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Henry M. Burwell

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*Admitted as an attorney in Germany

INTERNATIONAL BUSINESS AND TRADE

Export Controls

U.S.:

• The Department of Commerce proposes to revamp controls on high technology exports to China (71 Fed. Reg. 38,313) (July 6, 2006); (24 ITR 191; 2/8/07)

• The Department of Commerce Bureau of Industry and Security (BIS) approved 1,538 licenses for exports to China valued at approximately $2.4 billion one third of which were "deemed export" licenses for knowledge transfer to Chinese nationals working in U.S. companies and universities located in the U.S. (24 ITR 162; 2/1/07)

IMMIGRATION

Failure to Advertise Job Duties with the Particularity Results in Denial of Labor Certification

• Job duties described on the Labor Certification Application (ETA 750) did not substantially match the job duties advertised in recruitment media

• Employer failed to acknowledge its error in the rebuttal to the Certifying Officer (Matter of Earthlight, 2005-INA-00192) (BALCA, January 18, 2007) (84 IR 262, January 29, 2007)

Good Faith Recruitment Requires Repetitive Efforts to Contact Interested Applicants

• Employer's application was denied where the record established interviews were set with short notice, employer did not know if applicants had received the letters when the recruitment report was written and employer made no efforts to telephone the applicants which it did not interview (Matter of Rex Distributor, Inc., 2005-INA-00049) (BALCA January 11, 2007) (84 IR 263, January 29, 2007)

Employers' Failure to Contact Applicants within 14 days of Receipt of Resume Results in Denial of Labor Certification

• Employer provided copies of letters it wrote to the applicants within 14 days but did not document when the letters were actually sent

• Certifying Officer denied the application on the grounds the employer failed to make good efforts to recruit two applicants and the Board upheld the denial

• The Board determined the inability of the employer to prove it had responded to the inquiries within 14 days cast doubt on whether the position was clearly open to U.S. workers and appeared to be designed to discourage U.S. applicants contrary to 20 CFR 656.21(b)(7)

• The Board commented on the language of the interview letters as discouraging verbiage having a tone of "mistrust" when sent to the applicants (Matter of Santa Ana Car Co., 2005-INA-00191) (BALCA January 17, 2007) (84 IR 263, January 29, 2007)

Labor Certification Application Denied Where Employer’s Contact Information Was the Address of the Alien Applicant and the Immigration Law Firm of the Employer

• The return address of the law firm for response to the newspaper advertisement as the location to send resumes reflected the recruitment did not appear open to U.S. workers

• Under 20 CFR 656.20(b)(3)(i)(ii) neither the foreign national nor the immigration attorney of the employer may participate in the recruitment interview to consider U.S. workers for the job unless it is part of the normal interview process of that employer (Matter of Shorecliffs Auto Service, 2005-INA-00189) (BALCA January 18, 2007) (84 IR 265 January 29, 2007)

INTERNATIONAL AGREEMENTS AND INVESTMENT

Textiles

U.S.:

• A Customs Cooperation Agreement was signed with Mexico to implement the apparel cumulations provisions of the US-Dominican Republic Central America Free-Trade Agreement (CAFTA-DR) (24 ITR 175; 2/1/07)

LEGISLATIVE & LEGAL DEVELOPMENTS

Immigration

U.S.:

• DOS proposes a new rule to implement the Child Status Protection Act of 2002 (84 IR 210; 1/22/07)

• The final rule creating a new category of interns was proposed under the J-1 Program (22 CFR 62.22) received final action December 2006 (84 IR 211; 1/22/07)

• USCIS does not have the authority or expertise to define the job requirements of an employer seeking a labor certification but does have a role independent of the USDOL in determining whether the foreign national meets the labor certification requirements; a finding by the CIS, affirmed by the AAO, cannot be upheld where it denied a third preference (EB-3) skilled worker application for the lack of a single equivalent degree where the employer required a bachelor's degree or its equivalent since the EB-3 skilled worker category has no educational requirement set forth by U.S. Immigration Service regulation and the exercise of such discretion by the Service is arbitrary and capricious (SnapNames.com v. Chertoff, Case No. CV06-65-MO) (D.OR. November 30, 2006)(12 IB 129; 2/1/07)

WTO

U.S.:

• Legal proceedings have been initiated at the World Trade Organization against China over apparent use of government subsidies of exports of a wide range of industries through tax policy and rules (24 ITR 188; 2/08/07)

Trade Policy

U.S.:

• S.445 establishes a trade prosecutor in the office of the USTR and defines currency manipulation as an illegal trade subsidy authorizing relief against imports entering the U.S. from countries that regulate their currency such as China (24 ITR 203; 2/8/07)

Customs

U.S.:

• The Bureau of Customs and Border Protection (CBP) has no authority to change the statutorily mandated tariff rates for merchandise properly classified under the Harmonized Tariff Schedule of the U.S. (HTSUS) (Forest Laboratories, Inc. v. U.S., Fed.Cir. No. 2006-1227-12307) (24 ITR 214; 2/8/07)

Foreign Investment

U.S.:

• HR 5337 and HR 556 may be the subject of a hearing by the House Financial Services Committee when the process of requiring detailed investigations of applications by the Committee on Foreign Investment (CFIUS) to authorize investments in industries of national concern comes up for review (24 ITR 162; 2/1/07)

Procurement

U.S.:

• HR 2 (“minimum wage bill”) includes language to address loopholes in the Buy American Act giving federal agencies a requirement to report when they purchase goods with more than 50% U.S. content from overseas sources except for procurement by the intelligence community (24 ITR 165; 2/1/07)

Textiles

U.S.:

• S.367 would bar the U.S. sale of imported textile products made in sweat shops under the Decent Working Conditions and Fair Competition Act (24 ITR 135; 1/25/07)

PROTECTION AGAINST TERRORISM

Customs

U.S.:

• HR 1 approved early January 2007 requires cargo transported on passenger aircraft to undergo 100% inspection within three years and sea cargo containers destined for shipment to the U.S. to be scanned at foreign ports within five years absent an extension (24 ITR 163; 2/1/07)

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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