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July News From Trow & Rahal, P.C.

As we sweat our way through the heat of July here in Washington, DC, we are reminded of the performing artists who all too often sweat their way through the immigration process.

In this issue of our newsletter: Below, you'll find insights and guidance from Trow & Rahal attorney and shareholder Cynthia Hemphill about how performing artists and organizations can minimize their chances of a denial and/or inherent delays if the U.S. Citizenship and Immigration Services (USCIS) issues a request for evidence.

Also in this issue: You'll find an interview by Attorney Linda Rahal with Human Resources expert Sharon Armstrong, author of The Essential Performance Review Handbook.

Don't miss this month's Immigration Update, which shares details about the forward movement in the availability of immigrant visa numbers and future projections, cut-off dates, best hiring practices set forth by the Department of Homeland Security, and more.

We appreciate your comments and feedback. We are looking forward to helping you with all of your immigration-related needs.

With warm regards from all of us at Trow & Rahal,

Steve Trow, Attorney / Owner / Founder, strow@trowlaw.com
Linda Rahal, Attorney / Owner / Founder, lrahal@trowlaw.com
Cynthia Hemphill, Attorney / Owner, chemphill@trowlaw.com




Are You a Performing Artist? A If So, Mind Your O's and P's When it Comes to Getting a U.S. Visa (P-1, P-3, and O-1 Visa, That Is)

By Cynthia B. Hemphill
Attorney / Shareholder, Trow & Rahal, P.C

George Bernard Shaw once said, "Without art, the crudeness of reality would make the world unbearable." However, if you are a performing artist hoping to work in the U.S., the reality is that it's not always easy to obtain the performance visa (P-1, P-3 or O-1) prior to entering the U.S.

In fact, the agency responsible for adjudicating the performance visa applications – the U.S. Citizenship and Immigration Services (USCIS) – has issued increasingly inconsistent and, at times, arbitrary decisions resulting in denials and cancelled performances.

Consider These Examples

  • In Minnesota last year, the Cedar Cultural Center canceled a fall performance by East African singer Minyeshu Tedla and her band because their blend of Ethiopian music with pop, jazz, blues, and reggae was not "culturally unique" according to the USCIS.
  • Also in 2009, Argentine band Orquesta Kef had to cancel its "Fiesta Hanukkah" concert in Los Angeles because the USCIS did not consider the group's fusion of Jewish Klezmer music with Argentine tango to be "culturally unique."
  • Grupo de Rua de Niteroi, the Brazilian all-male hip hop dance company that performed in Berlin, Paris, and Tokyo, barely made its U.S. engagements on P-1 visas this past February, due to the need to respond to a lengthy USCIS request for additional evidence that questioned whether the group met the "internationally recognized" standard for this visa category.
  • Canadian award-winning modern dancer Ashley Werhun, who previously had a one-year O-1 visa in 2008 to perform with the Trey McIntyre Project in Boise, Idaho, had a renewal petition denied in February 2009 when the dance company wanted to extend her visa for its next season. The company received a request for evidence from the USCIS requiring additional documentation that Werhun was exceptional in her field and that her dancing was superior to the other dancers in the troupe. When the USCIS rejected the submitted response, Werhun was forced to return to Canada. She was able to rejoin the troupe in the U.S. mid-season in O-1 visa status, but only after a new petition was submitted by a U.S. immigration attorney with an accompanying support letter from the state's congressman.

How can you increase the odds of success?

First, minimize the chances of a denial and/or inherent delays if the USCIS issues a request for evidence by knowing what applicable USCIS regulations are involved. Each performance visa has specific standards and criteria that must be satisfied through detailed documentation. Generally:

  • In order to satisfy the international recognition standard of the P-1 visa category, an entertainment group must have attained a "high level of achievement in the field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country." USCIS regulations provide a list of P-1 evidentiary criteria in which at least three forms of documentation and/or comparable evidence must be provided by the group.
  • The P-3 classification is for artists and entertainers who individually or as a group provide a culturally unique style of artistic expression.
  • The USCIS uses the term "extraordinary ability" for the O-1 category. However, for artists, extraordinary ability means "distinction," which is defined as "a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts." As with the P-1, the O-1 regulations provide a list of evidentiary criteria, of which forms of documentation and/or comparable evidence must be supplied to and meet the satisfaction of the USCIS examiners.

Moreover, fully understanding the rules will help petitioners recognize when a USCIS adjudicator incorrectly cites to the regulations. It is important to note that just because the USCIS issues a request for evidence does not mean that the documents that were initially provided in the application were insignificant or insufficient. Most USCIS requests for evidence are template driven; examiners can overlook some key evidence and sometimes the relevant regulations are misquoted.

Here's How You Can Plan Ahead

To avoid delays, it is important to begin the process well in advance of when you expect to come to the U.S.

In fact, a 34-member group recently contacted me to get an overview of the immigration process and start figuring out the logistics of their U.S. tour, even though the performance is not slated until April 2011.

It may seem premature to some organizations and artists, as there may be changes in dates, some group members may not be able to make the tour, etc. However, this group now understands the types of evidence it needs to collect and provide to me as its performance date approaches.

The result of such planning will be a well-documented, approvable petition. Also, it is possible to file the petition with the USCIS as early as one year in advance of the U.S. entry date, which will provide more time to respond to any request for evidence that may arise.

Another benefit: Upon approval of the petition, each group member should have ample time to complete the requisite online visa application and attend a visa interview at a U.S. consulate to have the visa imprinted in his/her valid passport. Preparing for the consular interview can be just as important as the petition filed with the USCIS, as issuance of the visa by the U.S. Department of State can be denied despite the fact that the petition was approved.

Signs of Hope

It may be comforting to know that because of the outcry of dissatisfaction by performing arts organizations, the American Immigration Lawyers Association (AILA), and other interested parties, USCIS Director Alejandro Mayorkas has initiated an O and P visa initiative to establish consistent review standards of petitions by examiners.

At the recent AILA National Conference held from June 30th to July 3rd in National Harbor, Maryland, Mr. Mayorkas indicated to a room of hundreds of U.S. immigration attorneys that "USCIS needs to work on welcoming and embracing O and P groups."

Additionally, the USCIS just held an O and P Stakeholders meeting on July 20 to hear concerns from immigration attorneys, organizations and performing artists.

Hopefully this is a sign that the USCIS is moving away from its philosophy of "No" and toward enabling international performers to share their talents with our country.




Linda Rahal Interviews Human Resources Expert Sharon Armstrong About Her New Book, "The Essential Performance Review Handbook"

By Linda Rahal
Attorney / Owner / Founder
Trow & Rahal, P.C.

Although management and human resources isn't our area of expertise, we do work with a lot of HR professionals. After reading Sharon Armstrong's new book, The Essential Performance Review Handbook, we thought it would be a helpful tool for our HR clients.

I recently sat down with Sharon (pictured below) to get her advice on how to take the pain out of the performance review process.

Linda Rahal: Tell us about your new book and what you hope readers will take away after reading it.

Sharon Armstrong: My goal is to provide advice on how to make the performance review process productive, painless, and effective. After all, I have been there as a manager and know from firsthand experience that performance appraisals can be one of the most anxiety-provoking aspects of work life – for both supervisors and employees.

Appraisals are meant to clarify and reward, and to be interactive and fair. They take real time, real dialogue, and a real focus on the future, rather than just the previous few months. They need to work successfully for all employees – not just the terrific ones.

Linda Rahal: Why do you think, more often than not, that performance reviews don't work?

Sharon Armstrong: Supervisors often complain they are required to focus on tedious written forms, but don't have enough training in how to use them. They also worry about getting hit with complaints or lawsuits when there's even a hint of discussion in the review about "improvement opportunities." There's also the frustration of measuring intangibles.

Linda Rahal: I'm guessing that employees dread the process, as well.

Sharon Armstrong: Most definitely. In fact, my research shows their reaction ranges from feelings of trepidation to sheer terror. As one employee told me, "The perception of the individual or relationship often dictates how critical or complimentary a supervisor can be."

Linda Rahal: Why is one of the most vital workplace responsibilities so difficult and complicated?

Sharon Armstrong: Let's consider some statistics and surveys to understand the problem. A 2006 survey by the Council of Communications Management confirmed what almost every employee knows – that positive feedback related to their efforts and recognition for a job well done are the top motivators of employee performance.

Through formal evaluations and regular informal routes, performance appraisals yield excellent opportunities to motivate. Yet the process is frequently counterproductive or viewed merely as perfunctory. According to the United Kingdom's Institute of Personnel and Development, one in eight managers would prefer to visit the dentist than carry out a performance appraisal.

It's not supposed to be this way. Rather than a painful yearly event, a performance evaluation can be viewed as a culmination of small meetings, formal and informal, held throughout the evaluation period.

Linda Rahal: So, what's the good news?

Sharon Armstrong: Happily, the elements involved – goal setting, effective observation, practical documentation, and ongoing communication – can all be learned.

That's why The Essential Performance Review Handbook provides sound guidelines, sample evaluation forms, helpful insights for use on both sides of the desk, do's and don'ts, tips for "owning" the appraisal, and ways to leverage the review.

Linda Rahal: As I look through this useful book I see that it's divided into nine chapters.

Chapter 1: The Roots of Anxiety

Chapter 2: Forget Winging It!

Chapter 3: Appraisals That Don't Bite

Chapter 4: Mission: Possible

Chapter 5: The Many Facets of Compensation

Chapter 6: Rating Error Traps

Chapter 7: When Appraisals Derail

Chapter 8: Keep It Legal

Chapter 9: Performance Reviews in a Changing World

Sharon Armstrong: Yes. And the Appendix includes the Employee Performance Review and Performance Appraisal forms from 10 organizations and associations:

  • Atlantic Human Resource Advisors, LLC

  • National Council of La Raza

  • The Special Olympics

  • Folcomer Equipment Corporation

  • National Association of Federal Credit Unions

  • A DC-based trade association

  • Fried, Frank, Harris, Shriver & Jacobson LLP

  • Columbia Lighthouse for the Blind

  • Farmington Country Club

Linda Rahal: I especially like that the book is peppered with quotes and ideas from top leaders. In Chapter 9, entitled, "Performance Reviews in a Changing World," Microsoft Chairman Bill Gates shares with us this thought. "What I do best is spread my enthusiasm," he says.

Sharon Armstrong: That's right. And Microsoft CEO Steve Ballmer added, "The end point must be exciting enough to stir thousands to uncommon effort."

I also added sidebars throughout the book to impart additional knowledge and information, including one in Chapter 7, "When Appraisals Derail," which offers a blueprint for positive feedback.

Linda Rahal: I'm guessing peformance appraisals aren't going to go away any time soon. What do you think will be the future of this process?

Sharon Armstrong: I think that in one form or another, performance reviews will continue to be a fact of our work life. This book is designed to cut through the anxiety and make the process more productive and less unpleasant.

The book is also designed to bring performance appraisals into the 21st century, increase future-focused areas including: job sharing, telecommuting, shared supervision, team evaluations, legal concerns, and accommodating particular employee challenges.

The chapters tap into the actual feelings of employees and their bosses. You'll find good examples and painful ones, real-life performance review problems, and guidelines on how to handle them.

Linda Rahal: Thank you so much for your time, Sharon. I, for one, know that this book will help make the performance review process easier at Trow & Rahal. I recommend it to everyone, and wish you all the best getting this important information out to managers and business leaders.

Sharon Armstrong: Thank you, Linda. It has been a pleasure talking to you!

About Sharon Armstrong

Sharon Armstrong has over 20 years of experience as a Human Resources consultant, trainer and career counselor. Since launching her own consulting business in 1998, Sharon Armstrong and Associates, she has consulted with many large corporations and small businesses. She has facilitated training, completed HR projects and provided career transition services for a wide variety of clients in the profit and non-profit sectors.

Sharon received her Bachelor's Degree from the University of Southern Maine and her Masters Degree in Counseling from George Washington University. She is a certified Professional in Human Resources (PHR).

Sharon is also the co-author of The Essential HR Handbook: A Quick and Handy Resource for Any Manager or HR Professional, which was published in August 2008.




Immigration Update

More Immigrant Visa Numbers Available in August 2010

There has been substantial movement in the availability of immigrant visa numbers since January 2010, with even more movement reflected in the August Visa Bulletin published by the U.S. Department of State.

Additional movement is expected until September 30, 2010, which is the end of the government fiscal year.

How it Works

In order for foreign nationals to apply for permanent residence (green card) status, there must be an immigrant visa number available before the last stage of the green card can be processed.

The immigrant visa numbers are allocated by the DOS through a very complex mechanism and published in its monthly Visa Bulletin.

A foreign national's place in line is determined by the priority date, which is the date the first step of the green card was filed. For example, if the first step of the green card for a foreign national was filed on December 5, 2004, then that is the person's priority date.

This date must be "current" or at or after the cut-off priority date before the last stage of the green card can be processed.

Cut-Off Priority Date Backlog

When there is more demand for immigrant visas than those available, it is necessary that cut-off priority dates be established, resulting sometimes in substantial waits for immigrant visas.

For people born in certain countries (e.g. China and India), the wait for available immigrant visa numbers can be as long as 5 to 10 years. With forward movement in priority cut-off dates, some people who have been waiting for a long time will be able to process the last stage of their green card applications. However, the window of opportunity may be short.

Since January 1, 2010, for the Family-Based Second Preference (2A) Category for spouses and children under 21 of permanent legal residents, the availability of immigrant visas has advanced almost 3 years to a cut-off priority date of March 1, 2009.

For employment-based cases, there are two preference categories with backlogs that are most often seen by employers: the Employment Second (EB-2) preference category and the Employment Third (EB-3) preference category.

Below is a summary of cut-off priority dates as reflected in the August 2010 Visa Bulletin:

EB-2

  • Cut-off date for China is March 1, 2006 (3 months forward movement since July).
  • Cut-off date for India is March 1, 2006 (5 months forward movement since July).
  • Cut-off date for all countries other than China, India, Mexico, the Philippines, and the Dominican Republic is "current" (no backlog) with immediate visa availability.

EB-3

Significant movement is seen in the EB-3 preference category as well, traditionally the slowest category to advance. The cut-off priority dates for EB-3 have been retrogressed for all workers, with those born in India and China historically having the greatest backlogs.

  • Cut-off date for China is September 22, 2003 (1 month forward movement since July).
  • Cut-off date for India is January 1, 2002 (1 month forward movement since July).
  • Cut-off date for all countries other than China, India, Mexico, the Philippines, and
    the Dominican Republic is June 1, 2004 (6 months forward movement since July).

These EB-2 and EB-3 cut-off priority dates are reflective of an overall forward movement since January 1, 2010.

Be Prepared

All individuals who may be eligible to file for adjustment of status because their priority dates will be current in August or even September should contact their attorney at Trow & Rahal.

They should work on preparing and finalizing forms, gathering necessary documents, and completing the medical examination.

The cut-off priority dates may significantly retrogress again at the beginning of the next fiscal year on October 1, 2010. Therefore, applications should be ready to file if priority dates become current. For more information contact us at info@trowlaw.com.

USCIS Proposes Changes in Fees; New EB-5 Regional Center Fee Imposed

The United States Citizenship and Immigration Services (USCIS) has proposed a new fee rule that, if passed, would increase the average application and petition fees by a "weighted average" of approximately ten percent. Proposed increases include a $25 increase for a Petition for a Nonimmigrant Worker (Form I-129, used for H-1 and L-1 petitions); a $105 increase in filing fees for an Immigrant Petition (Form I-140, filed after PERM approval); a $40 increase for an EAD card (Form I-765); and a $55 increase for Advanced Parole (Form I-131).

The rule also proposes to raise the fee for premium processing from $1,000 to $1,225.

In addition to proposed fee increases, the USCIS seeks to impose a new fee of $6,230 for an EB-5 petition when filing based upon a Regional Center under the Immigrant Investor Pilot Program. Currently, there is no fee for this.

The USCIS announcement, which includes a table of current and proposed fees, is available at www.uscis.gov.

A related Q&A is available here.

Department of Homeland Security Has New Best Hiring Practices

The Department of Homeland Security (DHS) has set forth its recommendations for "best hiring practices" as part of the ICE Mutual Agreement between Government and Employers (IMAGE) program. The DHS recommends that employers do the following:

  • use E-Verify to verify the employment eligibility of new hires;
  • establish a written hiring and employment eligibility verification policy;
  • establish internal compliance guidelines for the completion of form I-9;
  • arrange for annual I-9 audits;
  • establish and maintain appropriate policies, practices, and safeguards against use of the verification process for unlawful discrimination; and
  • maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

The hiring practices information and other related details are available at www.ice.gov

Trow & Rahal assists companies in drafting compliance policies, as well as with internal I-9 and compliance related audits. Please contact us if you need assistance in developing policies or reviewing existing ones at info@trowlaw.com.

Employers Take Note: ICE Issues Strategic Plan

In its "ICE Strategic Plan" for the Fiscal Years 2010-2014, the U.S. Immigration and Customs Enforcement (ICE) set forth its priorities for enforcement. Of particular relevancy to U.S. employers, ICE indicates that it will look to protect the borders through "smart and tough interior immigration enforcement." It also indicates that part of its mission is to create a culture of employer compliance.

Recognizing that the opportunity to work in the United States is a motivator for illegal entry and visa overstay, ICE will use a two-pronged strategy to ensure employer compliance:

1. Aggressive criminal and civil enforcement against those employers who knowingly violate the law;

2. Continued implementation of programs, such as E-Verify and IMAGE (ICE Mutual Agreement between Government and Employers), to help employers comply.

This continues to highlight the need for companies to develop and implement written policies for hiring, employment verification, and related compliance files.

H-1B Petitions Decreased in 2009

The number of H-1B petitions decreased 15% since FY 2008, and the number of H-1B petitions approved decreased 22%, according to the U.S. Citizenship and Immigration Services (USCIS) 2009 annual report: "Characteristics of H-1B Specialty Occupation Workers." Petitions for initial employment accounted for 40% of H-1B visa petitions with the remainder being for extensions and transfers between companies.

The USCIS also issued the following statistics:

  • 48% of all approved H-1B visa petitions were filed on behalf of Indian nationals;
  • 53% were for foreign nationals with Master's degrees;
  • Median salary of beneficiaries of approved petitions increased to $64,000; and
  • 41% of the USCIS approvals were in computer-related occupations.

Download the full report at www.uscis.gov.




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