Mid-November 2017 Immigration Update

Headlines:

  1. DHS Announces Delayed Termination of TPS for Nicaragua, Six-Month Extension for Honduras – Acting Secretary of Homeland Security Elaine Duke is terminating TPS for Nicaragua with a delayed effective date of 12 months, to January 5, 2019. She also determined that additional information is necessary regarding the TPS designation for Honduras before a determination can be made. As a result, the TPS designation for Honduras will be automatically extended for 6 months, to July 5, 2018.
  2. U.S. Resumes Limited Visa Operations in Turkey – The U.S. Mission in Turkey announced that embassies and consulates have resumed “limited visa services” in Turkey.
  3. USCIS Warns About Scams Requesting I-9 Forms Via Email – USCIS recently announced that employers have received scam emails requesting Form I-9, Employment Eligibility Verification, information. The emails claim to come from USCIS but do not. Employers are not required to submit Forms I-9 to USCIS but must retain them for a period of time.
  4. E-Verify Employers Can Request Authorization to Post Logo – E-Verify employers can now request authorization from USCIS to post the trademarked E-Verify logo on their websites, presentation materials, and brochures “to let everyone know they are committed to maintaining a legal workforce.”
  5. Firm In The News…

Details:

  1. DHS Announces Delayed Termination of TPS for Nicaragua, Six-Month Extension for Honduras

Acting Secretary of Homeland Security Elaine Duke announced on November 6, 2017, her decision to terminate the temporary protected status (TPS) designation for Nicaragua with a delayed effective date of 12 months to allow for an orderly transition before the designation terminates on January 5, 2019. She also determined that additional information is necessary regarding the TPS designation for Honduras before a determination can be made. As a result, the TPS designation for Honduras will be automatically extended for 6 months from the current January 5, 2018, expiration date to July 5, 2018.

The Department of Homeland Security (DHS) said the decision to terminate TPS for Nicaragua was made after a review of the conditions on which the country’s original 1999 designation were based and whether those “substantial but temporary” conditions prevented Nicaragua from adequately handling the return of its nationals. Based on all available information, Acting Secretary Duke determined that those substantial but temporary conditions caused in Nicaragua by Hurricane Mitch no longer exist, and thus the current TPS designation must be terminated.

DHS said that the 12-month delay in the TPS expiration for Nicaragua “will provide time for individuals with TPS to seek an alternative lawful immigration status in the United States, if eligible, or, if necessary, arrange for their departure. It will also provide time for Nicaragua to prepare for the return and reintegration of their citizens.”

Regarding Honduras, Acting Secretary Duke said she concluded that despite receiving input from a broad spectrum of sources, additional time is necessary to obtain and assess supplemental information pertaining to country conditions in Honduras to make an “appropriately deliberative” TPS designation determination. Based on the lack of definitive information regarding conditions on the ground compared to pre-Hurricane Mitch, the Acting Secretary has not made a determination yet, thereby automatically extending the current TPS designation for Honduras for six months.

DHS noted, however, that it is possible that the TPS designation for Honduras will be terminated at the end of the 6-month automatic extension “with an appropriate delay.”

DHS said that it recognizes the difficulty facing citizens of Nicaragua, “and potentially citizens of other countries,” who have received TPS designation for “close to two decades.” Acting Secretary Duke called on Congress “to enact a permanent solution for this inherently temporary program.”

Nicaraguans and Hondurans with TPS will be required to reapply for employment authorization documents to legally work in the United States until the end of their TPS extensions. Further details will appear in a Federal Register notice, DHS said.

The announcement is at https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-protected-status-nicaragua-and.

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  1. U.S. Resumes Limited Visa Operations in Turkey

The U.S. Mission in Turkey announced on November 6, 2017, that embassies and consulates have resumed “limited visa services” in Turkey.

The U.S. Mission noted that “[w]e continue to have serious concerns about the existing cases against arrested local employees of our Mission in Turkey. We are also concerned about the cases against U.S. citizens who have been arrested under the state of emergency. U.S. officials will continue to engage with their Turkish counterparts to seek a satisfactory resolution of these cases.”

The U.S. Mission also said, however, that it had received “initial high-level assurances” that no additional local employees of the U.S. Mission in Turkey are under investigation. “We have also received initial assurances from the Government of Turkey that our local staff will not be detained or arrested for performing their official duties and that Turkish authorities will inform the U.S. government in advance if the Government of Turkey intends to detain or arrest a member of our local staff in the future.”

The U.S. Mission also said that Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens “are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey.”

As background, on October 8, 2017, the U.S. Department of State announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas included business, tourist, student, and temporary work authorization visas. The suspension also applied to diplomatic and official visas.

The U.S. Mission said that those with questions regarding canceled appointments or other issues resulting from these issues should see https://tr.usembassy.gov/visas/nonimmigrant-visas/.

The latest statements are at https://tr.usembassy.gov/statement-u-s-mission-turkey-re-opening-limited-visa-services-turkey/ and https://tr.usembassy.gov/visas/nonimmigrant-visas/.

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  1. USCIS Warns About Scams Requesting I-9 Forms Via Email

U.S. Citizenship and Immigration Services (USCIS) recently announced that employers have received scam emails requesting Form I-9, Employment Eligibility Verification, information. The emails claim to come from USCIS but do not. Employers are not required to submit Forms I-9 to USCIS but must retain them for a period of time.

USCIS said that the scam emails have been coming from a fraudulent email address: news@uscis.gov. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address, and a fraudulent download link to a non-government web address (uscis-online.org). “Do not respond to these emails or click the links in them,” USCIS warned.

Those who believe they received a scam email requesting I-9 information from USCIS may report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/GettingStarted?OrgCode=USDOEVCC&NextQID=261#crnt. Those who are uncertain may forward the suspicious email to the USCIS webmaster, uscis.webmaster@uscis.dhs.gov. USCIS “will review the emails received and share with law enforcement agencies as appropriate.”

USCIS scam alerts and related resources are at https://www.uscis.gov/avoid-scams/common-scams.

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  1. E-Verify Employers Can Request Authorization to Post Logo

E-Verify employers can now request authorization from U.S. Citizenship and Immigration Services to post the trademarked E-Verify logo on their websites, presentation materials, and brochures “to let everyone know they are committed to maintaining a legal workforce.”

For more information or to apply, see the Trademark and Logo Usage Guidelines website at https://www.uscis.gov/e-verify/about-program/trademark-and-logo-usage-guidelines. The guidelines and licensing agreement are at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/everifytrademark.pdf.

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  1. Firm In The News

Cora-Ann V. Pestsaina published The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions on November 13, 2017.

Cyrus D. Mehta was a Speaker, Attacks on Business Immigration, AILA-NY Chapter Monthly Meeting, New York, NY, November 13, 2017

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November 2017 Immigration Update

Headlines:

  1. Ban on Refugees Expires; Trump Administration Calls for Additional Vetting for 11 Nationalities During 90-Day Review Period – The Trump administration’s 120-day ban on refugee admissions expired on October 24, 2017. On the same day, the Department of State announced that additional in-depth review is needed for refugees of 11 nationalities identified as potentially posing a higher risk to the United States.
  2. USCIS Increases Scrutiny of Certain Nonimmigrant Extension Requests – The agency noted that previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy.
  3. State Dept. Restarts DV Lottery Due to Technical Glitch, Excludes Oct. 3-10 Entries – The Department of State had a recent technical problem on the Diversity Visa lottery site and has reopened a new full entry period, which will end November 22, 2017, at 12 noon ET. The Department also is excluding October 3-10 entries and said that those who applied during that period can apply again.
  4. USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions – USCIS recently changed the direct filing addresses for certain petitioners using Form I-129, Petition for a Nonimmigrant Worker.
  5. Sen. Grassley Urges Reconsideration of Trade NAFTA Nonimmigrant Classification – Sen. Grassley’s letter, to Ambassador Robert E. Lighthizer, the U.S. Trade Representative, noted that “[g]iven President Trump’s willingness to reevaluate—or reject—any and all of the NAFTA agreement, in the interest of protecting American workers, I recommend that you specifically include temporary workers in the ongoing NAFTA review.”
  6. Firm In The News…

 Details:

  1.  Ban on Refugees Expires; Trump Administration Calls for Additional Vetting for 11 Nationalities During 90-Day Review Period

The Trump administration’s 120-day ban on refugee admissions expired on October 24, 2017. On the same day, the Department of State announced that “additional in-depth review is needed with respect to refugees of 11 nationalities previously identified as potentially posing a higher risk to the United States. Admissions for applicants of those 11 potentially higher-risk nationalities will resume on a case-by-case basis during a new 90-day review period.”

Rex Tillerson, Secretary of State; Elaine Duke, Acting Secretary of Homeland Security; and Daniel Coats, Director of the Office of the Director of National Intelligence, sent a related memorandum on October 23, 2017, to President Trump. The State Department announcement and memo do not list the 11 countries, but according to reports, the countries appear to be Egypt, Iran, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen; and Palestinians living in those countries. The memo notes that the 11 countries were those designated on the Security Advisory Opinion (SAO) list, which was established following the 9/11 terrorist attacks on the United States and has evolved over the years through interagency consultations.

The memo states that during the 90-day review period, while a “detailed threat analysis” is being conducted of those 11 countries, the Secretaries of State and Homeland Security “will temporarily prioritize refugee applications from other non-SAO countries,” and that resources that may have been dedicated to processing nationals or stateless persons of SAO countries will be reallocated during that period “to process applicants from non-SAO countries for whom the processing may not be as resource intensive.”

The Department also announced on October 24 that “[f]or family members who are ‘following-to-join’ refugees that have already been resettled in the United States, additional security measures must also be implemented for all nationalities. Admissions of following-to-join refugees will resume once those enhancements have been implemented.” The October 23 memo states that Mr. Tillerson, Ms. Duke, and Mr. Coats “have jointly determined that additional security measures must be implemented before admission of following-to-join refugees can resume.” Those measures are to include “adequate screening mechanisms” that are “similar to the processes employed for principal refugees.”

An Executive Order issued by President Trump on October 24, 2017, states, among other things, that within 180 days, the Attorney General will “provide a report to the President on the effect of refugee resettlement in the United States on the national security, public safety, and general welfare of the United States. The report shall include any recommendations the Attorney General deems necessary to advance those interests.”

The Executive Order also states that within 90 days of October 24, 2017, and annually thereafter, the Secretary of Homeland Security will determine “whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated, and, if so, what those modifications or terminations should be.”

Meanwhile, President Trump announced that the maximum number of refugee admissions to the United States in fiscal year 2018 will be lowered to 45,000, which is the lowest number since the Refugee Act was passed in 1980.

The U.S. Supreme Court said on October 24, 2017, that it would not consider the merits or legality of the Trump administration’s travel ban, issued in March, due to its expiration. Other challenges to new Presidential orders are working their way through lower courts.

The Department of State’s October 24 announcement is at https://www.state.gov/r/pa/prs/ps/2017/10/275074.htm. The October 23 memo is at https://www.state.gov/documents/organization/275306.pdf. President Trump’s related Executive Order is at https://www.whitehouse.gov/the-press-office/2017/10/24/presidential-executive-order-resuming-united-states-refugee-admissions. The White House announcement of the 45,000 refugee cap for FY 2018 is at https://www.whitehouse.gov/the-press-office/2017/09/29/president-donald-j-trump-taking-responsible-and-humanitarian-approach.

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  1. USCIS Increases Scrutiny of Certain Nonimmigrant Extension Requests

Under updated policy guidance, U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories. The guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.

The agency noted that previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy, USCIS said.

USCIS explained that as before, adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The updated guidance instructs officers to apply the same level of scrutiny when reviewing nonimmigrant visa extension requests, even where the petitioner, beneficiary, and underlying facts are unchanged from a previously approved petition. “While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner,” USCIS said, adding that the adjudicator’s determination “is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility.”

The Alliance of Business Immigration Lawyers (ABIL) advises employers and employees to treat nonimmigrant extension applications as no longer routine, and to include the same documentation as required in an initial petition. ABIL also advises allowing more time to file such applications; 180 days before the current petition expires is recommended. Nonimmigrants may want to consider accelerating permanent residence processing. Litigation of extension petitions may be possible in some cases. Contact your ABIL attorney for advice and help in specific situations.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-updates-policy-ensure-petitioners-meet-burden-proof-nonimmigrant-worker-extension-petitions. The updated policy guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf.

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  1. State Dept. Restarts DV Lottery Due to Technical Glitch, Excludes Oct. 3-10 Entries

The U.S. Department of State had a recent technical problem on its Diversity Visa (DV) green card lottery site and has reopened a new full entry period, which started October 18, 2017, at 12 noon ET and will end November 22, 2017, at 12 noon ET. The Department also is excluding October 3-10 entries and said that those who applied during that period can apply again:

Due to a technical issue, the DV-2019 entry period that began on October 3 has been closed. Entries submitted during October 3-10 are not valid and have been excluded from the system; they will not count as a duplicate entry. The technical issue has been resolved and a new full entry period will begin at noon, U.S. Eastern Daylight Time on Wednesday October 18, 2017 and will run until noon Eastern Standard Time on Wednesday November 22, 2017. Only entries submitted during this period will be accepted and considered for selection in the lottery. Please throw away any confirmation number or other documentation that you have if you submitted an entry during Oct. 3-10 Entries will NOT be accepted through the U.S. Postal Service.

The statement and a link to the DV-2019 instructions, registration, and status check are at https://www.dvlottery.state.gov/(S(dcwxi52os10uan4v5iqjeall))/default.aspx. General information about the diversity lottery green card program is at https://travel.state.gov/content/visas/en/immigrate/diversity-visa/entry.html.

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  1. USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions

U.S. Citizenship and Immigration Services (USCIS) recently changed the direct filing addresses for certain petitioners using Form I-129, Petition for a Nonimmigrant Worker. The changes include:

  • Petitioners should now file Form I-129 according to the state where the company or organization’s primary office is located. Previously, petitioners filed their I-129s based on the beneficiary’s temporary employment or training location.
  • Petitioners located in Florida, Georgia, North Carolina, and Texas should now file Form I-129 at the California Service Center.

Starting November 11, 2017, USCIS may reject Form I-129s that are filed at the wrong service center. Instructions on where to file are at https://www.uscis.gov/i-129-addresses. The related announcement is at https://www.uscis.gov/news/alerts/changes-direct-filing-addresses-form-i-129-petitions.

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  1. Sen. Grassley Urges Reconsideration of Trade NAFTA Nonimmigrant Classification

 Sen. Charles Grassley (R-Iowa), chairman of the Senate Committee on the Judiciary, sent a letter on October 23, 2017, to Ambassador Robert E. Lighthizer, the U.S. Trade Representative, to express “ongoing concerns regarding the uncapped TN [Trade NAFTA] nonimmigrant classification,” which is a component of the North American Free Trade Agreement (NAFTA). Sen. Grassley asked Mr. Lighthizer to “consider renegotiating the guest worker provisions of NAFTA as part of any broader examination of the treaty.”

Sen. Grassley’s letter notes, among other things, that given the Trump administration’s “focus on protections for the American worker, including efforts to rein in the H-1B program, businesses will be looking for alternative sources of cheap foreign labor to exploit.” He suggests that employers are likely to turn to the TN visa category. The letter notes that the TN visa, “if left unchanged in its current form, could well undermine the administration’s broader efforts.” He notes that the number of TN visa workers employed in the United States has been growing in recent years and that available statistics suggest that “the number could be approaching 100,000.”

Sen. Grassley’s letter noted, “Given President Trump’s willingness to reevaluate—or reject—any and all of the NAFTA agreement, in the interest of protecting American workers, I recommend that you specifically include temporary workers in the ongoing NAFTA review.”

A statement from Sen. Grassley and the full text of the letter are at https://www.grassley.senate.gov/news/news-releases/grassley-encourages-review-high-skilled-worker-program-nafta-negotiations.

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  1. Firm In the News

 Cyrus D. Mehta published Stopping H-1B Carnage on October 23, 2017; The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests on October 30, 2017; and with Sophia Genevose-Halvorson Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention on November 5, 2017.

Cyrus D. Mehta was a Speaker, Dissecting the Skilled Worker Regulations, LAAC District Chapter of AILA Global Citizenship and Foreign National Conference, Casa de Campo, Dominican Republic, November 3, 2017.

Cyrus D. Mehta was a Speaker, Beyond the Wall: The New Administration’s Impact on Global Immigration, organized by ABA Section of International Law, 2017 Fall Meeting, Miami, FL, October 27, 2017.

 

 

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October 2017 Global Immigration Update

Feature Article

VISA OPTIONS FOR INVESTORS: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to visa options for investors.

Country Updates

BELGIUM – A new Act implements a European Union directive regarding new rules on assignment.

CANADA – The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) came into force on September 21, 2017. This article discusses provisions relating to work and business provisions.

ITALY – Italy introduces a new type of tourist visa and launches a new online consular electronic Schengen visa form. This article also clarifies guidance on “business” and “work” activities for Schengen short-term assignments.

TURKEY – The United States and Turkey have mutually suspended certain visa services.

Feature Article

VISA OPTIONS FOR INVESTORS: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to visa options for investors.

Canada

While at present there is no Canadian federal immigrant investor program, one can still apply to immigrate to Canada as a permanent resident under the Québec Immigrant Investor Program.

History

Canada’s previous immigrant investor program was created in 1986 and went through a number of changes over the years. The hallmark of the program was that it provided for a passive, not at-risk, investment.

On June 19, 2014, Bill C-31 became law in Canada and federal immigrant investor program applications that were in the backlog were terminated and no new applications accepted.

Québec Immigrant Investor Program

The Québec Immigrant Investor Program, which also began in the 1980s, has allowed thousands of families to immigrate permanently to Canada. In many cases, these families might not otherwise have qualified to immigrate (due to education, language, and/or age barriers) under any of the other Canadian or Québec permanent immigration programs.

To be eligible for the Québec Immigrant Investor Program, an applicant must:

  1. Have, alone or with an accompanying spouse, including a de facto spouse, net assets of at least $1.6 million Canadian dollars (approximately $1.2 million U.S. dollars) obtained legally, excluding the amounts received by donation less than six months before the date on which the application was filed;
  2. Have experience in management in a legal farming, commercial, or industrial business, or in a legal professional business where the staff, excluding the investor, occupies at least the equivalent of two full-time jobs, or in an international agency or a government or one of its departments or agencies (note that “management experience” is defined as the exercise, for at least two years in the five years preceding the application for a selection certificate, of duties related to the planning, management, and control of financial resources and of human or material resources under the person’s authority; experience does not include experience acquired in the context of an apprenticeship, training, or specialization process attested to by a diploma); and
  3. Intend to settle in the province of Québec and sign an agreement to invest $800,000 Canadian dollars (approximately $610,000 U.S. dollars) with a financial intermediary (broker or trust company) authorized to participate in the Investor Program. Currently, there are 18 financial intermediaries authorized by the Québec government to participate in the Québec Immigrant Investor Program. After five years, the monies are returned to the applicant but without interest. Alternatively, the $800,000 Canadian dollars can be financed through the financial intermediary.

The assessment of an application will also take into account other factors such as age, the nature and duration of professional training, and language skills.

At present, the Québec Immigrant Investor Program is the only possible passive (not at-risk) immigrant investor program that exists in Canada.

Application Cap and Processing Times

For the 2017–2018 Québec fiscal year (April 1, 2017–March 31, 2018), Québec will accept 1,900 Immigrant Investor Program applications (with a cap of 1,330 for citizens of China). Interestingly, the 1,900 overall cap does not apply to those who have advanced intermediate knowledge of the French language as attested to by a standardized French test recognized by the Québec government. The application period began May 29, 2017, and runs through February 23, 2018.

Processing times are approximately 10 to 14 months (most applicants are interviewed by the Québec government) for the Québec portion of the process. It then takes an additional 12 to 30 months, approximately, for the Canadian government to complete the immigration process (the Canadian government’s role is to check that there are no medical, criminal, or security inadmissibility issues).

Source of Funds

Quebec carefully scrutinizes the source of all of a Québec Immigrant Investor Program applicant’s funds, and not just the minimum net worth of $1.6 million Canadian dollars. The onus is on the applicant to transparently explain in a detailed prescribed narrative document (and possibly at an interview) all of his or her past and present economic activities and how the assets were acquired.

Canadian Permanent Residence—Residency Obligations and Citizenship

Once Québec and Canada approve an application, the applicant, his or her spouse (including common-law or same-sex spouse) and his or her children all become Canadian permanent residents and can reside in any Canadian province. To maintain Canadian permanent resident status, a Canadian permanent resident normally must be physically present in Canada for at lease 730 days in every five-year period.

Canada does not have a citizenship-by-investment program and, as such, a foreign national must be “naturalized” to become a Canadian citizen.

As of the fall of 2017, a Canadian permanent resident can apply for Canadian citizenship after being physically present in Canada for 1,095 days during the five years immediately before the date of his or her application for Canadian citizenship.

Alternative Programs

While there are no other passive Canadian immigrant investor or entrepreneurial programs, options exist to apply for Canadian permanent resident status under other business-related programs, which include

  1. Start-up visa program
  2. Self-employed program (in cultural activities or athletics at a world-class level)
  3. Provincial nominee business/entrepreneur programs

Conclusion

The Québec Immigrant Investor Program is a viable passive investment option for immigrating to Canada with no risk. As such, it is worth considering by investor applicants who have management experience and want themselves and their immediate family members to settle in Canada and become Canadian permanent residents.

Italy

Italy welcomes high-net-worth individuals with new favorable tax rates and a dedicated visa option for foreign investors.

The Italian Budget Law, effective January 1, 2017, contained several measures aimed at attracting foreign investments and encouraging high-net-worth (HNW) individuals to move to Italy. Among these are the introduction of a preferential tax regime for wealthy individuals who take up tax residency in Italy and a new visa program for HNW investors that facilitates the procedure for entry and residence in Italy. Until now, Italian immigration law, unlike other European Union countries, did not provide for a dedicated entry-for-investment visa. Below are highlights of these new efforts under the Italian Budget Law.

Favorable Flat-Tax Regime

On March 8, 2017, the Italian Revenue Agency (Agenzia delle Entrate) issued flat-tax-regime implementing provisions. The law is now fully effective, and guidelines and a checklist of requirements are available. Individuals who become Italian tax residents can take advantage of a substitute tax regime on their foreign income. Regardless of amount, foreign income will only be subject to a yearly flat tax of €100,000. Close family members can also benefit from the favorable tax measures: a flat tax of just €25,000, instead of €100,000, will be applied to their foreign income. Moreover, opting for the new regime guarantees full exemption from reporting requirements with respect to financial and non-financial assets abroad and from succession duties on assets outside Italy. To qualify for the option, the applicant must not have been resident in Italy for at least nine tax years during the previous 10 years; eligible taxpayers can ask to benefit from the substitute tax regime when filing their tax returns; before then, it is possible to submit a preliminary ruling (interpello) to the Italian Revenue Agency.

Dedicated Visa Option: Investor Visa

New provisions have been introduced in Italian immigration law in the framework of promoting foreign investments. An “investor visa” will shortly be available to foreigners intending to invest in Italy under one of the following options:

• €2 million in government bonds, to be kept for at least two years
• €1 million in the share capital of an Italian company, reduced to €500,000 if the company is an innovative start-up
• €1 million in philanthropic donations (culture, education, immigration management, scientific research, or cultural heritage)

Currently, the government is working on implementing an online system for applications that is expected to be launched by the end of November. Applications will be possible only after the online platform is published and the relevant operations manual is ready.

The  main points of the decree include:

  • The authority in charge of evaluating the applicant’s eligibility conditions will be a special committee made up of various authorities, including representatives of the Ministry of Economic Development, Ministry of Interior, Ministry of External Affairs, tax authorities, and financial police;
  • The applications will be managed through an online platform yet to be created, as noted above;
  • Among the documents required, the applicant must submit a police clearance for each country where he or she has lived in the previous 10 years;
  • The application will follow three basic steps: online clearance (nulla osta) application; visa application at the consulate in the foreign country; and residence permit application in Italy;
  • Within three months from the date of entry, the applicant must provide documented evidence of the investment or donation. Failing to do so will result in denial of the residence permit;
  • In case of disinvestment before the terms or if the holder is untraceable, the residence permit can be revoked at any time;
  • After two years, the residence permit can be renewed for an additional three years subject to approval of the committee.

The investor visa implementing decree is at http://www.sviluppoeconomico.gov.it/index.php/it/normativa/decreti-interministeriali/2036986-decreto-interministeriale-21-luglio-2017-nuovo-visto-per-investitori (in Italian).

Peru

This article provides brief comments on the investor visa in Peru.

On January 7, 2017, the New Law of MIGRACIONES, Legislative Decree No. 1350, was published in the Official Gazette, “El Peruano.” The new law and regulations, approved by Supreme Decree No. 007-2017-IN, have been in force since March 1, 2017.

This new immigration legislation has instituted a series of changes and the creation of new migratory statuses. One of these changes concerns investors. The new law allows a foreigner to establish, develop, or manage one or more lawful investments in Peru.

The amount of the investment and other conditions are established by regulation. Eligibility requirements include:

A) An investment equal to or higher than 500,000.00 Peruvian Sol (PEN), equivalent to approximately US$155,275. The investment amount can be modified by Superintendence Resolution.

B) Serving only as manager or director of a foreign person’s own company, for which he or she must comply with the corresponding labor or tax rules. This position of the foreigner is not included in quotas for the local company’s payroll, established in Legislative Decree No. 689 (Law of Hiring of Foreign Personnel) and its regulations. Under no circumstances may the foreign person support the investment through the transfer of shares.

MIGRACIONES is the authority that grants this migratory status. The Investor visa allows multiple entries. The foreign individual receives a resident permit (foreign card/carné de extranjería) for 365 days, renewable while the same conditions exist.

Procedurally, there are two alternative ways to obtain Investor status. First, an “obtainment visa process” implies that all the necessary documentation is submitted at MIGRACIONES offices in Peru; however, the applicant remains abroad initially. Once his or her visa is approved, he or she collects it from the Peruvian consulate previously chosen. Then he or she comes to Peru to finish the process. This procedure takes 30 working days from the time of initial filing. Alternatively, a “change of immigration status (in-country) process” implies that the foreign national enters Peru in tourist or business migratory status, then applies at MIGRACIONES for the Investor visa and submits the required documentation. This procedure takes 60 working days from the time of initial filing.

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Country Updates

BELGIUM

A new Act implements a European Union directive regarding new rules on assignment.

An Act of December 11, 2016, effective December 30, 2016, implemented EU Directive 2014/67/EU regarding assignment. This Act provides that the Belgian inspection services can ask the foreign posting undertaking to submit four types of documents:

  1. Copy of employment contract (or a similar document),
  2. Miscellaneous information (information regarding foreign currency for payment of salary, the allowances or   benefits in kind related to employment abroad, and the conditions for repatriation),
  3. Overview of the working hours (start, end, and duration), and
  4. Proof of salary payment.

This list of documents can be modified by an implementing Royal Decree.

Furthermore, the inspection services can ask for a translation of the documents into one of the Belgian official languages (Dutch, French, German) or English. Waivers/exemptions can be created by Royal Decree, based on the limited duration of the activities in Belgium or the specific nature of these activities. After the termination of the posting, the documents should be kept available for one year. During and after the assignment (one year), the documents can be kept in paper or electronic form.

The posting undertaking also has to designate a person to liaise with the Belgian inspection services. This person must forward documents (see #2 above) to the inspection services, if requested. Information regarding the person to liaise must be noted in the Limosa declaration: This change has been implemented by a Royal Decree dated September 14, 2017, and will take effect on October 1, 2017. The following information must be mentioned:

•Name, first names, and date of birth;
•Capacity of person to liaise; and
•Address (physical and email), and telephone number.

The person to liaise can be the employer or a third person. During parliamentary discussions of the Act, it was confirmed that the person to liaise can be domiciled abroad.

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CANADA

The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) came into force on September 21, 2017. This article discusses provisions relating to work and business provisions.

Chapter 10 of CETA contains various labor mobility provisions for citizens of the European Union (EU) who are seeking entry into Canada for work and/or business-related purposes.

The provisions of CETA apply to Canada and to EU members: Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden, and the United Kingdom.

CETA is expected to facilitate the entry into Canada of three main categories of business visitors and professionals as described below:

Business Visitors

CETA adds to the existing Business Visitor provisions in the Immigration and Refugee Protection Regulations by extending the scope within which eligible candidates may seek entry into Canada for business purposes.

Under CETA, specific provisions have been established for Short-Term Business Visitors and for Business Visitors for Investment Purposes to enter Canada. Annex 10-D of CETA provides a detailed list of all the activities permissible for short-term business visitor entries into Canada, which differs from the business visitor activity list provided in the North American Free Trade Agreement (NAFTA). Notable examples under CETA include entry for business visitors for meetings and consultations, for training seminars, and for commercial transactions.

In addition to Short-Term Business Visitors, individuals can enter Canada as Business Visitors for Investment Purposes. A business visitor for investment purposes is described as “an employee in a managerial or specialist position who is responsible for setting up an enterprise but who does not engage in direct transactions with the general public and will not receive direct or indirect remuneration from a Canadian source.”

Individuals seeking to enter Canada under either of these Business Visitor categories can be granted entry into Canada for a maximum duration of 90 days in any six-month period.

Professionals

Two types of professionals can obtain Work Permits under CETA: contractual service suppliers and independent professionals (self-employed professionals).

To be eligible for these Work Permit categories, contractual service suppliers or independent professionals must be employed in the EU, their employer must not have an existing establishment in Canada, and the employer (or the individual in the case of an independent professional) must have a contract to provide services to a Canadian customer in Canada. Unlike Appendix 1603.D.1 of NAFTA, Annex 10-E of CETA includes a list of the service sectors within which contractual service suppliers or independent professionals can obtain a Work Permit. Thirty-seven service sectors are available to contractual service suppliers, including 17 for independent professionals. Most occupations found under these service sectors are limited to managerial and professional occupations (skill levels 0 and A of the National Occupational Classification (NOC) system).

These types of Work Permits are exempt from the standard Labour Market Impact Assessment (LMIA) process and can be issued for a maximum duration of 12 months. Work Permits under this category can be renewed at an immigration officer’s discretion.

With the exception of certain Romanian and Bulgarian citizens, eligible candidates will be able to apply for these LMIA-exempt Work Permits directly at a Canadian Port of Entry. Romanian and Bulgarian citizens who require a Temporary Resident Visa (TRV) to enter Canada will be able to benefit from the two-week processing for Work Permits under the Global Skills Strategy, an initiative launched by Immigration, Refugees and Citizenship Canada (IRCC) on June 12, 2017.

Key Personnel

  • Intra-Corporate (Company) Transferees and Graduate Trainees

CETA offers both a Senior Personnel and a Specialist Work Permit category akin to what is available under NAFTA as a Senior Manager or a Specialized Knowledge worker. However, CETA uniquely introduces a new Work Permit subcategory under the Intra-Corporate (company) stream specifically for Graduate Trainees. Under this subcategory, a candidate who is a citizen of the EU, who possesses a university degree, and who has been offered employment in a subsidiary or a branch of their employer abroad can obtain a one-time 12-month Work Permit to enter Canada for career development purposes or to receive training in the company’s business techniques and methods.

  • Investors

Another similarity between NAFTA and CETA is the Investor Work Permit category. Under the new provisions of CETA, an investor candidate who can obtain a Work Permit is someone who is employed by a company that “has committed or is in the process of committing a substantial amount of capital” into the Canadian economy and who will “establish, develop or administer the operation of an investment in a capacity that is supervisory or executive.”

It will also be possible for eligible candidates to apply for these LMIA-exempt Work Permits directly at a Canadian Port of Entry, with the same limitations described above for certain Romanian and Bulgarian citizens.

For more information on CETA (business visitors), see http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/business.asp. For more information on CETA (investors), see http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/investor.asp.

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ITALY

Italy introduces a new type of tourist visa and launches a new online consular electronic Schengen visa form. This article also clarifies guidance on “business” and “work” activities for Schengen short-term assignments.

New tourist visa. The Italian ministry of foreign affairs has introduced a new category of tourist visa, “Turismo—Visita famiglia/amici” (TourismVisit to family/friends), for family members or friends of individuals residing in Italy who wish to visit them for a maximum period of 90 days within 180 days.

Eligibility requirements are similar to the standard tourist visa (e.g., evidence of means of support during the stay, health insurance), but the key factor is an invitation letter from the family member or friend in Italy, confirming availability to host the visa applicant.

New online Schengen visa form. The Italian government has launched a new Web portal, “E-@pplication,” through which Schengen visa applicants can now fill out the visa application form online. The new system only applies to short-stay visa applications—for up to 90 days in Schengen countries (Schengen visa).

Long-term visa applications will continue to be filed using the paper application form.

The government says the new system will ensure greater accuracy of the data entered in the application form and reduction of typos, resulting in an overall improvement in consular services in terms of efficiency, cost, and time optimization.

The online form is available in Italian and English at http://e-applicationvisa.esteri.it/. The process requires the applicant to fill out the online application form, sign it, and print the form containing the barcode, then take it to the relevant Italian consulate.

“Business” and “work” activities for Schengen short-term assignments. For short-term assignments (maximum of 90 days), the Schengen Visa Code and most European Union (EU) national laws do not clearly define which activities can be considered “business” (thus not requiring a work visa) and those which are considered “work.” Useful guidance, however, which has some international recognition, can be found in the Commentary to article 15 of the 2014 OECD Tax Model Convention, which set forth the rules for the international taxation of income from employment.

The Schengen Handbook for the processing of visa applications and the modification of issued visas contains a non-exhaustive list of supporting documents for business trips and for persons traveling for the purpose of carrying out paid activity: “The applicant must provide a work permit or any similar document as provided by the national legislation of the Member State where a paid activity is to be carried out, if applicable.”

Most, if not all, laws of Schengen Member countries do not contain a clear and specific definition of what can be considered “business.” This is a gray area, and many companies do not have clear instructions when they are sending their employees for short business assignments (i.e., for a maximum 90 days in every 180-day period) in the Schengen area.

Italy, for example, defines business visitors as “foreigners who intend to enter the country for commercial/economic purposes, to make contacts or conduct negotiations/arrange deals, for learning or verifying the use and functioning of capital goods purchased or sold under commercial and industrial cooperation agreements.”

Useful guidance—which has valid foundations at the international level (at least among OECD countries)—for assessing whether an activity can be considered “business” or be subject to obtaining a work permit can be found in the OECD Commentary to the new OECD Tax Model Convention. Section 8.14 of the commentary to Art. 15 of the Convention (which set forth the rules for the international taxation of income from employment) states that:

Where a comparison of the nature of the services rendered by the individual with the business activities carried on by his formal employer and by the enterprise to which the services are provided points to an employment relationship that is different from the formal contractual relationship, the following additional factors may be relevant to determine whether this is really the case:

• who has the authority to instruct the individual regarding the manner in which the work has to be performed;
• who controls and has responsibility for the place at which the work is performed;
• the remuneration of the individual is directly charged by the formal employer to the enterprise to which the services are provided …;
• who puts the tools and materials necessary for the work at the individual’s disposal;
• who determines the number and qualifications of the individuals performing the work;
• who has the right to select the individual who will perform the work and to terminate the contractual arrangements entered into with that individual for that purpose;
• who has the right to impose disciplinary sanctions related to the work of that individual;
• who determines the holidays and work schedule of that individual

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TURKEY

The United States and Turkey have mutually suspended certain visa services.

On October 8, 2017, the U.S. Department of State (DOS) announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas include business, tourist, student, and temporary work authorization visas. The suspension applies to diplomatic and official visas. Ambassador John Bass said, “[T]his suspension of services is not a visa ban on Turkish citizens. It’s a suspension of our consideration of new visa applications. If you have a valid visa, you can still travel to the United States. If you want to apply for a visa at another U.S. embassy or consulate outside of Turkey, you are free to do so.”

Ambassador Bass said the suspension was due to the arrest of a Turkish staff member of the U.S. diplomatic mission in Turkey. That staff member was allegedly linked to the U.S.-based cleric Muhammed Fethullah Gülen Hocaefendi, who Turkey has blamed for a failed coup, according to reports. Turkey has similarly suspended nonimmigrant visa services at its diplomatic facilities in the United States.

A statement posted by the U.S. Embassy & Consulates in Turkey said, “Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey.”

Immigrant visas have not been suspended.

As Turkey’s visa suspension for U.S. citizens is breaking news, there are a few clarifications and unresolved issues:

What is clear as of now:

  • No new visa, whether e-visa, student, AMS visa, or work visa, will be issued to a U.S. citizen, regardless of the consular post location, until further notice. The e visa website will not proceed once U.S. citizenship is selected.
  • Those with valid work or residence cards are currently still allowed entry.
  • Airlines outside of Turkey are already asking passengers to present a current visa, work or residence cards to proceed with check-in. If not shown, they will likely not be allowed to board.

There is no formal government statement yet regarding whether the visa must have been activated (or initially used) before October 8, 2017. Although initially officers in Sabiha Gokcen airport indicated the visa had to be used at least once before October 8, passport officers at the main airport (Ataturk Airport) in Istanbul verbally confirmed that initial entry on the visa before October 8 is not required. Observers remain cautiously optimistic that any U.S. citizen with a valid Turkish visa in their passport or e-visa can use it regardless of whether an initial entry already occurred.

Passport officers in Ataturk airport also informally communicated that U.S. citizens with an alternate nationality and passport would not be restricted from applying for a Turkish visa based on that passport.

What remains unknown:

It is unknown whether the Ministry of Labor or Interior Ministry (who issue work and residence cards) may follow up to issue their own bar for U.S. citizens. As of today, observers have seen no denials of work or residence permit applications (whether initial or renewal) of U.S. citizens. However, supervisors at the Work Permit Directorate have informally indicated that work permits for U.S. citizens are on hold for now and that the Directorate is anticipating firm guidance on this issue soon. However, it is clear that if the work permit application is not a domestic filing (i.e., filed while the U.S. citizen held a current residence permit) or a renewal, the applicant will not be able to finalize his or her work authorization to issuance of a work visa unless this diplomatic stalemate is resolved.

Ambassador Bass’s statement is at https://tr.usembassy.gov/ambassador-john-bass-statement-suspension-visa-services-turkey/. The statement from the U.S. Embassy & Consulates in Turkey is at https://tr.usembassy.gov/visas/. Additional information is at https://twitter.com/USEmbassyTurkey.

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Mid-October 2017 Immigration Update

Headlines:

  1. Kirstjen Nielsen Nominated as Secretary of Homeland Security – On October 12, 2017, President Donald Trump announced the nomination of Kirstjen Nielsen for the position of Secretary of Homeland Security.
  2. Lee Cissna Confirmed as Director of USCIS – The U.S. Senate confirmed Lee Francis Cissna as director of U.S. Citizenship and Immigration Services on October 5, 2017.
  3. Revised Form Allows Work Authorization and SSN Application Simultaneously – Foreign nationals in certain categories can now apply for work authorization and a social security number using a single form, the updated Form I-765, Application for Employment Authorization.
  4. Premium Processing Now Available for All Petitioners Seeking H-1B Visas – USCIS resumed premium processing on October 3, 2017, for all H-1B visa extension-of-stay petitions. Premium processing is now available for all types of H-1B petitions.
  5. USCIS Reminds About Immigration Services Available To Those Affected by Disasters – USCIS released a reminder about immigration services that may help people affected by unforeseen circumstances, including disasters such as hurricanes. USCIS said the measures may be available on a case-by-case basis upon request.
  6. DOL Changes iCERT System for H-2A and H-2B Programs – OFLC said new easy-to-understand steps and instructions “will serve to clarify regulatory filing requirements and improve the quality and consistency of H-2A and H-2B applications received for processing.”
  7. State Dept. Releases Cable on Revised Guidance re 90-Day Rule – The cable advises posts on revised guidance regarding the 90-day rule, formerly known as the “30/60 day rule.”
  8. U.S. Suspends Certain Visa Services in Turkey – The United States has suspended certain visa services in Turkey.
  9. Firm In The News…

 Details: 

  1. Kirstjen Nielsen Nominated as Secretary of Homeland Security 

On October 12, 2017, President Donald Trump announced the nomination of Kirstjen Nielsen for the position of Secretary of Homeland Security. Ms. Nielsen is currently the White House principal deputy chief of staff. She was John Kelly’s deputy when he served as President Trump’s first Secretary of Homeland Security, and came with Mr. Kelly to the White House when he became President Trump’s chief of staff.

According to a White House statement, Ms. Nielsen has experience in the areas of homeland security policy and strategy, cybersecurity, critical infrastructure, and emergency management. She is the first nominee for this position to have previously worked within the Department of Homeland Security, having served there in two administrations, first as senior legislative policy director for Transportation and Security Administration under President George W. Bush and then as Department of Homeland Security Chief of Staff under President Trump. Before joining the Trump administration, Ms. Nielsen founded a risk and security management consulting firm. She previously served as Special Assistant to the President and senior director for prevention, preparedness, and response on the White House Homeland Security Council under President George W. Bush, in addition to serving as a corporate attorney and as a congressional staff member.

Elaine Duke has been serving as acting Secretary of Homeland Security since April 2017.

The White House statement is at https://www.whitehouse.gov/the-press-office/2017/10/11/president-donald-j-trump-nominates-kirstjen-nielsen-secretary-homeland. Related remarks by the President are at https://www.whitehouse.gov/the-press-office/2017/10/12/remarks-president-trump-announcing-nomination-kirstjen-nielsen-secretary.

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  1. Lee Cissna Confirmed as Director of USCIS 

The U.S. Senate confirmed Lee Francis Cissna as director of U.S. Citizenship and Immigration Services on October 5, 2017. The vote was 55-43 in favor of Mr. Cissna’s confirmation.

Mr. Cissna most recently helped write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits. He also helped draft the American Job Creation and Investment Promotion Reform Act of 2015, which included an array of what have come to be known as EB-5 “integrity” measures.

Most recently, Mr. Cissna was Director of Immigration Policy in the Office of Policy of the U.S. Department of Homeland Security (DHS). Before serving in that position, Mr. Cissna served in USCIS’ Office of the Chief Counsel. Before that, he was an attorney in private practice in the immigration group of the law firm of Kaufman & Canoles in Richmond, Virginia. Mr. Cissna also served in the U.S. Department of State as a U.S. Foreign Service Officer stationed in Port-au-Prince, Haiti, and Stockholm, Sweden. Before that, he was an attorney in the international trade practice group at the law firms of Steptoe & Johnson LLP and Kirkpatrick & Lockhart LLP. Mr. Cissna graduated from Massachusetts Institute of Technology with a BS in physics and political science; Columbia University with an MA in international affairs; and Georgetown University Law Center with a JD.

Due to USCIS’s crucial role in granting many immigration benefits, the Alliance of Business Immigration Lawyers (ABIL) issued a press release urging Mr. Cissna to:

  • Encourage adjudicators to apply the statutes and regulations as written
  • Refrain from altering regulations through the promulgation of policy memoranda
  • Solicit stakeholder input before and not after changing existing or implementing new policy
  • As a benefits granting agency, return to an alien-based reading of the immigration statute and its implementing regulations

ABIL’s press release is at http://www.prweb.com/releases/2017/10/prweb14782675.htm. President Trump’s statement announcing his intent to nominate Mr. Cissna is at https://www.whitehouse.gov/the-press-office/2017/04/08/president-donald-j-trump-announces-intent-nominate-lee-francis-cissna.

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  1. Revised Form Allows Work Authorization and SSN Application Simultaneously for Certain Categories

Based on a new information-sharing partnership between U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA), foreign nationals in certain categories or classifications can now apply for work authorization and a social security number using a single form, the updated Form I-765, Application for Employment Authorization.

USCIS explained that to lawfully work in the United States, foreign workers in some categories and classifications need both an employment authorization document (EAD) from USCIS and a Social Security number (SSN) from the SSA. Previously, applicants needed to submit a Form I-765 to USCIS for an EAD and then submit additional paperwork in person at their local Social Security office to obtain an SSN.

The revised USCIS form includes additional questions that allow applicants to apply for an SSN or replacement card without visiting a Social Security office. As of October 2, 2017, USCIS began transmitting the additional data collected on the form to the SSA for processing. Applicants who receive their approved EADs from USCIS should receive their Social Security card from SSA within the following two weeks.

The USCIS notice is at https://www.uscis.gov/news/news-releases/new-uscis-form-streamlines-process-obtain-work-authorization-document-and-social-security-number-simultaneously

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  1. Premium Processing Now Available for All Petitioners Seeking H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) resumed premium processing on October 3, 2017, for all H-1B visa extension-of-stay petitions. Premium processing is now available for all types of H-1B petitions.

USCIS explained that when a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time. If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

In addition to the October 3 resumption of premium processing for H-1B visa extension of stay petitions, USCIS had previously resumed premium processing for H-1B petitions subject to the annual cap, petitions filed on behalf of physicians under the Conrad 30 waiver program, and interested government agency waivers and certain H-1B petitions that are not subject to the cap.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/premium-processing-now-available-all-petitioners-seeking-h-1b-visas.

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  1. USCIS Reminds About Immigration Services Available To Those Affected by Disasters 

U.S. Citizenship and Immigration Services (USCIS) released a reminder about immigration services that may help people affected by unforeseen circumstances, including disasters such as hurricanes. USCIS said the following measures may be available on a case-by-case basis upon request:

  • Changing nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of the authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond the person’s control;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Assistance if a person was unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card); and
  • Rescheduling a biometrics appointment.

USCIS said that those making such requests should explain how the impact of a hurricane (or other disaster) created a need for the requested relief.

The reminder, which includes information on how to make such a request, is at https://www.uscis.gov/news/alerts/immigration-help-available-those-affected-hurricanes.

  1. DOL Changes iCERT System for H-2A and H-2B Programs 

In an effort to provide better service and ensure that more complete H-2A and H-2B applications are submitted for review, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is releasing new enhancements to the iCERT System’s application filing module that will help employers or, if applicable, their authorized attorneys or agents identify and upload required documentation supporting their applications. OFLC said new easy-to-understand steps and instructions “will serve to clarify regulatory filing requirements and improve the quality and consistency of H-2A and H-2B applications received for processing.”

An employer seeking temporary labor certification under the H-2A or H-2B visa programs must submit an application and all required supporting documentation to the Department’s Office of Foreign Labor Certification (OFLC) either electronically using the iCERT System (http://icert.doleta.gov) or by U.S. mail.

Since 2013, the iCERT System has permitted employers or, if applicable, their authorized attorneys or agents to submit H-2A and H-2B applications online, electronically upload supporting documentation, and receive all communications during the processing of their applications via email. For fiscal year 2017, more than 83% of H-2A applications and approximately 94% of H-2B applications were submitted electronically through the iCERT System. OFLC said that electronic submission of all required documentation at the time of filing “facilitates a more efficient and consistent review of the employer’s application, and reduces the incidence of the OFLC Certifying Officer returning the incomplete application without further review or issuing a Notice of Deficiency to request missing documentation.”

OFLC strongly encourages employers or, if applicable, their authorized attorneys or agents to download and read the Quick Start Guides associated with these new system enhancements, available in Adobe PDF format: H-2A program or H-2B program.

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  1. State Dept. Releases Cable on Revised Guidance re 90-Day Rule 

The Department of State recently released the following cable to the field:

UNCLASSIFIED 17 STATE 95090

Sep 16, 2017

Subject: Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule

1.  SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.

The 90 day rule

2.  The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by: 1) engaging in unauthorized employment; 2) enrolling in a course of unauthorized academic study; 3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or 4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation. You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

3.  If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

The cable is at https://travel.state.gov/content/dam/visas/policy_updates/17%20STATE%2095090%20Change%20to%20INA%20212(a)(6)(C)(i)%20and%20Introduction%20of%2090%20Day%20Rule.pdf.

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  1. U.S. Suspends Certain Visa Services in Turkey 

The United States has suspended certain visa services in Turkey. On October 8, 2017, the U.S. Department of State (DOS) announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas include business, tourist, student, and temporary work authorization visas. The suspension applies to diplomatic and official visas. Ambassador John Bass said, “[T]his suspension of services is not a visa ban on Turkish citizens. It’s a suspension of our consideration of new visa applications. If you have a valid visa, you can still travel to the United States. If you want to apply for a visa at another U.S. embassy or consulate outside of Turkey, you are free to do so.”

Ambassador Bass said the suspension was due to the arrest of a Turkish staff member of the U.S. diplomatic mission in Turkey. That staff member was allegedly linked to the U.S.-based cleric Muhammed Fethullah Gülen Hocaefendi. Turkey has blamed Mr. Gülen for a failed coup, according to reports. Turkey has similarly suspended nonimmigrant visa services at its diplomatic facilities in the United States.

A statement posted by the U.S. Embassy & Consulates in Turkey said, “Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey.”

Immigrant visas have not been suspended.

Ambassador Bass’s statement is at https://tr.usembassy.gov/ambassador-john-bass-statement-suspension-visa-services-turkey/. The statement from the U.S. Embassy & Consulates in Turkey is at https://tr.usembassy.gov/visas/. Additional information is at https://twitter.com/USEmbassyTurkey.

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  1. Firm In The News

Cyrus D. Mehta published Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’ on October 17, 2017.

David Isaacson published From Bad to Worse: Why We Should Not Let the Trump Administration’s Outrageous Immigration Demands Make the SUCCEED Act Seem Like a Reasonable Alternative on October 10, 2017

 

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October 2017 Immigration Update

Headlines

  1. Trump Administration Implements New Travel Restrictions – The Trump administration has announced travel and visa restrictions with respect to the countries of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, subject to “categorical exceptions and case-by-case waivers.”
  2. Following Mysterious Attacks, United States Suspends Visas for Cubans, Withdraws Most Staff From Havana Embassy, Issues Cuba Travel Warning – Following still-unexplained attacks on U.S. personnel of the embassy in Havana, Cuba, that left some with severe health problems, the United States has suspended visa issuance in Cuba for all Cubans and ordered the departure of more than half of its staff from the embassy, along with their family members. The Department of State has also issued a travel warning advising U.S. citizens not to travel to Cuba.
  3. Employers Must Use Form I-9 With New Revision Date, USCIS Says – Employers must use Form I-9, Employment Eligibility Verification, with the new revision date of 07/17/17 N.
  4. Lawsuit Challenges Postponement of International Entrepreneur Rule – A lawsuit has been filed challenging the postponement of the International Entrepreneur Rule (IER). The rule would have permitted foreign entrepreneurs to travel to or stay in the United States to grow new businesses. Less than a week before the IER was scheduled to take effect, the Department of Homeland Security announced that its implementation would be significantly delayed and suggested that it ultimately intends to rescind the IER.
  5. USCIS No Longer Accepting Petitions for One-Time Increase to H-2B Temporary Nonagricultural Visa Program Cap – USCIS is no longer accepting petitions from U.S. employers seeking to hire temporary nonagricultural workers under the one-time increase to the FY 2017 H-2B cap announced in July 2017.
  6. USCIS Extends TPS for South Sudan – DHS has extended the designation of South Sudan for temporary protected status for 18 months, from November 3, 2017, through May 2, 2019.
  7. USCIS Announces Termination of TPS for Sudan in November 2018 – DHS has determined that conditions in Sudan no longer support its designation for temporary protected status. Benefits for beneficiaries of Sudan TPS will be extended for 12 months to allow for an orderly transition before the designation terminates on November 2, 2018.
  8. ABIL Global: Peru – This article provides brief comments on the investor visa in Peru.
  9. Firm In The News… 

Details:    

  1. Trump Administration Implements New Travel Restrictions

On September 24, 2017, President Donald Trump issued a presidential proclamation on “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The proclamation announces the following measures with respect to the countries of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, subject to “categorial exceptions and case-by-case waivers”:

  • Chad: The proclamation suspends indefinitely the entry into the United States of nationals of Chad as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  • Iran: The proclamation suspends indefinitely the entry into the United States of nationals of Iran as immigrants and nonimmigrants, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals “should be subject to enhanced screening and vetting requirements.”
  • Libya: The proclamation suspends indefinitely the entry into the United States of nationals of Libya as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  • North Korea: The proclamation suspends indefinitely the entry into the United States of nationals of North Korea as immigrants and nonimmigrants. [In a separate notice, the Department of State announced that U.S. passports are invalid for travel into, in, or through North Korea/Democratic People’s Republic of Korea.]
  • Somalia: The proclamation suspends indefinitely the entry into the United States of nationals of Somalia as immigrants. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants “should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”
  • Syria: The proclamation suspends indefinitely the entry into the United States of nationals of Syria as immigrants and nonimmigrants.
  • Venezuela: The proclamation suspends indefinitely the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures—including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations—and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas. Nationals of Venezuela who are visa holders “should be subject to appropriate additional measures to ensure traveler information remains current.”
  • Yemen: The proclamation suspends indefinitely the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.

The proclamation also notes that entry restrictions and limitations on Iraq are “not warranted.” However, nationals of Iraq who seek to enter the United States will be subject to “additional scrutiny to determine if they pose risks to the national security or public safety of the United States.”

Exceptions. Among other things, the proclamation lists exceptions to these suspensions of entry for:

  • Any lawful permanent resident of the United States;
  • Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date (see the proclamation for details);
  • Any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
  • Any dual national of a designated country when the individual is traveling on a passport issued by a non-designated country;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa; North Atlantic Treaty Organization visa; C-2 visa for travel to the United Nations; or G-1, G-2, G-3, or G-4 visa; and
  • Any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The proclamation, which includes additional details and effective dates, is at https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry. A related alert from the Department of State, which includes a table summarizing the travel restrictions, is at https://travel.state.gov/content/travel/en/news/important-announcement.html. The separate announcement about the invalidity of U.S. passports for travel to North Korea is at https://travel.state.gov/content/travel/en/news/north-korea-travel-restriction.html.

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  1. Following Mysterious Attacks, United States Suspends Visas for Cubans, Withdraws Most Staff From Havana Embassy, Issues Cuba Travel Warning

Following still-unexplained attacks on U.S. personnel of the embassy in Havana, Cuba, that left some with severe health problems, the United States has suspended visa issuance in Cuba for all Cubans and ordered the departure of more than half of its staff from the embassy, along with their family members. The Department of State has also issued a travel warning advising U.S. citizens not to travel to Cuba.

The Department explained that at least 21 U.S. embassy employees have been targeted in attacks of unknown origin, resulting in significant injuries, including ear complaints, hearing loss, dizziness, tinnitus, balance problems, visual complaints, headache, fatigue, cognitive issues, and difficulty sleeping.

The Department said it is “looking at the possibility of [Cubans] being able to apply for visas at embassies or consulates outside of Cuba in other countries. But we haven’t actually made definitive arrangements yet. We’re continuing to look at that. But all of the kind of regular visas or ordinary visas would not be issued through Havana.”

The travel warning notes that the attacks have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens. The travel warning also notes that due to the drawdown in staff, the U.S. embassy in Havana has limited ability to assist U.S. citizens. The embassy will provide only emergency services to U.S. citizens. The warning states that U.S. citizens in Cuba in need of emergency assistance should contact the embassy by telephone at +(53)(7) 839-4100 or the Department of State at 1-202-501-4444. U.S. citizens should not attempt to go to the U.S. embassy because it suffered severe flood damage during Hurricane Irma, the warning states.

A transcript of a related press briefing via teleconference on September 29, 2017, is at https://www.state.gov/r/pa/prs/ps/2017/09/274518.htm. The Cuba travel warning is at https://travel.state.gov/content/passports/en/alertswarnings/cuba-travel-warning.html. The U.S. embassy in Havana’s website is at https://cu.usembassy.gov/.

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  1. Employers Must Use Form I-9 With New Revision Date, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced that beginning September 18, 2017, employers must use Form I-9, Employment Eligibility Verification, with the new revision date of 07/17/17 N, to verify the identity and work eligibility of every new employee hired after November 6, 1986, or for the reverification of expiring employment authorization of current employees (if applicable). This date is found on the lower left corner of the form. Prior versions of the form are no longer valid for use. Employers who fail to use the new form may be subject to penalties.

USCIS reminded employers to continue to follow existing storage and retention rules for each previously completed Form I-9. The storage and retention rules are at https://www.uscis.gov/i-9-central/retain-and-store-form-i-9. The USCIS announcement about the new revision date is at https://www.uscis.gov/news/alerts/employers-must-use-form-i-9-revision-date-071717-n.

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  1. Lawsuit Challenges Postponement of International Entrepreneur Rule

The American Immigration Council (AIC) has filed a lawsuit, National Venture Capital Association, et al., v. Duke, challenging the postponement of the International Entrepreneur Rule (IER). The rule, which was supposed to take effect July 17, 2017, would have permitted foreign entrepreneurs to travel to or stay in the United States to grow new businesses. Less than a week before the IER was scheduled to take effect, the Department of Homeland Security (DHS) announced that its implementation would be significantly delayed and suggested that it ultimately intends to rescind the IER.

In announcing the lawsuit, AIC said, “Immigrant entrepreneurs, who bring their talents, ideas, and initiative with them to the United States often face significant barriers to obtaining permission to travel and work in the United States. The IER was promulgated to address these problems and was informed by extensive input from affected entrepreneurs, the business community, and the American people.”

Plaintiffs are prospective entrepreneur applicants under the IER or companies founded by potential applicants.

AIC, in cooperation with the Washington, DC, office of Mayer Brown LLP, filed the lawsuit against the Department of Homeland Security. Plaintiffs include the National Venture Capital Association (NVCA), which is the largest organization of venture capitalists in the United States; foreign entrepreneurs; and startup companies. The complaint alleges that the government failed to comply with the Administrative Procedure Act’s notice-and-comment requirement. Plaintiffs seek to compel the defendants to implement the IER and to begin accepting and adjudicating parole applications from international entrepreneurs. NVCA noted that its 2013 study “determined that a full one-third of U.S. venture-backed companies that went public between 2006 and 2012 had at least one immigrant founder.” NVCA also cited a 2016 finding by a National Foundation for American Policy study that “immigrants have started more than half (44 of 87) of America’s startup companies valued at $1 billion or more.”

The AIC’s announcement of the lawsuit is at https://www.americanimmigrationcouncil.org/litigation/lawsuit-challenges-postponement-international-entrepreneur-rule. NVCA’s statement about the lawsuit is at https://nvca.org/pressreleases/nvca-entrepreneurs-startups-file-lawsuit-challenging-delay-international-entrepreneur-rule/. The complaint is at https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/lawsuit_challenges_postponement_of_the_international_entrepreneur_rule_complaint.pdf.

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  1. USCIS No Longer Accepting Petitions for One-Time Increase to H-2B Temporary Nonagricultural Visa Program Cap

U.S. Citizenship and Immigration Services (USCIS) announced on September 19, 2017, that it is no longer accepting petitions from U.S. employers seeking to hire temporary nonagricultural workers under the one-time increase to the fiscal year (FY) 2017 H-2B cap announced in July 2017.

In May, Congress temporarily delegated its authority to the Secretary of Homeland Security to increase the number of temporary nonagricultural work visas available to U.S. employers through FY 2017. Then-Secretary of Homeland Security John Kelly determined that there were not enough qualified and willing U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of some U.S. businesses in FY 2017. Consequently, additional H-2B visas were made available to U.S. businesses that could establish they would likely suffer irreparable harm if they could not hire all the H-2B workers requested in their FY 2017 petitions. Some employers were also required to conduct a fresh round of recruitment efforts for U.S. workers before being allowed to petition for additional foreign workers. An additional 15,000 visas were made available under a final rule published in July.

Following the filing deadline guidance included in July’s final rule, USCIS has stopped accepting petitions and is rejecting any FY 2017 H-2B cap-subject petitions received after September 15, 2017. With the close of the petition period on September 15, USCIS announced that it has received a total request for 13,534 workers.

Petitions that have been submitted but are not approved by USCIS before October 1, 2017, will be denied, and any associated fees will not be refunded, USCIS said.

USCIS will continue to accept FY 2017 H-2B petitions for workers who are exempt from the congressionally mandated cap.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-no-longer-accepting-petitions-one-time-increase-temporary-nonagricultural-visa-program. Additional information about how the supplemental FY 2017 H-2B visas are being used, including information about the petitioning employers, is at https://www.uscis.gov/working-united-states/temporary-workers/one-time-increase-h-2b-nonimmigrant-visas-fy-2017. The July final rule is at https://www.federalregister.gov/documents/2017/07/19/2017-15208/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2017-numerical-limitation-for-the.

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  1. USCIS Extends TPS for South Sudan

The Department of Homeland Security (DHS) has extended the designation of South Sudan for temporary protected status (TPS) for 18 months, from November 3, 2017, through May 2, 2019. A notice sets forth procedures necessary for nationals of South Sudan (or those having no nationality who last habitually resided in South Sudan) to re-register for TPS and to apply for employment authorization documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). USCIS will issue new EADs with a May 2, 2019, expiration date to eligible South Sudan TPS beneficiaries who timely re-register and apply for EADs under this extension. If a South Sudan TPS beneficiary timely re-registers and properly files an application for an EAD during the 60-day re-registration period, his or her EAD will be automatically extended for an additional period of up to 180 days from the date the current EAD expires; i.e., through May 1, 2018.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/temporary-protected-status-south-sudan-extended-18-months. The related Federal Register notice is at https://www.gpo.gov/fdsys/pkg/FR-2017-09-21/html/2017-20174.htm. USCIS said that more information will be posted soon on https://www.uscis.gov/humanitarian/temporary-protected-status. Further details about the extension of TPS for South Sudan, including the application requirements and procedures, are at https://www.gpo.gov/fdsys/pkg/FR-2017-09-21/html/2017-20174.htm.

  1. USCIS Announces Termination of TPS for Sudan in November 2018

The Department of Homeland Security (DHS) has determined that conditions in Sudan no longer support its designation for temporary protected status (TPS). Benefits for beneficiaries of Sudan TPS will be extended for 12 months to allow for an orderly transition before the designation terminates on November 2, 2018.

Current beneficiaries of Sudan’s TPS designation seeking to extend their TPS status must re-register within the re-registration period, which is expected to be published shortly in the Federal Register and on http://www.uscis.gov/tps. Those who re-register and request a new employment authorization document (EAD) may receive an automatic extension of their expiring EAD for up to 180 days from the date their current EAD expires. If a beneficiary’s EAD request is approved, he or she will receive a new EAD with an expiration date of November 2, 2018. USCIS strongly encourages TPS beneficiaries to re-register and file their EAD applications as early as possible to avoid lapses in documentation of employment authorization.

Although TPS benefits for Sudan will no longer be in effect starting November 2, 2018, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. DHS is urging individuals who do not have another immigration status “to use the time before the termination becomes effective in November to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.”

The USCIS announcement is at https://www.uscis.gov/news/news-releases/temporary-protected-status-sudan-terminate-november-2018.

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  1. ABIL Global: Peru

This article provides brief comments on the investor visa in Peru.

On January 7, 2017, the New Law of MIGRACIONES, Legislative Decree No. 1350, was published in the Official Gazette, “El Peruano.” The new law and regulations, approved by Supreme Decree No. 007-2017-IN, have been in force since March 1, 2017.

This new immigration legislation has instituted a series of changes and the creation of new migratory statuses. One of these changes concerns investors. The new law allows a foreigner to establish, develop, or manage one or more lawful investments in Peru.

The amount of the investment and other conditions are established by regulation. Eligibility requirements include:

A) An investment equal to or higher than 500,000.00 Peruvian Sol (PEN), equivalent to approximately US$155,275. The investment amount can be modified by Superintendence Resolution.

B) Serving only as manager or director of a foreign person’s own company, for which he or she must comply with the corresponding labor or tax rules. This position of the foreigner is not included in quotas for the local company’s payroll, established in Legislative Decree No. 689 (Law of Hiring of Foreign Personnel) and its regulations. Under no circumstances may the foreign person support the investment through the transfer of shares.

MIGRACIONES is the authority that grants this migratory status. The Investor visa allows multiple entries. The foreign individual receives a resident permit (foreign card/carné de extranjería) for 365 days, renewable while the same conditions exist.

Procedurally, there are two alternative ways to obtain Investor status. First, an “obtainment visa process” implies that all the necessary documentation is submitted at MIGRACIONES offices in Peru; however, the applicant remains abroad initially. Once his or her visa is approved, he or she collects it from the Peruvian consulate previously chosen. Then he or she comes to Peru to finish the process. This procedure takes 30 working days from the time of initial filing. Alternatively, a “change of immigration status (in-country) process” implies that the foreign national enters Peru in tourist or business migratory status, then applies at MIGRACIONES for the Investor visa and submits the required documentation. This procedure takes 60 working days from the time of initial filing.

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  1. Firm In The News…

Cyrus Mehta published Dealing With The Dreaded RFE – Reflections Of An Immigration Lawyer on September 25, 2017.

Cyrus Mehta was a Speaker, Ethics in Immigration Representation, organized by Immigrant Justice Corps Training, New York, NY, September 2017.

Cyrus Mehta and Sophia Genovese were Speakers at DACA: What’s Next? Learn, Act & Organize, organized by Chhaya CDC in partnership with New York Immigration Coalition and Cyrus D. Mehta & Partners, PLLC, Jackson Heights, NY, September 20, 2017.

Mid-September 2017 Immigration Update

Headlines:

  1. President Orders End of DACA in Six Months, With Mixed Signals About Future for ‘Dreamers’; Two Lawsuits Challenge Program’s Termination –President Trump has ordered the end of Deferred Action for Childhood Arrivals, an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as “Dreamers.” The order takes effect in six months and affects nearly 800,000 people. At least two lawsuits challenge the legality of ending the program.
  2. President Signs Legislation Extending Several Programs Under Disaster Relief Act – Among other things, the legislation extends the Religious Worker, Conrad State 30, EB-5, and E-Verify programs until December 8, 2017.
  3. ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will Not Be a Factor During Rescues – The Department of Homeland Security said that “DHS will not conduct non-criminal immigration enforcement operations in the affected area.”
  4. Ninth Circuit Rules Grandparents, Cousins, Others Exempted From Travel Ban; Supreme Court Intervenes – A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on September 7, 2017, that certain relatives from Iran, Libya, Somalia, Sudan, Syria, and Yemen banned by the Trump administration from entering the United States should be admitted while the ban is under legal review, contrary to the administration’s interpretation of a June Supreme Court ruling. The Ninth Circuit panel also rejected the Trump administration’s ban on refugees formally accepted by resettlement agencies. The Supreme Court blocked the refugee part of the Ninth Circuit’s ruling.
  5. EB-1, EB-3 Categories Show Progress in Visa Bulletin for October – Several developments in employment-based categories were announced in the Department of State’s Visa Bulletin for the month of October 2017.
  6. Registration for Diversity Visa Program for FY 2019 Begins in October – Registration for the Diversity Visa Program for fiscal year 2019 (DV-2019) will begin at noon ET on October 3, 2017, and end at noon ET on November 7, 2017. For FY 2019, 50,000 diversity visas will be available.
  7. State Dept. Changes Standard for Assessing ‘Residence Abroad’ for F-1 Nonimmigrant Students – The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated with respect to “residence abroad.”
  8. State Dept. Issues New 90-Day Rule for Misrepresentation – The Department of State recently updated the Foreign Affairs Manual with a new 90-day rule on misrepresentation.
  9. Firm In The News…

Details:

1          President Orders End of DACA in Six Months, With Mixed Signals About Future for ‘Dreamers’; Two Lawsuits Challenge Program’s Termination

On September 5, 2017, President Donald Trump ordered the end of Deferred Action for Childhood Arrivals (DACA), an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as “Dreamers.” He said that his administration’s position is that DACA was not statutorily authorized and therefore was an unconstitutional exercise of discretion by the executive branch. The order takes effect in six months. The rescission affects nearly 800,000 DACA recipients.

Based on “guidance from Attorney General Sessions and the likely result of potentially imminent litigation,” the Department of Homeland Security’s Acting Secretary Elaine Duke issued a memorandum on September 5 formally rescinding the Obama administration’s June 15, 2012, memorandum that created DACA. Ms. Duke explained, “As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation, or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.” Ms. Duke said that “no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after [September 5, 2017] will be acted on.”

President Trump’s statement about current beneficiaries not being affected for 6 months was slightly less absolute; he said that current DACA recipients “generally” will not be affected: “DHS’s enforcement priorities remain in place. However, absent a law enforcement interest—which is largely the standard that has been in place since the inception of the program—the Department will generally not take actions to remove active DACA recipients.” He said that renewal applications for DACA employment authorization documents (EADs) properly filed and accepted by October 5, 2017, for people whose current EADs expire between September 5, 2017, and March 5, 2018, will be processed. He also said that all pending applications for advance parole by DACA recipients “will be closed and associated fees will be refunded.” In a related tweet on September 7, 2017, President Trump said, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!”

On September 6, 2017, the attorneys general of more than a dozen states and the District of Columbia sued the government to stop the DACA program’s rescission. The lawsuit argues that the repeal of President Obama’s DACA order violates the Administrative Procedure Act, is motivated by discrimination against Mexicans, and violates due process. The University of California filed a similar suit on September 8, 2017, against the Trump administration for violating the rights of the university and its students by rescinding DACA on “nothing more than unreasoned executive whim.”

The White House statement is at https://www.whitehouse.gov/the-press-office/2017/09/05/president-donald-j-trump-restores-responsibility-and-rule-law. The DHS statement is at https://www.dhs.gov/news/2017/09/05/rescission-deferred-action-childhood-arrivals-daca. A related USCIS statement is at https://www.uscis.gov/daca2017. Attorney General Sessions’ letter to Acting Secretary Duke is at https://www.dhs.gov/publication/letter-attorney-general-sessions-acting-secretary-duke-rescission-daca. Acting Secretary Duke’s memorandum is at https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. Frequently asked questions are at https://www.dhs.gov//news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca. The complaint by the various state attorneys general is at https://ag.ny.gov/sites/default/files/new_york_et_al._v._trump_et_al_-_17cv5228.pdf. The University of California’s complaint is at http://universityofcalifornia.edu/sites/default/files/UC-DACA-Complaint.pdf.

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  1. President Signs Legislation Extending Several Programs Under Disaster Relief Act

The U.S. Senate and House of Representatives recently passed the “Disaster Relief Appropriations Act, 2017” as part of an appropriations bill to increase the debt limit, fund the government through a continuing resolution, and provide emergency funding for hurricane relief. Among other things, the legislation extends the Religious Worker, Conrad State 30, EB-5, and E-Verify programs until December 8, 2017. President Trump signed the legislation on September 8, 2017.

A White House statement is at https://www.whitehouse.gov/the-press-office/2017/09/08/statement-press-secretary-president-donald-j-trump-signing-hr-601. The text of the bill is at https://www.congress.gov/bill/115th-congress/house-bill/601/text.

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  1. ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will Not Be a Factor During Rescues

U.S. Immigration and Customs Enforcement (ICE) released a statement on September 7, 2017, that appears to temporarily suspend unspecified enforcement actions in areas affected by recent hurricanes:

While we generally do not comment on future potential law enforcement actions, operational plans are subject to change based on a variety of factors. Due to the current weather situation in Florida and other potentially impacted areas, along with the ongoing recovery in Texas, U.S. Immigration and Customs Enforcement (ICE) had already reviewed all upcoming operations and has adjusted accordingly. There is currently no coordinated nationwide operation planned at this time. The priority in the affected areas should remain focused on life-saving and life-sustaining activities.

For the safety and security of our communities, ICE fugitive operations teams will continue to target and arrest criminal aliens and other individuals who are in violation of our nation’s immigration laws, in non-affected areas of the country, as part of routine operations.

A separate statement issued by the Department of Homeland Security (DHS) on September 6, 2017, states, among other things, that “DHS will not conduct non-criminal immigration enforcement operations in the affected area.” The statement also notes, “When it comes to rescuing people in the wake of Hurricane Irma, immigration status is not and will not be a factor. However, the laws will not be suspended, and we will be vigilant against any effort by criminals to exploit disruptions caused by the storm.” DHS also stated that ICE detainees from the Krome Detention Center, Monroe County Jail, Broward Transitional Center, and Glades Detention Center “are being temporarily transferred to various other detention facilities outside the projected path of the hurricane. In the event of transfers, the detainee’s attorney of record is notified, the Online Detainer Locator is updated, and the transfer is temporary in nature.”

The ICE statement is at https://www.ice.gov/news/releases/ice-statement-regarding-questions-enforcement-planning. The DHS statement is at https://www.ice.gov/news/releases/dhs-statement-regarding-safety-and-enforcement-during-hurricane-irma.

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  1. Ninth Circuit Rules Grandparents, Cousins, Others Exempted From Travel Ban; Supreme Court Intervenes

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on September 7, 2017, that certain relatives from Iran, Libya, Somalia, Sudan, Syria, and Yemen banned by the Trump administration from entering the United States should be admitted while the ban is under legal review, contrary to the administration’s interpretation of a June Supreme Court ruling. However, on September 12, the Supreme Court blocked the Ninth Circuit’s ruling indefinitely.

The administration had interpreted the Supreme Court’s June reference to close or bona fide family relationships as including immediate family members and in-laws but excluding grandparents, grandchildren, brothers- and sisters-in-law, aunts and uncles, nieces and nephews, and cousins. The Ninth Circuit panel observed, “Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.” Noting that the administration had relied on specified provisions of the Immigration and Nationality Act, the court noted, “The Government’s ‘cherry-picked’ INA provisions recognize immediate family relationships as those between parents, spouses, children, and siblings, yet other provisions of the INA and other immigration laws offer broader definitions for close family.” The court also said that the INA was implemented with the underlying intention of preservation of the family unit, and noted that the administration’s “artificially narrow interpretation of close familial relationships directly contradicts this intention.”

The Ninth Circuit panel also rejected the Trump administration’s ban on refugees formally accepted by resettlement agencies. The court noted that it typically takes a refugee applicant 18 to 24 months to successfully complete the complex, lengthy application and screening process before he or she can be resettled in the United States. The court cited various hardships that would be faced by resettlement agencies, local affiliates, church congregations, volunteers, and landlords if formally assured refugees were barred. The court also noted that refugees’ lives “remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”

The Ninth Circuit’s order was set to take effect on September 12. However, on that date the Supreme Court indefinitely blocked part of the Ninth Circuit’s ruling. For now, the Trump administration’s travel ban remains in effect with respect to refugees who have formal assurances from resettlement agencies. The Supreme Court will hear arguments on October 10, 2017, in a consolidated case challenging the travel ban.

The Ninth Circuit’s opinion is at http://cdn.ca9.uscourts.gov/datastore/general/2017/09/07/17-16426%20Opinion%20Filed.pdf. The Supreme Court’s order blocking part of the Ninth Circuit’s ruling is at http://www.scotusblog.com/wp-content/uploads/2017/09/17A275-16-1540-Trump-v.-Hawaii-Order-2.pdf.

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  1. EB-1, EB-3 Categories Show Progress in Visa Bulletin for October

Several developments in employment-based categories were announced in the Department of State’s Visa Bulletin for the month of October 2017.

For the past several months, there has been a backlog for Chinese-mainland and Indian nationals for EB-1. With the new fiscal year, the EB-1 category is now current for all nationalities, and visa applications may be filed regardless of the applicant’s priority date. It is unknown how long this category will remain current.

Also, the September 2017 Visa Bulletin included a cutoff date of January 1, 2012, for China-mainland born EB-3 applicants. It has advanced two years to January 1, 2014. The Department estimates that this cutoff date will move up approximately four months in the coming months.

The October 2017 Visa Bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2018/visa-bulletin-for-october-2017.html.

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  1. Registration for Diversity Visa Program for FY 2019 Begins in October

Registration for the Diversity Visa Program for fiscal year 2019 (DV-2019) will begin at noon ET on October 3, 2017, and end at noon ET on November 7, 2017. For FY 2019, 50,000 diversity visas will be available. There is no cost to register for the DV program.

For DV-2019, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Applicants must submit entries for the DV-2019 program electronically at https://dvlottery.state.gov/. The Department of State advises applicants not to wait until the last week of the registration period to enter, as heavy demand may result in website delays. No late entries or paper entries will be accepted. The Department noted that it “uses sophisticated technology to detect multiple entries. Individuals with more than one entry will be disqualified.” Older browsers (Internet Explorer 8 and earlier) may encounter problems with the online system; the Department advises using an updated browser. Also, it is extremely important to retain the confirmation page and unique confirmation number. Without this information, applicants will not be able to access the online system that informs them of their entry status.

All DV-2019 entrants must go to the Entrant Status Check using the unique confirmation number saved from their DV-2019 online entry registration to find out whether their entry has been selected. Entrant Status Check will be available at https://dvlottery.state.gov/ beginning May 1, 2018, through at least September 30, 2019.

Entrant Status Check will be the only means by which the Department of State notifies applicants of their selection for DV-2019. The Department of State will not mail notification letters or notify selectees by email. U.S. embassies and consulates will not provide a list of selectees.

Those who applied for the DV-2018 program can check their status at https://www.dvlottery.state.gov/.

Instructions for DV-2019, including additional eligibility requirements, are at https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2019-Instructions-Translations/Clean_DV-2019_Plain_Language_Instructions_and_FAQs%20.pdf.

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  1. State Dept. Changes Standard for Assessing ‘Residence Abroad’ for F-1 Nonimmigrant Students

The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated. An amendment to the Foreign Affairs Manual at 9 FAM 402.5-5(E)(1) revises the “Residence Abroad Required” provision. The new provision states:

b. Examining Residence Abroad: General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.

The old provision stated, in relevant part:

b. The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

c.  The residence abroad requirement for a student should therefore not be exclusively connected to ties. You must focus on the student applicant’s immediate intent. Another aspect to consider: students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.

It is not yet clear how this update will affect future adjudications of the F-1 student visa. It will be important for applicants to emphasize their intent to leave the United States at the end of their studies or optional practical training.

The related section of the FAM is at https://fam.state.gov/fam/09FAM/09FAM040205.html.

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  1. State Dept. Issues New 90-Day Rule for Misrepresentation

The Department of State recently updated the Foreign Affairs Manual at 9 FAM 302.9-4(B)(3) with a new 90-day rule on misrepresentation, related to those in the United States “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to [the Department of Homeland Security] when applying for admission or for an immigration benefit.”

The FAM now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” that states, “If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry…, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” This appears to have discarded the prior “30/60-day rule with respect to adjustment of status after entry on a nonimmigrant visa. That prior rule held that if a person filed for adjustment within 30 days of entry, the government could presume that the person misrepresented his or her intention in seeking a visa or entry. A finding of misrepresentation or fraud could result in a lifetime bar to entering the United States. If the act occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation arose. However, if the facts showed the reasonable belief that intent was misrepresented, the person must present countervailing evidence. If the act occurred more than 60 days after admission into the United States, generally there was no basis for a misrepresentation or inadmissibility finding.

For purposes of applying the new 90-day rule, conduct that violates or is otherwise inconsistent with nonimmigrant status includes:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized (e.g., B Visitor status);
  • Marrying a U.S. citizen or permanent resident and taking up residence in the United States after entering in nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The section explains that if a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit,” they are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

Immigration practitioners note the potentially devastating consequences of this new guidance. The Immigration and Nationality Act states that anyone who, by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the United States.

The related section of the FAM is at https://fam.state.gov/fam/09FAM/09FAM030209.html.

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  1. Firm In The News

Cyrus D. Mehta and Sophia Genovese-Halvorson published State Department Toughens Standard For Assessing A Foreign Student’s Ties With Home Country on September 12, 2017.

Cyrus D. Mehta and Sophia Genovese-Halvorson published A Few Suggestions To Defend Oneself Against A Misrepresentation Finding Under The 90-Day Rule on September 18, 2017.

September 2017 Immigration Update

Headlines

  1. DHS Cancelled Deferred Action for Childhood Arrivals (DACA) – Trump has rescinded DACA and issued a winding down process.
  2. USCIS Denies Pending Advance Parole Applications for H-1B, L Applicants Traveling Outside the United States – Immigration lawyers are advising their H-1B and L clients to avoid traveling internationally while their advance parole applications are pending.
  3. U.S. Nonimmigrant Visa Operations Suspended/Reduced in Russia – The U.S. embassy in Russia has announced that all nonimmigrant visa operations across Russia were suspended as of August 23, 2017, and will resume on a “greatly reduced scale.”
  4. President Trump Pardons Controversial Former Arizona Sheriff Joe Arpaio – President Donald Trump announced that he has pardoned controversial former Maricopa County, Arizona, sheriff Joseph Arpaio. Reaction was swift and widespread.
  5. USCIS To Expand In-Person Interview Requirements for Certain Permanent Residence Applicants – USCIS announced that effective October 1, 2017, it will begin expanding in-person interviews for certain immigration benefit applicants.
  6. ICE Seeks Private Help in Gathering Data on 500,000 Undocumented Immigrants Per Month – The draft Statement of Work says a contractor is sought that will track daily address changes and credit activities of targeted persons (e.g., new aliases, new addresses, new jail bookings, insurance claims, date-of-birth changes, Social Security numbers) using information available from open sources and commercial data sources.
  7. USCIS Alerts Hurricane Harvey Survivors to Available Immigration Services – USCIS said that those making a request should “explain how the impact of Hurricane Harvey created a need for the requested relief.”
  8. GSA Announces New Lease Agreement for USCIS Headquarters in Camp Springs, Maryland – Under the new lease agreement, USCIS will consolidate its headquarters from five leased locations and one federal asset to one facility.
  9. Juan Osuna, Former EOIR Director, Dies – Juan P. Osuna, who was Director of the Executive Office for Immigration Review until his resignation in May 2017, died suddenly on August 15, 2017, at the age of 54.
  10. Firm In The News…

 Details:

 1.  DHS Cancelled Deferred Action for Childhood Arrivals (DACA)

On September 5, 2017, the DHS cancelled DACA, but has created a winding down process as follows:

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted as of the date of this memorandum.
  • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted as of October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
  • Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, U.S. Citizenship and Immigration Services will—of course—retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.

The link to the announcement is at https://www.dhs.gov/topic/deferred-action-childhood-arrivals-daca.

The FAQ on the DACA Rescission is available at https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca

  1. USCIS Denies Pending Advance Parole Applications for H-1B, L Applicants Traveling Outside the United States

According to reports, U.S. Citizenship and Immigration Services (USCIS) has been denying pending advance parole applications for abandonment when applicants travel outside the United States in H-1B or L status. The reason the agency gives is that the instructions to the Form I-131, Application for Travel Document, state that if the applicant leaves the United States before the advance parole document is issued, his or her application for an advance parole document will be considered abandoned. This is despite the fact that for the past 15 years, USCIS reportedly has approved such applications for such individuals traveling abroad with a valid advance parole document or a valid H-1B or L visa while their adjustment of status applications are pending.

Immigration lawyers are advising their H-1B and L clients to avoid traveling internationally while their advance parole applications are pending.

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  1. U.S. Nonimmigrant Visa Operations Suspended/Reduced in Russia

As a result of the Russian government’s personnel cap imposed on the U.S. Mission, the U.S. embassy in Russia has announced that all nonimmigrant visa (NIV) operations across Russia were suspended as of August 23, 2017, and will resume on a “greatly reduced scale.”

Beginning September 1, NIV interviews will be conducted only at the U.S. embassy in Moscow. NIV interviews at the U.S. consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice. As of August 21, the U.S. Mission began canceling current NIV appointments countrywide. The embassy said that NIV applicants who have their interviews canceled should call the number below to reschedule their interviews at the U.S. embassy in Moscow for a later date. NIV applicants originally scheduled for an interview at the U.S. consulates in St. Petersburg, Yekaterinburg, and Vladivostok should call the number below if they wish to reschedule their interviews at the U.S. embassy in Moscow.

The staffing changes will also affect the scheduling of some immigrant visa applicants, the embassy said. Affected applicants will be contacted if there is a change in the time and date of their interviews.

For rescheduling of nonimmigrant visa interviews and other questions, call: +7 (495) 745 3388 or 8 800 100 2554 (ITFN).

The U.S. embassy in Moscow and three consulates will continue to provide emergency and routine services to U.S. citizens, although hours may change. (For U.S. citizen services hours, check the U.S. Mission to Russia website at https://ru.usembassy.gov/u-s-citizen-services/acs-hours.)

Also, the U.S. embassy in Moscow and the U.S. consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus. NIV appointments for Belarussian applicants who have already paid the application fee will be rescheduled. The embassy encourages residents of Belarus to schedule NIV appointments at the U.S. embassies in Warsaw, Kyiv, or Vilnius.

The announcement, which includes questions and answers, is at https://ru.usembassy.gov/fact-sheet/.

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  1. President Trump Pardons Controversial Former Arizona Sheriff Joe Arpaio

President Donald Trump announced on August 25, 2017, that he has pardoned controversial former Maricopa County, Arizona, sheriff Joseph Arpaio. President Trump released a statement noting, among other things, that throughout his time as sheriff, Mr. Arpaio “continued his life’s work of protecting the public from the scourges of crime and illegal immigration.” The statement, noting that Mr. Arpaio had provided more than 50 years “of admirable service to our Nation,” said he is a “worthy candidate for a Presidential pardon.”

Mr. Arpaio, who had been sheriff of Maricopa County for 24 years, was convicted in July of criminal contempt for violating a court order to stop detaining people unconstitutionally without charges based on Latino ethnicity and a belief that they were in the United States illegally. Mr. Arpaio had vowed to continue detaining people, making various statements over the years that drew publicity along with his actions, such as that he would not “back down” and would “never give in to control by the federal government.” He detained hundreds of undocumented immigrants in a jail he called a “concentration camp” and forced them to wear pink underwear.

Reaction was swift and widespread. Sen. John McCain (R-Ariz.) tweeted that “POTUS’s pardon of Joe Arpaio, who illegally profiled Latinos, undermines his claim for the respect of rule of law.” A spokesperson for Paul Ryan (R-Wis.), Speaker of the House of Representatives, said that Rep. Ryan “does not agree with this decision. Law enforcement officials have a special responsibility to respect the rights of everyone in the United States. We should not allow anyone to believe that responsibility is diminished by this pardon.” House Minority Leader Nancy Pelosi (D-Cal.) said Democrats are “sick to our stomach.” Phoenix mayor and Democrat Greg Stanton said, “Pardoning Joe Arpaio is a slap in the face to the people of Maricopa County, especially the Latino community and those he victimized as he systematically and illegally violated their civil rights.”

Mr. Arpaio said he was grateful to President Trump, tweeting his thanks to the President “for seeing my conviction for what it is: a political witch hunt by holdovers in the Obama justice department!”

A copy of the pardon is at http://bit.ly/2wdYkst.

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  1. USCIS To Expand In-Person Interview Requirements for Certain Permanent Residence Applicants

U.S. Citizenship and Immigration Services (USCIS) announced that effective October 1, 2017, it will begin expanding in-person interviews for certain green card applicants. USCIS said this change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and “is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.”

Effective October 1, USCIS will begin to phase in interviews for:

  • Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status); and
  • Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, applicants in these categories did not require an in-person interview with USCIS officers for their applications for permanent residence to be adjudicated. This policy change appears to be part of the Trump administration’s “extreme vetting” plan, referenced in the President’s executive order instituting the travel ban (Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States, issued in January and revised in March). The revised order requires the “development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews.” According to attorneys, the result will likely be more than 100,000 more USCIS in-person interviews per year, which is expected to lengthen wait times for permanent residence applications.

Beyond the immediately affected categories, USCIS said it is planning an incremental expansion of interviews to other benefit types.

USCIS said that conducting in-person interviews will provide USCIS officers with “the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.” USCIS said it will meet the additional interview requirement through enhancements in training and technology as well as transitions in some aspects of case management.

The USCIS notice is at https://www.uscis.gov/news/news-releases/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residency-applicants.

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  1. ICE Seeks Private Help in Gathering Data on 500,000 Undocumented Immigrants Per Month

U.S. Immigration and Customs Enforcement (ICE)’s Enforcement and Removal Operations (ERO) Targeting Operations Division (TOD) is seeking commercial subscription data services to conduct customized analysis, screening, and monitoring of Department of Homeland Security (DHS) priority criminal alien information. According to a recent notice, the TOD will provide targeting information for the provider to set up in a continuous monitoring and alert system to track 500,000 identities per month for specified new data, arrests, and activities.

According to the notice’s draft Statement of Work (SOW), the continuous monitoring and alert system must be able to securely process and return information and addresses using the following types of specified data: FBI numbers; state identification numbers; real-time jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; payday loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records.

The draft SOW states that the contractor will track daily address changes and credit activities of targeted persons (e.g., new aliases, new addresses, new jail bookings, insurance claims, date-of-birth changes, and Social Security numbers) using information available from open sources and commercial data sources.

The contractor will securely return to ICE any information that identifies the possible location of the target and changes in the target’s identifiers.

The notice is at https://www.fbo.gov/index?s=opportunity&mode=form&id=810708b3d86d8cb49520279f2ff3ee9f&tab=core&_cview=0. The draft SOW is at https://www.fbo.gov/index?s=opportunity&mode=form&id=810708b3d86d8cb49520279f2ff3ee9f&tab=core&_cview=0. A related Request for Information is at https://www.fbo.gov/index?s=opportunity&mode=form&id=810708b3d86d8cb49520279f2ff3ee9f&tab=core&_cview=0.

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  1. USCIS Alerts Hurricane Harvey Survivors to Available Immigration Services

USCIS recently issued an alert listing immigration services “that may help people affected by unforeseen circumstances, including disasters such as Hurricane Harvey.” USCIS said that those making a request should “explain how the impact of Hurricane Harvey created a need for the requested relief.” The alert states that the following measures may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of the authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond the person’s control;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Assistance if the individual was unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card); and
  • Rescheduling a biometrics appointment.

The USCIS alert is at https://www.uscis.gov/news/alerts/uscis-alerts-those-affected-hurricane-harvey-available-immigration-services.

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  1. GSA Announces New Lease Agreement for USCIS Headquarters in Camp Springs, Maryland

The General Services Administration has announced a new lease agreement to consolidate U.S. Citizenship and Immigration Services (USCIS) headquarters.

Under the new lease agreement, USCIS will consolidate its headquarters from five leased locations and one federal asset to one facility. The new headquarters will occupy 574,767 rentable square feet at One Town Center, One Capital Gateway Drive, Camp Springs, MD 20746 for a term of 15 years.

The notice is at https://www.uscis.gov/news/news-releases/gsa-announces-new-lease-agreement-us-citizenship-and-immigration-services-camp-springs-md.

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  1. Juan Osuna, Former EOIR Director, Dies

Juan P. Osuna, who was Director of the Executive Office for Immigration Review until his resignation in May 2017, died suddenly on August 15, 2017, at the age of 54. He had also served as chair of the Board of Immigration Appeals and adjunct professor at George Mason School of Law and Georgetown Law School. Other positions included Deputy Assistant Attorney General for the Department of Justice’s Civil Division and Associate Deputy Attorney General with responsibility for the Department’s immigration portfolio. He was a graduate of George Washington University and American University Washington College of Law. He also was editor of Interpreter Releases.

An obituary is at http://bit.ly/2vrbD7D. A tribute by Paul Schmidt, retired U.S. Immigration Judge and former chairman of the Board of Immigration Appeals, is at http://bit.ly/2vGaKe8. A tribute by Stephen Yale-Loehr, co-author of Immigration Law and Procedure, professor at Cornell Law School, and attorney, is at http://aila.org/about/announcements/in-memoriam/juan-osuna-a-life-well-lived-but-cut-too-short.

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  1. Firm In The News

Cyrus D. Mehta published Immigration and Nationality Act Trumps America First on September 3, 2017.

Cora-Ann V. Pestaina published How Binding Are DOL FAQs? On August 22, 2017.

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Mid-August 2017 Immigration Update

Headlines

  1. Labor Dept. Announces Revisions to H-1B, H-1B1, and E-3 Forms, Comment Period – Pursuant to a June news release calling for proposed form changes “to better protect American workers, confront fraud, and increase transparency,” the Department of Labor published a notice announcing its intent to revise its information collection for the H-1B, H-1B1 and E-3 programs.
  2. State Dept. Announces Oversubscription of EB-2 Category, Annual Numerical Limits for Immigration, Change-of-Address NVC Reporting Requirements – The Department of State’s Visa Bulletins for August and September 2017 include news on several topics.
  3. Ninth Circuit Rules Against Good Faith Exception for Unauthorized Worker Employment and I-9 Violations – In a recent decision, the U.S. Court of Appeals for the Ninth Circuit found, among other things, that an employer could not make a good faith defense to a charge of continuing to employ unauthorized workers or failing to properly complete, retain, or produce I-9 employment verification forms.
  4. CBP Says Attorneys Not Allowed in Secondary Inspection Areas of Ports of Entry – Attorneys report that CBP says that as of August 21, 2017, they will not be able to accompany clients in the secondary inspection area of any ports of entry, and that this is a national policy.
  5. Former Airline Staffing Executive Pleads Guilty in Unlawful Fees Case – The executive admitted he falsely certified that he had received no payments, when in fact he had demanded and collected hundreds of thousands of dollars of unlawful fees from approximately 85 mechanics.
  6. CBP Deploys Facial Recognition Biometric Exit Technology at More Airports – CBP has announced the deployment of facial recognition biometric exit technology to several more airports, including McCarran International Airport in Las Vegas, Nevada, for one daily flight from the United States to Guadalajara, Mexico; and to William P. Hobby International Airport in Houston, Texas, for select flights.
  7. Firm in the News…

Details:

  1. Labor Dept. Announces Revisions to H-1B, H-1B1, and E-3 Forms, Comment Period

Pursuant to the Secretary of Labor’s June 6, 2017, news release calling for proposed form changes “to better protect American workers, confront fraud, and increase transparency,” the Department of Labor has published a 60-day notice in the Federal Register announcing its intent to revise its information collection for the H-1B, H-1B1 and E-3 programs.

The revisions include the Labor Condition Application for Nonimmigrant Workers (LCA) Form ETA 9035/9035E (electronic), Form ETA 9035CP accompanying instructions, a new Appendix for the Form ETA 9035/9035E, and the Wage and Hour Division’s WH-4 Nonimmigrant Worker Information Form collection.

The Department says it seeks revisions to the Form 9035/9035E and Form 9035CP Instructions to “streamline parts of the current information collection to assist the regulated community with form completion; provide greater clarity of existing employer obligations under the programs; and promote greater program transparency by collecting additional information on the employment of temporary nonimmigrant workers by U.S. employers.” The Department also seeks revisions to the WH-4 “to provide the form in a LIVECYCLE document to improve accessibility and compliance” with the Rehabilitation Act and the Workforce Investment Act; to “assist the regulated community with form completion”; and to “collect additional information to facilitate complainant communication for the enforcement of Forms 9035 and 9035E.”

Written comments must be submitted in accordance with the 60-day notice’s instructions at https://www.gpo.gov/fdsys/pkg/FR-2017-08-03/pdf/2017-16293.pdf. The August 3, 2017, announcement of the 60-day notice is at https://www.foreignlaborcert.doleta.gov/. The related June 6, 2017, news release noted above is at https://www.dol.gov/newsroom/releases/opa/opa20170606.

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  1. State Dept. Announces Oversubscription of EB-2 Category, Annual Numerical Limits for Immigration, Change-of-Address NVC Reporting Requirements

The Department of State’s Visa Bulletins for August and September 2017 include news on several topics.

The August bulletin notes the oversubscription of the employment-based second preference (EB-2) category. High demand for numbers for U.S. Citizenship and Immigration Services (USCIS) adjustment-of-status applicants has required the establishment of cut-off dates for August for Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines EB-2 visa numbers. The bulletin says this action will allow number use to be held within the Worldwide annual limit. The Department expects the date for these countries to once again become Current for October, the first month of fiscal year (FY) 2018.

The September bulletin notes that any changes of address for applicants processing their cases overseas should always be reported to the National Visa Center (NVC). The bulletin provides details about what to include in communications with NVC and contact information.

The September bulletin also notes the annual determination of the numerical limits on immigrants for FY 2017. The worldwide employment-based preference limit is 140,000. For FY 2017, the per-country limit is 25,620 and the dependent area annual limit is 7,320.

The August bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-august-2017.html. The September bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-september-2017.html.

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  1. Ninth Circuit Rules Against Good Faith Exception for Unauthorized Worker Employment and I-9 Violations

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit found, among other things, that an employer could not make a good faith defense to a charge of continuing to employ unauthorized workers or failing to properly complete, retain, or produce I-9 employment verification forms.

DLS Precision Fab LLC, a Phoenix, Arizona-based custom sheet metal fabrication company doing business as Di-Matrix Precision Manufacturing, had dealt with the sudden growth of its workforce due to an expansion of a Department of Defense program by hiring a well-credentialed human resources director to ensure compliance with applicable state and federal employment laws. Instead of doing so, however, the HR director shirked his responsibilities to the point of “literally stuffing the government’s correspondence in a drawer and never responding,” according to DLS. U.S. Immigration and Customs Enforcement subsequently inspected DLS’s I-9 forms and other relevant business information and served DLS with notices of suspect documents and intent to fine.

The court noted that the good faith defense, as argued by DLS, did not apply here. DLS conceded that its violations were substantive but contended that the “peculiar facts of this case” justified extending the good faith defense to the substantive violations because DLS had made a good faith effort to comply with the law’s employment requirements by hiring an HR director, but the HR director exhibited bad faith by neglecting his duty to keep DLS compliant. The court was not persuaded. Among other things, the court pointed out that under the law, such a defense might apply to technical or procedural, but not substantive, violations. Also, the court said, “DLS is not the first employer to hire an employee with the expectation that he or she will comply with the law only to be disappointed, nor is it likely to be the last. More broadly, DLS asks us to disregard the company’s responsibility for hiring and supervising its own employees. The HR director was acting as DLS’s agent, and his failure to perform his responsibility may properly be imputed to DLS.”

The full text of the opinion, DLS Precision Fab LLC v. U.S. Immigration & Customs Enforcement, 2017 S.O.S. 14-71980 (Aug. 7, 2017), is at http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/07/14-71980.pdf.

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4          CBP Says Attorneys Not Allowed in Secondary Inspection Areas of Ports of Entry

According to reports from attorneys serving clients in New York, the Buffalo office of U.S. Customs and Border Protection is advising that effective August 21, 2017, attorneys cannot accompany clients in the secondary inspection area of any ports of entry, and that this is a national policy.

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  1. Former Airline Staffing Executive Pleads Guilty in Unlawful Fees Case

Following a U.S. Citizenship and Immigration Services (USCIS) investigation, Eleno Quinteros, Jr., former vice president of operations for two airline mechanic staffing companies, pled guilty on August 10, 2017, to charges of making false statements in support of lawful permanent resident petitions for dozens of the companies’ mechanics.

Mr. Quinteros admitted he falsely certified that he had received no payments, when in fact he had demanded and collected hundreds of thousands of dollars of unlawful fees from approximately 85 mechanics. According to the plea agreement, Quinteros collected as much as $567,480 from employees, even though employers are prohibited by law from demanding payment for their fees. Mr. Quinteros used some of the money to pay attorneys assisting with the applications and pocketed the rest.

The employees performed heavy maintenance on aircraft at a variety of locations nationwide. Mr. Quinteros was responsible for recruiting Mexican airline mechanics to work in the United States, and for helping recruits to obtain work visas such as TN or H-2B visas. According to the indictment, Mr. Quinteros first assisted recruits in obtaining work visas to come to the United States. He then agreed to help at least 85 of them pursue lawful permanent residence in exchange for substantial, unlawful fees. He instructed many employees to deposit money in his wife’s bank account or provide him with blank money orders to conceal the source of the unlawful funds.

Mr. Quinteros pleaded guilty to a single count of making a false claim in support of an immigration application. He admitted in his plea, however, that the underlying scheme involved more than 25 immigration documents. His sentencing is set for November 6, 2017.

USCIS’s announcement is at https://www.uscis.gov/news/uscis-investigation-results-guilty-plea-former-airline-staffing-executive.

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  1. CBP Deploys Facial Recognition Biometric Exit Technology at More Airports

U.S. Customs and Border Protection (CBP) has announced the deployment of facial recognition biometric exit technology to several more airports, including McCarran International Airport in Las Vegas, Nevada, for one daily flight from the United States to Guadalajara, Mexico; and William P. Hobby International Airport in Houston, Texas, for select flights. This follows recent deployments of the technology to Washington Dulles International Airport; George Bush Intercontinental Airport in Houston, Texas; and O’Hare International Airport in Chicago, Illinois. An initial pilot was also conducted at Hartsfield-Jackson Atlanta International Airport. Additional deployments are planned in the near future.

John Wagner, CBP’s Deputy Executive Assistant Commissioner for Field Operations, said, “With the expansion of this technology we will be looking at different flights, airports, lighting conditions, and internal IT configurations to demonstrate to our stakeholders that this solution is flexible, reliable and easy for travelers to use.” Using the flight manifest, CBP builds a flight-specific photo gallery using photographs from the travel document the traveler provided to the airline. CBP then compares the live photo against the document photo in the gallery to ensure that the traveler is the true bearer of the document. If the photo captured at boarding is matched to a U.S. passport, the traveler—having been confirmed as a U.S. citizen—is automatically determined to be out of scope for biometric exit purposes and the photo is “discarded after a short period of time,” CBP said, adding that it “remains committed to protecting the privacy of all travelers.”

The announcement is at https://www.cbp.gov/newsroom/local-media-release/cbp-deploys-biometric-exit-technology-las-vegas-mccarran-international.

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  1. Firm in the News

Cyrus D. Mehta published RAISE Act Will Hurt Immigrants, American & America on August 6, 2017.

David Isaacson published Watson v. United States: The Second Circuit Tells U.S. Citizens Improperly Detained by ICE to File Their Claims for Damages While Their Immigration Court Case is Ongoing on August 15, 2017.

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August 2017 Immigration Update

Headlines:

  1. Sens. Graham, Durbin Introduce Bipartisan ‘Dream Act’– On July 20, 2017, Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) introduced the “Dream Act,” a bipartisan legislative effort that would allow immigrant students who grew up in the United States to earn lawful permanent residence.
  2. DHS Increases FY 2017 Limit on H-2B Temporary Nonagricultural Workers – The Departments of Homeland Security and Labor issued a “temporary rule” on July 19, 2017, to increase the limit of 66,000 H-2B nonimmigrant visas by authorizing the issuance of up to an additional 15,000 visas through the end of fiscal year 2017.
  3. Supreme Court Allows Temporary Exemption for Grandparents, Others From Travel Ban, But Not for Certain Refugees – On July 19, 2017, the U.S. Supreme Court allowed a temporary exemption of grandparents and certain other relatives of those in the United States from President Donald Trump’s travel ban to stand, but continued the temporary travel ban for certain refugees.
  4. USCIS To Resume H-1B Premium Processing for Certain Cap-Exempt Petitions – USCIS has resumed premium processing for certain cap-exempt H-1B petitions as of July 24, 2017.
  5. USCIS Announces Return of All Unselected FY 2018 H-1B Cap-Subject Petitions – Those who submitted an H-1B cap-subject petition between April 3 and April 7, 2017, but have not received a receipt notice or a returned petition by July 31 may contact USCIS for assistance.
  6. USCIS Revises I-9 Employment Eligibility Verification Form – Employers can use the revised version or continue using Form I-9 with a revision date of 11/14/16N through September 17, 2017. On September 18, employers must use the revised form with a revision date of 07/17/17N.
  7. ABIL Global: Peru – A new law establishes a series of changes to the law on migration with respect to citizen security; standards for the internal and external immigration policy of Peru, including some aspects of the National Superintendence of Immigration; and the regulation of border security, among other important aspects. The ultimate aim of the new law is to simplify and order the immigration law protecting the fundamental rights of national and foreign citizens, and strengthen national security.
  8. Firm In The News…

Details:

  1. Sens. Graham, Durbin Introduce Bipartisan ‘Dream Act’

On July 20, 2017, Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) introduced the “Dream Act,” a bipartisan legislative effort that would allow immigrant students who grew up in the United States to earn lawful permanent residence. As of press time, co-sponsors also included Sen. Jeff Flake (R-AZ) and Sen. Charles Schumer (D-NY).

“These young people have lived in America since they were children and built their lives here,” said Sen. Graham. “There is support across the country for allowing Dreamers—who have records of achievement—to stay, work, and reach their full potential. … [T]his may be an area where both parties can come together.”

Sen. Durbin said, “I’ll do everything in my power as a United States Senator to protect these Dreamers and give them the chance to become American citizens so they can contribute to a brighter future for all Americans. I first introduced the Dream Act 16 years ago and I’ll continue fighting until it becomes the law of the land. I thank Senator Graham for partnering with me in this bipartisan effort.”

The Dream Act would allow eligible young people to earn lawful permanent residence, and eventually U.S. citizenship, if they:

  • Are longtime residents who came to the United States as children;
  • Graduate from high school or obtain a GED;
  • Pursue higher education, work lawfully for at least three years, or serve in the military;
  • Pass security and law enforcement background checks and pay a reasonable application fee;
  • Demonstrate proficiency in the English language and a knowledge of United States history; and
  • Have not committed a felony or other serious crimes and do not pose a threat to the United States.

The text of the bill, S. 1615, is at https://www.congress.gov/bill/115th-congress/senate-bill/1615/cosponsors?q=%7B%22search%22%3A%5B%22congressId%3A115+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&r=43&overview=closed. A related joint statement from Sens. Graham and Durbin is at https://www.lgraham.senate.gov/public/index.cfm/press-releases?ID=EFDA943E-0686-45FB-A1DC-8621EC6716CE. A one-page summary is at https://www.durbin.senate.gov/imo/media/doc/The%20Dream%20Act%20onepager%20final.pdf. A section-by-section summary is at https://www.durbin.senate.gov/imo/media/doc/Dream%20Act%20of%202017%20section%20by%20section.pdf.

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  1. DHS Increases FY 2017 Limit on H-2B Temporary Nonagricultural Workers

The Departments of Homeland Security and Labor issued a “temporary rule” on July 19, 2017, to increase the limit of 66,000 H-2B nonimmigrant visas by authorizing the issuance of up to an additional 15,000 visas through the end of fiscal year 2017. The Departments said this is a one-time increase “based on a time-limited statutory authority” and does not affect the H-2B program in future fiscal years. They plan to promulgate regulations to implement this determination. The rule is effective July 19, 2017, through September 30, 2017.

The Departments explained that because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory requirement that employers apply for labor certification 75 to 90 days before the start date of work, employers who wish to obtain visas for their workers under the semi-annual allotment must act early to receive a temporary labor certification (TLC) and file a petition with USCIS. As a result, the Departments noted, the Department of Labor typically sees a significant spike in TLC applications for H-2B visas for temporary or seasonal jobs during the U.S.’s warm weather months. For example, in FY 2017, of the TLC applications filed in January, the Office of Foreign Labor Certification (OFLC) certified 54,827 worker positions for start dates of work on April 1, in excess of the entire semi-annual visa allocation. U.S. Citizenship and Immigration Services received sufficient H-2B petitions to meet the second half of the fiscal year regular cap on March 13, 2017. This was the earliest date that the cap was reached in a respective fiscal year since FY 2009 and reflects an ongoing trend of high program demand, the Departments explained.

Following consultation with the Secretary of Labor, the Secretary of Homeland Security determined that the needs of some U.S. businesses could not be satisfied in FY 2017 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. The Secretary of Homeland Security determined that it was appropriate to raise the numerical limitation on H-2B nonimmigrant visas by up to an additional 15,000 for the remainder of the fiscal year, which ends September 30. Consistent with such authority, the Secretary of Homeland Security decided to increase the H-2B cap for FY 2017 by up to 15,000 additional visas for those U.S. businesses that attest to a level of need such that, if they do not receive all of the workers under the cap increase, they are likely to suffer irreparable harm; i.e., a permanent and severe financial loss. These businesses must attest that they will likely suffer irreparable harm and must retain documentation supporting this attestation, the Departments note.

The Secretary of Homeland Security’s determination to increase the numerical limitation was based on the conclusion that “some businesses face closing their doors in the absence of a cap increase.” The Departments noted that some stakeholders reported that access to additional H-2B visas is essential to the continued viability of some small businesses that play an important role in sustaining the economy in their states, while others stated that an increase is unnecessary and raises the possibility of abuse. The Secretary of Homeland Security has deemed it “appropriate, notwithstanding such risk of abuse, to take immediate action to avoid irreparable harm to businesses; such harm would in turn result in wage and job losses by their U.S. workers, and other adverse downstream economic effects.”

The rule, which was published at 82 Fed. Reg. 32987 (July 19, 2017), is at https://www.gpo.gov/fdsys/pkg/FR-2017-07-19/html/2017-15208.htm. Details on eligibility and filing requirements are also available at https://www.uscis.gov/working-united-states/temporary-workers/one-time-increase-h-2b-nonimmigrant-visas-fy-2017. The page includes an email address for reporting fraud and abuse at ReportH2Babuse@uscis.dhs.gov.

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  1. Supreme Court Allows Temporary Exemption for Grandparents, Others From Travel Ban, But Not for Certain Refugees

On July 19, 2017, the U.S. Supreme Court allowed a temporary exemption of grandparents and other relatives (grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law) of those in the United States from President Donald Trump’s temporary travel ban to stand. However, the court continued the temporary travel ban for certain refugees, at least until the U.S. Court of Appeals for the Ninth Circuit can review the related appeal. The people affected are from Iran, Syria, Sudan, Libya, Yemen, and Somalia. Also exempt from the travel ban, per a Trump administration list, are parents, spouses, fiancé(e)s, sons, daughters, sons-in-law, daughters-in-law, and siblings.

The Supreme Court also denied the Trump administration’s motion to clarify its order of June 26, 2017. The Supreme Court’s brief order is at https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf.

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  1. USCIS To Resume H-1B Premium Processing for Certain Cap-Exempt Petitions

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for certain cap-exempt H-1B petitions as of July 24, 2017.

USCIS explained that the H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher. Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; or
  • A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization, or entity.

Cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker. The I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.

USCIS previously announced that premium processing resumed on June 26, 2017, for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.

USCIS said it plans to resume premium processing for other H-1B petitions “as workloads permit.” USCIS plans to make additional announcements with specific details related to when the agency will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907s filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I-129 fees, USCIS will reject both forms.

The USCIS announcement is at https://www.uscis.gov/news/uscis-resume-h-1b-premium-processing-certain-cap-exempt-petitions.

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  1. USCIS Announces Return of All Unselected FY 2018 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on July 19, 2017, that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected by the agency’s computer-generated random selection process. USCIS previously announced that it had completed data entry for all selected cap-subject petitions.

USCIS said that those who submitted an H-1B cap-subject petition between April 3 and April 7, 2017, but have not received a receipt notice or a returned petition by July 31 may contact USCIS for assistance. Contact information is at https://www.uscis.gov/about-us/contact-us. The announcement is at https://www.uscis.gov/news/alerts/uscis-returns-unselected-fiscal-year-2018-h-1b-cap-subject-petitions.

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  1. USCIS Revises I-9 Employment Eligibility Verification Form

On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification. USCIS said employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16N through September 17, 2017. On September 18, employers must use the revised form with a revision date of 07/17/17N. The revised form includes the changes summarized below.

Revisions to the Form I-9 instructions:

  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to its new name, Immigrant and Employee Rights Section.
  • “the end of” has been removed from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) has been added to List C. Employers completing the I-9 on a computer can select Form FS-240 from the dropdown menus in List C of Sections 2 and 3. E-Verify users can also select Form FS-240 when creating a case for an employee who has presented this document for Form I-9 purposes.
  • All the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined into selection C #2 in List C.
  • All List C documents except the Social Security card have been renumbered. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

The notice is at https://www.uscis.gov/news/alerts/revised-form-i-9-now-available. USCIS said it has also included these changes in the I-9 handbook for employers, at https://www.uscis.gov/i-9-central/handbook-employers-m-274. The revised form, in English and Spanish, is at https://www.uscis.gov/i-9.

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  1. ABIL Global: Peru

On January 7, 2017, legislative decree N° 1350, the “New Law of MIGRACIONES,” was published in the Official Gazette El Peruano under the powers delegated by the Peruvian Congress by virtue of Law No. 30506. The new law establishes a series of changes to the law on migration with respect to citizen security, standards for the internal and external immigration policy of Peru, including some aspects of the National Superintendence of Immigration (MIGRACIONES), and the regulation of border security, among other important aspects. The ultimate aim of the new law is to simplify and revise the immigration law protecting the fundamental rights of national and foreign citizens, and to strengthen national security.

Legislative Decree N° 1350, in force since March 1, 2017, means considerable progress because it changes the scheme considerably with respect to immigration categories and statuses, and creates several new immigration statuses, among other things. New regulations were published in El Peruano on March 27, 2017, with Supreme Decree No. 007-2017-IN.

With the entry into force of the new law, the former Aliens Law N° 703 and its amendment, Legislative Decree N° 1043, were repealed along with Legislative Decree No. 1236 and any rule that violates Legislative Decree No. 1350.

The law includes two important changes:

  1. With respect to temporary migratory status for business, the new law allows foreigners who do not intend to live in Peru to perform business, legal, contractual, and specialized technical assistance or similar activities in Peruvian territory. The status is granted for 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peru. This status is not renewable for temporary migration for business.
  2. “Appointed worker” status is now granted not only on a temporary basis, but also as a resident status.

Thus, foreign individuals coming to work in Peru to carry out labor activities in the national territory, which consist of the accomplishment of a specific task or function or a job that requires specialized professional, commercial, or technical knowledge and who are sent by a foreign employer, as well as those who are commissioned by a highly specialized international corporation for the repair or maintenance of machinery or technically complex or advanced systems or mechanisms, or for corporate audits and international certifications, may receive a temporary visa with an authorized stay of 183 days, consecutive or cumulative, over a period of one year counted from the first entry into Peruvian territory, extendable up to a total of one year, maximum. In sum, for temporary appointed worker migratory status, the initial authorized period of stay is 183 days (consecutive or cumulative), which can be extended in a subsequent process up to one year. For resident appointed worker migratory status, the visa is granted for one year, renewable.

Both types of status allow multiple entries. Foreigners with resident appointed worker migratory status will hold a foreign card (carné de extranjería).

A foreigner with this migratory status cannot carry out paid or lucrative activities, either self-employed such as freelancing or independent contracting, or working as a subordinated employee, in Peru.

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  1. Firm In The News

Cyrus D. Mehta was a Panelist on the topic Ethical Issues in Removal Proceedings, at Defending Immigration Removal Proceedings 2017, organized by Practising Law Institute, New York, July 20, 2017.

Cyrus D. Mehta published Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply to All Immigration Benefits on July 18, 2017; Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform on July 24, 2017; and H-1B Entry Level Wage Blues on July 31, 2017

David Isaacson published Travel Ban: FAQs – Updated 07/19/2017 on July 19, 2017.

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July 2017 Global Immigration Update

Feature Article:

DATA PROTECTION: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to data protection.Country Updates

Country Updates:

GERMANY – Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

ITALY – The Italian government has reintroduced filing fees for the residence permit “permesso di soggiorno” application.

PERU – There have been new legislative developments in Peruvian immigration law.

RUSSIA – Several Presidential Orders have been issued with respect to tournament security and the lifting of limitations on Turkish travel.

UNITED KINGDOM – Prime Minister Theresa May recently announced to European leaders in Brussels how she plans to deal with European Union (EU) citizens living in the UK post-Brexit.

Feature Article

DATA PROTECTION: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to data protection.

Italy

Under Italian law, third parties using personal data must comply with Decree 196/2003 (Privacy Code). The law states that any person who engages in the processing of data within their operations shall at a minimum adopt security measures to guarantee complete confidentiality of the personal data processed. The transfer of sensitive data to non-European Union (EU) countries is subject to rules governed by article 43 of the Decree; which provides that the transmission of personal information from Italy to any country outside the EU, even when it is temporary or by use of any method, is only permitted when:

(i) the interested party has expressed consent (for highly sensitive information, permission must be in writing); or (ii) the transfer is necessary for the execution of contractual duties or for the fulfillment of specifications requested by the interested party before the conclusion of the contract or for the termination or the execution of a contract stipulated on behalf of the concerned party.

The transfer of information is also permitted when it is authorized by the guarantor, based on adequate assurances provided by the interested party. However, the transfer of personal data to any country outside the EU from Italy is strictly forbidden when the destination country does not guarantee an adequate level of preservation for the sensitive data.

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Country Updates

GERMANY

Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

With the ICT Scheme, the EU Directive aims at providing a common framework for all participating member states (the United Kingdom, Ireland, and Denmark opted out) covering the GATS Mode 4 commitments on Intra-Group Transfers.

Overview: To be subject to this ICT scheme, third-country nationals must obtain a so-called ICT permit issued by the participating EU country where they will spend most of their time. The ICT permit is the first EU immigration permit that allows employment not just in the issuing member state but in a second member state for a period of up to 90 days (short-term mobility). To exercise the right to short-term mobility, the holder of an ICT permit issued by another member state must notify the Bundesamt für Migration und Flüchtlinge (BAMF) of the intended employment by providing information on the salary and work conditions. Unless the German administration actively refuses approval of the intended travel within 20 days, the third-country national is legally allowed to engage in short-term mobility under the conditions notified. Holders of an ICT permit issued by a fellow member state may also relocate for a period of more than 90 days to Germany by applying for a Mobile ICT card at the German immigration authorities before the transfer. If such an application is submitted 20 days before the start of the transfer and the ICT permit of the other EU member state is still valid, staying in Germany and working at the German entity is permitted for 90 days until the immigration authority’s decision has been made.

Eligibility: The ICT Card can be issued to third-country nationals dispatched from their employer abroad to work as a CEO/CFO/comparable manager, specialist, or trainee at a group company in Germany. Its validity is limited to a maximum of three years for CEO/CFO/comparable manager or specialist, and one year for trainees. The group relationship requires a group of companies that functions as a single economic entity through a common source of control, either by direct or indirect 51 percent ownership or domination agreements creating a structure of parent and subsidiary/affiliated companies. Managers are defined as persons directing the host entity or one of its departments with the power to “hire and fire” and who have sole responsibility for a substantial budget and report directly to directors or shareholders. A specialist needs to prove essential and specific knowledge in the area of business and/or the group company or host entity procedures, and a high level of qualification and relevant experience. Before a transfer to Germany, the applicant in the CEO/CFO/manager/specialist category must be employed with an entity of the same company or group for at least six months. A trainee is qualified by a university degree to undergo a paid traineeship during which, as part of the professional development, training in business techniques and methods is received.

Application process: The third-country national aiming for a German ICT Card must file a visa application with the German mission abroad at the place of residence. Visa waiver schemes that exist for other immigration categories and apply to certain nationalities may not be used when applying for the ICT Card. The ICT Card is subject to an internal approval procedure, which includes the German labor authority’s verifying that salary and employment conditions will be comparable to those of German employees.

Note that when dealing with the ICT scheme, the implementations of the framework differ within the different EU member states.

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ITALY

The Italian government has reintroduced filing fees for the residence permit “permesso di soggiorno” application.

The new amounts are:

  • Residence permit card valid from 3 months to 1 year: €40
  • Residence permit card valid from 1 to 2 years: €50
  • EC residence permit card for long-term residents and intra-company residence permit: € 100

Fixed expenses remain in place at about €76 (€30.46 for the electronic card; €16 for the application stamp, and €30 for the mailing fee).

As background, in October 2011, a joint ministerial decree introduced high residence permit application/renewal fees (from €80 to €200, depending on the type and duration of the permit, in addition to the fixed expenses already in place). In 2015, the European Court of Justice judged the tax to be a violation of European Union (EU) regulations. Subsequently, the Regional Administrative Court of Lazio declared the residence permit tax illegal and abolished the fee on applications in May 2016. On September 14, 2016, with Presidential Decree No. 03903/2016, the Council of State decided to suspend the court order of the TAR, Lazio’s Regional Administrative Court, and the fees were temporarily reintroduced, until a final decision was reached. Again, in November 2016, the Council of State confirmed the abolishment of the residence permit application/renewal fees introduced in 2011 (€80 to €200). New fees are in place now, as noted above, but they are lower than the amounts introduced in 2011 that were challenged by the European Court of Justice.

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PERU

There have been new legislative developments in Peruvian immigration law.

On January 7, 2017, legislative decree N° 1350, the “New Law of MIGRACIONES,” was published in the Official Gazette El Peruano under the powers delegated by the Peruvian Congress by virtue of Law No. 30506. The new law establishes a series of changes to the law on migration with respect to citizen security, standards for the internal and external immigration policy of Peru, including some aspects of the National Superintendence of Immigration (MIGRACIONES), and the regulation of border security, among other important aspects. The ultimate aim of the new law is to simplify and order the immigration law protecting the fundamental rights of national and foreign citizens, and strengthen national security.

Legislative Decree N° 1350, in force since March 1, 2017, means considerable progress because it changes the scheme considerably with respect to immigration categories and statuses, and creates several new immigration statuses, among other things. New regulations were published in El Peruano were published on March 27, 2017, with Supreme Decree No. 007-2017-IN.

With the entry into force of the new law, the former Aliens Law N° 703 and its amendment, Legislative Decree N° 1043, were repealed along with Legislative Decree No. 1236 and any rule that is opposed to Legislative Decree No. 1350.

The law includes two important changes:

  1. With respect to temporary migration for business, the new law allows foreigners without the intention of residing in Peru to perform business, legal, contractual, and specialized technical assistance or similar activities in Peruvian territory. The status is granted for 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peru. This status is not renewable.
  2. “Appointed worker” status is now granted not only on a temporary basis, but also as a resident status.

Thus, foreign individuals coming to work in Peru to carry out labor activities in the national territory, which consist of the accomplishment of a specific task or function or a job that requires specialized professional, commercial, or technical knowledge and who are sent by a foreign employer, as well as those who are commissioned by a highly specialized international corporation for the repair or maintenance of machinery or technically complex or advanced systems or mechanisms, or for corporate audits and international certifications, may receive a temporary visa with an authorized stay of 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peruvian territory, extendable for the same term but less than 1 year. In case of residents 365 days, renewable.

Both allow multiple entries. Foreigners with the migratory status of resident—appointed worker will hold a foreign card (carné de extranjería).

A foreigner with this migratory status cannot carry out paid or lucrative activities for his or her own account in Peru.

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RUSSIA

Several Presidential Orders have been issued with respect to tournament security and the lifting of limitations on Turkish travel.

Security measures during tournaments. In accordance with Presidential Order No. 202 dated September 5, 2017, “On security measures during the World Cup FIFA 2018 and Confederation Cup FIFA 2017,” rules of address registration are subject to change. The Confederation Cup will be held from June 1 until July 12 in Moscow, St. Petersburg, Kazan, and Sochi. The World Cup will be held from May 25 until July 25, 2018, in Moscow, St. Petersburg, Volgograd, Ekaterinburg, Kazan, Kaliningrad, Nizhni Novgorod, Samara, Rostov on Don, Saransk, and Sochi.

The changes will affect both Russian and foreign citizens.

Russian citizens who arrive in these cities during the tournaments should apply to register their arrival in the place of temporary residence within three calendar days of arrival.

Foreign nationals who have entered Russia during these tournaments should register their addresses within one calendar (not working) day from the arrival date. Foreign nationals arriving in Russia during a weekend or public holiday should register with the immigration authorities within 24 hours of arrival. Immigration authorities work during weekends and public holidays.

The new address registration rules apply to all foreign nationals regardless of the purpose of the visit, whether tourism, business, or on a work permit, including HQS. The new rules are applicable only during the tournaments and only in the mentioned cities.

The only exclusion to the new rules applies to Russian citizens and foreign nationals who are participants in the Confederation Cup and World Cup, FIFA official representatives and related organizations, and national football associations that are included in the FIFA accredited list.

Limitations lifted on Turkish travel. Also, in accordance with Presidential Order No. 224 dated May 31, 2017, “On termination of particular economic measures related to Turkish Republic,” Turkish nationals may travel to Russia for tourism, business, or work purposes. The limitations that have been in place from November 2015 have been terminated. The order came into force as of May 31, 2017.

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UNITED KINGDOM

Prime Minister Theresa May recently announced to European leaders in Brussels how she plans to deal with European Union (EU) citizens living in the UK post-Brexit.

The UK government has released “The United Kingdom’s Exit from the European Union,” which provides more detail on the Prime Minister’s approach and offering to EU citizens.

The Prime Minister has pledged that EU citizens who arrived in the UK before the triggering of Article 50 will be entitled to stay and those who arrive after the “cut-off” date will be given a two-year “grace period” after Brexit to obtain permission to remain in the UK or return to their home countries. She has not stated when the “cut-off” date will be, but the actual Brexit day, March 29, 2019, is a possibility.

Below is a summary of the proposal:

  • All EU citizens living in the UK will be transitioned into UK domestic law post-Brexit—this is not an automatic transfer, so EU citizens will need to proactively apply to the Home Office to remain in one of the categories under UK Immigration Rules. This will be the UK’s replacement scheme for EU free movement law.
  • In the interim, the UK will be looking to introduce a voluntary scheme for EU citizens to apply under UK Immigration Rules for indefinite leave to remain before Brexit.
  • Beginning on March 29, 2019, a two-year transitional period will apply (until March 29, 2021) where EU citizens resident in the UK will have deemed leave under the UK Immigration Rules. This is the “grace period” to allow EU citizens to regularize their UK status post-Brexit. If the EU citizen does not apply for permission to stay before this two-year grace period ends, the EU citizen will lose his or her right to stay in the UK afterwards.
  • EU citizens who acquired permanent residence in the UK before the “cut-off” date will be given a new settled status. However, the “cut-off” date has yet to be clarified—it could be March 29, 2017, or March 29, 2019. The EU citizen will still need to meet a number of requirements. It has been proposed that upon application, the EU citizen will be assessed on his or her length of residency (usually five years) and on conduct and criminality, mainly to ensure that the applicant is not a threat to the UK. There was no mentioning of the effect of absences, but it is likely that this will be assessed as part of the application. Also, there would only be an entitlement to apply, not an entitlement to indefinite leave (permission) to remain in the UK.
  • EU citizens who are in the process of acquiring the right of permanent residence before the “cut-off date” will be able to continue their track to indefinite leave to remain after five years of residence in the UK if they can show they have been working or studying. It is unclear how much self-employed EU citizens working in the UK will be protected.
  • EU citizens who arrive after the “cut-off” date will need to come under UK Immigration Rules, but the applicable rules have not yet been determined.
  • Irish citizens will not be affected and can remain in the UK. However, family members of Irish citizens (who are not Irish or UK citizens) will not be able to rely on the EU free movement law after Brexit and must apply under UK Immigration Rules, as with any other EU and non-EU citizen.
  • Family members of EU citizens will be treated in line with the principal EU citizen but they too must meet the residence requirement of five years and also demonstrate that they are in a genuine relationship with the EU national—this could include providing evidence of cohabitation. However, family members of EU nationals who arrive in the UK after the “cut-off” date will not be covered by the transitional arrangements and must apply under UK Immigration Rules.
  • Children born in the UK to EU citizens who hold permanent residence before the child’s birth will automatically be British. Therefore, EU citizens must show that they acquired permanent residence under the EU free movement law before their child was born in the UK for their child to be born British.
  • However, children born overseas or children born in the UK to EU citizen parents (who do not have permanent residence) will be eligible to apply for indefinite leave to remain. This would apply regardless of when the child was born or when he or she arrived in the UK. An EU citizen parent who arrived in the UK before the “cut-off” date and must apply for permission to stay in the UK post-Brexit also must apply for the same permission for his or her child.
  • Existing rules on the rights of EU citizens and UK nationals to export UK social welfare benefits to the EU will be protected for those who are exporting such UK social benefits on the “cut-off” date.
  • UK state pensions are currently payable to anyone eligible, wherever they reside in the world, but annual increases (known as uprating) are only payable to those living in the EU due to current EU law. The UK intends to continue to export and uprate the UK state pension within the EU, provided that the EU will also do the same and this will be agreed through negotiations.
  • The UK will seek to protect healthcare arrangements with the view of ensuring that EU citizens living in the UK will still be eligible for National Health Service-funded healthcare in the UK. This is only on the basis that the EU will also provide the same for UK nationals living in the EU but there is no indication as to what these reciprocal healthcare provisions may be.
  • Confirmation that current EU citizen students enrolled in a UK course at a UK university or further education institution in the academic years of 2017/18 and 2018/19 will continue to be eligible for student support and home fee status for the duration of their course.
  • The UK will seek to ensure that professional qualifications obtained before Brexit will continue to be mutually recognized so that these professionals can continue to practice in the UK without unfair detriment or discrimination.
  • The European courts will not have jurisdiction in the UK—the arrangements will only be enforceable through the UK judicial system.

There are still many questions, and many European nationals living in the UK await the formalization of these propositions.

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