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* Carsten Alting

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Henry M. Burwell

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William T. Hogan III

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*Admitted as an attorney in Germany

INTERNATIONAL AGREEMENTS AND INVESTMENTS

Social Security

U.S.:

• A Social Security Totalization Agreement between Mexico and U.S. to allow Mexicans to draw Social Security funds was signed in 2004 and must be submitted to Congress and the President for approval and still does not clarify if undocumented workers may draw benefits (84 IR 126; January 15, 2007)

Foreign Direct Investment

U.N.:

• The United Nations Conference on Trade and Development (UNCTAD) reported global Foreign Direct Investment (FDI) grew an estimated 34% in 2006 with the U.S. recovering as the largest single recipient with a 78.2% jump but 2007 will register weaker growth as a result of continuing external imbalances, sharp exchange rate fluctuations, rising interest rates, increasing inflationary pressures and high and volatile commodity prices (24 ITR 67; 1/18/07)

Foreign Investment

Thailand:

• Planned changes to the Foreign Business Act may force some companies to restructure their local investment disallowing foreign nationals or firms to remain the effective owners of a Thai company by retaining most of the voting shares or employing nominee shareholders to circumvent the standard 49% foreign ownership limit (24 ITR 75; 1/18/07)

Indonesia:

• Incentives for a company making new investments in over a dozen industries have been announced for key sectors in remote areas (24 ITR 48; 1/11/07)

IMMIGRATION

H-1B Term Limits

• In an effort to improve access to workers, the Immigration Service clarified the calculation for the maximum period of admission in H-1B status where the beneficiary has since been outside the U.S. for more than one year (84 IR 1; January 2, 2007)

Knowing Employment of Illegal Foreign Nationals Results in Denial of Labor Certification

• The Board of Alien Labor Certification (BALCA) denied a labor certification for an illegal foreign national who had worked for a family for a number of years where the employer failed to establish a bonafide job opportunity open to U.S. workers

• The application contained insufficient information to determine if the position of head housekeeper was a skilled or unskilled position requiring less than two years of training which requirement is part of the minimum standards for certification

• Information submitted by the employer in the rebuttal included documentation about unlawful terms of employment in violation of 20 C.F.R. § 656.20(c)(7)

• The employer had a history of violating immigration laws on employment of foreign workers (84 IR 77; January 8, 2007)

Labor Certification Denied for Insufficient Recruitment Efforts Since Employer Made One Only Attempt to Contact a U.S. Applicant

• The rebuttal of an employer submitted to a certifying officer to show good faith efforts to contact potential recruits requires more evidence than the failure of the applicant to sign for a certified letter

• The failure of employer to rebut the proposed notice of findings of insufficient attempts could not be supported by new evidence introduced in the appeal record since the information had not been formerly supplied to the Certifying Officer by the employer (84 IR 79; January 8, 2007)

New P-1 Program for Certain Athletes

• USCIS Associate Director M. Aytes issued a Memorandum on the extension of the P-1 nonimmigrant classification to certain athletes formerly admitted as H-2B nonimmigrants

• Individuals include athletes of internationally recognized performance, a professional athlete employed by team which is a member of an association of six or more professional teams with combined revenues over ten million dollars per year, individual coaches or athletes performing with teams or franchises located in the U.S. as part of an international league or association of fifteen or more amateur sports teams and amateur or professional ice skaters performing at theatrical productions (84 IR 124; January 15, 2007)

Nursing Relief for Disadvantaged Areas Act Memorandum

• USCIS Associate Director M. Aytes issued a Memorandum concerning the H-1C Program to reduce the shortage of qualified nurses in health professional shortage areas to allow qualified hospitals to employ temporary foreign workers as registered nurses for up to three years (84 IR 124; January 15, 2007)

USDOL Issues Proposed E-3 Regulations

• An E-3 nonimmigrant may enter the U.S. under a Treaty of Foreign Commerce Navigation between the U.S. and the foreign state of which he is a national to perform services in a specialty occupation if the intending employer has filed a labor attestation

• The definition of “specialty occupation” is the same as for the H-1B program

• 10,500 initial visas are allocated to foreign nationals of Australia under this program

• The labor attestation by the employer requires certification regarding wages and working conditions (84 IR 125; January 15, 2007)

USCIS Associate Director M. Aytes Memo December 5, 2006 Provisions Update the Adjudicator’s Field Manual (AFM)

• Clarification is issued for H-4 and L-2 beneficiaries applying for additional periods of admission beyond the H-1B six year maximum term

• H-1B applicants who qualify for an extended term beyond six years need not be an H-1B status at time of petition

• The calculation for the maximum term of stay is clarified

USCIS Announces Processing Changes for Section 212(e) Waivers

• “No Objection” statements from the home country of an individual requested by interested U.S. Government agency or a state Conrad 30 Program request are processed differently to expedite handling in coordination with USCIS (84 IR 8; January 2, 2007)

Employer’s Failure to Document Business Necessity Was Insufficient Evidence of a Requirement to Speak a Foreign Language and Resulted in a Denied Labor Certification

• The certifying officer denied the labor certification since telephone bills showing contact with foreign jurisdictions did not substantiate the requirement that foreign languages had to be spoken based on the current needs and conditions of the employer (Matter of Omar Construction, 2005–INA–135 (BALCA Dec. 18, 2006)(84 IR 79; Jan. 8, 2007)

Employer’s Failure to Document Inability to Verify Employment History of Applicant Results in Denial of Labor Certification

• The certifying officer took the position the failure of the employer to document the rejection constituted an unlawful rejection of U.S. worker applicants

• Employer made no effort to document its alleged attempts to verify employment history on three separate occasions (Matter of Garnerville Home 2005–INA-202 (BALCA Dec. 14, 2006)(84 IR 16; Jan. 2, 2007)

LEGISLATIVE & LEGAL DEVELOPMENTS

Immigration

U.S.:

• AgJOBS bills HR 371 and S.237 were introduced in Congress to provide job opportunities for foreign nationals in agriculture (84 IR 125; January 15, 2007)

• The Senate voted unanimously to approve H.R. 2 which bars companies from employing undocumented workers from receiving government contracts for seven years or ten years if the company held a government contract at the time of the offense (AILA INFONET No. 07013110 1/31/07)

Trade

U.S.:

• S.122 reauthorizes the Trade Adjustment Assistance Program (TAA) until 2012 (24 ITR 38; 1/11/07)

• A currency harmonization bill (HR 321) would require the Treasury Department to impose tariffs on China if it found currency manipulation to gain an unfair advantage (24 ITR 45; 11/1/07)

Intellectual Property

E.U.:

• The European Court of Human Rights (ECHR) issued a landmark ruling that intellectual property could benefit from property protection rights guaranteed under the 1950 European Convention on Human Rights but ruled against the case brought by Anheuser-Busch Inc. which had alleged violations against Portugal (Anheuser-Busch Inc. v. Portugal, Application No. 73049/01)(24 ITR 72; 1/18/07)

Dumping

U.S.:

• The Court of International Trade (CIT) upheld the International Trade Administration (ITA) choice of Adverse Facts Available (AFA) on remand in an administrative review of the antidumping order of Heavy Forged Hand Tools (HFHT) from China finding the rate reliable and relevant. The case came before the Court following a third remand to the Commerce Department in the ninth administrative review of the antidumping order. The Plaintiff companies challenged the ITA decision to apply AFA and to assign the companies at 139.31% dumping rate on their sales of bars and wedges. ITA selected the rate of 47.88% which was upheld by the Court finding it reliable and relevant (Shandong Huarong General Group Corp v. U.S., Ct. Int’l Trade No. 01-00858) (Slip OP. 07-4, 1/9/07; 24 ITR 84; 1/18/07).

PROTECTION AGAINST TERRORISM

Customs

U.S.:

• The House passed the Homeland Security Bill to strengthen air and sea cargo inspections implementing that 9/11 Commission recommendations but a companion Senate Bill has yet to be introduced (24 ITR 38; 1/11/07)

Sources: IR - Interpreter Releases, Federal Publications, Inc.; Financial Times (FT); ITR - International Trade Reporter, Bureau of National Affairs, Inc.; IB-Bender’s Immigration Bulletin; ILT - Immigration Law Today, American Immigration Lawyers Association Monthly Journal; IL - International Lawyer, SMU School of Law; FT- Financial Times; KTF - Korea Trade Focus Monthly Newsletter (Korea International Trade Association) TE - The Economist Magazine; GATM - German American Trade Magazine published by the German American Chamber of Commerce; MAPI - Manufacturers Alliance Legal Analysis and Regulations; WSJ - Wall Street Journal; ILN/ABA-International Law News, American Bar Association; TMIJ-Tax Management International Journal, Bureau of National Affairs, Inc.; AILA - American Immigration Lawyer’s Association
 

International Law Bulletin is an international legal news digest published monthly as a service to Nelson Mullins’ clients and friends.  The articles are summaries of particular developments in the law and are not intended to be a solicitation or to render legal advice. This publication can be considered advertising under applicable laws.  Copyright 2007

Nelson Mullins Riley & Scarborough, L.L.P.

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