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Carsten Alting

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* Carsten Alting

Rechtsanwalt

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June Towery

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Charlotte Office

Lawrence J. Scott

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Greenville Office

Henry M. Burwell

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John M. Campbell

(864) 250-2234

Walter H. Hinton, II

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Raleigh Office

Catharine W. Cummer

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Charleston Office

John B. Hagerty

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Thomas F. Moran

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*Admitted as an attorney in Germany

INTERNATIONAL BUSINESS AND TRADE

Exports
 

Germany:

• German corporations with operations in the United States must be careful to follow data processing rules set by the German Data Privacy Act which is based on European Union legislation as well as the laws of the United States since the German Data Privacy law restricts data flow even to their subsidiaries and branches located in the United States (GAT, Vol. 16, #1 Feb 2005 p.14).

INTERNATIONAL AGREEMENTS AND INVESTMENTS

Bilateral Agreements

U.S.:

• The U.S. and Saudi Arabia have concluded negotiations on a bilateral agreement to permit Saudi Arabia to join the World Trade Organization (WTO) (22 ITR 1481; 9/15/05).

Foreign Investment

U.S.:

• Global foreign direct investment (FDI) will increase within the next three years with Asia and Eastern Europe having the most positive prospects and the U.S. being expected to be the most important investment capital source followed by the United Kingdom, Germany and China (22 ITR 1412; 9/8/05).

Mexico:

• The Economy Ministry announced that foreign direct investment for the first half of 2005 was $7.5 billion up 8.3% compared to the same period for the prior year (22 ITR 1439; 9/8/05).

U.S.:

• The U.S. and Switzerland will hold talks to explore prospects for negotiating a bilateral free trade agreement (22 ITR 1419; 9/8/05).

Indonesia:

• Indonesia plans tax amendments to lure investors (22 ITR 1431; 9/8/05).

LEGISLATIVE AND LEGAL DEVELOPMENTS

Immigration:

U.S.:

• Malak v. Gonzales, 2005 Fed. App. 0356 P, 2005 WL 1993474 (6th Cir. 2005) held that under 8 CFR § 1003.38(c) a notice filed with the Board of Immigration Appeals (BIA) which was summarily dismissed was proper since the notice never arrived at the Board on time, notwithstanding the proof by the appellant that the appeal documents had been mailed several days before the time set for the appeal notice was to be received with the court, noting that the rule clearly states that a notice of appeal is not considered to be filed until it is received (82 IR 1461; 09/12/05).

• The USDOL is proposing to eliminate the practice allowing the substitution of beneficiaries on applications which resulted in an approved labor certification. According to the proposed rule making notice of May 2005 (NPRM#1886), the rule will disallow a determination being used by a substitute beneficiary (82 IR 1365; 09/22/05).

• F. Hoffmann-LaRoche v. Impagran S.A., 124 S. Ct. 2359 (2994) was a case in the U.S. Supreme Court which held that the foreign plaintiffs could not pursue Sherman Act claims in the United States when the anti-competitive conduct which had a domestic effect did not help to bring about the foreign injury (ABA ILN; Vol. 34, #1 Winter 2005).

Trade Assistance

U.S.:

• Former Employees of IBM Corp., Global Servs. Div. v. U.S. Secretary of Labor, Ct. Int’l. Trade, No. 03-00656 (Slip Op. 05-92 (8/1/05)) held that the USDOL record was “shockingly thin” in its perfunctory investigation and denial of software employees who brought claims for trade assistance as a result of jobs outsourced to Canada and India (22 ITR 1443; 9/8/05).

IMMIGRATION

ALIA_E-News Announces That USCIS Has Changed Filing Fees Effective September 26, 2005

• The new fee structure becomes effective October 26, 2005; the press release is a federal register notice dated September 26, 2005 (ALIA_e-News (Issue 39-05)).

Requests For Evidence – Dual Nationals

• USCBP has been affording dual nationals exemption from special registration at border admission who were later subjected to Requests For Evidence (RFE) by USCIS for proof of exclusion from Special Registration rules at time of entry into the U.S. (10 IB 1303; August 15, 2005).

U.S. Immigration Watch Lists

• There are over 35 computer systems responsible for tracking immigration information for U.S. Immigration Service officials (10 IB 1251; August 1, 2005).

H-1B Approved For Textile Engineer

• The Board of Immigration Appeals (BIA) approved a textile engineer seeking classification under the H-1B visa as a specialty on the rationale that the applicant had the equivalent of a U.S. baccalaureate degree in textile engineering and that it was a specialty occupation. (Matter of X, WAC 0227652340 December 1, 2004, CSC; 10 IB 1270, 08/01/05).

E-3 Visa Category

• The Department of State issued a final rule expanding the definitions of “treaty trader” and “treaty investor” under 22 CFR 41.51 to add the E-3 non-immigrant classification for Australian treaty aliens and spouses to perform services in “specialty occupations” with up to 10,500 such visas being allowable for issuance each fiscal year (82 IR 1445; 09/12/05).
  
  USCIS Updates Adjudicator’s Field Manual re L-1B Visa Reform Act

• The FAM instructs the adjudicator to be aware of situations indicating the L-1B visa classification is not authorized where a foreign national who is a “specialized knowledge” worker (L-1B) visa holder may not be stationed at the worksite of an employer other than the petitioner or an affiliate if the foreign national is principally under the control and supervision of the unaffiliated employer or the employment arrangement is an arrangement to provide labor for hire for the unaffiliated employer (82 IR 1347; 08/22/05).

ETA Issues PERM FAQS August 8, 2005

• The DOL/ETA released a fifth set of “Frequently Asked Questions” (FAQs) on the new PERM regulations (82 IR 1400; 08/29/05).

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; GAT is a German-American Trade published by the German-American Chamber of Commerce; The American Bar Association International Law News

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

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

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