questions on Form I-9. OCAHO rejected this argument, holding that while “an inadvertent failure to complete specific entries in a timely manner may be technical or procedural [, this] does not operate to extinguish the duty to prepare the I-9 in the first instance.” The court further remarked that preparing Form I-9 paperwork is not a mere technicality, and the failure to timely prepare Form I-9 is a “serious violation.” Moreover, OCAHO further found that failure to properly a) prepare, b) retain, or c) produce the forms in accordance with the I-9 rules each represents a separate violation of the Act and should be counted as such.

Timely preparation and proper completion of I-9 forms is imperative. When preparing a form I-9, be sure to keep the following in mind:

• The employer is responsible for ensuring proper completion of Section 1 of Form I-9 on the date of hire and Section 2 within three (3) business days of the commencement of employment; and
• When an employee takes a break in employment and subsequently returns, the employer is responsible for filling out a new I-9, updating the form by including the rehire date or re-verifying the employee (unless the individual was continuing in his/her employment).

For more information on I-9 compliance please visit the Worksite Compliance section on Gibney’s website. If you have any questions, please contact your designated Gibney representative at immigrationalerts@gibney.com.

Private Client Alert: Foreign Bank Account Reporting – Due June 30

Michael Hawkes — Mon, 10 Jun 2013 13:52:43 -0500

If you are a U.S. person who either owns or has signature authority over a foreign financial account (including a bank account, brokerage account, mutual fund, unit trust, or other type of financial account), you may be required to report the account annually to the Treasury Department. You must file a Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR”) for each foreign financial account you own if your foreign accounts have an aggregate value exceeding $10,000 at any time during the calendar year, for which you are the owner of and/or have signature authority over the account. The FBAR is due by June 30 each year. This deadline is not extended even if you have filed for an extension of your individual income tax return.

The IRS imposes strict penalties for each failure to file FBARs ranging from $500 per failure to forfeiture of up to 50% of the account balance. The most severe penalties are for those individuals that have “willfully” failed to report their accounts. In two recent cases the IRS proved the taxpayer was “willful” merely because they did not answer that such a foreign account existed on their annual income tax return. If you didn’t notice this question on the bottom of Schedule B you are not alone.

Overall penalties can be crippling because each year you have failed to file is considered a separate failure. Thus, after two years of not filing you could be looking at forfeiting your account. Even worse, after three years you could owe more than is even in the account.

Given these steep penalties and the U.S.’s desire to bring the masses back into tax compliance the IRS has extended their Offshore Voluntary Disclosure Initiative (“OVDI”) until further notice. Under the new OVDI penalties are capped at 27% of the highest account balance over the last eight years. Likewise, the new OVDI increases the number of amended returns reporting previously undeclared income that must be filed from six to eight years.

Non-compliant U.S. taxpayer should consider entering the OVDI as soon as possible. You cannot enter the OVDI if you are under audit and the chances of audit are increasing as the U.S. is entering into bilateral information sharing agreements with numerous countries including, Spain, Switzerland, Germany, Norway, Ireland, Mexico, Denmark and the United Kingdom.

Immigration Alert: July 2013 Visa Bulletin Released

Shiri Zuravicky — Mon, 10 Jun 2013 09:16:22 -0500

July 2013 U.S. Visa Bulletin Released

The U.S. Department of State (DOS) has published the July 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence. Click here for information regarding applications for Permanent Residence.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: August 8, 2008
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 1, 2009
China: January 1, 2009
India: January 22, 2003
Mexico: January 1, 2009
Philippines: October 1, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: January 1, 2009
China: March 22, 2004
India: January 22, 2003
Mexico: January 1, 2009
Philippines: October 1, 2006

Click here to view the full text of the July 2013 Visa Bulletin.

Gibney, Anthony & Flaherty and the Irish International Business Network (IIBN) to Co-host Seminar

Shiri Zuravicky — Fri, 07 Jun 2013 14:21:21 -0500

On June 18, 2013 the Irish International Business Network (IIBN) and Gibney, Anthony & Flaherty, LLP will host a seminar, Coming to America: Immigration and Other Legal Considerations for Irish Entrepreneurs. This event will take place at the Irish Consulate, 345 Park Avenue, New York and will be moderated by Aisling Ryan, IIBN member and Gibney Partner. Panelists will include Gibney attorneys Claire Razzolini, Christina Winsor, Survi Parvatiyar, and Kristen Wright. Seminar topics will include:

Visa options for working and starting a business in the United States
Establishing a United States business presence: corporate and tax issues.
Trademark and copyright considerations.

If you are an IIBN member and are interested in attending please secure your place by clicking here.

IP Spotlight: Stone Temple Pilots Sue Former Lead Singer Scott Weiland For Trademark Infringement

Michael Hawkes — Fri, 07 Jun 2013 08:39:45 -0500

Former lead singer of the alternative rock band Stone Temple Pilots (“STP”) has led a notorious life of sex, drugs and rock n’ roll but now lawsuits can be added to that list. On May 24th, STP filed a lawsuit against Weiland claiming breach of contract, breach of fiduciary duty, and violation of the Lanham Act and seeking monetary damages and declaratory and injunctive relief.

The California State court lawsuit is a result of a culmination of events causing conflict between STP and Weiland. The band hopes it will finally bring an end to their ongoing problem. The band asserts that, among other things, Weiland frequently backed out on tour dates and showed up late to scheduled appearances. Consequently, the remaining members of STP fired Weiland back in February (even though on Weiland’s website he says he is still a member of the band).

Apparently terminating Weiland did not solve the problem. After the band fired him, Weiland allegedly used STP’s intellectual property, including album names, to market his own tour. Additionally, in the latest turn of events, Weiland filed a countersuit against the band claiming the other members secretly conspired to get rid of him in violation of their partnership agreement. Weiland seeks monetary damages and dissolution of the partnership. Furthermore, Weiland wants to stop the band from referring to itself as STP since they have now replaced him with a new lead singer, who happens to be Chester Bennington, former lead singer of Linkin Park.

Upon resolution of this case, STP plans to move on and release another album with their new front man. Likewise, Weiland has already begun touring with his new band The Wildabouts.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: Former Rutger’s Quarterback Lawsuit over Unauthorized Likeness Used in Videogame Back in Play

Michael Hawkes — Wed, 05 Jun 2013 09:44:12 -0500

Back in 2009, Ryan Hart, a former Rutgers football player, threw the yellow penalty flag and commenced a lawsuit in New Jersey against Electronic Arts (EA), the company behind many popular sports-related videogames. The suit was based on alleged violations of Hart’s right of publicity, specifically, misappropriation of his biographical information and likeness. The district court granted summary judgment in favor of EA finding that its videogame was protected by the First Amendment. However, on appeal, the 3rd Circuit reversed the district court’s decision.

EA’s videogame, NCAA Football, is in many ways a digital reproduction of real life college football. Each year, EA would introduce a new version of the game reflecting the actual NCAA experience that season, including the players’ images, their jersey numbers, biographical information and player statistics but not the players’ names. You may be wondering what the big deal is – EA has been making these games for years. When EA’s videogames involve professional athletes, this problem rarely arises because they are usually compensated in exchange for their permission. However, unlike professional sports leagues, the NCAA has strict rules against its players accepting payment for the use of their identities, thus permission is not sought and the players are not compensated. EA used a player with the same weight, height and physical characteristics as Hart in their game.

Images of "Ryan Hart" as seen in the videogame.

On May 21, 2013, the 3rd Circuit issued its opinion. As this was a case of first impression, the Court drew from copyright law in applying the transformative use test, which would require EA to turn Hart’s identity into its own original expression in order to be protected. It found that EA did not sufficiently transform Hart’s identity. The Court noted that not only did the digital “Hart” look and act exactly like the real Hart but the success of EA’s videogame actually depends on the realistic portrayal of the players’ likeness and identity.

The Appeals court remanded the case back to the lower court for further review.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Litigation News: Gibney Partner Obtains Order Sealing Prior Professional License Records for Transgender Professional

Michael Hawkes — Fri, 31 May 2013 14:37:31 -0500

On May 16, 2013, Gibney Litigation Partner, Wm. Lee Kinnally, Jr., obtained a significant ruling for our client, a New York transgender professional. New York Supreme Court Justice Sam Walker, who sits in Westchester Country, ordered that the client receive a new license under her female name and that the New York State Education Department "conceal from the public any cross reference of the prior license held by the petitioner."

The client had filed an application for a new professional licesnse with the NYSED to reflect her name change, and also sought to have her previous license records sealed to protect her from those who may discover that she is transgendered. The NYSED refused to seal her prior records and opposed the petition, citing the difficulty in tracking performance and asserting that any perceived threat was general and not specific to the petitioner.

In granting the petition, Justice Walker wrote, "This Court does not support the premise that the petitioner must first be physically or professionally victimized because of her transgender status, before she can obtain the very limited level or protection that this Court's order may provide." Justice Walker noted that "the potential for violence and harassment against transgender people is well-known enough that bias crimes against them were included in the federal Hate Crimes Prevention Act of 2009."

The case has been reported in the New York Law Journal and other ALM Property, Inc. publications nationwide.

IP Spotlight: Magic Hat Hopes to Make an Alleged Trademark Infringing Rival Disappear

Michael Hawkes — Fri, 31 May 2013 09:01:27 -0500

Everyone’s favorite Vermont Brewing company, Magic Hat Brewing Company, has pulled a lawsuit from up its sleeve and filed suit against a fellow brewery in Kentucky, West Sixth Brewing, for trademark infringement. In its complaint, Magic Hat contends that West Sixth copied its logo, claiming that West Sixth’s “6” is simply an inverted version of its “9.” In combination with the star shape, Magic Hat asserts that West Sixth’s logo is confusingly similar to its own. Further, when used on West Sixth’s Amber Ale, the orange color brings it even further into that realm. See for yourselves:

In response, West Sixth defends its logo as it is representative of its home on West 6th Street in Lexington, Kentucky. Moreover, it maintains that Magic Hat is wrongfully attempting to use its trademark in the “9” logo to monopolize use of the number “6.” Seeking public support (and perhaps publicity for its beer), West Sixth took to social media and has even gotten thousands of supporters to sign a petition to end the litigation.

It is unclear how this case will come out. However, it is likely that the companies will settle as West Sixth has reportedly been amenable to modifying portions of its logo. In the meantime, the lawsuit hasn’t stopped people from enjoying either beer, in moderation, of course.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Immigration Alert: June 2013 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 30 May 2013 15:25:00 -0500

The U.S. Department of State (DOS) has published the June 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence. Click here for additional information regarding applications for Permanent Residence.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 15, 2008
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: September 1, 2008
China: September 1, 2008
India: January 8, 2003
Mexico: September 1, 2008
Philippines: September 22, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: September 1, 2008
China: October 22, 2003
India: January 8, 2003
Mexico: September 1, 2008
Philippines: September 22, 2006

Click here to view the full text of the June 2013 Visa Bulletin

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Click here to receive e-mail alerts.

Gibney Webinar: Comprehensive Immigration Reform in Mexico

Michael Hawkes — Thu, 23 May 2013 08:45:00 -0500

On May 22, 2013 at 9am PDT/11am CDT/12pm EDT, Gibney, Anthony, & Flaherty, LLP along with Enrique Arellano Rincón Abogados, S.C. hosted a webinar entitled "Comprehensive Immigration Reform in Mexico." Gibney attorney Deborah Davy, and Enrique Arellano Rincón Abogados, S.C. attorneys Enrique Arellano Rincón Abogado, Ivan Rojas and Rebeca Karina Cortez discussed the following topics relating to immigration reform in Mexico:

New visa options for business travelers, streamlined procedures for select work permits
Implementation of a Points-Based system
Impact of changes on family members
New corporate registration requirement.

To view a recording of the presentation please click here or contact Gibney at info@gibney.com.

IP Spotlight: Eminem Sues Facebook for Copyright Infringement over Unauthorized Use of Song

Michael Hawkes — Wed, 22 May 2013 14:05:31 -0500

Guess who’s back, back again, Eminem, and this time he is dueling it out with Facebook. On May 20, 2013, a lawsuit was filed in the Eastern District of Michigan by rapper Eminem’s publishing company, Eight Mile Style, alleging copyright infringement by Facebook. Eight Mile Style alleges that Facebook, together with its advertising agency, Wieden + Kennedy, used Eminem’s “Under the Influence” without first obtaining permission for use in its advertisement for the new Facebook Home mobile application. Apparently, Mark Zuckerberg is a big Eminem fan, so much so that he at one time referred to himself as “Slim Shady.” Thus, the song was allegedly used to impress the Facebook founder. You can see the commercial right here.

The lawsuit claims that there is a “substantial similarity” between Eminem’s track and the music in Facebook’s advertisement. Eight Mile Style also claims that after the advertisement premiered, Facebook released another version featuring altered music, which according to the plaintiff amounts to an admission of liability. Finally, Eight Mile Style alleges that even if the music in the second version of the advertisement was not “substantially similar,” it constitutes a “derivative work” based on Eminem’s song of which the right to create belonged to Eight Mile Style.

Eight Mile Style seeks recovery of its damages and costs including attorneys’ fees.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: Hasbro Files Lawsuit to Stop Production of “Dungeons & Dragons” Movie

Michael Hawkes — Thu, 16 May 2013 14:51:00 -0500

The Dungeon Master would not be happy about this one. On Monday, May 13, 2013, Hasbro Inc. filed a lawsuit against production company Sweetpea Entertainment, Inc. on a number of claims including copyright and trademark infringement. The suit was initiated as a result of Sweetpea taking significant steps with Warner Bros. Pictures to make a “Dungeons & Dragons” movie. Hasbro’s main contention is that any rights Sweetpea once had to create a sequel to their first “Dungeons & Dragons” movie reverted back to Hasbro as a result of an agreement between the two companies. Hasbro seeks injunctive relief, damages and a declaratory judgment that it is the rightful owner of “Dungeons & Dragons”.

In 1994, Hasbro and Sweetpea entered into a licensing agreement which was subsequently amended twice in 1998. Pursuant to the agreement, Sweetpea would make the first “Dungeons & Dragons” movie with the right to make a sequel. The agreement separately gave Sweetpea the same rights in a television series or made-for-TV movie. However, as amended, the agreement included a reversion provision through which Sweetpea’s rights would revert back to Hasbro under certain conditions. If Sweetpea did not release a sequel within five years of the first movie’s release, the rights to make such a sequel would revert back to Hasbro. Likewise, if Sweetpea did not release any television series or made-for-TV movies within five years of the date the first one was broadcasted, the rights to make a television series or made-for-TV movie would revert back to Hasbro.

Following the release of the first “Dungeons & Dragons” movie in December 2000, Sweetpea subsequently made two TV movies, the first in October 2005. As a result, Hasbro contends that Sweetpea’s sequel rights reverted back to Hasbro in December 2005, five years after the first movie’s release. They also claim that Sweetpea knew their October 2005 production extended their television rights and not their sequel rights as the licensing fee paid to Hasbro to make it was much lower than it would have been to make a movie sequel.

Sweetpea has since responded to the suit stating that this is merely an attempt to halt production of its new movie. Further, Sweetpea has made it clear that it does not intend to stop production on the movie.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. He focuses his practice on Intellectual Property registration, protection and enforcement.

IP Spotlight: Second Circuit Gives Artists Broad Fair Use Defense to Claims of Copyright Infringement

Michael Hawkes — Mon, 13 May 2013 14:23:50 -0500

Yet again, the relationship between copyright protection and Fair Use has been tested. In a suit for copyright infringement by photographer Patrick Cariou against appropriation artist Richard Prince, the district court for the Southern District of New York held for Cariou. But on April 25, 2013, the United States Court of Appeals for the Second Circuit in part reversed the district court’s decision concluding that the district court applied the wrong standard in analyzing Prince’s Fair Use defense, thus broadening artists Fair Use defense.

In 2000, Cariou first published a book containing photographs he took of Rastafarians in Jamaica. Subsequently, Prince took a number of photographs from the book and altered them to create a collection of paintings and collages. In 2008, Cariou sued Prince, along with the gallery who hosted Prince’s collection. Prince claimed his work should be considered Fair Use, and thus, not a violation of Cariou’s copyrights. However, the district court granted Cariou’s motion for summary judgment finding that Prince’s work does not constitute Fair Use. On appeal, Prince insisted that the district court applied the wrong standard in determining whether his work constitutes Fair Use. In addition, Prince challenged the district court’s emphasis on the fact that Prince never openly defended and described his works as transformative. Then, on April 25th, the Second Circuit issued its opinion agreeing with Prince, and as a result, concluding that 25 of the 30 works constitute Fair Use.

First, the Second Circuit addressed the issue of the artist’s own characterization of his work and ultimately decided that the way in which Prince described and commented on his works is irrelevant – the critical issue is how the “reasonable observer” would view the works.

Next, the court attacked the issue of Fair Use. Fair Use is considered on a case-by-case basis and, under the Copyright Act of 1976, takes into consideration four non-exclusive factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyright work.” Additionally, the defense of Fair Use can be implicated upon a showing that the secondary use is “transformative.”

The district court in this case found that, in order to be transformative, “a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works.’” However, as the Second Circuit concluded, the law does not support the district court’s interpretation and its imposition of these additional requirements. Further, the Second Circuit went on to say that a use can be transformative, and Fair Use can apply as long as the secondary use generally changes the original with “new expression, meaning, or message,” and in this case, they were convinced Prince had done so with 25 of the 30 works in question, finding that “Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.”

Moreover, in analyzing the four factors, the court found that: (1) Although, Prince’s use is undoubtedly commercial, which weighs in favor or Cariou, the purpose and character bears less significance when the use is transformative; (2) While Cariou’s work is both creative and published and, as such, approaches the core of copyright protection, this factor also serves a lesser purpose when the original work is being transformed; (3) While Prince used substantial and crucial portions of Cariou’s works, most were transformed into “something new and different”; and (4) Because Prince’s target audience and the nature of his works are not the same as Cariou’s, Prince has not effectively “usurped” the market for Cariou’s works.

This decision will likely have a substantial effect on the defense of Fair Use in copyright law and, specifically, transformative use. Notwithstanding the fact that at least 3 of the 4 factors weighed against Prince, the court was able to hold that Fair Use applied. The court’s broad interpretation of “transformative use” allowed it to reverse the lower court and expand the reach of the Fair Use doctrine. It will be telling to see how the district court addresses the remaining 5 works under this more expansive framework.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: Aereo Goes on Offensive and Sues CBS for Declaratory Judgment Concerning Online Streaming of Television Programming

Michael Hawkes — Fri, 10 May 2013 10:57:14 -0500

Recently, we highlighted a case brought by a group of broadcasters against Aereo, a startup company that allows its subscribers to stream television shows through the Internet. That article can be found here. On April 1, 2013, the Second Circuit affirmed a decision of the district court for the Southern District of New York denying an injunction against Aereo. Since then, the case has proceeded to discovery and the broadcasters have requested review of this decision by a full panel of judges.

Meanwhile, on May 5, 2013, Aereo announced its plans to expand to Boston sparking threats by CBS executives of another lawsuit. In response, Aereo made a preemptory attack. On May 6th, Aereo filed a separate suit in the Southern District of New York for declaratory judgment. In doing so, Aereo wants the court to rule that its service does not infringe on the broadcasters’ copyrights and to prevent the broadcasters from suing it in any jurisdiction in which it eventually expands its service.

A major factor in this new suit is whether a New York judge will try to assert authority over other jurisdictions keeping in mind that a decision in the Second Circuit is not binding on courts in other circuits. It is particularly interesting in light of a recent Ninth Circuit ruling against a company with services identical to Aereo. That said, even if the judge decides in favor of Aereo, it would not prevent other broadcasters who are not a party to the suit from bringing a claim against Aereo going forward.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

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IP Spotlight: “G.I. Joe: Oh No! Authors Claim Copyright Infringement Over Movie Screenplay”

Michael Hawkes — Thu, 09 May 2013 14:45:54 -0500

It’s hard to believe that anyone actually wants to take credit for writing the G.I. Joe movies but two of the writers of the 2009 movie G.I. Joe: The Rise of Cobra, David Elliot and Paul Lovett, have brought a lawsuit for copyright infringement against Paramount, MGM, Hasbro and producer Di Bonaventura Pictures Inc. seeking $23 million in damages. Elliot and Lovett contend that defendants stole significant elements of their screenplay for the sequel G.I. Joe: Retaliation.

According to Elliot and Lovett, after the first G.I Joe movie came out, defendants sought them out for ideas for a potential sequel and, at the same time, stated that they would hire the two if the proposal was to their liking. The writers claim they went above and beyond to pitch their ideas for the sequel proposing not only concepts for the movie but a complete image of where to take the G.I. Joe franchise as a whole. The complaint alleges that Elliot and Lovett delivered an “exhaustive array of documents, verbal presentations, original conceptual art, photo collages, video clips, mock movie posters with suggested subtitles, marketing images and mock marketing trailers,” as well as countless communications over the phone, via email in person over the period of a couple months.

While the defendants ultimately chose to go with another set of writers, Elliot and Lovett claim that the movie encompasses their work and that they received neither credit nor compensation for it. Further, they say that “even the most cursory review of the Joe: Retaliation movie and the plaintiffs’ work reveals that they are substantially similar in every material way.”

To date, the sequel has grossed over $350 million worldwide and over $100 million domestically, making the $23 million being sought seem like a drop in the bucket. It is unclear whether the lawsuit has credibility. However, defendants might want to hold off a third movie until this matter is resolved.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

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IP Spotlight: 1DollarScan: Is Making an ‘E-Copy’ of a Book Copyright Infringement?

Michael Hawkes — Mon, 29 Apr 2013 12:52:26 -0500

With the growing popularity of e-readers, the market for electronic books is booming. As such, one company in particular spotted an opportunity and has now been capitalizing on it for 2 years. 1DollarScan, started in 2011, is a company that transforms traditional paperback or hardcover books into e-books for a measly $1. Customers can send their books to 1DollarScan.com to be scanned and returned in a high resolution PDF format. As a result of the process (the spine must be removed), the book is typically destroyed. 1DollarScan markets itself not only to the e-book community but also to other businesses with a need for document digitization.

While the company is becoming more and more successful, it faces major criticism by authors and publishers alike. Specifically, is 1DollarScan committing copyright infringement by reproducing copyrighted books without permission?

This fact pattern bears a striking resemblance to a case we recently spotlighted, Capitol Records v. ReDigi, in which an online marketplace provided users the ability to upload digital music files originally bought on iTunes for resale to others at a fraction of the cost. Upon uploading a file, the original file was deleted from the user’s hard drive. In that case, the court held that ReDigi’s service violated the copyright owners’ exclusive rights to reproduce and distribute its copyrighted work under the Copyright Act. In deciding that case, the court found that ReDigi reproduced a new copy in the process of uploading and transferring the file. It made no difference that the original file was deleted; what mattered was only that a new copy was created without the copyright owner’s permission.

Here, the facts are almost identical, if not more convincing. 1DollarScan is taking copyrighted works and reproducing them in another format. While the physical book is destroyed in the process, it matters only that a new, digital copy is created without the author’s permission. As such, 1DollarScan seemingly violates the copyright owners’ right of reproduction. Furthermore, as a result of its subsequent $1 sale of the unauthorized copy, it also violates the copyright owners’ right of distribution.

If 1DollarScan does in fact infringe on the copyright owners’ rights, the only way for its business to be legal is if it has a valid defense of Fair Use. Fair Use is considered on a case-by-case basis and takes into consideration four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyright work.”

While the court in ReDigi focused mainly the other defense of First Sale, it also addressed Fair Use, ultimately finding that ReDigi’s business was not protected under the doctrine. In evaluating the factors, it is likely that a court would find similarly here. As to the first factor, like ReDigi, 1DollarScan’s business does not create a new purpose for the work or alter its nature such that it can be considered a “transformative” use. Additionally, 1DollarScan’s activities are unquestionably commercial as it directly profits from sales. Moreover, the customer saves a significant amount of money as the alternative would be to purchase the more expensive published e-book, if available. As to the second factor, one could not imagine a work more suitable to copyright protection than a book. As to the third factor, 1DollarScan digitizes the works in their entirety. Lastly, as to the fourth factor, 1DollarScan’s business would certainly have a detrimental effect on the market for authorized electronic books and even traditional books undercutting the author’s ability to control the format and price of its work.

In sum, while 1DollarScan has apparently filled a gap in the market for electronic books, it will be interesting to see whether it subsists. As discussed, copyright law and particularly the ReDigi case indicate that this profitable gap filler may, in fact, be short lived.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: DC Comics Fully Defeats Siegels’ Heirs in Fight Over Rights to Superman

Michael Hawkes — Thu, 25 Apr 2013 08:33:57 -0500

The battle may finally be coming to an end, but superhero movies always seem to have a sequel. A litigation of epic proportions between the heirs of Superman co-creator Jerome Siegel and DC Comics temporarily reached a halt when Judge Wright granted partial summary judgment for DC ruling that the parties’ 2001 agreement transferring the rights in the Superman comic to DC was enforceable. Judge Wright found that the Siegels never effectively rescinded the agreement, and, as such, DC is the rightful owner of the Superman comic.

Following that decision, on April 18, 2013, Judge Wright addressed the remaining issues in DC’s motion for summary judgment. Particularly, the judge decided whether Superboy and the original Superman advertisements were included in the 2001 agreement.

Because the negotiation of the 2001 agreement was a direct response to the Siegels’ 1997 termination notices, the court needed to decide whether those termination notices were intended to include Superboy and the Superman ads. If so, the 2001 agreement would also be interpreted to include them. The termination notices were served on DC based on the 1976 Copyright Act, which allowed copyright owners to reclaim works they had already contracted away within a certain period of time. The purpose of this provision was to give copyright owners more bargaining power when it came to assignment or transfer of their works.

In deciding this issue, Judge Wright found that the Siegels unquestionably meant to include Superboy and the Superman ads. The judge reasoned that the Siegels sought to use the termination notices for the exact reason intended by the Copyright Act – as leverage to get a better deal. In fact, the Siegels used the termination notices to bargain for a lucrative advance, signing bonus and guarantee in the 2001 negotiations. Therefore, because Judge Wright decided that the termination notices, and thus the 2001 agreement, encompassed Superboy and the Superman ads, he granted DC’s motion for summary judgment in full. Accordingly, DC comes out as the rightful owner of these works as well.

The Siegel heirs still plan to appeal this decision. However, Judge Wright made it clear that this portion of the litigation is officially closed and that any other action should be brought in state court on the basis of breach of contract.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Gibney Sponsors Northern California Human Resources Association (NCHRA) HR West 2013 Conference

Shiri Zuravicky — Tue, 23 Apr 2013 13:40:24 -0500

Gibney, Anthony & Flaherty, LLP is pleased to sponsor the HR West 2013 Conference and support the Northern California Human Resources Association (NCHRA), an affiliate of the Society for Human Resources Management (SHRM). HR West 2013 is taking place at the Oakland Convention Center from April 22-April 24, 2013. If you are attending the conference, please visit Gibney at booth number 34.

For more information about NCHRA please visit http://www.hrwest.org/.

IP Spotlight: Google Lifts Restraints on Trademark Use in ‘Keyword’ Advertising

Michael Hawkes — Tue, 23 Apr 2013 10:00:00 -0500

Trademark owners once again have to be more diligent in policing the use of their trademarks. Effective April 23, 2013, Google instituted a significant change to its policy on trademark use in keywords or Google AdWords. The change was implemented to create worldwide uniformity with respect to its trademark policies. The effect is to loosen its keywords policy and lift restrictions on the use of others’ trademarks in keywords in China, Hong Kong, Macau, Taiwan, Australia, New Zealand, South Korea, and Brazil. The rest of the world has already been operating without such restrictions for some time.

Keywords are terms that when searched will pull up associated results including advertisements. Advertisers can strategically use and associate themselves with relevant keywords so that its advertisements are displayed upon a Google search of those terms. Prior to this policy change, upon the filing of a complaint, advertisers in the affected regions could be restricted from using a competitor’s trademarks as keywords. Now, after the implementation of Google’s new policy, that is no longer the case. For example, Pepsi can now freely use the keyword “Coke” so that whenever a user searches for “Coke,” a Pepsi ad shows up, and Google will no longer monitor or investigate any complaints that arise.

Naturally, trademark owners are cynical of this policy change and will be forced to take added measures to ensure that their trademarks are not unlawfully used. However, Google’s policy far from gives advertisers a broad authority to use others’ trademarks however they want. Trademark laws still govern in each individual country or region, and advertisers can still be liable for any misuse (for example, in advertisement content or domain names) under such laws.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: YouTube Defeats Viacom In Copyright Battle, Again

Michael Hawkes — Fri, 19 Apr 2013 11:48:05 -0500

In an ongoing war between Viacom and YouTube, YouTube just won another major battle. The copyright infringement case was first filed back in 2007 in response to YouTube clips of Viacom’s television shows, including “South Park,” “SpongeBob SquarePants” and “The Daily Show with Jon Stewart.” In 2010, Judge Stanton for the Southern District of New York, decided in favor of YouTube based on the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA).

In essence, the “safe harbor” provision of the DMCA protects service providers from users’ acts of infringement on their site of which they were unaware. Specifically, before the service provider is required to act, the copyright owner must notify the service provider of infringements on its sites and the provision even specifies the content to be included in such notifications.

In 2012, the Second Circuit Court of Appeals remanded the case back to the district court to resolve certain issues that would, if decided against YouTube, disqualify it from protection under the DMCA. In particular, there were four issues left to be resolved on remand: (1) whether YouTube had knowledge of the infringement; (2) whether YouTube was “willfully blind”; (3) whether YouTube had the right and ability to control the activity; and (4) whether any syndication by YouTube violated the DMCA.

Finally, on April 18, 2013, the district court again decided all four issues in favor of YouTube as follows:

(1) Because Viacom could not provide the necessary evidence, the judge found that YouTube lacked the specific and actual knowledge required under the DMCA. In other words, Viacom could not show that YouTube had been put on notice sufficient to make it aware of specific acts of infringement on its site.

(2) The judge also found that YouTube was not “willfully blind.” “A person is ‘willfully blind’ or engages in ‘conscious avoidance’ amounting to knowledge where the person ‘was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.” The court recognized that a service provider has no affirmative duty to monitor its site for infringements. Further, YouTube was not “willfully blind” because they were never made aware of “specific and identifiable instances of infringement.”

(3) The Court decided that YouTube did not possess the requisite right and ability to control the infringing activity. To lose protection of the DMCA, a service provider must possess enough control to actually influence or participate in the infringement. This means something more than basic control, for example, editing or previewing content before publishing. YouTube only had a basic right to monitor its site’s content after it was posted, and thus, did not meet the threshold.

(4) Finally, any syndication engaged in by YouTube did not disqualify it from DMCA protection because it involved an automated process rather than a manual selection of content.

According to Viacom, it has no plans of ceasing this long war to protect the creative rights of copyright owners and intends to appeal this decision. On the other hand, YouTube’s owner, Google, supports the decision and its effect on the exchange of material over the Internet.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Emerging Business News: Gibney Sponsors Swedish Gateway USA

Michael Hawkes — Thu, 18 Apr 2013 10:06:15 -0500

Gibney’s Emerging Business practice is pleased to announce its sponsorship of the Swedish Gateway USA program run by the Swedish-American Chamber of Commerce in New York. This exclusive program will assist select Swedish companies and entrepreneurs to establish a United States presence in 2013-14. For further information about Swedish Gateway USA, please click here or download the brochure.

Gibney, Anthony & Flaherty, LLP is a proud member of SACC New York.

Immigration Alert: Comprehensive Immigration Reform Bill Introduced in Senate

Shiri Zuravicky — Wed, 17 Apr 2013 12:30:02 -0500

On April 16, 2013, the bipartisan group of Senators known as the “Gang of Eight” introduced a highly anticipated comprehensive immigration reform bill in the U.S. Senate. The Border Security Economic Opportunity Immigration Modernization Act 2013 echoes many of the central provisions of the Bipartisan Framework for Comprehensive Immigration Reform plan, unveiled on January 28, 2013. Some key components include:

Creating a pathway to citizenship for undocumented immigrants who came to the United States prior to December 31, 2011, including special DREAM Act provisions;
Implementation of stringent border security measures;
Increasing the number of high-skilled visas available to foreign workers while placing additional restrictions on H-1B and L-1 visas;
Introduction of new visas for entrepreneurial investors and start-ups, and for lower skilled workers and agricultural workers;
Changes to the existing employment-based and family-based immigrant visa preference classifications together with creation of a supplemental merit-based (or “points-based”) system and proposal to eliminate existing backlogs for family- and employment-based immigrants; and
Implementation of a mandatory employment verification program, requiring U.S. employers to use the E-Verify system over a five year phase-in period.

The sweeping proposal, 844 pages in length, will be analyzed by the Senate Judiciary Committee and debated before the full Senate in the weeks ahead. Gibney is closely reviewing the various provisions of the proposal and will provide more analysis over the next few weeks. If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

IP Spotlight: “Copyright’s First Sale Doctrine Doesn’t Apply to Distribution of Digital Music”

Michael Hawkes — Mon, 15 Apr 2013 11:54:26 -0500

Back in the days of audio cassettes, music was routinely copied and shared with others but the quality of the copy was always poor. Now, with the advent of digital music, perfectly pristine copies of music can be shared, but an April 2013 court decision dealt a huge blow to the digital music secondhand market. A judge for the Southern District of New York held that ReDigi.com infringed Capitol Records’ copyrights by allowing users of its product to buy and sell digital music files.

The case was between Capitol Records LLC and start-up company ReDigi Inc. ReDigi.com is an online marketplace where users can upload digital music files originally bought from iTunes for resale to others at a fraction of the cost. Upon uploading a file, the original file is deleted from the user’s hard drive. In its suit, Capitol Records claimed that ReDigi’s service infringed on its exclusive rights to reproduce and distribute its copyrighted works. In response, ReDigi asserted the doctrine of First Sale, which protects the resale of legally obtained copyrighted works.

The doctrine of First Sale creates an exception to a copyright owner’s right of distribution by holding that once a copyrighted work is lawfully distributed by the copyright owner, the copyright owner's interest in the copyrighted work is exhausted. For example, if you purchase a book, the book’s author cannot control your lawful distribution of that book to other people; you are free to resell or give away the book to other people but you cannot make photocopies of the book and distribute the copies.

Here, the court concluded that the doctrine of First Sale only applies to the right of distribution of one particular copy. The court held that ReDigi did not distribute one particular copy (like the book example above) but reproduced a new copy. In order to upload the song and transfer it using ReDigi’s service, a copy of the song is made on the server and again on the buyer’s hard drive upon purchase. Under the Copyright Act, this qualifies as a violation of Capitol Records’ exclusive right of reproduction. Further, because the court decided that ReDigi engaged in unauthorized reproduction when the copies were made, the subsequent sale of those copies violated Capitol Records’ right of distribution as well.

As a result, the court found ReDigi directly liable for the copyright infringement that took place on its platform. In addition, ReDigi was found both vicariously and contributorily liable for copyright infringement as it had complete control over the activities on its site, it financially benefited from each sale, was well aware of the risks of copyright infringement, participated in many steps of the process, and its product was incapable of any non-infringing uses. A decision on damages has not been made yet.

This decision has significant implications for the creation and development of a used market for digital music products as it considerably limits items that can be resold without acquiring the permission of the copyright owner to material products. As we progress into a more digital society, it will be interesting to see whether Congress will amend existing copyright law to adapt to evolving technologies.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Immigration Alert: Paperless Form I-94 Process to Begin April 30, 2013

Shiri Zuravicky — Mon, 15 Apr 2013 10:58:56 -0500

U.S. Customs & Border Protection (“CBP”) has announced that, effective April 30, 2013, the agency will begin implementing a Form I-94 automation process at all major air and sea ports over the course of a four week period. Once the automation process is fully executed, foreign nationals who arrive in the United States by air or sea will no longer receive a paper Form I-94 as part of the immigration inspection process. Instead, an electronic I-94 record will be created by a CBP officer at the port of entry utilizing information from Department of Homeland Security and Department of State systems that collect advance traveler information. CBP will continue to stamp the foreign national’s passport at the time of inspection and will annotate the stamp with the class and duration of admission.

At the time of admission, the foreign national will also be provided with a flier explaining that an electronic Form I-94 has been created, and providing guidance on how to access and obtain evidence of this electronic Form I-94 record. Following admission into the United States, the foreign national will be able to retrieve and print a copy of the electronic I-94 record by accessing http://www.cbp.gov/I94 and entering identifying information from his or her passport. This website is expected to go live on April 30, 2013.

New federal regulations, published March 27, 2013, amend the current definition of “Form I-94” to include the printout of the electronic I-94 record. Accordingly, a printout of the electronic I-94 record will be valid for all purposes for which the current paper Form I-94 is used, including evidence of employment authorization for Form I-9 purposes. In addition, it will no longer be required that any I-94 documentation is relinquished upon departure from the U.S. Instead, departure of foreign nationals from the U.S. will be recorded based on information provided by carriers.

CBP touts the benefits of this new electronic I-94 process, and emphasizes that it has been working closely with other agencies, such as State DMVs and the Social Security Administration that utilize Forms I-94 to verify status. Some of the benefits of the new electronic I-94 system include immediate availability of these records to stakeholders such as the Social Security Administration, rather than the current five day delay required to update electronic systems with paper I-94 records. CBP also emphasizes the time and monetary savings of the new process.

This electronic I-94 process will be implemented at ports on a rolling basis beginning April 30, 2013, with all air and sea ports participating by the end of May. The automation schedule is as follows:

Week 1 (4/30/13): Charlotte Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare and Miami International Airport

Week 2 (5/7/13): Major air and Sea Ports within the following field offices: New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans and Houston.

Week 3 (5/14/13): Major air and Sea Ports within the following field offices: Pre-Clearance, San Francisco (includes Hawaii and Guam), Tuscon, El Paso, Seattle, Portland (includes Alaska), Los Angeles, San Diego and Laredo

Week 4 (5/21/13): All remaining airports and sea ports

Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement, or for any questions concerning Form I-94 automation.

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IP Spotlight: Kanye West Sued for Copyright Infringement: Are Plaintiffs ‘Gold Digging’?

Michael Hawkes — Fri, 12 Apr 2013 09:25:29 -0500

Kanye West, whether you like him or not, is one of the world’s most famous rappers. He is now also the target of a copyright infringement lawsuit based upon his number one hit song “Gold Digger,” despite the song having been released 7 years ago.

Earlier this month, a case was filed in the Central District of California against West and other defendants, including Rock-A-Fella Records, by the children of David Pryor, the late singer of the group “Thunder & Lightning” The Pryors are suing Kim Kardashian’s beau for copyright infringement of their father’s 70s song “Bumpin’ Bus Stop” claiming that Kanye used a 13-second sample of the song in his “Gold Digger” track. Particularly, they claim that during Kanye’s “Get down girl, go ‘head get down” he samples their father’s line “Get down” which repeats three times on both songs. They assert that Kanye and the other defendants have “systematically and willfully refused to clear samples of the plaintiffs’ original, copyrighted work in order to gain a commercial profit and to avoid paying and crediting the author.” As a result, they have asked the court for damages and to stop the further sale of the song.

Sampling is when a portion of one song is reused in another. When it comes to copyright law, sampling has been a source of contention for many music artists. Those whose work has been sampled without permission seek protection under claims of copyright infringement while those who do the sampling assert Fair Use, a defense under copyright law that permits limited use of copyrighted material without permission from the copyright owner. To date, there is no clear cut answer as to who is right – it can only be determined on a case by case basis.

It is doubtful whether this case will impact Kanye’s future endeavors as this is not the first time he has been targeted for this offense. In 2010, Kanye was sued by another artist over lyrics from his song “Stronger.” Then, in 2012, he was again sued for copyright infringement and accused of sampling another artist’s work without permission. These prior lawsuits have done little to deter Kanye and fans should expect that songs will continue to feature sampling in the future.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Immigration Alert: May 2013 U.S. Visa Bulletin Released

Shiri Zuravicky — Thu, 11 Apr 2013 10:13:02 -0500

The U.S. Department of State (DOS) has published the May 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence. Click here for additional information regarding applications for Permanent Residence.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 15, 2008
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: December 1, 2007
China: December 1, 2007
India: December 22, 2002
Mexico: December 1, 2007
Philippines: September 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: December 1, 2007
China: September 1, 2003
India: December 22, 2002
Mexico: December 1, 2007
Philippines: September 15, 2006

Click here to view the full text of the May 2013 Visa Bulletin

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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IP Spotlight: A Crime to Purchase A Counterfeit in New York?

Michael Hawkes — Thu, 11 Apr 2013 07:04:18 -0500

New York City Councilwoman Margaret Chin, whose district includes Chinatown in Manhattan, is making another push on a controversial bill first introduced in 2011. Nearly two years later, Chin wants this bill passed.

While the manufacture and sale of counterfeit goods is already a crime, the proposed bill would criminalize the purchase of counterfeit goods as well. Under the proposed bill the buyer of a fake product could be slapped with a $1,000 fine and up to one year in jail. It makes the act a Class A misdemeanor and affects any person who either knew or should have known that the product was fake. Each item purchased would be considered a separate violation.

The proposal is modeled after the laws of countries like France and Italy and hopes to supplement current efforts to decrease supply by targeting the demand for counterfeit goods. The next step is a public hearing before the bill is submitted to the City Council.

The bill has its detractors. Many believe the law would be nearly impossible to enforce and would impact innocent (or ignorant) purchasers. However, if passed, the new law will certainly serve to deter the masses of people who flock to Chinatown for the adventure and purpose of buying a good fake.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: The Kirby v. Marvel Dispute: Are the Iconic Creations “Works for Hire”?

Michael Hawkes — Wed, 10 Apr 2013 10:22:58 -0500

In 2009, a war broke out over who would be the rightful owner of such iconic comic book characters as Spiderman, The Fantastic Four, Thor, The Incredible Hulk, and The X-Men to name a few. The heirs of the late comic book artist Jack Kirby thought they could reclaim rights to Kirby’s creations, however, this battle still continues to this day with Kirby’s heirs taking the worst of the fight so far.

Generally, under copyright, the creator of a work owns that work. But when it is a “work made for hire,” ownership rights belong to the employer or the person who commissioned the work. However, if there is just a transfer of rights and no “work for hire” arrangement, under certain instances that transfer can be terminated.

The fight started when the heirs of Kirby served Marvel with 45 notices of termination, attempting to reclaim their father’s rights in the comic books. In doing so, Kirby’s heirs thought they were simply terminating Kirby’s prior assignment of rights in the works to Marvel. However, in 2011, when Marvel brought an action for declaratory judgment, the Court threw the Kirby family for a loop and the battle continues.

The U.S. court for the Southern District of New York granted summary judgment in favor of Marvel holding that termination notices had no effect since, under the Copyright Act of 1909, the comics were considered “works made for hire.” Therefore, they found that although Kirby had executed a written agreement in 1972 assigning all rights that he “may have or control,” Kirby never actually had any rights to transfer to begin with.

The Court used the “instance and expense” test to determine whether the comics were in fact “works made for hire."* In order to satisfy this test, the work must be made at the hiring party’s “instance.” In other words, the hiring party must have “had the power to accept, reject, modify, or otherwise control the creation of the work.” Further, the “expense” prong is satisfied when “a hiring party simply pays an independent contractor a sum certain for his or her work.” Another significant factor is who bore the risk of the work’s profitability.

In this case, the Court found that both prongs were satisfied. Marvel’s editor, Stan Lee, had complete control over the comic book projects. Not only were no comics started until he approved them, but he created the storylines and plots, assigned works to artists, reviewed and approved them before publication, and had the authority to revise them without the consent of the artist. In addition, Kirby was paid a fixed fee and not on a royalty basis. Thus, the Court held that the works should be considered “works made for hire.”

Since the comics were “works made for hire,” upon their creation, Marvel held all ownership rights as the commissioner of the works. So when Kirby executed the 1972 assignment, there was nothing to assign. Kirby’s heirs might have been better off under the 1976 Copyright Act’s narrower definition of “works made for hire,” but unfortunately for them, this is the hand they were dealt. While Kirby’s heirs have filed an appeal, which is currently pending in the Second Circuit, Marvel continues to reap the benefits of these legendary comics.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

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* This test only applies to works created under the Copyright Act of 1909 (as opposed to the amended Copyright Act of 1976, which took effect in 1978). Because the works in question were created between 1958 and 1963, the 1909 Copyright Act applies.

Immigration Alert: Fiscal Year 2014 H-1B Regular and Advanced Degree Cap Reached

Michael Hawkes — Fri, 05 Apr 2013 17:27:50 -0500

As expected, U.S. Citizenship and Immigration Services (USCIS) has announced that it has received enough H-1B petitions to reach the statutory H-1B cap for fiscal year (FY) 2014. In addition, USCIS has received enough H-1B petitions to meet the 20,000 set-aside for petitions filed pursuant to the advanced degree exemption. USCIS will not accept any H-1B petitions subject to the FY 2014 cap or the advanced degree exemption after Friday, April 5, 2013.

Pursuant to regulation, USCIS will conduct a computer-generated random lottery for all FY 2014 cap-subject petitions received through April 5, 2013. The lottery for the advanced degree exemption petitions will be conducted first. Any advanced degree petition not selected in that lottery will be included in the second selection process for the 65,000 regular cap limit.

USCIS has not yet announced when the lottery will be conducted. Additional information, including information about the total number of H-1B cap-subject petitions received this week, is expected next week.

Petitions on behalf of existing H-1B workers filed previously against the cap, such as extensions and change of employer petitions, are not subject to the cap and therefore will continue to be accepted. For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert.

Gibney will provide additional information as it becomes available. In the interim, please contact your designated Gibney representative for additional information or email immigrationalerts@gibney.com.

IP Spotlight: Copyright Infringers Given ‘6 Strikes’ Under New Agreement with ISPs

Michael Hawkes — Fri, 05 Apr 2013 13:41:04 -0500

If I had six strikes when I was in little league I might actually have been able to scratch out a hit or two. However, under a new controversial agreement, copyright infringers have that many chances before they strike out.

The new “six strikes” copyright alert system was launched in late February as a result of a voluntary collaboration between the Recording Industry Association of America and the Motion Picture Association of America in partnership with five major internet service providers (“ISP”), including AT&T, Cablevision, Comcast, Time Warner Cable and Verizon. The relationship was initiated following the downfall of SOPA and PIPA, legislation that would have mandated assistance in the fight against online piracy, in an effort to accomplish some of the same goals.

The system functions in the following manner: RIAA and MPAA members direct a third party provider to patrol specific shows, movies and songs. Upon detecting illegal downloading or file sharing, the provider forwards the violations to the appropriate ISP based on the IP address. The ISP will then alert the customer via e-mail of the detected violation. The e-mail will include a warning, first offering educational opportunities. If the customer does not comply by ceasing his illegal activity, he will receive another e-mail warning requiring mandatory education. Finally, if the customer still does not comply, a range of disciplinary actions will be imposed depending on the ISP, including temporary reduction in internet speed, temporary downgrade in internet service tier, or redirection to a site that reiterates the warnings for a set period of time until the customer contacts the ISP or completes an online copyright education program. Such educational materials will be developed by the Center for Copyright Information (CCI). Naturally, the system will face backlash from customers wishing to challenge these repercussions. In anticipation of this, the system incorporates an arbitration process, run by the American Arbitration Association, through which angry customers can challenge a warning they receive. The process is subject to a fee of $35; however, if the customer wins the case, the fee will be reimbursed.

The question remains whether this system will be successful in mitigating copyright infringement over the Internet. Regardless of its ultimate effect, it undoubtedly benefits the copyright holders, providing an indirect means of communicating with the consumers who obtain their content illegally. Furthermore, the hope is that it will at least impact the number of violations by innocent infringers who become alarmed after realizing their online activities may not be as private as they thought.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Spotlight: Aereo Victorious in First Round Against Networks and Permitted to Rebroadcast Television Networks on the Internet

Michael Hawkes — Wed, 03 Apr 2013 09:16:35 -0500

On April 1, 2013, the Second Circuit Court of Appeals wasn’t fooling when it affirmed a lower court decision ruling that Internet start-up Aereo can continue to stream live television to its subscribers through the Internet much to the chagrin of the television network plaintiffs.

Aereo allows its subscribers to stream live television through its website and smartphone app. Each subscriber, in effect, leases an antenna. These tiny antennas are stored in Aereo’s Brooklyn warehouse and pick up signals, which are then transmitted through the Internet to the individual subscribers. Aereo’s subscription fees average about $8 per month.

A group of broadcasters, including ABC, NBC, CBS, Comcast, News Corporation, Disney, PBS and Telemundo, sued Aereo in federal court seeking an injunction. They argued that Aereo’s business constitutes illegal retransmission of copyrighted content. The district court denied the injunction, finding that plaintiffs were unlikely to succeed on the merits of their case. The court agreed with Aereo that retransmission of content to subscribers from individually leased antennas constitutes a “private performance.” While “public performances” of copyrighted material violate copyright law, “private performances” do not.

The Second Circuit affirmed this decision in a 2-1 ruling. However, dissenting Judge Denny Chin called Aereo’s business a “sham” and wrote that there is no legitimate reason for Aereo to use multiple little antennas as opposed to one centralized antenna. Further, he said, “[t]he system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

Following this decision, Aereo plans to expand its service outside New York to various other markets, providing a more cost effective way for TV watchers to catch their favorite shows as well as another outlet for advertisers to reach people. Moreover, there is a growing potential for cable companies to join in on Aereo’s “sham,” using similar technology to avoid paying retransmission fees.

While broadcasters may have been beaten, they are not broken. They are encouraged by a recent decision in California where the court ruled against a nearly identical streaming service, and accordingly, they plan to take this case to trial.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Emerging Business News: Gibney Sponsors GDC Networking Event for Women In Games International

Michael Hawkes — Wed, 27 Mar 2013 09:02:20 -0500

Gibney, Anthony & Flaherty LLP is pleased to support Women In Games International (WIGI) and sponsor the 6th Annual GDC Networking Event. This year's reception will be held at the Cartoon Art Museum in San Francisco on Wednesday, March 27, 2013 at 6pm. Through dedicated representation in the areas of Intellectual Property, Business, Immigration and Global Mobility, among others, Gibney supports the growth of innovative emerging businesses and entrepreneurial individuals in the fields of gaming and entertainment publishing, social media, and software development.

For more information about WIGI please visit http://www.womeningamesinternational.org/.

IP Spotlight: "LOL?" Cell Phone Providers Not Liable for Copyright Infringement by Texters

Michael Hawkes — Wed, 27 Mar 2013 07:43:52 -0500

The next time you copy and paste an image of the “Grumpy Cat” for a witty text message, remember it could be copyright infringement, and your cell phone company is not liable. On March 25, 2013, the Ninth Circuit affirmed a significant district court decision in the area of copyright law. In essence, the court held that multimedia messaging services are not liable for infringing acts of their customers.

The case arose over widespread sharing of copyrighted material by cellphone users, which benefits wireless carriers such as AT&T, Verizon, T-Mobile and Sprint who then charge users with texting fees. As a result, producers, publishers, distributors and sellers of mobile multimedia content came together to try to do something about it. However, in the case Luvdarts LLC et al. v. AT&T Mobility LLC et al., plaintiff Luvdarts, a company who sells MMS greeting cards, failed to show that the wireless carriers possessed the requisite power to monitor and control infringement by their users. The court found that the wireless carriers never actually induced their users to commit acts of infringement and were not aware of any particular instances of infringement. Specifically, the court noted "[b]ecause Luvdarts has failed to allege adequately that the carriers had the necessary specific knowledge of infringement, it cannot prevail on its claim of contributory copyright infringement."

Luvdarts argued that it informed the wireless carriers of specific instances of alleged infringement through Digital Millennium Copyright Act (DMCA) notifications. However, the court found that these notices were overly vague and did not meet DMCA standards. Moreover, these notices did not provide sufficient detail regarding the content that was infringed, the infringer, or when the infringing act occurred. Luvdarts also argued that the wireless carriers should have implemented some type of technology that would prevent the forwarding of copyrighted messages, but the court disagreed on this point as well, noting that Luvdarts failed to establish that implementation of such a system would have been feasible.

This case shows yet again in the ever-evolving world of technology, copyright owners are finding it difficult to protect the unauthorized use of their works, and are being left with sad faces. :(

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Immigration Alert: Plan to Automate Form I-94 Advances

Michael Hawkes — Fri, 22 Mar 2013 14:19:31 -0500

U.S. Customs and Border Protection (CBP) announced on March 21, 2013 that it has submitted a rule to the Federal Register to automate the Form I-94 Arrival/Departure Record in an effort to streamline the admissions process for entry of foreign nationals into the United States. The change in procedure is expected to take effect thirty days after the rule is officially published in the Federal Register.

Once implemented, foreign nationals entering the U.S. from overseas will no longer receive a paper Form I-94 upon arrival in the United States. Instead, an electronic record of admission will be created in a CBP database. Foreign nationals are expected to receive an admission stamp in their passports, and may obtain a hard copy of Form I-94 as evidence of status by visiting a CBP website (which will be live when the I-94 is automated) and printing the record of admission.

The I-94 currently serves as proof of valid admission to the U.S. and lawful status, and in many instances, it is presented with a valid foreign passport as evidence of work authorization in the Form I-9 employment verification and E-Verify process. The I-94 is also used to establish eligibility for other federal and state benefits, including Social Security numbers and driver’s licenses. It is not yet clear how automation of the Form I-94 will impact securing these and other benefits. Gibney will continue to monitor this situation, and will provide updates as they become available. Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement, or for any questions concerning Form I-94.

IP Spotlight: Superman's Heirs Prove Not So "Super" in Ownership Dispute

Michael Hawkes — Fri, 22 Mar 2013 14:16:20 -0500

On Wednesday, March 20, the heirs to the Superman legacy took a major hit when a judge upheld the Ninth Circuit’s decision that a 2001 agreement with DC Comics is enforceable. In October 2001, the estate of Superman co-creator, Jerome Siegel, entered into an agreement with DC Comics to transfer all rights to Superman. After the agreement was executed, the estate claims that DC made new demands as a condition to its performance under the contract. Contrary to their initial position that the agreement was never enforceable, they argue that these demands and revised terms were so material as to constitute an anticipatory breach, and as a result, they rescinded the agreement.

However, on Wednesday, the Siegel estate was forced to put its foot in its mouth. According to Judge Wright, “the Siegels’ breach and repudiation defenses do not affect the enforceability of the agreement, but rather constitute grounds for termination or a breach-of-contract action.” Further, the Judge found that the Siegels never effectively rescinded the contract as they failed to give DC proper notice of such intent. That said, one would certainly expect the Siegels to follow up this decision with a separate breach of contract action.

The stakes are high, and undoubtedly, the fight will not end here. But for now, DC Comics and its owner, Warner Bros. Entertainment, come out on top as the rightful owners of the famous superhero.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

IP Alert: Supreme Court - First Sale Doctrine Applies to Foreign Copies of Copyrighted Works

Michael Hawkes — Wed, 20 Mar 2013 14:59:22 -0500

Two years ago, in 2010, the Supreme Court was thrown for a loop in a battle between Costco and Omega over the sale of discounted watches. The copyright question involving the doctrine of fair use and gray market goods led the Court to a stalemate in 4-4 decision. On March 19, 2013, however, the Supreme Court took a second bite at the apple. The Supreme Court ruled in a 6-3 decision that the First Sale doctrine, which allows the owner of a copyrighted work to sell or otherwise dispose of it however he chooses, applies to copies of a copyrighted work lawfully produced and acquired abroad and subsequently resold in the United States.

In the case, publisher John Wiley & Sons sued Cornell student Supap Kirtsaeng for copyright infringement after learning that he had been selling at low prices textbooks that were bought by friends and family in his home country of Thailand and sent to him in the U.S. The lower court found for Wiley and awarded damages of $600,000. Luckily for Kirtsaeng, things turned around once the case got in front of the Supreme Court, which cited First Sale to dismiss the damage award.

The Supreme Court's decision to unequivocally expand the First Sale doctrine legitimizes and provides protection to the practice of importing copyright or trademark protected gray market goods and reselling them in the U.S. at discounted prices. This serves as a major victory for discount retailers and sellers in the U.S. The Court explains that Congress never intended to place geographical limits on the applicability of the First Sale doctrine and that such limits would interfere with the ordinary use of copyrighted works, whether scholarly, artistic, or commercial, in commerce. On the other hand, publishing companies, software companies, and other related industries are not happy with this decision. They argue that it will undoubtedly hinder them from selling their products to developing markets at lower prices, an act they currently engage in. Further, they say that it will encourage higher pricing strategies overall.

As a result of today's global economy in which a majority of products are manufactured or produced abroad, the Court was hesitant to do anything that would prohibit someone who legally acquires a product made abroad from turning around and selling or gifting copies of that product domestically. While even some Justices disagree, moving forward, the Supreme Court's decision will certainly impact the landscape of copyright law and the First Sale doctrine.

Immigration Alert: USCIS Anticipates Increased H-1B Cap Filings and Announces Delay in Premium Processing

Shiri Zuravicky — Mon, 18 Mar 2013 13:05:31 -0500

April 1, 2013 marks the beginning of the filing period for H-1B petitions subject to cap limits for the fiscal year (FY) 2014, which runs from October 1st, 2013 to September 30th, 2014. Based on information from stakeholders and the American Immigration Lawyers Association, USCIS anticipates that by April 5, 2013, it will receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher. If the annual limit is reached on or before April 5, 2013, H-1B cap petitions may be subject to a lottery for the first time since 2008.

In preparation for the increased filings, USCIS has temporarily adjusted its current premium processing practice for cap-subject H-1B petitions, including H-1B petitions subject to the masters’ cap. For all H-1B cap-subject petitions filed between April 1 and April 14, 2013 requesting Premium Processing, the premium processing period will not begin until April 15, 2013. USCIS aims to facilitate and prioritize the data entry of cap-subject petitions requesting premium processing. Per standard practice, employers will be able to upgrade a pending H-1B cap petition to premium processing once a receipt notice has been issued.

Gibney is working with clients to prepare H-1B cap petitions and will continue to do so until the FY 2014 H-1B cap has been met. For more information regarding which petitions are subject to the cap, please see Gibney Immigration Alert, dated January 14, 2013. If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: Comprehensive Immigration Reform in Mexico Presents New Challenges

Shiri Zuravicky — Mon, 18 Mar 2013 10:44:36 -0500

Effective November 9, 2012, the Mexican government published regulations to implement comprehensive immigration reform under the General Immigration Act. The implementation of these new laws by the Federal District and thirty-two regional immigration offices has significantly changed Mexico’s immigration scheme and has led to inconsistent adjudications of visa applications and significant delays in processing work permit applications, extension applications, and Resident ID cards applications. These problems have been compounded at Mexican consular posts around the world as staff attempt to interpret and adapt to the changes under the new system.

There are four major changes under the General Immigration Act that impact foreign nationals transferring to Mexico: new visa categories and procedures; new rules for change of status applicants; implementation of a new Resident ID card; and procedural changes for dependent children.

New Visa Categories and Procedures

There are now only three main visa categories: Visitor, Temporary Resident, and Permanent Resident.

Visitor: The Visitor visa is issued as a Forma Migratoria Multiple (FMM). The visa holder’s immigration status will be further classified as “Visitor with Lucrative Activities” or “Visitor with Non-Lucrative Activities” and includes both tourist and business travelers. The visa holder may perform productive work under the FMM-Visitor with Lucrative Activities and FMM-Visitor with Non-Lucrative Activities for a maximum period of 180 days. The distinction between the Visitor with Lucrative Activities and Visitor with Non-Lucrative Activities depends on the source of the visa holder’s salary. If the foreign national receives a salary or other economic compensation from within Mexico, he or she will fall within FMM-Visitor with Lucrative Activities and must get pre-approval from the National Institute of Migration (Instituto National de Migracio) (INM). If the foreign national receives compensation from their home country, i.e., outside of Mexico, he or she will be classified as an FMM-Visitor with Non-Lucrative Activities.

Temporary Resident: The second visa type is the Temporary Resident visa that authorizes a foreign national and family members to remain in Mexico for up to four years to work, and provides for unlimited entry and exit. In a major change, this category now allows the foreign national to file a Non-Lucrative Temporary Resident visa application directly at a Mexican consular post having jurisdiction over the foreign national’s country of citizenship or place of residence. However, to qualify for this, the foreign national must remain on his or her home country payroll during the period of stay in Mexico. The application adjudication period is quick-approximately ten days, a major benefit of this classification.

If the foreign national files a Lucrative Temporary Resident visa, the application is adjudicated in Mexico at the INM. The adjudication period is currently approximately three months, but it is anticipated that the processing time will return to six to eight weeks when the government authorities have fully implemented all regulatory changes. Once the Lucrative Temporary Visa is pre-approved by the INM, the foreign national has fifteen days to file their entry visa at the Mexican consular post. If the foreign national fails to file the entry visa application within the fifteen-day period, the pre-approval will be cancelled. Entry visa processing time is approximately ten days.

Permanent Resident: The final type of visa is the Permanent Resident visa which authorizes foreign nationals and family members (spouse, parents, brothers, sisters, partners, and children) to live and work in Mexico indefinitely. Foreign nationals must hold a Temporary Resident visa for a four-year period and must qualify for Permanent Resident status under Mexico’s Points-Based System.

Change of Status or Regularization in Mexico

Mexico has implemented a procedural change to eliminate a change of status from business visitor to employment authorized status while remaining in Mexico. Visitors can no longer change their condition of stay and must depart Mexico upon conclusion of their authorized period of stay.

The elimination of a change of status for the principal foreign national directly impacts the dependent visa process. While dependent Temporary Residence visa applications could previously be filed with the principal’s application, now dependent Temporary Resident applications cannot be filed until the principal applicant has completed the Temporary Resident visa process and holds his or her Resident ID card. Dependents who are visa exempt may file a change of status application in Mexico, but those who require a visa to enter Mexico will first need to file for an entry visa at a Mexican consular post. There is currently a backlog on the issuance of Resident ID cards of up to two months, so the change in the dependent application process is likely to slow things down even further.

Resident ID Card

Upon arrival in Mexico, all foreign nationals are granted a Temporary Resident ID card and foreign nationals must apply for the appropriate Resident ID within thirty calendar days of entering Mexico. Should a foreign national need to travel internationally during the pendency of the Resident ID application, he or she must file a Departure and Re-entry Permit in order to maintain status. The implementation of the new Resident ID card has caused significant delays in the overall process for both the principal applicant and their dependents.

Dependent Children

Mexico’s regulations have now set age eighteen as the age-out limit for dependent children who wish to be sponsored by work permit holders. Children who are eighteen years or older must find independent employment sponsorship for a visa if they wish to retain a work permit. In addition, all minor children traveling outside of Mexico will need an authorization letter allowing them to depart Mexico without their parent or legal guardian.

Summary

As set forth above, implementation of Mexico’s General Immigration Act has caused significant delays and we anticipate the delays will continue for an additional two months before the government authorities fully enact all proposed regulations to the Mexican immigration scheme. The most significant changes relate to the creation of three distinct visa types, the proposed maximum time limit of 180 days afforded to foreign nationals to perform productive work without obtaining a work permit, and the age out limit of eighteen years set for dependent children. Gibney will continue to monitor the implementation of these new rules in Mexico and will provide updates once the INM publishes additional information.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: April 2013 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 12 Mar 2013 13:23:00 -0500

The U.S. Department of State (DOS) has published the April 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence. Click here for additional information regarding applications for Permanent Residence.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: April 1, 2008
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: July 1, 2007
China: April 22, 2007
India: December 8, 2002
Mexico: July 1, 2007
Philippines: September 8, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: July 1, 2007
China: August 1, 2003
India: December 8, 2002
Mexico: July 1, 2007
Philippines: September 8, 2006

Click here to view the full text of the April 2013 Visa Bulletin

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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IP Spotlight: New Google Image Search: Not Playing "Fair" With Copyright Owners?

Michael Hawkes — Tue, 12 Mar 2013 10:41:19 -0500

Google recently redesigned its Image Search interface to be faster, more reliable, and more user-friendly. Since launch, it has received critical acclaim from artists and webmasters alike. However, developing and emerging websites complain about the bandwidth consumed by images searches while not driving as much traffic to their websites. The question has become: is such use “fair” Fair Use?

Prior to the redesign, upon performing a Google Image Search and clicking on a thumbnail, users were redirected to the site that hosted an image in order to view it in its full size.

In 2012, the 9th Circuit found that Google’s use of the thumbnail images was Fair Use of copyrighted materials. See, Perfect 10, Inc. v. Google, Inc., 653 F.3d 976 (9th Cir., 2011). However, Google’s new redesign does much more than create a small thumbnail image.

Now, when a user clicks on a thumbnail, the image is enlarged to its actual size in a panel on the same results page. In order to access the host site, the user has to actively click through. Furthermore, users can utilize keyboard shortcuts to flip through image results.

Google's new image search format permits users to see a full size image from a website without having to visit the website.

While the new design has proven successful from the user’s perspective, artists and webmasters might not agree. Since the launch, webmasters have seen significant drops in site traffic driven from Google image searches. There is simply no longer a need to click through to the source site to view the image. In order to display the full size image, Google is engaging in “hotlinking,” a process through which Google uses the source site’s bandwidth, which costs the webmaster money. Additionally, artists claim that respect for their work, and for ownership of their work, has diminished now that users are able to view it completely out of context directly on Google Images. When finding an image on this new interface, users draw no connection back to the artist or owner, but rather to Google.

In anticipation of these criticisms, Google incorporated certain features into the redesign. Adjacent to the image are the title and the domain – both clickable – as well as three buttons: Visit Page, View Original Image, and Image Details. In Google’s eyes, these features now create two additional means of accessing the source site than before. Google claims their new interface will help reduce the number of “phantom visits” to the source site. This is because the old interface would actually load the site within the search, generating phantom visits in the process. By adding click through features and eliminating the need to load the site in the new interface, Google believes that source sites should see a net increase in traffic.

Ultimately, Google’s new streamlined process has been well received by users. That said, it may serve as yet another struggle for copyright owners as the capabilities of the Internet expand.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Employee Benefits Spotlight: Affordable Care Act Tax on Employers – New Proposed Regulations

Michael Hawkes — Thu, 07 Mar 2013 08:33:41 -0600

On December 28, 2012 the IRS released proposed regulations on the calculation and determination of the employer penalty provisions of the Affordable Care Act (also commonly referred to as "Obamacare”). These provisions impose a tax on “large employers” who do not provide a minimum level of health coverage to full-time employees.

Who is a “Large” Employer?

The tax applies to an employer with 50 or more full-time employees on business days in the preceding calendar year (a ”large employer”). There is a calculation using “equivalencies” for employees “under 30 hours” per week and this group is added to the “30 and over hour” group to determine if the 50 full-time employee threshold is met.

The Controlled Group rules apply in the determination of whether there are 50 employees and any employees who work outside the country are not counted.

Who is an Employee?

The determination of who is an “Employee” will be determined under common law rules. Based on this, an employee leasing agency might not be considered the employer. In addition partners in partnerships, directors and 2% shareholders in S Corporations are not considered to be employees.

Application of Tax to Controlled Group Members

Each member of the controlled group will have the tax applied separately to itself. Interestingly, there is no liability of other controlled group members for non-payment of the tax by one controlled group member.

Counting Hours of Service

An Hour of Service is defined as each hour for which an employee is paid or entitled to payment for the performance of duties, vacation, leave, holiday, illness, incapacity, layoff, jury duty, military duty or other leave of absence (this is the same as under the qualified plan rules). For hourly employees the actual hours are counted and for non-hourly employees there are three methods that may be used that does not understate hours: (i) actual hours; (ii) count 8 hours for each day credited with at least one hour of service; and (iii) count 40 hours of service for each week credited with at least one hour of service .

The $2,000/$3,000 Tax on Full Time Employees

There are two possible taxes that can be imposed on the employer. It should be noted that neither tax applies unless at least one full-time employee purchases health insurance in an Exchange and qualifies for a subsidy. Additionally, an employer cannot be subject to both taxes – only one of them.

The tax only applies to “full-time employees” - an employee who averages 30 hours per week. It should be noted that the full-time “equivalencies” calculation mentioned above is not used here.

Level # 1 Tax - An employer who does not offer “minimum essential coverage” (MEC) to substantially (i.e. 95% or more) of all its full-time employees and their dependents may be subject to a tax of $2,000 annually times the total number of eligible full-time employees, minus the first 30 employees. The tax does not apply to part-time employees.
Level # 2 Tax - If the Level # 1 Tax does not apply (i.e. the employer does offer MEC coverage to at least 95% of its employees), then the Level # 2 Tax can apply to each full-timer who opts out of coverage, obtains coverage under one of the new Exchanges and is entitled to receive a “premium tax credit or reduced cost sharing” (i.e. household income of the employee is between 100% and 400% of the poverty line). However this Level # 2 Tax will not apply if the employee is offered MEC, the plan pays 60% of plan costs (i.e. it is a plan that offers so-called “minimum value”) and the cost of the plan to the employee is “affordable”.

What makes a plan “affordable”?

A plan will be deemed to be “affordable” if the employee is not charged more than 9.5% of household income. Since household income may be difficult for the employer to ascertain, three safe harbors are available as follows: the employee charge must be 9.5% or less of either (i) W-2 income; (ii) an employee’s standard rate of pay or (iii) the federal poverty line.

Immigration Alert: Sequestration Likely to Cause Delays for Travelers, Employers and Immigrants

Michael Hawkes — Mon, 04 Mar 2013 11:09:58 -0600

Unless a compromise is reached between the House and Senate, sequestration will mean across-the-board cuts to federal agencies totaling up to $1.2 trillion over a period of ten years. The Obama Administration and officials testifying before Congress expect the cuts to have a profound effect on the overall functions of government agencies regulating travel to the U.S. and agencies upon which foreign nationals rely heavily to secure their immigration benefits. We have highlighted some of the key areas that may be impacted by sequestration, as reported by the White House and key agencies, including the Department of Homeland Security (DHS).

Customs and Border Protection (CBP)—Longer Lines at the Airport:
According to DHS Secretary Janet Napolitano, cutbacks in funding and reduced staffing for CBP and the Transportation Security Administration (TSA) will dramatically increase wait times by up to several hours at airports. Fewer officers on duty will result in slower passenger screening and longer lines for immigration inspection for those traveling into the U.S., particularly at peak periods of travel and at the busiest airports. Air travelers should plan ahead for longer wait times.
U.S. Citizenship and Immigration Services (USCIS) – Increased Processing Times:
Loss in funding is generally considered to be less significant at USCIS since the agency’s budget comes mainly from filing fees collected from applicants. Nonetheless, the magnitude of cuts to other related immigration agencies, such as CBP and Immigration Customs and Enforcement (ICE), may have a spill-over effect on USCIS operations, and, as a result, processing times may slow.
Department of State (DOS) – Delays in Visa Adjudications:
Cuts within the DOS budget would affect all U.S. Embassies and Consulates. DOS Secretary John Kerry predicts such cuts will significantly increase visa processing times and jeopardize the agency’s ability to issue error-free travel documents, as resources are shifted to focus on critical national security programs. With reduced DOS staffing, travelers will need to plan further ahead, as it will be more difficult to secure consular visa appointments and will take embassies longer to issue visas.
Department of Labor (DOL) – Slower LCA and PERM processing:
Acting Secretary Seth Harris has stated that major budget cuts to the DOL and a sizeable decrease in DOL staffing will affect various programs within the DOL, including the Employment and Training Administration that contains the Office of Foreign Labor Certification. As a result, backlogs and an increase in processing times should be expected for Labor Condition Applications related to H-1B petitions and Labor Certification (PERM) applications filed by employers.

The White House and Secretaries Kerry and Napolitano maintain that reductions from sequestration could undermine progress made by federal and state agencies across many programs in recent years, including immigration programs, and place government agencies in a position of vulnerability unless an agreement is reached.

For more information regarding the White House Office of Management and Budget report, please visit: http://www.whitehouse.gov/sites/default/files/omb/assets/legislative_reports/stareport.pdf

For more information regarding the testimonies of Secretaries Napolitano, Kerry and Harris, please visit:
http://www.appropriations.senate.gov/ht-full.cfm?method=hearings.view&id=17d3dc99-c065-4bec-a7c8-cfd374bf41a3

IP Spotlight: "Heroes" Prove Super in Copyright Infringement Action

Michael Hawkes — Fri, 01 Mar 2013 10:47:09 -0600

“Heroes” prevailed in a copyright infringement action against a graphic artist’s claims that his work was substantially similar to the now defunct NBC television show.

“Heroes” was an NBC television show about ordinary everyday people who gain super powers after a strange solar eclipse. We all fondly remember the first season of “Heroes” and its great run of programs that enchanted the hearts of Americans with the mystery surrounding the slogan “Save the Cheerleader, Save the World,” and then the second season happened….Soon thereafter the show quickly lost its fan base and popularity.

Despite the show being off the air since 2010, a highly contested copyright infringement case has waged on for many years. In Wild v. NBC Universal, Inc., plaintiff Jazan Wild brought a claim against NBC Universal, Inc. asserting that NBC copied protectable elements of his comic book series, “Carnival of Souls,” in its adaptation of the television show “Heroes.” He argued that “Heroes” contained the same carnival theme and significant visual similarities as his comic books.

In order to succeed in a copyright infringement claim, the plaintiff must show two elements: access and substantial similarity. Without either element, a copyright infringement claim must fail. To establish substantial similarity, the Court employs a two-part test.

When looking at some of the scenes as depicted in the complaint, the Ninth Circuit Court of Appeals held up the district court’s decision.

The district court found that the only similarities that exist between the two works are standard carnival scenes and those that would normally and naturally flow from them, known in copyright law as “scenes a faire.” Because copyright law does not protect ideas, but rather the actual expression of ideas, such a generic concept is not protected.

Since the court also found that the works differ drastically in their plots, storylines, characters, dialogue, setting, themes, and mood, the extrinsic test fails and substantial similarity under the law is lacking. Therefore, the district court found that, even assuming NBC had sufficient access to Wild’s work, the copyright infringement claim must fail.

About the Author: Michael Lee is a Partner at Gibney, Anthony & Flaherty, LLP. His practice focuses on Intellectual Property registration, protection and enforcement.

Immigration Spotlight: Legalization is Key Point of Contention in Comprehensive Immigration Reform

Michael Hawkes — Thu, 28 Feb 2013 12:35:14 -0600

As previously reported, both the U.S. Congress and President Obama have recently focused on achieving Comprehensive Immigration Reform (CIR) to fix what many perceive as a “broken” U.S. immigration system. While consensus concerning certain components of CIR such as increased border security and changes to visa availability for highly educated immigrants seems to be building, the treatment of the estimated 11 million persons currently in the U.S. without U.S. immigration status and specifically whether their status should be legalized will likely be a key point of contention in determining whether CIR can be achieved.

Legalizing the status of persons currently in the U.S. with no immigration status as part of CIR is a controversial issue that is closely intertwined with how the U.S. defines itself as a nation and what steps should be taken to ensure the future economic health of the nation. Interestingly, both sides of the legalization debate focus on the issue of fairness.

Recognizing the reality that an estimated 11 million persons with no U.S. immigration status are part of the U.S. society and economy, supporters of legalization view it as the way to ensure fair treatment and accountability of both undocumented persons and their employers. On the other hand, those against legalization contend that providing a path to citizenship for undocumented persons undermines the rule of law and creates an unfair reward for law breakers.

The main CIR proposals at this point, including the Bipartisan Framework for CIR authored by Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake, and the White House’s Draft CIR Bill, both include provisions for legalization and a path to U.S. citizenship for persons in the U.S. without status. The Bipartisan Framework provides for legalization contingent upon achievement of increased border security. The White House’s Draft CIR Bill provides for the creation of a Lawful Prospective Immigrant (LPI) status that, following satisfaction of requirements such as paying a fee, paying taxes, and proving understanding of the English language and U.S. civics, would ultimately provide a pathway to citizenship. Both proposals provide that legalization applicants would need to “go to the back of the line” behind those already awaiting permanent residence in the U.S., though the practicality of achieving that goal in a system with multiple “lines” could prove challenging.

It remains to be seen at this point how the issue of potential legalization of persons currently in the U.S. with no immigration status will be resolved in any CIR, but it is an issue that is likely to be decisive in determining the outcome of current CIR debates.

Immigration Spotlight: Congress Holds Hearings on Immigration Reform; White House Immigration Proposal Leaked

Michael Hawkes — Wed, 27 Feb 2013 23:01:21 -0600

Following President Obama’s State of the Union Address on February 12, 2013, during which the President asserted that Comprehensive Immigration Reform (“CIR”) is imminent, the Senate Judiciary Committee held its first CIR hearing on February 13, 2013. The hearing covered a wide array of topics, including border security, additional visas for high-skilled workers, and family unification. Key witnesses testifying at the hearing included Department of Homeland Security Secretary Janet Napolitano; Chris Crane, leader of the Immigration and Custom Enforcement employees’ union; and Pulitzer Prize-winning journalist and undocumented immigrant, Jose Antonio Vargas. That same morning the House Homeland Security Committee convened for a hearing on border security, during which Chairman Michael McCaul (R-Texas) stated that, in the wake of CIR reform, the House Homeland Security Committee must guide the Department of Homeland Security in its quest to develop more effective methods to secure U.S. borders and prevent drugs, weapons, and violence from infiltrating our borders.

Over Presidents’ Day weekend, The Miami Herald and USA Today released three leaked sections of an immigration reform bill drafted by the White House, covering the following main topics:

Enforcement – The draft bill outlines four enforcement priorities: Investing in Border Security and Infrastructure; Building a Fair and Firm Enforcement System; Fighting Transnational Crime; and Strengthening the Immigration Court System.
Legalization of Undocumented Individuals – The draft bill introduces Lawful Prospective Immigrant (“LPI”) status, and would permit LPI status holders to apply for permanent resident status no sooner than six years after initial grant of LPI status, with eligibility for approval either eight years after enactment or 30 days after an immigrant visa has become available for petitions filed before enactment, whichever is sooner. The bill proposes a shorter path to residence for individuals who were brought to the United States without documentation as children; youths who have earned a Bachelor’s degree or served two years in the U.S. military would be eligible to apply for permanent residence two years after enactment of the bill.
Employment Verification System – The draft bill proposes a new employment verification system and makes it unlawful for employers to knowingly hire an employee who is not authorized to work in the United States, or to hire any employee without following the required employment verification process. Employers having fewer than five employees would be exempt from this process.
Protection of American Workers – The draft bill outlines protections for victims of crime, as well labor and employment violations, and proposes enhanced penalties for certain employer violations also involving the employment of unauthorized workers.

The White House stated that the leak was not an intentional release, and that the bill was prepared as a backup in the event that bipartisan discussions in Congress flounder. The document is a working draft and likely does not represent the Obama Administration’s final position on immigration reform.

Additional hearings related to immigration reform include the House Subcommittee on Immigration and Border Security hearing, “Agricultural Labor: From H-2A to a Workable Agricultural Guestworker Program,” and the House Subcommittee on Border and Maritime Security hearing, “What Does a Secure Border Look Like?” both on February 26, 2013, and the House Judiciary Committee hearing, “How E Verify Works and How it Benefits American Employers and Workers” on February 27, 2013. Gibney will monitor all developments related to immigration reform and will provide regular updates. For additional information, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

IP Partner to Speak at Chicago Comic and Entertainment Expo

Michael Hawkes — Wed, 27 Feb 2013 13:20:03 -0600

Intellectual Property Partner, Michael Lee is scheduled to address the Chicago Comic and Entertainment Expo (C2E2) on Saturday April 27, 2013 at 12:15 PM. His lecture entitled, The Legal Aspects of Becoming Famous: What You Need to Know to Make it Big, will discuss Intellectual Property law as it relates to creative industries. Details are below:

Description:
You have created your own comic book hero, with all the powers in the world, but beware the super villain, the cranky intellectual property attorney who believes your superhero is an unauthorized clone of his client's.

If you are an artist, author, software or mobile phone application creator, this panel will show you:

Protecting yourself and your creations
How to protect your intellectual property
How not to infringe upon other people's work
Legal nuances of landing a publishing deal or becoming famous

Topics will include:

Forming a corporation
Website creation
Work for hire agreements
An overview of copyrights, trademarks, and Fair Use
What to do if someone is improperly using your creations
How to avoid improperly using someone else's works

For more information on C2E2 please visit http://www.c2e2.com.

Private Client Spotlight: Personal Liability of an Executor or Trustee for a Decedent’s Debts

Michael Hawkes — Tue, 26 Feb 2013 09:35:28 -0600

“When can I distribute the money to the children?” is the most common question asked of attorneys advising executors. A recent case in Texas shows the risk of personal liability when executors distribute the estate while there are outstanding bills.

Executors are not the only fiduciaries with personal liability exposure. Trustees of Living Trusts can also have personal liability.

In US v. Robert S. MacIntyre the Texas court found both the executor of the estate and the trustee of the Living Trust personally liable for taxes due to the IRS. Their liability equaled the value of the property they distributed from the estate and the trust. Apparently they were not able to obtain refunds of those distributions from the beneficiaries so they had to fight it out in court.

The distributions in this case were typical: (i) a car and other personal property (the executor did not want to continue paying storage charges) and (ii) rent for the decedent’s apartment for 1 year.

Reasonable people might question how there could ever be personal liability for these distributions. Under Federal law a fiduciary (executor or trustee) is personally liable if she distributes from the estate or trust and “knows or should have known” of the unpaid tax.

Under the law of many states, including New York, there is a distinction between debts of the decedent and debts of the estate. Some debts of the estate can take priority over the unpaid Federal tax. However, in this case the landlord did not have priority over the IRS.

Debts of the estate that can be paid by New York fiduciaries before any other debts include funeral expenses and reasonable administration expenses. New York laws allow these expenses to be paid before all debts, including taxes owed to the IRS.

In the MacIntyre case, and as is usually the case, the decision of the fiduciary to distribute the car and personal property to the family is not protected the same way payment of a debt of the estate would have been. The more interesting finding was the personal liability for payment of rent on decedent’s property. The court found that some rent might be acceptable but because holding the apartment for 12 months was not reasonable it was not a preferred expense with priority.

The case serves as a warning to those acting as executor or trustee of a decedent. Carefully make sure there are no outstanding Federal or state taxes or other debts or expenses that might be first in line for payment. Advice of counsel is very important in this area so the executor and trustee, who often think they are preforming thankless jobs, can also avoid personal liability for their actions.

Employee Benefits Alert: IRS Updates Employee Plans Compliance Resolution System

Michael Hawkes — Mon, 25 Feb 2013 09:22:54 -0600

Revenue Procedure 2013-12 amends the Employee Plans Compliance Resolution System (ERCRS) for plan corrections effective April 1, 2013. The method of correction and type of correction method under EPCRS depends on the type of failure. The three types of correction procedures available are Self-Correction Program (SCP), Voluntary Correction Program (VCP), and Audit Closing Agreement Program (Audit CAP). Audit CAP is for correcting plan failures that were discovered in an ongoing audit by the IRS. SCP and VCP are available for failures discovered by a plan sponsor. SCP is available where the error is timely corrected and VCP is available for failures discovered past the time allotted in the Revenue Procedure.
The new provisions of Revenue Procedure 2013-12 include:

Expanding EPCRS for 403(b) plan failures;
Revised submission procedures for the VCP; and
Expanded correction methods.

Expansion of Correction Methods to 403(b) Plans

A 403(b) plan is a tax deferred retirement plan (similar to a 401(k) plan) that is available to public schools, certain tax exempt organizations, and ministers.

The same methods that have traditionally been used to correct plan operational failures (e.g. exclusion of an eligible employee, failure to vest, or failure to timely allocate matching contributions to participant accounts) are now available to plan sponsors of 403(b) plans. Additionally, the updated EPCRS includes procedures for correcting 403(b) written plan failures.

Updated VCP Submission Procedures

Even where SCP is available, a plan sponsor will commonly make a VCP Submission to the IRS describing the failure, the correction method and pay the associated fee in order to assure that the plan maintains its qualified status. The VCP submission generally takes the form of a memo or letter outlining all the required information described in the Revenue Procedure. The submission procedures for the VCP have been updated under Revenue Procedure 2013-12. The IRS is anticipated to publish the new Forms 8950 and 8951 that must accompany all VCP submissions. Presumably with the issuance of these forms VCP submissions will become more uniform.

Many times a plan failure is not discovered for years. Many affected participants are no longer employees and the plan sponsor has to locate them. As of August 31, 2012, the IRS letter Forwarding Program is no longer available as a search method for locating lost plan participants who are owed additional retirement benefits. The new procedure revises the reasonable actions that a plan sponsor must take to locate lost plan participants who are owed additional retirement benefits as well as extending the correction period in certain circumstances.

The new procedure also offers reduced fees in certain circumstances, such as multiple failures or late adoption of amendments.

Expanded Correction Methods

The updated EPCRS also adds several new and clarified correction methods including the following:

Safe harbor correction methods for certain missed deferrals in 403(b), SIMPLE IRA and safe harbor 401(k) plans;
Section 415(c) Failures. Plan sponsors can use self-correction for certain recurring excess annual additions if they take specified actions within a the time frame allotted.
Correction of operational failures related to noncompliance with applicable IRC section 436 restrictions.
Forfeitures cannot be used to fund QNEC contributions.
Additional correction methods where participants are omitted or the plan fails to implement a participant’s contribution election.

Private Client Spotlight: IRS Increases Estate and Gift Tax Exemptions to $5.25million: It’s Never Too Late to Start Your Estate Plan

Michael Hawkes — Wed, 20 Feb 2013 12:12:06 -0600

In anticipation of the estate and gift tax exemptions returning to pre-2001 levels, many high net worth individuals engaged in a variety of estate and gift tax planning to maximize their exemption. However, The American Taxpayer Relief Act not only extended the increased exemption levels but indexed them for inflation. The IRS announced on January 28, 2013 in Revenue Procedure 2013-15 that the estate and gift exemptions are now $5.25million.

Was all that planning for nothing now that the exemption has increased? Certainly not!

The overall benefit of making gifts during your lifetime is to exclude all appreciation from being subject to estate tax. For example, if you were to make a $5.25million gift, with a 3 ½ percent rate of return, your gift would be worth $6.25million after 5 years. The additional $1million in appreciation passes to your family free of any tax. With a tax rate of 40%, your loved ones are receiving an additional $400,000 that otherwise would have been used to pay taxes! This benefit grows the longer you live. If you make a gift of $5.25million today and live for another 20 years, that gift will nearly double in value. Now you are increasing the amount passing to your family by over $2million.

The extension of the gift tax exemption gives individuals who didn’t take advantage of this opportunity at the end of 2012 the chance to minimize their estate tax now. Individuals should consider:

1. What assets do you want to gift? Ideally you want to gift highly appreciating assets, but you should also consider whether the assets have a large built in gain. In other words, did you purchase this asset for a lot less than its current value? For capital gains tax purposes, gifts retain the cost basis of the grantor, so it is sometimes better to hold those assets until you die when they receive a “step up” in basis to the value on your death.

2. Who do you want to make gifts to? In order to maximize your gift tax exemptions and reduce your estate tax, the gift must be irrevocable. This means that once you make the gift you cannot take it back. However, you may direct how your gifts can be used by setting up a trust.

3. What estate & gift plan is right for you? The plan for every individual is based on their wants, needs and circumstances. The following are examples of different estate plans that may be right for you depending on your situation:

Spousal Lifetime Access Trusts (“SLAT”): If you wondering whether to part with all of your money, you may still be able to maximize your gift tax exemption and keep money available to your spouse for life by utilizing a SLAT. This type of trust also allows you to retain indirect access to the trust assets while eliminating the assets and the appreciation from your estate.
Dynasty Trust: You may want to plan for successive generations. You could maximize your gift tax exemption along with the generation skipping tax exemption by utilizing a dynasty trust.
Estate Freeze Planning: Are you gifting high income producing property such as your interest in a closely held company? With various estate planning techniques you could freeze the value of highly appreciating assets at today’s value. With low interest rates, a Grantor Retained Annuity Trust (“GRAT”) or an Intentionally Defective Grantor Trust (“IDGT”) may allow you to maximize the benefit even over the exemption amount.

You may have felt at the end of 2012 that you were not ready to rush into an irrevocable estate plan. Now with the extension of the exemption, many of these planning opportunities are still available. Additionally, even if you completed your estate planning at the end of 2012, this increased exemption amount allows you to make additional gifts.

Private Client Spotlight: Surrogate Court Accounting - Executor Cannot Shortchange the Surviving Spouse

Michael Hawkes — Wed, 20 Feb 2013 12:07:04 -0600

When is 1/3 not 1/3? When it’s not fair! Surrogate Glen of the New York Surrogate Court recently ruled that a surviving spouse should receive more than what the executor computed to be her 1/3 elective share of her husband’s estate because the expenses allocated to the spouse were inequitable.

Although a decedent in New York may disinherit his or her children, that is not the case with a surviving spouse. New York has a specific law that allows a surviving spouse to receive 1/3 of the deceased spouse’s estate.

In a recent case, Estate of John F. Beiter, the Decedent never revised his Will after getting married. The decedent’s brother was appointed executor and engaged in extensive litigation with the decedent’s business partner. The proceedings were a result of the business partner’s position that the executor missed an important deadline that affected a buyout provision in their partnership agreement.

After the litigation was settled the executor informed the spouse that she would not receive any cash from the estate. The executor argued that the value of the condo the spouse jointly owned with her husband exceeded the value of her 1/3 share of the estate reduced by all the administration expenses (mostly legal fees).

Of course the surviving spouse was not pleased and challenged the executor’s account. After many court conferences and JAMS mediation a settlement was reached except for one issue.

The issue involved expenses related to a rental property owned by the estate. The spouse had no right to 1/3 of the rental income, so she objected to the executor reducing her 1/3 share by any expenses related to that rental property. The spouse argued that any “income” related expenses should not be used to reduce her 1/3 share. Surrogate Glen did not adopt that reasoning but held for the spouse because the expenses related to the rental property were not “reasonable and proper” and therefore were not deductible administration expenses for the purpose of calculating the 1/3 share.

Several lessons can be learned from the Beiter case:

1. Do not procrastinate getting a proper Will signed.

2. Estate counsel should immediately review important agreements especially when the decedent was a partner in a privately owned company.

3. Surviving spouses can use the accounting procedure in the Surrogate’s Court to challenge inequitable actions of the executor.

Immigration Spotlight: President Obama Addresses Comprehensive Immigration Reform as a Critical Component of Strengthening The State of The Union

Shiri Zuravicky — Wed, 13 Feb 2013 21:19:09 -0600

On February 12, 2013, President Obama delivered the first State of the Union address of his second term in office. Approximately midway through his speech, while discussing the strength of the U.S. economy, President Obama introduced the subject of Comprehensive Immigration Reform. His comments mirrored the contents of the immigration reform plan he announced on January 30, 2013, and he suggested that change is imminent.

President Obama emphasized that the U.S. economy is at its strongest when “we harness the talents and ingenuity of striving, hopeful immigrants” and said that leaders within the business, labor, law enforcement and faith communities were unanimous in their agreement that now is the time to pass comprehensive immigration reform. President Obama reiterated the main points of his immigration reform plan and stressed that “real reform” means:

Strengthening border security and reducing illegal crossings;
Establishing a responsible path to citizenship for the undocumented by requiring that those seeking citizenship be subject to background checks, and be required to pay taxes, learn English and line up behind those who are here legally; and
Fixing our current legal immigration system by shortening waiting times for green cards and creating programs to attract highly-skilled entrepreneurs and engineers who are eager to bring their talents to the United States to help grow the U.S. economy.

Lastly, President Obama noted that bipartisan groups in both chambers of Congress are currently working to draft comprehensive legislation and that he is entirely supportive of their efforts. “Send me a comprehensive immigration reform bill in the next couple of months and I will sign it right away,” the President avowed, reiterating the need to “get this done.”

Gibney will continue to monitor and report on developments related to the Comprehensive Immigration Reform initiative, including the advancement of any draft legislation in Congress. Please continue to visit our website for updates or contact your dedicated Gibney representative to learn how comprehensive immigration reform could impact you or your business.

Immigration Alert: March 2013 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 12 Feb 2013 11:10:54 -0600

The U.S. Department of State (DOS) has published the March 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence. For additional information regarding the permanent residence application process, please click here.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: February 15, 2008
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: May 1, 2007
China: January 22, 2007
India: November 22, 2002
Mexico: May 1, 2007
Philippines: September 1, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: May 1, 2007
China: July 1, 2003
India: November 22, 2002
Mexico: May 1, 2007
Philippines: September 1, 2006

The full text of the March 2013 Visa Bulletin is available at
http://travel.state.gov/visa/bulletin/bulletin_5885.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

IP Partner Brian Brokate Quoted in Thomson Reuters Article

Michael Hawkes — Mon, 04 Feb 2013 09:28:44 -0600

Intellectual Property Practice Head, Brian W. Brokate, was quoted in a Thomson Reuters article on February 1, 2013 entitled, “Justice Department focuses on intellectual property crime.” The comments were made during his panel discussion at the Practicing Law Institute’s IP Enforcement & Litigation 2013 event.

Mr. Brokate highlighted that increasingly IP law enforcement is moving online and “disabling websites selling counterfeit products is often the highest priority for companies looking to protect the integrity of their brand names.”

The article, serving as an overview of IP law and enforcement in the United States, also describes events from and comments made during a panel discussion for which IP Partner, Angelo E.P. Mazza spoke. Mr. Mazza’s panel focused on the latest developments in criminal and civil enforcement, specifically on investigations by Customs, Homeland Security and the Department of Justice. The emphasis was on enforcement efforts for counterfeit goods that enter at the border, investigations across the United States and the prosecution of parties importing counterfeit goods.

Useful facts from the Reuters article:

IP enforcement is a top priority of the U.S. Department of Justice.
Over $1.2 billion worth of counterfeit goods seized in the U.S. in 2012
Over 80% of seized goods from China or Hong Kong
Apparel accounted for largest percentage of counterfeits (29%)
Non-traditional items are also counterfeited that compromise consumer safety such as airbags

Click here to read the full article.

References
Smith, Erin Geiger. (1 February 2013). Justice Department focuses on intellectual property crime. Retrieved February 2, 2013, from Thomson Reuters: http://newsandinsight.thomsonreuters.com/New_York/News/2013/02_-_February/Justice_Department_focuses_on_intellectual_property_crime/

Immigration Spotlight: Senators Introduce Immigration Innovation Act of 2013

Shiri Zuravicky — Thu, 31 Jan 2013 12:11:40 -0600

Following an announcement from the Senate outlining a bipartisan framework for Comprehensive Immigration Reform, on January 29, 2013, Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), and Coons (D-DE) introduced the Immigration Innovation Act of 2013 (or “I-Squared Act”).

The bill is aimed primarily at expanding employment-based immigration options, with some additional provisions related to family-based matters.

Nonimmigrant Visas

In the temporary (nonimmigrant) work visa area, the bill would

Increase the H-1B cap from 65,000 to 115,000 visas annually and establish a market-based escalator to increase the number of H-1B visas available depending on when the cap is reached (including a 300,000 ceiling on the ability of the escalator to move).
“Uncap” the U.S. advanced degree H-1B visa exemption, which currently stands at 20,000 visas per year.
Authorize the spouses of H-1B visa holders to work and provide H-1B workers with greater flexibility to change employers.
Restore visa revalidation in the U.S. for H visa holders (along with E, L, O and P visa holders) so these individuals would no longer have to attend a U.S. consulate abroad to renew their passport visas.

Immigrant Visas (or “Green Cards”)

With respect to immigrant visas and quotas, the I-Squared Act contains provisions to

Exempt certain employment-based immigrants from the annual green card quota, including individuals of extraordinary ability, outstanding professors and researchers, individuals holding U.S. advanced degrees in Science, Technology, Engineering or Math (STEM) fields, and spouses and dependent children of employment-based immigrants.
Ensure that immigrant visa numbers allocated by Congress for a given fiscal year are rolled over and made available in future years if the numbers go unused due to bureaucratic delays.
Without increasing the overall quota, eliminate the annual per-country limits for employment-based visas, which currently most severely impact Chinese and Indian nationals, and adjust per-country caps for family-based immigrant visas.

Finally, the I-Squared Act would adjust fees for H-1B visas and employment-based green cards to promote programs aimed at augmenting STEM education in the United States.

As reported in our bulletin announcing a bipartisan Framework for Comprehensive Immigration Reform, the provisions of this particular bill are expected to be considered as part of an overarching Comprehensive Immigration Reform legislation in the Senate. In announcing the framework for comprehensive reform earlier this week, the bipartisan group of senators expressed the aim of drafting legislation by March 2013, with the goal of passing such legislation in the Senate by spring or early summer 2013.

Gibney will continue to closely monitor developments related to Comprehensive Immigration Reform and will provide updates as appropriate. For additional information, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Spotlight: President Obama Announces Plan for Immigration Reform

Shiri Zuravicky — Thu, 31 Jan 2013 11:50:13 -0600

On January 30, 2013, the day after a bipartisan group of senators announced a Framework for Comprehensive Immigration Reform, President Obama outlined his proposal.

At a speech in Del Sol High School in Las Vegas, Nevada, the President remarked that our immigration system today is “out of date and badly broken,” and vowed to reform the system by bringing it into the twenty-first century. The Administration’s plan for accomplishing this has four key components:

Strengthening the security of our borders by enhancing law enforcement infrastructure and technology and supporting continued law enforcement efforts to apprehend and prosecute individuals who are in the U.S. illegally and involved in drug and weapons trafficking or other criminal activities, as well as activities posing a threat to national security. His plan would streamline the administrative process to remove these individuals from the U.S.
Cracking down on employers who employ undocumented workers by phasing in a mandatory electronic employment verification system to verify the eligibility of individuals to work in the U.S., imposing higher penalties for employers who hire undocumented workers, and establishing a pilot program to evaluate new methods to combat identity theft and authenticate identity.
Promoting a clear pathway to citizenship for the estimated 11 million undocumented immigrants currently residing in the U.S. by creating a provisional visa status and enforcing a stringent set of requirements that must be met before these individual can apply for lawful permanent residency. These requirements would include paying taxes in the U.S., passing criminal background and national security checks, registering for Selective Service (where applicable), paying any additional fees or penalties, and learning English and U.S. civics.
Improving the legal immigration process to promote family unity and encourage foreign graduate students educated in the U.S. to remain here by offering them a streamlined path to a green card. Other proposed reforms in this area would include an expansion of visa opportunities for foreign entrepreneurs who contribute to the U.S. economy and build businesses that employ and create additional jobs for U.S. workers, as well as enhanced immigration options for foreign investors and other highly-skilled immigrants.

Additional details regarding the President’s proposal may be found in the White House Fact Sheet.

The core components of President Obama’s plan are not inconsistent with some of the ideas recently advanced in the Senate. Both focus on augmenting border security, creating a path to legalization for the undocumented, expanding options for employment-based visas (particularly for entrepreneurs and highly-skilled workers while promoting family unity), and implementing systems to ensure that employers do not hire undocumented workers. President Obama concluded his remarks on a positive note, stating that he is supportive of bipartisan efforts and is confident that long needed reforms to our immigration system are finally within our reach.

Immigration Spotlight: Bipartisan Plan for Comprehensive Immigration Reform Announced

Shiri Zuravicky — Mon, 28 Jan 2013 21:29:53 -0600

Today members of the U.S. Senate released a blueprint for Comprehensive Immigration Reform. The senators - a bipartisan group including four Democrats (Sen. Schumer-NY; Sen. Durbin-IL; Sen. Menendez-NJ; and Sen. Bennett-CO) and four Republicans (Sen. McCain-AZ; Sen. Graham-SC; Sen. Rubio-FL; and Sen. Flake-AZ) publicized the plan one day before President Obama is expected to outline the Administration’s proposal on the issue.

The Bipartisan Framework for Comprehensive Immigration Reform has four central legislative components:

Create a path to citizenship for the estimated 11 million undocumented immigrants residing in the United States, contingent upon augmenting border security and implementing an entry-exit control system at land border crossings (such a system is already in place at most airports and seaports).
Reduce backlogs in the employment-based and family-based visa categories, and create programs to attract foreign talent including by awarding green cards to immigrants who have received a PhD or Master’s degree in science, technology, engineering or math from an American university.
Implement a mandatory employment verification program to prevent identity theft and the hiring of future unauthorized workers through an electronic verification system.
Provide opportunities to hire lower skilled immigrants including agricultural workers where it can be shown that employers have been unable to successfully recruit U.S. workers, and that the hiring of an immigrant will not displace U.S. workers. Such programs would be linked to job growth indices and would include strong labor protections.

The announcement signals that the agreed approach to reforming our immigration system is through sweeping comprehensive legislation as opposed to enacting piece-meal legislation on select issues. While the bipartisan approach is encouraging, Congress will be challenged to define the details. Potentially controversial provisions may include:

Establishing requirements for legalization of the undocumented, including exempting certain agricultural workers as well as certain young people who entered the U.S. as minor children from going to the end of the queue for green card issuance as part of a legalization process.
Funding sources for increased border security measures.
Linking legalization to border security findings made by a proposed commission comprised of border state representatives.
Utilizing aerial drones to patrol borders.
Establishing an exit system at land border crossings, potentially adversely impacting cross-border commerce and economic activity.
Determining whether a national identity card will be required in connection with implementing an electronic employment verification system.
Creating new nonimmigrant work visa programs for high and lower skilled workers while ensuring strong labor protections for U.S. workers.

In a press conference held today discussing the proposal, Senator Schumer remarked that for the first time, there is more political risk in opposing immigration reform than in supporting it, and Senator McCain called the initiative “difficult, but achievable.” Although specific legislation is not yet drafted, Senator Schumer expressed hope that a bipartisan bill would pass the Senate by late spring or early summer this year.

In the days ahead, in addition the President’s proposal, other senators are expected to announce discreet legislation aimed at increasing work visas for professional and high skilled immigrants. Along these lines, the New York Times reported today that Senator Orin Hatch (R-UT) and Senator Amy Klobuchar (D-MN) are expected to announce a bill that would nearly double the number of H-1B visas made available to high skilled workers. It is expected that such a proposal would ultimately be incorporated into any comprehensive reform package.

Gibney will continue to closely monitor developments related to the Comprehensive Immigration Reform initiative and will provide updates as appropriate. For additional information, please contact your designated Gibney representative.

Immigration Spotlight: The Entrepreneurs in Residence (EIR) Immigration Initiative

Shiri Zuravicky — Mon, 28 Jan 2013 10:56:43 -0600

The launch of “Startup America” in 2011 marked the beginning of a White House-led initiative to create and accelerate job growth by promoting immigrant-led entrepreneurialism in the U.S. In August 2011, Secretary of Homeland Security, Janet Napolitano and United States Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas outlined a number of provisions they deemed crucial in order to attract and retain highly skilled entrepreneurs. “Entrepreneurs in Residence” (EIR), a proviso of Startup America, was formally announced on October 11, 2011.

The EIR initiative was created to harness industry expertise from the public and private sectors in an attempt to review and simplify existing immigration procedures for entrepreneurs, by reflecting a more realistic and consistent approach to current business models. A task force, called the EIR tactical team, consisting of outside experts and USCIS staff was assembled to review current policies and practices associated with nonimmigrant (“temporary”) visas for entrepreneurs, and design potential solutions to existing barriers. The team's goal is to ensure that immigration practices are consistent and align more with current business experiences.

EIR’s first Informational Summit was hosted by USCIS in February 2012, at the NASA Research Park in Silicon Valley, California. The Summit gave stakeholders from the entrepreneurial community the opportunity to share feedback regarding existing USCIS immigration policies and procedures and it provided a general framework for future EIR discussions. The session was open to the public and included a range of important topics for startup companies, including demonstrating the legitimacy of startups through investment, understanding the organizational structure of a startup, defining specialty occupations in today’s business world and the training and culture of USCIS officers and current adjudication methods.

In November 2012, USCIS launched the Entrepreneur Pathways web portal aimed at closing the information gap between USCIS and the entrepreneurial community and providing a visa guide for entrepreneurs. Also cited as a 2012 achievement, USCIS developed a training workshop for employment-based immigration officers, focused solely on entrepreneurs and the environment for startup companies, and the agency modified its template documents used to request evidence in the visa adjudication process, incorporating queries more appropriate for entrepreneurs and startup companies.

The EIR initiative has been extended through 2013 and the EIR tactical team has committed to continuing to work within both the nonimmigrant and immigrant arenas to assist entrepreneurs in the pursuit of a path to U.S. permanent residency. In the upcoming year, four quarterly EIR meetings have been scheduled to take place across the U.S. including Austin, TX (February, 2013) and Boston, MA (May, 2013). According to USCIS, these meetings are open to foreign nationals who wish to raise questions and concerns about business issues in local communities and share feedback.

This immigration article was initially published in the January 2013 issue of Re:locate, an online U.K. based global mobility magazine. The above content does not constitute and should not be construed as, legal advice. If you have any questions, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: Plan Now for H-1B Cap Filings

Shiri Zuravicky — Mon, 14 Jan 2013 14:40:43 -0600

April 1, 2013 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2014 H-1B cap. Preparation for H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Background

H-1B cap cases generally fall within two categories:

“Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1st as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Potential beneficiaries who should be considered for an H-1B cap petition filing include, but are not limited to: potential new hires from overseas; F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training; some L-1 visa holders; certain J-1 exchange visitors; and TN and other nonimmigrant status holders who wish to change to H-1B status in the coming year.

Last year, the H-1B cap was reached on June 11, 2012, nearly seven months earlier than in the preceding fiscal year, during which the H-1B cap was reached on November 22, 2011. It is anticipated that H-1B cap filings will continue to rise this year, resulting in earlier H-1B visa exhaustion. Accordingly, it is increasingly important to file cap-subject H-1B petitions at the earliest possible date. Although H-1B cap petitions may be filed as early as April 1, 2013, note that employment pursuant to any approved FY 2014 H-1B cap petition may not commence prior to October 1, 2013.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2014 annual cap. These include the following:

Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: February 2013 U.S. Visa Bulletin Released

Shiri Zuravicky — Fri, 11 Jan 2013 06:41:30 -0600

The U.S. Department of State (DOS) has published the February 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

"Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: January 15, 2008
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: March 15, 2007
China: November 15, 2006
India: November 15, 2002
Mexico: March 15, 2007
Philippines: August 22, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: March 15, 2007
China: July 1, 2003
India: November 15, 2002
Mexico: March 15, 2007
Philippines: August 22, 2006

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the February 2013 Visa Bulletin is available at: http://travel.state.gov/visa/bulletin/bulletin_5856.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: U.S. Department of State Launches Website to Check Visa Status

Michael Hawkes — Wed, 09 Jan 2013 19:07:06 -0600

The Department of State has introduced an online tool that allows U.S. visa applicants to check the status of their nonimmigrant and immigrant visa cases via a global website. Through this new resource, visa applicants should be able to access up-to-date and accurate information on their cases on a 24/7 basis by entering either the Application ID (DS-160 barcode number) or the Visa Case Number into the Consular Electronic Application Center (CEAC) website. This new initiative is stated to be part of an overall effort by the Department of State to improve customer service and transparency, and facilitate travel to the United States. Other recent enhancements by Department of State have included the introduction of offsite fingerprinting and photography services and the expanded Interview Waiver Program in India. For more information, please visit https://ceac.state.gov/CEAC/ or contact your designated Gibney representative or email info@gibney.com.

Immigration Alert: New State Laws Mandating Use of E-Verify Take Effect in 2013

Shiri Zuravicky — Mon, 17 Dec 2012 12:48:30 -0600

On January 1, 2013, new laws will take effect in North Carolina, Pennsylvania, and Tennessee, requiring employers to register for and use the otherwise voluntary federal E-Verify system, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration. In addition, Georgia and Virginia have enacted new E-Verify requirements that will take effect later in 2013. Many of these laws were originally passed following the U.S. Supreme Court’s May 2011 decision upholding Arizona’s right to mandate the use of E-Verify.

North Carolina (HB36): Effective January 1, 2013, state law will require all employers with 100 or more employees to register for and use E-Verify. On July 1, 2013, the requirement will expand to all employers with 25 or more employees. Employers with 500 or more employees are already required to use E-Verify. Employers with 24 or fewer employees are exempt from the law.
Pennsylvania (SB637): Effective January 1, 2013, any contractor or subcontractor on a public works contract with state or local governments valued at $25,000 or more must register for and use E-Verify.
Tennessee (HB1378): Effective January 1, 2013, all employers with 6 or more employees must either participate in E-Verify, or retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process. (While the Form I-9 process is mandatory under federal law, retention of photocopies is generally optional.) Employers with 200 or more employees are already expected to comply with the law. Employers with 5 or fewer employees are exempt.

Later in 2013, Georgia law (HB87) will require all employers with 11 or more employees to register for and use E-Verify beginning July 1, 2013. Employers with 100 or more employees are already required to use E-Verify. Employers with 10 or fewer employees are exempt from the law.

Finally, on December 1, 2013, Virginia law (HB1859) will require any contractor who has more than an average of 50 employees for the previous 12 months, and who enters into a contract in excess of $50,000 with any state agency, to register for and participate in E-Verify.

Nineteen (19) states now have laws related to the mandatory use of E-Verify for some or all employers. Given that cities, counties, and other jurisdictions are also enacting similar measures, it is critical that employers be mindful of this complex patchwork of laws, and that they develop strategies to ensure compliance in all employment matters.

In addition, with new state laws penalizing employers who fail to properly verify the employment authorization of their employees, there is an increased risk that employers may engage in discriminatory conduct prohibited by federal law. Employers must be aware of federal prohibitions against requesting specific types of identification or employment authorization documentation during the onboarding process, as well as laws requiring equal treatment of anyone who is authorized to work in the U.S., regardless of citizenship, immigration status, nationality, name, accent, or appearance. General information about avoiding unlawful practices is available from the U.S. Department of Justice.

Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement, or for advice on developing protocols and best practices concerning immigration-related onboarding processes.

Immigration Alert: January U.S. Visa Bulletin Released

Shiri Zuravicky — Wed, 12 Dec 2012 10:22:57 -0600

The U.S. Department of State (DOS) has published the January 2013 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: December 8, 2007
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: February 1, 2007
China: September 22, 2006
India: November 8, 2002
Mexico: February 1, 2007
Philippines: August 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: February 1, 2007
China: July 1, 2003
India: November 8, 2002
Mexico: February 1, 2007
Philippines: August 15, 2006

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the January 2013 Visa Bulletin is available at: http://travel.state.gov/visa/bulletin/bulletin_5834.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Global Immigration Alert: End-Of-Year Consular Closings

Michael Hawkes — Fri, 16 Nov 2012 07:03:55 -0600

The holiday season is a hectic time for international travel. Consulates are exceptionally busy due to the higher volume of visa applicants and office closures during home country and local holidays. We encourage corporate HR personnel, business travelers and foreign nationals to take proactive steps and plan ahead for visa issuance prior to travel.

Holiday closures should be noted for the following foreign consulates inside the United States:

Australia:

November 22 & 23 – Thanksgiving
December 24, 25 & 26 – Christmas
January 1, 2013 – New Year’s Holiday

Brazil:

November 22 & 23 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

Canada:

November 22 – Thanksgiving
December 25 & 26 – Christmas
January 1, 2013 – New Year’s Holiday

China:

November 22 & 23 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

France:

November 22 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

Germany:

November 22 – Thanksgiving
December 24, 25 & 26 – Christmas
December 31 – New Year’s Holiday
January 1, 2013 – New Year’s Holiday

India:

November 22 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

Ireland:

November 22 & 23 – Thanksgiving
December 25 & 26 – Christmas
January 1, 2013 – New Year’s Holiday

Japan:

November 22 & 23 – Thanksgiving
December 25, 29, 30, 31 – Christmas/Year’s End Holiday
January 1, 2013 – New Year’s Holiday

Korea:

November 22 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

Malaysia:

November 22 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

Mexico:

November 22 & 23 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

Netherlands:

November 22 & 23 – Thanksgiving
December 25 & 26 – Christmas
January 1, 2013 – New Year’s Holiday

Singapore:

November 22 – Thanksgiving
December 25 – Christmas
January 1, 2013 – New Year’s Holiday

South Africa:

November 22 & 23 – Thanksgiving
December 17 – Day of Reconciliation
December 25 - Christmas
December 26 – Day of Goodwill
January 1, 2013 – New Year’s Holiday

Russia:

January 1-10 – New Year’s Holidays

United Kingdom:

November 22 & 23 – Thanksgiving
December 24, 25 & 26 – Christmas
January 1, 2013 – New Year’s Holiday

The dates listed above are subject to change. Be sure to check consular websites to confirm hours of operation and availability of visa services.

For information regarding foreign embassies and consulates in the United States, please visit http://www.state.gov/s/cpr/rls/dpl/32122.htm

For information regarding U.S. embassies and consulates abroad, please visit http://www.usembassy.gov/

Immigration Seminar: E-3 and Beyond: Immigration and Tax Issues Affecting Australians

Michael Hawkes — Wed, 14 Nov 2012 06:59:00 -0600

Gibney, Anthony & Flaherty, LLP in collaboration with the University of Adelaide Northeast USA Alumni Network cordially invite you to join us for this informative seminar to be held on:

NEW DATE: Tuesday, December 11, 2012 6:30 - 8:30 pm

Location:

Cornell Club - New York | 6 East 44th Street | New York, NY 10017

Topics for Discussion:

During this one-hour presentation and Q&A session, the panel will explore selected issues in U.S. immigration and tax law impacting Australians, including common work, travel and tax considerations for temporary visa holders and lawful permanent residents. Topics addressed will include:

Overview and comparison of the E-3 and H-1B visa categories;
Paths to permanent residence; and,
U.S. tax obligations for foreign nationals.

Please RSVP by email to Silvia Schwartz at neusa.network@gmail.com

Speakers will include:

Claire Razzolini, Partner
Rosanna Fox, Associate
Kiera LoBreglio, Associate
Meredith Mazzolo, Associate

Immigration Alert: December 2012 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 08 Nov 2012 11:19:20 -0600

The U.S. Department of State (“DOS”) has published the December 2012 Visa Bulletin.

The priority cut-off date in the employment-based, second preference (EB-2) category for Chinese nationals advanced to October 22, 2007. However, the priority cut-off date for Indian nationals in the EB-2 category remains unchanged from last month, at September 1, 2004. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates in the EB-2 category for all nationalities other than China and India remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The priority cut-off date for Chinese nationals in the employment-based third preference (EB-3) category advanced to July 1, 2006. The priority cut-off dates for all other nationalities in the EB-3 professional/skilled worker category have advanced slightly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1)

All foreign nationals: Current

Employment-based, second preference (EB-2):

Worldwide: Current
China: October 22, 2007
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional / skilled workers:

Worldwide: December 22, 2006
China: July 1, 2006
India: November 1, 2002
Mexico: December 22, 2006
Philippines: August 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: December 22, 2006
China: July 1, 2003
India: November 1, 2002
Mexico: December 22, 2006
Philippines: August 15, 2006

The full text of the December 2012 Visa Bulletin is available at: http://www.travel.state.gov/visa/bulletin/bulletin_5803.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com

Immigration Webinar: Compliant or Criminal? Why Good Intentions May Not Be Enough in Immigration Worksite Investigations

Michael Hawkes — Thu, 18 Oct 2012 06:51:02 -0500

Gibney, Anthony & Flaherty, LLP invites you to join us for this informative webinar held on
Wednesday, November 14, 2012 | 2:00 p.m. EST / 11:00 a.m. PST.

Topics for Discussion

Penalties and how to avoid them
I-9 management protocols
Selecting an I-9 management system: manual vs. electronic
Reverification
Who needs I-9s: handling remote employees, telecommuters, contractors
Avoiding document abuse and discrimination
Principles of self-audits and how you can lawfully make corrections
How to manage onsite I-9 and FDNS audits/inspections to your best advantage
Updates on new Form I-9 and E-Verify

Please click here to register: http://goo.gl/epNQH

Speakers include:

Judi McManigal, Senior Counsel
Trisha Yukawa, Partner
Houman Afshar, Associate
Inez Iraldo, Associate

Immigration Webinar: Intracompany Transfers: Identifying U.S. and Global Immigration Trends

Michael Hawkes — Tue, 16 Oct 2012 14:52:56 -0500

On November 2, 2012, the Northern California Human Resources Association (NCHRA) will host a webinar entitled "Intracompany Transfers: Identifying U.S. and Global Immigration Trends." Gibney attorneys Deborah Davy, Monica Kim and Minal Shah will discuss current trends in immigration and changing government regulations impacting the international transfer of corporate personnel to key destinations in the Americas, EMEA and APAC. Topics include evolving adjudication policies and visas for intra-company transferees to the United States, Canada, the United Kingdom, Ireland, Germany, Japan, and South Korea, as well as an overview of the general provisions for China, India, Argentina and Australia. The webinar will begin at 11am PST/2pm EST. For more information, please visit NCHRA or contact Gibney at info@gibney.com.

Immigration Alert: November 2012 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 12 Oct 2012 13:05:03 -0500

The U.S. Department of State (“DOS”) has published the November 2012 Visa Bulletin. Priority cut-off dates in the employment-based, second preference (EB-2) category for all nationalities other than China and India are now “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The priority cut-off date for Chinese nationals in the EB-2 category advanced slightly, to September 1, 2007 and the EB-2 cut-off date for Indian nationals is unchanged from last month, at September 1, 2004.

The priority cut-off dates for all nationalities in the employment-based, third preference category (EB-3) have advanced slightly.

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1)

All foreign nationals: Current

Employment-based, second preference (EB-2):

Worldwide: Current
China: September 1, 2007
India: September 1, 2004
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional / skilled workers:

Worldwide: November 22, 2006
China: April 15, 2006
India: October 22, 2002
Mexico: November 22, 2006
Philippines: August 8, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 22, 2006
China: July 1, 2003
India: October 22, 2002
Mexico: November 22, 2006
Philippines: August 8, 2006

The full text of the November 2012 Visa Bulletin is available at: http://www.travel.state.gov/visa/bulletin/bulletin_5779.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com

Immigration Alert: Taiwan Included in Visa Waiver Program

Michael Hawkes — Tue, 09 Oct 2012 07:10:31 -0500

The U.S. Department of Homeland Security announced today that Taiwanese nationals will be eligible for participation in the Visa Waiver Program (“VWP”) beginning on November 1, 2012. Taiwan will join thirty-six current country participants in the VWP, a program which allows eligible visitors to enter the U.S. without a visa for up to 90 days.

For more information regarding the VWP, restrictions and requirements, please visit the U.S. Department of State website at http://travel.state.gov/visa/temp/without/without_1990.html or email immigrationalerts@gibney.com.

Immigration Alert: New Filing Option for Canadian TN Applicants

Michael Hawkes — Tue, 09 Oct 2012 07:07:59 -0500

U.S. Citizenship and Immigration Services (USCIS) is now accepting I-129 nonimmigrant worker petitions filed on behalf of Canadian citizens outside the U.S. who are seeking TN classification under the North American Free Trade Agreement. Previously, Canadian citizens outside the U.S. were required to make the application directly 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.

Please contact a Gibney representative or email immigrationalerts@gibney.com if you have any questions regarding this announcement.

Immigration Alert: Reminders for H-1Bs with October 1, 2012 Start Date

Michael Hawkes — Tue, 02 Oct 2012 09:50:53 -0500

H-1B petitions for Fiscal Year 2013 take effect on or after October 1, 2012.

Change of Status Filings:

For H-1B Cap petitions that were filed as “change of status” effective October 1, 2012, the beneficiary’s status will change from the current nonimmigrant status to H-1B on October 1, 2012, if the beneficiary:

Was physically present in the U.S. for the entire period from the date the petition was receipted by USCIS through the date the application was approved; and
Is physically present in the U.S. on October 1, 2012 for the change of status to take effect.

After October 1, 2012, if the beneficiary departs the U.S., s/he must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in H-1B status. Most U.S. Consulates require a personal interview to apply for a visa, and most require 4 to 6 weeks to schedule an interview. Actual visa processing times vary by Consulate. The beneficiary is advised to check the website of the Consulate they intend to visit for further information relating to the scheduling of an interview and visa processing information.

Consular Notification Filings:

For H-1B Cap petitions that were filed as “consular notification” effective October 1, 2012, the beneficiary’s status will not change from the current nonimmigrant status to H-1B without further action. In order to activate H-1B status, the beneficiary must depart the U.S., obtain an H-1B visa at a U.S. Consulate abroad, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S.

Taxes for F-1 and J-1: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, please note that once an F-1 or J-1 changes status to H-1B, they will no longer be exempt from FICA tax.

As previously reported, the H-1B cap has been reached for fiscal year 2013, which runs from October 1, 2012 to September 30, 2013. On April 1, 2013, USCIS will begin accepting new applications for fiscal year 2014, which runs from October 1, 2013 to September 30, 2014.

Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement.

Immigration Alert: CBP Planning to Eliminate Issuance of Form I-94

Michael Hawkes — Mon, 01 Oct 2012 14:19:42 -0500

U.S. Customs and Border Protection (CBP) recently made its first official remarks that it plans to eliminate paper Form I-94 Arrival/Departure Records issued to many foreign nationals upon entry into the United States. In a recent Travel Update posted on its website, CBP provided that it is “exploring automating the [I-94 process] to allow for the collection of arrival/departure information electronically.” This automated process will be recognizable to travelers who have entered the United States under the Visa Waiver Program since summer 2010, when CBP stopped issuing paper Forms I-94W to such travelers. Under CBP’s proposed new process, instead of a paper I-94, all nonimmigrant travelers will receive an entry stamp in their passport annotating status (e.g., H-1B, L-1) and the period of authorized stay.

At this time, CBP has announced no timeline for the elimination of paper I-94s. Indeed, recent contact with local CBP offices has confirmed that no changes have been implemented. All non-citizen and non-permanent resident travelers to the United States should still be issued a Form I-94 upon entry; if an I-94 is not issued, the traveler should contact the local CBP Deferred Inspection office to obtain an I-94 card as proof of lawful immigration status.

While CBP is hailing the elimination of paper I-94 cards as a means to increase efficiency and decrease costs for its own agency, this is a radical change that will impact foreign nationals, their employers and schools, and other government agencies at all levels. For example, I-94 cards are frequently presented to employers as proof of U.S. work authorization as part of the I-9 and E-Verify processes. Similarly, the Social Security Administration generally requires a foreign national to present an I-94 card when applying for a Social Security Number, and U.S. Citizenship and Immigration Services requires I-94 information when applying for a multitude of immigration benefits. In addition, state Departments of Motor Vehicles also use the I-94 as proof of status for issuance of drivers’ licenses, and other state agencies require similar I-94 data for all kinds of state-issued benefits. Following the I-94’s eventual elimination, laws and regulations will need to be changed, forms and processes revised, and stakeholders re-educated about what is required to demonstrate valid immigration status in the United States.

The proposed elimination of paper I-94 arrival/departure cards is a developing matter, and there are currently few details concerning how the plan will be rolled-out across U.S. ports of entry. Equally, there is little information about how other government agencies are planning to adapt to the proposed I-94 automation. Gibney will continue to monitor this situation, and will provide periodic updates. Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement, or for any questions concerning Form I-94.

Immigration Alert: 2014 Diversity Visa Lottery

Michael Hawkes — Mon, 01 Oct 2012 07:18:00 -0500

1) What: The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2014 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

2) When: The U.S. Department of State will accept applications for the 2014 diversity lottery between noon Eastern Daylight Time (EDT) on Tuesday, October 2, 2012, and noon Eastern Daylight Time (EDT) on Saturday, November 3, 2012.

3) Who: In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

a) Nationalities: No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2014 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Natives of Guatemala are now eligible.

Nationality is defined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on their country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a country whose natives are eligible to apply, may apply provided the spouse is eligible. Second, a foreign national is eligible to apply who was born in a country whose natives are ineligible to apply if neither of their parents was born in or resided in that country at the time of the foreign national’s birth.

b) Education/Work: In order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years training or experience.

4) How: Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s website: http://www.dvlottery.state.gov. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery.

A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the State Department’s website. Note: each spouse may submit their own application if they otherwise qualify. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

Winners of the lottery will be selected in a computerized random process. After entering the lottery, it is critical to safeguard the confirmation page as that will be the only way to check the status of a diversity lottery application. As of May 1, 2013, applicants may use the number from their confirmation page to view the Entry Status Check section of the E-DV website at www.dvlottery.state.gov to see whether their lottery application has been selected. This is an important change from prior years when the U.S. Department of State mailed winning applicants notification letters and instructions. This year, winners will not receive anything in the mail and must retain their confirmation page in order to check their application’s status on the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. Rather, selected individuals (and their dependents) are deemed eligible to apply for lawful permanent resident status. In order to become a permanent resident of the U.S., a lottery winner’s application for permanent residence must be filed and approved between October 1, 2013 and September 30, 2014. The permanent residence application may be filed either via adjustment of status (the foreign national must be in the U.S. in a valid nonimmigrant status) or via consular processing.

More lottery winners are selected than there are immigrant visas available because it is presumed that some winners will not be eligible to become permanent residents of the U.S. Hence, some winners of the lottery may ultimately be unable to become permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

5) More Information: Instructions for filing an application for the 2014 Diversity Visa Lottery, and information regarding photograph specifications, may be obtained from the U.S. Department of State’s website: http://travel.state.gov/pdf/DV_2014_Instructions.pdf.

Immigration Alert: North Carolina E-Verify Law Effective October 1, 2012

Michael Hawkes — Wed, 26 Sep 2012 08:02:48 -0500

Beginning Monday, October 1, 2012, all North Carolina employers with 500 or more employees are required to register for and utilize E-Verify, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration. Following their enrollment in E-Verify, employers in North Carolina must use the online system to verify the employment authorization of all newly hired employees. As a reminder, existing employees should not be verified, unless the employer is a federal contractor subject to the FAR E-Verify clause.

Smaller employers in North Carolina should be aware that October 1 marks the first step in a three-tiered rollout of the law, and that additional employers will soon be required to comply. Effective January 1, 2013, employers with 100 or more employees will be required to use E-Verify; and effective July 1, 2013, employers with 25 or more employees will be required to use the online system to check work authorization for all new hires. Further information about E-Verify compliance in North Carolina may be found on the website of the NC Department of Labor.

Seventeen (17) states now have laws related to the mandatory use of E-Verify for some or all employers. Given that cities, counties, and other jurisdictions are also enacting similar measures, it is critical for employers to be mindful of this complex patchwork of laws, and to develop strategies to ensure compliance in all employment matters.

Immigration Partner to Speak at Immigration Conference in London

Michael Hawkes — Fri, 21 Sep 2012 06:57:35 -0500

On Wednesday, September 26, 2012, Immigration Partner Claire Razzolini will speak at “Immigration and Identity,” a conference held by BritishAmerican Business Inc. and Magrath LLP.

The conference focuses on balancing practical immigration policies with the need to create a pro-market environment for businesses in the United States and the United Kingdom.

For more information or to RSVP for attendance please visit: http://www.babinc.org/events/539.

Global Immigration Alert - Russia: Bilateral Agreement Between the U.S. and Russia Facilitates Travel

Michael Hawkes — Fri, 14 Sep 2012 07:19:22 -0500

On September 9, 2012, the Russian Federation and the United States entered into a Bilateral Agreement to strengthen ties between the two countries and facilitate travel. Once implemented, the agreement will simplify the visa process for U.S. and Russian nationals requiring a business, private, humanitarian, or tourist visa. Specific procedures for U.S. travelers to Russia will be implemented after Russia’s Federal Migration Service instructs the Consulates and Diplomatic posts on the new procedures. Key changes impacting travelers to Russia are expected to include:

Visas should be issued within a period of time not to exceed 15 calendar days. In urgent cases, visas may be issued within a period of time not exceeding 3 business days.
Multiple entry visas may be valid for up to 3 years and the maximum period of stay in Russia will be extended from 3 months to 6 months.
An official invitation issued by the Russian Ministry of Foreign Affairs or the Federal Migration Service will no longer be required for business visitors. Tourist visa applicants will still be required to provide hotel reservations and arrangement with a tour operator. However, the Consulate will have the right to require supporting documentation confirming the purpose of trip and whether the foreign national as sufficient funds to cover expenses.
If a passport is lost in Russia, it will be possible to leave the country without an exit visa, provided an identification document is issued by the correspondent Consulate or Diplomatic post.
It will be possible to file visa applications at Consulates or Diplomatic posts of Russia or the U.S. located in a country different from the country of citizenship or permanent residence.

Gibney will continue to monitor implementation of this agreement and its impact on travellers. For more information about the agreement and its impact on travel to the U.S., please visit the U.S. Department of State website at http://www.state.gov/r/pa/prs/ps/2012/09/197476.htm.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

Immigration Alert: New U.S. Visa Processing System Announced for India

Michael Hawkes — Wed, 12 Sep 2012 14:11:26 -0500

On September 5, 2012, the United States Embassy in India announced planned implementation of a new visa processing system to standardize procedures and simplify fee payments and appointment scheduling utilizing a new website.

Beginning September 26, 2012, U.S. visa applicants will be able to pay application fees via Electronic Funds Transfer (EFT) with their mobile phones or at more than 1,800 Axis bank branches located throughout India. The new system will also allow applicants to schedule their appointment online or by phone and will permit the scheduling of group and emergency appointments. Companies and travel agents will also be allowed to purchase multiple fee receipts for group travel.

Under the new system, applicants will be required to schedule two appointments, the first appointment with an Offsite Facilitation Center (OFC) to provide biographic data, and the second appointment with a U.S. Consulate in India for a visa interview. Prior to visa interview, applicants will be required to visit an OFC to submit their fingerprints and a photograph. Most applicants will only be required to visit an OFC once. OFCs are located in Delhi, Chennai, Hyderabad, Kolkata and Mumbai and are separate from U.S. Consular facilities located throughout India. It is intended that the OFC will serve to reduce congestion and thereby speed applicant visa processing by capturing biographic data in advance of the visa appointment.

The new system also offers visa applicants the opportunity to have questions answered via telephone, email, or online chat. Call center agents in Noida and Hyderabad will answer questions in Hindi, English, Punjabi, Gujarati, Tamil, and Telugu, and will be available 8:00 AM to 8:00 PM Monday through Friday, and 9:00 AM to 6:00 PM on Sunday. To reach a call center in India, an applicant may call (91-120) 660-2222 or (91-22) 6720-9400 from India or 1-310-616-5424 from the United States. Applicants may also email inquiries in English or Hindi to supportindia@ustraveldocs.com, and may chat with agents directly at www.ustraveldocs.com/in during call center hours.

The new processing improvements will also affect the delivery of documents. The new system mandates that passports, visas, immigrant visa packets and other documents be delivered within one week to document pick-up locations across India, at no charge to the applicant. Applicants will be asked to choose one delivery location (from 33 available locations) when they schedule their appointments. Using the new website, applicants may track the progress of their visa application and may obtain notification via email or SMS when their documents are ready for retrieval.

If you have any questions regarding this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: October 2012 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 12 Sep 2012 07:00:24 -0500

The U.S. Department of State (DOS) has published the October 2012 Visa Bulletin, the first of Fiscal Year (FY) 2013. Priority cut-off dates in the employment-based, second preference (EB-2) for all nationalities other than China and India advanced substantially, to January 1, 2012. It is predicted that this category might become “current” within the next few months. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

With the start of FY2013, immigrant visa numbers for Chinese and Indian nationals in the EB-2 category are now available, with Indian nationals having a priority cut-off date of September 1, 2004 and Chinese nationals having a cut-off date of July 15, 2007. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The advancement of priority dates for Indian nationals was less than previously anticipated and this category is not projected to advance substantially over the course of FY2013.

The priority cut-off dates for all nationalities in the employment-based, third preference category (EB-3) have advanced slightly.

With respect to Department of State Visa Office predictions related to the advancement of priority dates generally, it should be noted that such predictions are not assurances or guarantees, as visa availability from month to month is determined by usage across the various categories throughout the year, and adjusted by the Department of State accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1)

All foreign nationals: Current

Employment-based, second preference (EB-2):

Worldwide: January 1, 2012
China: July 15, 2007
India: September 1, 2004
Mexico: January 1, 2012
Philippines: January 1, 2012

Employment-based, third preference (EB-3) professional / skilled workers:

Worldwide: October 22, 2006
China: February 8, 2006
India: October 15, 2002
Mexico: October 22, 2006
Philippines: August 1, 2006

Employment-based third preference (EB-3) "other" workers:

Worldwide: October 22, 2006
China: June 22, 2003
India: October 15, 2002
Mexico: October 22, 2006
Philippines: August 1, 2006

The full text of the October 2012 Visa Bulletin is available at:
http://travel.state.gov/visa/bulletin/bulletin_5770.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Gibney Immigration Practice Sponsors Webinar on Family Immigration & Talent Mobility

Michael Hawkes — Fri, 07 Sep 2012 09:10:00 -0500

On Tuesday, September 11, 2012, at 2:00pm EDT, attorneys from Gibney’s Immigration Practice Group will speak at a webinar entitled, “Linking Family Immigration and Support to Talent Mobility.” The webinar is hosted by the Worldwide Employee Relocation Council and is sponsored by Gibney, Anthony & Flaherty, LLP.

Topics to be discussed include:

The definition of family in the U.S. and abroad
Rights & restrictions for accompanying individuals
Challenges for families facing transition
Benefits of supporting the spouses / partner in transition
Other issues confronting families

Gibney’s speakers will include:

Stephen Maltby, Partner
Amy McCoy, Partner
Deborah Davy, Senior Counsel
Filomena Lepore, Associate

Please click here for more information or to register for the webinar.

This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: New E Visa Procedures for Italy

Michael Hawkes — Mon, 20 Aug 2012 12:38:13 -0500

The U.S. Diplomatic Mission to Italy has implemented new E visa submission procedures, which became effective on August 15, 2012. The new procedures significantly streamline the application process for employers who regularly transfer employees to work in the United States in E status, and for certain E visa holders seeking a renewal of their existing E visa.

Italian employers are reminded that all E visa applications in Italy are processed through the U.S. Embassy in Rome. The new submission procedures differ based upon whether the application is for a First Time Applicant, a Visa Renewal or an Additional Applicant to an Already Established E Visa Enterprise.

First-Time Visa Applicants

The submission procedures for first-time E visa applications have not changed. Applicants must submit the E Visa Application Packet in its entirety, including the original receipt of processing fee, to the Embassy via Mailboxes Etc. Upon receipt, the Embassy will review the application for completeness and will schedule an interview directly. The Embassy has advised that a minimum processing time of 28 calendar days is required before an interview appointment will be scheduled. All first-time E visa applicants must appear for an in-person interview.

Visa Renewal Applicants

Under the new schema, certain applicants for visa renewal are no longer required to appear for an interview at the Embassy. Such applicants are permitted to apply for their new E visa simply by mailing an abbreviated packet of E visa application documents, including the original receipt of processing fee, to the Embassy via Mailboxes Etc.

A visa renewal applicant is not required to appear for an interview if the:

Applicant is a citizen or permanent resident of Italy, currently present in Italy;
Applicant’s ten fingerprints were captured at a prior consular interview;
Applicant’s previous visa is currently valid, or expired within the last twelve months;
Applicant is applying for the same type of visa as the current/previous visa; and
Applicant’s current/previous visa does not have a “Clearance Received” annotation.

Visa renewal applicants who do not meet these criteria are required to schedule an interview with the Call Center directly, and must bring the abbreviated packet of E visa application documents, including the original receipt of processing fee, to their interview at the Embassy.

Additional Applicants to an Already Established E Visa Enterprise

An already established E visa enterprise is a company whose employees have been issued E visas within the past five years. First-time applicants applying for an E visa to work for such an enterprise are permitted to submit an abbreviated packet of E visa application documents to the Embassy via email as a PDF attachment. After having submitted the required documents via email, applicants may schedule an interview with the Call Center directly. Applicants must then bring their original receipt of processing fee to their interview.

In addition to implementing these new procedures, the Embassy has advised that the size of an E Visa Application Packet cannot exceed 40 pages. Companies submitting applications for multiple employees are also advised to submit only one E Visa Application Packet for all applicants, not to exceed 40 pages.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: U.S. CBP Launches Group ESTA Registration

Michael Hawkes — Wed, 15 Aug 2012 07:45:38 -0500

On August 15, 2012, U.S. Customs and Border Protection (CBP) will release an updated Electronic System for Travel Authorization (ESTA) web application that will enable groups of eligible nationals of the 36 Visa Waiver Program (VWP) designated countries to submit and pay for up to 50 ESTA applications in a single online transaction. This new system will streamline the mandatory travel authorization process for families and groups of VWP eligible nationals who were previously required to submit individual applications for each traveler in a separate transaction. Using the new system, such travelers will be able to create a single Group ID by entering the biographic data and email address of each applicant, and submit all applications together with a single credit or debit card payment. Although ESTA applications may be submitted any time prior to U.S. travel under the VWP, CBP still recommends applying at least 72 hours prior to departure to ensure smooth processing.

Additional information is available at Electronic System for Travel Authorization. For a list of VWP designated countries, please visit Visa Waiver Program. For additional information, please contact your designated Gibney representative or email immigrationalerts@gibney.com

Immigration Alert: September 2012 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 15 Aug 2012 07:35:46 -0500

The U.S. Department of State (DOS) has published the September 2012 Visa Bulletin. Immigrant visa numbers in the employment-based, second preference (EB-2) for all nationalities other than China and India remain unchanged with a priority cut-off date of January 1, 2009. Immigrant visa numbers for Chinese and Indian nationals in the EB-2 category continue to be unavailable, and are expected to be so for the duration of Fiscal Year (FY) 2012 (i.e., through September 30, 2012).

In contrast, the cut-off priority dates for all nationalities in the employment-based, third preference category (EB-3) have advanced slightly.

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1)

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: January 1, 2009
China: Unavailable
India: Unavailable
Mexico: January 1, 2009
Philippines: January 1, 2009

Employment-based, third preference (EB-3) professional / skilled workers:

Worldwide: October 1, 2006
China: December 15, 2005
India: October 8, 2002
Mexico: October 1, 2006
Philippines: August 1, 2006

Employment-based third preference (EB-3) "other" workers:

Worldwide: October 1, 2006
China: June 22, 2003
India: October 8, 2002
Mexico: October 1, 2006
Philippines: August 1, 2006

The full text of the September 2012 Visa Bulletin is available at:
http://www.travel.state.gov/visa/bulletin/bulletin_5759.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Gibney IP Team Secures a $46.2 Million Judgment in Trademark Counterfeiting Case Against Domestic Infringers

Michael Hawkes — Wed, 25 Jul 2012 13:14:03 -0500

Gibney’s Intellectual Property department has obtained a monumental $44 Million summary judgment on behalf of client, Coach, Inc. Coach received the maximum damages allowed for each of 22 instances of willful trademark counterfeiting by defendants Linda and Courtney Allen of Syosset, NY. Also, Coach secured a $2.2 Million default judgment against a third defendant, John Vanasco. The defendants were selling counterfeit Coach handbags and accessories through their websites and online auction platforms. Judge McMahon has sent a clear message to counterfeiters that their illegal acts will not go unpunished.

For more information please see the articles listed below:

Immigration Alert: August 2012 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 11 Jul 2012 09:04:00 -0500

The U.S. Department of State (DOS) has published the August 2012 Visa Bulletin. Immigrant visa numbers in the employment-based, second preference (EB-2) for all nationalities other than China and India remain unchanged with a priority cut-off date of January 1, 2009. Immigrant visa numbers for Chinese and Indian nationals in the EB-2 category continue to be unavailable, and are expected to be so for the duration of Fiscal Year (FY) 2012 (i.e., through September 30, 2012).

In contrast, the cut-off priority dates for all nationalities in the employment-based, third preference category (EB-3) have advanced slightly.

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1)

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: January 1, 2009
China: Unavailable
India: Unavailable
Mexico: January 1, 2009
Philippines: January 1, 2009

Employment-based, third preference (EB-3) professional / skilled workers:

Worldwide: September 8, 2006
China: November 8, 2005
India: October 1, 2002
Mexico: September 8, 2006
Philippines: June 15, 2006

Employment-based third preference (EB-3) "other" workers:

Worldwide: September 8, 2006
China: June 15, 2003
India: October 1, 2002
Mexico: September 8, 2006
Philippines: June 8, 2006

The full text of the August 2012 Visa Bulletin is available at: http://www.travel.state.gov/visa/bulletin/bulletin_5749.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: Dun & Bradstreet - Effects on Immigration Petitions

Michael Hawkes — Thu, 05 Jul 2012 13:24:57 -0500

As part of increased efforts to uncover fraud when adjudicating petitions, U.S. Citizenship and Immigration Services (USCIS) utilizes the Validation Instrument for Business Enterprises (VIBE) database to verify company information as reported in petitions. VIBE obtains company data from Dun & Bradstreet for this purpose, to confirm the following:

Business activities, such as type of business (North American Industry Classification System/NAICS code), trade payment information, and status (active or inactive);
Financial standing, including sales volume and credit standing;
Number of employees, both on-site and globally;
Relationships with other entities, including foreign affiliates;
Type of office (single entities, branches, subsidiaries and headquarters);
Type of legal entity (LLC, partnership or corporation);
Company executives;
Date of establishment as a business entity; and,
Current physical address.

Should USCIS determine that the information in VIBE is inconsistent with the information provided on the petition, it may issue a Request for Evidence or a Notice of Intent to Deny, thereby delaying adjudication of the petition. To avoid such delays, companies may visit the Dun & Bradstreet website, create an account using the iUpdate link, and then review and edit company data as needed.

U.S.-based privately held companies may contact Dun & Bradstreet directly through its new streamlined process for USCIS petitioners and other U.S. government customers at http://fedgov.dnb.com/webform. Contacting Dun & Bradstreet from this link will allow petitioning companies and organizations to create, update and view basic elements of their Dun & Bradstreet report without being subjected to direct marketing from the company.

U.S.-based publicly traded companies, government entities, and foreign companies wishing to create, update or view their report with Dun & Bradstreet may use www.dnb.com; however, they may be subjected to direct marketing from Dun & Bradstreet.

Newer companies may not yet have information in the Dun & Bradstreet system, and may wish to use the iUpdate link to request a 9-digit number, known as a D-U-N-S number, to begin the process.

There is no fee to create, check or update a record for a company or organization with Dun & Bradstreet.

USCIS does not require employers to have a Dun & Bradstreet number, nor does it require that a company’s information be in the Dun & Bradstreet system. However, such practices may help to avoid USCIS delays in adjudicating petitions.

Information concerning USCIS and VIBE is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=521d735652f9d210VgnVCM100000082ca60aRCRD&vgnextchannel=521d735652f9d210VgnVCM100000082ca60aRCRD.

For additional information, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Global Immigration Alert: Japan - New Residence Management System Effective July 9, 2012

Michael Hawkes — Mon, 02 Jul 2012 13:21:46 -0500

The Japanese Immigration Bureau is implementing a number of changes to the Immigration Control and Refugee Recognition Act, originally enacted in July 2009. As of July 9, 2012, the new resident management system will apply to all foreign nationals residing in Japan who hold resident status. Major procedural changes will affect the Alien Registration Card (ARC) and re-entry permits.

Under the new system, the Alien Registration Card will no longer be issued. The ARC will be replaced by the Zairyu Card, which will be issued to all foreign nationals granted a stay of more than three months. Zairyu Cards will be issued at the port of entry at Narita, Haneda, Chubu, and Kansai Airports only. Foreign nationals entering at other airports will receive their Zairyu Card by mail. The current requirement to register with the local municipal office within 90 days will be abolished. However, Zairyu Card holders will be required to report their residential address to the local municipal office within 14 days of arrival in Japan. Zairyu Cards will be valid for the duration of the underlying entry visa.

Zairyu Cards will include the holder’s name, residential address, visa type, and expiration date and must be carried at all times as proof of identity and legal immigration status. Any change in circumstances, including change in name, address, nationality, marital status, or employment, must be reported to the Immigration Bureau within 14 days.

Current ARC holders are expected to have the Zairyu Card issued at the time of extending their current resident status. Permanent Residents are expected to make arrangements to visit the Immigration Bureau within three years of the introduction of the new card to request a Zairyu Card.

Zairyu Cards will not apply to foreign nationals granted permission to stay for three months or less in Japan nor to foreign nationals granted temporary visitor status, diplomat or official status, special permanent residents, and persons with no resident status.

Re-entry permits will no longer be required if re-entry to Japan is made within one year of departure. Under the prior system, foreign nationals were required to hold a re-entry permit if they travelled outside of Japan for any period. Under the new re-entry permit regulations, the re-entry permit validity will be extended from three to five years. If a foreign national travels outside of Japan for more than one year without first obtaining a re-entry permit, it will be necessary to apply for a new Certificate of Eligibility and entry visa prior to returning to Japan in employment-authorized status.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP or email immigrationalerts@gibney.com.

Immigration Alert: H-1B Cap Reached June 11, 2012

Michael Hawkes — Tue, 12 Jun 2012 13:42:28 -0500

Today United States Citizenship and Immigration Services (USCIS) announced that on June 11, 2012 it received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year (FY) 2013 (October 1, 2012 to September 30, 2013). The H-1B Master’s Cap was reached on June 7, 2012. Petitions properly submitted as Master’s Cap petitions after June 7, 2012 were automatically converted to Regular Cap submissions. All cap-subject H-1B petitions – Regular or Master’s Cap - received after June 11, 2012 will be rejected.

USCIS will begin accepting new H-1B petitions on April 1, 2013 for FY 2014 (October 1, 2013 to September 30, 2014). Gibney will work with clients to explore alternatives and options for employees unable to obtain H-1B petitions during the remainder of FY 2013.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: July 2012 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 12 Jun 2012 13:36:00 -0500

The U.S. Department of State (DOS) has published the July 2012 Visa Bulletin. Due to continuing high demand, immigrant visa numbers in the employment-based, second preference category (EB-2) for all nationalities other than China and India have retrogressed to a priority cut-off date of January 1, 2009. Immigrant visa numbers for Chinese and Indian nationals in the EB-2 category remain unavailable, and are expected to remain so for the duration of Fiscal Year (FY) 2012 (i.e., through September 30, 2012).

In contrast, the cut-off priority dates for all nationalities in the employment-based, third preference category (EB-3) have advanced slightly.

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: January 1, 2009
China: Unavailable
India: Unavailable
Mexico: January 1, 2009
Philippines: January 1, 2009

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: July 22, 2006
China: September 22, 2005
India: September 22, 2002
Mexico: July 22, 2006
Philippines: June 8, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: July 22, 2006
China: June 15, 2003
India: September 22, 2002
Mexico: July 22, 2006
Philippines: June 8, 2006

The full text of the July 2012 Visa Bulletin is available at:
http://www.travel.state.gov/visa/bulletin/bulletin_5733.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Global Immigration Alert: Canada - Closure of Buffalo Visa Office and Restructuring of North American Processing Network

Michael Hawkes — Fri, 08 Jun 2012 14:17:46 -0500

On May 29, 2012, Citizenship and Immigration Canada (CIC) closed the visa section of the Canadian Consulate General in Buffalo, resulting in the reassignment of all permanent and temporary resident applications to other visa offices in the United States. The intent of the restructuring is to streamline processing times and improve efficiencies.

All new employer-sponsored permanent residence applications should be submitted to the Centralized Intake Office in Sydney, Nova Scotia. The family-based application process will remain the same, with applications submitted to the Case Processing Center in Mississauga, Ontario. Pending applications in Buffalo have been transferred to the Case Processing Pilot Office in Ottawa. All applicants will be contacted by the newly assigned processing office.

Processing of temporary visas and permits will be allocated to the remaining visa offices in the United States: New York, Los Angeles, Detroit, Seattle, and Washington, D.C. The following is an overview of the re-structured U.S. visa office network. Applications for the temporary resident lines of business should now be filed at the following visa offices:

New York

Visitor Visa
Study Permit (U.S. Residents East of the Mississippi and Residents of Puerto Rico, Bermuda and St. Pierre et Miquelon)
Work Permit (U.S. Residents East of the Mississippi and Residents of Puerto Rico, Bermuda and St. Pierre et Miquelon)
Temporary Resident Permit (TRP)
Rehabilitation
Authority to Return to Canada (ARC)

Los Angeles

Visitor Visa
Study Permit (U.S. Residents West of the Mississippi)
Work Permit (U.S. Residents West of the Mississippi)
Temporary Resident Permit (TRP)
Rehabilitation
Authority to Return to Canada (ARC)

Washington, DC

Visitor Visa
Temporary Resident Permit (TRP)
Rehabilitation
Authority to Return to Canada (ARC)

Detroit

Visitor Visa
Temporary Resident Permit (TRP)
Rehabilitation
Authority to Return to Canada (ARC)

Seattle

Visitor Visa
Temporary Resident Permit (TRP)
Rehabilitation
Authority to Return to Canada (ARC)

We anticipate delays in application processing during the transition period. Service Canada has requested that applicants and their representatives minimize inquiries to the visa offices during this time.

For specific questions or legal advice please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP or email immigrationalerts@gibney.com.

Gibney Attorneys Present I-9 Compliance Workshop at the American Council on International Personnel (ACIP) Annual Symposium in Washington, DC

Michael Hawkes — Thu, 07 Jun 2012 12:12:00 -0500

Gibney attorneys gave a “dramatic” presentation at the Annual Symposium of the American Council on International Personnel in Washington, DC on June 7th. In a 5-act play written by Gibney’s Partner and Immigration Practice Group leader, Stephen Maltby, audience members learned the story of “Red Hot Apparel and the ICE Agent,” involving an I-9 compliance audit. Cast members included Gibney attorneys Aisling Ryan and David Johnson, as well as an ACIP Board Member and Staff. Learn about ACIP: www.acip.com

Gibney Immigration Partner Addresses New Zealand Expats

Michael Hawkes — Tue, 22 May 2012 12:09:00 -0500

Gibney Partner and Immigration Practice Group leader Stephen Maltby addressed a group of expatriates on May 22nd at an event hosted by Kea New Zealand Global Network event. Joined by an international tax expert from CTS Tax Advisors, presentation topics included pre-departure and arrival considerations, long term stays, and applying for U.S. citizenship. Learn about Kea New Zealand Global Network: www.keanewzealand.com/

Gibney Partner to Speak at Government Services Symposium

Michael Hawkes — Mon, 21 May 2012 09:55:33 -0500

Gibney Partner Lee Kinnally will join a panel of experts discussing the recently-enacted New York State Tax Levy Cap, which limits the annual increase of tax levies by local governments and school districts. The 2nd Annual Government Services Symposium will address public officials from counties, towns and villages and public school systems and will explore strategies for managing under the cap in these difficult economic times. The Symposium will be conducted on June 5th in Newburgh, NY and on June 7th in Tarrytown, NY. Click here for more information or to register.

Immigration Alert: June 2012 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 11 May 2012 14:50:00 -0500

The U.S. Department of State (DOS) has published the June 2012 Visa Bulletin. Due to continued high demand, immigrant visa numbers for Chinese and Indian nationals in the employment-based second preference category (EB-2) have become unavailable. DOS has stated that the EB-2 category will remain unavailable for China and India for the duration of Fiscal Year (FY) 2012 (i.e., through September 30, 2012), with visa numbers expected to become available again in October 2012. USCIS will continue to accept I-485 Applications to Adjust Status for Indian and Chinese nationals in the EB-2 category for the remainder of May, based on the originally announced May 2012 cut-off dates.

In contrast, the priority cut off dates for China and India in the employment-based, third preference (EB-3) category advanced slightly, to August 8, 2005 and September 15, 2002 respectively.

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

*DOS has projected that, based on the current rate of demand, it may be necessary to establish a cut-off date for the EB-1 category near the end of FY 2012 in order to limit usage within the annual numerical quota.

Employment-based, second preference (EB-2):

Worldwide: Current
China: Unavailable
India: Unavailable
Mexico: Current
Philippines: Current

*DOS has projected that, based on the current rate of demand, it may be necessary to establish a cut-off date for the EB-2 category for all countries other than China and India. Such action may occur at any time during the remaining months of FY 2012.

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: June 8, 2006
China: August 8, 2005
India: September 15, 2002
Mexico: June 8, 2006
Philippines: May 22, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: June 8, 2006
China: April 22, 2003
India: September 15, 2002
Mexico: June 8, 2006
Philippines: June 8, 2006

The full text of the June 2012 Visa Bulletin is available at:
http://travel.state.gov/visa/bulletin/bulletin_1360.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Global Immigration Alert: Canada - Introduction of Accelerated Labor Market Opinion Processing

Michael Hawkes — Tue, 01 May 2012 14:15:00 -0500

Human Resources and Skills Development Canada/Service Canada (HRSDC/Service Canada) implemented a new Accelerated Labor Market Opinion (A-LMO) initiative effective April 25, 2012. The initiative is aimed at improving efficiency by reducing processing times, streamlining the application process, and providing compliance guidelines.

By way of background, foreign nationals traveling to Canada for employment are required to obtain a work permit based on sponsorship by an employer in Canada. The procedure involves obtaining a Labor Market Opinion (LMO) from HRSDC/Service Canada after demonstrating there is no Canadian citizen or permanent resident available to fill the position. The A-LMO initiative specifically applies to employers hiring temporary foreign workers in higher skilled positions for management, professional and technical occupations, as classified under the National Occupational Classification (NOC) as skill type 0 and skill levels A and B.

Employers are eligible to participate in the A-LMO initiative if, within the last 2 years, they can demonstrate the following:

Filed a minimum of one (1) LMO;
Maintained a clean compliance record;
No infractions or serious complaints, and have not been the subject of an investigation; and,
No outstanding violations or contraventions under provincial laws governing employment and recruitment.

Applications under the A-LMO initiative may be submitted either on-line or as a paper application. Applications are assessed under the general eligibility criteria, including: genuineness of the job offer; the waged offered; and whether the job is likely to fill a labor shortage. If an employer meets all the eligibility criteria to participate in the A-LMO initiative and the position satisfies the general eligibility criteria, HRSDC/Service Canada may issue the A-LMO within 10 business days. This is a significant reduction in the processing time as the standard LMO takes 6 to 16 weeks.

As part of the A-LMO application, employers must provide consent to participate in a post-LMO compliance review. By consenting, employers agree to allow HRSDC/Service Canada to perform a compliance review of the positive A-LMO or any other positive LMO issued to the employer in the previous two years.

For specific questions or legal advice please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP or email immigrationalerts@gibney.com.

Immigration Alert: H-1B Cap Update

Tue, 24 Apr 2012 12:53:47 -0500

On April 24, 2012, U.S. Citizenship & Immigration Services (“USCIS”) announced that, as of April 20, 2012, approximately 25,000 H-1B cap-subject petitions were receipted. In addition, USCIS has received approximately 10,900 H-1B petitions for aliens with U.S. advanced degrees.
Accordingly, USCIS reported a total of 35,900 H-1B cap cases filed for Fiscal Year (FY) 2013, a marked increase from the last count of 30,300 only one week earlier.

As we reported previously, the rate of filings for April has increased dramatically for FY 2013 when compared to FY 2012. Employers considering filing cap-subject H-1B petitions are encouraged to expedite initiating cases so that they may be filed as soon as possible. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for FY 2013 (October 1, 2012 to September 30, 2013), and will not accept new cap-subject filings until April 1, 2013, for employment start dates of October 1, 2013.

By law, each year 65,000 visas are available for regular H-1B cap petitions. An additional 20,000 visas are made available for U.S. Master H-1B cap petitions (advanced degrees awarded at U.S. universities).

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: H-1B Cap Update

Michael Hawkes — Wed, 18 Apr 2012 13:58:59 -0500

U.S. Citizenship & Immigration Services (“USCIS”) announced that, as of April 13, 2012, approximately 20,600 H-1B cap-subject petitions were receipted. In addition, USCIS has received approximately 9,700 H-1B petitions for aliens with U.S. advanced degrees.
Accordingly, USCIS reported a total of 30,300 H-1B cap cases filed for Fiscal Year (FY) 2013, a marked increase from the last count of 25,600 only four days earlier.

The rate of filings for April has increased dramatically for FY 2013 when compared to FY 2012. Employers considering filing cap-subject H-1B petitions are encouraged to expedite initiating cases so that they may be filed as soon as possible. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for FY 2013 (October 1, 2012 to September 30, 2013), and will not accept new cap-subject filings until April 1, 2013, for employment start dates of October 1, 2013.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Gibney Attorney Speaks on J-1 Waivers and H-1Bs

Michael Hawkes — Wed, 18 Apr 2012 12:10:00 -0500

Gibney Immigration attorney Aisling Ryan was invited to speak at an April 18th gathering of New York area young professionals at the Irish Consulate. Ms. Ryan spoke on the subject of changing visa status from J-1 to H-1B, including the process for obtaining waiver of the 2-year home residence requirement imposed on some J-1 exchange visitors. Learn about the Irish Network NYC: http://irishnetwork-nyc.com/

Immigration Alert: H-1B Cap Update

Michael Hawkes — Tue, 10 Apr 2012 12:56:24 -0500

On April 9, 2012, U.S. Citizenship & Immigration Services (“USCIS”) announced that approximately 17,400 H-1B cap-subject petitions were receipted. In addition, they have received approximately 8,200 H-1B petitions for aliens with U.S. advanced degrees.

USCIS began accepting H-1B petitions for Fiscal Year 2013, which runs from October 1, 2012 to September 30, 2013, on April 2, 2012. According to USCIS, this is almost double the number of filings received by USCIS during this time last year.

By law, each year 65,000 visas are available for regular H-1B cap petitions. An additional 20,000 visas are made available for Master H-1B cap petitions (advanced degrees awarded at U.S. universities).

For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert at:
http://www.gibney.com/news/read/7499edbf4430340e0b6bf0dfb7c8c3fa4bba5e54. If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: CBP Proposes New Definition of Family Members Residing in Household

Michael Hawkes — Tue, 03 Apr 2012 08:15:11 -0500

On March 27, 2012, U.S. Customs and Border Protection (CBP) announced a proposal to expand the term “members of a family residing in one household” to allow more residents traveling together on their return to the United States to make a single family customs declaration for items acquired abroad. The proposed change would define “members of a family residing in one household” to include foster children, stepchildren, half-siblings, legal wards, other dependents, and individuals with an in loco parentis or guardianship relationship. The definition would also include two adults who are in a committed relationship including, but not limited to, long-term companions and couples in civil unions or domestic partnerships where the partners share financial assets and obligations, and are not married to or the partner of someone else. In addition, “members of a family residing in one household” would continue to encompass relationships of blood, adoption and marriage. The expanded definition would not extend to roommates or other cohabitants who do not meet these requirements.

The proposed changes would not alter the residency requirement for family household members which provides that the family members must live together in one household at their last permanent residence and must intend to live together in one household upon their arrival in the United States.

CBP maintains this proposed change more accurately reflects relationships between members of the public who are traveling together as a family. Moreover, CBP anticipates that the proposed change will reduce the amount of paperwork that CBP officers must review during the inspection process, and, therefore, will facilitate more efficient passenger processing.

Immigration Alert: Leglislation Introduced to Qualify Israeli Investors for E-2 Visas

Michael Hawkes — Tue, 03 Apr 2012 08:11:53 -0500

On February 9, 2012, Rep. Berman (D.-Calif.) introduced H.R. 3992, which would add Israel to the list of countries eligible to receive E-2 nonimmigrant visas as investors if Israel provides reciprocal nonimmigrant status to U.S. nationals in Israel. The bill was passed by a voice vote on February 28, 2012 by the House Judiciary committee, and was subsequently passed by the House of Representatives on March 19, 2012 by a vote of 371-0.

On May 9, 2011, a companion bill, S. 921, was introduced in the Senate by Sen. Schumer (D.-N.Y.), Sen. Kirk (R.-Ill.) and Sen. Kyl (R.-Ariz.). The Senate Judiciary committee has yet to consider the bill.

If enacted, both H.R. 3992 and S. 921 would permit Israeli nationals to obtain E-2 visas to develop and direct the operations of an enterprise in which an Israeli investor has invested or is actively in the process of investing, a substantial amount of capital.

Gibney will continue to monitor the status of this legislation and provide updates as they become available.

Immigration Alert: Fiscal Year 2013 H-1B Cap Now Open

Michael Hawkes — Mon, 02 Apr 2012 13:16:00 -0500

Today marks the beginning of the filing period for H-1B petitions subject to cap limits for the fiscal year (FY) 2013, which runs from October 1st, 2012 to September 30th, 2013.

The H-1B visa category is reserved for employer-sponsored “specialty” or “professional” occupations which require at least a Bachelor’s degree in a specialized field. The non-immigrant visa category has a limit of six (6) years, with the ability to extend if green card sponsorship is pursued.

By law, each year 65,000 visas are available for Regular H-1B cap petitions (Bachelor’s degrees). An additional 20,000 visas are made available for Master H-1B cap petitions (advanced degrees awarded at U.S. universities). If more than 65,000 Regular H-1B cap cases are received at the U.S. Citizenship and Immigration Services (USCIS) within the first five (5) business days of the FY (from April 2nd to 6th), USCIS provides for a lottery to determine which cases are selected. Master H-1B cap petitions will still continue to count against the 20,000 visa limit until it is reached.

The H-1B cap has not been reached in the first five (5) days since FY 2009. For example, in FY 2012, the H-1B Master’s cap was reached on October 21st, 2011, and the Regular H-1B cap was reached on November 22nd, 2011. However, as the number of cap petitions received by USCIS is unpredictable, it is recommended that employers file their cap-subject H-1B petitions on or as soon after April 2nd as possible in order to ensure inclusion in the FY2013 cap. Once the H-1B cap is met, the next possible time to file cap-subject H-1B petitions will be in FY 2014 (with filing starting April 1st, 2013 and an H-1B start date of October 1st, 2013 or later).

Immigration Alert: E-Verify Mandatory for Alabama Employers Beginning April 1, 2012

Michael Hawkes — Fri, 30 Mar 2012 13:42:44 -0500

Beginning April 1, 2012, all employers within the State of Alabama are required to register for and utilize E-Verify, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration. Use of the otherwise voluntary E-Verify system was made mandatory as part of the Beason-Hammon Alabama Taxpayer & Citizen Protection Act (H.B. 56), signed by Governor Robert Bentley in June 2011. Following their enrollment in E-Verify, employers in Alabama must use the online system to verify the employment authorization of all newly hired employees.

To assist smaller employers within the state, H.B. 56 also established the Alabama E-Verify Employer Agent Office to provide assistance to employers with 25 or fewer employees. In essence, the State has registered itself as an “employer agent” within the federal E-Verify system, and employers may elect to designate the State of Alabama to conduct the online employment eligibility verification process on their behalf. Further information about this program may be found on the website of the Alabama Department of Homeland Security.

Gibney IP Partner to Speak at USPTO Lecture Series

Michael Hawkes — Thu, 29 Mar 2012 10:49:04 -0500

The United States Patent & Trademark Office (USPTO) has invited Gibney Intellectual Property Partner, Angelo Mazza, to speak on April 12, 2012 in Alexandria, VA at a new lecture series designed for USPTO examining attorneys. Mr. Mazza, who specializes in trademark and internet enforcement, will join Assistant U.S. Attorney, John Zacharia of the Computer Crime & Intellectual Property Section (CCIPS) of the U.S. Department of Justice (DOJ) in addressing a group of several hundred examining attorneys invited to attend the lecture series.

Intellectual Property Attorney Michael Lee to Speak at Chicago Comic & Entertainment Expo

Michael Hawkes — Wed, 14 Mar 2012 15:44:15 -0500

Gibney Senior Counsel, Michael Lee will speak at the Chicago Comic and Entertainment Expo (C2E2) on Friday, April 13, 2012 from 2:30pm to 3:30pm. Mr. Lee will give a presentation entitled, The Legal Aspects of Becoming Famous: How to Protect Yourself and Your Creations.

This seminar will focus on:

Intellectual property protection basics
Overview of copyrights and trademarks
Overview of fair use
What to do if someone improperly uses your works

For further information on C2E2 please visit http://www.c2e2.com/

Gibney Immigration Attorney, Deborah Davy to Speak on Panel in New York

Michael Hawkes — Wed, 14 Mar 2012 15:41:45 -0500

On Tuesday, April 3, 2012, Gibney Senior Counsel, Deborah Davy, will speak on a panel at the New York “Totally Expat Show” held by the Forum for Expatriate Management (FEM). The panel discussion, running from 10:20 to 11:05am will center on current immigration compliance issues around the globe.

Topics:

Current trends in immigration compliance
Increased government enforcement globally
Conducting business and complying with immigration law

Gibney professionals will also be present in the show’s exhibit hall to answer questions about global mobility legal services including Expat Protection Planning.

Immigration Alert: April 2012 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 13 Mar 2012 11:39:07 -0500

The U.S. Department of State (DOS) has published the April 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category remained unchanged from last month’s bulletin. However, the priority cut off dates for China and India in the employment-based, third preference (EB-3) category advanced slightly, to March 1, 2005 and September 1, 2002 respectively. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 1, 2010
India: May 1, 2010
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: April 8, 2006
China: March 1, 2005
India: September 1, 2002
Mexico: April 8, 2006
Philippines: April 8, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: April 8, 2006
China: April 22, 2003
India: September 1, 2002
Mexico: April 8, 2006
Philippines: April 8, 2006

The full text of the April 2012 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5674.html#
If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Gibney Immigration Partner to Speak at Ontario - New York Legal Summit Examining Cross-Border Issues

Michael Hawkes — Fri, 09 Mar 2012 07:09:41 -0600

On March 28, 2012 Immigration Partner Claire Razzolini will co-moderate a panel discussion in Toronto at the Ontario – New York Legal Summit. The panel, entitled “Both Sides Now – An in Depth Examination of Selected Topics in Canada and US Immigration,” will discuss varying approaches to immigration in the United States and Canada on matters pertaining to the following:

Business visitors;
Work visas;
Permanent resident sponsorship and the impact of economic factors;
Inadmissibility issues;
Worksite enforcement; and
Current trends in policy and legislation

The Ontario – New York Legal Summit is an historic two-day event that will feature triple track programming in the areas of Commercial, Litigation and General Law. It is being held by the New York State Bar and Ontario Bar Associations in cooperation with the Law Society of Upper Canada. For more information please visit http://www.nysba.org/OBANYLegalSummit.

IP News: Gibney Partners to Speak at the Practicing Law Institute in New York on March 28th

Michael Hawkes — Thu, 08 Mar 2012 06:57:00 -0600

At a PLI workshop for IP practitioners on March 28th, Gibney Partners Brian Brokate and Angelo Mazza will be among faculty discussing criminal and civil IP enforcement programs and legal updates from the perspective of government and federal agencies, in-house brand counsel and outside private practitioners. The program will also discuss how these groups work together to undertake coordinated efforts.

Specific topics for the full-day event will include:

Current Government IP Enforcement Programs and Coordinating Enforcement Matters with Government Officials
Trademark, Patent, and Copyright Enforcement Updates
Practical Advice on Stopping Blatant Infringements
Ethics – Conflicts of Interest

Click here for more details or to register.

Global Immigration Alert - United Kingdom: London 2012 Olympic and Paralympic Games

Michael Hawkes — Wed, 07 Mar 2012 13:34:00 -0600

The 2012 Olympic Games in London is quickly approaching and will be the biggest event the UK has hosted. Specifically, the Olympics and Paralympics will run from the end of July until mid-September 2012. During this period it is expected that Central London will have to accommodate approximately 9 million Olympic Games spectators, 2 million Paralympic Games spectators and almost 300,000 athletes and their supporters, officials and media personnel.

Travel to the UK:

Individuals traveling to the UK for this main event as spectators are strongly urged to plan ahead and make travel arrangements as soon as possible. In preparation for your travel during this eventful Summer 2012 period to London, please note the following tips:

Find out if you need a visa to travel to the UK. If so, apply now to avoid any interruptions in UK visa processing that may hinder your travel.
Be sure your passport has ample validity for your upcoming travel.
Upon arrival, stay in family groups and have your travel documents and passports available and ready to present to the UK immigration officers.
Have landing cards fully completed and ready.
Use automatic e-passport gates (where available, if you have a ‘chipped’ passport).
Use the separate EEA/EU channel if you are a national of the EU or EEA.
Know what you can and cannot bring when traveling to the UK. Please see: http://www.ukba.homeoffice.gov.uk/customs-travel/customs/.

These pointers can help the entry process move along and keep delays to the minimum.

Please also note that there will be dedicated lanes set up at the UK Border for game officials, athletes, family members of athletes, coaches and media. These lanes are not for spectators as the entry process is different.

U.S. Visa Processing at the US Embassy in London:

The U.S. Embassy in London has advised that the Summer Olympics in London will have a significant impact on U.S. Non-Immigrant Visa (NIV) processing for all applicants applying for U.S visa stamps.

In preparation for the Olympics, the Embassy will begin concentrating its resources on U.S. Citizen services and has confirmed that there will be limited visa appointment availability during the months of July and August, with priority given to F and J student visa applications in advance of the fall school term. Because of this, the Embassy is encouraging all NIV applicants to apply for their visa stamps during the spring and early summer, or to wait to apply in the fall, as appointment availability cannot be guaranteed during the months of July and August.

As such, for any employee that may require a visa during this time, we would recommend that applicants plan ahead and apply early.

Immigration Alert: H-1B Filings for Fiscal Year 2013

Michael Hawkes — Wed, 07 Mar 2012 13:28:00 -0600

April 2, 2012 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2013 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Background

H-1B cap cases generally fall within two categories:

“Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 2 as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Potential beneficiaries who should be considered for H-1B status include, but are not limited to: potential new hires from overseas, students in F-1 status, J-1 exchange visitors, L-1B visa holders or employees working in TN status who wish to change to H-1B status in the coming year.

Last year, the H-1B cap was not reached until November 22, 2011. This was two months earlier than the preceding fiscal year, during which the H-1B cap was reached on January 26, 2011. It is anticipated that H-1B cap filings will continue to rise as the economy continues to recover, resulting in earlier H-1B visa exhaustion.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2013 annual cap. These include the following:

Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Status of Proposed Changes to the Filing Procedure

To date, USCIS has not implemented any changes to H-1B cap filing procedures. In October 2011 USCIS rescinded a plan that would have required employers to pre-register with USCIS before filing an H-1B cap petition for the upcoming fiscal year. USCIS now plans to incorporate the objectives of this plan into its ongoing USCIS Transformation initiative, which intends to mandate e-filing of applications for immigration benefits by 2014. Gibney will continue to monitor this matter, and provide additional information concerning changes to the H-1B cap program as they develop.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Immigration Webinar to be Held on March 28, 2012

Michael Hawkes — Tue, 06 Mar 2012 12:19:31 -0600

Webinar - HR Managers: What You Need to Know About Family Immigration Issues

Wednesday, March 28, 2012 at 12:00 pm EST

Please join us for this informative webinar. RSVP by clicking on the registration link below.

http://bit.ly/gibney-webinar

Today's global HR professionals are attuned to common immigration challenges that affect their internationally mobile employees.

Do you know what issues confront their accompanying family members, and how they can impact short and long-term planning for international employment?

Join Us for this webinar that will examine:

How the U.S. and other countries define "family" and treat cohabiting partners;
Rights and restrictions for those accompanying individuals, as well as domestic employees; and
Other issues that confront families during the process of applying for permanent residence status and in acquiring citizenship around the world.

The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be pre-approved for recertification credit.

Immigration Alert: March 2012 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 13 Feb 2012 10:41:55 -0600

The U.S. Department of State (DOS) has published the March 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced four months, to May 1, 2010. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 1, 2010
India: May 1, 2010
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: March 15, 2006
China: January 1, 2005
India: August 22, 2002
Mexico: March 15, 2006
Philippines: March 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: March 15, 2006
China: April 22, 2003
India: August 22, 2002
Mexico: March 15, 2006
Philippines: March 15, 2006

The full text of the March 2012 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5664.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

Please click here to receive client alerts by email.

Immigration Alert: President Obama Issues Executive Order to Improve Visa and Foreign Visitor Processing

Michael Hawkes — Fri, 27 Jan 2012 13:06:34 -0600

On January 19, 2012, President Obama signed an Executive Order aimed at improving U.S. visa and foreign visitor processing, and promoting travel to the United States. Highlighting the importance of travel and tourism to the U.S. economy and job creation, the President charged several government agencies, including the Department of Homeland Security (DHS) and Department of State (DOS), with leading new initiatives and identifying strategies to enhance and expedite travel to the United States.

In issuing the Executive Order, President Obama recognized that stringent security measures imposed after 2001 may have contributed to at least a 30 percent decrease in the U.S. market share of travel and tourism globally between 2000 and 2010, and stated that a coordinated policy and new initiatives, consistent with national security, are needed to support the U.S. travel and tourism industry moving into the 21st century.

Improvements to visa and foreign visitor processing were identified as key goals, and the President ordered that an interagency process be adopted within 60 days to coordinate the implementation of regulatory changes and the evaluation of legislative proposals aimed at improving and expediting travel to the United States. In addition, the President ordered DHS and DOS to develop a joint implementation plan to achieve several specific visa goals including:

Increase nonimmigrant visa processing capacity in China and Brazil by 40 percent in 2012;
Ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application (recognizing resource and security considerations);
Increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and
Expand reciprocal recognition programs for expedited travel, such as the Global Entry program.

Requiring periodic progress reports on these stated goals, the President also directed that a publicly available website be established by the Department of Commerce to provide relevant metrics from the federal government, including information and statistics on visa processing, and entry times into the United States.

The Executive Order also establishes a Task Force on Travel and Competitiveness comprised of several federal agencies, including, but not limited to, DHS, DOS, and the Department the Labor. The Task Force is charged with developing a National Travel and Tourism Strategy and is responsible for recommending new policies and initiatives to promote travel opportunities throughout the United States, with the goal of increasing the United States market share of worldwide travel.

The Presidential Executive Order comes at a time when DOS has released information reflecting a significant increase in demand for U.S. visas globally. In a recent statement, DOS indicated that U.S. consulates worldwide had processed 9.6 million visa applications in fiscal year 2011, representing a 17 percent increase over the previous fiscal year. In its statement, DOS noted significant demand from some of the world’s fastest-growing economies, including Brazil, and China, where during the past five years, visa issuance has increased 234 percent and 51 percent respectively. In fiscal year 2011, more than one million visas were processed in China, an increase of more than 35 percent over the previous year.

Like the Startup America initiative, this Executive Order is one more signal from the White House recognizing the importance of foreign nationals to the United States economy. Additional information may be found at Executive Order and State Department Supports Global Travel Growth.

Gibney will continue to monitor these and related developments and provide reports and updates as they become available.

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Immigration Alert: February 2012 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 09 Jan 2012 15:04:07 -0600

The U.S. Department of State (DOS) has published the February 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced one year, to January 1, 2010. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. As a result of this advancement, many foreign nationals previously subject to visa retrogression will become eligible to file adjustment of status applications in February. It is important to note that all foreign nationals must be in the United States on the date of filing an adjustment of status application. Eligible applicants should consider any international travel plans accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: January 1, 2010
India: January 1, 2010
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: February 22, 2006
China: December 1, 2004
India: August 15, 2002
Mexico: February 22, 2006
Philippines: February 22, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: February 22, 2006
China: April 22, 2003
India: August 15, 2002
Mexico: February 22, 2006
Philippines: February 22, 2006

The full text of the February 2012 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5640.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New State Laws Mandating Use of E-Verify Take Effect in 2012

Michael Hawkes — Thu, 05 Jan 2012 11:55:00 -0600

On January 1, 2012, new laws took effect in five (5) states, requiring employers to register for and use the otherwise voluntary federal E-Verify system. Many of these laws were passed following the U.S. Supreme Court’s May 2011 decision upholding Arizona’s right to mandate the use of E-Verify, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration.

Alabama (HB56): Effective January 1, 2012, all employers who wish to contract with the state, or with any city, county, or public authority within Alabama, must be registered with E-Verify, and must affirm that all subcontractors with which they do business will also participate in E-Verify.

Beginning April 1, 2012, all employers operating within Alabama will be required to register for and use E-Verify.

Georgia (HB87): Effective January 1, 2012, all employers with 500 or more employees must register for and use E-Verify. Employers with 100 to 499 employees must be registered with E-Verify by July 1, 2012; and employers with 11 to 99 employees must register beginning January 1, 2013. Employers with 10 or fewer employees are exempted from the law.

Louisiana (HB342): Effective January 1, 2012, any employer contracting with state or local governments within Louisiana must register for and use E-Verify through the term of the contract. In addition, state contractors must affirm that subcontractors hired as a result of the state or local contract also participate in E-Verify.

In addition, as of this past August 2011, all employers are required to either retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process or participate in E-Verify. (While the Form I-9 process is mandatory under federal law, retention of photocopies is generally optional.)

South Carolina (SB20): Effective January 1, 2012, all employers operating within the state will be required to register for and use E-Verify.

Tennessee (HB1378): Effective January 1, 2012, on a rolling basis, employers must either retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process, or participate in E-Verify. Employers with 500 or more employees must comply beginning January 1, 2012. Employers with 200 to 499 employees must comply beginning July 1, 2012; and employers with 6 to 199 employees must comply beginning January 1, 2013. Employers with 5 or fewer employees are exempted from the law.

Also effective this year, a new law in North Carolina will require all employers with 500 or more employees to register for and use E-Verify beginning October 1, 2012.

On the other side of the spectrum, California passed legislation in October 2011 that preempts county, municipal, and other local government laws that mandate the use of E-Verify. Participation in E-Verify is therefore voluntary in California according to state law, except to the extent it is mandatory under federal law – i.e., for certain federal contractors.

It is additionally important for employers to comply with all federal anti-discrimination laws during the onboarding process. With new state laws increasing the penalties for employers who fail to properly verify the employment authorization of their employees, there is an increased risk that employers may engage in conduct prohibited by federal law, notably the Immigration Reform and Control Act (IRCA), which protects employees from discrimination, including “document abuse,” in the Form I-9 and E-Verify processes. Employers must be aware of IRCA prohibitions against requesting specific types of identification or employment authorization documentation during the onboarding process (e.g., proof of U.S. citizenship), as well as laws requiring equal treatment of anyone who is authorized to work in the United States, regardless of citizenship, immigration status, nationality, name, accent, or appearance. State laws mandating the use of E-Verify do not protect employers from federal discrimination claims under IRCA and other federal laws, or from potential fines or prosecution. General information about federal anti-discrimination laws is available from the U.S. Department of Justice at: http://www.justice.gov/crt/about/osc/htm/employer.php

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Immigration Alert: Fairness for High-Skilled Immigrants Act Placed on Hold

Michael Hawkes — Fri, 16 Dec 2011 13:37:33 -0600

We recently reported that on November 29, 2011 the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (H.R. 3012) by a vote of 389-15. If enacted as passed by the House of Representatives, H.R. 3012 would eliminate the per-country limit, currently 7%, on employment-based green card allocation for any given country during the government’s fiscal year. However, the bill would only reallocate visas and would not increase the overall number of immigrant visas available each year.

H.R. 3012 then moved to the U.S. Senate for consideration. On November 30, 2011 Senator Grassley (R-IA) placed the bill on hold, and, on December 15, 2011, offered an amendment that would make dramatic changes to the bill, including elimination of the family-based per county limit increase and reducing the employment-based per country limit to 15%. Additionally, Senator Grassley’s amendment would eliminate the diversity visa (lottery) program and amend the bill to introduce increased enforcement and U.S. worker protection provisions to the H-1B and L-1 visa programs.

Senator Grassley’s amendment was met with objection, and, as a result, H.R. 3012 will remain on hold. The American Immigration Lawyers Association reports that while other senators may try to negotiate a compromise to move the bill forward, at this time, such a compromise appears unlikely.

Gibney will continue to monitor the progress of this legislation in the Senate and provide updates as they become available. If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: January 2012 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 09 Dec 2011 14:59:32 -0600

The U.S. Department of State (DOS) has published the January 2012 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced more than nine months, to January 1, 2009. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. As a result of this advancement, many foreign nationals previously subject to visa retrogression will become eligible to file adjustment of status applications in January. It is important to note that all foreign nationals must be in the United States on the date of filing an adjustment of status application. Eligible applicants should consider any international travel plans, including holiday travel, accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: January 1, 2009
India: January 1, 2009
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: February 1, 2006
China: October 15, 2004
India: August 8, 2002
Mexico: February 1, 2006
Philippines: February 1, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: February 1, 2006
China: April 22, 2003
India: August 1, 2002
Mexico: February 1, 2006
Philippines: February 1, 2006

The full text of the January 2012 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5630.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Fairness for High-Skilled Immigrants Act (H.R. 3012) Passes in U.S. House of Representatives

Michael Hawkes — Wed, 30 Nov 2011 07:07:00 -0600

On November 29, 2011 the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (H.R. 3012) by an overwhelmingly favorable vote of 389-15. The bill now moves to the U.S. Senate for consideration. To take effect, the bill must pass the Senate and be signed into law by the President.

If enacted, H.R. 3012 would eliminate the per-country limit, currently 7%, on employment-based green card allocation for any given country during the government’s fiscal year. It also proposes to increase the country-specific quotas for family-based green cards. The bill would not increase the overall number of immigrant visas available each year; it would only reallocate them. As a result, while the proposed legislation would incrementally increase the number of immigrant visas that are distributed to nationals of retrogressed countries such as India, China, Mexico and Philippines annually over the next three years, because there is no provision to increase the overall number of visas available, the bill’s reallocation scheme would likely slow the immigrant visa wait times for nationals from other countries.

Gibney will continue to monitor the progress of this legislation in the Senate and provide updates as they become available.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Reached November 22, 2011

Michael Hawkes — Mon, 28 Nov 2011 13:24:26 -0600

United States Citizenship and Immigration Services announced that it has received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year (FY) 2012 (October 1, 2011 to September 30, 2012). Any cap-subject petitions received after November 22, 2011 will be rejected. Petitions on behalf of existing H-1B workers filed previously against the cap are not subject to the cap and therefore will continue to be accepted.

USCIS will begin accepting new H-1B petitions on April 1, 2012 for FY 2013 (October 1, 2012 to September 30, 2013). Gibney will work with clients to explore alternatives and options for employees unable to obtain H-1B visas during the remainder of FY 2011.

For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert. If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Form I-9 CNMI No Longer Valid

Michael Hawkes — Mon, 28 Nov 2011 07:33:00 -0600

After November 27, 2011, employers in the Commonwealth of the Northern Mariana Islands (CNMI) will no longer be able to use Form I-9 CNMI. Form I-9 CNMI was a version of Form I-9, valid only in the CNMI, that contained additional List A documents issued by the CNMI government. Employers must use the standard Form I-9 to verify the work authorization of employees hired in the CNMI on or after November 28, 2011.

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Global Immigration Alert - Canada: Changes in Federal Skilled Worker Program

Michael Hawkes — Wed, 23 Nov 2011 06:38:18 -0600

Increase in Quota for Federal Skilled Workers

Citizenship & Immigration Canada (CIC) has announced an increase in its Federal Skilled Worker Program (FSWP) quota for 2012. The FSWP is the principal method to apply for permanent resident or landed status in Canada. The CIC 2011 Immigration Levels Plan for the FSWP quota allowed for 47,400 workers; CIC expects to admit up to 57,000 workers in 2012.

New Scheme for PhD Students and Graduates

Effective November 5, 2011, CIC has implemented a new eligibility scheme for international students pursuing doctorate degrees (PhDs) at Canadian institutions. Applicants must meet one of the following criteria:

Currently enrolled in a doctorate degree (PhD) program administered by a provincially or territorially accredited private or public post-secondary Canadian educational institution located within Canada, and completed at least two years of study towards their degree. The applicant must also be in good academic standing, and may not be a recipient of the Government of Canada Award for financial assistance (which requires the recipient’s return to the home country for the application of knowledge and skills acquired in Canada); or
Completed a doctorate degree (PhD) program from a provincially or territorially accredited private or public post-secondary Canadian educational institution located within Canada less than 12 months prior to application submission. As above, applicants must not have received the Government of Canada Award for financial assistance. If an applicant was a recipient of such an award, all terms and requirements of the award must have been satisfied.

Up to 1000 new FWSP applications by international students will be considered for processing each year.

Gibney will continue to monitor implementation of the new program and provide updates as they become available.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Australia: Priority Processing and Sponsor Accreditation for Subclass 457 Visas

Michael Hawkes — Wed, 23 Nov 2011 06:36:14 -0600

Effective November 7, 2011, employers in Australia may apply for Accredited Status and priority processing to sponsor Temporary Business Entry (Long Stay) visa (Subclass 457) nominations and visa applications for their employees. Applications for Accredited Status may be filed through a new sponsorship application submission or through submission of currently available sponsorship agreements. The validity period for the visa will be up to six years.

To qualify for Accredited Status, sponsors must meet new requirements in addition to those currently in place. Specifically, employers must meet the following criteria in addition to standard requirements:

Must be a government agency, publicly-listed company, or a private company with a minimum of AUS$4 million turnover (gross income) per year for the last three years;
Must have been an active subclass 457 visa sponsor for the past three years, with no more than a six month break in active status. Moreover, regardless of the length of time, the break must not be the result of any sanctions placed on the employer and its eligibility for sponsorship;
Must have no formal warnings and sanctions on-record issued by the Department of Immigration and Citizenship or the Department of Education, Employment and Workplace Relations;
Must have at least 30 primary subclass 457 visas granted in the last 12 months;
Must have filed a large number of decision-ready applications over the previous two years;
Must have an application denial rate of less than 3% for the immediately preceding three year period; and
Over 75% of its workforce must be Australian nationals, and the sponsor must intend and commit to maintaining this profile.

Gibney will continue to monitor implementation of these changes and provide relevant updates as they become available.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - France: Introduction of Blue Card

Michael Hawkes — Tue, 22 Nov 2011 06:47:20 -0600

On May 25, 2009, the European Union passed the EU Blue Card Directive (Council Directive 2009/50/EC) whereby 24 participating countries in the European Union agreed to implement the Blue Card in an effort to attract highly skilled non-EU citizens by facilitating employment and long-term residence. The Directive was scheduled to be implemented by member states in June 2011. However, several member states have yet to adopt and implement the Directive. Notably, the United Kingdom, Ireland and Denmark have decided not to participate and will maintain separate immigration policies.

This November, the French government has taken the final steps to implement its version of the Blue Card, expected to be available by 2012. The Blue Card will broaden the number of work permit categories in France.

Qualifications for the Blue Card

To qualify for the Blue Card, a foreign national must have an employment contract for at least one year, must be paid at least 1.5 times the minimum salary set by the Ministry of Interior, and must have either a three-year degree or at least five years of relevant work experience. The Blue Card does not require preliminary labor market testing. The French Blue Card is expected to be implemented once the French Ministry of Interior announces the minimum salary requirements for the program.

Applicants for the Blue Card must apply within one month of entry into France. Once issued, the Blue Card will be valid for the length of proposed employment, with a maximum validity of three years. It will be renewable. Accompanying spouses will be issued a Private and Family Life category work permit, valid for one year initially and renewable on an annual basis while the principal applicant’s Blue Card remains valid. The French authorities estimate that the processing time for Blue Cards will be 90 days for the principal applicant and 180 days for the accompanying spouse.

Foreign nationals holding Blue Cards for at least 18 months from other EU member states will automatically qualify for the French Blue Card. Qualifying foreign nationals may enter France without a long stay visa and must apply for the French Blue Card within one month of arrival.

French Blue Card holders and their accompanying dependents will qualify for EU long-term resident permits after five years of residence in the EU, provided that the foreign national resided in France for the last two years of the qualifying period.

Expansion of Rights Beyond Immediate Family

The right of entry to France for family members of an EU citizen, other than a spouse or child, will be expanded to include distant family members under the following circumstances:

If in the country of origin, the family member is a dependent or part of the household of an EU citizen;
If for serious health reasons, an EU citizen must take care of the family member;
If the family member demonstrates lasting personal and family ties, other than through marriage, with an EU citizen, such as in the case of common-law marriage. This also applies to same-sex partners if they are recognized as a common-law spouse in the EU country of origin.

Applications for right of entry for distant family members will be adjudicated on a case-by-case basis following review of their application and supporting evidence.

Gibney will continue to monitor implementation of the Blue Card and provide updates as they become available.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Year End Consular Closings

Michael Hawkes — Mon, 21 Nov 2011 15:04:47 -0600

The holiday season is a hectic time for international travel. Consulates are exceptionally busy due to the high volume of visa applicants and offices frequently close during home country and local holidays. We encourage corporate HR personnel, business travelers and foreign nationals to take proactive steps to plan ahead for visa issuance prior to travel.

Holidays and closures should be noted for the following foreign consulates in the United States:

Australia:
November 24 & 25 – Thanksgiving
December 26, 27 & 28 – Christmas
January 2, 2012 – New Year’s Holiday

Brazil:
November 24 & 25 – Thanksgiving
December 26 – Christmas
January 2 – New Year’s Holiday

Canada:
November 24 – Thanksgiving
December 26 & 27 – Christmas
January 2, 2012 – New Year’s Holiday

China:
November 23 & 25 – Thanksgiving
December 26 - Christmas

France:
November 24 – Thanksgiving

Germany:
November 24 – Thanksgiving
December 26 – Christmas

India:
November 24 & 25 – Thanksgiving
December 26 – Christmas
January 2, 2012 – New Year’s Holiday

Ireland:
November 24 & 25 – Thanksgiving
December 26 & 27 - Christmas

Japan:
November 24 & 25 – Thanksgiving
December 23, 26, 29, 30 – Christmas/Year’s End holiday
January 2 – New Year’s Holiday

Mexico:
November 24 & 25 - Thanksgiving

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Immigration Alert: December 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 14 Nov 2011 13:20:35 -0600

The U.S. Department of State (DOS) has published the December 2011 Visa Bulletin. The priority cut-off dates for China and India in the employment-based, second preference (EB-2) category advanced more than four months, to March 15, 2008. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. As a result of this advancement, many foreign nationals previously subject to visa retrogression will become eligible to file adjustment of status applications in December. It is important to note that all foreign nationals must be in the United States on the date of filing an adjustment of status application. Eligible applicants should consider any international travel plans, including holiday travel, accordingly.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: March 15, 2008
India: March 15, 2008
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 15, 2006
China: September 8, 2004
India: August 1, 2002
Mexico: January 15, 2006
Philippines: January 15, 2006

Employment-based, third preference (EB-3) “other” workers:

Worldwide: January 1, 2006
China: April 22, 2003
India: July 22, 2002
Mexico: January 1, 2006
Philippines: January 1, 2006

The December advancement of EB-2 priority dates for Indian and Chinese nationals is consistent with DOS predictions that we may expect to see EB-2 priority dates advance at this rate over the next few months. However, these advancements are predicted to be followed by a slow-down and possible retrogression commencing in March 2012, and for the remainder of the 2012 fiscal year (through September 30, 2012).

The full text of the December 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5603.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Holiday Travel Reminders for International Travelers

Michael Hawkes — Mon, 07 Nov 2011 12:51:27 -0600

The holiday season is a hectic time for international travel. Consulates, airports, and ports of entry are exceptionally busy due to the higher volume of travelers and visa applicants. We encourage corporate HR personnel, business travelers, and foreign nationals to take proactive steps and plan ahead prior to travel.

Here are a few key points to remember:

Passports: All travelers, including U.S. and Canadian citizens, should confirm the validity of passports for themselves and all accompanying family members. Passports should be extended or renewed in advance to ensure at least six months of validity at the time of entry to the United States.

Visa Waiver Travelers to the U.S.: The Electronic Screening System for Travel Authorization (ESTA) is a mandatory, online pre-screening for Visa Waiver Program (VWP) travelers. ESTA is only for travelers who are citizens of designated VWP countries and who wish to enter the U.S. for appropriate business or tourism purposes. VWP travelers should complete the online pre-screening process at least 72 hours prior to departure. Once approved, the authorization is granted for up to two years or until the expiration of the traveler’s passport, whichever comes first. For more information regarding the VWP, please visit http://www.travel.state.gov/visa/temp/without/without_1990.html.

Security Screening: Many countries around the world have increased security measures and screening procedures. Under the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program, nearly all non-U.S. citizens, including U.S. permanent residents (“green card” holders), are required to provide biometrics upon entry.

Proof of employment: Foreign national employees entering the U.S. on nonimmigrant work-authorized visas are encouraged to carry evidence of current employment, including an updated employment verification letter issued by the employer and recent pay stubs.

Plan ahead for visa issuance: Foreign nationals requiring visa issuance at a U.S. embassy or consulate abroad during the holiday season should check that consulate’s website well in advance of travel to review instructions specific to that post. U.S. embassies and consulates abroad may be short-staffed, especially around U.S. and local holidays (both of which are observed). Consular procedures vary widely from post to post and are subject to change with little or no notice. Links to U.S. consular posts around the world and answers to frequently asked questions about visa issuance are available on the website of the Department of State at http://www.travel.state.gov/visa/visa_1750.html. When planning for travel and visa issuance, be sure to check estimated appointment and processing times by visiting http://travel.state.gov/visa/temp/wait/wait_4638.html. Be aware that these are estimates only; some visa applications require further administrative processing, which is determined after the visa applicant’s interview by a consular officer. When administrative processing is required, the timing will vary based on the individual circumstances of each case.

Port of Entry: Foreign nationals entering the U.S. pursuant to any nonimmigrant visa category should always check their new I-94 card immediately after issuance and while still in the inspection area. Inspecting officers can make errors, and it is the traveler’s responsibility to verify that the new I-94 reflects the correct visa category and expiration date. Any errors should be brought to an officer’s attention immediately. It is burdensome to correct such mistakes after an individual has left the port of entry.

Advance Parole: Applicants for Adjustment of Status (AOS) must ensure that they have a valid Advance Parole document prior to departure from the United States, and valid for reentry on the anticipated return date to the United States. Please note that there are exceptions for H and L visa holders who are maintaining valid H and L status. Immigration counsel should be contacted if there is any question as to whether an AOS applicant has valid documents permitting international travel, as failure to possess such documents could result in abandonment of the adjustment of status application.

If you have any questions regarding this alert, or travel, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Master's Cap Reached

Michael Hawkes — Thu, 27 Oct 2011 07:38:56 -0500

U.S. Citizenship & Immigration Services (USCIS) has announced that as of October 21, 2011, the U.S. Master’s H-1B Cap of 20,000 visas has been reached for fiscal year (FY) 2012, which runs from October 1, 2011 to September 30, 2012. Going forward, H-1B petitions filed for individuals holding a U.S. Master’s degree will be counted against the H-1B Regular Cap. USCIS also announced that, to date, 46,200 H-1B petitions have been filed under the 65,000 H-1B Regular Cap.

Since May, the number of monthly H-1B Regular Cap petition filings has been increasing by approximately 1,000 petitions per month. Notably, from September to October, the number of filings increased by more than 2,000 petitions over the preceding month’s filings. While we cannot predict when the cap will be reached, if the increased rate of filing continues, as is expected now that the Master’s Cap set aside has been exhausted, the H-1B Regular Cap may be reached soon.

Once the H-1B Regular Cap has been reached, USCIS will stop accepting new H-1B petitions for FY 2012. On April 1, 2012, USCIS will begin accepting new applications for FY 2013, which runs from October 1, 2012 to September 30, 2013.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Gibney Partner to Speak at Immigration Conference in London

Michael Hawkes — Fri, 21 Oct 2011 10:26:12 -0500

On November 1, 2011, Gibney Partner, Stephen Maltby, will address an audience of international business leaders in London at a conference hosted by BritishAmerican Business in association with Magrath LLP. The conference will include prominent speakers from the U.K. Border Agency (UKBA), Migration Advisory Committee (MAC) and the U.S. Embassy. Mr. Maltby will speak on U.S. Immigration Policy in the 21st Century.

Other topics will include:
• The Current U.K. Immigration landscape
• Changes to the points based system in 2011
• The outlook for 2012
• The results of MAC and UKBA consultations
• An update from the U.S. Embassy, London
• Changes to the U.S. immigration system

For more information on this conference or BritishAmerican Business please visit http://www.babinc.org/events/430.

Gibney Partners Attend Intercontinental Group of Accountants & Lawyers ("IGAL") Meeting in Chandigarh, India

Michael Hawkes — Thu, 20 Oct 2011 13:36:48 -0500

This month, Gibney Partners, Brian Brokate and Frederick Anthony, joined delegates from around the world at the IGAL annual meeting in Chandigarh, India. With delegates from 48 countries and six continents , IGAL’s mission is to provide a global forum for the professional exchange of ideas, firm management, and social interaction and to reduce the obstacles of doing business in a foreign environment from afar.

SS Sodhi, the former Chief Justice of India's Allahabad High Court, commented for the Chandigarh Tribune that the event was a " landmark in opening up the Indian legal system and making foreign courts and jurisdictions more easily accessible to Indians." Read the article here.

Mr. Brokate and Mr. Anthony are both IGAL delegates , and Mr. Anthony also serves on IGAL’s Board of Directors.

For more information on IGAL please visit http://www.igal-network.com.

Immigration Alert: November 2011 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 07 Oct 2011 14:22:51 -0500

The U.S. Department of State (DOS) has published the November 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current

China: November 1, 2007

India: November 1, 2007

Mexico: Current

Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: December 22, 2005

China: August 22, 2004

India: July 22, 2002

Mexico: December 22, 2005

Philippines: December 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 15, 2005

China: April 22, 2003

India: June 15, 2002

Mexico: November 15, 2005

Philippines: November 15, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the November 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html#

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Leads Panel at Women in Technology International Summit in Silicon Valley

Michael Hawkes — Tue, 04 Oct 2011 10:30:20 -0500

On Tuesday, October 04, 2011 at 2:15 pm, Deborah Davy and Minal Shah, Senior Counsel in Gibney’s Immigration Practice Group are leading a panel discussion entitled, “Expanding Business to New Territories and Securing the Best Talent Internationally.” Hosted by Women in Technology International (WITI), this year’s conference is being held in San Jose, California from October 2 to October 4, 2011.

The panel addresses overcoming obstacles to hiring foreign nationals in the United States and international assignment and travel policies, and compares various models and solutions for global mobility executives. The panelists will also explore how companies are meeting the challenges of establishing overseas offices while complying with immigration and regulatory schemes in emerging markets. The panel includes experts in human resources and global mobility as well as corporate legal counsel.

WITI is the world's leading professional organization for executive women in technology. For more information please visit www.witi.com.

Immigration Alert: 2013 Diversity Visa Lottery

Michael Hawkes — Mon, 03 Oct 2011 07:04:01 -0500

1. What: The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2013 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

2. When: The U.S. Department of State will accept applications for the 2013 diversity lottery between noon Eastern Daylight Time (EDT) on Tuesday, October 4, 2011, and noon Eastern Daylight Time (EDT) on Saturday, November 5, 2011.

3. Who: In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

Nationality: No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2013 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Education/Work: In order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years training or experience.

4. How: Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s website: http://www.dvlottery.state.gov. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery.

A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the State Department’s website. Note: each spouse may submit their own application if they otherwise qualify. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

Winners of the lottery will be selected in a computerized random process. After entering the lottery, it is critical to safeguard the confirmation page as that will be the only way to check the status of a diversity lottery application. As of May 1, 2012, applicants may use the number from their confirmation page to view the Entry Status Check section of the E-DV website at www.dvlottery.state.gov to see whether their lottery application has been selected. This is an important change from prior years when the U.S. Department of State mailed winning applicants notification letters and instructions. This year, winners will not receive anything in the mail and must retain their confirmation page in order to check their application’s status on the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. Rather, selected individuals (and their dependents) are deemed eligible to apply for lawful permanent resident status. In order to become a permanent resident of the U.S., a lottery winner’s application for permanent residence must be filed and approved between October 1, 2012 and September 30, 2013. The permanent residence application may be filed either via adjustment of status (the foreign national must be in the U.S. in a valid nonimmigrant status) or via consular processing.

More lottery winners are selected than there are immigrant visas available because it is presumed that some winners will not be eligible to become permanent residents of the U.S. Hence, some winners of the lottery may ultimately be unable to become permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

5. More Information: Instructions for filing an application for the 2013 Diversity Visa Lottery, and information regarding photograph specifications, may be obtained from the U.S. Department of State’s website: http://travel.state.gov/pdf/DV_2013_instructions.pdf.

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Immigration Alert: H-1B Update for Fiscal Year 2012

Michael Hawkes — Wed, 28 Sep 2011 06:54:44 -0500

Quota Update

As of September 9, 2011, U.S. Citizenship & Immigration Services (USCIS) has announced that approximately 32,200 H-1B petitions have been filed under the 65,000 H-1B Regular Cap and approximately 16,700 H-1B petitions have been filed under the 20,000 H-1B Master’s exemption for fiscal year 2012 (October 1, 2011 to September 30, 2012).

Once the cap has been reached, USCIS will stop accepting new H-1B petitions for fiscal year 2012. On April 1, 2012, USCIS will begin accepting new applications for fiscal year 2013 (October 1, 2012 to September 30, 2013).

Reminders for Those with October 1, 2011 New H-1B Start Date

Change of Status: For H-1B Cap petitions that were filed as “change of status” effective October 1, 2011, the beneficiary’s status will change from the current nonimmigrant status to H-1B on October 1, 2011, if the beneficiary:

1. Was physically present in the U.S. for the entire period from the date the petition was receipted by USCIS through the date the application was approved; and

2. Is physically present in the U.S. on October 1, 2011 for the change of status to take effect.

After October 1, 2011, if the beneficiary departs the U.S., s/he must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in H-1B status. Most U.S. Consulates require a personal interview to apply for a visa, and most require 4 to 6 weeks to schedule an interview. Actual visa processing times vary by Consulate. The beneficiary is advised to check the website of the Consulate they intend to visit for further information relating to the scheduling of an interview and visa processing information.

Consular Notification: For H-1B Cap petitions that were filed as “consular notification” effective October 1, 2011, the beneficiary’s status will not change from the current nonimmigrant status to H-1B without further action. In order to activate H-1B status, the beneficiary must depart the U.S., obtain an H-1B visa at a U.S. Consulate abroad, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S.

Taxes for F-1 and J-1: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, please note that once an F-1 or J-1 changes status to H-1B, they will no longer be exempt from FICA tax.

If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: House Committee Approves Legal Workforce Act

Michael Hawkes — Fri, 23 Sep 2011 13:44:00 -0500

On September 21, 2011 the House Judiciary Committee approved the Legal Workforce Act (H.R. 2885), which, if enacted, would amend the Immigration and Nationality Act to mandate the use of E-Verify for all U.S. employers. Enrollment in the E-Verify program would be mandatory for employers with more than 10,000 employees within six months of enactment, and would be gradually phased-in to include all U.S. employers. The bill now moves to the full House of Representatives, where the Speaker of the House will decide whether to bring it up for a vote. A similar bill has been introduced in the Senate (S. 1196).

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Immigration Alert: Fairness for High-Skilled Immigrants Act Introduced in Congress

Michael Hawkes — Fri, 23 Sep 2011 12:16:00 -0500

On September 23, 2011, Rep. Jason Chaffetz (R-UT) introduced the Fairness for High-Skilled Immigrants Act (H.R. 3012). The bill proposes to eliminate the per-country limit (currently 7%) on employment-based visa allocation for any given country during the fiscal year. The law does not propose to increase the total number of immigrant visas available annually. The bill would increase the per-country numerical limitation for family-based immigrant visas from 7% to 15%.

If enacted, the proposed legislation would incrementally increase the number of immigrant visas that are distributed to nationals of retrogressed countries such as India, China, Mexico and Philippines annually over the next three years. Because there is no provision to increase the overall number of visas available, the bill’s reallocation scheme would improve the immigrant visa wait times for Indian and Chinese green card applicants, but would likely slow the immigration visa wait times for nationals of other countries.

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Immigration Alert: October 2011 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 13 Sep 2011 07:57:53 -0500

The U.S. Department of State (DOS) has published the October 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 15, 2007
India: July 15, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: December 8, 2005
China: August 8, 2004
India: July 15, 2002
Mexico: December 8, 2005
Philippines: December 8, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: September 15, 2005
China: April 22, 2003
India: June 8, 2002
Mexico: September 15, 2005
Philippines: September 15, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

October marks the first month of the government’s Fiscal Year (FY) 2012. The Department of State offered some assessment of visa availability in the coming months of FY 2012. Specifically, with respect to China and India in the EB-2 preference category, DOS noted that the October cut-off date is approaching the most favorable date previously reached for applicants from China and India. This rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all employment-based number use. DOS cautions that once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-off dates at some point during the year is a distinct possibility.

The full text of the October 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5560.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Attorneys and Paralegals Participate in Fundraiser to End Domestic Violence

Michael Hawkes — Thu, 01 Sep 2011 13:22:10 -0500

On Thursday, October 6, 2011, Gibney attorneys and paralegals will participate in a unique fundraiser called Story by Story—Climbing to End Domestic Violence. This event directly benefits inMotion, a nonprofit that provides free legal services to battered women and children. 1,000 inMotion supporters will come together to climb the stairs of 1411 Broadway—a 42-story skyscraper in the heart of Manhattan's Fashion District and Times Square.

Gibney's Pro Bono Committee has organized a team that has more than doubled its fundraising goal.

For details, please see http://www.storybystory.org/about-story-by-story/event-information-program.

To visit Gibney’s team page, please see http://StorybyStory.kintera.org/stair-climb/gibney.

Global Immigration Alert - Argentina: Elimination of the Balance Sheet Requirement from Sponsoring Companies

Michael Hawkes — Wed, 31 Aug 2011 07:20:00 -0500

Effective August 17, 2011, companies in Argentina will no longer be required to submit annual balance sheets to the Immigration Directorate’s National Corporate Registry Office (Registro Nacional Unico de Requirentes de Extranjeros (RENURE)) when applying for or renewing company registration for sponsorship applications in order to employ foreign nationals.

The elimination of the balance sheet requirement will speed up the registration and renewal processes by releasing companies from the task of obtaining confidential financial information from company directors.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Gibney Expands and Relocates San Francisco Office

Michael Hawkes — Mon, 22 Aug 2011 08:20:05 -0500

Gibney, Anthony & Flaherty, LLP is pleased to announce the expansion and relocation of our San Francisco office to:

455 Market Street, Suite 2200
San Francisco, CA 94105
415.901.2270

Gibney, Anthony & Flaherty, LLP is dedicated to delivering personalized counsel and legal representation of the highest quality to our clients. Gibney’s Immigration Practice Group includes more than 80 professionals in New York and San Francisco dedicated to the provision of immigration services, as well as a global network that provides immigration services in over 120 countries. For more information about our services and diverse areas of practice, please visit http://www.gibney.com/.

We look forward to greeting clients and friends in our new space. Click here for a map and information about the building.

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Immigration Alert: September 2011 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 18 Aug 2011 12:30:43 -0500

The U.S. Department of State (DOS) has published the September 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: April 15, 2007
India: April 15, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: November 22, 2005
China: July 15, 2004
India: July 8, 2002
Mexico: November 22, 2005
Philippines: November 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: August 1, 2005
China: April 22, 2003
India: June 1, 2002
Mexico: August 1, 2005
Philippines: August 1, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the September 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5542.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: Chile - Chilean Nationals to Gain Online Access to Australian Tourist Visa Application

Michael Hawkes — Fri, 12 Aug 2011 07:14:00 -0500

Effective September 20, 2011, Chilean citizens may apply for an Australian e676 tourist visa online.

The e676 electronic tourist visa does not require a label to be placed inside a traveller’s passport. Instead, a notification providing visa details is sent to the applicant via email and airlines are able to confirm the visa validity through an electronic Advanced Passenger Processing System. Applicants may print a copy of their visa approval notification email to carry with them when travelling to Australia.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert - Startup America - The Immigration Initiative

Michael Hawkes — Fri, 05 Aug 2011 11:37:00 -0500

In January 2011, the White House launched the “Startup America” program, a public/private sector initiative aimed at accelerating job growth by promoting entrepreneurialism and reducing existing barriers to entrepreneurial activities. The promotion of immigrant-led entrepreneurship is one component of the initiative.

Marking the sixth month anniversary of the program in August 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas affirmed that U.S. immigration laws are viewed as critical to the economic stimulus effort. In order to attract and retain highly skilled entrepreneurs, USCIS announced that it would:

Provide enhancements to the EB-5 immigrant visa investor program to streamline the process, establish direct lines of communication between USCIS and applicants, and explore resolutions to outstanding problems with the program by commissioning a panel of experts;
Expand Premium Processing Service to expedite adjudication of immigrant petitions for multinational executives and managers (EB-1-3); and,
Launch new engagement opportunities for entrepreneurs and startup companies, including:
- “Entrepreneurs in Residence” - a series of summits to be held with USCIS and industry leaders to obtain and utilize high-level input in order to create and implement effective solutions to overcome barriers faced by entrepreneurs, as well as strengthening the overall relationship between USCIS and entrepreneurial industries; and,
- “Conversations with the Director” - a series of small group meetings with Director Mayorkas, providing a forum to discuss immigration issues important to communities around the country.

USCIS reaffirmed that entrepreneurs may obtain an immigrant visa (“green card”) by satisfying regulatory requirements under existing law for employment-based sponsorship, and noting that entrepreneurs may also qualify for National Interest Waivers (waiving the specific requirement of a job offer from a U.S. employer) under the employment-based second preference visa category if they can demonstrate that their business endeavors are in the national interest of the United States. USCIS also clarified that the H-1B nonimmigrant visa is available to entrepreneurs who are the sole owners of petitioning companies, and that these companies may establish a valid employer-employee relationship for the purpose of qualifying for the H-1B visa.

Although many of the measures cited above are already memorialized in current USCIS regulations and procedures, the comments of Secretary Napolitano and Director Mayorkas underscore the view that attracting foreign talent and investment is critical to fueling the nation’s economic growth and creating jobs. It is hoped that the Startup America platform and its proposed immigration components will ensure that existing immigration law is applied in a manner that will realize the full potential of entrepreneurial immigrants.

Additional information about the Startup America initiative is available at:

Startup America - White House

Startup America - USCIS

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Immigration Alert: August 2011 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 13 Jul 2011 13:49:26 -0500

The U.S. Department of State (DOS) has published the August 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: April 15, 2007
India: April 15, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: November 1, 2005
China: July 8, 2004
India: June 1, 2002
Mexico: November 1, 2005
Philippines: November 1, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: May 1, 2005
China: April 22, 2003
India: June 1, 2002
Mexico: May 1, 2005
Philippines: May 1, 2005

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the August 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5518.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Ireland: Visa Waiver Pilot Program Announced

Michael Hawkes — Thu, 07 Jul 2011 12:06:38 -0500

The Irish Government will implement a Visa Waiver Program on a pilot basis effective July 1, 2011 through October 31, 2012. Under this pilot program, eligible nationals of the 14 countries listed below, who typically require a visa to enter Ireland, will be exempt from the visa requirement if they have already obtained a short term visa to enter the United Kingdom. In addition, special provisions will facilitate visits by foreign nationals of these 14 countries who are long-term residents in the U.K. The pilot program is designed to promote Ireland as a tourist destination.

The following countries will be eligible to participate in the pilot Visa Waiver Program:

Belarus	Bahrain
Montenegro	Kuwait
Russian Federation	Qatar
Servia	Saudi Arabia
Turkey	United Arab Emirates
Ukraine	Uzbekistan
Inda	People's Republic of China

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Russia: New Electronic Visa Application Form

Michael Hawkes — Fri, 01 Jul 2011 11:59:00 -0500

Effective July 1, 2011, all Russian visas applications filed in the United States will now be required to use an electronic visa application form, available online at: http://evisa.kdmid.ru

Russian visa applications prepared using the hard copy or manual visa application form will not be accepted after July 1, 2011.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: Mandatory E-Verify Law Introduced in Congress

Michael Hawkes — Fri, 24 Jun 2011 09:43:54 -0500

Last week, House Judiciary Committee Chairman Lamar Smith (R-TX) introduced The Legal Workforce Act (H.R. 2164), which would require all U.S. employers to use the federal database known as E-Verify to electronically verify the employment authorization of prospective employees before hiring. Should the bill become law, mandatory participation in E-Verify would be implemented on a rolling basis. The largest employers, with more than 10,000 employees, would be required to comply within six months of enactment. The smallest employers, with 19 or fewer employees, would have two years to comply. Any recruiters, employment referral agencies, and union halls would be required to participate in E-Verify within one year. In addition, employers using seasonal workers for “agricultural labor or services” would need to register for E-Verify within three years of the date of enactment.

The bill would pre-empt all state and local laws mandating E-Verify use for employment verification purposes, but would retain the ability of states and localities to grant business licenses on the condition that the employer use E-Verify. In addition, the bill would increase tenfold the current civil monetary fines on employers who knowingly employ unauthorized workers. However, the bill would grant employers safe harbor from prosecution if they use the E-Verify program in good faith and, through no fault of their own, receive an incorrect eligibility confirmation. The bill would also create a felony crime for persons found to have knowingly misused a Social Security Number.

Many Congressional sources believe The Legal Workforce Act has a good chance of passing the Republican-controlled House of Representatives. Sen. Chuck Grassley (R-IA) has sponsored a companion bill in the Senate – The Achieving Accountability Through Electronic Verification Act (S. 1196) – but its fate in the Democratic-controlled chamber is uncertain.

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Private Client Article: Foreign Account Owners - The IRS is Looking For You!

Michael Hawkes — Wed, 22 Jun 2011 09:48:46 -0500

Foreign accounts have become a hot button for the IRS in the past few years. The current situation started with the investigation of the large Swiss bank, UBS. The accusation was that UBS made it a business to assist US taxpayers with the use of offshore banking accounts to avoid paying US tax. The Internal Revenue Service served what is called a “John Doe” summons on UBS in an attempt to obtain the names of the owners of 52,000 US account holders. UBS negotiated that number down to 4,450.

In 2009 the IRS instituted a Voluntary Disclosure program allowing owners of foreign accounts to come forward without criminal prosecution in exchange for paying the tax due plus penalties and interest. Before that program ended on October 15, 2009 approximately 15,000 voluntary disclosures were processed. As part of that program the IRS required taxpayers to answer the five “W” questions – who, what, where, when and why – relating to their offshore accounts. The information collected in that program is now being used by the IRS to investigate and prosecute additional bankers, account holders and banks.

In April of this year the US government obtained court permission to serve a John Doe summons on HSBC. The summons directs HSBC USA to produce records identifying US taxpayers with accounts at HSBC in India. A spokesperson for HSBC reportedly provided the following statement to CNBC Correspondent Eamon Javers "While we haven't seen the summons, HSBC does not condone tax evasion and fully supports the US efforts to promote appropriate payment of taxes by US taxpayers. While complying with the law in all the jurisdictions in which it operates, including India, HSBC cooperates with requests from US authorities." It appears that HSBC is preparing to cooperate by disclosing the names of account owners.

The IRS has instituted the 2011 Offshore Voluntary Disclosure Initiative (2011 OVDI). That program allows taxpayers with undisclosed foreign accounts to avoid criminal prosecution but requires taxpayers to pay:

a miscellaneous penalty of 25% on the highest aggregate account balance covering the 2003 to 2010 time period
back taxes, interest, and accuracy / delinquency related penalties for the tax years ending 2003 through 2010.

There is a hard deadline for the 2011 OVDI. Taxpayers must satisfy all of the terms by August 31, 2011. Taxpayers with undisclosed foreign accounts should consult with their tax advisors immediately.

If you have any questions about this article, please contact Gerald J. Dunworth at gjdunworth@gibney.com

Immigration Alert: IDEA Act Introduced in Congress – Proposes Significant Changes to U.S. Employment-Based Immigration

Michael Hawkes — Tue, 21 Jun 2011 09:10:42 -0500

On June 14, 2011, Representative Zoe Lofgren (D-California) introduced the Immigration Driving Entrepreneurship in America (IDEA) Act of 2011. The proposed legislation aims to spur U.S. job creation, economic growth, and innovation through sweeping reform of U.S. employment-based immigration. Included in the bill are provisions that would create a fast track to U.S. permanent resident status for STEM (science, technology, engineering and mathematics) advanced-degree holders from specially designated U.S. universities. Another provision would create a permanent resident category for entrepreneurs who establish start-up businesses that create jobs in the United States. The bill also contains provisions to eliminate green card backlogs by recapturing unused immigrant visas that are lost annually due to government delays in adjudicating cases and eliminating spouses and minor children from visa quotas. The bill would also eliminate employment-based “per country” levels. Additionally, the bill aims to reform the current labor certification process by creating an “Established U.S. Recruiter” designation for certain employers, revising current recruitment requirements, and introducing application filing fees and premium processing service for labor certification applications.

On the nonimmigrant side, the F-1 student visa would be designated a “dual intent” visa, permitting students to remain in the country in temporary (student) status while also seeking permanent resident status, similar to the L-1 and H-1B visa. However, the proposed law would impose additional restrictions on the widely-used L-1 and H-1B visa programs. Specifically, the law proposes to impose a labor market test requirement on the H-1B visa and a prevailing wage requirement on the L-1 visa. The law would also amend the current prevailing wage system in a manner that would upwardly adjust wage levels.

The IDEA Act is in the very early stages of the legislative process and is not expected to advance rapidly through Congress. Gibney will continue to monitor the status of this legislation and will report on developments.

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Immigration Alert: July 2011 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 14 Jun 2011 14:17:06 -0500

The U.S. Department of State (DOS) has published the July 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: March 8, 2007
India: March 8, 2007
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: October 8, 2005
China: July 1, 2004
India: May 1, 2002
Mexico: July 1, 2005
Philippines: October 8, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 22, 2004
China: April 22, 2003
India: May 1, 2002
Mexico: November 22, 2004
Philippines: November 22, 2004

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the July 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5489.html.

If you have any questions about this alert please contact your Gibney representative or email at immigrationalerts@gibney.com.

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Immigration Alert: U.S. Supreme Court Upholds Arizona Law Mandating Use of E-Verify

Michael Hawkes — Thu, 26 May 2011 09:42:00 -0500

In recent years, Arizona and several other U.S. states have enacted laws which mandate the use of the otherwise voluntary federal E-Verify system and increasingly impose sanctions for knowingly or intentionally employing unauthorized aliens. The U.S. Chambers of Commerce organization challenged Arizona’s law -- the Legal Arizona Workers Act of 2007 -- on the grounds that federal law should preempt state law in matters of immigration. However, in May 2011, the U.S. Supreme Court affirmed a decision by the Ninth Circuit Court of Appeals, which held that the federal law in question, specifically the Immigration Reform and Control Act (IRCA), does not preempt Arizona state law from mandating the use of E-Verify for employers or from suspending or revoking the business licenses of employers that knowingly or intentionally employ unauthorized aliens. This landmark Supreme Court ruling, Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011), is likely to encourage other states to require the use of E-Verify by employers, and may lead to individual states expanding sanctions against non-compliant employers.

Enacted in 1986, IRCA makes it unlawful to knowingly hire unauthorized aliens, and requires that employers review certain documents in order to establish the employee’s eligibility for employment, subject to federal civil and criminal sanctions. The federal law limits the ability of states to bring charges against non-compliant employers, and instead reserves this authority for the Immigration and Customs Enforcement (ICE) Agency within the federal Department of Homeland Security (DHS). Indeed, IRCA expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.”

The program that became E-Verify was created in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Launched in 2007, E-Verify is an internet-based system administered by DHS that allows an employer to verify an employee’s work authorization based upon information provided for the Form I-9 employment verification process, cross-checked against a Social Security Administration database. The E-Verify system has been criticized for being error-prone and unable to detect identity theft; however, by choosing to participate in the E-Verify system, the employer can establish a rebuttable presumption that it has not violated IRCA’s prohibition of the employment of unauthorized aliens.

Although IIRIRA generally prohibits the Secretary of Homeland Security from requiring participation in E-Verify outside the federal government, in Chamber of Commerce v. Whiting, the Supreme Court held (in a split decision of five to three) that state law may require employers to use the federal E-Verify system and that IRCA does not impliedly preempt the Arizona law from doing so. The Supreme Court also held that IRCA does not preempt state law from suspending or revoking business licenses for knowingly or intentionally employing unauthorized aliens.

In delivering the opinion of the Court, Chief Justice Roberts, joined in full by Justices Scalia, Kennedy and Alito, and in part by Justice Thomas, held that the Arizona law does not in fact allow Arizona to impose “civil or criminal sanctions,” which IRCA specifically prohibits to the states. The Court reasoned that, because the Arizona law – which defines “license” to specifically include articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the state – is actually a business licensing law, and IRCA allows states to use such laws in immigration enforcement, it is not preempted. Moreover, the Court did not find any conflict between the Arizona law and federal immigration law. Therefore, the Court held that “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”

Regarding E-Verify, the Supreme Court held that Congress, in enacting IIRIRA, did not intend to prevent states from mandating participation in E-Verify at the state level, but only to limit the Secretary of Homeland Security in compelling the use of the E-Verify system beyond the federal government at the national level. The Supreme Court also rejected arguments from the Chamber of Commerce about the reliability of the E-Verify system, as well as the Chamber’s contention that the federal system would be overwhelmed and rendered ineffective if all states followed Arizona’s lead in mandating E-Verify.

In her dissent, Justice Sotomayor reasoned that IRCA only preserves states’ authority to impose licensing sanctions after a final federal determination is made that an employer has violated IRCA. She also reasoned that federal law preempts Arizona state law from mandating the use of E-Verify, observing that Arizona has effectively made a decision for Congress regarding use of a federal resource. Justice Sotomayor referred to significant policy objectives motivating Congress to make E-Verify voluntary, including cost concerns.

In his dissenting opinion, Justice Breyer (joined by Justice Ginsberg) reasoned that the Arizona state law does, in fact, impose a civil sanction upon those who employed unauthorized aliens because the “statute strays beyond the bounds of the federal licensing exception” and is therefore pre-empted by IRCA. Justice Breyer also agreed with the Chamber of Commerce’s concerns about E-Verify’s reliability and the likelihood that employers will err on the side of discrimination rather than risk hiring unauthorized workers and thus possibly triggering the so-called “business death penalty,” i.e., having their corporate charters revoked by the state. The Court majority rejected this argument stating “Only far more egregious violations of the law trigger that consequence … An employer acting in good faith need have no fear of the consequences.”

This Supreme Court decision is a milestone in the ongoing struggle between the federal government and its immigration-related agencies and those states legislatures that believe that federal law is not stringent enough with respect to the regulation of immigration matters. Although the Court addressed only the Arizona law, the Whiting decision gives tacit approval to the actions of a growing number of states that require the use of E-Verify, or that impose penalties on employers for violations of federal law involving the employment of unauthorized workers. Given that cities, counties, and other jurisdictions are also enacting similar measures, it is critical for employers to be mindful of this complex patchwork of laws, and to develop strategies to ensure compliance in all employment matters. We will continue to update you on major developments in this regard.

If you have questions about your state’s E-Verify requirements, or about other immigration-related employment measures in your state, please do not hesitate to contact your designated Gibney representative. We would be pleased to advise on developing protocols and best practices concerning the use of E-Verify or other immigration-related onboarding processes.

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Immigration Alert: June 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 16 May 2011 05:33:46 -0500

The U.S. Department of State (DOS) has published the June 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: October 15, 2006
India: October 15, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: September 15, 2005
China: May 15, 2004
India: April 22, 2002
Mexico: December 22, 2004
Philippines: September 15, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: November 8, 2003
China: April 22, 2003
India: April 22, 2002
Mexico: November 8, 2003
Philippines: November 8, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the June 2011 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5452.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Czech Republic: Biometric Resident Permit Cards Postponed

Michael Hawkes — Mon, 02 May 2011 12:03:00 -0500

The Czech Republic Ministry of the Interior has postponed the issuance of biometric residence permit cards for nationals of States not members of the European Union (EU) or the European Free Trade Association (EFTA) from May 1, 2011 until later in 2011. The government indicated that this delay is due to technical problems in the newly configured biometric data system.

As a temporary measure, new residence cards issued after May 1, 2011 will be issued without biometric data and will be in the form of a label affixed to the foreign national’s passport. These temporary cards will have a validity of six months. The fee for issuance of a residence permit card has increased to CZK 2,500 for adults and CZK 1,000 for children under the age of 15. Once the biometric data system is fully operational, temporary card holders will be issued their biometric residence permit cards without additional government fees.

A residence permit card issued before May 1, 2011 shall remain valid until the expiration or until there is reason to amend the permit. Once the residence permit card is renewed, a new card containing biometric data will be issued.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Germany: Introduction of Biometric Resident Permit Cards Postponed

Michael Hawkes — Mon, 25 Apr 2011 14:47:18 -0500

The German parliament has postponed the issuance of new biometric residence permit cards from May 1, 2011 to September 1, 2011 for foreign nationals of States not members of the European Union (EU) or European Free Trade Association (EFTA).

The introduction of biometric residence permit cards complies with EU Regulations no. 1030/2002 and 380/2008, calling for a uniform format for residence permits for non-EU/EEA nationals. The new residence permit cards will contain biometric information such as a photograph and two fingerprints of permit holders aged 6 years and older. The biometric residence permit cards will replace the current paper residence cards, and residence permits will no longer be stamped in the passports of foreign nationals.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - Canada: Delays in Processing Time at Canadian Consulate in New York

Michael Hawkes — Mon, 25 Apr 2011 11:01:00 -0500

Visa applicants should expect processing delays at the Canadian Consulate in New York, due to the installation of a new computer system. Applications submitted in April 2011 may take longer to process. Average processing times for all visitor visa, work permit and study permit applications will be increased by 10 to 15 days. Same day service for walk-in clients will not be available during the system upgrade.

Also, effective February 1, 2011, the Canadian Consulate introduced a new form for Temporary Resident Visa (TRV) applications made outside Canada (IMM5252 01-2011). All TRV applicants must now submit this form. In addition, all TRV applicants who have accompanying family members must now submit a Family Information (IMM5645) form.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - India: Expanded Options for Business Visitors and Temporary Workers

Michael Hawkes — Fri, 15 Apr 2011 15:35:20 -0500

A number of recent reforms and procedural developments will make it easier to obtain visas for some employers and employees who are planning business visits or international assignments to India.

In Country Change of Status Options and Benefits for Dependants

Generally, business or employment visa holders cannot change status while in India. In recent months, the Indian government has outlined limited exceptions to this rule. As previously reported by Gibney, the FAQ issued in October 2010 provided guidance on change of status applications for certain business and employment visa holders who may be eligible for change of status to the Entry (X) visa category under the following circumstances: marriage to an Indian national, filing an application for Persons of Indian Origin, or as a foreign national dependent of a Medical Visa holder.

In March 2011, the Ministry of Home Affairs issued new guidelines for the Foreigners’ Registration Offices (FRO) and Foreigners’ Regional Registration Offices (FRRO) throughout India. These guidelines allow spouses of Intra-company Transfer Employment (E) visa holders to convert their Entry (X) visa to an employment visa in-country, without the need to depart, apply for, and re-enter India with a new visa.

To be eligible for a change of status, a spouse must hold an Entry (X) visa. The spouse must also qualify for an Employment (E) visa at a highly skilled or professional level, be engaged or appointed by an entity in India on a contract or employment basis, and be paid a minimum salary of US$25,000 per year. To request a change of status, the spouse must first obtain a pre-qualification report from the FRO or FRRO where they are registered. The spouse may then apply for the change of status at the Ministry of Home Affairs. Once the applicant’s status has been changed, the spouse will be subject to the terms and conditions applicable to the employment visa category.

The recent modifications and change of status guidelines provide significant benefits to accompanying dependents who wish to undertake employment while in India. These changes will allow eligible spouses to transition into new employment without having to return to their country of origin.

Clarification of Conference (C) Visa Eligibility and Procedure

In March 2011, the Ministry of Home Affairs (MHA) issued an FAQ regarding the procedures for obtaining a Conference (C) visa. Conference (C) visas are issued to foreign nationals attending international conferences, seminars and workshops organized in India by a Ministry or Department of the Government of India, State Governments, Public Sector Undertakings, Central Educational Institutions, Public Funded University or an organization owned and controlled by the Government of India or State Government, UN or its specialized agencies and reputed NGOs.

Applicants for a Conference (C) visa must possess a letter of invitation from the host organization. Additional approval will be required from the MHA and the Ministry of External Affairs (MEA) for participants from Afghanistan, China, Iran, Pakistan, Iraq, Sudan, foreigners of Pakistani origin and Stateless persons, as well as for those participants required to visit ‘Restricted’ or “Protected’ areas in India such as Jammu & Kashmir and the North Eastern States. In such cases, visa applications should be submitted at least 30 days prior to the commencement of the conference.

Upon approval, Conference (C) visas will be issued for the duration of the conference plus additional travel time. Consular officers, at their discretion, may issue visas for longer periods of time, not exceeding six months, if the participant wishes to combine tourism with attending the conference. Applicants requiring MHA and MEA approval will receive visas for the duration specified by MHA and MEA.

Foreign nationals attending conferences, seminars and workshops organized by private companies in India should apply for Business (B) visas.

Elimination of Birth Certificate Requirement for Visa Applicants Aged 18 and Over

Effective immediately, the Indian government has eliminated the requirement for submission of a birth certificate from United States visa applicants aged 18 and over. Minors (age 17 and under) are still required to submit a long form birth certificate showing the names of both parents. Consulates may still request a birth certificate from adult applicants, at their discretion.

Introduction of New Project (P) Visa

In October 2010, the Ministry of Home affairs announced a new Project (P) visa category for foreign nationals assigned to India for execution of projects in the power and steel industry sectors. This visa will be available only for skilled and highly skilled workers and will be subject to a limit of seven employees for each project. If additional personnel beyond the limit are required, approval from the Ministry of Labor & Employment is required. The visas are project and location specific.

An important restriction is that Project (P) visa holders will not be eligible for a regular Employment (E) visa with the same Indian company for a period of two years from the date of commissioning the project. This two-year ban should be considered when filing for this type of visa. Specific guidelines for Project (P) visa issuance by Indian Consulates in the United States are yet to be announced.

India continues to reform their immigration procedures and guidelines, often with little or no notice. Therefore, it is important to check with the Indian Consulate or Travisa Outsourcing (in the United States) regarding current procedures before any Indian visa applications are filed.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Gibney Partner Appointed to St. John's Riverside Hospital Board of Trustees

Michael Hawkes — Fri, 15 Apr 2011 12:17:22 -0500

Gibney Partner, Wm. Lee Kinnally, Jr. has been appointed to the Board of Trustees of St. John’s Riverside Hospital in Yonkers, New York.

St. John's Riverside Hospital is a comprehensive network of health care services that extends from Yonkers to the riverfront communities of Hastings-on-Hudson, Dobbs Ferry, Ardsley and Irvington. With roots in the community that date back nearly 140 years, St. John's was the first hospital in Westchester County.

The network is comprised of the Andrus Pavilion, Dobbs Ferry Pavilion, ParkCare Pavilion, Cochran School of Nursing and the Michael N. Malotz Skilled Nursing Pavilion.

Mr. Kinnally is also a member of the Westchester Fair Campaign Practices Committee and the Board of Assessment Review in Hastings-on-Hudson. He had served as a Trustee of the Village of Hastings-on-Hudson for over 13 years and was Mayor from 1993 to 2009.

Immigration Alert: May 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 11 Apr 2011 15:47:52 -0500

The U.S. Department of State (DOS) has published the May 2011 Visa Bulletin. As expected, the reallocation of approximately 12,000 unused visa numbers from the employment-based, first preference (EB-1) category resulted in advances for Chinese and Indian nationals in the employment-based, second preference (EB-2) category. The EB-2 priority cut-off date for Chinese nationals advanced to August 1, 2006, and the priority cut-off date for Indian nationals advanced to July 1, 2006. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Chinese nationals advanced to April 15, 2004. The EB-3 priority cut-off date for Indian nationals experienced a small advance, to April 15, 2002. The EB-3 priority cut-off date for Mexico advanced to September 8, 2004, and the priority cut-off date for Worldwide and the Philippines advanced to August 22, 2005.

There were also advances in the EB-3 “other worker” category, where priority cut-off dates for Worldwide and the Philippines advanced to September 8, 2003. The EB-3 “other worker” category priority cut-off date for India experienced a small gain, to April 15, 2002, and Mexico advanced to September 8, 2003. The EB-3 “other worker” category priority cut-off date for China remained unchanged at April 22, 2003.

Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

Employment-based, second preference (EB-2):

Worldwide: Current
China: August 1, 2006
India: July 1, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: August 22, 2005
China: April 15, 2004
India: April 15, 2002
Mexico: September 8, 2004
Philippines: August 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: September 8, 2003
China: April 22, 2003
India: April 15, 2002
Mexico: September 8, 2003
Philippines: September 8, 2003

The full text of the May 2011 Visa Bulletin is available at: http://www.travel.state.gov/visa/bulletin/bulletin_5424.html#.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Budget Impasse Could Affect U.S. Immigration Services

Michael Hawkes — Mon, 04 Apr 2011 15:53:00 -0500

Amid the ongoing political debate in Washington concerning the federal budget, employers and foreign nationals should be prepared for a possible disruption in immigration services if a congressional compromise is not reached by April 8, 2011, causing a government shutdown.

While it remains unclear as to exactly how a government shutdown would impact immigration services, “non-essential” government functions could be suspended and agencies may be impacted in different ways.

Because the U.S. Citizenship and Immigration Service (USCIS) is primarily a fee-based service, it may continue to operate. However, services may be impacted and processing times for petitions and applications may be delayed.

A government shutdown could have a significant impact on the U.S. Department of State and its ability to process visas at consulates abroad. Foreign nationals who require new visas to re-enter the United States are advised to check with consulates for any closure announcements and plan in advance for the possibility of delays during any shutdown.

The U.S. Customs and Border Protection Agency is deemed to be an essential government function and a shutdown would not completely halt its operations. However, staffing is expected to be reduced and processing at ports of entry may be subject to delays or longer lines.

Finally, as the Department of Labor (DOL) is a non fee-based agency, it is likely to be severely impacted by a government shutdown. The impact on DOL would likely include significant delays and backlogs in the processing of Labor Condition Applications and Labor Certification Applications, affecting employers’ ability to file H-1B petitions and secure priority dates for PERM applications.

While it appears that lawmakers are trying to avoid a government shutdown, no compromises have been reached to date. Gibney will monitor the budget process and work with clients to mitigate the impact of government processing delays to the extent possible.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Singapore: New Work Pass Amendments and Employment Pass Online Update

Michael Hawkes — Fri, 01 Apr 2011 14:02:00 -0500

Changes in Work Pass Conditions

Singapore’s Ministry of Manpower (MOM) has announced increased employer obligations with respect to the employment of foreign nationals and work pass conditions. The revised regulations apply to all existing and new work passes. Key changes include:

Cross deployment of Work Permit and S Pass holders across sectors is not permitted.
Employers must pay their Work Permit holders no less than the fixed salary amount declared in the work pass application regardless of whether or not there is actual work.
Employers of Work Permit or S Pass holders must ensure that every Singapore citizen or Permanent Resident for whom they make Central Provident Fund (CPF) employer contributions is actively employed by them.
Employers must notify MOM within 7 days of the commencement and cessation of employment of any Personalized Employment Pass (PEP) holder. (Currently, only notification of commencement is required.)

The penalties for any breach of work pass conditions remain unchanged and include fines of up to S$5,000, a jail term of up to one year or both.

Employment Pass Online: Document Upload Function

Starting on April 1, 2011, the Employment Pass Online (EP Online) system will be enhanced to allow users to upload relevant supporting documents when submitting a work pass/related pass application. Employers will no longer be required to submit physical copies of supporting documents to the Ministry of Manpower’s Work Pass Services Centers for verification.

Under the new system module, EP Online users must upload specific supporting documents pertinent to new applications. For renewal of work passes, uploading of supporting documents is only required if there are updates to the applicant’s qualifications.

For specific questions please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

IP News: Gibney Partners to Co-Chair and Speak at PLI’s IP Enforcement and Litigation 2011 Event

Michael Hawkes — Tue, 29 Mar 2011 13:17:00 -0500

Gibney Partner Brian Brokate will co-chair PLI’s IP Enforcement and Litigation 2011: Civil and Criminal Update on March 30, 2011. Gibney Partner Angelo Mazza will also be speaking.

Why You Should Attend

The Anti-Counterfeiting Coalition estimates that counterfeiting costs U.S. businesses $200 billion to $250 billion annually. For many years, IP rights owners relied solely on private, costly, civil enforcement to obtain justice against IP infringers. Government programs did not rank IP crimes as a priority and therefore, did not have budgets to pursue such actions. Today, however, various federal agencies are undertaking coordinated efforts, including working with IP rights holders, to significantly strengthen IP enforcement programs. Civil and criminal programs are underway, using resources such as the DOJ, Customs and other agencies, to seize websites, domain names and financial accounts of those selling counterfeit goods online. This program is designed to bring you up to date on both civil and criminal enforcement efforts and to put you in a better position to protect your client's IP.

What You Will Learn

What government IP programs are currently being planned or are underway
Quick and cost-effective methods to stop Internet fraud, including phishing or other fraudulent websites that utilize trademarks
Steps to protect vulnerable entertainment properties before major events, such as motion picture releases or sporting events/concerts
Best practices for coordinating enforcement matters with government officials, including customs officers
Recent case law covering potential contributory infringers such as registrars, proxy companies, credit card suppliers, internet service providers, auction sites, etc.
Tips on when and how to use ITC proceedings for patent or other IP enforcement
Overview of patent enforcement issues, including the impact of the recent Supreme Court Bilski case
One full hour of ethics: Avoiding common problems related to enforcement, i.e. dealing with pro se defendants, undertaking investigations, use of social media sites for research

Who Should Attend

IP attorneys, general practitioners, in-house counsel and others charged with either protecting IP against infringement and counterfeiting, or advising on enforcement strategies and best practices. Don't miss this opportunity to get tips from government agency personnel and experienced IP counsel on the latest protection and enforcement programs.

PLI Group Discounts

Groups of 4-14 from the same organization, all registering at the same time, for a PLI program scheduled for presentation at the same site, are entitled to receive a group discount. For further discount information, please contact membership@pli.edu or call (800) 260-4PLI.

PLI Can Arrange Group Viewing to Your Firm

Contact the Groupcasts Department via email at groupcasts@pli.edu for more details.

Cancellations

All cancellations received 3 business days prior to the program will be refunded 100%. If you do not cancel within the allotted time period, payment is due in full. You may substitute another individual to attend the program at any time.

For additional information or to sign up for this event please visit the PLI website.

This intellectual property article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Global Immigration Alert - Australia: Introduction of Biometric Requirements for Certain Visa Applicants

Michael Hawkes — Thu, 24 Mar 2011 14:45:00 -0500

The Minister for Immigration and Citizenship has announced that biometric requirements will be implemented for visa applicants from Syria and Malaysia starting in April 2011, and for applicants from Lebanon, Kenya, Jordan and France starting in May 2011.

Applicants who submit paper application forms will need to provide a digital facial photograph and fingerprint scans at local visa application centers. Online applicants that are eligible for an electronic visa do not need to provide biometrics at this time.

Biometric requirements have already been implemented for Australian visa applicants in Bahrain, Bangladesh, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates, Yemen and Zimbabwe. More than 8,000 visa applicants have submitted biometric information since the commencement of the program in December 2010.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Gibney’s Immigration Practice Group Ranked by Chambers and Partners

Michael Hawkes — Thu, 17 Mar 2011 11:27:09 -0500

Gibney’s Immigration Practice Group and Partner, Stephen J.O. Maltby, have received the honor of being ranked as Leaders in their Fields in Chambers USA 2011. To be ranked, firms must have an outstanding reputation among their peers and clients. The guide will be released in June, 2011.

Chambers and Partners is a prestigious, independent law firm ranking journal that interviews over 20,000 attorneys annually to find the best in the industry. Chambers releases annual guides ranking the top law firms globally, in the United States, Europe, United Kingdom, Asia Pacific, and Latin America. For more information or to visit the Chambers and Partners site please visit http://www.chambersandpartners.com/

Immigration Alert: April 2011 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 11 Mar 2011 14:03:40 -0600

The U.S. Department of State (DOS) has published the April 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 22, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: July 22, 2005
China: March 1, 2004
Dominican Republic: July 22, 2005
India: April 8, 2002
Mexico: May 8, 2004
Philippines: July 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: July 22, 2003
China: April 22, 2003
Dominican Republic: July 22, 2003
India: April 8, 2002
Mexico: July 22, 2003
Philippines: July 22, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the April 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5368.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Canada: Amendments to Temporary Foreign Worker Program

Michael Hawkes — Wed, 09 Mar 2011 07:42:14 -0600

Effective April 1, 2011, employers and certain temporary foreign workers will be subject to additional requirements under new Temporary Foreign Worker Program regulations. These include:

a more rigorous assessment of the genuineness of the job offer;
a two-year prohibition from hiring temporary foreign workers for employers who fail to meet their commitments to workers with respect to wages, working conditions, and occupation; and
a limit to the length of time a temporary foreign worker may work in Canada before returning home.

The Canadian government intends to review employers seeking to hire temporary foreign workers to ensure past compliance with program requirements before authorization to hire foreign workers will be granted. Employers found to have violated worker rights may be refused authorization to hire a foreign worker. Employers that have not met their previous commitments to foreign workers may be denied access to the temporary foreign worker program for two years. Offending employers’ names would also be published on the Citizenship and Immigration Canada website to inform other temporary foreign workers already in Canada. Employers will be given the opportunity to defend the company’s actions prior to any government action taken against them.

A four-year cumulative limit will also be imposed on certain temporary foreign workers’ employment in Canada. After a four-year maximum temporary work term, certain foreign workers will be required to depart Canada and wait four years before becoming eligible to apply for an additional period of temporary work in Canada. The limit does not affect eligibility for permanent residence; qualified foreign workers may still apply for permanent residence at any time while they are legally in Canada or after their departure. This four year limit does not apply to foreign nationals entering Canada under a Labor Market Opinion exemption category, i.e., Intra Company Transfers.

These changes are intended to ensure that employers strictly comply with the Temporary Foreign Worker Program. Employers will also need to plan in advance if they wish to continue to employ foreign workers beyond the established limits on periods of temporary stay.

For additional information, please visit Citizenship and Immigration Canada at http://www.cic.gc.ca/english/department/media/releases/2010/2010-08-18.asp. For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Colombia - Temporary Work Visa Applications Streamlined

Michael Hawkes — Tue, 08 Mar 2011 07:17:00 -0600

Effective March 8, 2011, foreign nationals applying for a Colombian Temporary Work Visa (TWV) are no longer required to submit a Certificate of Proportionality with their applications.

The Ministry of Social Protection previously required a Certificate of Proportionality to confirm Colombian companies adhered to the required ratio of Colombian nationals to foreign national employees provided for in the Colombian Labor Code.

The elimination of the Certificate of Proportionality will reduce documentary requirements and processing times for TWV applications.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - United Kingdom: Proposed Changes to the Points-Based System

Michael Hawkes — Mon, 07 Mar 2011 13:35:11 -0600

The U.K. Border Agency has announced proposed changes in the operation of the Tier 2 category of the Points-Based System and provided guidance on the permanent cap. These changes are proposed to take effect on April 6, 2011. The proposals discussed below are subject to confirmation by Parliament in March 2011. The general information herein is provided so that individuals and employers may plan ahead for recruitment, but is subject to change.

Tier 2 (General) – Restricted Certificates of Sponsorship

If proposed changes take effect on April 6, 2011, certain eligibility criteria will change and an annual cap will be introduced on certain Tier 2 applications. The Tier 2 (General) category will be deemed restricted and subject to an annual cap of 20,700. These Certificates of Sponsorship (CoS) will be divided into twelve months allocations of 1500 per month. If the monthly allocation is not reached, any places that are unused each month will be rolled over to the following month. In the event that the monthly allocation is over subscribed, CoS applications will be ranked using a points system designed to favor jobs on the shortage occupation list, scientific researchers and those with a higher salary. Once a CoS has been issued to an employer, it must be assigned to the prospective employee within 3 months.

For CoS applications in the restricted category, the sponsor must attest that

the occupation is on the Shortage Occupation List; or
the sponsor has carried out a Resident Labour Market Test (RLMT).

The sponsor will also be asked to confirm that:

the job is on the published Graduate Occupations List of jobs eligible for Tier 2; and
the role meets the requirements for the occupation as specified on the Shortage Occupation List or the sponsor has carried out a RLMT; and
the job meets the minimum applicable salary requirements.

Unrestricted Certificate of Sponsorship

The Tier 2 (Intra Company Transfer) category, which is not part of the annual cap and therefore deemed unrestricted, will be changed in 3 ways:

the job will have to be in an occupation on the graduate occupation list or the U.K. ’s Shortage Occupation List;
those paid between £24,000 and GBP£40,000 will be allowed to remain in the U.K. for no longer than 12 months, at which point they must leave and will not be able to re-apply for 12 months; and
only those paid GBP£40,000 or more will be able to stay for more than a year. They will be granted a stay of 3 years with the possibility of extending for a further 2 years.

The other categories not subject to the cap and deemed unrestricted include the following:

Foreign nationals already in the U.K. under Tier 2 (General) or under the work permit scheme who are filing an extension of stay;
Foreign nationals already in the U.K. under Tier 2 (General) or under the work permit scheme who are filing a change of employer;
Foreign nationals already in the U.K. under the Tier 1 (General) or the Highly Skilled Migrant Program who must file a change to an employer-sponsored status under the Tier 2 (General); and
Foreign nationals who are new hires and their annual salary exceeds GBP£150,000.

Importantly, prior to March 11, 2011 employers are required to apply for their annual unrestricted CoS allocations. We anticipate additional changes and guidance once Parliament has acted.

Gibney will continue to monitor changes and provide updates. Please contact your Gibney representative if you have any questions.

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Global Immigration Alert – China: Changes to Visa Application Process

Michael Hawkes — Wed, 02 Mar 2011 07:59:38 -0600

On January 1, 2011, the Chinese Embassy in Washington, D.C. announced implementation of a new Visa Application Form (Form V.2011A) for all tourist, business visa, and employment visa applications. While the new form may be utilized immediately, Chinese consular posts will continue to accept the prior version of the Visa Application Form until June 30, 2011.

In addition, effective immediately, foreign nationals who are applying for visas in the following categories must submit a new Supplementary Visa Application Form (Form V.2011B):

Z-visa to work in China
X-visa to study in China
Visas to accommodate persons traveling under the same passport, i.e., dependent children

The Supplementary Visa Application Form is now required for all foreign nationals applying for one of the visa categories listed above when they apply for the visa in a country other than their country of origin or citizenship.

In addition, at least one consular post indicated there are plans to eliminate same day visa processing as early as March 2011. While no official announcement has been issued concerning this development, such a change would have a significant impact on visa processing resulting in longer processing times impacting business travelers. Gibney will continue to monitor developments and provide updates as they become available.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Gibney Sponsors GDC 2011 Event for Women In Gaming International

Michael Hawkes — Wed, 02 Mar 2011 07:57:25 -0600

Gibney, Anthony & Flaherty LLP is pleased to support Women In Gaming International (WIGI) and sponsor the Game Developers Conference (GDC) 2011 reception. This year's reception will be held at the California Historical Society Museum in San Francisco on Wednesday, March 2, 2011. Through dedicated representation in the areas of Intellectual Property, Business, Immigration and Global Mobility, among others, Gibney supports the growth of innovative companies and entrepreneurial individuals in the fields of gaming and entertainment publishing, social media, and software development.

For more information about WIGI and details regarding the GDC 2011 WIGI reception, please visit http://www.womeningamesinternational.org/.

Estate Planning: Gibney Partner Quoted in News Article

Michael Hawkes — Thu, 24 Feb 2011 10:51:48 -0600

Gibney Partner, Gerald Dunworth, was quoted in a BNET article entitled, “Today’s To-Do List: Create a Succession Plan for the Unexpected”. This article describes estate planning considerations for business owners.

Mr. Dunworth was quoted on valuation of a business:

"The most difficult part of the plan is usually putting a value on the business,” says Gerald Dunworth, a partner at the New York law firm Gibney, Anthony & Flaherty. “This is important for two reasons: 1) the individuals in the family who do not participate will often think mom and dad gave the business siblings a big gift, and 2) the value will have to be justified to the IRS if an estate tax return is required.”

Please view the full article at http://www.bnet.com/blog/small-biz-advice/today-8217s-to-do-list-create-a-succession-plan-for-the-unexpected/244.

This estate planning article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: H-1B Filings for Fiscal Year 2012

Michael Hawkes — Tue, 22 Feb 2011 15:46:51 -0600

April 1, 2011 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2012 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Background

H-1B cap cases generally fall within two categories:

“Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1, as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Last year, due to the economic recession and late-enacted legislation preventing certain employers from filing H-1B cap-subject petitions, USCIS received a relatively small number of the H-1B petitions needed to meet the FY 2011 cap in the first five days of filing, and the H-1B cap was not reached until January 26, 2011. However, it is anticipated that a far greater number of H-1B cap cases will be filed this year due to signs of economic recovery and the sunset on February 17, 2011 of restrictions imposed under the Employ American Workers Act of 2009.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2012 annual cap. These include the following:

Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

New Form I-129

U.S. employers petitioning for nonimmigrant workers must utilize the revised version of the Form I-129, which became effective in December 2010. USCIS delayed implementation of the new section six, entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The certification regarding compliance with export control regulations will have to be completed on all Forms I-129 filed on or after February 20, 2011 (Please refer to Gibney’s Immigration Alert from December 3, 2010 for details.)

Proposed Changes to the Filing Procedure

In December 2010, the Office of Management and Budget (OMB) approved a proposed rule that would require employers to pre-register with U.S. Citizenship and Immigration Services (USCIS) before filing an H-1B cap petition. Details of the proposed rule are confidential and will not be disclosed until the proposed rule is published for public comment in the Federal Register. Pre-registration would not be implemented until an interim or final version of the regulation is approved by OMB and published. Though no date has been specified, a pre-registration system could be implemented for the Fiscal Year 2012 H-1B filing season, which begins April 1, 2011.

The purpose of the proposed system is to streamline the H-1B cap filing process. The new procedure, if implemented, will allow employers to register online and wait until they are awarded an H-1B cap number in the annual lottery before submitting a full petition with supporting documentation. The agency anticipates that it will eventually use a pre-registration system for other classifications that are subject to annual caps, like the H-2B. Gibney will continue to monitor developments and provide updates on any new procedures.

Please contact your designated Gibney representative should you require guidance on how to complete the new Form I-129 or if have any questions regarding the foregoing.

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Immigration Alert: USCIS To Issue Combined EAD and Advance Parole Card

Michael Hawkes — Thu, 17 Feb 2011 15:07:07 -0600

On February 11, 2011, United States Citizenship and Immigration Services (USCIS) announced that it would begin issuing a combined Employment Authorization and Advance Parole card (Advance Parole EAD card) for certain adjustment of status applicants who have filed a Form I-485 Application to Register Permanent Residence or Adjust Status.

Prior to this announcement, employment- and family-based adjustment of status applicants received two separate documents - an Employment Authorization Document (EAD) card and an Advance Parole (AP) travel document - to allow for work and travel authorization while the I-485 is pending adjudication with USCIS. Under the new process, which is effective immediately, applicants who concurrently file for an EAD (Form I-765) and for Advance Parole (Form I-131) will receive a single combined Advance Parole EAD card, authorizing both work and travel for the duration of its validity. The Advance Parole EAD card will appear similar to the current EAD card, but will also state “Serves as I-512 Advance Parole,” indicating its dual function. According to USCIS, the card will generally be issued for one or two years of validity, depending on visa availability. However, USCIS reserves its discretion to issue the card for other periods of validity based on circumstantial factors.

The Advance Parole EAD card will be issued only when an applicant’s EAD and AP applications (Forms I-765 and I-131, respectively) are concurrently submitted to USCIS. Because USCIS rules prohibit renewal of EAD and AP documents beyond four (4) months of a document’s expiration, some applicants may find it necessary to file separate EAD and AP applications in order to maintain seamless work and travel authorization. These applicants would then receive separately issued AP and EAD documents.

USCIS confirms that employers may accept the new Advance Parole EAD card as a List A document when verifying an individual’s work authorization for I-9 purposes.

For additional information regarding the new Advance Parole EAD card, please see USCIS Q&A.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: March 2011 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 15 Feb 2011 07:49:00 -0600

The U.S. Department of State (DOS) has published the March 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 8, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: July 1, 2005
China: January 22, 2004
Dominican Republic: July 1, 2005
India: March 15, 2002
Mexico: January 8, 2004
Philippines: July 1, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: June 15, 2003
China: April 22, 2003
Dominican Republic: June 15, 2003
India: March 15, 2002
Mexico: May 1, 2003
Philippines: June 15, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the March 2011 Visa Bulletin is available at: http://travel.state.gov/visa/bulletin/bulletin_5337.html

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Intellectual Property Attorney Walter-Michael Lee to Speak at Chicago Comic & Entertainment Expo

Michael Hawkes — Thu, 03 Feb 2011 08:35:30 -0600

Gibney attorney, Walter-Michael Lee will speak at the Chicago Comic & Entertainment Expo (C2E2) on Friday, March 18, 2011 from 5pm to 6pm. Mr. Lee will give a presentation entitled, Intellectual Property 101: How to Protect Your Intellectual Property and Not Infringe Others’.

Lecture Description:

Panel Room 4[473]
Intellectual Property 101: How To Protect Your Intellectual Property and Not Infringe Others'
Friday, March 18th 5:00PM - 6:00PM

You have created your own comic book hero, he can protect the world, but only you can protect your rights. In this seminar, you'll learn the basics of protecting your intellectual property and how not to infringe upon other people's works. Scheduled topics to be discussed include the following: an overview of copyrights, trademarks, fair use, what to do if someone is improperly using your works and how to avoid improperly using someone else's works.

C2E2 will be held in Chicago from March 18th to 20th. For more information or to register for this event please visit http://www.c2e2.com.

Immigration Practice Group Hosts February 3rd Seminar on Global Mobility - Recovery & Reform in 2011: Is Your Company Ready?

Michael Hawkes — Tue, 01 Feb 2011 07:40:16 -0600

On February 3, 2011 Gibney will hold a seminar entitled, Recovery and Reform in 2011: Is Your Company Ready?
Details are as follows:

Continental Breakfast 8:30 am - 9:00 am PST
Seminar 9:00 am - 10:30 am PST

Location

The Hilton Santa Clara
4949 Great America Parkway
Santa Clara, CA 95054

Topics for Discussion

The speakers will discuss global trends in immigration and individual/mobility taxation, including how companies can prepare for anticipated economic growth and legal reforms in key jurisdictions:

1. United States
2. United Kingdom
3. India
4. China

Speakers


Minal Shah Gibney, Anthony & Flaherty, LLP	Deborah Davy Gibney, Anthony & Flaherty, LLP	Brent Bergan Global Mobility Tax, LLP	Claudia Howe Global Mobility Tax, LLP

If you have questions about this seminar or are interested in receiving invitations to future seminars please send your name and contact info to seminars@gibney.com

Immigration Alert: H-1B Cap Reached January 26, 2011

Michael Hawkes — Fri, 28 Jan 2011 13:25:49 -0600

United States Citizenship and Immigration Services (“USCIS”) announced yesterday, January 27, 2011, that it has received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on January 26, 2011. USCIS will reject new H-1B petitions for Fiscal Year 2011 that are received after January 26, 2011.

USCIS will begin accepting new H-1B petitions on April 1, 2011 for the following Fiscal Year 2012 (October 1, 2011 to September 30, 2012).

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Global Immigration Alert - The Netherlands: Modern Immigration Policy Act Postponed

Michael Hawkes — Sat, 15 Jan 2011 14:07:00 -0600

The Minister for Immigration and Asylum Policy in the Netherlands announced that the Modern Migration Policy Act (The Act), expected to take effect on January 1, 2011, would be postponed. The postponement is due to a delay in the implementation of a new computer system of the Immigration and Naturalization Service (IND), which is a pre-requisite for the introduction of the Act.

The Act will amend the Aliens Act 2000 and is applicable to foreign nationals residing in the Netherlands for more 3 months, other than citizens of the EU, EEA, or Switzerland. The Act will streamline admission procedures and will introduce legal rights and obligations for sponsors.

Streamlining of Process
Sponsors and foreign nationals will use the new Admission and Residence Procedure (TEV), which will be a single application for a residence permit (MVV). The TEV will replace the two separate applications for a regular provisional residence permit (MVV) outside the Netherlands and for a residence permit after arrival in the Netherlands. After the MVV has been issued, the IND will grant the residence permit automatically. Additionally, sponsors may submit an application for a residence permit on behalf of a visa-exempt foreign national who is still abroad. If a work permit (TWV) is required, the sponsor will be able to apply for both the TWV and the residence permit at the same time using a single form. Once implemented, the Act will significantly expedite the processing time for a work and resident permit.

Sponsor Rights and Obligations
Under the Act, the sponsor will have rights and obligations while the foreign national is in the Netherlands. This includes the right to submit a residence application on behalf of a foreign national, as well as the right to submit objections and appeals.

A sponsor’s obligations will include:

Obligation to provide information to the IND within the context of the foreign national’s initial application and extension of residence in the Netherlands. As soon as the foreign national obtains a residence permit, the sponsor has a duty to report all relevant changes affecting either the sponsor or the foreign national;
Obligation to keep and retain records relating to the foreign national for up to 5 years after the end of the sponsorship period; and
Duty of care towards the foreign national including the careful recruitment and selection of a foreign workers and the requirement to inform the foreign national of the conditions of admission and residence with which he/she will need to comply.

These changes in the Netherlands IND are part of a global trend, as governments place greater burdens on employers with respect to reporting and record keeping. Non-compliance may result in financial penalties on sponsors and foreign nationals.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

Immigration Alert: February 2011 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 14 Jan 2011 07:42:14 -0600

The U.S. Department of State (DOS) has published the February 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: July 1, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: April 1, 2005
China: January 1, 2004
Dominican Republic: April 1, 2005
India: February 22, 2002
Mexico: July 8, 2003
Philippines: April 1, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: May 1, 2003
China: April 22, 2003
Dominican Republic: May 1, 2003
India: February 22, 2002
Mexico: May 1, 2003
Philippines: May 1, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the February 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5228.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Approaching

Michael Hawkes — Wed, 05 Jan 2011 15:09:26 -0600

On January 4, 2010, U.S. Citizenship & Immigration Services (“USCIS”) announced that, as of December 31, 2010, approximately 57,300 H-1B cap-subject petitions had been filed. We anticipate that USCIS will soon announce the cap has been reached. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for fiscal year 2011 (October 1, 2010 to September 30, 2011). Employers preparing new H-1B petitions are encouraged to expedite processing as soon as possible.

On April 1, 2011, USCIS will begin accepting applications for fiscal year 2012 (October 1, 2011 to September 30, 2012).

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Global Immigration Alert - South Korea: Changes to Streamline the Employment Visa Process

Michael Hawkes — Wed, 05 Jan 2011 14:30:00 -0600

Korea recently implemented two changes that will streamline procedures for foreign nationals:

1) Certain foreign workers no longer need to obtain advance approval before changing their place of employment; and
2) Re-entry permits requirements are waived for holders of long-term work visas who depart Korea for less than one year.

Reporting Requirements Simplified

Effective January 1, 2011, certain foreign nationals who wish to add to or change their place of employment will no longer need to obtain advance approval. However, the foreign national must report the change within five days to the Immigration Office having jurisdiction over his or her place of residence. This new procedure applies to the following employment visa categories:

• E-1 (Professorship)
• E-2 (Foreign Language Instructor)
• EE-3 (Research)
• E-4 (Technological Transfer)
• E-5 (Professional Employment)
• E-6 (Arts & Performance)*
• E-7 (Special Occupation)**

*Excludes those who are employed at hotels or pleasure resorts (E-6-2)
** Excludes sales person, head cooks and cooks

Changes to Re-Entry Permit Requirements

Effective December 1, 2010, foreign nationals holding long-term work visas are no longer required to obtain a re-entry permit if they depart Korea and re-enter within one year. Previously, foreign nationals were required to obtain re-entry permits for each return trip. The new rules apply to the following visa categories:

• A-1 (Diplomatic)
• A-2 (Official Business)
• A-3 (Convention/Agreements)
• D-1 (Cultural Arts)
• D-2 (Students)
• D-3 (Industrial Training)
• D-4 (Gen. Training)
• D-5 (Journalism)
• D-6 (Religious Affairs)
• D-7 (Supervisory Intracompany Transfer)
• D-8 (Corporate Investment)
• D-9 (Trade Management)
• D-10 (Job Seeking)
• E-1 (Professorship)
• E-2 (Foreign Language Instructor)
• E-3 (Research)
• E-4 (Technological Transfer)
• E-5 (Professional Employment)
• E-6 (Arts & Performance)
• E-7 (Special Occupation)
• E-9 (Non-professional employment)
• E-10 (Vessel Crew)
• F-1 (Family Visitation)
• F-2 (Residential)
• F-3 (Dependent Family)
• G-1 (Miscellaneous)
• H-1 (Working Holiday)
• HH-2 (Working visit)

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Global Immigration Alert - United Arab Emirates: Emirates Identity Card and New Visa Requirements for Canadians

Michael Hawkes — Wed, 05 Jan 2011 14:09:00 -0600

Deadline Extended for New Identity Card

The Emirates Identity Authority (EIDA) extended the deadline to apply for a new Emirates Identity Card from December 31, 2010 to June 30, 2011.

The new Emirates Identity Card will store identification information electronically. It will be required for all citizens and expatriate residents aged 15 years and over. The Identity Card will allow holders to readily access governmental and non-governmental services. Eventually, this Identity Card will replace all currently applicable forms of identification such as labour permits, health cards, and drivers’ licenses.

New Visa Requirements for Canadian Citizens

Effective January 2, 2011, Canadian citizens are required to obtain an entry visa prior to travel to the UAE. Applications must be submitted to the UAE Embassy in Ottawa at least three weeks prior to departure. Canadian citizens legally resident in any of the Gulf Cooperation Council (GCC) countries will still be able to obtain a visa directly upon arrival at any of the UAE airports or border checkpoints.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

Global Immigration Alert - The Netherlands: New Proof of Guarantee Required for Visa Sponsorship

Michael Hawkes — Wed, 05 Jan 2011 14:05:00 -0600

Effective January 1, 2011, the Immigration and Naturalization Service (IND) in the Netherlands announced that sponsors or financial guarantors of short-stay visas are required to provide a “proof of guarantee and/or private provision of accommodation” using a standard form. This replaces the invitation letter and the sponsor declaration. The completed and signed form must be legalized in the municipality where the sponsor/guarantor resides. The legalized form should be submitted with the foreign national’s visa application at the Netherlands Embassy or Consulate abroad.

The new ”proof of guarantee and/or private provision of accommodation” is available on the Immigration and Naturalization Service (IND) website: http://english.ind.nl/Brochures_en_Formulieren/index.aspx.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

Immigration Practice Head to Speak at City Bar CLE Event

Michael Hawkes — Tue, 21 Dec 2010 07:28:48 -0600

On Thursday, January 13, 2011 from 6:00 to 8:15 the New York City Bar Center for CLE will be hosting a program entitled, Immigration Law in the Workplace: the Current Compliance Landscape. There will be three lectures that describe U.S. immigration worksite compliance. Please see the full agenda.

Gibney Immigration Partner, Stephen J.O. Maltby, will be speaking during a session entitled, "How to Represent Your Client During a Government Audit or Investigation by ICE". This session will lay out exactly what will happen during a government investigation and the proven strategies for dealing with a Notice of Intent to Fine and negotiating with the government.

For more information on CLE events hosted by the New York City Bar please visit www.nycbar.org/CLE/index.php.

Global Immigration Alert: Costa Rica - Expansion of Entry Visa Exemption for Non-Residents

Michael Hawkes — Tue, 14 Dec 2010 07:10:00 -0600

On December 22, 2010 the General Office of Migration of Costa Rica, Direccion General de Migracion y Extrajeri (DBME), announced that certain foreign nationals who previously required a visa to enter Costa Rica are now exempt provided that they hold valid tourist, business, or crewmember visas issued by Japan or South Korea. The Japanese or South Korean visa must be endorsed in the foreign national’s passport and must be valid for a minimum of three months beyond the intended length of stay in Costa Rica.

This exemption applies to foreign nationals in the third and fourth group as designated by the circular letter summary (DG-3312-201). For a complete list of foreign nationals eligible for this exemption, please visit: http://www.migracion.go.cr/visas/Directrices%20visas.pdf.

This visa exemption for group 3 and group 4 is further expanded if the foreign national is a permanent resident of the United States, Canada, or an EU country, or if the foreign national holds a tourist, business, crewmember, work permit, or student visa from one of these countries that is valid for a minimum of six months beyond the intended length of stay in Costa Rica.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: January 2011 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 13 Dec 2010 15:54:10 -0600

The U.S. Department of State (DOS) has published the January 2011 Visa Bulletin. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: June 22, 2006
Dominican Republic: Current
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: March 22, 2005
China: December 15, 2003
Dominican Republic: March 22, 2005
India: February 1, 2002
Mexico: April 15, 2003
Philippines: March 22, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: April 22, 2003
China: April 22, 2003
Dominican Republic: April 22, 2003
India: February 1, 2002
Mexico: April 15, 2003
Philippines: April 22, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the January 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5212.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert - Hong Kong: Procedural Changes Affecting Foreign National Residents

Michael Hawkes — Fri, 10 Dec 2010 14:50:00 -0600

On December 6, 2010, Hong Kong introduced two optional procedures for foreign nationals residing in Hong Kong, outlined below.

Registration of Outbound Travel Information

The government launched the Registration of Outbound Travel Information (ROTI) service to facilitate communication and assistance for foreign nationals in the event of an emergency. Hong Kong residents can register their contact details and itineraries for travel outside Hong Kong. ROTI registrants will also receive updates via Outbound Travel Alerts.

Online Application for Extension of Stay

Through the Government of Hong Kong website (http://www.immd.gov.hk/ehtml/public_5.htm), foreign nationals may now apply for an extension of stay online. Applications should be submitted no later than four weeks prior to the expiration of the foreign national’s current visa. This service is only available to foreign nationals who are physically present in Hong Kong at the time the application is filed and who are personally able to collect their extended visa. The following immigration categories are eligible:

General Employment Policy
Admission Scheme for Mainland Talents and Professionals
Immigration Arrangements for Non-local Graduates (IANG)
Supplementary Labor Scheme
Student status or their dependants
Dependants of Hong Kong permanent residents or residents who are not subject to a limit of stay (i.e. residents with the right to land, or unconditional stay)

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: New Form I-129 Requires U.S. Employers to Certify Compliance with U.S. Export Control Regulations

Michael Hawkes — Fri, 03 Dec 2010 07:59:38 -0600

Effective December 23, 2010, U.S. employers petitioning for nonimmigrant workers will be required to utilize a revised version of Form I-129 containing a new section entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” This section must be completed by petitioning employers when sponsoring foreign nationals for H-1B, H-1B1 Chile/Singapore, L-1, or O-1A status. The petitioning employer will be required to certify that it has reviewed both the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) to determine whether a license to release controlled technology or technical data to the designated foreign national beneficiary of the petition is required by law. Release of controlled technology to a foreign national is deemed to be an export to the foreign national’s country or countries of nationality. If a license is required, the petitioner must certify that such controlled technology or technical data will not be released to the beneficiary until the license has been obtained from the U.S. Department of State and/or the U.S. Department of Commerce. If no license is required, the petitioner may simply indicate this on the Form I-129.

These licensure requirements only pertain to the aforementioned visa categories and are expected to affect only a small percentage of employers as most technology and technical data is not subject to export control. However, employers will need to verify whether their technologies and technical data are covered under the EAR and ITAR regulations and develop internal access policies and secure licenses as appropriate. The technologies or technical data controlled for release to foreign nationals usually refer to either “dual-use” technologies or defense items, and can be found on EAR’s Commerce Controlled List and on ITAR’s U.S. Munitions List.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Tax Alert: Tax Planning for 2011

Michael Hawkes — Wed, 01 Dec 2010 15:34:50 -0600

In the coming years tax rates are scheduled to increase on a number of fronts. First and most pressing, in 2011 the tax cuts enacted by the Economic Growth Tax Relief Reconciliation Act (“EGTRRA”) are set to expire. The highest rate on ordinary income will increase from 35% to 39.6%, the tax on capital gains is increasing from 15% to 20% and the tax on qualified dividends is increasing from 15% to 39.6%.

Also, under the Patient Protection and Affordable Care Act (“PPAC”) beginning in 2013, taxpayers with income over $250,000 will pay up to 3.8% Medicare tax on net investment income.

In the wake of impending tax law changes you should evaluate the tax planning opportunities available to you. The following planning opportunities presented are based on the principals of timing recognition of income. Timing will have the largest impact on minimizing the inevitable increase in taxes. The longstanding tax savings principal has been that the deferral of income tax will allow you to take advantage of the time value of money. The longer you can defer paying your tax the longer the opportunity to invest that money and increase its value. However, in a market producing minimal returns and impending increases in tax rates, deferral may no longer be the right choice. Taxpayers should give serious consideration to accelerating income for 2010 and deferring deductions into 2011.

METHODS OF ACCELERATING INCOME IN 2010

1. Evaluate the Built in Capital Gains in Your Investments (Stocks, Mutual Funds, Etc.)

By taking stock of your built in gain, you can potentially recognize your unrealized gain at 15% rather than 20%. The basis of the amount you reinvest in the market will be the value you pay now rather than years ago when you may have purchased the stock initially. You will only have to pay the increased rate of tax on appreciation after the reinvestment.

Whether it’s beneficial to accelerate your income is dependant on a number of factors such as your market rate of return on the investment and how long you hold the investment. It is not beneficial for investments with a consistently high return (8% and above) that you intend to keep for 5 years or more. On the other hand if the rate of return is lower and you are likely to sell in the near future it would be beneficial to make the sale in 2010 while the capital gains tax rate is still lower.

Additional factors to consider are the commissions and fees involved and whether there is the possibility that gain will never be recognized. No gain will be recognized if you hold the assets until you die (your descendents receive a stepped up basis) or if you contribute the assets for a charitable purposes.

As you reinvest in the market you should consider which investments will produce the greatest after tax yield. Given the slated increase in the tax on dividends, dividend producing equities may yield a lower after tax return that non-dividend producing equities. If a particular dividend producing equity appeals to you consider holding the investment in your IRA rather than in your individual brokerage account. Further, you may want to consider investing in municipal bonds or other tax free vehicles.

2. If Turning 70 ½ This Year Consider Not Deferring Your Required Minimum Distribution to April 2011

Although a major benefit of retirement plans is the ability to defer your income, deferral is not always the best option. Beginning in the year you turn 70 ½ you must start taking required minimum distributions from your retirement plans. However, you are allowed to defer your first required minimum distribution until April of the year following the year in which you turn 70 ½. Although deferral has been the favored option for most, the increase in ordinary income tax rates is likely going to outweigh the benefit of deferral if you have or will turn 70 ½ in 2010.

3. Review Your Stock Options

The taxation of non statutory stock options is all about timing, and as discussed throughout this article, given the increase in taxes slotted for 2011, timing is the name of the game. In general, unrestricted non qualified stock options are included as ordinary income in the year that they are exercised. Once the option has been exercised any future appreciation on the purchased stock is taxed as capital gains.

If you have flexibility in the timing of when you exercise your unrestricted options you may want to consider exercising in 2010 rather than 2011, after the ordinary income tax rates increase.

As discussed above, other factors must be considered in making these decisions, such as the projected performance of the stock.

4. Limited Planning Opportunities for Grants of Restricted Stock

In general, grants of restricted stock from your employer are included in income in the year that the restriction lapses. This is applicable to restricted stock you receive outright or restricted stock that you have to pay for (i.e. an option). However, the holder of restricted stock is permitted to make an election to include the value of the stock (less exercise price, if any, in the case of an option). This is called a 83(b) election. A 83(b) election must be made with the Internal Revenue Service (“IRS”) no later than 30 days following the grant of the restricted stock or the exercise of the option to acquire the restricted stock. Once the value of the stock has been included in your ordinary income any future appreciation is taxed as capital gains.

Because of the 30 day requirement, there is a small window for planning with restricted stock. However, if you are going to exercise restricted stock options in 2010 or have recently received grants of restricted stock, you should consider making an 83(b) election to include the amount in your ordinary income for 2010.
As discussed above, other factors must be considered in making these decisions, such as the projected performance of the stock.

5. Consider Converting Your Traditional IRA to a ROTH IRA

If you choose to covert your traditional IRA to a Roth IRAs you will pay ordinary income tax on the taxable amount that is converted. The advantage of the conversion is that all future distributions are made tax free and you will not be required to take required minimum distributions. There is nothing that prohibits an individual who has begun required minimum distributions from converting their traditional IRAs to a Roth IRA; however, if an individual is subject to required minimum distributions for 2010 they must take their 2010 required minimum distribution even if they convert their IRA to a Roth IRA.

Furthermore, effective December 31, 2009, the Tax Increase Prevention Act of 2005 eliminates the income limitation on converting traditional IRAs to Roth IRAs. So now anyone can convert their traditional IRA to a Roth IRA.

Although this is a complete repeal and not just a window for 2010, taxpayers should seriously consider making the conversion while the income tax rates are lower. Taxpayers that convert their traditional IRAs to Roth IRAs in 2010 will include 50% of the taxable amount in income in 2011 and 50% in 2012, unless they elect to include the entire amount in income in 2010. As discussed throughout this article you should seriously consider whether the benefit of deferring income into subsequent tax years outweighs the increased tax rates.

The following example will help illustrate how it is possible that deferral of tax is not always the ideal solution in a climate of increasing tax rates. The taxable portion of your traditional IRA is $500,000 in 2010, you’re in the highest tax bracket and you choose to convert to a Roth IRA. If you elect to include the amount in income in 2010, the tax on the conversion is $175,000. Alternately, if you do not elect to include the amount in income in 2010, the tax in 2011 will be $99,000 and the tax in 2012 will be $99,000 ($198,000 total). The question you should be asking yourself is whether you can generate a return of at least $23,000 by deferring the tax into 2011 and 2012. That is a return of over 13% over the two years which for many individuals is unlikely given market conditions.

METHODS OF DEFERRING DEDUCTIONS/LOSSES INTO 2011

1. Evaluate the Built in Capital Losses in Your Investments (Stocks, Mutual Funds, Etc.)

In conjunction with assessing your built in capital gains, you should also be assessing your built in capital losses. By deferring your capital losses to 2011 you can be offsetting gain that will be taxed at the higher rate of 20%.

2. Consider Deferring Itemized Deductions into 2011

The value of your itemized deductions is greater when the tax rate is increased. Therefore, it is advantageous to defer your itemized deduction to the following year when there is going to be a stark increase in taxes.

As an individual cash method taxpayer you take itemized deductions in the year in which you make the actual payments. You may not have a say in when you make certain payments, for example, your monthly mortgage payment. However, there are a number of itemized deductions that you can control the timing of. Consider making your year end charitable contributions in January of 2011. Additionally, if your real estate taxes or mortgage payment is not due until January 2011 do not prepay in December 2010.

Consider the following example to illustrate this point. In 2010 you are in the highest tax bracket and your tax rate is 35% and you have $10,000 in charitable donations. That $10,000 saves you $3,500 in tax in 2010. If you wait to make the donations in January 2011, that same deduction will save your $3,960.

3. Determine Whether Your Business Should Defer Asset Acquisitions to 2011

As a business owner you are able to take certain additional depreciation deductions in the year of acquisition (“bonus depreciation”). For the same reason as articulated above with regards to itemized deductions, the value of additional depreciation is greater when the tax rate is higher. Therefore, if you are intending to make a large purchase of a depreciable asset in 2010 and the timing is otherwise flexible consider putting off the purchase till 2011.

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This tax article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: USCIS Fee Increases Effective November 23, 2010

Michael Hawkes — Tue, 09 Nov 2010 15:34:48 -0600

U.S. Citizenship and Immigration Services (USCIS) announced new government filing fees for immigration applications and petitions effective November 23, 2010. The final rule will increase overall fees by a weighted average of approximately 10 percent but will not increase the fee for the naturalization application. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories.

Adjusted fees for commonly filed petitions and applications include the following:

I-129	Petitioner for Nonimmigrant Worker	Increase from $320 to $325
I-907	Premium Processing Request	Increase from $1,000 to $1,225
I-539	Application to Change/Extend NIV Status	Decrease from $300 to $290
I-140	Immigrant Petition for Alien Worker	Increase from $475 to $580
I-130	Petition for Alien Relative	Increase from $335 to $420
I-485	Application for Permanent Residence Biometrics Fee	Increase from $930 to $985 Increase from $80 to $85
I-131	Application for Travel Document	Increase from $305 to $360
I-765	Application for Employment Authorization	Increase from $340 to $380

For additional information and a complete list of adjusted fees, please visit the USCIS website at www.uscis.gov.

If you have any questions regarding this alert, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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U.K. Upcoming Event: Nov. 18, 2010 Partner Stephen Maltby to Speak at Business Immigration Conference in London

Michael Hawkes — Mon, 01 Nov 2010 15:17:31 -0500

November 18, 2010: Business Immigration Conference in association with Magrath LLP in London

Immigration has been one of the biggest political issues of 2010. The new coalition government has introduced a radical new approach including the imposition of quotas for employment and business related migration. The policy will have a major impact upon the strategies undertaken by U.K. companies to recruit the best candidates for U.K. roles. A number of changes have been made to the points based system and employers and stakeholders have been invited again to respond to extensive consultations by the Migration Advisory Committee and the U.K. Border Agency. In the United States, the administration of Barack Obama has begun to implement a new approach to the issues surrounding immigration.

This annual Business Immigration Conference, in association with the U.S. Embassy in London and Magrath LLP, will include high level speakers from The Home Office, U.K. Border Agency, International Group and the U.S. Consulate. The following issues will be addressed:

The imposition of caps and quotas for skilled migrants
How to maintain a Grade A sponsor license
Changes to the Points Based System
The results of MAC and UKBA consultations
What does the future hold?
Changes to the U.S. Immigration system
An update from the U.S. Consulate

Confirmed speakers:

Mark Franks, Head of Secretariat, Migration Advisory Committee (MAC)
Tom Hadley, Director of External Relations, The Recruitment and Employment Confederation
Christine Kagarise, Nonimmigrant Visa Chief, U.S. Embassy
Stephen Maltby, Partner, Gibney, Anthony & Flaherty, LLP, New York
Jonathan Nancekivell-Smith, International Group, UK Border Agency
Jeremy Oppenheim, Regional Director, UK Border Agency

Upcoming Global Immigration Webinar - November 3, 2010

Michael Hawkes — Mon, 25 Oct 2010 07:47:00 -0500

On November 3, 2010 at 9am PDT / 12pm EDT, Gibney will hold a webinar entitled Overseas Assignments: Relocation, Immigration and Tax Considerations. The webinar will be moderated by Gibney’s Immigration Practice Head, Stephen J.O. Maltby.

Webinar Topics:

I. Host Country Relocation Issues:

What to expect when moving overseas and how to capitalize on the relocation investment

II. Maintaining U.S. Immigration Status While Abroad

How assignments abroad impact foreign nationals with respect to U.S. work visas, lawful permanent residence and eligibility for naturalization

III. Emergency Planning

Legal planning considerations when moving abroad
U.S. Tax residency rules

To register for this webinar please visit:
http://www.gibney.com/seminar-signup

Our Panel:


Stephen Maltby Partner Gibney, Anthony & Flaherty, LLP	Lisa Smith Director, International Client Services Graebel	Deborah Davy Senior Counsel Gibney, Anthony & Flaherty, LLP	Gerald Dunworth Partner Gibney, Anthony & Flaherty, LLP

For additional information about Gibney Seminars / Webinars please contact us as seminars@gibney.com

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Immigration Alert: November 2010 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 14 Oct 2010 15:32:50 -0500

The U.S. Department of State (DOS) has published the November 2010 Visa Bulletin. There are modest advances in priority dates across most categories. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
"Current" means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: June 1, 2006
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 22, 2005
China: November 22, 2003
India: January 22, 2002
Mexico: May 1, 2001
Philippines: January 22, 2005

Employment-based, third preference (EB-3) "other" workers:

Worldwide: April 1, 2003
China: April 1, 2003
India: January 22, 2002
Mexico: May 1, 2001
Philippines: April 1, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the November 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5172.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: October 2010 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 15 Sep 2010 13:54:08 -0500

The U.S. Department of State (DOS) has published the October 2010 Visa Bulletin. With the start of the government’s new fiscal year on October 1, there are modest advances in priority dates across most categories and priority dates once again become available for Mexican nationals in the employment-based, third preference categories. Priority cut-off dates for the most common employment-based categories are provided below.

Employment-based, first preference (EB-1):

All foreign nationals: Current
“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

Worldwide: Current
China: May 22, 2006
India: May 8, 2006
Mexico: Current
Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

Worldwide: January 8, 2005
China: November 8, 2003
India: January 15, 2002
Mexico: April 22, 2001
Philippines: January 8, 2005

Employment-based, third preference (EB-3) “other” workers:

Worldwide: March 22, 2003
China: March 22, 2003
India: January 15, 2002
Mexico: April 22, 2001
Philippines: March 22, 2003

Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the October 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5145.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Final DHS Form I-9 Rules Take Effect

Michael Hawkes — Wed, 25 Aug 2010 13:46:51 -0500

On August 23, 2010 the finalized Form I-9 regulation recently issued by the Department Homeland Security takes effect. The new regulation allows employers to electronically complete, sign, and retain Forms I-9 and clarifies the rules for electronically creating and storing Forms I-9. The new regulation also mandates that employers must complete Section 2 of Form I-9 within three business, rather than calendar, days. More information about the new I-9 regulation can be found here, and the full text of the new regulation is available here.

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Immigration Alert: DHS to Introduce ESTA Fee for Visa Waiver Travelers

Michael Hawkes — Wed, 25 Aug 2010 13:44:33 -0500

Beginning September 8, 2010, the U.S. Department of Homeland Security (DHS) will require Visa Waiver Program (VWP) travelers to pay a $14 fee when registering with the Electronic System for Travel Authorization (ESTA) online prior to traveling to the United States. The fee, authorized by the Travel Promotion Act of 2009, will be utilized to fund programs to promote travel and tourism in the United States.

As of September 8, the $14 ESTA application fee must be paid when the ESTA applicant completes the online ESTA registration form prior to traveling to the United States. The fee must be paid by MasterCard, Visa, American Express or Discover credit card, or by a debit card containing the Visa or MasterCard logo. Instructions for payment will be included with the online ESTA registration form. DHS is exploring other payment options and may implement them at a future date. VWP travelers who have already secured ESTA authorization are not required to re-register when the fees take effect. Their ESTA authorization will remain valid for travel through their current ESTA expiration date.

The Visa Waiver Program & ESTA

The VWP permits citizens and nationals of designated countries to visit the United States for a 90-day period for business or tourism without obtaining a visa provided that they have an e-passport and provided that they have obtained authorization for travel from ESTA. A list of VWP eligible countries may be found at http://travel.state.gov/visa/temp/without/without_1990.html#countries.

ESTA is an online program to pre-screen VWP travelers to determine whether they are admissible to the United States and whether they pose any security or law enforcement risk. ESTA provides VWP travelers with authorization to travel to the United States by air or by sea carrier prior to embarking on such travel. ESTA registration is mandatory for all VWP travelers. ESTA applications may be submitted any time prior to traveling to the United States. Approved ESTA applications are valid for travel to the United States for two (2) years or for the validity period of the applicant’s passport, whichever is less. VWP travelers must obtain a new ESTA authorization if they are issued a new passport, change their name, change their gender, change their citizenship or if any of the answers provided on the initial application change. ESTA is not a guarantee of admission to the United States under the VWP. Rather, ESTA approval provides authorization to board an air or sea carrier to travel to the United States under the VWP. A U.S. Customs and Border Protection officer at the port of entry will continue to determine whether the individual traveler is ultimately admissible to the United States.

Additional information from U.S. Customs and Border Protection regarding ESTA is available at http://www.cbp.gov/xp/cgov/travel/id_visa/esta. Information regarding additional requirements for travel under the VWP, including e-passport requirements, is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/.

If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Provides Guidance on New Law Raising L-1 and H-1B Fees for Some Employers

Michael Hawkes — Wed, 25 Aug 2010 13:41:54 -0500

U.S. Citizenship and Immigration Services (USCIS) has provided preliminary guidance as to how it will implement the L-1 and H-1B fee provisions of the Emergency Border Security Supplemental Appropriations Act of 2010, signed into law on August 13, 2010, and effective immediately.

Which employers are subject to the new fees?

USCIS confirmed that petitioners who employ more than 50 persons in the United States, and whose U.S. workforce is comprised of more than 50% H-1B or L nonimmigrant workers (the “50/50 rule”) are subject to the new fees. Only persons employed by the petitioner within the geographic confines of the United States should be counted; however, both part-time and full-time employees must be counted in determining the workforce and percentage of H-1B and L visa holders. In terms of calculating the percentage of L visa holders, petitioners must include L-2 visa holders working pursuant to an Employment Authorization Document (EAD), in addition to L-1A and L-1B visa holders.

What are the new fees and which petitions are impacted?

Petitioners subject to the 50/50 rule must submit a supplemental L-1 filing fee of $2,250 for initial petitions to grant a foreign national L-1 status to work for the petitioner and for petitions to obtain authorization for a foreign national to change employers in order to work for the petitioner in L-1 status.

Likewise, petitioners subject to the 50/50 rule must submit a supplemental H-1B filing fee of $2,000 for initial petitions to grant a foreign national H-1B status to work for the petitioner and for petitions to obtain authorization for a foreign national to change employers in order to work for the petitioner in H-1B status. The fee is required for those covered petitions postmarked on or after August 14, 2010.

The supplemental fees are not required for petitions to extend or amend H or L status of a foreign national already employed by the petitioner, or for derivative beneficiary (H-4, L-2) applications. Although L-2 visa holders working pursuant to an EAD must be included when determining the percentage of L visa holders in the U.S. workforce, these foreign nationals are not required to pay any supplemental filing fees when filing applications for L-2 status or EADs.

USCIS declined to comment on how the Department of State may implement the new fee requirements for L-1 blanket petitions filed at U.S. consulates abroad.

Companies should work closely with immigration counsel to determine the law’s applicability to its petitions and how best to present petitions to USCIS if not subject to the new fee requirements in order to minimize delays in adjudication.

Gibney will continue to monitor this matter and provide updates as they become available.

If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: New Law Raises L-1 and H-1B Fees for Some Employers

Michael Hawkes — Wed, 18 Aug 2010 16:59:40 -0500

On August 13, 2010, President Obama signed into law the Emergency Border Security Supplemental Appropriations Act of 2010. Among provisions that provide additional funding for law enforcement activities along the southwest border, the law raises the L-1 and H-1B filing fee and fraud prevention and detection fee for some employers. Specifically, for U.S. employers with more than 50 employees and a workforce comprised of more than 50% H-1B or L-1 nonimmigrant workers, the required filing fee and fraud prevention and detection fee is raised by $2,000 for H-1B petitions and $2,250 for L-1 petitions. The fee increase is scheduled to sunset on September 30, 2014.

While the law is effective immediately, we await further guidance from U.S. Citizenship and Immigration Services (USCIS) regarding how companies should count employees to determine the percentage of H-1B and L-1 visa holders, including how companies should treat different legal entities within the same group of companies. Furthermore, additional direction from USCIS is required regarding the collection of fees, including fees for Blanket L petitions filed at U.S. consulates abroad. USCIS is expected to provide implementing guidance later this week. Gibney will continue to monitor this matter and provide updates as they become available.

If you have any questions regarding this alert, please do note hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: September 2010 U.S. Visa Bulletin Released

Michael Hawkes — Fri, 13 Aug 2010 14:44:40 -0500

The U.S. Department of State (DOS) has published the September 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off dates for Chinese and Indian nationals advanced to May 8, 2006. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Chinese nationals advanced to October 22, 2003. The EB-3 “professional and skilled worker” priority cut-off date for Indian nationals remains unchanged at January 1, 2002. The priority cut-off date for Worldwide, the Dominican Republic and the Philippines advanced to December 15, 2004.

In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to March 22, 2003. The EB-3 “other worker” category priority cut-off date for India remained unchanged at January 1, 2002. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year (FY), in October 2010.

The full text of the September 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5113.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Partner Speaks at Intellectual Property Owners Association Annual Meeting

Michael Hawkes — Fri, 06 Aug 2010 12:58:23 -0500

Gibney intellectual property practice head, Brian W. Brokate, will be speaking at the IPO’s Annual Meeting in a panel discussion entitled, “Stopping Counterfeiting Around the World: A ‘How To’ Session”. This discussion will focus on what companies who have discovered trademark infringement against their marks should do and the civil and criminal options available to them in pursuing counterfeiters. Information will be provided on current trends in intellectual property protection and anti-counterfeiting.

The IPO Annual Meeting will be held from September 12 through September 14 at the Hyatt Regency in Atlanta, GA. Mr. Brokate’s panel will be from 8am to 9:30am in the Regency Ballroom on Tuesday, September 14, 2010. For more information on the IPO and the Annual Meeting please visit www.ipo.org.

Immigration Alert: DHS Finalizes I-9 Employment Form Rule

Michael Hawkes — Wed, 04 Aug 2010 17:19:37 -0500

On July 22, 2010 the U.S. Department of Homeland Security finalized a regulation allowing employers to electronically complete, sign, and retain Forms I-9. DHS adopted an interim rule in 2006 allowing electronic storage of Forms I-9. The new regulation contains several modifications to the interim rule: employers must complete Form I-9 within three business, rather than calendar days; employers may use paper, electronic, or a combination of paper and electronic Forms; employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations; employers need not retain audit trails each time a Form I-9 is electronically viewed; and employers are not required to provide a confirmation of a Form I-9 transaction unless the employee requests a copy. The full text of the new regulation is available here.

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Gibney Partner Organizes Charity Auction

Michael Hawkes — Mon, 02 Aug 2010 13:53:43 -0500

Gibney partner, Angelo E.P. Mazza, organized a raffle and silent auction in conjunction with the International AntiCounterfeiting Coalition (IACC) to benefit the Children’s Hospital Boston. On Monday, July 26, 2010, Angelo proudly donated $13,760 to the hospital on behalf of the IACC. Funds will benefit children and their families receiving care.

Children’s Hospital Boston employs 963 active medical and dental staff as well as 897 residents and fellows, 1,570 nursing and clinical personnel and 5,200 other full and part time employees. They also have a diverse, trained team of more than 800 volunteers.

For more information on Children’s Hospital Boston please visit: http://www.childrenshospital.org/.

For more information on the IACC please visit: http://www.iacc.org

Pictured are John Cassillo (RIAA), 2010 IACC Spring Conference Co-Chair, Linda Barchiesi, Bob Barchiesi, IACC President, Angelo Mazza and Tara Hardimon, Children’s Hospital Boston. Missing from the picture are Lisa Rogan (Acushnet Company) and Vanessa Backman (Apple), 2010 IACC Spring Meeting Co-Chairs.

Gibney Partner to Speak at PLI Intellectual Property Law Institute 2010

Michael Hawkes — Tue, 27 Jul 2010 17:44:12 -0500

Gibney’s intellectual property practice head, Brian W. Brokate, will give a lecture at this year’s IP Law Institute entitled, “What’s New in Anti-Counterfeiting” on September 23, 2010 at 1:45 pm. The lecture will cover hot button issues regarding anti-counterfeiting efforts including:

Liability of Internet “middlemen”
Tiffany v. eBay updates: The Second Circuit’s decision (auction sites)
Third party liability against search engines, ISPs and payment services
ACTA updates: The latest and greatest leaks of this secret plurilateral trade agreement
Educating the consumer and use of online resources

The Intellectual Property Law Institute is an annual event held by the Practicing Law Institute (PLI) that brings together thought leaders in the fields of intellectual property rights and anti-counterfeiting. It discusses the latest information and trends seen in intellectual property protection. The New York City Seminar is located at 810 Seventh Ave (at 53rd St) on the 21st floor. For more information or to register for the events please visit www.pli.edu.

Employee Benefits Alert: The Patient Protection and Affordable Care Act - Grandfathered Plans

Michael Hawkes — Tue, 20 Jul 2010 20:32:31 -0500

The Patient Protection and Affordable Care Act (the “Act”) implemented numerous insurance and benefit reforms for group health plans. However, many of these changes will not apply to “grandfathered plans.” Plans in effect on March 23, 2010, the date of enactment, are grandfathered plans.

Preserving Grandfathered Status

In order to take advantage of grandfathered status the plan must not do any of the following:

Eliminate or substantially reduce benefits (For example - no longer covering healthcare services for a major diagnosis category such as diabetes, cystic fibrosis, or HIV/AIDS);
Increase coinsurance charges;
Increase copayment levels by more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical inflation plus 15 percentage points. (For example - increasing copayments from $30 to $50 between 2010 and 2012);
Increase deductibles by more than the medical inflation percentage plus 15 percentage points. (For example - increasing the deductible from $500 to $750);
Decrease the percentage of employer cost sharing by greater than 5 percentage points. (For example - decreasing the employer cost-sharing percentage and increasing employee cost-sharing percentages from 10% to 20%);
Add or tighten annual limits on what the insurer pays – capping or decreasing the annual dollar amount covered by a plan for specific services or adding an annual dollar limit maximum where one did not exist on March 23, 2010; and
Change insurance companies – purchasing insurance from an insurance company other than the insurance company providing the insurance on March 23, 2010. (For example, if a plan solicits and then moves their coverage to another carrier, it will lose its grandfathered status).

These restrictions are effective from the date of enactment, March 23, 2010. However, agencies may disregard changes that modestly exceed the changes made before June 14, 2010, the date the regulations were published. For change made in good faith compliance with the terms of the Act prior to June 14, 2010, plans may revoke any impermissible changes prior to the start of the next plan year on or after September 23, 2010.

Preserving grandfathered status puts numerous limitations on the plan; therefore, you should determine whether the benefits of retaining grandfathered status are worth the limitations imposed. Below are some of the provisions of the Act that do not apply to grandfathered plans.

The plan must permit an individual to select a participating primary care provider, or pediatrician in the case of a child. The plan must provide direct access to obstetrical or gynecological care without a referral and the plan must not require prior authorization or increased cost sharing for out-of-network emergency services.
The plans must provide an effective internal appeals process for coverage determinations and claims and comply with any applicable State external review processes. If the State has not established an external review process that meets minimum standards or the plan is self-insured, the plan or issuer shall implement an external review process that meets standards established by the Federal government.
Plans must not discriminate against health care providers acting within the scope of their professional license and applicable State laws.
Plans must cover certain preventive services, immunizations, and screenings, without any cost sharing.
Plans must disclose, to the Federal government and the State insurance commissioner, certain enrollee information such as claims payment policies and practices and enrollee rights. Additionally, such plans are required to provide information to enrollees on the amount of cost-sharing for a specific item or service.
The requirement that plans not discriminate in favor of highly compensated individuals, previously applicable to cafeteria plans, is now applicable to all fully-insured group health plans.
Plans are prohibited from requiring the disclosure or collection of any information relating to the presence or storage of a lawfully possessed firearm or ammunition in the residence or the lawful use, possession or storage of a firearm or ammunition by an individual.

A grandfathered plan is still required to comply with several provisions of the Act. For the first plan year following September 23, 2010 (most commonly calendar year 2011), the plan must still: (1) eliminate lifetime dollar limits on benefits; (2) not permit recession of coverage except in the case of fraud or material misrepresentation of a material fact; and (3) permit dependants to remain covered up to age 26 as long as the dependant does not have coverage from his/her own employment. Additional requirements become effective for plan years on of after January 1, 2014.

Additionally, if you choose to maintain the plan as a grandfathered plan, you must include a statement in any plan material provided to a participant or beneficiary describing the benefits provided under the plan, stating that the plan believes it is a grandfathered plan within the meaning of section 1251 of the Act and provide contact information for questions and complaints. In the event that you choose to maintain the plan as a grandfathered plan please contact us regarding updating your plan materials, including your Summary Plan Description.

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This employee benefits article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Gibney Partner Quoted in Justice Sotomayor Biography

Michael Hawkes — Tue, 20 Jul 2010 19:11:25 -0500

In Antonia Felix’s biography of Justice Sonia Sotomayor entitled, Sonia Sotomayor: The True American Dream, she describes Justice Sotomayor’s ascent from modest beginnings, growing up in public housing in the Bronx up to her modern day post as Associate Justice to the Supreme Court of the United States.

Sonia Sotomayor attended Princeton for undergraduate studies and Yale University School of Law for her JD. She excelled in both schools and was offered a position as a prosecutor in New York’s district attorneys office where she was able to work on a wide array of criminal proceedings ranging from drugs to organized crime and everything in between.

From there Sonia Sotomayor worked at Pavia & Harcourt primarily dealing with anti-counterfeiting and intellectual property law. After her tenure with Pavia & Harcourt she served as a federal judge in the Southern District of New York and eventually received a nomination from President Clinton to serve as a judge in the Second Circuit Court of Appeals. In 2009 President Obama, impressed by Sotomayor’s background and experience, nominated her to her current position as Supreme Court Justice.

It was during her time engaged an anti-counterfeiting practice that Gibney Partner, Brian W. Brokate, was able to collaborate with Justice Sotomayor. They worked together on various committees to combat counterfeiting and on joint enforcement actions. When asked by the author to describe her Mr. Brokate said she was a great listener who worked for consensus. “Of all the committees I’ve worked on over the years, this was really collaborative.” He also had a chance at the time to get to know her outside of the courtroom. “We had many discussions about things other than law, especially music. She really liked certain rock bands and loved the symphony as well”.

Immigration Alert: USCIS Clarifies "What's the Hire Date for E-Verify"

Michael Hawkes — Mon, 19 Jul 2010 17:22:00 -0500

In June 2010, U.S. Citizenship and Immigration Services (USCIS) provided additional guidance for employers regarding the date of hire for purposes of completing E-Verify, the online system for registered employers to electronically verify an employee’s authorization to work in the United States.
USCIS addressed questions raised by E-Verify registered employers regarding the requirement to complete E-Verify within three days of hire and different requirements for Form I-9 compliance. The E-Verify hire date may vary depending on when a new employee starts work for pay and when an E-Verify case is created. The guidance issued by USCIS, entitled “What’s the Hire Date For E-Verify,” specifies that if a case is created in E-Verify before an employee starts work for pay, then the E-Verify hire date is the date the E-Verify case is created. Alternatively, if a case is created in E-Verify on or after an employee starts work for pay, then the E-Verify hire date is the date the employee started work for pay.

For the full text of USCIS guidance “What’s The Hire Date For E-Verify,” please click here.

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Gibney Attorneys Write Featured Article in IP Litigator

Michael Hawkes — Wed, 14 Jul 2010 19:05:20 -0500

Gibney Partner Brian W. Brokate and Associate Christina L. Winsor coauthored an article which will appear in the upcoming issue of the IP Litigator. The article entitled, “Contributory Liability Against Third Party Internet Infringement of Trademarks”, provides readers with a background of contributory liability standards in the United States and European Union. The article explores online infringement issues by examining current cases involving internet service providers, online auction sites, social networks and search engines. The article is set to appear in the July/August edition of IP Litigator.

Immigration Alert: August 2010 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 14 Jul 2010 12:50:19 -0500

The U.S. Department of State (DOS) has published the August 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off dates for Chinese and Indian nationals advanced to March 1, 2006. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Chinese nationals advanced to September 22, 2003. The EB-3 “professional and skilled worker” priority cut-off date for Indian nationals advanced to January 1, 2002. Cut-off date for Worldwide, the Dominican Republic and the Philippines advanced to June 1, 2004.

In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to May 15, 2002 and India advanced to January 1, 2002. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year (FY), in October 2010.

The full text of the August 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5092.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Test

Shiri Zuravicky — Wed, 14 Jul 2010 08:14:00 -0500

Brian Brokate PLI Introduction

Hello. Welcome to PLI’s Intellectual Property Law Institute 2013. I have the honor of introducing today’s speaker and co-chair, Brian Brokate. Brian leads Gibney, Anthony & Flaherty’s Intellectual Property practice group and has been with Gibney since the beginning of his legal career. He has extensive experience in the application of intellectual property law and investigatory and enforcement procedures to combat the infringement and counterfeiting of trademark and copyrights. His experience is primarily in the area of anti-counterfeiting, anti-piracy and online enforcement litigation as well as many state and federal criminal actions.

Brian is a thought leader in the field of intellectual property law and has authored numerous articles on the subject.
He serves on the Executive Committee of the International Anti-Counterfeiting Coalition and as a member of the International Trademark Association. So, without further ado, I give you Mr. Brian Brokate.

Immigration Practice Group Hosts July 13 Webinar on Global Immigration Compliance

Michael Hawkes — Thu, 01 Jul 2010 08:04:00 -0500

On July 13, 2010 Gibney will hold a webinar entitled, Global Immigration Compliance: Updates on Enforcement Trends and Reform in Selected Jurisdictions

Details are as follows:

Time & Date:

Tuesday July 13, 2010
9:00 - 10:00 am PDT / 12:00 - 1:00 pm EDT / 5:00 - 6:00 pm GMT

Topics:

Introduction & Overview

United Kingdom - Magrath LLP

Legal Right to Work - Compliance and Penalties
Employer Obligations Under the Points Based System
How to Maintain an "A" Rating with UK Border Agency

Canada - Green and Spiegel LLP

Temporary Foreign Worker Program - Penalties for Noncompliance
Immigration and Refugee Protection Act - Offenses and Penalties
Hot Topics - Work Permits
Facilitated Processing Visa Category Ends - What's Next?

APAC - Global Trends in Immigration Reform - Gibney, Anthony & Flaherty, LLP

India, Australia and Japan
Best Practices - Corporate Policies

Speakers:

Stephen J.O. Maltby - Gibney, Anthony & Flaherty, LLP
Ben C.P. Sheldrick - Magrath, LLP
Evan J. Green - Green and Spiegel, LLP
Deborah B. Davy - Gibney, Anthony & Flaherty, LLP

To register please visit www.gibney.com/register

If you have questions about this seminar or are interested in receiving invitations to future seminars please send your name and contact info to seminars@gibney.com

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Immigration Alert: July 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 15 Jun 2010 13:00:59 -0500

The U.S. Department of State (DOS) has published the July 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off date for Indian nationals advanced to October 1, 2005. However, the EB-2 priority cut-off date for Chinese nationals remains unchanged from June, at November 22, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the EB-3 “professional and skilled worker” category, the priority cut-off date for Indian nationals advanced to November 22, 2001. The EB-3 “professional and skilled worker” priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to August 15, 2003. In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines is unchanged from June, at June 1, 2001. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year (FY), in October 2010.

Priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category.

DOS also projected “best case scenarios” for employment-based visa availability and priority cut-off dates through the end of FY 2010 based on current demand, as follows:

EB-1 All countries: Current
EB-2 China and India: March or April 2006
EB-3 Worldwide: June through September 2004
EB-3 China: October through December 2003
EB-3 India: February 2002
EB-3 Mexico: Unavailable
EB-3 Philippines: June through September 2004

As noted, these are projections. Actual availability and priority cut-off dates will be announced in the August and September Visa Bulletins.

The full text of the July 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5019.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney News: Gibney Attorney meets with USCIS Director

Michael Hawkes — Fri, 11 Jun 2010 18:38:59 -0500

Gibney attorney Judi McManigal attended an immigration stakeholders meeting with the U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas. Director Mayorkas provided an overview of USCIS goals in the upcoming year, then Ms. McManigal and other attendees asked questions and provided suggestions. Recommendations included improvement of the 800 customer service line, reconsideration of the H-1B memo regarding employer/employee relationships, and thoughful adjudication of petitions filed by small businesses, who have very adequate ability to pay but may need to demonstrate that ability in more non-traditional ways.

Immigration Alert: USCIS Announces E-Verify Redesign

Michael Hawkes — Fri, 11 Jun 2010 14:19:00 -0500

On June 13, 2010 USCIS will launch a redesigned E-Verify website intended to enhance the system’s usability, security, accuracy and efficiency. The redesigned website will feature new menus, case alerts, simplified terms, and an improved news section. New icons will also be introduced to allow users to easily identify cases that need attention. While existing usernames and passwords will remain valid, E-Verify users will be required to take a short tutorial to learn about the changes when they first log into the redesigned site. More information about the redesign is available here.

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Gibney Partner Stephen J.O. Maltby Moderates Panel at 2010 ACIP Annual Symposium

Michael Hawkes — Fri, 11 Jun 2010 12:41:36 -0500

On Wednesday, June 9, 2010, immigration practice head, Stephen J.O. Maltby moderated a panel discussion at the American Council on International Personnel (ACIP) Annual Symposium in Washington, D.C. entitled, "Meet the Investigators". The discussion centered around the U.S. government departments in charge of worksite investigation.

Speakers included Ronald Atkinson, Kurt Fitz-Randolph and Diane Koplewski.

The 2010 ACIP Annual Symposium focused on "Immigration Compliance in a Changing Global Market".

Global Immigration Alert - Canada: Facilitated Processing for IT Specialists to End

Michael Hawkes — Wed, 09 Jun 2010 12:37:29 -0500

Effective October 1, 2010, facilitated processing for Information Technology Specialist (“IT Specialist”) visas under the Temporary Foreign Worker Program (“TFWP”) in Canada will no longer be available. Under facilitated processing, employers were not required to test the labor market for available workers and IT Specialist visa applicants were able to apply for work permits at a Canadian consulate or Port of Entry. In announcing the program’s termination, the Canadian government indicated that its aim is to ensure that the hiring of foreign workers will not adversely affect the labor market in Canada.

Canada previously implemented facilitated processing for the IT Specialist visa category for the following high demand occupations:

Senior animation effects editors;
Embedded systems software designers;
MIS software designers;
Software developers - services;
Software products developers;
Telecommunications software designers; and,
Multimedia software developers.

Effective October 1, 2010, employers that wish to hire temporary foreign workers in these occupations will be required to file a Labour Market Opinion (“LMO”). Pursuant to TFWP guidelines, employers will be required to undertake recruitment and advertising efforts prior to filing for the LMO. LMO guidelines require that the employer demonstrate the following:

Wage offered meets or exceeds the prevailing wage rate for the geographic location and occupation;
Position was advertised in accordance with TFWP guidelines;
Employer recruited for and attempted to hire Canadian workers;
Working conditions meet Canadian standards;
Employer has made efforts to create new jobs or retain jobs for Canadians;
Employer will transfer new skills and knowledge to foreign national; and,
Hiring the foreign worker will not cause a labour dispute.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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HSA Contribution Limits Remain the Same for 2011

Michael Hawkes — Wed, 02 Jun 2010 16:05:31 -0500

The Internal Revenue Service recently released Revenue Procedure 2010-22, a notice outlining the 2011 minimums and maximums for health savings accounts plans and high-deductible health plans. The amounts remained unchanged from 2010 because there was no cost of living adjustment for 2011.

The maximum HSA contribution that can be made in 2011 is $3,050 for employee-only coverage and $6,150 for family coverage.

In addition, the minimum deductible will stay at $1,200 for single coverage and $2,400 for family coverage.

The maximum out-of-pocket employee expense, including deductibles, will stay at $5,950 for single coverage and $11,900 for family coverage.

Gibney Webinar: The Worksite Investigator is Knocking Are You Ready?

Michael Hawkes — Fri, 21 May 2010 14:36:58 -0500

On May 25, 2010 at 2:00p.m. EDT, Gibney will hold a webinar. The webinar will explore the federal agencies that are active in worksite investigations. Led by an expert panel, participants will learn about what to expect when an investigator comes knocking at the door. The discussion will center on the trends and triggers in investigations by USCIS, ICE and DOL, as well as proactive steps for employers to ensure compliance.

See our invitation here.

Global Immigration Alert - Mexico: Mexico Waives Visa Requirements for U.S. Nonimmigrant Visa Holders

Michael Hawkes — Fri, 21 May 2010 13:50:23 -0500

Effective May 1, 2010, Mexico’s National Institute of Migration (INM) announced that foreign nationals of any nationality who hold valid U.S. nonimmigrant or immigrant visa status may apply for admission to Mexico at all ports of entry (land, sea and air) without first obtaining a visa to enter Mexico. Under the new rule, these foreign nationals may be admitted to Mexico by providing the following documentation:

Valid passport
Completed Multiple Immigration From (FMM- Visitor’s Permit)
Evidence of valid U.S. immigration status (I-94, I-797, or Lawful Permanent Residence Card).

The Mexican immigration official at the port of entry will collect data related to the foreign national’s biographic information and details pertaining to his or her U.S. immigration status and will maintain the data in Mexico’s Internal System of Immigration Operations (SIOM). Barring any legal impediments, the foreign national will be granted temporary status as a tourist, commuter, or business visitor, will receive a stamp in his or her passport, and will be admitted to Mexico accordingly. Foreign nationals not admitted at initial inspection will be sent to secondary inspection, where an immigration supervisor will review inspection procedures and make a determination whether to admit the individual or deny admission.

This new regulation was adopted to simplify and facilitate travel to Mexico and to encourage the arrival of tourists and business visitors to promote investments, employment opportunities, and regional developments.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Global Immigration Alert - United Kingdom: UK Introduces Priority Processing

Michael Hawkes — Thu, 20 May 2010 19:07:22 -0500

The United Kingdom Border Agency (UKBA) International Group announced that consular posts in New York, Chicago and Los Angeles will offer fee-based priority processing for all visa applications that require expedited processing, similar to the premium processing program offered by U.S. Citizenship and Immigration Services. Effective June 1, 2010, applicants requesting priority processing of their UK visa applications will be charged a non-refundable fee of $150 in addition to the underlying visa application fee. UKBA indicated that it will endeavor to process visa applications within 48 hours, but it would not guarantee this timeframe or the outcome of the visa application. If an applicant does not request priority processing, the application will be treated as a standard application and the application must be submitted by mail. The standard processing time is anticipated to be five (5) business days.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Redesigns the Green Card

Michael Hawkes — Thu, 20 May 2010 18:46:58 -0500

U.S. Citizenship and Immigration Services (USCIS) announced last week that it will begin issuing newly redesigned U.S. Permanent Resident Cards as of May 11, 2010. Taking a cue from the document’s nickname, the new cards are tinted green, and will incorporate a host of new security measures intended to prevent fraud while making authentic documents easy to identify and trace.

Why did USCIS redesign the Permanent Resident Card?

The new Permanent Resident Card – or “Green Card” – is the result of a collaborative effort by USCIS, Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and the Department of Homeland Security (DHS) Screening Coordination Office aimed at reducing immigration fraud. The now aptly named and redesigned Green Card is intended to prevent counterfeiting, obstruct tampering and facilitate quick and accurate authentication of the card holder’s right to live and work in the United States.

What does the new card look like?

As the name suggests, the new Green Cards are, literally, green, making them easy for agents of all immigration, law enforcement and customs agencies to identify at a glance. Each card will also include a unique background design, as well as holographic infogram stamp and laser engraving of the card holder’s index fingerprint.

Artwork incorporated into each card will feature difficult to reproduce fine-line drawings, with some portions printed using color-shift inks. The photo, previously found only on the front of the card, will now also be printed on the back under a tamper-resistance shield. A sample image of the new card is available at www.uscis.gov.

Are there other changes?

In addition to the updates in the card’s appearance, USCIS has implemented several new, state-of-the art security measures. These less visible changes are intended to make valid documents easier for enforcement officers to verify and the cards more difficult to reproduce or alter.

Ultraviolet technology and tactile clues will assist CBP officials in identifying authentic cards, and a unique serial number allows officials to efficiently collect and review an individual’s information using Radio Frequency Identification (RFID) technology. Tamper-resistant materials mean the new cards will show evidence of alteration immediately, and more detailed photographs make card sharing or exchange difficult.

What will happen to the old cards?

USCIS plans to gradually phase out the old Permanent Resident Cards as individuals renew their documents. Most existing Permanent Resident Cards carry an expiration date (10 year validity period for permanent residents; 2 years for conditional permanent residents), and those cards remain valid through the expiration date printed in the lower right corner of the card. Holders of these cards will receive the redesigned Green Card when seeking a card renewal or replacement. Other existing Permanent Resident Cards have no expiration date, and, likewise, those cards remain valid. However, USCIS recommends that holders of cards without an expiration date apply to replace their cards with the redesigned version.

Additional information about the redesigned Green Card is available at www.uscis.gov. If you have any questions regarding the new Green Card please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: June 2010 U.S. Visa Bulletin Released

Michael Hawkes — Sun, 16 May 2010 16:17:03 -0500

The U.S. Department of State (DOS) has published the June 2010 Visa Bulletin. There are modest advancements in some of the employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to November 22, 2005. However, the EB-2 priority cut-off date for Indian nationals remains unchanged from May, at February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications. The EB-2 priority cut-off dates for all other countries remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The EB-3 “professional and skilled worker” category, the priority cut-off date for Indian nationals advanced to October 22, 2001. The EB-3 “professional and skilled worker” priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines advanced to June 22, 2003. Visas remain “unavailable” for Mexican nationals in the EB-3 categories due to heavy demand and are not expected to become available until the start of the new fiscal year, in October 2010.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off dates for Worldwide, China, the Dominican Republic and the Philippines is unchanged from May, at June 1, 2001.

The full text of the June 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4879.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: India - Zero Tolerance Mandated for Indian Visa Applications

Michael Hawkes — Thu, 29 Apr 2010 16:37:20 -0500

The Indian Embassy outsources receipt of tourist, business, and work permit visa applications to the India Visa Center-Travisa Outsourcing Office (“Travisa”). Tourist, business and work permit visa applications are submitted directly to Travisa, and Travisa, in turn, submits the application to the Indian Consulate having jurisdiction over the foreign national.

On April 21, 2010, Travisa announced that implementation of regulatory changes made by the Ministry of Home Affairs in the last quarter of 2009 resulted in a significantly higher denial rate for visa applications. In addition, due to submission of several fraudulent visa applications, four third-party visa services were barred from filing additional applications. Travisa, under the direction of the India Embassy, indicated that it will adopt a “zero tolerance” policy for visa applications that are improperly completed or missing supporting documentation expressly requested on visa application checklists. If Travisa rejects the visa application, it will return the filing fee to the applicant. However, if the Indian Embassy or Consulate rejects the application, the filing fee will not be refunded.

Additionally, Travisa stated that the Indian Embassy will track all denials so that it can determine if there is a pattern of fraud or misrepresentation. If a third-party visa service has a significant denial rate or perceived pattern of filing fraudulent applications, it will be barred from filing additional applications.

Third-Party Visa Service Registration Required

Commencing May 3, 2010, all third-party visa services will be required to register with the office of Travisa where it plans to file visa applications, including Washington D.C., New York, Chicago, Houston, and San Francisco. All third-party visa service couriers will be required to provide photo company identification in order to submit applications.

Travisa indicated that priority processing will be given first to individual applications, second to third-party visa service applications, and third to applications submitted by mail. Importantly, the Indian Embassy stated that personal interviews will be required on an ad hoc basis and that the number of interviews will increase over time.

Best Practices

The following best practices are recommended when filing Indian visa applications:

Review the visa application for completeness;
Sign application (the signatures must match the foreign national’s passport);
Ensure inviting company letterhead matches the applicant’s destination;
Provide all documentation on checklist (for example, provide an original long-form birth certificate); and
Provide proof of jurisdiction. The address on the visa application must match the address on the applicant’s driver’s license or utility bill (only water, gas, electric, and sewage bills will be accepted).

Summary

It is increasingly important to properly complete Indian visa applications well in advance of travel. All visa applications should be reviewed carefully prior to submission and all required documentation should be secured in advance of filing.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Brazil - Appointment-Based Registration Procedures Reversed in Sao Paulo

Michael Hawkes — Wed, 28 Apr 2010 12:52:28 -0500

The government of Brazil recently made changes to its in-country registration procedures impacting foreign nationals situated in São Paulo.

Overview

All foreign nationals who will be in Brazil for more than 90 days are required to register with Brazil’s Federal Police. Registration for work permit holders must be done within 30 days of the foreign national’s first entry into Brazil pursuant to an endorsed work visa in their passport. Failure to comply with the registration requirement may result in cancellation of the work visa or denial of future entry into Brazil. Equally important, foreign nationals who do not comply with the registration process will not be granted a National Registry of Foreigners Card (RNE) or Social Employment and Social Security Booklet (CTPS). Foreign nationals are required to obtain these forms of identification in order to be placed on local payroll, to open bank accounts, and to apply for driver’s licenses.

Recent Changes

Within one month of implementing an appointment-based registration procedure for the São Paulo region, Brazil’s Federal Police Department’s Foreign Division reversed the procedure, and reinstated same-day processing. The appointment-based registration procedure, which required foreign nationals entering Brazil on a work permit and located in São Paulo to make on-line appointments to register, resulted in significant delays of upwards of 60 days to secure an appointment, and 30 additional days to be issued an RNE. While foreign nationals are permitted to work in Brazil with an approved work visa, they may not be placed on Brazilian payroll until the RNE is issued, and they may not travel outside of Brazil before the registration process is completed.

The Federal Police have now returned to utilizing a same-day registration system in São Paulo and card issuance is taking 5 to 7 hours. Foreign nationals who previously applied for registration under the appointment-based registration system are still required to wait for their registration appointment. However, if a foreign national awaiting a registration appointment has urgent international travel, he or she may file for same-day registration one day in advance of departure on a confirmed international flight.

Full compliance with Brazil’s registration procedures is essential to avoiding cancellation of a foreign national’s work visa. Please contact your designated Gibney representative if you have any questions about Brazil’s current procedures, or email immigrationalerts@gibney.com.

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Gibney's IP Practice Group Hosts Russian Delegation

Michael Hawkes — Thu, 22 Apr 2010 14:01:47 -0500

On Wednesday, April 28, 2010, Gibney, Anthony & Flaherty, LLP will host and present a seminar with the U.S. Department of Commerce on enforcing Intellectual Property rights in the United States. The seminar will be presented to a delegation of judges from Russia.

Speakers will include:

Brian W. Brokate, Head of Gibney’s Intellectual Property Practice Group
Rosanna M. Fox, Associate in Gibney's Immigration Practice Group
Douglas A. Miro, Partner at Ostrolenk Faber, LLP
Representatives from the U.S. Department of Commerce
Kathleen McGee, Mayor's Office of Special Enforcement
Bob Barchiesi, International Anti-Counterfeiting Coalition
John Cassillo, Recording Industry Association of America

Global Immigration Alert - South Africa: 2010 FIFA World Cup Travel Tips and Visa Requirements

Michael Hawkes — Wed, 21 Apr 2010 20:31:39 -0500

The 2010 FIFA World Cup will be held from June 11, 2010 through July 11, 2010 in nine cities across South Africa, including Cape Town, Durban, Johannesburg, Bloemfontein, Pretoria, Rustenburg, Port Elizabeth, Polokwane, and Nelspruit. Foreign nationals planning to attend the 2010 FIFA World Cup in South Africa should determine if a visa is required for their visit as soon as possible.

Citizens of certain countries, including the United States and United Kingdom, may be exempt from a visa requirement if entering South Africa for tourism or limited business purposes for a maximum period of stay of 90 days or less. For more information regarding who is eligible for the visa exemption, please visit http://www.southafrica-newyork.net/homeaffairs/visaexempt.htm. General information regarding entry requirements and the application process for individuals requiring a visa is provided below.

Entry Requirements

When entering South Africa, a foreign national’s passport must be valid for a minimum period of 30 days beyond the intended stay in the country. The foreign national must also have two blank pages in his or her passport for the entry stamp. A Yellow Fever Vaccination Certificate may also be required for a foreign national arriving from an infected Yellow Fever country. For a list of Yellow Fever countries and vaccination requirements, please visit the Center for Disease Control and Prevention website at http://www.cdc.gov/.

Visa Processing Times and Document Requirements

Generally, the following documents are needed for a visitor’s permit application:

Passport valid for at least 30 days beyond intended stay;
Completed visa application BI-84 Form 11;
Two passport photographs;
Evidence of immigration status (for example, for foreign nationals situated in the United States, an I-94, I-797, or I-551 permanent resident card);
Proof of sufficient funds for the duration of the stay (for example, a copy of recent bank statement and/or credit card);
Copy of confirmed hotel reservation;
Copy of confirmed airline ticket/itinerary showing a round-trip itinerary;
Original Yellow Fever Certificate, if applicable;
Copy of current Medical Insurance Policy showing details of coverage for international travel;
Evidence of the purpose of the trip such as a copy of ticket voucher for the 2010 FIFA World Cup;
Government filing fees. Filing fees vary by country of nationality. There are proposals to waive government filing fees for the 2010 FIFA World Cup, but no formal announcement has been made to date.

Please note that documents required may vary based on the applicant’s background, specific travel plans, and nationality. For more information regarding visa requirements, application and consular procedures, please visit the South African Embassy website at http://www.southafrica-newyork.net/homeaffairs/visitorsvisa.htm#visas. Processing times are currently estimated at 5 working days from the date the application is filed. We recommend that applications be filed as soon as possible to avoid delays that may occur due to increased demand related to the 2010 FIFA World Cup.

Summary

As the proud host of the 2010 FIFA World Cup, South Africa will be welcoming many foreign nationals to the country in June and July. However, immigration officials intend to be vigilant throughout the World Cup to ensure that foreign nationals do not overstay their visas and do not engage in unauthorized employment. Foreign nationals intending to travel to South Africa during this period should plan now to ensure timely filing of visa applications if required and to secure all documentation required for entry into the country.

Please contact your designated Gibney representative if you have any questions about the information contained in this alert, or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Issues "E-Verify Enrollment Quick Reference Guide"

Michael Hawkes — Mon, 19 Apr 2010 16:17:24 -0500

In March 2010 U.S. Citizenship and Immigration Services (USCIS) issued an “E-Verify Enrollment Quick Reference Guide” for employers who elect to enroll their companies in E-Verify.

This guide follows the more comprehensive “Quick Reference Guide for Employers” issued in March 2009, and provides specific guidance on E-Verify enrollment procedures, including company registration, user role designation, and selection of verification locations and hiring sites. Additionally, the guide provides an enrollment process overview with step-by-step instructions for enrolling a company in the E-Verify Program. The guide can be downloaded here.

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Immigration Alert: May 2010 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 15 Apr 2010 19:33:26 -0500

The U.S. Department of State (DOS) has published the May 2010 Visa Bulletin. There are modest advancements in some of the employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to September 22, 2005. However, the EB-2 priority cut-off date for Indian nationals remains unchanged from April, at February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to April 22, 2003. The EB-3 “professional and skilled worker” priority cut-off date for Indian nationals advanced to October 1, 2001. However, due to heavy applicant demand, visas became “unavailable” for Mexican nationals in the EB-3 “professional and skilled worker” and EB-3 “other worker” categories. Visas are not expected to become available for Mexican nationals in the EB-3 categories until the start of the new fiscal year, in October 2010.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off date for Worldwide, China, India and the Philippines is unchanged from April at June 1, 2001.

The full text of the May 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4805.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: U.S. Visa Waiver Program to Include Greece

Michael Hawkes — Wed, 31 Mar 2010 19:42:34 -0500

Secretary of Homeland Security Janet Napolitano recently announced Greece’s designation as a member of the Visa Waiver Program. Greek citizens will be able to visit the United States under the Visa Waiver Program (VWP) commencing April 5, 2010.

The VWP permits eligible citizens and nationals of designated countries to visit the United States for a 90-day period for business or tourism without obtaining a visa. Citizens of VWP countries may travel to the United States provided that they have an electronically readable passport and have obtained authorization for travel from Electronic Screening System for Travel Authorization (ESTA) prior to initiating travel.

For more information regarding the VWP, list of designated countries, and ESTA requirements, please visit the Department of State website at http://www.travel.state.gov/visa/temp/without/without_1261.html.

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Global Immigration Alert: Mexico Immigration Reform Will Impact Business Travelers

Michael Hawkes — Thu, 25 Mar 2010 19:22:14 -0500

On January 29, 2010, Mexico’s National Migration Institute (NMI) published a Manual of Criteria and Migration Procedures (“the Manual”). The Manual simplifies the process for obtaining nonimmigrant visas, extends the authorized period of admission pursuant to these visas from 30 days to 180 days, and changes Mexican visa terminology. The changes will take effect May 1, 2010.

New Short-Term Visa Introduced: Forma Migratoria Multiple (FMM)

The Manual combines the current FM-T (Tourist), FM-TTV (business, investor, or transfer of personnel), FM-3 (Business), and FM-3 (Technical) visas into one category, the Forma Migratoria Multiple (FMM). The FMM will allow for a maximum period of stay of 180 days in Mexico. The visa holder’s immigration status under the FMM will be further classified as follows: (a) Tourist; (b) Business; (c) Visitor with Lucrative Activities; or (d) Visitor with Non-Lucrative Activities. The visa holder may perform productive work under the FMM(c) (Visitor with Lucrative Activities) and FMM(d) (Visitor with Non-Lucrative Activities) for a maximum period of 180 days. The distinction between the FMM(c), Visitor with Non-Lucrative Activities, and FMM(d), Visitor with Lucrative Activities, turns on the source of the visa holder’s salary. If the foreign national receives a salary or other economic compensation from within Mexico, he or she will fall within FMM(c), Visitor with Lucrative Activities. If the foreign national receives compensation from their home country, i.e., outside of Mexico, he or she will be classified as an FMM(d), Visitor with Non-Lucrative Activities.

FMM applications will be processed differently, depending on the foreign national’s nationality and corresponding group type. There are three group types in Mexico. Group 1 consists of restricted nationalities. For this group, visa applications require prior authorization from NMI before an entry visa may be issued at a Mexican consulate and prior to the applicant entering Mexico. Group 2 consists of regulated nationalities. Foreign nationals falling within Group 2 must apply for an entry visa at a Mexican consulate prior to entering Mexico. Group 3 consists of liberated nationalities or countries, each of which falls under Mexico’s visa waiver provisions. Foreign nationals within Group 3 may obtain an FMM visa upon arrival at a Mexican port of entry without prior clearance from a Mexican consulate or NMI.

Business Visitor: Criteria Defined

Mexico’s NMI defines the criteria for a business visitor, FMM(b), and limits permissible business visitor activities to the following:

Conducting meetings or holding general discussions;
Participating in seminars, conferences, or trade fairs;
Engaging in commercial exchange of goods or services;
Establishing, developing, or managing foreign investments; and
Providing special services previously agreed to or established in transference of technology contracts, patents, trademarks and intellectual property, equipment dealings, and staff training.
To qualify for the FMM(b), the foreign national’s primary residence must be outside of Mexico, and he or she may not be placed on the payroll of a Mexican company. In addition, the individual may not receive remuneration for any services provided to a Mexican entity, except for reimbursement for travel expenses such as meals, airline tickets, or accommodations.

Travel Restrictions Removed for FM-TTV Visa Holders

The FM-TTV is presently a 30-day, multiple entry visa that may be applied for at a Mexican port of entry. When a FM-TTV visa holder applies for a change of status to FM-3 employment, or applies to report a change in conditions, such as changes to job duties, domicile or marital status, the visa holder is required to file an exit and re-entry permit, or risk cancellation of his or her application to change status or conditions. With implementation of the Manual, the FM-TTV will change to the FMM, the validity period will increase to 180 days, and the travel restrictions associated with filing an application to change status or conditions will be removed, allowing these foreign nationals to travel during the pendency of change of status or condition applications.

New Immigration Cards

In the coming weeks, NMI will publish criteria for new migration cards. The proposed migration cards will replace the FM-2 (Immigrant) and FM-3 (Business and Technical) passport-like booklets which are currently issued at Mexican consular posts. Mexican consular posts will no longer issue these booklets. Instead, once an immigration petition is approved by NMI, the Mexican consular post will endorse an entry visa in the foreign national’s passport. These entry visas will allow the foreign national to enter Mexico within one year of issuance. Upon entry into Mexico, the foreign national will be required to obtain the new migration card within 30 days.

Summary

As set forth above, implementation of the Manual will streamline the process for obtaining nonimmigrant business and employment visas in Mexico. The most significant change relates to the creation of two short-term employment visa categories, the FMM(c) and the FMM(d), which may be used for short-term assignments of less than 180 days. The Manual also removed travel restrictions for foreign nationals with pending applications to change nonimmigrant status.

Gibney will continue to monitor the implementation of these new rules in Mexico, and will provide updates once the NMI publishes additional information. If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Immigration Alert: DHS Announces New E-Verify Civil Rights Initiatives

Michael Hawkes — Thu, 25 Mar 2010 17:46:40 -0500

On March 17, 2010, the Department of Homeland Security (DHS) announced three new initiatives concerning E-Verify, the voluntary web-based system operated in partnership by U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration that allows participating employers to electronically verify the employment eligibility of newly hired workers. Information regarding the DHS announcement is available here.

The most significant of these initiatives is an information-sharing agreement signed by USCIS, a division of DHS, and the U.S. Department of Justice, Office of Special Counsel (OSC), which is charged with enforcing federal civil rights laws, including those regarding immigration-related unfair employment practices. As one of the two agencies with responsibility for administrating E-Verify, USCIS will provide OSC with query data and other information that may assist it in identifying instances of potential discrimination resulting from employer misuse of E-Verify. The agreement specifies four categories of prohibited actions by employers that are the subject of OSC’s jurisdiction: citizenship status discrimination, national origin discrimination, document abuse, and retaliation. At the same time, OSC will provide USCIS with reports of employer misuse of E-Verify that fall outside of the Justice Department’s enforcement arena.

DHS also announced the launch of a new E-Verify hotline designed to respond to inquiries, issues, and complaints by employees. The hotline will offer information about E-Verify and I-9 processes, will facilitate an employee’s response to a tentative non-confirmation or perceived final non-confirmation errors, or allow an employee to file a complaint about possible discrimination or employer misuse of E-Verify. USCIS will share such complaints with OSC pursuant to the agreement described above.

Finally, USCIS has produced two educational training videos that explain E-Verify procedures and policies, as well as employee rights and employer responsibilities. The videos are entitled “Understanding E-Verify: Employer Responsibilities and Worker Rights” and “Know Your Rights: Employee Rights and Responsibilities.” They are available in both English and Spanish at http://www.dhs.gov/e-verify.

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Immigration Alert: April 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 16 Mar 2010 16:32:22 -0500

The U.S. Department of State (DOS) has published the April 2010 Visa Bulletin. There are modest advancements in some of the employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to August 22, 2005. However, the EB-2 priority cut-off date for Indian nationals remains unchanged from March, at February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to February 1, 2003. The EB-3 priority cut-off date for Indian nationals advanced to September 8, 2001, and the EB-3 priority cut-off date for Mexican nationals is unchanged from March, at July 1, 2002.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off date for all foreign nationals is unchanged from March, at June 1, 2001.

The full text of the April 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4747.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Gibney Debuts at the Game Developers Conference in San Francisco

Michael Hawkes — Fri, 12 Mar 2010 20:31:52 -0600

Gibney made its debut at the 2010 annual Game Developers Conference in San Francisco from March 9 - 13, 2010. Gibney showed its support for Women in Games International, co-sponsoring their event at the California Historical Society on Wednesday, March 10, 2010. Gibney attorneys are also participating in several programs and are on hand in the Exhibit Hall to provide information regarding our practice areas, with a special focus on Intellectual Property and Global Immigration Services. For more information regarding the conference, visit www.gdconf.com.

Immigration Alert: ICE Issues 180 Audit Notices to Businesses in Five States

Michael Hawkes — Thu, 11 Mar 2010 21:37:10 -0600

On March 2, 2010, U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, announced that 180 businesses in Alabama, Arkansas, Louisiana, Mississippi, and Tennessee were issued Notices of Inspection (NOIs), indicating that ICE intends to inspect their Forms I-9 and other hiring records to determine their compliance with employment eligibility verification laws. A copy of the ICE announcement is available at http://www.ice.gov/pi/nr/1003/100302neworleans.htm. This is the third round in a series of ICE audit notifications in the last eight months, following the issuance of 652 NOIs in July 2009 and another 1,000 in November 2009.

ICE’s NOI initiative is the direct result of a comprehensive strategy launched last year to establish strong Form I-9 compliance mechanisms as a means to deter the employment of unauthorized workers. ICE’s efforts dovetail with those of U.S. Citizenship and Immigration Services and the U.S. Department of Labor, both of which have significantly stepped-up their compliance and anti-fraud operations in the past year.

In this era of increased enforcement, employers who make substantive errors or uncorrected technical errors on their Forms I-9 can be held liable by ICE and may be subject to heavy fines or other civil penalties. Gibney strongly recommends that employers conduct periodic internal audits of their Forms I-9 and take appropriate corrective action as needed. Good faith compliance with legal record-keeping requirements can serve to mitigate any fines that may be imposed as a result of errors or omissions on Forms I-9. Company representatives responsible for the completion of Forms I-9 should also receive specialized training in the employment verification process.

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IP Article: Partner Angelo Mazza Quoted in Hartford Advocate

Michael Hawkes — Fri, 05 Mar 2010 18:19:00 -0600

Counterfeit Wars

Fake products are a $250 billion business in the United States, and stamping them out will take what one attorney calls a "Hundred Years War" - Tuesday, March 02, 2010; By Daniel D'Ambrosio

It had been a long, hot July day at Pocono Raceway when Carolyn Donohue, assistant to the president at luxury purse maker Dooney & Bourke of Norwalk, Conn. — and life-long NASCAR fan — sat in the back of her son Tom's van, shoes off, tired, stuck in bumper-to-bumper traffic.

Settling in for the long trip home to Connecticut from Pennsylvania after the day's race, Donohue's son suddenly pulled to the side of the road. There were state troopers everywhere, watching over the mass exodus of race fans and their vehicles.

"Ma, there's Dooney fakes over there!" said an indignant Tom. "You got to take care of them."

Vendors of all descriptions lined the road into the track, hoping to cash in on the tens of thousands of fans leaving the raceway. Dirty from the track, and a little annoyed by this intrusion into her life outside of work, Donohue nevertheless pulled on her shoes and slid out of the van. Sure enough she saw stacks of fake Dooneys in one of the roadside booths.

Walking up to the vendor with her son watching nearby, Donohue said, "Listen to me. I'm from Dooney & Bourke. I'm tired and I don't have the time, but I will go over and get that state trooper right now. Get this shit out of here."

As the vendor scrambled to load up his van to leave, Donohue turned to her son, "Tom, please, could we go home?" Three weeks later, armed with the license plate number she had taken down, a private investigator working for Donohue nailed the Pocono vendor for selling counterfeit Dooney bags.

Counterfeit goods are ubiquitous in the United States, reaching from centers of distribution on Canal Street in New York and Santee Alley in Los Angeles into every corner of the nation, from sidewalks and storefronts in cities like Hartford, New Haven and Bridgeport to flea markets in small rural towns in Connecticut and beyond, and venues like Pocono Raceway and Comcast Theater in Hartford, where police regularly bust parking lot vendors selling bootleg CDs and T-shirts at concerts by major acts.

The range of counterfeited products goes from fashion apparel and perfumes — recent news stories reveal cat urine is used in some of the fake scents — to aircraft parts and automotive brake shoes made of sawdust. In December 1995, after American Airlines flight 965 smashed into a mountainside in Buga, Colombia, the Associated Press reported "outlaw salvagers didn't even wait for all 159 victims' bodies to be collected before they moved in."

The salvagers collected engine thrust reversers, cockpit avionics and other valuable parts and flew them off the mountain in helicopters. The parts later turned up on the black market in Miami, "a hub of the thriving black market in recycled, stolen and counterfeit aircraft parts." It was counterfeit bolts, bushings and brackets that were blamed for the worst confirmed crash involving bogus parts, when the tail section of a turboprop plane tore lose on a flight over the North Sea in September 1989, killing 55.

Roger Schmedlem, a private investigator in Michigan who specializes in counterfeit cases for corporate clients like Disney and Oakley sunglasses, claims "every commercial airliner flying today has counterfeit parts on it." The overall scale of the counterfeit business is staggering.

"The estimate across the United States is this counterfeit industry is about a $250 billion business," says Bob Barchiesi, president of the International AntiCounterfeiting Coalition, an industry group formed in 1979. "It costs legitimate business 750,000 jobs in the U.S."

Most counterfeit goods sold in the United States are made in China — some 90 percent according to Barchiesi.

"Quite frankly [counterfeiting] supports an underground economy in China. It's big business," says Barchiesi.

And the profit margins are high, according to Barchiesi, who retired from the major case narcotic unit of the New York Police Department before taking over at IACC.

"It's low risk and high reward," says Barchiesi. "The profit margin on cocaine is 100 percent or 200 percent. On some of these counterfeited goods it's 400 percent, and they don't pay taxes."

The huge amounts of tax-free cash generated by counterfeiting are increasingly winding up in the hands of terrorist groups. The New York Times quoted the secretary general of Interpol in 2003 saying counterfeiting "is becoming the preferred method of funding for a number of terrorist groups."

A 2004 report by the comptroller of New York, William Thompson, estimated $23 billion was spent on counterfeit goods in the city in 2003, depriving New York of about $1 billion in tax revenue. Thompson's report cites bootleg compact discs to illustrate the gigantic size of the problem in New York.

"Seizure statistics for 2003 indicate that nearly 2.5 million illicit sound recordings were seized in the NYC area, and that approximately 17 million illicit sound recordings made their way undiscovered to the streets of New York City for sale to the public," states the report. With an average price of $5 per disc, that means bootleg CD sales in New York amounted to $85 million in 2003.

Although the report, called "Bootleg Billions," has not been updated since 2004, seizure statistics released by U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement in October 2009 show the total value of counterfeit product seizures has increased by more than 25 percent each year since 2005, with the exception of last year when there was a small decrease.

Marcy Forman, director of the National Intellectual Property Rights Coordination Center in Washington, D.C., says the IPR Center, which brings together ICE, CBP, the FBI and other federal investigators, is still trying to get its arms around the worldwide criminal enterprise behind counterfeiting.

"We're trying to identify the individuals," says Forman. "As you know you can't just chop off the tail of a snake, you have to go to the head, starting with manufacturing — those engaged in reproducing the goods, shutting down their factories."

That's problematic, given that most of those factories are in China. Forman says there's progress on that front, despite the fact that she couldn't definitively point to cases involving factory closures in China.

"I just met with a group of Chinese officials that addressed IPR issues less than two weeks ago," she says. "They're very amenable to partnering with us to go after counterfeiters."

On the local front, a bust on Feb. 4 in Hartford at Do It All clothing store on Main Street, owned by 38-year-old Roosevelt Holmes of East Hartford, netted more than 1,200 different counterfeit products, including Juicy Couture necklaces, Timberland boots, Nike sneakers, Coach, Louis Vuitton — and yes, Dooney & Bourke — handbags, plus DVDs of movies like Precious, Lovely Bones, Sherlock Holmes and Legion, and "vast amounts of blank CDs," according to Lt. Charles Cochran, commander of the vice and narcotics squad for Hartford Police.

Holmes and three of his clerks, including his mother, were arrested.

"Apparently they were doing it all," says Cochran.

Hartford Police made a second arrest that same day in front of 825 Main St., where 45-year-old Mambaye Mbaye of Hartford was selling out of his van. There were 35 items on Mbaye's folding table, including — again — Dooney & Bourke purses, along with Coach, Fendi, Louis Vuitton, Chanel, Gucci and Nike purses.

A 15-year veteran, Cochran came off the street five years ago, but said when he was working his beat there was a guy who supplied large amounts of CDs to street vendors and talked freely about his illicit business. He claimed he made $3,000 weekly from each of seven locations around the city.

"Getting arrested was the cost of doing business to him," says Cochran. "A $15,000 fine was no big deal, only a week of proceeds."

Connecticut has strong statutes on the books where counterfeiting is concerned, with fines up to $250,000 and jail time up to five years, or both. Those penalties mirror the federal statute for counterfeiting, which also calls for fines up to $250,000 and jail time up to five years, or both.

In Bridgeport, detectives Frank Podpolucha and Erno Nandori say they're not seeing much counterfeiting any more after "very aggressive" efforts in the past few years to target bogus DVD sales on street corners and in downtown stores.

"I think the word spreads quickly when you make a big bust," says Podpolucha. "They were on the street corners at one time and we targeted them hard. Narcotics and vice also hit them a couple of times."

In New Haven, spokesman Joe Avery says police have made some "incredible hauls" of bootleg tapes and CDs at the flea market on Ella Grasso Boulevard. Bruce Foucart, special agent in charge for ICE in New England, cites a recent case involving undercover agents in the New Haven office who cracked an online community, known as the "warez scene," where computer software, games and other copyrighted materials are reproduced and distributed. Five arrests of defendants in Florida, Minnesota, North Carolina, Georgia and New York resulted.

In December, says Foucart, Operation Holiday Hoax in 41 cities around the country plus Puerto Rico and Mexico resulted in the seizure of more than 700,000 products ranging from cosmetics to holiday ornaments. In Mexico alone authorities seized 225 tons of counterfeit products.

"What we're finding is these criminal organizations who are involved with IPR [violations] are also involved with other crimes," says Foucart. "They're involved in narcotics trafficking, human smuggling, they don't limit themselves to [counterfeiting]."

Still, says Cochran, jail terms are rare, and short. And the counterfeiters' customers have a hard time seeing what the big deal is.

"It's not a violent crime, it's copyright infringement, a white-collar crime," said Cochran. "[Counterfeiters are] looked at as providing a service to the community. If you're living in the projects and you don't have the money to see Sherlock Holmes you can buy a DVD for your whole family for $3."

The way customers see it, says Cochran, Brad Pitt can probably afford not to get his royalties on one more DVD. And for Hartford cops, chronically short on manpower, the focus is on drugs, not bootleg copies of The Wolfman.

"We have very limited manpower which we target toward gateway crimes like selling drugs," said Cochran. "The people that buy the drugs commit other crimes, like burglaries. We are trying to intervene in that chain, and [counterfeit products] don't so much fit [in that chain]."

Carolyn Donohue has spent her professional life working at the iconic Dooney & Bourke, whose purses and bags sell for $200 or more and sit on the shelves of stores like Saks Fifth Avenue.

She joined the company just a few years after it was founded in 1975 by Peter Dooney and Rick Bourke. Dooney still runs the company out of a quirky low-slung brick building in East Norwalk. There is no Dooney & Bourke sign anywhere on the building, and pulling into the parking lot recently, I called Donohue on my cell phone, convinced I was in the wrong place. I wasn't.

"We like to keep a low profile," said a casually but elegantly dressed Donohue as we settled on well-worn couches to talk in a room sporting a giant moose head on the wall. Peter Dooney had picked it up somewhere, and it fit perfectly in the informal atmosphere of the office.

Donohue received her first tip about counterfeit bags in 1993, when "somebody called" and said there were fake Dooneys being sold in Baton Rouge, La. She was caught by surprise.

"We did an investigation and all of a sudden we started getting flooded with phone calls of fakes being sold throughout the United States," said Donohue. "I flew all over the country on raids with federal agencies, local law enforcement and investigators, taking product down."

At the height of the counterfeit outbreak in the mid to late 1990s, Donohue had more than 14,000 entries in her computer of people and places selling fake Dooneys; there were license plate numbers, street corners, flea markets, nail salons, and more, says Donohue. Most of the tips came from loyal Dooney & Bourke customers.

"There are dedicated customers out there who are outraged at what's going on," said Donohue. "They want good product. Because they paid $250 for that bag they don't want you walking down the street saying, 'I only paid $25.'"

Donohue says she went flat out from 1993 until 2001 or 2002 when the counterfeiting slowed down. She had the entire country covered by a team of investigators — and still does — who would follow up on tips and make the cases for local law enforcement. But whenever her presence was requested, and it often was, Donohue would go. She wanted everyone to know that Dooney & Bourke took this seriously.

"If I was requested by the FBI or Customs to show up, that was important to do that," said Donohue. "I was on the road all the time. It was exhausting."

Somewhere back in the bowels of the building in East Norwalk — I wasn't allowed to see — long-time Dooney & Bourke employees were cutting leather and stitching seams on the latest purses and bags, just as they have since 1975. At first Dooney was entirely American made. Now there are factories in Puerto Rico, Mexico, Italy and China. But the designs and specifications for materials and manufacturing still originate from the desk of Peter Dooney, according to Donohue.

Now the counterfeiting is gaining momentum again. When Dooney introduces a new design or a new collection, it shows up on Canal Street in a flash and then goes "all over," says Donohue.

"I want it to stop," she said. "I don't want to lose my job. I don't want these little ladies working back here for 30 years to lose their jobs. It's a good company. Peter Dooney is a good man. I take it personally."

Angelo Mazza is a partner in the New York law firm Gibney, Anthony and Flaherty, general counsel to Rolex watch, a company that has had to deal with its share of counterfeiters. But like most law firms and investigators dealing with the counterfeit trade, Mazza's firm serves a large number of clients who pool their resources to fight off the fakes.

Over 20 years of dealing with counterfeiters, Mazza says he's seen a dramatic increase in both the sophistication and range of those products. Moving beyond the traditional sneakers and apparel luxury goods, counterfeiters are faking toothpaste, infant formula, pharmaceuticals, and even basic infrastructure items like circuit breakers, often with disastrous results.

The Internet has made it especially difficult to shut down the sale of counterfeit drugs like fake Viagra, says Mazza, which often have no active ingredients but do have ingredients like chalk and road paint.

Mazza is under no illusions concerning the struggle to fend off counterfeiters, calling it a "hundred years war." And he says the approach to fighting counterfeiters must be "multi-pronged." The city of New York, for example, recently began going after the landlords of the buildings where counterfeiters set up shop rather than trying to chase down individual sellers.

Jason Post, spokesman for Mayor Michael Bloomberg, says the city has brought more than a dozen cases against landlords since 2006 and has received closing orders in most cases, forcing landlords into changing their ways.

"When landlords are threatened with the loss of their property and court orders, we found we increased the chances buildings can be put to legitimate use," says Post.

Mazza likens it to trying to stamp out cockroaches.

"You want to step on them, that's fine. Spray them with chemicals and stuff steel wool into the baseboards, that's fine," he says. "Individually all those things are good but together they have a greater impact."

Ultimately, says Mazza, the only way counterfeiting will end is the same way the drug war will be won — and we all know how well that's going. It comes down to demand, he says. People have to realize buying fakes isn't done in good fun. There's a "whole trail of exploitation" that goes along with counterfeit goods, Mazza says, from children forced to assemble fake watches because their fingers are small, to the effects of shoddy goods on the public health and safety.

"You don't start off thinking you're going to buy a counterfeit good and support a whole host of illegal activities," says Mazza, "but that's what lies behind each purchase."

What to do with those tons of counterfeit goods? Everyone agrees that products like watches or DVDs should be destroyed, and they are. But in the past, various nonprofits have put fake designer clothing seized by authorities to good use, distributing it to the needy after removing labels and defacing trademarks.

That's why the New York Police Department drew the attention of The New York Times in January when the paper learned police had rented an industrial shredder last year to destroy 12 truckloads of bootleg clothing, including "winter jackets, shirts, pants and underwear." More truckloads were shipped to an incinerator in Long Island.

When asked by the Times, the police department, which had provided clothing to nonprofits like the New York City Clothing Bank in the past, said no one asked for the knockoffs in 2009, "an explanation that was bewildering to the operators of the clothing bank, who run a warehouse that supplies clothing to needy New Yorkers." The clothing bank told the Times they had made "many requests" for the clothing.

Global Immigration Alert: United Kingdom Immigration Reform Updates

Michael Hawkes — Thu, 18 Feb 2010 17:01:12 -0600

Proposed Changes Impacting Intra-company Transferees

In January 2010, the Migration Advisory Committee (MAC) made recommendations to the United Kingdom Border Agency (UKBA), including proposed changes to the criteria for foreign workers in the Tier 2 (Intra-company Transferee) category under the points-based system.

Under current regulations, a foreign national must have been employed at a headquarters, branch, or other affiliate office outside the U.K. for at least six months to qualify as a Tier 2 (Intra-company Transferee) employee. The foreign national employee must be paid a salary comparable to a U.K. worker. Further, foreign nationals who currently hold a U.K. work permit valid for five years (including Intra-company Transferees) are eligible for Indefinite Leave to Remain or permanent residence in the U.K.

In response to a perceived loophole in the wage requirement and concerns regarding depression of wages by technology companies who sponsored foreign nationals under Tier 2 (Intra-company Transferee) at lower salaries than U.K. resident workers, MAC has proposed some changes to Tier 2 (Intra-company Transferee) criteria. Based on these recommendations, it is anticipated that in April 2010, UKBA may eliminate Tier 2 (Intra-company Transferee) eligibility for Indefinite Leave to Remain and it may increase the qualifying employment period abroad from six months to twelve months. A change to the qualifying employment period outside the U.K. would not affect the temporary employment of those currently residing in the U.K. as Tier 2 (Intra-company Transferee) employees. However, the proposed changes to permanent residence eligibility would mean that foreign nationals in the U.K. under Tier 2 could no longer automatically qualify for U.K. permanent residence. This is a significant change impacting foreign nationals seeking a path to permanent residence, and those impacted may wish to consider a different category, such as Tier 2 (General) or Tier 1 (General). Gibney will monitor these proposed changes and provide updates as they become available.

National Identity Cards

The UKBA has significantly expanded the national identity card requirement. There are three types of national identity cards issued by the U.K. The first type is for British citizens who use the national identity card to evidence right to work in the U.K. This type may also be used as a passport within the European Economic Area (EEA) and Switzerland. The second type is an identification card for citizens of the EEA or Switzerland who live in the U.K. and is used to confirm identity and eligibility to work. The third type of national identity card was introduced on a limited basis in November 2008 for foreign students and their dependents and for spouses or partners of permanent residents when applying for an extension of stay. Effective January 2010, this type of card was expanded to include all foreign nationals sponsored under the Tier 2 (Skilled Migrant Workers) category and their dependents when applying for an extension of stay in the U.K.

Under current system, when applying for an extension of stay, foreign nationals must make biometrics appointments to capture fingerprints and photographs. The identity card is granted upon approval of the extension application. The card confirms the foreign national’s nationality, identity, and immigration status, and their right to work or study in the U.K. At present, the national identity card requirement does not affect foreign nationals who settle in the U.K. or who are permanent residents.

The UKBA implemented the identity card requirement for Tier 2 (Skilled Migrant Workers) ahead of schedule. The large number of impacted individuals has caused significant delays in the processing of extension of stay applications, known as Further Leave to Remain in the U.K. There are typically two ways to file an extension of stay application in the U.K.: by mail or by making a premium appointment at the UKBA. There are very few premium appointments currently available, and the UKBA recently reported that the earliest appointment dates are in late March 2010. As a result of the unavailability of premium appointments, some foreign nationals are filing their extension applications by mail. This can restrict travel for six to eight weeks or longer because a passport must be submitted with the application. One option for foreign nationals who need to extend their stay and who also need to travel may include filing for a U.K. entry clearance at a British Consular post in their home country. Additionally, Gibney is monitoring the availability of premium processing appointments for its clients.

Due to anticipated delays in processing, Gibney encourages clients to initiate applications to extend stay in the U.K. well in advance of status expiration dates in order to evaluate the best options for foreign national employees and to ensure ongoing compliance.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Global Immigration Alert: Norway: New Immigration Act Impacts Foreign Workers

Michael Hawkes — Thu, 11 Feb 2010 19:36:22 -0600

In January 2010, Norway implemented a new Immigration Act (“the Act”). The Act placed restrictions on certain foreign workers and changed the terminology for work and residence permit categories. All applications are now classified as residence permits and each permit designates whether a foreign national is entitled to work and whether there are any restrictions. Additionally, foreign national employees are now required to provide evidence to verify whether they will be employed directly by a Norwegian company or by a foreign entity and seconded to Norway.

Employees of Norwegian Companies

Foreign nationals who will be employed directly by Norwegian companies may file residence permit applications in Norway at a local police office or a service center for foreign workers. Generally the employee must wait until his or her residence permit is approved to commence employment. In limited cases, the foreign national may also apply for a discretionary “early work start” temporary permit that allows the employee to begin working immediately and is valid until the residence permit is adjudicated. Foreign nationals who are issued new residence permits based on employment with Norwegian companies may be granted permits valid for a maximum period of three years, and are eligible to apply for permanent residence permits after three years. Dependent family members may also apply for residence permits with the principal applicant while remaining in Norway.

Employees of Foreign Companies

Foreign nationals who will remain employees of foreign companies and who will be seconded to Norway for a temporary period may apply for residence permits while in Norway under the same process described above, and may also be issued “early work start” permits. However, the Act requires foreign nationals seconded to Norway to produce additional documentary evidence regarding their employment terms. Foreign nationals who are issued residence permits based on secondment in Norway may generally receive residence permits with an initial validity period of one year, and in certain circumstances, may be granted permits valid up to two years. This type of resident permit may be renewed for a maximum permissible period of four years. Significantly, foreign nationals holding this type of residence permit are not eligible to apply for permanent residence status. Furthermore, their dependent family members may not file residence permit applications in Norway; instead, dependents must apply for residence permits at the Norwegian consulate in their home country. Current consular processing times for these applications are approximately two to three months.

Online Applications

Pursuant to the Act, nationals of countries in the European Economic Area (EEA) may submit applications to work and reside in Norway online. These online applications for residence permits are now streamlined for EEA nationals and require less documentation.

In summary, the Act makes it much easier to obtain residence permits for foreign nationals employed directly by Norwegian companies and their dependent family members. Conversely, the new regulations increase restrictions on temporary workers seconded to Norway while remaining on home country payroll. Therefore, it is important to review employment agreements and options for employees as soon as transfer to Norway is contemplated, to evaluate all options and identify the appropriate residence permit category and its implications.

Gibney will continue to monitor how the new law is implemented in Norway, and will work with clients to develop the most effective strategies.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Immigration Alert: March 2010 U.S. Visa Bulletin Released

Michael Hawkes — Thu, 11 Feb 2010 16:02:55 -0600

The U.S. Department of State (DOS) has published the March 2010 Visa Bulletin. There are modest advancements in most employment-based categories. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to July 8, 2005 and the EB-2 priority cut-off date for Indian nationals advanced to February 1, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to December 15, 2002. The EB-3 priority cut-off date for Indian nationals advanced to July 1, 2001, and the EB-3 priority cut-off date for Mexican nationals is unchanged at July 1, 2002.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, the priority cut-off date for all foreign nationals is unchanged from February, at June 1, 2001.

The full text of the March 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4659.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B Cap Season Approaching

Michael Hawkes — Wed, 03 Feb 2010 20:15:46 -0600

April 1, 2010 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2011 H-1B cap. As most employers are aware, H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. We encourage employers to consider their H-1B cap cases now, and initiate the preparation of cap cases as soon as possible to ensure timely filing of cases.

Background
H-1B cap cases generally fall within two categories:

1. “Standard” Cap Petitions. These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1, as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)

2. U.S. Advanced Degree Petitions. These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Last year, due to the economic recession and late-enacted legislation preventing certain employers from filing H-1B cap-subject petitions, USCIS received only half of the H-1B petitions needed to meet the FY 2010 cap in the first five days of filing, and the H-1B cap was not reached until December 21, 2009. However, it is anticipated that a far greater number of H-1B cap cases will be filed this year.

By USCIS regulation, if USCIS receives a sufficient number of petitions to reach the cap on any one of the first five business days of filing—this year, April 1 through April 7—USCIS may include all petitions filed on all five days in a random selection process. If more than 20,000 U.S. advanced degree petitions are received in the first five days of filing, USCIS will first conduct the random selection process for these petitions. U.S. advanced degree petitions not selected in this process will then be placed in the pool of standard cap petitions, and a second random selection process will be conducted for this combined group of petitions.

Those petitions not selected in either the U.S. advanced degree or standard cap random selection process will be rejected and the petition and filing fees will be returned to the petitioning employer.

2010 Filing Dates

By USCIS regulation, the earliest date a petitioner may file a FY 2011 H-1B cap-subject petition, which requests employment commencing on October 1, 2010, is April 1, 2010. This year, April 1 falls on a Thursday, meaning that FY 2011 H-1B cap cases may be sent to USCIS via overnight delivery service on Wednesday, March 31, 2010 to ensure delivery to USCIS on April 1, 2010. Although cases received by USCIS up until April 7 will be eligible for the random selection process should the lottery prove necessary, employers are strongly encouraged to file petitions by April 1 to ensure timely delivery of petitions to USCIS.

Labor Condition Applications and iCert Issues

After the April 2009 H-1B cap filing season, in May 2009, the Department of Labor (DOL) mandated use of a new web portal (“iCert”) for filing Labor Condition Applications. By USCIS regulation, before an H-1B petition may be filed, the petitioning employer must first file and obtain a certified Labor Condition Application (LCA) from DOL. Prior to implementation of iCert, LCA certification was nearly instantaneous. However, with implementation of iCert, the LCA review and certification process may take up to seven business days. In addition, DOL has experienced various technical problems with the iCert web portal, causing significant downtime resulting in filing and processing delays. With the H-1B cap season approaching, employers should allow additional time for H-1B petition preparation to account for LCA processing times and potential delays stemming from iCert technical problems. In addition, employers who have not previously filed LCAs using the iCert system must undergo a rigorous registration process before they can file LCAs using the system. Employers who are not yet registered on iCert should contact their designated Gibney representative immediately to ensure timely iCert registration to facilitate the filing of LCAs needed for H-1B cap-subject petitions.

Steps to Take Now

To the extent feasible, employers should now attempt to identify their H-1B cap candidates. Employers are encouraged to gather supporting documentation including education credentials (degree certificates and transcripts) and all applicable status documentation, including Forms I-20 and Employment Authorization Documents, issued to foreign nationals currently in the United States in F-1 student status. This documentation, along the company’s job description and salary data, should be forwarded to counsel as soon as possible for the purpose of both evaluating and preparing the H-1B petition and evaluating alternative immigration strategies. Ideally, preparation of H-1B cap cases should be initiated no later than March 1, 2010.

A Reminder - Who Is Not Subject to the Cap

As a reminder, certain H-1B petitions are not counted against the FY 2011 annual cap. These include the following:

- Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not now subject to the cap. This includes extension of status petitions for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.

- Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

H-1B Restrictions for TARP Recipients

Pursuant to the American Recovery and Reinvestment Act of 2009, enacted and effective on February 17, 2009, companies that received funding under Title I of the Emergency Economic Stabilization Act of 2008 (commonly referred to as “TARP fund recipients”) may face additional restrictions on filing H-1B petitions. These restrictions may apply to some H-1B cap-subject petitions, as well as some H-1B petitions described above that are not subject to the cap.

If you have any questions as to whether your company is subject to these restrictions, or about H-1B cap filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Releases Guidance Regarding Employment Relationships and Documentary Requirements for H-1B Employers

Michael Hawkes — Tue, 26 Jan 2010 14:44:19 -0600

U.S. Citizenship and Immigration Services (USCIS) has released a Memorandum (“the Memo”) addressing the employer-employee relationship that must exist between an H-1B petitioner and beneficiary.

The Memo sets forth that while control of the work of an H-1B beneficiary is the cardinal element in establishing the required employer-employee relationship between an H-1B petitioner and beneficiary, several factors are considered in making a totality of the circumstances determination as to whether the required employer-employee relationship exists. These factors include whether the petitioner hires, pays, and has the ability to fire the beneficiary; whether the petitioner claims the beneficiary for tax purposes; whether the petitioner provides the beneficiary employee benefits; and whether the petitioner controls the manner and means by which the beneficiary’s work is accomplished. The Memo provides that documentation should be presented at the time of filing an H-1B petition to establish that throughout the H-1B employment period, an employer-employee relationship between the petitioner and beneficiary will exist and that the employer will have the right to control the beneficiary’s work. Such documentary proof of the employer-employee relationship is required not only for initial H-1B petitions, but also for H-1B extension petitions.

The Memo also describes selected situations in which the employer-employee relationship required for H-1B petitions is generally not present, including a self-employed beneficiary, an independent contractor, and a “job-shop” placement by a petitioner who does not control the beneficiary’s work and deploys the beneficiary to fill core positions at third-party worksites.

In addition, the Memo reiterates the need for compliance with U.S. Department of Labor regulations requiring an H-1B petitioner to file a Labor Condition Application (“LCA”) for each location where an H-1B employee will work, as well as immigration regulations requiring submission of an itinerary indicating the name and address of all work locations where an H-1B beneficiary will provide services and the dates of each engagement.

The release of the Memo underscores the recent attention paid by various government agencies to off-site and third-party employment situations. Employers who place employees at third-party sites, as well as employers receiving employees from a third-party, should be aware of this increased governmental scrutiny and be prepared for unannounced in-person and telephonic investigations conducted by the government to attempt to detect fraud in third-party and off-site employment situations.

For additional information about the Memo and H-1B status generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Global Immigration Alert: India Visa Update: Ongoing Immigration Reforms and Complications

Michael Hawkes — Fri, 22 Jan 2010 21:05:03 -0600

Consistent with global trends in immigration, in 2009, India made significant changes to their immigration policies and procedures to enforce immigration laws and provide increased protection of the Indian labor market. Historically, Indian authorities did not provide clear policy guidance on immigration regulations or processing of visas for tourism, business, and employment. The government made significant progress last year by issuing detailed guidance. However, some of the interpretive guidance has resulted in increased burdens for visa applicants.

New Resident Requirements

In October 2009, the Ministry of Home Affairs (MHA) released Frequently Asked Questions (FAQs) providing guidance regarding the processing of business and employment visas. The FAQs clarified that visas must be issued in the applicant’s country of origin/citizenship or in the country of domicile, provided the applicant has been a permanent resident in the country of domicile for more than two years. One Indian Consular Officer indicated that the residence requirement pertaining to adjudication of business and employment visas has caused “complications” due to the large volume of third country nationals residing lawfully in the United States who cannot meet the residence criteria and who are now required to return to their country of citizenship for visa issuance. A limited exception is available for third country nationals in the United States applying for Indian business or employment visas, provided the applicant holds a U.S. visa with a validity of three (3) years and the applicant has resided in the United States for two (2) years.

New Quota System for Indian Employment Visas

In December 2009, the Indian government announced a new quota system that, once implemented, would significantly reduce the number of foreign workers in India. The new quota system would require Indian employers sponsoring foreign nationals on “E” employment visas to certify that the total number of foreign nationals in their employment does not exceed one percent (1%) of their total workforce, or that the company employs a maximum of twenty (20) foreign nationals, whichever is less. Applications for extensions of employment visas filed in India will not be subject to the quota system.

The Indian authorities are still refining this quota system, and large companies and certain industries may be allocated higher quotas. We anticipate guidelines will be published shortly.

New Restrictions on Multiple-Entry Tourist Visas

In December 2009, the MHA published a new policy for tourist visas providing guidance regarding appropriate tourist activities. The policy was aimed at ensuring compliance and controlling “abuse or misuse” of the tourist visa category. Tourist visas will only be granted to foreign nationals who do not have a residence or occupation in India and whose sole objective is to visit India for sight-seeing, recreation, or visiting family or friends. Foreign nationals in India on a tourist visa may not extend or change status to another visa category while remaining in India.

Under the new policy, tourist visa holders are not allowed to revisit the country within two months of departure if their prior visit was more than ninety (90) days in duration or if they have been in the country for more than 180 days cumulatively in the last year. If a foreign national wishes to visit India within the restricted two (2) month period, the foreign national will be required to obtain special permission from an Indian Consulate. If the Indian Consulate grants special permission, the foreign national will be required to register with the Foreign Regional Registration Office within fourteen (14) days of arrival.

Introduction of “Tourist Visa-on-Arrival”

On January 1, 2010, the MHA announced a temporary one-year program to allow citizens of five countries – Finland, Japan, Luxembourg, New Zealand, and Singapore – to apply for a tourist visas upon arrival at airports in Delhi, Mumbai, Chennai, and Kolkata. These single-entry visas have a maximum validity period of thirty (30) days.

Summary

Recent Indian immigration reforms and visa issuance policies have met with mixed reviews. Gibney will continue to monitor and report on regulatory and policy developments, as we anticipate ongoing changes as new immigration policies and procedures are implemented in India and at consular posts around the world. If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

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Immigration Alert: February 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 12 Jan 2010 16:52:15 -0600

The U.S. Department of State (DOS) has published the February 2010 Visa Bulletin. In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to May 22, 2005. The EB-2 priority cut-off date for Indian nationals remains unchanged from January, at January 22, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to September 22, 2002. The EB-3 priority cut-off date for Indian nationals is unchanged from January, at June 22, 2001, and the EB-3 priority cut-off date for Mexican nationals is also unchanged, at July 1, 2002.

The full text of the February 2010 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4611.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Megan O'Connor and Trisha Yukawa Named Partners

Mon, 11 Jan 2010 17:18:00 -0600

Gibney, Anthony & Flaherty LLP is pleased to announce that attorneys Megan O’Connor and Trisha Yukawa have become Partners in the firm.

Ms. O’Connor practices in the area of U.S. immigration, assisting corporate and individual clients in obtaining immigrant and nonimmigrant visas and providing advice on nationality issues. She graduated from Fordham University School of Law in 2001, where she served as an editor of the Fordham Intellectual Property, Media and Entertainment Law Journal, as a board member of the Fordham Immigration Advocacy Project, and as a legal intern with local community organizations on immigration issues relating to minors.

Ms. Yukawa practices in the area of U.S. Immigration & Nationality law. She provides advice concerning the employment of foreign nationals in the U.S., including assisting corporate clients in obtaining and maintaining U.S. work authorization for employees pursuant to a wide range of nonimmigrant categories. Ms. Yukawa graduated from Washington University School of Law, where she received the Charles Trobman Award in Immigration Law.

Immigration Alert: H-1B Cap Reached December 21, 2009

Michael Hawkes — Wed, 06 Jan 2010 21:23:00 -0600

United States Citizenship and Immigration Services announced that it has received sufficient petitions to reach the statutory cap for new H-1B petitions for Fiscal Year 2010 (October 1, 2009 to September 30, 2010). USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will reject new H-1B petitions for fiscal year 2010 that are received after December 21, 2009.

USCIS will begin accepting new H-1B petitions on April 1, 2010 for the following Fiscal Year 2011 (October 1, 2010 to September 30, 2011).

For more information about the H-1B cap and which petitions are exempt from the cap, please refer to Gibney’s Immigration Alert here. If you have any questions, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Tue, 22 Dec 2009 22:26:14 -0600

USCIS Director Mayorkas to Hold External Stakeholders Meeting

Thu, 17 Dec 2009 19:55:46 -0600

On January 21, 2010, Gibney Associate, Judi McManigal, will attend an External Stakeholders’ Roundtable Meeting with Director Alejandro Mayorkas of the United States Citizenship and Immigration Services (USCIS). The meeting will run from 2:00 pm to 3:30 pm in the USCIS Information Room at 444 Washington St., San Francisco, CA.

Mayorkas is the first USCIS director that has met with external stakeholders in San Francisco.

Immigration Alert: January 2010 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 15 Dec 2009 14:02:00 -0600

The U.S. Department of State (DOS) has published the January 2010 Visa Bulletin. In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Worldwide, China and the Philippines advanced to August 1, 2002. The EB-3 priority cut-off date for Indian nationals advanced from May 1, 2001 to June 22, 2001 and the EB-3 priority cut-off date for Mexican nationals advanced from June 1, 2002 to July 1, 2002. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to May 1, 2005. The EB-2 priority cut-off date for Indian nationals remains unchanged from December, at January 22, 2005. The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

The full text of the January 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4597.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Article by Stephen Maltby on US Immigration: a new era of protectionism and enforcement

Wed, 09 Dec 2009 21:31:00 -0600

In the US, as elsewhere, the recession of 2008-2009 has fuelled the long-standing debate on business immigration: should immigration policies restrict the hiring of foreign personnel in response to rising local unemployment, or do protectionist immigration policies impede economic recovery and growth by inhibiting access to foreign skills and talent that can yield innovation and competitiveness?

Read the full article here.

This article was originally printed in British American Business and is reprinted with kind permission from Roxby Media.

Immigration Alert: H-1B Cap Approaching

Michael Hawkes — Tue, 01 Dec 2009 19:10:00 -0600

On November 30, 2009, USCIS announced that, as of November 27, 2009, approximately 58,900 H-1B cap-subject petitions had been filed. We anticipate that USCIS will soon announce the cap has been reached. Once the cap has been reached, USCIS will stop accepting new H-1B petitions for fiscal year 2010 (October 1, 2009 to September 30, 2010). Employers preparing new H-1B petitions are encouraged to expedite processing as soon as possible.

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Immigration Alert: ICE Issues Notices of Inspection to 1000 U.S. Employers

Michael Hawkes — Thu, 19 Nov 2009 21:56:00 -0600

On November 19, 2009, Department of Homeland Security Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country to compel production of their Forms I-9 and to audit their hiring and business records. This number surpassed the delivery of 652 NOIs to businesses on July 1, 2009, which had exceeded the number of NOIs issued for all of fiscal year (FY) 2008. Furthermore, the news release provided the following statistics regarding the number of NOIs issued since April 30, 2009:

45 businesses and 47 individuals have been debarred from government contracting
142 Notices of Intent to Fine (NIF) were issued imposing fines totaling $15,865,181
45 Final Orders were issued imposing fines of $798,179 (compared to eight Final Orders totaling $196,523 for the same period of FY 2008)
1,897 cases initiated (compared to 605 cases initiated during the same period of FY 2008)
1,069 Form I-9 inspections (compared to 503 Form I-9 inspections for all of FY 2008)

According to Assistant Secretary Morton, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.... We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”

Gibney strongly recommends that employers conduct audits of their Forms I-9 and take appropriate corrective action as needed. Good faith compliance with legal record-keeping requirements can serve to mitigate any fines that may be imposed as a result of errors or omissions on form. In addition, company representatives responsible for completion of Forms I-9 should receive specialized training.
Please contact your designated Gibney representative for additional information.

A copy of the ICE announcement may be located at http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm.

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Immigration Alert: USCIS Issues Revised Form I-9 Inspection Overview

Michael Hawkes — Thu, 19 Nov 2009 15:02:00 -0600

On November 19, 2009, USCIS issued a “Form I-9 Inspection Overview,” which provides a general description of U.S. Immigration and Customs Enforcement’s Form I-9 inspection process.

Employers are required by law to complete a Form I-9 verifying the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. Employers are additionally obligated to maintain Forms I-9 for inspection.

The overview provides a step by step description of the inspection process, from issuing a Notice of Inspection to contesting a Notice of Intent to Fine. Additional information provided includes:

- A flowchart of the Form I-9 inspection process
- A list of the most common notices issued by ICE as a result of the Form I-9 inspection
- Permitted time for employer responses to notices of inspection, notices of technical or procedural violations, and notices of intent to fine
- Potential penalties, including fines, criminal prosecution, and ineligibility for federal contracts and other government benefits
- Methodology for calculating fine amounts
- Employer options in response to a Notice of Intent to Fine.

The overview can be located at
http://www.ice.gov/doclib/foia/dro_policy_memos/formi9inspectionoverview.pdf

If you have any questions about Form I-9 inspections, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: December 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 16 Nov 2009 20:02:09 -0600

The U.S. Department of State (DOS) has published the December 2009 Visa Bulletin. In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Indian nationals advanced slightly from April 22, 2001 to May 1, 2001. The EB-3 priority cut-off dates for Worldwide, China, Mexico, and the Philippines remain at June 1, 2002, unchanged from last month. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, the priority cut-off dates for Chinese and Indian nationals remain unchanged from November, at April 1, 2005 and January 22, 2005 respectively. The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide, China, Mexico and the Philippines: June 1, 2001; India: May 1, 2001.

The full text of the December 2009 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Senior Counsel Minal Shah Selected to Super Lawyers Northern California 2009

Tue, 03 Nov 2009 17:44:00 -0600

Minal Shah

online at

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Global Immigration Update India: Indian Authorities Issue Guidance on Immigration Reforms

Michael Hawkes — Fri, 30 Oct 2009 19:44:00 -0500

India has undertaken significant immigration reforms impacting the issuance of business and employment visas for foreign nationals. In August 2009, the Ministry of Commerce and Industry issued a letter providing guidance regarding eligibility and visa requirements, and in October 2009, the Ministry of Home Affairs (MHA) issued further clarification in a detailed list of Frequently Asked Questions (FAQs). The FAQs provide guidance for determining the appropriate visa categories for foreign nationals doing business in India and the conditions for granting either a “B” business visa or an “E” employment visa. The FAQs also outline procedures for filing and adjudicating applications at Indian Consulates and detail specific security clearance requirements for Chinese nationals.

Business Visas - Eligibility

For the first time, Indian authorities defined eligibility criteria for the “B” business visa and limited permissible business visitor activities to the following:

• Establish or explore the possibility of establishing a business venture;
• Purchase or sell industrial or commercial products;
• Conduct technical meetings or hold general discussions;
• Recruit foreign workers;
• Participate in exhibitions, trade fairs, and business fairs;
• Monitor the progress of ongoing projects and conduct meetings to provide high level technical guidance;
• Participate in pre-sales or post-sales activity not amounting to actual execution of any contract or project; and,
• Conduct in-house training for foreign trainees of multinational companies.

Foreign nationals in India on pre-existing business visas for the purpose of executing a project/contract are required to depart the country by October 31, 2009. If business-related activities fall outside of the permissible business visa activities, an employment visa is required.

Business Visas – Processing and Validity

New application procedures outlined in the FAQs require business visas to be issued in the applicant’s country of origin/citizenship or in the current country of domicile, provided that the period of permanent residence in the country of domicile is at least two years. The FAQs are silent regarding procedures for third country nationals in the United States on nonimmigrant visas.

A business visa may be granted for a maximum validity period of ten (10) years under certain circumstances; however, the Indian Consulate retains discretion to designate a shorter period. Under current guidelines, if the applicant requests more than a one (1) year validity period, the applicant must provide sufficient evidence to document their specific travel plans in the form of confirmed travel itineraries. When entering India pursuant to a valid business visa, the maximum period of stay per visit is 180 days.

Employment Visas - Eligibility

The FAQs also provide eligibility criteria for “E” employment visas and address the type of business activities that require an employment visa. Applicants for employment visas must fall within one of the following categories:

• Skilled and qualified professional worker;
• Individual engaged by a company or organization in India on a contract basis; or,
• Individual employed at a senior level in a skilled position as a technical expert, a senior executive, or an individual employed in managerial position.

Employment visas are not granted for routine, ordinary, or clerical jobs, nor for jobs in which large numbers of qualified Indians are available.

Foreign nationals entering India to perform the following activities may be eligible for employment visas:

• Execute project or contract irrespective of the duration of the visit;
• Conduct training for the personnel of the Indian company;
• Repair any plant or machinery as part of a warranty or annual maintenance contract;
• Install or commission equipment or machinery, and consult pursuant to a contract;
• Provide technical support or services, transfer of knowledge, and service supplies where the Indian company pays fees or royalties; and,
• Engage in self-employment to provide engineering, medial, accounting, legal, or other highly skilled services.

Employment Visas – Processing and Validity

Employment visas are subject to the new requirement that visas must be issued from the country of origin/citizenship or from the country of domicile, provided that the period of permanent residence of the applicant is for more than two (2) years.

“E” employment visas will be granted for one year and may be extended in India by the MHA. If additional extensions are required, the Foreign Regional Registration Office (FRRO) may grant extensions for a maximum period of five (5) years. Foreign nationals who hold employment visas are required to register with the FRRO within two (2) weeks of their date of arrival in India.

Chinese nationals applying for employment visas will be required to complete additional security clearance procedures. The Indian Consulate and the sponsoring employer must send a copy of the visa application to the Ministry of Home Affairs (MHA) for security clearances. The MHA will forward the application to the Intelligence Bureau (IB) and the Ministry of Labour (MOL). The security clearances are expected to take at least sixty (60) days, and may significantly delay processing for Chinese nationals. Failure to comply with the security measures may result in steep penalties imposed on Chinese nationals and their sponsoring employers.

Summary

As a result of these unprecedented changes, and given the increased scrutiny of applications and additional employer obligations and penalties for non-compliance, it is important that employers review the activities of their current employees in India to ensure continuing eligibility for visas. In addition, employers should also plan ahead for employees commencing the Indian business or employment visa application process.

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Partner Stephen F. Ruffino Selected to Super Lawyers New York Metro 2009

Tue, 27 Oct 2009 17:39:00 -0500

Stephen F. Ruffino

online at

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Immigration Alert: USCIS Issues Revised "E-Verify: Supplemental Guide for Federal Contractors"

Michael Hawkes — Fri, 23 Oct 2009 15:50:00 -0500

On October 21, 2009, U.S. Citizenship and Immigration Services (“USCIS”) issued a revised “E-Verify: Supplemental Guide for Federal Contractors.”

The revised guide addresses updated E-Verify functionality, including creation of two new
E-Verify user designations to distinguish federal contractors whose enrollment in E-Verify is mandatory from federal contractors whose enrollment is voluntary (replacing the single designation of “Federal Contractor”). It also clarifies that once an eligible E-Verify user chooses to verify all existing employees, that decision cannot be changed. Additionally, the revised guide provides clarification on the handling of expired “List B” documents when updating existing Forms I-9 in conjunction with the use of E-Verify.

The revised guide can be located at
http://www.uscis.gov/USCIS/Controlled%20Vocabulary/Native%20Documents/Supplemental%20Guidance%20for%20Federal%20Contractors%20090109%20FINALa(1).pdf.

If you have any questions about E-Verify functionality, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

Immigration Alert: November 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 21 Oct 2009 19:22:00 -0500

The U.S. Department of State (DOS) has published the November 2009 Visa Bulletin. In the employment-based, third preference (EB-3) “professional and skilled worker” category, the priority cut-off dates for Chinese and Mexican nationals advanced to June 1, 2002. The cut-off date for Indian nationals advanced slightly from April 15, 2001 to April 22, 2001. The EB-3 priority cut-off dates for Worldwide and the Philippines remain at June 1, 2002, unchanged from last month. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, the priority cut-off date for Chinese nationals advanced to April 1, 2005. The EB-2 priority cut-off date for Indian nationals remains at January 22, 2005, unchanged from October. The EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide, China, Mexico and the Philippines: June 1, 2001; India: April 22, 2001.

The full text of the November 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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IP Article: When, Where, How & Who: Anticounterfeiting Enforcement in the Wake of eBay and the Struggling Economy, by IP Attorneys Brian W. Brokate and Christina Winsor

Wed, 21 Oct 2009 17:16:00 -0500

Intellectual Property Head Brian W. Brokate and Associate Christina L. Winsor authored this article in the 15th Annual Institute on Intellectual Property Law published by the Practising Law Institute, 2009.

This material has been published as part of “Intellectual Property Law Institute 2009" by Practising Law Institute, and is available at 1-800-260-4754; www.pli.edu (c) The Practising Law Institute). Reproduced with permission. All rights reserved.

Read the article in full.

Immigration Practice Group Hosts November 3rd Seminar on Global Mobility: Corporate Trends and Best Practices for International Assignments

Wed, 21 Oct 2009 16:57:00 -0500

Our Immigration Practice Group is pleased to present a seminar on:

Global Mobility: Corporate Trends and Best Practices for International Assignments

Tuesday, November 3, 2009
Continental Breakfast 8:30am – 9:00am
Seminar 9:00am – 10:30am
The Fairmont San Jose
170 S. Market Street
San Jose, CA 95113

Topics

· International Assignment Agreements and Compensation

· Arrangements

· Employment terms and conditions

· Reconciling home and host country plans

· Emergency Protection Planning for Business Travelers and

· International Assignments

· Legal documents for executives and their families

· Estate Planning considerations

· Global Mobility and Worksite Enforcement

· Global trends in immigration protectionism

· Increased obligations for employee tracking and record retention

· Legislative and Policy Updates - U.S.

· E-Verify for Federal Contractors

· USCIS & DOL Immigration Updates

Presenters:

Stephen J.O. Maltby, Esq.
Frederick W. Anthony, Esq.
Gerald J. Dunworth, Esq.
Deborah B. Davy, Esq.
Minal A. Shah, Esq.

If you are interested in attending the seminar, please send your name and contact information to seminars@gibney.com

Immigration Article: Immigration Score Card--Adaptability of Points-Based Systems to Changing Economic Conditions by Attorney Deborah Davy

Michael Hawkes — Tue, 20 Oct 2009 19:32:00 -0500

Immigration Senior Counsel Deborah Davy authored this article in the Expatriate Adviser, Autumn 2009.

Read article in full.

Immigration Alert: DHS Increases Fraud Investigations at U.S. Companies

Michael Hawkes — Tue, 22 Sep 2009 20:31:00 -0500

The Department of Homeland Security (DHS) has recently stepped-up investigations of U.S. employers as part of a broad initiative to uncover fraud in the filing of employment-based immigration petitions, and to enforce compliance with Form I-9 employment verification requirements.

The Fraud Detection and National Security (FDNS) unit of U.S. Citizenship and Immigration Services (USCIS) has deployed officers and contract investigators to make on-site visits to employers for the purpose of verifying information in immigration petitions previously filed by the employer on behalf of foreign national employees. The initiative is funded, in part, by the $500 “fraud fee” USCIS collects with the filing of an H-1B or L-1 petition. Typically FDNS site visits are unannounced, and questions range from details pertaining to a specific immigration petition (such as an H-1B or L-1 petition) to the company’s immigration program generally. The FDNS investigator may ask to speak with both the company representative identified as the signatory on the petition, as well as the foreign national beneficiary, to verify the information in the petition. The investigator may also ask to see related company records, such as payroll records, to verify information in the petition.

Initial reports suggest that most on-site visits have been non-adversarial in nature, and Gibney encourages its clients to cooperate with investigators. Immigration counsel should be contacted as soon as the investigator makes contact with the company. The investigator may permit counsel to attend the meeting personally or telephonically to assist in providing the information requested. If counsel is not permitted or able to attend, the company representative may ask the investigator for any additional time needed to gather data responsive to the investigator's questions, and to confer with counsel regarding the same.

While FDNS focuses on investigating immigration benefit programs, U.S. Immigration and Customs Enforcement (ICE) has increased audits of companies to ensure compliance with employment verification laws and regulations. ICE investigations typically commence with a Notice of Investigation (NOI) sent to the employer, requesting access to documentation related to the employer’s Forms I-9. Most NOIs provide the employer with three days to present the documentation requested. Immigration counsel should be contacted immediately upon receipt of an NOI, so that counsel may work with ICE and the company to facilitate the timing and control the scope of the investigation.

In view of these investigatory initiatives, companies should carefully review their immigration compliance programs. Where the company lacks a formal and comprehensive program, one should be established and implemented. Current practices should be reviewed and evaluated, and an audit of the company’s Forms I-9, H-1B and Labor Condition Application documentation, PERM labor certification documentation, and immigration sponsorship practices is advisable.

Gibney has extensive tools and resources available to assist our clients in implementing and maintaining best practices for immigration compliance, and we remain available to prepare compliance policies, conduct on-site audits of existing practices, and provide training for company personnel upon request.

Please contact your designated Gibney representative if you have any questions concerning this alert or how we may assist in preparing for and facilitating an on-site investigation.

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Immigration Alert: October 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 14 Sep 2009 20:35:00 -0500

The U.S. Department of State (DOS) has published the October 2009 Visa Bulletin. With the start of the government’s new fiscal year on October 1, visa numbers are once again available in the employment-based, third preference (EB-3) category after having been unavailable for several months. In the EB-3 “professional and skilled worker” category, priority cut-off dates are as follows: Worldwide and the Philippines: June 1, 2002; China: February 22, 2002; India: April 15, 2001; Mexico: May 1, 2002. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based, second preference (EB-2) category, priority cut-off dates advanced to March 22, 2005 for Chinese nationals, and to January 22, 2005 for Indian nationals. EB-2 priority cut-off dates for Worldwide, Mexican and Filipino foreign nationals remain “current.” “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In other preference categories, priority cut-off dates remain current for all foreign nationals in the employment-based, first preference (EB-1) category. In the EB-3 “other worker” category, priority cut-off dates are as follows: Worldwide, China, Mexico and the Philippines: June 1, 2001; India: April 15, 2001.

The full text of the October 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4575.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: USCIS Issues E-Verify: Supplemental Guide for Federal Contractors

Michael Hawkes — Wed, 09 Sep 2009 15:57:00 -0500

On September 8, 2009, the amended Federal Appropriation Regulation (“FAR”) became effective. The amended FAR requires that most federal contracts contain a clause mandating that contractors and subcontractors use E-Verify to electronically verify the work authorization of certain employees.

In conjunction with implementation of the amended FAR, on September 8, 2009, U.S. Citizenship and Immigration Services (“USCIS”) issued the “E-Verify: Supplemental Guide for Federal Contractors.” This supplemental guide provides specific guidance on which federal contractors are obligated to use E-Verify under the amended rule and details which of their employees may or must have their work authorization electronically verified using E-Verify. The guide also provides a timeline for the enrollment in and the use of E-Verify for those federal contractors.

If you have any questions about E-Verify requirements or functionality, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

The supplemental guide can be located at
http://www.uscis.gov/USCIS/E-Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FINAL.pdf.

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Immigration Alert: E-Verify Mandate for Federal Contractors Effective September 8, 2009

Michael Hawkes — Tue, 01 Sep 2009 20:38:00 -0500

The U.S. District Court for the District of Maryland has upheld the amended Federal Appropriation Regulations mandating use of E-Verify for federal contractors, rejecting legal challenges to the validity of the rule filed by the U.S. Chamber of Commerce and other groups. Scheduled to take effect on September 8, 2009, the rule will require that most federal contracts contain a clause mandating that contractors and subcontractors use E-Verify to electronically verify the work authorization of all new employees and certain existing employees assigned to the contract.

What Types of Contracts Are Subject to the Rule?

Existing federal contracts and subcontracts are not subject to the new regulations unless and until the contract is modified to include an E-Verify clause. A contractor or subcontractor only becomes subject to these E-Verify requirements upon signing a federal contract on or after September 8, 2009 that contains the relevant E-Verify clause.

The following types of contracts signed on or after September 8, 2009 will be required to contain the E-Verify clause:

(1) Contracts for work to be performed in the United States with a period of performance of more than 120 days and with value of more than $100,000, unless the contract is exclusively for commercially available off-the-shelf (“COTS”) items; and,

(2) Subcontracts for services, including construction, with a value of at least $3,000 where the primary contract contains the E-Verify clause.

Which Employees Are Impacted?

If a federal contract contains the E-Verify clause, the regulations require that the contractors and subcontractors utilize E-Verify to verify the work authorization of the following employees:

(1) All new employees hired on or after enrollment in E-Verify; and,

(2) All existing employees who are “assigned to the contract.” An employee is considered “assigned to the contract” if he/she was hired after November 6, 1986, and directly performs work in the United States under a contract containing the E-Verify clause. Employees who normally perform support work and do not perform any of the substantial duties under the contract need not be processed through E-Verify.

What is the Timeline for Compliance?

Employers awarded a federal contract requiring the use of E-Verify will have 30 days from the date of contract execution to enroll in E-Verify. Employers will have 90 days to begin using E-Verify for all new employees and existing employees assigned to the contract. Employers already enrolled in E-Verify for at least 90 days must continue to verify new employees and will have 30 days from the award of the contract to update their profile as a federal contractor, and 90 days to E-Verify existing employees assigned to the contract.

Many employers have raised concerns regarding the difficulty of identifying which employees are “assigned to the contract.” The regulations do provide employers the option of verifying their entire workforce (hired after November 6, 1986), including existing employees not assigned to a federal contract. If the company chooses this option, it must update its E-Verify profile and commence E-Verify queries for its existing employees within 180 days of updating its profile.

It is important to note that, under the current rules, an employer may not use E-Verify to verify the work authorization of existing employees unless the employer is subject to the federal contractor rule.

For more information regarding the federal contractor rule, please visit the USCIS website at www.uscis.gov.

About E-Verify

Over the past several years, the U.S. Department of Homeland Security (DHS) has invested heavily in developing an electronic employment verification system and increased worksite enforcement, leading to the current E-Verify program. Employers who register for E-Verify agree to use the online system to verify the work authorization for each new employee. Employers check basic Form I-9 information and social security numbers against records in the Social Security Administration (SSA) and DHS database. Employers must accept reporting obligations in addition to maintaining Forms I-9 and must agree to take certain steps, including possibly terminating an employee or documenting the reasons for continued employment, if the employer cannot confirm the employee’s work authorization through E-Verify. Although registration is free, training of personnel and other administrative costs may be significant. Employers are permitted to utilize Designated Agents to assist in their administration of E-Verify procedures.

E-Verify continues to be controversial and is opposed by many business groups, local governments and civil rights advocates. Many groups have expressed concerns about the reliability of federal databases, the administrative burdens on employers, wider government access to employer records, and the system’s ability to properly identify those with employment authorized nonimmigrant status. Despite concerns, the Obama administration has expressed its support for the federal contractor regulations, and DHS has indicated its intent to fully enforce these regulations. The impact of the new rule is far reaching, affecting nearly all federal appropriations. Many companies seeking to do business with the federal government or to benefit from stimulus funds offered by the American Recovery and Reinvestment Act of 2009 will now be required to participate in E-Verify.

Gibney strongly encourages employers who believe they are subject to these regulations, as well as employers considering voluntary registration in E-Verify, to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Please note also that Gibney Onboarding Services LLC is authorized by DHS and SSA to serve as a Designated Agent for employers in connection with their administration of and compliance with E-Verify procedures. Gibney will continue to provide relevant updates, trainings and seminars regarding this and other worksite enforcement initiatives.

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Immigration Alert: September 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 12 Aug 2009 20:41:00 -0500

The U.S. Department of State (DOS) has published the September 2009 Visa Bulletin. In the employment-based second preference (EB-2) category, priority cut-off dates for Chinese and Indian nationals advanced for the second month in a row, from October 1, 2003 to January 8, 2005. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In other preference categories, priority cut-off dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current.

Visa numbers remain “unavailable” in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. Individuals in the EB-3 preference categories may not file adjustment of status or immigrant visa applications, nor may their adjustment of status applications be approved until visas are once again available.

The full text of the September 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4558.html.

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Partner Stephen J.O. Maltby Named to Advisory Panel for British Airways' "Face of Opportunity" Contest

Tue, 21 Jul 2009 20:43:00 -0500

Between July 14 and July 31, British Airways is holding the "Face of Opportunity" contest to find the brightest entrepreneurial minds in the U.S. and what they could accomplish with their businesses if they had the chance to have face to face meetings abroad. The prize for winning entries is a complimentary round-trip flight to London or beyond from New York, Chicago and Los Angeles.

Gibney Partner Stephen J.O. Maltby was named by British Airways as one of an elite group of entrepreneurs who were asked to speak about why face to face meetings are important for business and help define the selection criteria for the contest.

Global Immigration Alert - Japan: New System of Residence Management

Michael Hawkes — Wed, 15 Jul 2009 14:48:00 -0500

The Japanese Immigration Bureau has announced significant changes to the Immigration Control and Refugee Recognition Act that will take effect over the next three years. The Immigration Bureau has introduced these changes to increase control over the entry, residence, and departure of foreign nationals in Japan. As discussed below, major changes include increased validity periods for employment visas and Re-entry Permits and the abolishment of Alien Registration Cards.

Validity Period Extended for Employment Visas and Re-entry Permits
Effective July 2010, the validity of employment visas will be extended from 3 to 5 years.

Re-entry permits will no longer be required if re-entry to Japan is made within one year of departure. Under the prior system, foreign nationals were required to hold a re-entry permit if they travelled outside of Japan for any period. Under the new re-entry permit regulations, if a foreign national travels outside of Japan for more than one year without first obtaining a re-entry permit, it will be necessary to apply for a new Certificate of Eligibility and entry visa prior to returning to Japan in employment-authorized status. The re-entry permit validity will also be extended from 3 to 5 years.

Alien Registration Cards (“ARC”) No Longer Issued
Under the new system, the Alien Registration Card (ARC) will no longer be issued, and will be replaced by a resident card, or “Zairyu Card” that will be issued automatically at the Port of Entry to all foreign nationals granted a stay of more than 3 months. The current requirement to register with the local municipal office within 90 days will be abolished. However, Zairyu Card holders will be required to report their residential address to the local municipal office within 14 days of arrival in Japan. Zairyu Cards will be valid for the duration of the underlying entry visa.

Current ARC holders are expected to have the Zairyu Card issued at the time of extending their current resident status. Permanent Resident status holders are expected to make arrangements to visit the Immigration Bureau within 3 years of the introduction of the new card to request a Zairyu Card.

We will continue to provide updates on these changes and provide procedural changes as they are implemented.

For specific questions or legal advice, please contact your global immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

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Immigration Alert: August 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 13 Jul 2009 20:50:00 -0500

The U.S. Department of State (DOS) has published the August 2009 Visa Bulletin. In the employment-based second preference (EB-2) category, priority cut-off dates for Chinese and Indian nationals advanced from January 1, 2000 to October 1, 2003. This advancement occurred despite DOS warnings last month that the EB-2 category for Indian and Chinese nationals might become unavailable in August. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current.

For more information see the full text of the August 2009 Visa Bulletin.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Attorney J. Claire Razzolini Becomes Partner

Mon, 13 Jul 2009 20:47:00 -0500

Gibney, Anthony & Flaherty LLP is pleased to announce that attorney J. Claire Razzolini has become a Partner in the firm.

Ms. Razzolini practices in the area of U.S. immigration and nationality law, counseling established global companies regarding the employment of foreign nationals and related federal compliance issues. She represents corporate and individual clients before the U.S. Department of Homeland Security, the U.S. Department of Labor, and the U.S. Department of State, and has extensive experience securing temporary employment authorization, permanent resident status, and naturalization benefits on behalf of foreign nationals. She is a frequent speaker on U.S. immigration best practices.

Ms. Razzolini was awarded a Bachelor of Arts degree magna cum laude from the State University of New York at Fredonia, a Master of Arts degree from Boston College, and a Juris Doctor cum laude from the University at Buffalo School of Law, where she was a member of the Buffalo Law Review. She is admitted to practice in New York and before the U.S. Western District of New York.

Immigration Alert: DHS Announces Intent to Implement Federal Contractor E-Verify Rule

Michael Hawkes — Fri, 10 Jul 2009 21:07:00 -0500

On July 8, 2009 Department of Homeland Security (DHS) Secretary Napolitano announced the Obama Administration’s support of the Federal Acquisitions Regulatory Council final rule requiring federal contractors and subcontractors to verify the work authorization of employees utilizing the E-Verify system. With this announcement, the Administration signals its support of the E-Verify program and its intent to implement the federal contractor E-Verify rule commencing September 8, 2009.

DHS’s endorsement of the federal contractor E-Verify rule came after implementation of the rule was postponed several times to afford the Obama Administration an opportunity to review the rule. As we previously reported, on November 14, 2008, the federal government published a final regulation requiring certain federal contractors to utilize the E-Verify system to verify the work authorization of their employees. The rule was initially set to take effect on January 15, 2009. However, a lawsuit challenging the validity of rule was filed by several groups led by the U.S. Chamber of Commerce, and implementation of the rule was postponed numerous times as a result of the litigation and the change in presidential administrations. As of this date, it is not clear what impact DHS’s stated intent to implement the rule on September 8, 2009 will have on the pending litigation related to the rule’s implementation.

Once implemented, the current version of the rule will require that certain federal contracts contain a clause requiring contractors to verify the work authorization of all new employees and certain existing employees assigned to the contract utilizing the E-Verify system. For additional details regarding the federal contractor rule, please see Gibney’s Immigration Alert “Final Regulations Published on E-Verify Requirements for Federal Contractors,” here.

In the same announcement, DHS stated that it intends to withdraw the Social Security “No-Match” regulation that was announced in 2007 but never implemented. The No-Match regulation proposed procedures for employers to follow upon receipt of a Social Security Administration (SSA) letter indicating that an employee’s name and social security number did not match SSA records, or a DHS letter questioning an employee’s work eligibility.

The July 8, 2009 DHS announcement regarding both rules is available at http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm.

Gibney strongly encourages employers who believe they may be subject to the federal contractor E-Verify rule, as well as employers considering voluntary registration in the E-Verify program, to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Gibney will continue to provide relevant updates, resources, trainings, and seminars regarding this and other worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com. For information regarding Gibney Onboarding Services, LLC, an E-Verify Designated Agent, please contact jcline@gibneyonboarding.com.

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Partner John Macaluso to Speak At International Anticounterfeiting Coalition Conference

Mon, 29 Jun 2009 21:19:00 -0500

Partner John Macaluso will be a featured speaker at the upcoming fall conference of the International Anticounterfeiting Coalition (IACC) which will be held October 14-16, 2009 in Atlanta, Georgia. Mr. Macaluso serves as the chair of the Business-to-Consumer Working Group of the IACC Internet Committee.

Mr. Macaluso specializes in litigating trademark infringement and counterfeiting cases, trademark prosecution and enforcement and domain name dispute resolution. Mr. Macaluso also counsels clients in the luxury goods, fashion, sports and entertainment industries in developing nationwide programs to protect and enforce Intellectual Property rights. He has advised federal, state and local law enforcement agencies with implementing procedures to combat the counterfeiting of trademarked goods, as well as trained members of these agencies as an expert in the identification of counterfeit merchandise.

For further details on the conference and to register, please go to http://www.iacc.org/conferences/upcoming.php?id=19.

Immigration Alert: USCIS Update Continuing Validity of Form I-9

Michael Hawkes — Mon, 29 Jun 2009 21:15:00 -0500

U.S. Citizenship and Immigration Services (USCIS) has advised that the current Form I-9 (Rev. 02/02/09) will remain valid beyond June 30, 2009, despite the June 30 expiration date that appears on the top of the form. U.S. employers should continue to use Form I-9 (Rev. 02/02/09) for employment eligibility verification. The Form I-9 is available at http://www.uscis.gov/files/form/i-9.pdf.

USCIS has requested a formal extension of the Form I-9 from the Office of Management and Budget (OMB). While the request is pending with OMB, the Form I-9 (Rev. 02/02/09) will remain valid. Once the extension request is approved, employers will have the option of using the Form I-9 carrying the 02/02/09 revision date, or the Form I-9 with the new revision date.

Gibney will continue to monitor this matter and keep you apprised of related developments. If you have any questions about Form I-9 Employment Eligibility Verification, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Partner Angelo Mazza to Speak at Product Authentication & Brand Security Conference 2009

Fri, 26 Jun 2009 21:22:00 -0500

Partner Angelo E.P. Mazza will be a featured speaker at the 2009 Product Authentication & Brand Security (PABS) North America Conference to be held October 26-27, 2009 in Chicago, Illinois.

The conference is a forum for discussing the main issues, legal aspects, strategies and technology solutions for the fight against counterfeiting and piracy.

Mr. Mazza specializes in brand protection and IP enforcement.

For more information, and to register for the conference, go to: http://www.bpcouncil.com/viewarticle.aspx?articleID=901

Immigration Alert: July 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 15 Jun 2009 21:24:00 -0500

The U.S. Department of State (DOS) has published the July 2009 Visa Bulletin. Due to continuing high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, the employment-based second preference (EB-2) category for Chinese nationals has retrogressed significantly, from February 15, 2005 to January 1, 2000. The priority cut-off date for Indian nationals in the EB-2 category is likewise January 1, 2000. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current.

DOS reports that applicant demand for visa numbers has been high throughout the year. As a result, visa availability for many employment-based applicants during the remainder of the fiscal year (i.e., through September 30, 2009) is unlikely. Though DOS predicts that the EB-1 worldwide category will remain current for the reminder of the fiscal year, the EB-1 category for Indian and Chinese nationals could require the establishment of a priority cut-off date in August or September. DOS also indicates that the EB-2 category for Indian and Chinese nationals may become unavailable in August or September, and, as we noted previously, EB-3 will remain unavailable for the reminder of the fiscal year.

The full text of the July 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4512.html.

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Immigration Alert: Implementation of E-Verify Rule for Federal Contractors Again Postponed

Michael Hawkes — Tue, 02 Jun 2009 21:28:00 -0500

The U.S. Chamber of Commerce has announced that implementation of the final rule requiring federal contractors and subcontractors to verify the work authorization of employees utilizing the E-Verify system has been suspended until September 8, 2009. Implementation of the rule, initially set to take effect on January 15, 2009, has been postponed several times pursuant to litigation challenging the rule’s validity, led by the U.S. Chamber of Commerce. The Chamber of Commerce announced last week that the litigants agreed to extend the rule’s applicability date to September 8, 2009 in order to allow the Obama Administration more time to complete its review of the rule.

If implemented, the rule would require that certain federal contracts contain a clause requiring contractors to verify the work authorization of all new employees and certain existing employees assigned to the contract utilizing the E-Verify system. For additional details regarding the federal contractor rule, please see Gibney’s Immigration Alerts “U.S. Department of Justice Delays Implementation of E-Verify Requirements for Federal Contractors” , and “Final Regulations Published on E-Verify Requirements for Federal Contractors” .

Gibney strongly encourages employers who believe they may be subject to the rule, as well as employers considering voluntary registration in the E-Verify program, to contact their designated Gibney representative to discuss the legal requirements of registration for the program. Gibney will continue to provide relevant updates, trainings and seminars regarding this and other worksite enforcement initiatives.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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IP Article: Recent Developments in Case Law and Legislative Action: An Analysis of Counterfeiting Enforcement

Tue, 02 Jun 2009 16:31:00 -0500

Partner Brian W. Brokate and associate Christina L. Winsor article titled, "Recent Developments in Case Law and Legislative Action: An Analysis of Counterfeiting Enforcement" in The Computer and Internet Lawyer.

Read full article here.

Partner Brian W. Brokate to Speak at PLI's 15th Annual Institute on Intellectual Property Law 2009

Mon, 25 May 2009 21:32:00 -0500

Brian W. Brokate, head of Gibney's Intellectual Property Department, will speak at the Practising Law Institute's 15th Annual Institute on Intellectual Property Law 2009, to be held in New York City, October 1-2, 2009.

The seminar is a "must attend" program for IP lawyers and will cover many of the most important developments in patent, trademark, copyright, and trade secret law.

For more information, and to register for the program, visit the website at: http://www.pli.edu/product/seminar_detail.asp?id=48984.

Immigration Alert: June 1, 2009 Deadline Approaching for Implementation of New Travel Document Requirements at Land and Sea Ports

Michael Hawkes — Wed, 20 May 2009 21:34:00 -0500

As a reminder, commencing June 1, 2009, all travelers entering the United States at land and sea ports will be required to present an approved travel document establishing identity and citizenship. This change primarily affects citizens of the United States, Canada and Bermuda who currently may be admitted at U.S. land and sea ports by presenting a government-issued photo identity document and a second document establishing citizenship.

Effective June 1, 2009, approved travel documents for U.S., Canadian and Bermudian citizens will include the following:

--Passport;
--U.S. Passport Card;
--Trusted Travel Cards (NEXUS, SENTRI, or FAST);
--State- or Province-issued Enhanced Driver’s License (when available – this secure driver’s license will denote identity and citizenship);
--U.S. Military Identification Cards when presented by members of the U.S. armed forces traveling on official Military Orders;
--U.S. Merchant Mariner Document (for U.S. citizens, when conducting official maritime business); and,
--Form I-872 American Indian Card, or Enhanced Tribal Card (when available).

U.S. and Canadian citizens under the age of 16 may enter the United States at land and sea ports with proof of citizenship, such as a birth certificate, naturalization certificate, citizenship card, or passport.

Other Travelers

All existing nonimmigrant visa and passport requirements for travelers other than U.S., Canadian and Bermudian citizens remain in place and are not altered by the changes taking effect June 1, 2009. U.S. permanent residents should present their Permanent Resident Card (I-551) or other evidence of lawful permanent resident status, and Mexican citizens, including minor children, must present a valid passport and a B-1/B-2 nonimmigrant visa, Border Crossing Card or other appropriate visa.

Additional information regarding the new requirements may be found in our Immigration Alert “New Document Requirements for U.S., Canadian and Bermudian Citizens at U.S. Land and Sea Ports Effective June 1, 2009” . You may also visit the U.S. Customs and Border Protection website at http://www.cbp.gov and http://www.getyouhome.gov/html/eng_map.html.

If you have any questions about this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: June 2009 U.S. Visa Bulletin Released

Michael Hawkes — Mon, 11 May 2009 21:39:00 -0500

The U.S. Department of State (DOS) has published the June 2009 Visa Bulletin. Due to continuing high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases, the employment-based second preference (EB-2) category for Indian nationals has retrogressed significantly, from February 15, 2004 to January 1, 2000. At this time, DOS is unable to estimate whether this retrogression will remain in effect for the rest of the fiscal year, i.e., through September 30, 2009.

Visa numbers remain “unavailable” in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories. As we reported last month, EB-3 is likely to remain unavailable for the remainder of the fiscal year. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. Individuals in the EB-3 preference categories may not file adjustment of status or immigrant visa applications, nor may their adjustment of status applications be approved until visas are once again available.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals remains at February 15, 2005, unchanged from the May 2009 Visa Bulletin. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

DOS reports that applicant demand for visa numbers has been high throughout the year. As a result, visa availability for employment-based applicants during the remainder of the fiscal year is not assured. Establishment of cut-off dates for categories that are now “current,” as well as further retrogression in categories already subject to cut-off dates, is possible.

The full text of the June 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice.
The contents of this article may be considered attorney advertising in some states.

Immigration Alert: Longer Processing Times Projected for DOL

Michael Hawkes — Fri, 08 May 2009 21:43:00 -0500

The U.S. Department of Labor (DOL) has introduced a new electronic portal, iCert, for the filing of Labor Condition Applications (LCAs) utilized for H-1B, H-1B1, and E-3 petitions. Use of the iCert system to file LCAs will be mandatory as of May 15, 2009.

Preliminary reports indicate that there are problems with iCert functionality, and DOL is working to resolve those issues. However, even with improved functionality, DOL has advised that employers should no longer expect immediate certification of LCAs upon filing, as is common under the current system. With implementation of iCert, DOL may take up to seven (7) business days to certify LCAs submitted through the system. Because a certified LCA must be obtained from DOL prior to filing an H-1B, H-1B1, or E-3 petition, longer LCA processing times will necessarily delay the filing of these petitions, and, in turn, how quickly an H-1B, H-1B1, or E-3 worker may commence new employment with the sponsoring employer pursuant to an approved petition. To the extent possible, employers should plan ahead and anticipate that the preparation and filing of an H-1B, H-1B1, or E-3 petition may take an additional one (1) to two (2) weeks due to longer LCA processing times.

The iCert system for LCAs is part of a larger initiative by DOL, which includes new online application procedures for PERM labor certification applications that are scheduled for implementation later this year. Gibney will continue to monitor this matter and provide updates as they become available. If you have any questions about the DOL’s LCA program, the new iCert system, or immigration matters generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Implementation of E-Verify Requirements for Federal Contractors Further Postponed

Michael Hawkes — Thu, 30 Apr 2009 15:59:00 -0500

The Federal Acquisitions Regulatory Councils have further postponed the final rule requiring federal contractors and subcontractors to verify the work authorization of employees utilizing the E-Verify system. Implementation of the final rule is now postponed until June 30, 2009.

As we previously reported, on November 14, 2008, the federal government published final regulations requiring certain federal contractors to utilize the E-Verify system to verify the work authorization of their employees. The rule was initially set to take effect on January 15, 2009. A lawsuit was filed by several groups challenging the validity of rule, and, as a result, on January 9, 2009, the U.S. Department of Justice agreed to suspend implementation of the rule until February 20, 2009. The litigants later announced that the implementation date would be delayed until May 21, 2009. The rule has now been further postponed, until June 30, 2009, to provide the Obama Administration with additional time to review the matter.

If you have any questions regarding any of the information contained in this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: May 2009 U.S. Visa Bulletin Released

Michael Hawkes — Wed, 22 Apr 2009 16:04:00 -0500

The U.S. Department of State (DOS) has published the May 2009 Visa Bulletin. Due to high demand for visa numbers by U.S. Citizenship and Immigration Services (USCIS) for adjustment of status cases in the employment-based third preference (EB-3) “professional and skilled worker” and “other worker” categories, visa numbers are unavailable for all countries in these preference categories. “Unavailable” means that the annual limit for these categories has been reached, and there are no visa numbers available for issuance. Individuals in the EB-3 preference categories may not file adjustment of status or immigrant visa applications, nor may their adjustment of status applications be approved, until visas are once again available. According to DOS, visa availability in the EB-3 “professional and skilled worker” and “other worker” categories will resume in October 2009, the first month of the government’s new fiscal year.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals remains at February 15, 2005, unchanged from the April 2009 Visa Bulletin. Similarly, the EB-2 priority cut-off date for Indian nationals remains at February 15, 2004, also unchanged from the April 2009 Visa Bulletin. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

The full text of the May 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4454.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: H-1B UPDATE

Michael Hawkes — Tue, 21 Apr 2009 16:15:00 -0500

United States Citizenship and Immigration Services (“USCIS”) has announced that it will continue to accept H-1B petitions subject to the cap for Fiscal Year 2010 because the numerical limit has not been reached.

On April 9, 2009, USCIS announced that it has received approximately 42,000 H-1B petitions to be counted against the FY2010 cap of 65,000 H-1B visas. The agency has received approximately 20,000 petitions to be counted against the “master's cap” for individuals holding an advanced degree from a U.S. university, and will likely close the pool for master’s cap cases soon. Once the 20,000 limit is reached, any petitions filed under the master’s cap will be added to the pool of cases subject to the “regular H cap.” Pursuant to the regulations issued last year, on the day USCIS determines that sufficient petitions have been received, USCIS will conduct a random selection lottery from among petitions received on that day to allocate remaining visas. We cannot predict when the cap may be reached.

USCIS confirmed that H-1B petitions received within the first five business days will be assigned a receipt date of April 7, 2009, and the fifteen-day adjudication timeline for Premium Processing cases received within the first five business days began on April 7, 2009.

Please note that the process outlined above does not apply to H-1B petitions that are not subject to the cap, such as extensions for those already in H-1B status or other exempt filings. For additional background information regarding the H-1B cap and which petitions are not subject to the cap, please see Gibney’s Immigration Alert, published February 23, 2009 here.

Finally, USCIS and the Federal Reserve Board provided additional guidance last week regarding the Employ American Workers Act (“EAWA”), enacted on February 17, 2009 as part of the federal economic stimulus bill. The EAWA placed restrictions on certain types of H-1B petitions for new employees filed by recipients of funding under the Emergency Economic Stabilization Act or Section 13 of the Federal Reserve Act. The agencies provided some useful clarification regarding their interpretation of the types of funds and petitions covered by the EAWA. Since its passage, Gibney has been working closely with clients and federal agencies to assess the impact of the EAWA.

If you have any questions as to whether your company is subject to these restrictions, or about H-1B filings generally, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Employee Benefits Alert: Annual Funding Notice

Michael Hawkes — Tue, 21 Apr 2009 16:08:00 -0500

Pension Protection Act (“PPA”) Section 501(a) amended ERISA Section 101(f) to require all defined benefit plans subject to PBGC to provide an annual funding notice. The plan administrator needs to provide the notice to each participant (and beneficiary), the PBGC, the labor organization representing participants, and, in the case of a multiemployer plan, to each employer that has an obligation to contribute to the plan. Previously, the annual funding notice requirement applied only to multiemployer plans. The new requirement is effective for plan years beginning after December 31, 2007. For a large plan, the deadline for providing the notice is 120 days after the close of the year (April 30, 2009 for calendar year plans). A small plan must provide the notice by the earlier of: (1) the date it files its Form 5500; or (2) the deadline for filing the Form 5500. Accordingly, a small plan will need to coordinate the filing of its Form 5500 and the date it provides the annual funding notice. In other words, if the employer completes its Form 5500 before the Form 5500 filing deadline but it has not completed the annual funding notice, it should delay the Form 5500 filing until it has completed the annual funding notice.

PPA required the DOL to issue regulations and a sample notice by August 17, 2007. The DOL did not meet that deadline. With the recent change in the political leadership at the DOL, the DOL provided guidance and the sample notices in the form of a Field Assistance Bulletin (FAB 2009-01). The FAB contains two model funding notices: a multiemployer notice and a single employer notice (the single employer notice is reproduced below). The DOL does not require a plan administrator to use one of the model notices. However, the DOL will consider a plan administrator that uses one of the model notices as satisfying the notice requirements.

Defined benefit plans subject to the annual funding notice do not need to provide summary annual reports (SARs). Many commentators have indicated that all defined benefit plans are exempt from the SAR requirement. However, only defined benefit plans subject to PBGC are exempt.

If you have any questions please contact us at telephone 212-688-5151 or email: knsacks@gibney.com.

MODEL DEPT OF LABOR ANNUAL FUNDING NOTICE FOR SINGLE EMPLOYER PLAN

For

[insert name of pension plan]

Introduction

This notice includes important funding information about your pension plan (“the Plan”). This notice also provides a summary of federal rules governing the termination of single-employer defined benefit pension plans and of benefit payments guaranteed by the Pension Benefit Guaranty Corporation (PBGC), a federal agency. This notice is for the plan year beginning [insert beginning date] and ending [insert ending date] (“Plan Year”).

Funding Target Attainment Percentage

The funding target attainment percentage of a plan is a measure of how well the plan is funded on a particular date. This percentage for a plan year is obtained by dividing the Plan's Net Plan Assets by Plan Liabilities on the Valuation Date. In general, the higher the percentage, the better funded the plan. The Plan's funding target attainment percentage for the Plan Year and 2 preceding plan years is shown in the chart below, along with a statement of the value of the Plan's assets and liabilities for the same period. [insert Plan Year, e.g., 2011] [insert plan year preceding Plan Year, e.g., 2010] [insert plan year 2 years preceding Plan year, e.g., 2009] 1. Valuation Date [insert date] [insert date] [insert date] 2. Plan Assets a. Total Plan Assets [insert amount] [insert amount] [insert amount] b. Funding Standard Carryover Balance [insert amount] [insert amount] [insert amount] c. Prefunding Balance [insert amount] [insert amount] [insert amount] d. Net Plan Assets (a) - (b) - (c) = (d) [insert amount] [insert amount] [insert amount] 3. Plan Liabilities [insert amount] [insert amount] [insert amount] 4. At-Risk Liabilities [insert amount] [insert amount] [insert amount] 5. Funding Target Attainment Percentage (2d)/(3) [insert percentage] [insert percentage] [insert percentage]

==============================================================================
                [insert Plan Year,    [insert plan year      [insert plan year
                   e.g., 2011]        preceding Plan Year,   2 years preceding
                                         e.g., 2010]         Plan year, e.g.,
                                                                   2009]

==============================================================================
1. Valuation
     Date         [insert date]         [insert date]           [insert date]
2. Plan Assets
a. Total
       Plan
       Assets     [insert amount]       [insert amount]         [insert amount]
b. Funding
       Standard
       Carryover
       Balance    [insert amount]       [insert amount]         [insert amount]
c. Prefunding
      Balance     [insert amount]       [insert amount]         [insert amount]
d. Net Plan
       Assets
     (a) - (b)
    - (c) = (d)   [insert amount]       [insert amount]         [insert amount]
3. Plan
     Liabilities [insert amount]       [insert amount]         [insert amount]
4. At-Risk
     Liabilities [insert amount]       [insert amount]         [insert amount]
5. Funding Target
     Attainment
     Percentage
     (2d)/(3)        [insert              [insert                 [insert
                    percentage]          percentage]             percentage]

(Instructions: Report Valuation Date entries in accordance with section 303(g)(2) of ERISA. Report Total Plan Assets in accordance with section 303(g)(3) of ERISA. Report credit balances (i.e., funding standard carryover balance and prefunding balance) in accordance with section 303(f) of ERISA. Report Net Plan Assets, Plan Liabilities (i.e., funding target), and Funding Target Attainment Percentage in accordance with section 303(d)(2) of ERISA. The amount reported as “Plan Liabilities” should be the funding target determined without regard to at-risk assumptions, even if the plan is in at-risk status. At-Risk Liabilities are determined under section 303(i) of ERISA (taking into account section 303(i)(5) of ERISA). Report At-Risk Liabilities for any year covered by this chart in which the Plan was in “at-risk” status within the meaning of section 303(i) of ERISA, only if At-Risk Liabilities are greater than Plan Liabilities; otherwise insert “not applicable” in the appropriate box. Round off all amounts in this notice to the nearest dollar.)

Credit Balances

Credit balances were subtracted from the Plan's assets before calculating the funding target attainment percentage in the chart above. While pension plans are permitted to maintain credit balances (called “funding standard carryover balance” or “prefunding balance”) for funding purposes, such credits may not be taken into account when calculating a plan's funding target attainment percentage. A plan might have a credit balance, for example, if in a prior year an employer made contributions at a level in excess of the minimum level required by law. Generally, the excess payments are counted as “credits” and may be applied in future years toward the minimum level of contributions a plan sponsor is required by law to make to the plan in those years.

At-Risk Status

If a plan's funding target attainment percentage for the prior plan year is below a specified legal threshold, the plan is considered under law to be in “at-risk” status. “At-risk” plans are required to use actuarial assumptions that result in a higher value of plan liabilities and, consequently, require more funding by the employer. For example, plans in “at-risk” status are required to assume that all workers eligible to retire in the next 10 years will do so as soon as they can, and that they will take their distribution in whatever form would create the highest cost to the plan, without regard to whether those workers actually do so. The Plan has been determined to be in “at-risk” status in [enter year or years covered by the chart above]. The increased liabilities to the Plan as a result of being in "at-risk" status are reflected in the At-Risk Liabilities row in the chart above.

(Instructions: Include the preceding discussion, entitled At-Risk Status, only in the case of a plan required to report At-Risk Liabilities.)

Fair Market Value of Assets

Asset values in the chart above are actuarial values, not market values. Market values tend to show a clearer picture of a plan's funded status as of a given point in time. However, because market values can fluctuate daily based on factors in the marketplace, such as changes in the stock market, pension law allows plans to use actuarial values for funding purposes. While actuarial values fluctuate less than market values, they are estimates. As of [enter the last day of the Plan Year], the fair market value of the Plan's assets was [enter amount]. On this same date, the Plan's liabilities were [enter amount].

(Instructions: Insert the fair market value of the plan's assets as of the last day of the plan year. You may include contributions made after the end of the plan year to which the notice relates and before the date the notice is timely furnished but only if such contributions are attributable to such plan year for funding purposes. A plan's liabilities as of the last day of the plan year are equal to the present value, as of the last day of the plan year, of benefits accrued as of that same date. With the exception of the interest rate assumption, the present value should be determined using assumptions used to determine the funding target under section 303. The interest rate assumption is the rate provided under section 4006(a)(3)(E)(iv), but using the last month of the year to which the notice relates rather than the month preceding the first month of the year to which the notice relates.)

Participant Information

The total number of participants in the plan as of the Plan's valuation date was [insert number]. Of this number, [insert number] were active participants, [insert number] were retired or separated from service and receiving benefits, and [insert number] were retired or separated from service and entitled to future benefits.
Funding & Investment Policies
The law requires that every pension plan have a procedure for establishing a funding policy to carry out the plan objectives. A funding policy relates to the level of contributions needed to pay for promised benefits. The funding policy of the Plan is [insert a summary statement of the Plan's funding policy].

Once money is contributed to the Plan, the money is invested by plan officials called fiduciaries. Specific investments are made in accordance with the Plan's investment policy. Generally speaking, an investment policy is a written statement that provides the fiduciaries who are responsible for plan investments with guidelines or general instructions concerning various types or categories of investment management decisions. The investment policy of the Plan is [insert a summary statement of the Plan's investment policy].

In accordance with the Plan's investment policy, the Plan's assets were allocated among the following categories of investments, as of the end of the Plan Year. These allocations are percentages of total assets: Asset Allocations Percentage 1. Interest-bearing cash 2. U.S. Government securities 3. Corporate debt instruments (other than employer securities): Preferred All other 4. Corporate stocks (other than employer securities): Preferred Common 5. Partnership/joint venture interests 6. Real estate (other than employer real property) 7. Loans (other than to participants) 8. Participant loans 9. Value of interest in common/collective trusts 10. Value of interest in pooled separate accounts 11. Value of interest in master trust investment accounts 12. Value of interest in 103-12 investment entities 13. Value of interest in registered investment companies (e.g., mutual funds) 14. Value of funds held in insurance co. general account (unallocated contracts) 15. Employer-related investments: Employer Securities Employer real property 16. Buildings and other property used in plan operation 17. Other

Asset Allocations Percentage

1. Interest-bearing cash
                                                                   ----------
2. U.S. Government securities
                                                                   ----------
3. Corporate debt instruments (other than employer securities):
     Preferred
                                                                   ----------
     All other
                                                                   ----------
4. Corporate stocks (other than employer securities):
     Preferred
                                                                   ----------
     Common
                                                                   ----------
5. Partnership/joint venture interests
                                                                   ----------
6. Real estate (other than employer real property)
                                                                   ----------
7. Loans (other than to participants)
                                                                   ----------
8. Participant loans
                                                                   ----------
9. Value of interest in common/collective trusts
                                                                   ----------
10. Value of interest in pooled separate accounts
                                                                   ----------
11. Value of interest in master trust investment accounts
                                                                   ----------
12. Value of interest in 103-12 investment entities
                                                                   ----------
13. Value of interest in registered investment companies
      (e.g., mutual funds)
                                                                   ----------
14. Value of funds held in insurance co. general account
      (unallocated contracts)
                                                                   ----------
15. Employer-related investments:
      Employer Securities
                                                                   ----------
      Employer real property
                                                                   ----------
16. Buildings and other property used in plan operation
                                                                   ----------
17. Other
                                                                   ----------
Events with Material Effect on Assets or Liabilities

Federal law requires the plan administrator to provide in this notice a written explanation of events, taking effect in the current plan year, which are expected to have a material effect on plan liabilities or assets. For the plan year beginning on [insert beginning of plan year for year after plan year to which notice relates] and ending on [insert end of plan year for year after plan year to which notice relates], the following events are expected to have such an effect: [insert explanation of any plan amendment, scheduled benefit increase or reduction, or other known event taking effect in the current plan year and having a material effect on plan liabilities or assets for the year, as well as a projection to the end of the current plan year of the effect of the amendment, scheduled increase or reduction, or event on plan liabilities].

(Instructions: Include the preceding discussion, entitled Events with Material Effect on Assets or Liabilities, only if applicable.)

Right to Request a Copy of the Annual Report

A pension plan is required to file with the US Department of Labor an annual report (i.e., Form 5500) containing financial and other information about the plan. Copies of the annual report are available from the US Department of Labor, Employee Benefits Security Administration's Public Disclosure Room at 200 Constitution Avenue, NW, Room N-1513, Washington, DC 20210, or by calling 202.693.8673. Or you may obtain a copy of the Plan's annual report by making a written request to the plan administrator. [If the Plan's annual report is available on an Intranet web site maintained by the plan sponsor (or plan administrator on behalf of the plan sponsor), modify the preceding sentence to include a statement that the Form also may be obtained through that web site and include the web site address.]

Summary of Rules Governing Termination of Single-Employer Plans

Employers can end a pension plan through a process called “plan termination.” There are two ways an employer can terminate its pension plan. The employer can end the plan in a “standard termination” but only after showing the PBGC that the plan has enough money to pay all benefits owed to participants. The plan must either purchase an annuity from an insurance company (which will provide you with lifetime benefits when you retire) or, if your plan allows, issue one lump-sum payment that covers your entire benefit. Before purchasing your annuity, your plan administrator must give you advance notice that identifies the insurance company (or companies) that your employer may select to provide the annuity. The PBGC's guarantee ends when your employer purchases your annuity or gives you the lump-sum payment.

If the plan is not fully-funded, the employer may apply for a distress termination if the employer is in financial distress. To do so, however, the employer must prove to a bankruptcy court or to the PBGC that the employer cannot remain in business unless the plan is terminated. If the application is granted, the PBGC will take over the plan as trustee and pay plan benefits, up to the legal limits, using plan assets and PBGC guarantee funds.

Under certain circumstances, the PBGC may take action on its own to end a pension plan. Most terminations initiated by the PBGC occur when the PBGC determines that plan termination is needed to protect the interests of plan participants or of the PBGC insurance program. The PBGC can do so if, for example, a plan does not have enough money to pay benefits currently due. Benefit Payments Guaranteed by the PBGC

If a single-employer pension plan terminates without enough money to pay all benefits, the PBGC will take over the plan and pay pension benefits through its insurance program. Most participants and beneficiaries receive all of the pension benefits they would have received under their plan, but some people may lose certain benefits that are not guaranteed.

The PBGC pays pension benefits up to certain maximum limits. The maximum guaranteed benefit is [insert amount from PBGC web site, www.pbgc.gov, applicable for the current plan year] per month, or [insert amount from PBGC web site, www.pbgc.gov, applicable for the current plan year] per year, payable in the form of a straight life annuity, for a 65-year-old person in a plan that terminates in [insert current plan year]. The maximum benefit may be reduced for an individual who is younger than age 65. [If the Plan does not provide for commencement of benefits before age 65, you may omit this sentence.] The maximum benefit will also be reduced when a benefit is provided to a survivor of a plan participant.

The PBGC guarantees “basic benefits” earned before a plan is terminated, which includes [Include the following guarantees that apply to benefits available under the Plan.]:

pension benefits at normal retirement age;

most early retirement benefits;

annuity benefits for survivors of plan participants; and

disability benefits for a disability that occurred before the date the plan terminated.

The PBGC does not guarantee certain types of benefits [Include the following guarantee limits that apply to the benefits available under the Plan.]:

The PBGC does not guarantee benefits for which you do not have a vested right when a plan terminates, usually because you have not worked enough years for the company.

The PBGC does not guarantee benefits for which you have not met all age, service, or other requirements at the time the plan terminates.

Benefit increases and new benefits that have been in place for less than one year are not guaranteed. Those that have been in place for less than five years are only partly guaranteed.

Early retirement payments that are greater than payments at normal retirement age may not be guaranteed. For example, a supplemental benefit that stops when you become eligible for Social Security may not be guaranteed.

Benefits other than pension benefits, such as health insurance, life insurance, death benefits, vacation pay, or severance pay, are not guaranteed.

The PBGC generally does not pay lump sums exceeding $5,000.

Even if certain benefits are not guaranteed, participants and beneficiaries still may receive some of those benefits from the PBGC depending on how much money the terminated plan has and how much the PBGC collects from the employer.

Corporate Information on File with PBGC

The law requires a plan sponsor to provide the PBGC with financial information about the sponsor and the plan under certain circumstances, such as when the funding target attainment percentage of the plan (or any other pension plan sponsored by a member of the sponsor's controlled group) falls below 80 percent (other triggers may also apply). The sponsor of the Plan, [enter name of plan sponsor], and each member of its controlled group, if any, was subject to this requirement to provide corporate financial information and plan actuarial information to the PBGC. The PBGC uses this information for oversight and monitoring purposes.

(Instructions: Insert the preceding paragraph entitled “Corporate Information on File with PBGC” only if a reporting under section 4010 of ERISA was required for the Plan Year.)

Where to Get More Information

For more information about this notice, you may contact [enter name of plan administrator and if applicable, principal administrative officer], at [enter phone number and address and insert email address if appropriate]. For identification purposes, the official plan number is [enter plan number] and the plan sponsor's employer identification number or “EIN” is [enter EIN of plan sponsor]. For more information about the PBGC and benefit guarantees, go to PBGC's Web site, www.pbgc.gov, or call PBGC toll-free at 1.800.400.7242 (TTY/TDD users may call the Federal relay service toll free at 1.800.877.8339 and ask to be connected to 1.800.400.7242).

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This Employee Benefits article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

Immigration Alert: Reminder: New Document Requirements for U.S., Canadian and Bermudian Citizens at U.S. Land and Sea Ports Effective June 1, 2009

Michael Hawkes — Wed, 08 Apr 2009 16:37:00 -0500

Commencing June 1, 2009, all travelers entering the United States at land and sea ports will be required to present an approved travel document establishing identity and citizenship to enter the United States. This change primarily affects citizens of the United States, Canada and Bermuda who currently may be admitted at U.S. land and sea ports by presenting a government-issued photo identity document and a second document establishing citizenship.

Effective June 1, 2009, approved travel documents for these individuals will include the following:

The requirement to present an approved travel document at land and sea ports as of June 1, 2009 is mandated by the Western Hemisphere Travel Initiative (WHTI), a joint program of the U.S. Department of Homeland Security and the U.S. Department of State. This requirement finalizes implementation of the second phase of the WHTI. The requirement to present an approved travel document establishing both identity and citizenship has been in effect for air travelers since January 23, 2007.

For U.S., Canadian and Bermudian travelers who have yet to obtain a WHTI-compliant document, the interim “Two Document Option” (discussed in our Immigration Alert “New Procedures for U.S. and Canadian Citizens at U.S. Land and Sea Ports Effective January 31, 2008” will only remain an option until May 31, 2009. As of June 1, 2009, one of the WHTI-compliant documents referenced above will be required for admission to the United States. U.S. Customs and Border Protection (CBP) urges travelers to obtain an approved WHTI document now in order to avoid delays at ports of entry as of June 1, as CBP officers attempt to verify citizenship and identity.

Other Travelers

For additional information, you may visit the U.S. Customs and Border Protection website at http://www.cbp.govand http://www.getyouhome.gov/html/eng_map.html.

If you have any questions about this alert, please contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Immigration Alert: Required Use of Revised Form I-9 Takes Effect Today

Michael Hawkes — Fri, 03 Apr 2009 16:43:00 -0500

U.S. employers are reminded that, effective today, all employers are required to use the revised Form I-9 with revision date “Rev. 02/02/09” appearing in the lower right-hand corner of the form. Previous versions of the Form I-9 may no longer be used. The new Form I-9 is available at http://www.uscis.gov/files/form/i-9.pdf.

On December 17, 2008, U.S. Citizenship and Immigration Services (USCIS) published an interim final rule amending its regulations governing Form I-9 Employment Eligibility Verification. Implementation of the rule was subsequently postponed to provide the Department of Homeland Security and the Obama Administration an opportunity to review the rule. The rule is now in effect. The major change in the employment eligibility verification process is that, effective today, employers may no longer accept expired documents to verify employment authorization and identity on the Form I-9. Employers may only accept unexpired documents. Documents that do not contain an expiration date, such as Social Security cards, are deemed to be unexpired.

The rule also makes changes to the list of acceptable documents that evidence both identity and employment authorization, also known as List A documents, as follows:

Adding as a List A document a temporary I-551 printed notation on a machine-readable immigrant visa;
Adding as a List A document a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association; and,
Eliminating from List A obsolete and now-expired documents (Forms I-688, I-688A, and I-688B).
For more information, please see our Immigration Alert “USCIS Announces Revision of Form I-9” available here. Additional information is also available at http://www.uscis.gov/portal/site/uscis/menuitem... The Form I-9 “Handbook for Employers” has also been updated, and is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf.

If you have any questions about Form I-9 Employment Eligibility Verification, please do not hesitate to contact your designated Gibney representative or email immigrationalerts@gibney.com.

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Employee Benefits Alert: COBRA Premium Assistance/ Extended Election Period

Michael Hawkes — Mon, 30 Mar 2009 17:31:00 -0500

Most employers are well aware that the federal government has implemented a program to provide a 65% subsidy for health insurance premiums under COBRA to those who were involuntarily terminated from employment between September 1, 2008 and December 31, 2009. The Department of Labor (DOL) just issued four model notices (described below) to be used by employers when fulfilling the notice requirements under the new COBRA Premium Assistance/Extended Election Period.

Each of the model notices includes the forms the DOL envisions are necessary for the individuals to make the necessary subsidy application and/or elections based on their circumstances. While these forms are not mandatory, they will likely be considered a safe harbor for employers provided reasonable care is taken in evaluating the forms for any necessary modifications based on the employer’s particular facts and circumstances. It is important to review the forms carefully to make any necessary edits and to determine the individuals to whom each specific notice should be sent.

Also, to supplement the model forms provided by the DOL, we have drafted two additional documents that employers may find useful in making the necessary notifications. The first is a sample cover letter to be used when sending out the applicable DOL COBRA notice. This sample cover letter is designed to summarize the information in the notices. The second document is a sample waiver form for individuals who decide to waive their rights to the subsidy.

Although not specifically addressed in any of the DOL model notices, it is important for employers to remember that former employees and their dependents that have an overlapping election period (the traditional COBRA election period overlaps with the Extended Election Period) may have the choice of effective dates for COBRA coverage; either the date coverage was lost due to the qualifying event or the date coverage is effective based on the Extended Election Period.

EMPLOYERS SUBJECT TO STATE "MINICOBRA" INSURED PLAN REQUIREMENTS

For employers who have fully insured health plans that are NOT subject to the federal COBRA requirements, the DOL has drafted a model form (the Model Alternative Notice discussed below) for use by the insurance carriers. It is important that each employer who may be affected by this requirement contact their insurance carrier to determine how the carrier will be implementing these requirements, including the recovery of the premium assistance tax credit.

DESCRIPTION OF DOL MODEL FORMS

1. Model General Notice Full Version – Every plan participant receives a basic COBRA notice, regardless of what qualifying event occurred. Any employee who has a qualifying event from now to the end of 2009 should receive the new combined form called the “general notice.” (This form includes all the information that was previously communicated in COBRA notices, plus the required information on the new subsidy program.)

2. Model General Notice Abbreviated Version - Anyone who already received the basic COBRA notice after September 1, 2008 and who DID elect COBRA coverage should be sent the “abbreviated notice” now. This goes to all who had a qualifying event, even if you believe that they were not involuntarily terminated.

3. Model Notice in Connection with Extended Election Periods - Anyone who previously received a basic COBRA notice, but who declined coverage or who accepted coverage then let it lapse, receives the notice of “extended” election rights.

4. Model Alternative Notice – For use where coverage is subject to state COBRA (not Federal COBRA) requirements during the period that begins with September 1, 2008 and ending with December 31, 2009.

MODIFYING THE NOTICES

Employers will need to add some customized information – for example, plan contact information - to the DOL model notices and forms. Employers are permitted (and may want) to customize other sections such as reformatting the COBRA Continuation Coverage Election Form.

Please contact Ken Sacks or Meredith Saccardi if you have any questions regarding these new COBRA requirements or if you would like us to assist you in customizing the new COBRA Continuation Notices.

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Employee Benefits Alert: New Enrollment Options Under the Children's Health Insurance Program Reauthorization Act of 2009

Michael Hawkes — Thu, 26 Mar 2009 17:35:00 -0500

The Children’s Health Insurance Program Reauthorization Act of 2009 (the “Act”) was enacted February 4, 2009. The Act requires group health plans and insurance carriers to implement new enrollment options, provide notice to employees of potential opportunities under state Medicaid and state Children’s Health Insurance Programs (“CHIP”) and provide disclosure to the state, upon request, regarding group health plan coverage.

New Enrollment Options

The group health plan or insurance carrier must permit an employee (or dependant) who is eligible to enroll, but is not enrolled in the plan, to enroll for coverage if: (1) the employee (or dependant) who was covered under state Medicaid or a state CHIP program terminated coverage under the state program because they are no longer eligible; or (2) the employee (or dependant) becomes eligible for premium assistance under state Medicaid or the state CHIP program. The employee must request coverage no later than 60 days after the date eligibility is lost or the date the employee (or dependent) is determined to be eligible for state premium assistance.

Plans must provide the new enrollment options as of April 1, 2009.

Notice to Employees

Employers must provide each employee with notice which will inform the employees of the potential opportunities for state Medicaid and the state CHIP program, how the employees can contact the appropriate agency, and how to apply for assistance. The employer may provide the notice as part of the new benefits package given to new hires, concurrently with materials provided to the employees in connection with the open enrollment and election process conducted under the plan, or with the summary plan description.

The Department of Health and Human Services and the Department of Labor have been charged with drafting state specific model notices for employers to provide to their employees. Employers are required to provide the model notices beginning with the first day of the first plan year after the model notices are issued. If regulations with the model notices are issued before the end of 2009, calendar year plans will be required to provide the new notice by January 1, 2010. If regulations are issued in January or February 2010, calendar year plans will have until January 1, 2011.

Disclosure

Upon request by the state, the administrator of a group health plan must disclose information about the benefits available under the group health plan with sufficient specificity as to allow the state to determine the cost-effectiveness of the state providing medical or child health assistance through premium assistance to purchase coverage under the group health plan

Once again the Department of Health and Human Services and the Department of Labor will be drafting a Model Disclosure Form. Plan administrators compliance with the disclosure requirements must begin no later than the first plan year following the issuance of the model disclosure forms.

Recommendations

First, plan documents will need to be amended to provide for the new enrollment options. Self insured plans will also want to contact their stop loss carrier to request an appropriate amendment to the stop loss contract. Second, although the summary of material modification does not have to be distributed until July 31, 2010 for calendar year plans (210 days after the close of the plan year in which the enrollment plan change was made) it would be good form for employers to do so as soon as possible.

Model notices are scheduled to be issued within one year of the enactment of the Act (i.e. by February 4, 2010). If the model notice is issued by the end of 2009, employers with calendar year plans will have to provide notice to employees as early as January 1, 2010.

The timeline for the issuance of the model disclosure forms is slightly longer, therefore it is likely the form will not be published until 2010 and therefore a plan administrator for a calendar year plan should be prepared to provide model disclosures by January 1, 2011.

Please contact us if you have any questions at telephone 212-688-5151 or email fwanthony@gibney.com.

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Immigration Alert: April 2009 U.S. Visa Bulletin Released

Michael Hawkes — Tue, 17 Mar 2009 17:38:00 -0500

The U.S. Department of State (DOS) has published the April 2009 Visa Bulletin. In the employment-based third preference (EB-3) category, priority dates advanced slightly for Chinese and Indian nationals, but retrogressed for Worldwide, Mexican and Filipino nationals.

Priority cut-off dates remain “current” for all foreign nationals in the employment-based first preference (EB-1) category. “Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

In the employment-based second preference (EB-2) category, priority dates for Worldwide, Mexican and Filipino foreign nationals likewise remain current. The EB-2 priority cut-off date for Chinese nationals is February 15, 2005 and the EB-2 priority cut-off date for Indian nationals is February 15, 2004, also unchanged from the March 2009 Visa Bulletin. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications.

In the EB-3 professional and skilled worker category, the priority cut-off dates for Worldwide, Mexican and Filipino nationals retrogressed to March 1, 2003. The EB-3 cut-off date for Chinese nationals advanced to March 1, 2003, and the cut-off date for Indian nationals in this category advanced to November 1, 2001. In the EB-3 “other worker” category, priority cut-off dates retrogressed for all nationals, to March 1, 2001.

The full text of the April 2009 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4438.html.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.

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Partner Angelo Mazza Interviewed by Sky Radio: The Problem of Counterfeit Goods and the Importance of Protecting Your Brand

Wed, 11 Mar 2009 15:24:00 -0500

Mr. Mazza discusses the widespread problem of counterfeiting, the important work of the International Anti-Counterfeiting Coalition (IACC) and strategies for protecting your brand.

Click on the image below to listen to Sky Radio's Interview with IP Partner Angelo Mazza:

Employee Benefits Alert: Worker, Retiree and Employer Recovery Act

Michael Hawkes — Tue, 10 Mar 2009 17:43:00 -0500

The Workers, Retiree and Employer Recovery Act (the “Act”), H.R. 7327, enacted December 23, 2008, makes several notable changes to the Pension Protection Act (“PPA”).

NON SPOUSE BENEFICIARY ROLLOVERS

For plan years beginning after 2009, qualified retirement plans must offer non-spouse beneficiaries the opportunity to roll over an inherited plan into IRAs which have been set up to receive the rollover on the beneficiaries’ behalf and to provide direct rollover notice as a condition to qualification. The transfer is treated as an eligible rollover distribution for purposes of Internal Revenue Code section 402(c).

SUSPENSION OF REQUIRED MINIMUM DISTRIBUTIONS FOR 2009

No minimum distribution is required for calendar year 2009 from employer provided qualified retirement plans and individual retirement accounts and annuities. The relief applies to lifetime distributions as well as after death distributions to beneficiaries.

Generally, if an individual were to turn 70 ½ in 2009, his distribution for 2009 would have to be made by April 2010. However, under this new provision no distribution will have to be made until the end of the 2010 calendar year.

An individual who turned 70 ½ in 2008 would still have to take a required minimum distribution by April 2009.

EXTENSION OF SHORTFALL TRANSITION RULES

Under the PPA, when a plan’s funding target for the year exceeds the plan’s assets the plan has a funding shortfall base which must be amortized. However, the PPA created a transition rule where there is no funding shortfall base which would need to be amortized if the plan’s funding target is at least equal to an applicable percentage of the plan’s assets – 92% for 2008, 94% for 2009 and 96% for 2010. In order to have been eligible for the transition rule the plan had to have met the applicable percentage in the prior year.

Anticipating plans inability to meet the applicable percentages due to the failing economy, the Act amends this transition rule. Now, the transition rule is available to plans even if they did not meet the previous year’s applicable percentage. Therefore, if a plan was funded 91% for 2008, now the plan can continue to use the transition rule for 2009 and only needs to be 94% funded rather than 100%.

TEMPORARY RELIEF FROM THE LIMITATION ON BENEFIT ACCRUALS

The PPA required a plan which had a severe funding shortfall to freeze benefit accruals and provide written notice to all plan participants and beneficiaries. A plan had a severe funding shortfall if the ratio of the plan’s assets to the plan’s funding target for the year was less than 60%.

The Act provides relief to plans with a first plan year beginning between October 1, 2008 and September 30, 2009 and allows plans to use the higher of the ratio from the previous or current year to determine whether there is a severe funding shortfall.

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