Volume 10, Number 8              In Memoriam of the Victims of Terrorist Attacks                 August 2004

 

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INTERNATIONAL BUSINESS AND TRADE

Customs

 

U.S.:

  • The U.S. Food and Drug Administration (FDA) and the Bureau of Customs and Border Protection (CBP) issued a revised compliance policy guide to implement the interim final regulations of the FDA requiring two to eight hours notice before food imports arrive at a port of entry (21 ITR 1375; 8/19/04).

  • CBP announced compliance dates for truck carriers to present advanced electronic manifest information on inbound cargo requiring such information at least one hour before the carrier reaches the first port of arrival in the United States except under the Free and Secure Trade (FAST) Program where it is to be provided no later than thirty minutes prior to arrival (21 ITR 1375; 8/19/04).

Textiles


U.S.:

  • U.S. textile producers are expected to file textile safeguard petitions seeking imposition of new quotas on Chinese textile and apparel imports based on the threat that Cinese imports will cause market disruption and threaten to impede orderly development of trade (21 ITR 1390; 8/19/04).

Dumping


U.S.:

  • The International Trade Administration (ITA) found that China, Malaysia and Thailand are dumping polyethylene retail carrier bags in a final determination (Polyethylene Retail Carrier Bags From China, Malaysia and Thailand, ITA; 21 ITR 1038; 6/17/04).

INTERNATIONAL AGREEMENTS AND INVESTMENTS

Bilateral Agreements


Australia:

  • Parliament passed legislation giving effect to the U.S.-Australia Free Trade Agreement (21 ITR 1385; 8/19/04)

U.S.:

  • HR 4759 implementing the U.S.-Australia Free Trade Agreement was signed to eliminate tariffs on 99% of manufactured goods trade between the two countries (21 ITR 1318; 8/5/04).

  • A Free Trade Agreement was signed with Morocco (21 ITR 1041; 6/17/04).

China:

  • A Bilateral Air Services Agreement was signed July 24th to significantly increase flights between China and the United States over the next six years (ITR 1352; 8/12/04).

IMMIGRATION

Department of Homeland Security (DHS): Private Sector Economic Effect of NIV Delay

  • Martinez-Fonts stated his office was looking at the economic consequences of DHS regulations on non-immigrant business visa (NIV) processing as the single most costly issue affecting the private sector and its ability to do business (21 ITR 1018; 6/17/04).

U.S. Citizenship and Immigration Services (USCIS): “The Significance of a Prior CIS Approval of a Non-Immigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity,” HQOPRD 72/11.3, Yates (April 23, 2004)

  • Sets forth a general policy against readjudicating previously approved petitions where there is no material change of facts to avoid unjustified Requests for Evidence (RFEs) or denials.

  • Adjudicating officers should not question subjective determination made by prior adjudicators including an evaluation of the beneficiary’s education, specialized training and progressively responsible experience in a degree equivalency examination (81 IR 961; July 26, 2004).

USCIS: “Requests for Evidence,” HQOPRD, Yates (May 4, 2004)

  • Adjudicating officer may deny a petition without an RFE (81 IR 961; July 26, 2004)

USCIS: “Determination of Ability to Pay under 8 CFR § 204.5(g)(2),” HQOPRD, 90/16.45 (May 4, 2004)

  • Petitioner must demonstrate ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence (81 IR 961; July 26, 2004).

USCIS Issues Interim Rule Allowing Establishment EAD Validity Periods

  • On July 30, 2004, the Immigration Service issued an interim rule to establish validity periods for an Employment Authorization Document (EAD) to be based on immigration status, general processing time for the underlying application or petition, required background checks and response times, security considerations and other relevant factors permitting terms of EAD validity up to five years (69 Fed. Reg. 45,555-57; July 30, 2004; 81 IR 1062; August 9, 2004).

Department of State (DOS): Prospective Students Entering on B Visas

  • Students may be issued prospective student visas under the DOS Foreign Affairs Manual 41.61 Note 13.3 allowing the border officer to annotate the Form I-94 with the notation “Prospective Student” at the time of admission but students entering the United States in B status as a “prospective student” must be cautioned their requests for change of status (COS) to the F classification may not be approved in time by USCIS for them to begin classes (81 IR 1099; August 16, 2004).

USCIS: Certification Deadline Extended for Certain NAFTA Foreign Healthcare Workers

  • NAFTA healthcare workers who were employed as Treaty NAFTA (TN) healthcare workers before September 23, 2003 and held a valid license from a U.S. jurisdiction before that date will remain exempt for one year from the foreign healthcare workers certification requirement (81 IR 926; July 19, 2004).

LEGISLATIVE AND LEGAL DEVELOPMENTS

Export Sanctions


U.S.:

  • The Department of Treasury Office of Foreign Assets Control (OFAC) seeks comments on the effectiveness of OFAC licensing procedures implementing sanctions against Sudan, Libya and Iran (8/12/04).

Trade


NAFTA:

  • The U.S. International Trade Commission (ITC) asked for public comment on the probable economic effect on U.S. trade of modifications to the NAFTA rules of origin (21 ITR 1360; 8/12/04).

Export Controls


U.S.:

  • The Department of Commerce Bureau of Industry and Security requested comments on an interim rule changing the Export Control Policy for Iraq to amend the Export Administration Regulations (EAR) implementing the reversion of licensing responsibility for exports and re-exports to Iraq (69 Fed. Reg. 46,070; July 30, 2004; 21 ITR 1330; 8/5/04).

Taxation


U.S.:

  • The House passed the Extra Territorial Income Exclusion (ETI) Act (HR 4520) but difficulties remain to reconcile the act with the Senate counterpart (S 1637)(21 ITR 1008; 6/17/04).

Transportation


U.S.:

  • The Port Security Improvement Act 2003 (HR 2193) would make available to the Department Homeland Security a percentage of customs duties collected at each port to fund port security improvements for five years (21 ITR 1016; 6/17/04).

International Trade


U.S.:

  • The Ninth Circuit Court of Appeals ruled that a U.S. Government claim under the False Claims Act must proceed in the Court of International Trade (CIT) which has exclusive jurisdiction over a civil action arising out of an import transaction commenced by the United States to recover customs duties (U.S. v. Universal Fruits and Vegetables Corp., 9th Cir., No. 02-55340, filed 3/17/04, amended 6/2/04; 21 ITR 1036; 6/17/04).

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 2004

 

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

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