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Volume
10,
Number 12 In Memoriam of the Victims of Terrorist Attacks
December
2004 |
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For More
Information Contact
Editors
Henry M. Burwell
(864) 250-2212
buzz.burwell@nelsonmullins.com
Carsten Alting
(404) 817-6137
carsten.alting@nelsonmullins.com
Washington DC Office
George B. Wolfe
(202) 742-4564
Columbia Office
P. Mason Hogue
(803) 733-9417
Atlanta Office
* Carsten Alting
Rechtsanwalt
(404) 817-6137
June Towery
(404) 817-6597
Charlotte
Office
Lawrence J. Scott
(704) 417-3108
Greenville
Office
Henry M. Burwell
(864) 250-2212
John M. Campbell
(864) 250-2234
Walter H. Hinton, II
(864) 250-2285
Raleigh Office
Catharine W. Cummer
(919) 877-3805
Charleston Office
John B. Hagerty
(843) 720-4308
Newman Jackson Smith
(843) 720-4309
Winston-Salem Office
Denise M. Gunter
(336) 774-3322
Myrtle Beach
Office
Thomas F. Moran
(843) 946-5652
www.nelsonmullins.com
*Admitted as an attorney in Germany
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INTERNATIONAL BUSINESS AND TRADE |
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Dumping
WTO:
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The World Trade Organization authorized the eighth WTO
member to start imposing duties under Dispute Settlement Body rules
adding Chile to existing authorizations for the EU, Japan, Brazil,
Canada, India, Mexico and South Korea to impose retaliatory duties on
U.S. imports as a result of a failure to comply with the WTO ruling
condemning the Continued Dumping and Subsidy Offset Act of 2000 (Byrd
Amendment) (21 ITR 1935; 12/2/04).
U.S.:
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The Commerce Department announced that Brazil, Ecuador, India and
Thailand are dumping frozen and canned warm water shrimp in margins
ranging from 2.35 to 67.8 percent (Frozen and Canned Warm Water Shrimp
from Brazil, Ecuador, India and Thailand, ITA; 21 ITR 2089; 12/23/04).
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The International Trade Commission determined the U.S.
bedroom furniture industry has suffered “material injury” from low
price Chinese imports (Wooden Bedroom Furniture from China, ITC (21 ITR 2043; 12/16/04).
Information Technology Taxation
Peru:
Textiles
China:
U.S.:
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The Committee for the Implementation of Textile
Agreements (CITA) accepted a “safeguard” petition on combed cotton
yarn from China based on the threat of market disruption the result of
which could impose limits on this import category (301) from China (69
Fed. Reg. 68,133/November 23, 2004; 11/25/04).
EU:
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The Council of Ministers approved regulations proposed
by the EC to eliminate all quotas on textiles and apparel effective
January 1, 2005 requiring the issuance of an import surveillance
document for certain products from China until a monitoring system is
in place and reserving the right to use a “safeguard clause” if a
flood of imports or severe threat to domestic producers arises (21 ITR
2028; 12/16/04).
Trade
WTO:
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The World Trade Organization reached an agreement
subscribed by 147 WTO members on a framework for future talks on
reforming trade in agriculture, manufactured goods and services and
customs procedures (usinfo.state.gov/August 1, 2004; USTR R. Zoellick,
WTO General Council Meeting).
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INTERNATIONAL AGREEMENTS AND
INVESTMENTS |
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Textiles
E.U.:
U.S.:
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The Committee for the Implementation of Textile
Agreements (CITA) may restrict some apparel imports from China, India
and Pakistan in early 2005 pursuant to the rules published in Federal
Register December 13, 2004 which affects those countries who have
already filled some of the clothing import quotas for 2004 (69 Fed.
Reg. 72,181/December 13, 2004; 21 ITR 2030; 12/16/04).
Foreign Investments
Japan:
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The Judicial System Council of the Ministry of Justice
began drafting a sweeping revision of the 1899 Japan Commercial Code
regulating corporate behavior to liberalize the accommodation of
foreign acquisitions of Japanese companies with home country stock
shares, abolition of the minimum paid-up capital requirements and
repeal of the mandatory corporate board establishment rule in starting
new companies in Japan (21 ITR 2077; 12/23/04).
Exports
Egypt:
Intellectual Property
U.S.:
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The Patent Office chiefs of the U.S., Japan and the EU
signed a memorandum of understanding to coordinate work-sharing,
electronic business developments and harmonization of search
strategies, tools and substantive patent law (21 ITR 1983; 12/9/04).
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IMMIGRATION |
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New
Regulations on Labor Certification for Permanent Employment (PERM)
Effective March 28, 2005
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USDOL adopted
a new labor certification scheme significantly reducing the processing
time for labor certification of permanent employment for foreign
nationals in the U.S.
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The prevailing
wage standard for PERM will be that recently adopted by H-1B amendments
requiring 100% payment of prevailing wage with four available wage
levels reflecting job experience requirements.
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The goal for
electronic decisions under PERM will be for adjudication within 45-60
days after submission.
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Conversion of
pending applications may occur under restricted circumstances involving
“identical job opportunities”.
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Presently no
fees are charged but may be levied in the future
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Anti-fraud
provisions include verification that employer is a bonafide business
entity with employees on its payroll.
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There are no
present monetary penalties or debarment for fraud or willful
representation of a material fact, but future rule making in this area
may occur.
Maintenance of Status
Pilot
Program for Work Confirmation Expanded to All Fifty States
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The USCIS
Pilot Program, allowing employers to get automated confirmation of a
newly hired employee’s work authorization after completion of the I-9
form, is to be expanded to all states (69 Fed. Reg. No. 243 December 20,
2004, CIS No. 2321-04).
Employment Authorization Document (EADs) Term of Validity Amended
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EAD validity
periods are amended under an interim rule (8 C.F.R. Part 274a) to adjust
the term for validity based on discretion of the DHS for initial,
renewal and replacement cards authorizing the lengthening and shortening
of the term according to immigration status, general processing time,
required background checks and other security considerations and factors
deemed appropriate (69 Fed. Reg. No. 146, July 30, 2004).
New
Temporary Evidence of I-551 Permanent Resident Status
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An unexpired
foreign passport containing a temporary I-551 stamp is an acceptable
List A document No. 4 for Form I-9 verification purposes (July 26, 2004
Bulletin, Office of Business Liaison, USDHS; www.uscis.gov).
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The new
Machine Readable Immigrant Visa (MRIV) with temporary I-551 language
must be endorsed upon admission to qualify as a List A Document under 8
C.F.R. 274a.
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Bearers
carrying the I-551 stamp must have it endorsed in secondary inspection
upon first border crossing after placement of the 551 stamp in their
passport.
L-1
Visa Reform Act of 2004
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The Omnibus
Appropriations Act for FY 2005 contains the L-1A Visa Reform Act of 2004
which partially addresses the issue of “outsourcing” establishing that
L-1B temporary workers can no longer work primarily at a worksite other
than their petitioning employer if the work will be controlled and
supervised by a different employer or if the offsite arrangement is
essentially to provide labor for hire rather than service related to the
specialized knowledge of the petitioning employer.
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All L-1
temporary workers must have worked for no less than one year outside the
U.S. for an employer with a qualifying relationship eliminating the
six-month rule available formerly under the “blanket L-1” program.
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A new fraud
prevention and detection fee of $500 must be paid by the petitioner
seeking an initial grant of L status (or H-1B status) effective March 8,
2005 which is in addition to the base processing fee of $185 for the
Form I-129 petition (USCIS Press Release, December 8, 2004/www.uscis.gov).
H-1B
Visa Reform Act of 2004
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The Omnibus
Appropriations Act for FY 2005 reinstitutes the former “training fee”
under the ACWIA and raises it to $1500 unless the petitioner employ no
more than 25 fulltime employees including any affiliate or subsidiary or
is otherwise exempt.
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The new fraud
prevention and detection fee of $500 is payable in addition to the
training fee and is effective March 8, 2005.
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The petition
fee of $185 for the Form I-129 fee remains applicable.
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Although the
H-1B cap for FY 2004-2005 was reached effective October 1, 2004, an
additional 20,000 H-1B beneficiaries who have earned a master’s degree
or higher from a U.S. institution of higher education are not subject to
the H-1B visa cap of 65,000 and petitions for this cap modification may
be filed effective March 8, 2005 (USCIS Press Release, December 8, 2004;
www.uscis.gov).
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LEGISLATIVE
AND LEGAL DEVELOPMENTS |
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Intellectual Property
China:
Trade
Adjustment Assistance
U.S.:
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The U.S. Court of International
Trade remanded a case to the Department of Labor for further review
where USDOL had made a finding that information technology workers did
not produce an “article” for purposes of trade adjustment assistance
eligibility which finding was based upon an improper legal analysis
(Former Employees of Electronic Data Systems, Corp. v. U.S.
Department of Labor, Ct. Int’l Trade, No. 03-00373, Slip Op. 04-151; 21 ITR 2088;
12/23/04).
Textiles
U.S.:
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The U.S. Association of Importers
of Textiles and Apparel (USA-ITA) seeks an injunction against the U.S.
Commerce Department (CITA) to prevent it from taking further action on a
“threat-based” petition filed by the U.S. textile industry requesting
extension of import limits on Chinese goods (U.S. Association of
Importers of Textiles and Apparel vs. the U.S., Ct. Int’l Trade No.
04-00598; 12/1/04; 21 ITR 2005; 12/9/04).
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PROTECTION AGAINST TERRORISM |
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Customs
Honduras:
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 |
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Nelson Mullins Riley & Scarborough, L.L.P.
has offices located in
Charleston, Columbia, Greenville, and Myrtle Beach, South Carolina
Atlanta, Georgia; Raleigh, Winston-Salem, Charlotte, North Carolina;
Washington DC
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1-800-237-2000 www.nelsonmullins.com |