Category: Administrative & Regulatory

Effective September 12, 2014: New Fees for Some Nonimmigrant and Immigrant Visas

Mintz Levin Law Firm

The Department of State (DOS) has revised certain nonimmigrant and immigrant visa fees. DOS has adjusted the visa fees in the following categories:

  1. E visas – treaty/trader and Australian specialty occupation visas decreased to $205 (from $270).

  2. K visas – Fiancé(e) or Spouse of U.S. citizen category visa increased to $265.

  3. Immigrant visa application processing fee based on an approved I-130 Immediate Relative of Family Preference petition increased to $325.

  4. Immigrant visa processing fee based on an approved I-140 employment-based petition decreased to $345 (from $405).

As detailed on the DOS website, the following procedures apply:

  1. DOS will not refund the difference for fees that have been lowered.

  2. If you are applying for a category where the fee has been raised and you have already paid the fee, you are not required to pay the difference between the amount you paid and the new fee as long as your appointment is on or before December 11, 2014.

  3. If you are applying for a category where the fee has been raised, you are required to pay the difference between the amount you paid and the new fee if your appointment is on or after December 12, 2014.

ARTICLE BY

Barbara Chin
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

CBP Announces Optimized Processing for First-Time Canadian TN and L Applicants

Greenberg Traurig Law firm

U.S. Customs and Border Protection (CBP) has announced optimized processing procedures at fourteen ports-of-entry, including four pre-clearance locations, for Canadian citizens seeking TN or L status for the first time. This initiative is designed to increase customer satisfaction, decrease wait times and allow CBP to effectively deal with increased volume of Canadian TN and L applicants. Although first-time Canadian TN and L applicants may go to other ports for processing, CBP is encouraging applicants to go through one of the designated ports below for optimized processing:

Pre-Flight Inspection Locations

  • Pearson International Airport, Toronto, Ontario

  • Trudeau International Airport, Dorval, Quebec

  • Vancouver International Airport, Richmond, British Columbia

  • Calgary International Airport, Calgary, Alberta

Land Port Locations

  • Highgate Springs Port of Entry, Highgate Springs, Vermont

  • Derby Line Port of Entry, Derby Line, Vermont

  • Alexandria Bay Port of Entry, Alexandria, New York

  • Peace Bridge Port of Entry, Buffalo, New York

  • Rainbow Bridge Port of Entry, Niagara Falls, New York

  • Champlain Port of Entry, Champlain, New York

  • Detroit Canada Tunnel Port of Entry, Detroit, Michigan

  • Detroit Ambassador Bridge Port of Entry, Detroit, Michigan

  • Blaine Peace Arch Port of Entry, Blaine, Washington

  • Sweetgrass Port of Entry,  Sweetgrass Montana

ARTICLE BY

Ian R. Macdonald
OF
Greenberg Traurig, LLP

President Obama’s Response to the Ebola Crisis

According to the U.S. Department of Defense, December 30, 2013 was epidemiological week 1 for the current Ebola crisis in West Africa.  Since that date, more than 4,985 cases — 2,461 of which have resulted in death — have been confirmed or suspected.

Today, nine months after the epidemic’s outbreak, President Obama has made an overdue announcement that the U.S. will deploy an estimated 3,000 troops in an effort to stem the crisis.  The response is certainly welcome but it remains far from certain that an intervention by the U.S. military will be sufficient to defeat this deadly epidemic.

President Obama is right to characterize the Ebola outbreak as a top national security priority for the U.S., and the past is instructive for what we might be dealing with in this situation.

The last time that the U.S. declared a health emergency to be a threat to U.S. national security was in 2000, when the Clinton administration designated HIV/AIDS as a threat that could undermine governments, lead to conflict and weaken progress on democracy and economic growth.  At that time, the Clinton Administration doubled its budget request to combat HIV/AIDS internationally to $254 million.  However, it was not until 2003 when President George W. Bush requested from Congress $15 billion over five years that the U.S. began to turn the tide of that deadly pandemic.  It was still another two years before medicines became widely available to those infected with HIV and, in 2008, PEPFAR was reauthorized for $48 billion for another five years.

To date, the Obama administration has spent $175 million to address the rapidly spreading Ebola crisis in West Africa.  This is likely to be a fraction of the ultimate cost required to defeat this disease.  Recent estimates from the United Nations place the costs around $1 billion.

In addition to involving the U.S. military, President Obama has committed the U.S. to the construction of 17 treatment centers (each of which will have 100  beds) in Liberia and the establishment of a site to train up to 500 local health care providers per week.  In terms of containing this deadly disease, this “whole of government” response from the Obama Administration is a good, if belated, start.  However, key questions remain.

It is not clear how long the strategy will take to implement and, according to international health officials who spoke with The New York Times, 1,000 beds are needed in the next week alone to contain the spread of the disease.  It also is not clear how the U.S. will work with the governments of Sierra Leone and Guinea, as nearly half the cases reported come from those two countries, nor Nigeria and Senegal who also have reported cases.

Over the weekend, chief executives from 11 companies operating in Liberia, Sierra Leone and Guinea made an urgent appeal to the international community to pool its resources to fight Ebola.  It is an important development that the U.S. is moving forward with a more aggressive response to this plea.  Yet victory will likely require a “whole of community” response from all stakeholders, including governments, businesses, NGOs and others, who want to see the governments of West Africa defeat this deadly scourge.

ARTICLE BY

Witney Schneidman
OF
Covington & Burling LLP

Department of State Releases October 2014 Visa Bulletin

The bulletin shows slight forward movement in all employment-based preference categories, with the exception of the EB-2 India category, which will remain unchanged.

The U.S. Department of State (DOS) has released its October 2014 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their statuses to that of permanent residents or to obtain approval of immigrant visas at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the October 2014 Visa Bulletin Say?

The October Visa Bulletin shows moderate advancement of the cutoff dates in all of the employment-based categories other than EB-2 India, which will remain unchanged from September because of significant demand in this category.

The cutoff date for F2A applicants from all countries will advance slightly in October.

EB-1: All EB-1 categories will remain current.

EB-2: The cutoff date for applicants in the EB-2 category chargeable to India will remain unchanged at May 1, 2009. The cutoff date for applicants in the EB-2 category chargeable to China will advance by 38 days to November 15, 2009. The EB-2 category for all other countries will remain current.

EB-3: The cutoff date for applicants in the EB-3 category chargeable to India will advance by seven days to November 15, 2003. The cutoff date for applicants in the EB-3 category chargeable to China will advance by 151 days to April 1, 2009. The cutoff date for applicants in the EB-3 category chargeable to the Philippines, Mexico, and the worldwide category will advance by six months to October 1, 2011.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: April 1, 2009 (forward movement of 151 days)
India: November 15, 2003 (forward movement of seven days)
Mexico: October 1, 2011 (forward movement of 183 days)
Philippines: October 1, 2011 (forward movement of 183 days)
Rest of the World: October 1, 2011 (forward movement of 183 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

The EB-2 category for applicants chargeable to all countries other than China and India has been current since November 2012. The October Visa Bulletin indicates no change to this trend. This means that applicants in the EB-2 category chargeable to all countries other than China and India may continue to file AOS applications or have applications approved through October 2014.

China

The September Visa Bulletin indicated a cutoff date of October 8, 2009 for EB-2 applicants chargeable to China. The October Visa Bulletin indicates a cutoff date of November 15, 2009, reflecting forward movement of 38 days. This means that applicants in the EB-2 category chargeable to China with a priority date prior to November 15, 2009 may file AOS applications or have applications approved in October 2014.

India

The September Visa Bulletin indicated a cutoff date of May 1, 2009 for EB-2 applicants chargeable to India. The October Visa Bulletin indicates a cutoff date of May 1, 2009, reflecting no movement. This means that applicants in the EB-2 category chargeable to India with a priority date prior to May 1, 2009 may file AOS applications or have applications approved in October 2014.

The September Visa Bulletin indicated that the use of potentially “otherwise unused” employment-based visa numbers prescribed by section 202(a)(5) of the Immigration and Nationality Act had allowed the cutoff date in the EB-2 India category to advance rapidly in recent months. The September Bulletin warned that continued forward movement of this cutoff date could not be guaranteed. The October Visa Bulletin indicates no movement of the cutoff date in the EB-2 India category in October in order to regulate demand. It further notes that increased demand will require the retrogression of the cutoff date, possibly in November, to hold number use within the fiscal year 2015 annual limit.

Developments Affecting the EB-3 Employment-Based Category

China

The September Visa Bulletin indicated a cutoff date of November 1, 2008 for EB-3 applicants chargeable to China. The October Visa Bulletin indicates a cutoff date of April 1, 2009 reflecting forward movement of 151 days. This means that applicants in the EB-3 category chargeable to China with a priority date prior to April 1, 2009 may file AOS applications or have applications approved in October 2014.

India

The September Visa Bulletin indicated a cutoff date of November 8, 2003 for EB-2 applicants chargeable to India. The October Visa Bulletin indicates a cutoff date of November 15, 2003, reflecting forward movement of seven days. This means that EB-3 applicants chargeable to India with a priority date prior to November 15, 2003 may file AOS applications or have applications approved in October 2014.

Rest of the World

The September Visa Bulletin indicated a cutoff date of April 1, 2011 for EB-3 applicants chargeable to the worldwide category. The October Visa Bulletin indicates a cutoff date of October 1, 2011, reflecting forward movement of 183 days. This means that applicants in the EB-3 category chargeable to the worldwide category with a priority date prior to October 1, 2011 may file AOS applications or have applications approved in October 2014.

Developments Affecting the F2A Family-Sponsored Category

The September Visa Bulletin indicated a cutoff date of April 22, 2012 for F2A applicants from Mexico. The October Visa Bulletin indicates a cutoff date of July 22, 2012, reflecting forward movement of 91 days. This means that applicants from Mexico with a priority date prior to July 22, 2012 will be able to file AOS applications or have applications approved in October 2014.

The September Visa Bulletin indicated a cutoff date of January 1, 2013 for F2A applicants from all other countries. The October Visa Bulletin indicates a cutoff date of February 1, 2013, reflecting forward movement of 31 days. This means that F2A applicants from all other countries with a priority date prior to February 1, 2013 will be able to file AOS applications or have applications approved in October 2014.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. See the October 2014 Visa Bulletin in its entirety at the DOS website.

ARTICLE BY

Eric S. Bord
Lisa Stephanian Burton
Tracy Evlogidis
Malcolm K. Goeschl
Eleanor Pelta
A. James Vázquez-Azpiri
OF
Morgan, Lewis & Bockius LLP

October Visa Bulletin – Some Gains in the EB-3 Category, but Near Future Bleak for EB-2 India

Greenberg Traurig Law firm

The Department of State released its October Visa Bulletin today.  On a positive note, the EB-2 category for Chinese nationals has made a five week gain, from October 8, 2009 to November 15, 2009; and the EB-3 category for skilled workers/professionals for Chinese nationals has jumped five months, from November 1, 2008 to April 1, 2009.  The EB-3 category will advance six months for nationals of “all other countries” from April 1, 2011 to October 1, 2011; whereas it will only move forward a week for Indian nationals from November 8, 2003 to November 15, 2003.  Elsewhere, the EB-2 category for Indian nationals remains at May 1, 2009 and, unfortunately, this category is likely to retrogress over the next several months because of a spike in demand.  This is grim reading for Indian nationals who account for a large percentage of highly-skilled workers seeking permanent residence in the United States.  Indeed, based on current retrogression dates for Indians in the EB-3 category, priority dates are moving forward one week every month, which translates to a wait time of more than forty years.

Employment Based Category

All Other Countries

China

India

Mexico

Philippines

EB-1

Current

Current

Current

Current

Current

EB-2

Current

10/08/2009

05/01/2009

Current

Current

EB-3 Skilled Workers/Professionals

04/01/2011

11/01/2008

11/08/2003

04/01/2011

04/01/2011

EB-3 Other Workers

04/01/2011

07/22/2005

11/08/2003

04/01/2011

04/01/2011

 

ARTICLE BY

Ian R. Macdonald
 
OF 
Greenberg Traurig, LLP

Report on State Preparedness to Implement EPA Clean Power Plan

Analysis_Group_logo_1200x900px

States are well positioned to implement the Environmental Protection Agency’s (EPA) Clean Power Plan, according to a new study conducted by Analysis Group Senior Advisor Susan Tierney and Vice Presidents Paul Hibbard and Andrea Okie. The report, “EPA’s Clean Power Plan: States’ Tools for Reducing Costs & Increasing Benefits to Consumers,”is based on a careful analysis of states that already have experience regulating carbon pollution. It finds that those states’ economies have seen net increases in economic output and jobs. “Several states have already put a price on carbon dioxide pollution, and their economies are doing fine. The bottom line: the economy can handle – and actually benefit from – these rules,” said Dr. Tierney.

The EPA’s proposed Clean Power Plan would regulate carbon emissions from existing fossil-fueled power plants using EPA’s existing authority under the Clean Air Act. The draft rules, due to be finalized next year, allow a variety of market-based and other approaches states can choose from to cut greenhouse gas emissions from power plants.

The Analysis Group team analyzed the carbon-control rules already in place in several states to see what insights they might hold for the success of the national rule. The report was based on states’ existing track records, rather than projecting costs and benefits that might be expected under the Clean Power Plan. The report, funded by the Energy Foundation and the Merck Family Fund, was released at the summer conference of the National Association of Regulatory Utility Commissioners (NARUC) in Dallas, Texas.

Read the report

ARTICLE BY

Susan F. Tierney, PhD
Paul J. Hibbard
Andrea Okie
 
OF
Analysis Group, Inc.

Full D.C. Circuit to Rehear ACA Premium Tax Credit Case

Mcdermott Will Emery Law Firm

The full U.S. Court of Appeals for the D.C. Circuit has vacated the 2-1 panel decision issued July 22, 2014, in Halbig v. Burwell, which struck down the Internal Revenue Service (IRS) Rule providing for Affordable Care Act (ACA) premium tax credits to be available to lower income exchange customers, regardless of their state of residence.  The government’s brief is due October 3, 2014, and the plaintiffs’ opposing brief is due a month later on November 3, 2014, to precede oral arguments on December 17, 2014.  It is likely that the full D.C. Circuit would not render its opinion before mid- to late Spring 2015.  This has the effect of preserving the status quo with respect to the availability of premium tax credits, at least until the full D.C. Circuit renders its decision.

Meanwhile, the plaintiffs have sought review by the Supreme Court of the United States in King v. Burwell, Halbig’s sister case in which the U.S. Court of Appeals for the Fourth Circuit upheld that same IRS Rule.  The Clerk of the Supreme Court has granted the government an extension until October 3, 2014, to respond to the petition for certiorari.  The plaintiffs have urged the highest court render its decision as quickly as possible to resolve the circuit split.  If the Supreme Court accepts King for review before mid-January, it could issue a ruling in the current term, which is scheduled to end in late June 2015.

Among the highest profile legal challenges to the ACA, Halbig and King seek to invalidate a May 2012 IRS Rule providing that health insurance premium tax credits will be available to all taxpayers nationwide, regardless of whether they obtain coverage through a state-based exchange or a federally facilitated exchanges (FFE).  The plaintiffs (represented by the same lawyers in both cases) argued that the plain language of the ACA limits the availability of premium tax credits to only those taxpayers who reside in the 14 states (plus the District of Columbia) that set up their own exchanges, and thus nullifies the IRS Rule’s application to the 36 states operating exchanges through the FFE.  Plaintiffs’ argument is based on language providing that premium tax credits are only available for plans “enrolled in through an Exchange established by the State under section 1311 of the [ACA].”  ACA § 1401(a), enacting 26 U.S.C. § 36B(c)(2)(A)(i) (emphasis added).  The government counters that other provisions of the ACA make clear that the subsidies are to be made available in the FFE states as well.  

There are also two similar cases awaiting decisions by federal trial courts on motions for summary judgment.  First, in Pruitt v. Burwell, pending in federal district court in Muskogee, Oklahoma, the state complains that the availability of the premium tax credit in FFE states forces the state to choose between the costs of providing coverage to its employees or paying the IRS a significant financial penalty.  Second, in Indiana v. IRS, pending in federal district court in Indianapolis, the state and 39 of its public school districts argue that the IRS Rule directly injures the state and school districts in their capacities as employers by subjecting them to increased compliance costs and administrative burdens.  On August 12, 2014, the plaintiffs survived the government’s motion to dismiss based upon lack of standing inIndiana v. IRS, although the court dismissed one aspect of the case because of the delay in enforcing the employer mandate.  Oral arguments on the merits are set for October 9, 2014.

ARTICLE BY

Lauren D’Agostino
J. Peter Rich
 
OF 
McDermott Will & Emery

Manufacturer of Spinal Devices and Indiana Spinal Surgeon to Pay U.S. Government $2.6 Million for Violating the False Claims Act

tz logo 2On August 29, 2014, the Department of Justice (DOJ) announced that Omni Surgical L.P. (dba Spine 360), and Dr. Jamie Gottlieb, an Indiana Spinal Surgeon, agreed to pay the U.S. Government $2.6 million to settle allegations that Spine 360 and Dr. Gottlieb knowingly violated the False Claims Act when Dr. Gottlieb accepted kickbacks from Spine 360 for using their medical devices.  In addition, Spine 360 falsified financial documents in order to cover up illegal incentives paid to Dr. Gottlieb in an attempt to avoid suspicion.

The Anti-Kickback Statute, a provision of the False Claims Act, is designed to protect patients and federal health care programs from fraud and abuse by prohibiting the use of money or anything of value that is intended to induce, reward, or influence health care decisions. Therefore, anyone who knowingly and willfully accepts or offers payment or compensation of any kind and in any manner with the intention of influencing medical decisions is in violation of the False Claims Act.  In this case, between 2007 and 2009, Spine 360, located in Austin, Texas, allegedly offered Dr. Gottlieb monetary kickbacks for using their medical devices on his patients.  In doing so, it allegedly influenced Dr. Gottlieb’s medical decisions and possibly compromised the quality care and best interest of his patients.

Medical violations of this kind are not new.  However, the U.S. Government continues to hold those in violation of the False Claims Act accountable for their actions.  For example, in July 2014, the government settled a lawsuit filed against two Infirmary Health System Inc. (IHS) affiliated clinics and Diagnostic Physicians Group P.C. (DPG) for violating the False Claims Act by paying or receiving financial inducements in connection with claims to the Medicare program. In this case, whistleblower, Dr. Christian Heesch, a physician formerly employed by Diagnostic Physicians Group, is entitled to $4.41 million for reporting fraud against government-funded programs.  Furthermore, last month, the government settled allegations that Carondelet Health Network (CHN) and its affiliate hospitals, Carondelet St. Mary’s and Carondelet St. Joseph’s in Tucson, Arizona, knowingly violated the False Claims Act by overcharging the U.S. Government when it submitted false bills to Medicare and other Federal Health Care programs, and whistleblower, Jacqueline Bloink, formerly employed by the CHN, is entitled to a share of the settlement payment for reporting fraud against the government, which amounts to $6 million.

ARTICLE BY

Whistleblower Practice Group
 
OF 
Tycko & Zavareei LLP

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP

DOL Institutes Enhanced Password Requirements for Permanent Case Management System (PERM) Users

Greenberg Traurig Law firm

Effective August 25, 2014, the Department of Labor (DOL) has instituted enhanced password requirements for Permanent Case Management System (PERM) users. In the next 90 calendar days, current PERM users will be required to update existing passwords to meet the new security criteria. In addition, all PERM users will be required to update their passwords every 90 days. The DOL sends reminder emails on the 75th, 80th, 85th, 88th, 89th, and 90th day. Users may also choose to update their password at any time prior to expiration. Should the password expire, the user will be required to re-activate the account by identifying himself or herself and answering a secret question correctly. The DOL will send a temporary password for the user to access the PERM account and set up a new password.

The new password must meet the following criteria: 1) 8-15 characters, 2) one special character, 3) one upper case letter, 4) one lower case letter, 4) one number, and 5) no recycling of a prior password used in the past 12 passwords. For detailed instructions regarding the new password rollout, you can review the DOL’s Quick Start Guide.

ARTICLE BY

Emily R. Liss
 
OF 
Greenberg Traurig, LLP