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INTERNATIONAL BUSINESS AND TRADE

Taxation

South Korea:

• After recent governmental review, the decision was rendered that foreign companies and expatriates doing business in South Korea will continue to benefit from tax incentives promoting foreign direct investment (23 ITR 1293; 9/7/06)

IMMIGRATION

Federal Rule Prohibiting Persons Other Than U.S. Citizens from Transporting Hazardous Materials Upheld

• Although lawfully present in the United States as a permanent resident, an Indonesian citizen could not press a claim against his U.S. employer for discrimination where the federal regulations of the Department of Transportation prohibited persons other than U.S. citizens from obtaining a hazardous materials endorsement on their commercial truck driver’s license (Murtano v. C. R. England, Inc., OCAHO Case No. 04B00057, 2005 OCAHO LEXIS 2 (March 28, 2005); 11 IB399; April 15, 2006)

New DHS Proposed Rule Adds Two New Cases of “Constructive” Knowledge of Employers on Unauthorized Employment

• Case 1: The Social Security Administration issues written notice by “mismatch” letters that the combination of name and SSN do not match SSA records

• Case 2: Employers receive notice from DHS that documentation presented by an employee completing an I-9 form is invalid

• The proposed rule specifies steps the employer would have to take in making a reasonable response to the “no match letter” to achieve “safe harbor” as a defense to the assertion it has constructive knowledge of an employment violation (11 IB 1090; September 15, 2006)

H1-B Experiential Equivalency Granted by AAO

• On a Motion to Reconsider a petition for H-1B status for an employee of a flower sales and distribution business, the company was granted authority to employ a beneficiary as a Market Research Analyst who had two years of foreign general university level studies toward a degree and nine years experience of equivalent foreign work (11 IB 1113; September 15, 1006)

Partial Grant of RIR by CO Requires Remand for Supervised Recruitment Instead of Denial of LCA Where Employer Failed to Test the Labor Market

• BALCA determined that the employer’s failure to conduct an interview to validate the resume of an ostensibly qualified applicant was not a lawful reason for rejection of the applicant thus resulting in the C.O.’s determination that it was a failure of the employer to adequately test the labor market but this failure did not affect the entitlement of the employer to a supervised recruitment instead of a denial (Matter of Express Photo, Inc., 2005 INA – 128 BALCA, August 11, 2006)(83 IR 1922; September 1, 2006)

GAO Releases Report “Immigration Enforcement: Benefits and Limitations to Using Earnings Data to Identify Unauthorized Work” (GAO–06-814R)

• This sixteen page report is available at www.gao.gov and describes the interagency use of earnings data collectible from the Social Security Administration and the Internal Revenue Service to assist DHS in worksite enforcement efforts (83 IB 1640; July 31, 2006)

Newly Adopted Immigration Enforcement Bills in the House

• H.R. 4830 Border Tunnel Prevention Act of 2006 – this bill is the same as Subtitle D Sections 141-143 of S.2611 that criminalizes the construction or financing of a border tunnel as well as use of such a tunnel

• H.R. 6094 Community Protection Act is similar to the Dangerous Alien Detention Act of 2006 like the provisions found in H.R. 4437 Section 602 as well as S. 2611 Section 202 to permit detention of dangerous aliens throughout the removal process

• H.R. 6095 Immigration Law Enforcement Act of 2006 consolidates efforts of state and local law enforcement of the Immigration Law Act, the Alien Smuggler Prosecution Act and the Ending Catch and Release Act of 2006 which bills are similar to H.R. 4437 Section 220 providing that state and local law enforcement agencies have the inherent authority to investigate, identify, apprehend, arrest, detain or transfer to federal custody any aliens for purposes of law enforcement (83 IR 2021-2023; September 25, 2006)

Employer Rebutted Finding that the Job was Not Open to U.S. Workers by Establishing No Financial Interest of the Sponsored Applicant in the Ownership of the Company

• Nordix Computer Corp. rebutted the denial of the finding of the Certifying Officer who had denied the employer’s labor certification application on the grounds that the employer had failed to document sufficiently the relationship of the sponsored foreign national to the company as absent improper influence or financial interest in the company operation. (11 IB 1041; September 1, 2006)

House Passes the Secure Fence Act of 2006 (H.R. 6061)

• The Secure Fence Act requires operational control of the Southwestern border within 18 months of enactment providing for systematic surveillance of land and maritime borders, unmanned aerial vehicles, ground-based sensors, fencing, satellites, radar coverage and cameras, additional checkpoints, access roads and vehicle barriers. (83 IR 1983, September 18, 2006)

Inadmissibility Waiver Available Notwithstanding Innocent or Willful Misrepresentations

• The Board of Immigration Appeals (BIA) held INA Section 237(a)(1)(H) authorizes a waiver of removability based on charges of inadmissibility at time of admission for fraud or misrepresentation of a material fact made at the time of admission irrespective of whether it was innocent, willful or intentional. (Matter of Fu, 23 I. & N. Dec. 985 (BIA September 6, 2006), 83 IR 1941; September 11, 2006)

INTERNATIONAL AGREEMENTS AND INVESTMENTS

Textiles

Indonesia:

• A Memorandum of Understanding (MOU) was signed with the U.S. to stop illegal textile transshipment activities (23 ITR 1409; 9/28/06)

Philippines:

• A Memorandum of Understanding (MOU) was signed with the United States to increase cooperation to reduce illegal transshipment of textiles and apparel to the U.S. (23 ITR 1294; 9/7/06)

Information Technology/Privacy Data

E.U.:

• The European Union introduced a standard application form for Binding Corporate Rules (BCRs) to help multinational companies draw binding rules to comply with legislative requirements for transferring data outside of the E.U. (23 ITR 1367; 9/21/06).

Foreign Investments

U.S.:

• The USTR announced the Senate approved a resolution for the U.S.-Uruguay Bilateral Investment Treaty (23 ITR 1374; 9/21/06)

Bilateral Agreements

U.S.:

• A bilateral trade and investment agreement was signed with Mauritius (23 ITR 1381; 9/21/06)

Jordan:

• Jordan signed an agreement with the U.S. to help ensure compliance with internationally recognized labor standards (23 ITR 1310; 9/7/06)

Agriculture

U.S.:

• A bilateral softwood lumber agreement was signed with Canada in settlement of a 20 year history of disputes (23 ITR 1320; 9/14/06)

LEGISLATIVE & LEGAL DEVELOPMENT

Exports

U.S.:

• The Senate Banking Committee approved the reauthorization of the U.S. Export-Import Bank for five years in H.R. 5068 (23 ITR 1397; 9/28/06).

Sanctions

U.S.:

• H.R. 3127 blocks assets and denies visas to individuals identified with or involved in acts of genocide or other war crimes in Darfur; prohibits non-humanitarian U.S. assistance to nations violating the military and arms embargo against Sudan imposed under U.N. resolutions and encourages denial of entry at U.S. ports to Sudanese cargo ships and oil tankers if the government of Sudan fails to take specified measures (23 ITR 1416; 9/28/06)

Customs

U.S.:

• H.R. 4954 which will strengthen port security was approved by the Senate (23 ITR 1356; 9/21/06)

Dumping

U.S.:

• The Byrd Amendment requirement that an entity has to support an anti-dumping or countervailing petition to qualify to receive funds under the statute violates the Equal Protection Clause of the Constitution (SKF U.S.A., Inc., v. U.S., Ct. Int’l Trade, No. 05-00542 (Slip Op. 06-139), 9/12/06; 23 ITR 1377; 9/21/06).

Bilateral Agreements
U.S.:

• H.R. 5684 was approved by the Senate to implement the U.S. Free Trade Agreement with Oman (23 ITR 1380; 9/21/06).

Export Controls

U.S.:

• The Department of Defense published a new proposed rule requiring contractors to protect against disclosure of export controlled information and technology requiring contractors to refer to the Export Administration Regulations (EAR) and the International Traffic and Arms Regulations (ITAR) (23 ITR 1282; 9/7/06).

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 2006

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

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