Year: 2011

August 17, 2011

The most important thing to know about the DHS Press Release and press conference of August 2, 2011 on Initiatives to Promote Startup Enterprises and Spur Job Creation, the published USCIS Fact Sheet of the same title of August 3, 2011, the USCIS FAQ Regarding Entrepreneurs and the Employment-Based Second Preference, and the related Entrepreneurs Stakeholder Engagement conference call of August 11, is that all these initiatives are largely window-dressing, despite excited coverage in the Wall Street Journal. They represent no substantive changes in the Service’s occasionally contorted interpretations of the law.

For all the lip service to the Administration’s laudable goals of helping entrepreneurs spur the growth of new businesses, for now, USCIS is not changing any of its interpretations of law. The Service is not in any way relaxing its insistence on the US sponsoring company having to demonstrate a “right to control” the foreign worker, and offers no policy guidance loosening the Service’s unduly restrictive definition of who can be considered an “employee” under the Immigration & Nationality Act, per a Donald Neufeld memorandum of January 8, 2010, (the Neufeld memo) – which does not have the force of law, nor even regulation – nor will they instruct officers to restrict that memo and its definitions to the H1B context. There is no policy guidance loosening the Service’s narrow, literal-minded geographic reading of the phrase “national in scope,” with respect to job creation as a benefit to the United States under the EB-2 National Interest Waiver. There is no promise of a path for E-2 Treaty Investors to transition to permanent residence. In fact, these initiatives for entrepreneurs herald no real increase in the availability of any type of visas for employee-owners or owner-directors, either of foreign-owned startups under the H-1B or O-1 visa category, or E-2, or EB-2 green cards for entrepreneurs under the National Interest Waiver, or for director-owners of privately held multinational companies under the L-1A or multinational manager or executive visas.

The attitude embodied in the January 2010 Neufeld memo is an obsession with a “right to control” the H1B worker, a single factor weighted far more heavily than all other factors combined. It has prompted a relentless drive among adjudicators to pierce the corporate veil at will, and to start by assuming that all owner-beneficiary scenarios are somehow “fraudulent.” Its treatment of any employee with an ownership stake as ‘not a real employee’ is deeply damaging to all manner of entrepreneurial businesses seeking visa benefits for their workers.

The Neufeld memo on its face does not apply to the O-1 visa, nor to L-1 or multinational manager immigrant visas – those categories were never intended to be unavailable to owners who happen to be employees of the US business – but the Service has become enamored of applying its new, narrow definition of “employee” across all visa categories. To date, USCIS offers no concrete authority for combating persistent misapplication of the “right to control” standard at the individual case level, except for a non-binding suggestion that it may be possible for an owner-employee to demonstrate “control” over his or her employment by a Board of Directors.

The Neufeld memo has spread throughout all areas of employment-based visa adjudications, encouraging adjudicators to zealously apply a restrictive interpretation of the “employer-employee” relationship drawn from the Darden [1] and Clackamas [2] cases. These cases on which the Service relies for its definition of “employee” did not involve immigration law at all; they related to the definitions of “employee” with regard to eligibility for ERISA pension benefits and to applicability of access requirements under the Americans with Disabilities Act. In relying on those cherry-picked Supreme court decisions, USCIS elected to ignore an array of long-standing precedents providing guidance on the definitions of the employer-employee relationship that were specific to immigration law, and which had been followed by the agency for decades [3], as well as more recent Supreme Court case law [4]. The legal deficiencies in the Neufeld memo and its strained definition of “employee” are numerous, but they are laid out in magnificent detail in the American Immigration Lawyers Association memo to the director and chief counsel of USCIS of January 26, 2010, so I will not attempt to recreate or paraphrase those arguments here (the AILA memo is 24 pages long). This paragraph is intended as a mere CliffsNotes®-style summary of some major flaws in the Neufeld memo, for those unfamiliar with its contents and AILA’s response.

When asked during the August 11 Stakeholder Engagement call on Entrepreneurs if there will be any attempt to clarify or limit application of the Neufeld memo to H1B adjudications, Service representatives ignored the question and offered no response. However, during the California Service Center Stakeholder Engagement call of Wednesday, August 10, USCIS representatives explicitly said that the Entrepreneur initiatives do not represent any substantive changes in USCIS interpretation of the law, regulations, and applicable legal standards. They intend to stand by their current interpretation of who can be an “employer” under the Immigration & Nationality Act, tacitly acknowledging that they have no plans to scale back inappropriate mission creep of the Neufeld memo into the realm of O-1s, L-1s, and beyond.

The definition of “employee” urged by the Neufeld memo is based on a factually false assumption that owner-directors seek to start a business in the US for the main purpose of getting themselves a visa, rather than to realize a business goal. It contradicts decades of specific, on-point guidance in precedent cases acknowledging the difference between a company and an individual; but most importantly, it seeks to disallow visa eligibility for entrepreneurs on every scale. The notion that if a worker has an ownership stake in a business, then any visa petition by that business on the worker’s behalf is a fraud, is not just an erroneous premise: it is inherently hostile to a broad array of new and start-up phase businesses, small businesses, privately-held multinationals, companies with partnership or employee-shareholder models for growth, and any company in which a foreign national has a hand in funding, starting or expanding the US business. As a matter of visa policy, this is economic suicide.

At the very moment in our history when the U.S. economy most desperately needs the services of those individuals willing to put their own money, as well as their time, effort, skills and intellectual capital, into starting and growing US companies, USCIS adjudicators are dreaming up an ever-expanding universe of reasons to say ‘no’ based on the size and age of a business and on the “right to control” the foreign worker. USCIS agency leadership has admitted it has no plans to rein them in, and does not even intend to issue guidance explicitly limiting application of the Neufeld memo or its definition of who is an “employee” to H-1B adjudications, which was its ostensible purpose when published. This makes their well-publicized “entrepreneur” initiatives ring hollow.

So, what could USCIS do to offer concrete improvements? Without making any changes to the statute or the regulations, USCIS could enhance visa opportunities for entrepreneurs and owner-directors by retracting some of its more onerous and tortured interpretations of law. Here are a few good places to start:

A) withdraw the Neufeld memo,

Or, at the very least,

B) issue an H-1B policy memo and officer retraining, limiting application of the Neufeld memo and the “right to control” definition of an employer-employee relationship to H-1B adjudications, and clarify that this narrow definition does not apply to O-1s, to L-1s, or to multinational managers;

C) issue an EB-2 policy memo and officer retraining on the second prong of NYSDOT for National Interest Waivers, noting that creation of a substantial number of jobs for US workers in even one location could be deemed to offer significant prospective benefit to national interests of the United States, if, for example, those jobs are in manufacturing, or in industries that have suffered significant layoffs in the past two years in the state or region where the business is located, or in industries where the US has lost significant market share to foreign competitors. Each of those provide a real, substantial benefit to our nation that could be documented with quantitative evidence.

** UPDATE: At the USCIS Stakeholder Engagement teleconference on August 23, discussing I-140 employment-based immigrant visa petitions, we learned a number of discouraging things about just how much they are not changing the status quo, particularly with respect to owner-beneficiaries being sponsored by companies in the United States.

Service representatives on the call offered no legal justification for the sweeping pattern of denials of EB-1(3) Multinational Manager/Executive petitions wherever the manager or executive has an ownership interest of 51% or more, parroting past statements that there must be a valid job offer, and thus tacitly asserting the Service’s position that no majority owner of a company may ever be considered an “employee” nor have a bona fide job offer from the U.S. company. They persist in totally ignoring the 12 equally-weighted factors for determining whether an employer-employee relationship exists that were laid out by the Supreme Court in Reid. They also made it clear that no changes at all have been made with respect to officer training or instructions for review of National Interest Waiver petitions in cases involving entrepreneurs and business owners, and refused to give any substantive response when asked whether, and under what circumstances, the creation of jobs in one location could be deemed to be a benefit that might be deemed sufficiently “national in scope.”

[1] Nationwide Mutual Insurance Company v. Darden, 503 U.S. 318 (1992)
[2] Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003)
[3] Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980), Matter of Allan Gee, Inc., 17 I&N Dec. 296 (Acting Reg. Comm. 1979), and Matter of M–, 8 I&N Dec. 24 (BIA 1958, AG 1958)
[4] Raymond D. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 124 S. Ct. 1330 (2004)

May 9, 2011

DISCLAIMER: These are not official minutes, nor have they been edited by all the participants. This is my own summary of important issues raised in the most recent chapter of the Service’s attempts to engage with users of the O-1 visa program to find out what we think is wrong. Thanks are due to everyone who participated in the stakeholder engagement call on April 28, but no one gets name attribution here – to avoid giving either credit or blame.

After the usual introduction of reading aloud from the regulations, USCIS representatives stated that they want to acknowledge the realities of the industries that use the O-1 visa category, within the framework of current regulations. They expressed a desire for industry-specific feedback from stakeholders on what is meant by “sustained national or international acclaim,” what can be deemed “comparable evidence”, and what it means to be at the top of your particular industry. To avoid restating the obvious time and again, most questions addressed to the Service by stakeholders went unanswered. Service representatives attempted to organize the call by addressing first the standard for aliens of extraordinary ability in business, education, science or athletics, then the standard for aliens of extraordinary achievement in film and television, and then extraordinary ability in the arts, but in practice the call largely did not follow that model.

First, a caller expressed concern with the overall purpose of USCIS’ interest in exploring O-1 adjudications and “clarifying” the regulations over the past three years. He noted that while the stated goals of consistency and clarification are indeed achievable, the only visible result to practitioners so far is much higher rates of RFEs, NOIDs and denials, and that curtailing availability of the O- 1 visa does not appear to be in the country’s best interests, either culturally or from a business perspective.

One caller noted that adjudicators seem to be applying a US-based definition of what constitutes acclaim or awards at the “national” level, showing reluctance to recognize that national awards, press or other evidence of acclaim from the alien’s own country of nationality meet the regulatory standards [at 8 CFR 214.2(o)(3)(iii)(B)(1)&(B)(3)].

Another caller asked if there is a distinction between the evidentiary weight accorded to testimonial letters as opposed to other types of evidence, because adjudicators seem to be applying one, giving less weight to testimonials, although such a distinction is not supported by the statute or regulations.

Several callers, representing fields from various sports to ballroom dancing, noted that USCIS redefines and narrows the “field of endeavor” when it comes to review of any O-1 positions that involve teaching, coaching or directing an educational program in a sport or dance discipline, rather than performance or competing in these physical fields of endeavor where there is a natural career progression from performance and competition in youth to teaching, coaching or supervising a program based on demonstrated athletic ability, experience, and past successes in competition. One caller noted that the Service’s narrow view in this context is unsupported by the regulations and case law, which permit a more liberal application of these skill sets.

One caller asked the Service to specify the difference between the O-1A standard in science, business, education or athletics and the EB-1(A) standard, as they appear to be essentially identical, but what stakeholders encounter in practice is that a much higher standard is applied in the I-140 setting.

With respect to the alternative regulatory criterion of “comparable evidence” [8 CFR 214.2 (o)(3)(iii)(C)], many stakeholders weighed in. One noted that using this criterion with any creativity falls flat with adjudicators, because they are not trained to be flexible in applying the regulation. Several callers noted that adjudicators consistently express an antiquated view of the types of documents that can demonstrate extraordinary ability, and they are unduly skeptical of all online media, which are the sole stock in trade of many professions (e.g., graphic designers, animators, videographers, etc.) and which are now the most common means of publicity for many professions. One caller noted that adjudicators are ignoring or discounting online sources to the point of demanding printed award certificates even after supplied with a webpage from the international awarding body listing award recipients, or demanding copies of print articles when presented with numerous reviews in blogs and other online publications. The need for the Service to modernize its approach to online media sources was echoed by several callers. Another caller asked the Service to clarify how to address situations where some of the existing criteria do apply to the alien’s field of endeavor but the remaining criteria are irrelevant to the field of endeavor, so the use of “comparable evidence” is needed, but currently in those situations adjudicators are simply ignoring any items presented as “comparable evidence” and claiming that the beneficiary does not meet enough of the criteria.

Echoing the problem with sports teaching and coaching positions, one practitioner noted that this is symptomatic of a broader issue, where USCIS adjudicators routinely reject or try to limit crossover or interdisciplinary job opportunities that arise as a logical application of the beneficiary’s expertise and renown– an RFE claims that a distinguished architect offered a position to teach architecture suddenly has to qualify as an extraordinary teacher, or a musician invited to perform on a music-oriented TV program is suddenly an “actor”, etc. –the Service needs to train its adjudicators to be more responsive to how such cross-industry opportunities and needs arise in the real world.

Several callers noted that much evidence of high salary, compensation or box office receipts in comparison to others in the field is commonly ignored by adjudicators, or measured by US economic standards which do not apply in the alien’s home country. One caller noted that there is a pattern of RFEs asking by name for surveys from the Economic Research Institute, and that such RFEs are cost-prohibitive and often off-point, since the ERI surveys cost thousands of dollars and only cover jobs with for-profit entities in the United States, the UK, Italy and France. Therefore, the ERI survey may be wholly irrelevant to both the field of endeavor and to the country or region where the alien’s career has been established. Another caller noted that the frequent dismissal of US Dept. of Labor OES surveys presented as evidence of high salary in the O-1 context is inappropriate, particularly given the Service’s reliance on those same surveys in the H-1B context. A caller asked for more deference to other reliable sources of comparative salary evidence, such as letters from hiring officials or headhunters with established hiring and compensation expertise specific to the field of endeavor. One caller complained of an off-point RFE that asked to compare the salary offered to the alien to the salaries of other (unrelated) positions within the petitioner’s company.

A caller challenged the Service’s practice of sending a Request for Evidence, and then denying the petition because the evidence supplied in response post-dates issuance of the RFE. He pointed out that this rationale for denials is both ultra vires and illogical: the fact that a new document explaining the beneficiary’s renown is created after the date an RFE is issued does not mean the beneficiary’s renown arose after the time of filing.

One caller asked why the regulation saying that a petitioner does not need to include all the evidence when seeking an O-1 extension for the same beneficiary in the same position is routinely ignored.
One caller noted that for O-1B petitions in the arts, and for aliens of extraordinary achievement in film and television, at least three of the regulatory criteria may be met by evidence in the form of testimonial letters, but adjudicators are issuing Requests for Evidence that say you cannot make a case based on letters alone: this ignores the reality of certain behind-the-scenes professions, such as sound engineers, set designers, etc. where the top people are renowned within the industry, and routinely selected to work with the most prominent directors on important productions, but the nature of their work precludes recognition in general media available to the public.

A caller asked the Service to remind adjudicators that their job does not include formation of new policy… several others asked if adjudicators could be reminded that making up new legal standards, and/or importing legal standards from other categories is not within the purview of adjudicators’ responsibility or authority. In that context, one caller noted that adjudicators seem especially prone to dismiss evidence that an event, production or venue is distinguished… on the off-point grounds that it is not evidence of a major national or international award to the beneficiary.

One caller noted that although we are seeing an increasing volume of RFEs based on bright-line rules and checklists, we have less and less confidence that adjudicators will apply the regulatory criteria as written, and that they have permission to apply common sense and real-world knowledge to the adjudications process.

Another caller noted a marked difference in how adjudicators treat past vs. prospective events, and seem particularly unwilling to entertain the notion of any renown attaching to upcoming commitments from distinguished productions or famous directors.

A caller asked when we could expect to see the fruits of this feedback in terms of changes to patterns in adjudication, but USCIS representatives could not provide a time frame. They noted that copies of truly off-point or inappropriate RFEs and NOIDs should be provided to scopsrfe@dhs.gov (and a caller noted they should also be provided to reports@aila.org), but that timely responses must still be filed with the relevant Service Center. A caller responded that some RFEs are so creative, off-point and burdensome that responding to them takes considerably more time and effort than preparation of an initial petition filing, and saying that we have to respond on time no matter how ridiculous the RFE just shifts the entire burden of fixing the broken adjudications process back onto the industry and the petitioner.

Another caller noted that 16 examples of absurd RFEs from the California Service Center submitted to USCIS a year ago by the Performing Arts Working Group has produced no visible result to date except that now similarly absurd RFEs are now also coming from the Vermont Service Center.

CODA: In developments since the stakeholder call of April 28, the template for the EB-1 RFE was released on May 4, and it reflects a problem mirrored in a recent complaint on the O & P visa forum about an O-1 RFE on a similar issue. In both, USCIS asserts that awards, publications, press coverage, etc. – in short, any accomplishments at all – earned while the beneficiary was a student (or exchange visitor), do not count towards eligibility for an O1 visa. My response to that specific post was as follows:

Be aware that this is part of a broader trend, which is a tendency on the part of USCIS to claim that ANYTHING achieved (awards won, publication, etc.) while a person is an F-1 student or J-1 exchange visitor somehow does not count as a professional achievement: fight back hard, because they are wrong. To take an example from the hard sciences, there are many brilliant young people who get papers published in distinguished peer-refereed journals before completing their doctoral degrees, and a few who do so even before finishing a Master’s: that does not make any such article a “student publication.”

USCIS, both at the policy level and at the individual adjudicator level, has real trouble understanding the distinction between:

A) achievements or accolades that are by their own terms limited to students within an institution, which do not meet that regulatory criterion;

B) awards from a national or international body for distinguished work in the academic field that merits the funding of further work in that field (such as a Fulbright, a Mellon or Ford Foundation grant, or a MacArthur “genius” grant – although awarded to pursue graduate work, these undeniably indicate outstanding ability in an academic field at a national or international level, and show recognition from an impartial body beyond the university for contributions that may have lasting significance to the academic field); and

C) professional awards, publications or achievements having no limitation to student candidates that the person got while he or she still just happened to be a student.

There is no basis in law or regulation for the claim that any national or international awards, any publications by or about the alien, and any achievements or recognition earned while the person was a student, are somehow ineligible for consideration toward O-1 classification on the sole ground that they were earned while in student status. It’s ultra vires; they are making it up. In this context, be mindful not to damage your own case by claiming that student awards are professional ones.

April 18, 2011

USCIS Director Ali Mayorkas may not know much about what his field offices are doing, but he knows the law and regulations, and he’s a very smart cookie. I really do believe he wants to be liked by the business communities his Service Centers are so busy disemboweling.

Some immigration attorneys present in person at the April 13 Stakeholder Engagement on O & P visas came to the conclusion that what we now have as a result of that meeting is an opportunity to gather industry examples from a wide variety of disparate real-world business settings where the O-1 visa has been relied upon, in order to help the Service craft more-expansive groups of definitions of what constitutes an O-1 “employer” under agent scenarios, for purposes of compliance with the law. The statute does specify “upon petition of the importing employer” at INA 214(c)(1), as the Director quickly reminded me while I was describing the real-world scenarios of creative artists, who often do not have anything that resembles a traditional employer-employee relationship.

I noted that the nature of original creative endeavors with a defined work opportunity in the US, such as a fine artist under contract with a US gallery, or a musical artist under contract to make recordings for a production company or record label, typically leaves the individual artist firmly in control of both the content and timeline of their own work product. These arrangements leave the business end of things, such as selection, editing, presentation, pricing, promotion, & sales of the artistic work product, and identification & growth of the US market for the work product, to the agent. I was caught off guard and pressured into identifying the agent as the “employer” in these scenarios, but in fact the identity of the “employer” is truly bifurcated. Substantive control over the work rests with the artist, and administrative control over the how, when & where of selling the artist’s product (i.e., all business aspects of promoting & selling the creative product) rest with the agent.

However, the Service has been flexible on this issue in the case of models, where the US “employers” are the end-users with whom the petitioning agency is unlikely to have any contracts in advance of the dates of service. For the modeling & fashion industry, the Service has been willing to rely on the nature of the models’ ongoing relationships with their US agents. In light of this, the Director suggested that for creative artists, perhaps the notion of exclusivity of the contract with the US agent may be taken into account and may have a similar impact.

Of course, we all would have had more time to reflect on & offer a multitude of carefully considered definitions of who the “employer” is in different industries under the agent categories detailed in the Executive Summary of the March 24 O-1 Agent Stakeholder Meeting had USCIS released it with more advance notice. However, since it was published around 10am on the morning of the recent O & P Stakeholder Engagement, practitioners and other stakeholder organizations had limited opportunity to review the Executive Summary before attending to the April 13 meeting.

Basically, wherever the petition is NOT filed directly by a US employer, we have to find a way to squeeze reality into three types of “employer” bins under the regulatory types of agent relationships, as listed under the headers in the Executive Summary – which reflect the regulatory subparagraphs at 214.2(o)(2)(E)(1 – 3). These are (1) Agent Performing the Function of an Employer, (2) Person or Company in Business as an Agent, or (3) Foreign Employer Filing Through a US Agent.

The problem inherent in even starting from the type of reasoning embodied in the January 8, 2010 USCIS memo defining H1B employers, and branching out from there in order to structure sensible O-1 definitions of “employment” for industries that rely on a wide variety of creative piece-work, flat-fee, hourly, or commission-like percentage payment schemes for freelance and independent contractor work, is that there aren’t just three distinct frameworks in the real world of arts and entertainment businesses. There are infinite permutations of how the services or work-products of individuals are solicited, engaged and paid for. Attempting to fit all of them into boxes labeled “employer” is a terrifying prospect for businesses that face a host of business, liability, tax and other reasons to avoid that very label.

If you represent an organization that files its own O-1 visa petitions, or if you are an immigration attorney with clients in any field who are not traditional employers, and you make use of one or more types of O-1 Agent filings, please provide examples. Describe how your clients’ industries work, and how they would like to see “employer” defined!

If you have any questions about employers in agent petitions, contact Karin Wolman today – she is here to help!

January 28, 2011

Deemed Exports & the New Certification Requirement, Effective 2/20/2011

The new certification requirement on page 5 of the revised Form I-129 (at part 6, page 5) is quite burdensome. It will require increased due diligence and compliance efforts on the part of US employers who employ foreign workers, or who place foreign students as interns or trainees.

Under both the Export Administration Regulations of the US Department of Commerce (“EAR”), and the International Traffic in Arms Regulations of the US Department of State (“ITAR”), a broad array of technologies are controlled, some of them quite common. These technologies will be “deemed exported”, triggering the requirement for an export license, if the technology or technical data relating to it is released domestically to a foreign national present in the United States, other than a Lawful Permanent Resident or asylee. Release of any controlled technical data to non-immigrant workers – such as those in H, L, E or O visa status – or to non-immigrant students, interns or trainees in F, J or M visa status – may trigger the obligation for the company to obtain an export license before releasing any such data to the foreign national.

Fines for export control violations – such as a release of any controlled technical data to a foreign national which requires an export license – start at $250,000 per violation, with no upper limit. Some violations entail criminal penalties as well.

These “export control” regulations can apply to service companies whose operations are domestic, which are not subcontractors for the US military or its suppliers, and do not manufacture anything. Even small firms that have internal staff or Information Technology consultants developing software applications must check these regulations carefully to ensure that they are in full compliance, before signing the Certification on page 5 of the Form I-129. At least four of the ten categories under the Export Administration Regulations contain listed items which may have broad civilian application in innocent end uses, particularly by IT workers and management consultants – Computers, Telecommunications, Information Security, and Sensors. The nature of end use does not preclude a listed technology from requiring an export license. For example, while there is a general license exception (i.e. no export license is required) for commercially-available mass-market software, this exception does not apply to portions of the software covered under Information Security regulations, relating to encryption technologies – such as Windows Internet security software for more recent OS versions, Vista and Windows 7. A determination as to whether an export license is required in a given case may depend on the intended and/or actual end-use, applicability of the underlying reasons for control of the technology, and the nationality or citizenship of the person(s) to whom it will be released.

Any release of specific information about or containing a controlled technology to a foreign national in the US may be a deemed export of that technology. A “release” of data means the information is available visually or verbally, and may include casual verbal discussion by others that can be overheard by the foreign national, exposure of technical documents left out in the open in a room to which the foreign national has access, or any information on a computer system or downloadable via link to which the foreign national has access. In most cases where a license is required, the export license must be specific to the controlled technologies to be released, and also to the named foreign national.

The citizenship of the foreign national comes into play, so compliance determinations must be made on an individual basis. A controlled technology that does not ordinarily require an export license may nonetheless require one if it is to be released to a citizen of certain “bad actor” countries, such as Cuba, Iran, North Korea, Syria or Sudan.

Compliance with EAR and ITAR should not be news to any companies that consciously engage in export business, nor to manufacturers who have sold parts or supplies to military contractors or subcontractors. However, the new certification requirement for all I-129 visa petitions will entail huge “new” due diligence responsibilities for those US employers not accustomed to thinking of themselves as “exporters”. All such organizations will now have to undertake to research, monitor and ensure their own ongoing compliance under the export regulations of the Department of Commerce & the Department of State in order to employ foreign workers.

An update was published following a March USCIS teleconference with the Department of Commerce, including contacts for further questions.