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* Carsten Alting

Rechtsanwalt

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June Towery

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Lawrence J. Scott

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Henry M. Burwell

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Steven Carr

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John B. Hagerty

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William T. Hogan III

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*Admitted as an attorney in Germany

INTERNATIONAL BUSINESS AND TRADE

Export Controls

U.S.:

• The Bureau of Industry and Security (BIS) of the Department of Commerce announced a new plan in an advance Notice of Proposed Rule Making (NPRM) to amend the Export Administration Regulations (EAR) to create a Country Group C comprising “Destinations of Diversion Concern” (24 ITR 442; 3/29/07).

Anti-Dumping

U.S.:

• The Commerce Department requests comments on two aspects of the methodology used in dumping investigations involving Non-Market Economies (NMEs) such as China to include selection of a surrogate market economy country and conditions under which NME exporters may get separate anti-dumping duty rates by showing independence from government control (72 Fed. Reg. 13,246; March 21, 2007; 24 ITR 461; 32907).

Agriculture

U.S.:

• Formal consultations are sought with Canada under the Softwood Lumber Agreement (SLA) to discuss compliance with respect to the “surge” mechanism and various provincial and federal assistance programs provided by Quebec, Ontario and the federal government of Canada (24 ITR 490; 4/5/07).

Countervailing Duties

U.S.:

• The Department of Commerce announced a preliminary determination to impose Countervailing Duties (CVD) on subsidized imports of Chinese coated free sheet paper at rates between 10.9 and 20.35% imported into the U.S. from China (Free Sheet Paper from China, Indonesia and Korea, ITA) (24 ITR 495; 4/5/07).

IMMIGRATION

Actual vs. Constructive Knowledge of Employment of Illegal Workers

• “Actual knowledge” refers to direct and clear awareness of status as an unauthorized worker or of information as would cause a reasonable person to inquire further as to the applicant’s status (8 U.S.C. §1324(a)(4)2000).

• “Constructive knowledge” is what a reasonable and prudent employer would know under the circumstances (Etuk v. Slattery, 803 F.Supp.644, 645(EDNY 1992).

• An employer may be held liable for the hiring practices of an independent contractor if it has actual notice that the contractor is employing illegal workers (8 U.S.C. §1324(a)(4)).

• An employer may be held liable under a constructive notice standard if a government agency such as the Immigration Service notifies an employer that specific employees were unauthorized workers (New El Rey Sausage Co vs. INS, 925 F. 2d. 1153(9th Cir. 1991)).

• Under constructive notice theory, an employer assumes a reasonable duty to verify the accuracy of independent contractor’s employment documents giving rise to a duty to respond reasonably to any notice that the employees of such an independent contractor are unauthorized (12 IB 14, January 1, 2007).

• An employer is generally not liable for the actions of an independent contractor except when it retains control over the independent contractor or when an employer has negligently hired or retained an incompetent contractor (12 IB 22; January 1, 2007).

House to Consider the STRIVE Act (H.R. 1645) for Comprehensive Immigration Reform

This draft legislation the U.S. House of Representatives represents a comprehensive effort to reform immigration law. It provides:

• Certification that border security systems, technologies and infrastructural improvements are underway is a requirement before legalization of illegal workers may begin.

• Increased penalties for immigration related violations which includes a failure to depart the U.S. and a variety of different kinds of penalties for document fraud and money laundering.

• The Electronic Employment Verification System (EEVS) must be used by critical infrastructure employers.

• “New Worker” program establishes the H-2C visa valid for three years, maximum term of six years with an initial cap of 400,000 visas.

• A restructuring of family-based immigration allowing recapturing of unused visas and exclusion of immediate relatives against the visa cap.

• The cap for H-1B visas would be raised to 115,000 with exemption for several categories of highly skilled immigrants.

• The earned legalization program provides for conditional non-immigrant status upon documentation of entry and employment prior to June 1, 2006.

H1-B Petitioner Loses Argument that Accounting Position was a “Specialty Occupation”

• USCIS determined the beneficiary would not be primarily engaged in professional accounting duties when the petition described the job duties as application of accounting principles to analyze financial data, prepare and audit financial reports, perform cost benefit analysis, design balance sheets and other duties related to financial decision making by concluding the majority of time was spent in the duties of a bookkeeping, accounting and auditing clerk rather than performance of professional accounting duties (E.G.Enterprises, Inc. vs. DHS 467 F. Supp. 2d. 728 (Ed. Mich. 2006)(84 IB 735; March 26, 2007).

Consular Offices Abroad Resume Accepting I-130 Immigrant Visa Petitions

• January 22, 2007, U.S. Consular offices were instructed to cease accepting I-130 petitions.

• March 21, 2007, Consul posts were instructed to resume acceptance of I-130 petitions for immediate relative immigrant classification from U.S. citizens residing in the district (84 IB 739; March 26, 2007).

INTERNATIONAL AGREEMENTS AND INVESTMENT

Foreign Investments

U.S.:

• The Committee on Foreign Investment in the United States (CFIUS) reports the Department of Homeland Security is using Mitigation Agreements to ensure companies are meeting commitments made to obtain CFIUS approval of investments in restricted industries (24 ITR 444; 3/29/07).

Malaysia:

• Several tax related incentives to draw investors to Malaysia were announced to include designated regions and investment sectors together with foreign exchange and foreign currency account restrictions being liberalized (24 ITR 453; 3/9/07).

Bilateral Agreements

U.S.:

• The U.S. and South Korea concluded negotiations on a Free Trade Agreement (FTA) through the office of the U.S. Trade Representatives (USTR) which included significant compromises of the parties in the difficult subject areas of automotive, beef and farm products (24 ITR 474; 4/5/07).

LEGISLATIVE & LEGAL DEVELOPMENTS

Immigration

U.S.:

• The STRIVE Act of 2007 (HR 1645) includes provisions on border enforcement, interior enforcement, employment verification, a new foreign worker program, visa reform, a legalization program, the DREAM Act and AGJOBS (84 IR 725; 3/26/07).

Trade

U.S.:

• HR 1220 (Nonmarket Economy Trade Remedy Act of 2007) would clarify that countervailing duties could be applied to nonmarket economies (NMEs).

Countervailing Duties

U.S.:

• The U.S. Court of International Trade dismissed the complaint of China for lack of jurisdiction (Government of the People’s Republic of China vs. United States, Ct. Int’l. Trade No. 07-00010)(Slip op. 07-50), (3/29/07) on the grounds that Commerce is yet to take “final agency action” and that the remedy provided under Section 15.81(c) is “entirely adequate” as a clear right to judicial review. The Court noted it was not clear Commerce is barred from applying CVDs to NME countries (24 ITR 497; 4/5/07).

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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