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* Carsten Alting

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Henry M. Burwell

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*Admitted as an attorney in Germany

INTERNATIONAL BUSINESS AND TRADE

Trade Complaints

WTO:

• Members of the World Trade Organization (WTO) agreed to set up a dispute settlement panel to rule whether the U.S. complied with its previous panel rulings on imports of Mexican oil company tubular goods and whether complaints of the EU against high duties imposed by India on imported wines and spirits reveal violations of the India’s tariff commitments made to the WTO (24 ITR 579; 4/26/07)

Customs

U.S.:

• U.S. Customs and Border Protection (CBP) announced trucks arriving at southern U.S. land border ports of entry are required to submit electronic manifests using the Automated Commercial Environment (ACE) system as part of the new import/export processing system (24 ITR 582; 4/26/07)

Antidumping

U.S.:

• The Commerce Department determined that Argentina and Mexico have been dumping lemon juice in the U.S. (Lemon Juice from Mexico and Argentina, ITA) and assigned preliminary dumping margins ranging from 85.64% to 128.50% for Argentina and ranging from 146.1% to 205.37% for Mexico (24 ITR 596; 4/26/07)

• The Commerce Department has initiated anti-dumping investigations on imports of glycine from India, Japan and the Republic of Korea pursuant to the petition of GEO Specialty Chemicals Inc. (24 ITR 597; 4/26/07)

IMMIGRATION

Regulations Promulgated Under the Nursing Relief Act Declared by the U.S. Federal Court of Appeals to be in Conflict with the Act

• 8 C.F.R. §245.18(e) which provides medical practice in a designated shortage area that occurred before the approval of an immigrant visa petition filed under a national interest waiver does not count towards the medical practice requirement and was discarded as an unenforceable regulation

• 8 C.F.R. §204.12(d)(6) which provides that a doctor who filed for national interest waiver before the Act had to fulfill the five year medical practice requirement if the waiver were denied prior to a certain date was discarded as an unenforceable regulation

• 8 C.F.R. §204.12(b) and (d)(4) that impose strict limitation periods on the completion of the medical practice requirement remained intact as enforceable (Schneider v. Chertoff, 450 F.3d 944, 2006 U.S. App. LEXIS 13953 (9th Cir. June 7, 2006); 12 IB 489; April 15, 2007)

BALCA Decision: Employer Established Good Faith Recruitment Efforts by Contacting Qualified U.S. Workers by Certified Mail and Two Attempted Phone Calls Notwithstanding the Lack of Certified Mail Receipts.

• Outback Steakhouse Restaurant sought labor certification to fill the position of cook. In reviewing evidence submitted to qualify the foreign national candidate, the Certifying Officer (CO) denied the labor certification on a finding of a lack of good faith recruitment. The CO determined that the certified mail and telephone records were incomplete but the decision was reversed by BALCA on the grounds good faith recruitment was established through evidence of attempted contact with U.S. workers by both certified mail and telephone (12 IB 494; April 15, 2007)

I-129 and I-539 Direct Filing Instructions are Issued

• The Bi-Specialization Initiative will require petitioners and applicants to directly file their petitions and applications with the Service Center that will process the filing based on the place of employment or residence (12 IB 379; April 1, 2007)

Obligation to Reverify Employment Eligibility Under I-9 Rules

• Knowledge acquired by an employer after the initial hire may trigger an obligation to reverify the I-9 documents which demonstrate employment eligibility (8 C.F.R. Section 274 a.2(b)(1)(vi))

• The obligation arises when :

  • the temporary employment authorization expires

  • the employer receives information from a government agency or

  • through other sources that an employee may not be authorized to work (emphasis added)

  • the employee presents a receipt for the application for an acceptable I-9 document (12 IB 387; April 1, 2007)

Does the Social Security Administration Share Mismatch Data with the Immigration Service Regarding Use of Social Security Numbers?

• The Social Security Administration (SSA) has limited the ability of the Immigration Service (ICE) to check employee records to instances where it has “reasonable cause” to believe that a worker is unauthorized (Immigration Enforcement Within the United States CRS-45; RL 33351 April 6, 2006; www.fas.org)

• With certain specific exceptions, SSA and IRS are not permitted to share information with any other agency under IRS Ruling 6103 dealing with tax returns and confidential information of a taxpayer

• ICE may receive mismatched data from the Office of Special Counsel (OSC) of SSA when there is an ongoing investigation but it is not used to select employers to target for I-9 audits for investigations (12 IB 388; April 1, 2007)

• Department of Homeland Security proposed a new regulation June 8, 2006 to instruct employers how to respond to a Social Security “no match” letter in order to avoid a finding of “constructive knowledge” of unlawful employment of illegal workers and to enjoy the “safe-harbor” procedures

• Mester Mfg. Co. v. INS 879 Fed. 2d. 561 (9th Cir. 1989) held an employer was found to have constructive knowledge after receiving notice that three workers were suspected of green card fraud but failed to follow-up on that information

DHS Issues Proposed Regulation for REAL ID Driver’s Licenses and ID Cards

• A Notice of Public Rule Making (NPRM) establishes minimum required standards for information and features appearing on identity documentation, presentation and verification of information, physical security of locations where documents may be produced and physical security of licenses and cards to minimize counterfeit activities

• The documents list which may be submitted to establish identity is detailed as a key feature of the regulation

• Documents required shall be verified electronically by the states

• Procedures shall be established for electronic verification of vital events reflected in the documents (EVVE system)

• Information that must appear on the driver’s license or identification card is set forth in the NPRM (84 IR 652; March 19, 2007)

Hazelton, Pennsylvania Local Ordinance Fines Landlords Who Rent to Illegal Immigrants and Denies Permits to Businesses that Employ Such Persons

• ACLU attorneys challenged the local city ordinance and news media is reporting on the first federal trial involving a local law dealing with illegal immigration (Univ. of Pittsburgh, Jurist Legal News & Research, 3-22-07)

•  The case is a test that will affect dozens of similar laws and ordinances which arguably usurp the federal government’s exclusive power over immigration policy and enforcement (84 IR 672; March 19, 2007)

INTERNATIONAL AGREEMENTS AND INVESTMENT

Free Trade Agreements

U.S.:

• The U.S. and South Korea successfully concluded negotiations on a Free Trade Agreement (FTA) just before the deadline for notifying Congress under the existing Trade Promotion Authority (TPA) of the President (24 ITR 474; 4/5/07).

Export Controls

U.S.:

• The Department of State Office of Defense Trade Controls (DDTC) published new guidelines April 2007 to assist registrations of manufacturers, exporters or brokers under Part 129 of the International Traffic and Arms Regulations (ITAR) (http://www.pmddtc.state.gov)

LEGISLATIVE & LEGAL DEVELOPMENTS

Export Controls

U.S.:

• The Export Enforcement Act of 2007 renews the authority of the Commerce Department to administer the “dual use” export control system, increases civil and criminal penalties for violators, authorizes Special Agents with overseas investigative authority, protects confidential business information and expands the list of criminal violations on which the denial of export privileges may be based (24 ITR 574; 4/26/07)

Labor

U.S.:

• HR 1910 would amend the Tariff Act of 1930 to prohibit the import, export and sale of goods made with “sweatshop” labor (24 ITR 599; 4/26/07)

Textile

U.S.:

• HR 1729 would strengthen Trade Adjustment Assistance (TAA) to better serve displaced textile and apparel workers (24 ITR 512; 4/12/07)

Trade Adjustment Assistance

U.S.:

• The U.S. Court of International Trade (CIT) scolded the U.S. Department of Labor for its arbitrary and capricious determination that former typesetters for Merrill Corp. did not qualify for trade adjustment assistance under the Trade Adjustment Act (TAA) despite examples of certification of other workers producing unique and intangible articles such as those produced by Merrill (Former Employees of Merrill Corp v. U.S., Ct. Int.’l Trade, No. 03-00662) (Slip Op. 07-46, 3/28/07); (24 ITR 524; 4/12/07)

Immigration

U.S.:

• Incalza v. Fendi North America, Inc. 2007 WL656355 (9th Cir. Mar. 6, 2007) held that the federal immigration law (IRCA) does not pre-empt a California labor law that bars employers from firing an employee without good cause. The court determined a native and citizen of Italy was not discharged because of allegedly unauthorized employment status and that the employer lawfully could have taken action other than discharge to be in compliance with immigration law holding there is no conflict between federal and state laws because the plaintiff had not been terminated because of allegedly unauthorized employment and the employer lawfully could have taken other action other than discharge and still be in compliance with immigration law rejecting the argument of the employer the U.S. Supreme Court holding in the Hoffman Plastic Compounds, Inc. (537 U.S. 137) (2002) required termination since Hoffman failed to address the question of terminating employees who work authorization problems could be expeditiously resolved by renewing an expired application or changing the form of an existing permit (84 IB 765; April 2, 2007)

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; TE - The Economist Magazine; GATM - German American Trade Magazine published by the German American Chamber of Commerce; 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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