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Travelers from three West African nations hit by the Ebola outbreak will be required to report their temperatures and other health conditions every day for a three-week period after arriving in the U.S., the Centers for Disease Control and Prevention announced Wednesday. The CDC program is designed to identify people with symptoms of Ebola to reduce chances that the virus will spread.
The CDC’s move follows an announcement earlier this week that the Department of Homeland Security will require all travelers flying from any of the three countries – Guinea, Liberia and Sierra Leone – to enter the U.S. only via one of five airports set up for enhanced health screening.
The CDC monitoring will cover everyone whose travels originate from the three West African countries, regardless of nationality. The program will be launched Oct. 27 in six states that the CDC says receive 70 percent of the travelers in question – Georgia, Maryland, New Jersey, New York, Pennsylvania and Virginia. It will be rolled out soon in other states where travelers from the three countries are residing, the CDC said.
Travelers entering the U.S. from the three countries will be required to:
If travelers do not report their conditions as required, state or local officials will attempt to locate them to resume daily monitoring.
The monitoring will continue for 21 days following a traveler’s arrival from one of the Ebola-affected countries. Twenty-one days is the longest it can take for a person infected with Ebola to begin showing symptoms.
“The bottom line here is that we have to keep up our guard against Ebola,” said CDC Director Tom Frieden in a teleconference with reporters.
BAL Analysis: Travelers of all nationalities flying to the U.S. from Guinea, Liberia or Sierra Leone should prepare for daily post-travel monitoring upon arrival.
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Travelers from the three West African countries affected by the Ebola outbreak will be routed through one of five American airports that have enhanced Ebola screening measures in place, the Department of Homeland Security announced this week.
The move falls short of the all-out travel ban that many lawmakers say they would like to see, but does mark an increase in U.S. efforts to stop the spread of Ebola. All travelers flying from Guinea, Liberia or Sierra Leone will be required to enter the U.S. at either New York’s John F. Kennedy International Airport, Washington’s Dulles International Airport, Hartsfield-Jackson Atlanta International Airport, Newark Liberty International Airport or Chicago’s O’Hare International Airport.
According to DHS, measures at the five airports have been put in place to:
The screening measures were put into place at Kennedy Airport Oct. 11 and at the other four airports Oct. 16. DHS now says it will “exercise its authority” to ensure that all travelers flying from any of the three countries will enter the U.S. only via one of the five airports.
According to DHS data, since enhanced screening began, 562 people have been tested, a few have registered high temperatures, but none have tested positive for Ebola.
A number of countries in Africa, the Middle East, Latin America and the Caribbean have implemented stringent travel bans or restrictions, but so far the U.S. and most European countries have held back and opted for health screening measures instead. President Obama told reporters last week that while he is not opposed to a travel ban in principle, experts in infectious disease have said that screening passengers from West Africa is more effective than restricting travel.
BAL Analysis: Travelers flying to the U.S. from Guinea, Liberia or Sierra Leone, regardless of nationality, should plan to enter through one of the five designated airports.
Due to building renovations, the U.S. Consulate General in Calgary will restrict consular services during November.
The Calgary consulate will be closed for nonimmigrant visa services for the month of November. In anticipation of the suspension, the consulate has made extra appointments available now through Oct. 28. It will resume normal visa operations in December. Visa applicants can obtain a visa interview by appointment only and must first complete an online application and pay the application fees.
Also during November, American citizens seeking routine or emergency services at the consulate in Calgary must schedule an appointment by emailing calgary_acs@state.gov. U.S. citizens with emergency requests after business hours may call the emergency line: (403) 266-8962.
BAL Analysis: Applicants for nonimmigrant visa interviews should schedule appointments as soon as possible and before Oct. 28 to avoid the November suspension of services. As an alternative, applicants who are not U.S. or Canadian citizens and who are qualified to have their visa interview in Calgary in most cases may instead go to the U.S. Embassy or any consulate in Canada that processes third-country nationals. Please consult your BAL attorney for exceptions to this general rule.
The Labor Department has increased audits of PERM labor certification applications.
Companies applying for PERMs should prepare for more audits and longer timelines, given that audits can delay PERM application approval by up to 10 months and sometimes longer.
PERM audits have increased across all industries. Besides the usual triggers, two types of applications have been particularly vulnerable to audits in recent months: those involving jobs requiring a degree but no experience and those that are re-submitted for the same employee. A second application may be filed after an initial denial or where an employer applies for a different position for the same employee. In addition, the Department has recently added a new question to its audit notices that asks for documentation of why an employer who rejected U.S. job seekers as “not qualified” could not have trained those workers for the necessary job skills. Audit notices frequently now include a request that the employer provide “documentation explaining why the U.S. applicants deemed ‘not qualified’ could not have attained the skills necessary to perform the duties (required) during a reasonable period of on-the-job training.”
PERM applications are the first step for many employers seeking to sponsor a foreign employee for permanent residence. Labor Department data as of Aug. 31 showed that 67,691 PERM applications had been received in fiscal year 2014 and that 29 percent of the PERM applications being processed at the time were in audit review. Those numbers may not capture the recent increase in PERM audits.
Audits frequently focus on employers’ attempts to find qualified U.S. workers for the position for which they are hiring a foreign worker. They also may focus on an employer’s ability to demonstrate a business necessity for the worker. Audits may stem from a random selection for quality control or based on criteria that may help identify problematic applications. Traditionally, applications more likely to be audited include applications for trade-related occupations, positions that do not require a bachelor’s degree, where the employer has indicated layoffs, and applications that were not filed electronically.
BAL Analysis: The surge in PERM audits across the board signals increased scrutiny by the Labor Department, especially on second PERM applications and on jobs requiring a degree but no experience. This trend is likely to continue, in light of the Department’s recent feedback confirming these two categories face greater likelihood of audits. Companies should work with their BAL attorney to prepare for and respond to audits of PERM applications.
The FBI has resumed processing clearance requests after a new computer system suspended operations last month. The FBI is currently processing requests received Aug. 5, 2014. However, the FBI has stressed that processing remains slow; therefore, applicants should expect the process to take longer than the normal four to six weeks.
A new IT system was installed Sept. 7, delaying pending requests submitted the previous month and putting all civilian fingerprint requests on hold. The disruption extended wait times to 12 weeks, but did not affect governmental requests or those submitted through FBI-approved channelers.
BAL Analysis: Applicants requesting FBI clearance should note that while processing has resumed, it is not yet back to normal and there is a backlog of certificates to be issued.
Beginning next year, employers who use E-Verify will no longer have access to records that are more than 10 years old.
On Jan. 1, E-Verify records created before Dec. 31, 2004 will be permanently deleted from the database. Employers who want access to these older records must download the new Historic Records Report before Dec. 31, 2014. The report will not be available after Dec. 31. Employers who began using E-Verify after Dec. 31, 2004 will not have any records in the report and do not need to download the report.
E-Verify records will be deleted at the beginning of each year after they turn 10 years old and employers will be reminded to download the new Historic Records Report before the end of the year. The instructions on how to download reports can be viewed here.
U.S. Citizenship and Immigration Services is adopting the document deletion policy to minimize privacy risks associated with retaining individuals’ personal information. National Archives and Records Administration policies require that records more than 10 years old be deleted.
BAL Analysis: Employers who want access to E-Verify records that are more than 10 years old must download the report before Dec. 31. Employers should also follow best practices by recording the E-Verify verification number on the appropriate I-9 Form and keep the Historic Records Report with the I-9 Form.
Exchange Visitor Program (J-1) sponsors should be aware of new rules calling for greater oversight that take effect Jan. 5, 2015.
The final rule, published Monday in the Federal Register, includes the following provisions concerning the obligations of program sponsors:
Earlier versions of the rule proposed in September 2009 contained some burdensome requirements that the Department has eliminated from the final rule. For example, it will not impose mandatory on-site inspections before a sponsor is designated, but will retain the discretion to conduct them and will continue to make on-site visits of existing sponsors. Also, the Department will not require sponsors to produce a Dun & Bradstreet report after deciding that the financial burden on sponsors outweighs the usefulness of such a report.
The Department will accept public comments on the final rule until Dec. 5.
BAL Analysis: The regulations will entail more paperwork for sponsors and greater internal and external oversight of sponsors in the Exchange Visitor Program. Hiring of independent auditors to produce annual reviews and training of ROs and AROs on federal, state and local laws and regulations will increase costs to program sponsors.
The priority date for Indian nationals in the employment-based second preference (EB-2) category will retrogress by more than 4 years, according to the U.S. State Department’s November 2014 Visa Bulletin. The priority date for EB-2 India will move back to Feb. 15, 2005 next month, from the current priority date of May 1, 2009. The retrogression had been predicted by immigration practitioners and State Department officials. EB-2 China will advance less than one month from Nov. 15, 2009 to Dec. 8, 2009. All other countries will remain current in the EB-2 category.
All countries will advance forward in the employment-based third preference (EB-3) category for professionals and skilled workers. Priority dates for EB-3 Worldwide, Mexico and Philippines will move forward by eight months from Oct. 1, 2011 to June 1, 2012. There will also be significant movement for EB-3 China as it will jump forward nine months from April 1, 2009 to Jan. 1, 2010. EB-3 China will once again be ahead of EB-2 China. EB-3 India will advance only marginally by one week to Nov. 22, 2003.
The EB-1 category will remain current across all countries.
Summary of November 2014 Visa Bulletin:
EB-1 Current across all countries
EB-2 China: Dec. 8, 2009 India: Feb. 15, 2005 All other countries: Current
EB-3 China: Jan. 1, 2010 India: Nov. 22, 2003 Mexico: June 1, 2012 Philippines: June 1, 2012 All other countries: June 1, 2012
Due to a new computer system, the FBI is processing clearance requests at a very slow pace and has suspended processing of all nongovernmental fingerprint requests until further notice.
Applicants should plan for lengthy delays and an ensuing backlog in the coming months. The FBI has said that the current wait time is approximately 12 weeks, an increase from the normal processing times of four to six weeks. The FBI has not said when it will resume civilian fingerprint requests. Currently, requests submitted via FBI-approved channelers are still being processed as usual. Channelers who are approved by the FBI may submit clearance requests on behalf of U.S. citizens and lawful permanent residents only. Individuals in nonimmigrant visa categories will not be able to use channelers and will have to endure the delays.
The disruption in service stems from the installation of a new computer system at the FBI’s Criminal Justice Information Service division Sept. 7. The slowdown is affecting requests pending as of that date and possibly earlier. The FBI is asking that applicants refrain from calling to check on the status of their clearance requests until 12 weeks have elapsed.
BAL Analysis: Applicants should plan for the delays and expect a backlog to develop following resumption of services. Applicants considering using channelers should be aware that it is up to the discretion of immigration authorities or consular officers whether to accept channeler-issued FBI clearance certificates for particular immigration processes.
The Department of Labor will reconsider cases that were denied on grounds that have since been overturned by a recent en banc ruling by the Board of Alien Labor Certification Appeals. That decision held that job advertisements conducted as “additional recruitment steps” for a PERM labor certification application do not need to meet advertising content requirements for “mandatory recruitment steps” under 20 CFR §656.17(f).
In light of the ruling, the Department of Labor will reconsider denials that were based on the erroneous interpretation of the advertising requirements. The department will only accept cases in which a timely notice of appeal or motion to reconsider was filed.
As part of the labor certification process, the employer in the case fulfilled mandatory recruitment steps, including newspaper ads, for the position of financial programmer analyst. The employer also posted online ads on a job-search website to meet a PERM requirement that three of 10 additional recruitment steps be taken to test the labor market. The certifying officer denied the PERM, because the employer’s online ads did not match the newspaper ads. In its reversal of that decision, the Board found that the regulations do not require that additional recruitment steps satisfy the stricter content requirements for mandatory steps. Berry Appleman & Leiden represented the employer in the case.
BAL Analysis: Companies that were denied labor certification on the grounds that their additional recruitment steps did not follow mandatory content requirements may be eligible for reconsideration. Employers who are still within the appeal period are urged to file an appeal or motion for reconsideration to preserve their rights.