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* Carsten Alting

Rechtsanwalt

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Henry M. Burwell

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*Admitted as an attorney in Germany

INTERNATIONAL BUSINESS AND TRADE

Engineering

Germany:

• The Leibniz Computing Center in Munich will install a high performance computing station in 2006, which equipment is currently being built by the American firm, Silicon Graphics (16 GATM 15; 11/05).

Taxation

Brazil:

• A decree was issued exempting 80% of exports from corporate social security taxes on machinery and equipment including imports destined for use in new projects (22 ITR 1771; 11/3/05).

Textiles

U.S.:

• An agreement was reached with China to place import quotas on 34 product categories commencing January 1, 2006 through the end of 2008 (22 ITR 1786; 11/10/05).

INTERNATIONAL AGREEMENTS AND INVESTMENTS

Germany:

• The rise of the U.S. Dollar against the Euro during the summer of 2005, the continued increases in the interest rate made by the Federal Reserve Board in the U.S., and the rise of factory orders in Germany has begun attracting capital inflows into the United States market which lowers the price of German imports into the United States and increases the prospect for continued prosperous trade between Germany and the U.S. (16 GATM 3; 07/05).

Foreign Investments

China:

• Ten ministry level departments issued regulations on the establishment of venture capital companies to support investment in small and medium size enterprises to take effect March 1, 2006 (22 ITR 1887; 11/24/05).

Uruguay:

• A bilateral investment treaty was signed with the United States on November 4, 2005 and now must be ratified by the U.S. Senate (22 ITR 1897; 11/24/05).

Agreements

U.S.:

• The Bahrain Free Trade Agreement was cleared by the House and Senate Committees for Congressional approval (22 ITR 1903; 11/24/05).

LEGISLATIVE AND LEGAL DEVELOPMENTS

Immigration

U.S.:

• H.R. 4065 would amend the INA to provide undocumented workers with temporary work visas.

Dumping

U.S.:

• H.R. 424 included a provision to repeal the Continued Dumping and Subsidy Off-Set Act (the “Byrd Amendment”) which had been found illegal by the WTO as a subsidy (22 ITR 1875; 11/24/05).

Customs

U.S.:

• S. 2008 (GreenLane Maritime Cargo Security Act) would counter the threat of terrorists using shipping containers to smuggle conventional, chemical, biological, or nuclear weapons into the United States (22 ITR 1876; 11/24/05).

• S. 695 suspends the new shipper bonding privilege during Commerce Department reviews (22 ITR 1900; 11/24/05).

Chemicals

EU:

• The European Parliament approved after the first reading the proposed chemical regulations (“REACH”) making more than 400 amendments to the legislation as drafted by the European Commission (22 ITR 1881; 11/24/05).

Legal

U.S.:

• An appeal was lodged with the WTO that found the American Jobs Creation Act of 2004 to be in violation of illegal export subsidies thereby causing the U.S. to remain non-compliant with earlier WTO rulings on faulty export subsidy tax breaks for U.S. exporters (22 ITR 1883; 11/24/05).

Trade

U.S.:

• S.632 to normalize trade relations with the Ukraine was approved, but the House is not expected to address the issue until the U.S. concludes negotiations for Kiev to join the World Trade Organization (22 ITR 1882; 11/24/05).

• The deadline to vote on the bill to impose a 27.5% tariff on all Chinese imports (S.295 has been rescheduled for December 23, 2005) (22 ITR 1886; 11/24/05).

IMMIGRATION

Time Recapture Available to H1-B and L1 Visas

• INA Section 214(g)(4) states the period of the authorized admission for an H1-B visa may not exceed 6 years which language was interpreted by the Administrative Appeals Office (AAO) and now adopted as policy by the Immigration Service Center (USCIS) that each time a beneficiary left the U.S., he was no longer in status for U.S. immigration purposes to determine the “period of authorized admission” and includes only the actual time spent in the U.S. for H1-B and L1 non-immigrants under the recent federal court ruling in NAIR v. Coultice (162 F. Supp. 2d 1209 (SDCA 2001)). The effect of this decision is to allow “tacking” of time out of the U.S. to the maximum terms of stay for both the H and L non-immigrant visa classifications (82 IR 1754; 10/31/05).

• Matter of ______, EAC 0404753189, September 2, 2005 held passport stamps insufficient to show proof of time spent out of the U.S. without further corroboration from the applicant to include charts of dates and incidental evidence corroborating the date stamped entries in the passport (82 IR 1778; 10/31/05).

Senate Judiciary Recaptures Unused H1-B Visas

• The Fiscal Year 2006 Budget Resolution modified significant provisions of immigration law to include provisions which:

  • raise the minimum fees for non-immigrant L1 visas from $750 to $1450

  • impose an additional $500 fee on immigrant EB-1, EB-2 and EB-3 visas and recaptures between 90,000 and 100,000 unused visas in this category for immediate use

  • exempt spouse and minor children from the cap count for employment-based visas

  • recaptures about 300,000 unused H1-B visas to be reissued at a rate of 30,000 per year

  • imposes an additional fee of $500 on only recaptured H1-B visas
    (82 IR 1771; 10/31/05).

Administrative Appeals Office (AAO) Instructs on Maintenance of Petition Validity Pending Adjudication of Adjustment after 180 days under the American Competitiveness Act of 2001 (AC 21)

• Acting Deputy Director Divine instructed USCIS officers that if the beneficiary applicant has moved to another position or employer, officers should evaluate the I-140 petition to determine if it would have been approvable had it been adjudicated within 180 days and should be adjudicated on its merits correspondingly evaluating the I-485 with the duties of the new position to see if it is a “same or similar position” (82 IR 1796; 1813 November 7, 2005)(USCIS 10/18/05 Divine Memorandum/USDHS)).

Immigration Reform Kennedy/McCain Bill (S.1033)

• The Senate Judiciary Committee held hearings on comprehensive immigration reform.

• Senator Kennedy testified the U.S. cannot deport 11 million illegal immigrants.

• DHS Secretary Chertoff estimated 8 million undocumented immigrants are actively participating in the U.S. job market, and approximately 600,000 individuals were caught in 2004 attempting to unlawfully enter the U.S., most of whom are from Mexico.

• DOL Secretary Chao testified that an effective temporary work program coupled with an immigration reform initiative balances the need of employers and the need to enforce removal of undocumented immigrants (82 IR 1724, 10/24/05).

Sources: IR - Interpreter Releases, Federal Publications, Inc.; 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 2005

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

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