December 2017 Global Immigration Update

Feature Article  

EFFECT OF CRIMINAL CONVICTIONS ON IMMIGRATION: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to the effect of criminal convictions on immigration.

Country Updates

EUROPEAN UNION – The European Court of Justice recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union Member States.

ITALY – The “Investor Visa for Italy” platform has been launched. Also, Italy warns of a scam in which citizenship is promised quickly. Also, residence permits have been extended to unmarried partners of Italian citizens, and there is a simplified procedure for start-up incorporation.

TURKEY – The situation with respect to the United States-Turkey visa suspension implemented in October 2017 remains extremely volatile and changes frequently.

UNITED KINGDOM – The United Kingdom plans to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year. Also, the British government has published a technical note on its proposed administrative procedures for European Union citizens living in the UK, and their family members, who want to stay on after Brexit.

Feature Article

EFFECT OF CRIMINAL CONVICTIONS ON IMMIGRATION: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to the effect of criminal convictions on immigration.

Canada

In addition to meeting the specific eligibility requirements for either temporary or permanent immigration programs, a foreign national who wishes to visit, study, work, or permanently settle in Canada must ensure admissibility to Canada before arrival. The grounds on which a foreign national may be found inadmissible to Canada are set out in sections 34 to 45 of the Immigration and Refugee Protection Act (IRPA). Among these, subsections 36(1) and 36(2) of IRPA establish serious criminality and “simple” criminality as grounds of inadmissibility.

Under subsection 36(1) of IRPA, serious criminality is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed” or “having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. Subsection 36(2) pertains to “simple” criminality, which is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence” or “having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament”.

It is important to note that individuals who are already permanent residents of Canada may be found inadmissible for serious criminality and can be subject to removal proceedings. On the other hand, foreign nationals can be found inadmissible for both “simple” criminality and serious criminality.

To determine whether a foreign national convicted of an offence abroad is inadmissible to Canada, it is necessary to perform a thorough criminal equivalency analysis. If the essential elements of the foreign law creating the offense pursuant to which a foreign national was convicted are comparable to the essential elements of the equivalent Canadian offense, a foreign national may be found inadmissible on criminality or serious criminality grounds. It is noteworthy to mention that in Canada, a conviction for “Driving Under the Influence of Alcohol” (DUI) is generally considered to be a criminal offense (rather than a summary conviction) that renders a foreign national inadmissible to Canada. Following a proper equivalency assessment, if the foreign DUI conviction is indeed considered similar enough to the Canadian offense of “Operating While Impaired,” a foreign national will be found inadmissible to Canada on criminality grounds.

Should a foreign national or permanent resident of Canada be found inadmissible, IRPA provides three different scenarios under which a foreign national can either permanently or temporarily overcome inadmissibility and gain entry into Canada to visit, work, study, or permanently settle: (1) If 10 years have elapsed since the completion of the imposed sentence, a foreign national can be deemed rehabilitated without the need to submit a formal application. A person who is deemed rehabilitated permanently overcomes his or her inadmissibility and may be granted entry into Canada with evidence to support that he or she has completed all the terms of the sentence. (2) If only 5 years have elapsed since the completion of the sentence, a foreign national may apply for permanent criminal rehabilitation by demonstrating that he or she is leading a stable lifestyle and is unlikely to commit another criminal offense. (3) Alternatively, if less than five years have elapsed, an application for a Temporary Resident Permit (TRP) can be made.

Italy

Foreigners seeking to enter Italy may be subject to checks by border, customs, currency, and health authorities.

If all of the requirements are not met, entry may be refused at the border, even if the individual has a valid visa. Under Article 10-bis of Italian Immigration Law, any foreigner who enters or stays in Italy illegally will be fined from € 5,000 to € 10,000.

Upon entering Italy, a foreign national must:

  • Enter through an official border crossing point;
  • Hold a valid passport or equivalent travel document authorizing entry;
  • Hold an entry/transit visa, if required;
  • Have enough money to cover the stay and the return trip (showing a return ticket is sufficient proof)
  • Have documents to justify the purpose and conditions of the stay

According to the Schengen Visa Code, entrance into Italy is not permitted to those who are considered a threat to public order, to the safety of the state, or to one of the other Schengen Member States.

To enter Italy, foreign nationals must not:

  • Be listed in the Schengen Information System as an inadmissible person
  • Be subject to expulsion measures
  • Be considered a threat to public order, national security, and international relations, as well as a threat to public order or national security of other Schengen countries
  • Have been convicted, whether or not the sentence is definitive, for crimes providing for arrest in flagrancy (such as homicide, robbery, riot, harm against public officers under the Italian Criminal Code) or for crimes relating to:
    • Trafficking in dangerous substances, including narcotics
    • Sex offenses and abuses
    • Aiding and abetting of illegal immigrants in Italy and of illegal emigrants from Italy to other states
    • Prostitution exploitation
    • Employment of minors in illicit activities
  • Be convicted, by final judgment, of a copyright-related offense (Law on Copyright and the Italian Criminal Code)
  • Be subject to a previous expulsion order; re-entry before the order allows is permitted only if special permission by the Ministry of Interior is obtained or if the entry ban is lifted beforehand by authorities

Police checks on individuals entering Italy or applying for a visa are made through the Schengen Security System (SIS) database and other available international databases (such as Interpol or Europol). No specific information or representation about past criminal charges is asked of individuals applying for a visa or to non-visa nationals (U.S. citizens) entering the country as business or tourist visitors.

Accordingly, if an individual is not “blacklisted” in the SIS or the other available security databases, he or she should not have any problems in entering Italy and the Schengen area.

Netherlands

When it comes to the relevance of criminal convictions for immigration issues, we should make a clear distinction between short stay on the one hand (less than 90 days), with a Schengen visa or on a free term, and long stay on the other hand. Long stay means more than 90 days and requires a residence permit. Short stay is regulated supranationally under the Schengen Treaty. This treaty is aimed at removing internal border controls between the Member States, and establishing a communal outside border. This means that a Schengen visa is valid for the entire Schengen area, and the rules for denying entry due to drug-related convictions are the same in every Member State. The policy has been laid down in the Schengen visa code.

A long-term stay, with a residence permit, is also mostly regulated by a supranational organization, the European Union (EU). The EU has issued many directives (which are binding on Member States) regulating the issuing of permits for family reunification, students, knowledge workers, seasonal workers, intra-EU migration, and many more categories. For all these permits, the EU decides whether they can be denied in case of a conviction. For a select few types of residence permit not currently governed by an EU directive, the Dutch government still has its own policy regarding drug-related convictions.

So there are three systems governing admissibility and removal from the Netherlands: Schengen, the EU, and the Dutch national system. Under each system, the authorities must establish whether the application or permit holder constitutes a threat to public order. The exact definition varies with each system and by category (admissibility or removal).

For refusing entry under the Schengen regime, a “threat to public order” can exist in the event of a single conviction for any kind of felony. When removing a residence permit holder from the EU, however, the test is much stricter. The threat has to be real and urgent. This means, for example, that it’s relevant what the conviction is for, and even more important, what the sentence is.

Besides being real, the threat also must be urgent. The authorities also take into consideration when the felony was committed and how the person’s behavior has been since then. If the fear of reoffending is low, it will be hard to actually remove someone from the EU.

Even when a threat is real and urgent, the authorities cannot simply remove a residence permit holder. In each individual case, the authorities must argue that their interest in removing the person outweighs the interest the person has to remain in the country. So, even in case of a real and urgent threat, it might not be possible to remove a residence permit holder if the person involved, for example, has been in the country for a long time or has minor children or a spouse living with him or her. The person involved can challenge the balancing of interests by the court.

A main distinction should be made between removing a current residence permit holder and refusing an application for a residence permit. The interest of the state much more easily outweighs the interest of the person involved with respect to an initial admission.

In conclusion, the Schengen area, the EU, and the Netherlands have a fairly balanced system to deal with persons convicted of crimes. There is no system in place requiring that a certain conviction automatically leads to refusal of entry or removal. There always is an individual balancing of interests.

Back to Top

Country Updates

EUROPEAN UNION

The European Court of Justice (ECJ) recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union (EU) Member States.

ECJ judges said the European Council had acted lawfully. The court said that EU institutions were on firm legal ground when they adopted measures to respond to “an emergency situation characterized by a sudden inflow of displaced persons.” The ECJ also concluded that the legality of the decision was not affected by retrospective conclusions about the policy’s effectiveness.

Budapest condemned the court ruling as “appalling and irresponsible.” The foreign minister, Péter Szijjártó, said, “This decision jeopardizes the security and future of all of Europe. Politics has raped European law and values.” Hungary and Poland have not relocated anyone yet, and the Czech Republic has not made any such offers for more than a year. All three countries risk being taken to court by the commission.

Karl Waheed offered the following answers in response to questions about the ECJ’s decision, in his capacity as Vice Chair of the International Bar Association’s (IBA) Immigration and Nationality Law Committee:

  1. What is the view of the Immigration and Nationality Law Committee on the ECJ decision?

The IBA promotes the rule of law, and this decision upholds the rule of law and backs the European Council’s authority to apply it uniformly, despite resistance from some Member States. This is good news for the governance of the EU.

  1. Why did Slovakia and Hungary object in the first place?

Slovakia considers itself to be ethnically homogeneous. It has presently taken in 16 refugees out of the 902 it has pledged to take. However, Slovakia has avoided provoking any “infringement procedures,” which is the financial penalty imposed by the ECJ for refusing to follow their ruling, and it has avoided this by promising to take in more refugees.

Hungary sees itself as defending European and Christian civilization. Prime Minister Orban has pledged to fight the quota. Orban is facing a re-election this fall, which may be encouraging him to double down on his refusal. To date, Hungary has not taken a single person, and in June the ECJ initiated Infringement procedures against it, Poland, and the Czech Republic.

  1. Will this ruling make any difference? Will these two countries now accept refugees?

Yes, this ruling makes the European Council stronger. It reinforces their decision-making authority, even in the face of a lack of unanimity. It shows that the Council can enforce solidarity upon the reluctant EU members to provide relief for the more exposed countries like Italy and Greece.

If the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling of the ECJ. If they do not follow the ruling, we have a deeper political crisis of the EU on our hands.

If Slovakia and Hungary refuse to follow the ruling, the ECJ can implement infringement procedures that financially penalize the countries for not abiding with their ruling, which the ECJ already started initiating in June 2017.

  1. Why was there so much refugee migration in 2015 in particular? Are there still refugees trying to get into Greece/Italy?

Numerous factors contributed. A consequence of the escalation of the civil war in Syria was that more than one out of every two Syrians became a displaced person, either internally within Syria or outside it. Furthermore, German Chancellor Angela Merkel’s offer in September 2015 to accept 1 million refugees had the inverse effect of encouraging more people to emigrate. Concerning the Mediterranean crossings, the civil war in Libya destabilized that country so that there was no authority to prevent the traffickers from shipping out of Libya.

At present, there are still tens of thousands of people on boats arriving in Italy and Greece on a monthly basis. According to the International Organization for Migration, in the first five months of 2017, there were 60,000 arrivals in Italy compared to 47,000 in the first five months of 2016. So, the problem is far from being episodic, or from having resolved itself.

Italy and EU seem to do whatever they can, both legally and illegally, to keep boats from arriving in Italy. Take, for example, the EU-Turkey agreement from 2015. The EU is “refouling,” or relocating, thousands of asylum-seekers to Turkey, and yet Turkey is not considered a safe country because it has signed the outdated 1951 Convention relating to the Status of Refugees but not the modern 1968 Protocol.

  1. Where does this ruling leave the relocation “policy” of the EU?

This ruling reinforces the legitimacy of relocating within the EU. The ECJ described the relocation as fair and proportionate, so as to be in solidarity with Greece and Italy receiving so many arrivals. It reinforces the Dublin regulation, which took a hit to its legitimacy during 2015 when both Greece and Germany decided not to abide by it.

  1. Is this problem unique to the EU or are there other places where relocation is used?

It is not unique to the EU. Australia, for example, has similar agreements with Christmas Island and Papua New Guinea, where the latter two countries are paid to “warehouse” the asylum seekers. The problem with this is that these are not humane conditions. The asylum seekers are stuck on tiny islands for years while they wait for Australia to refuse them asylum. And what happens to them when they are refused asylum? Thus, relocation exists in other places, but it is not a model solution. At least within the EU, it can be done ethically among advanced countries, providing humane conditions during the asylum application process.

  1. Do we have any facts relating to the number of refugees affected? How many are there in Greece/Italy waiting relocation or who have been relocated?

According to the United Nations High Commissioner for Refugees, in 2015 approximately 1 million refugees arrived by sea in Europe. For 2016, it was 362,000 sea arrivals. In 2017, as of September, there have been 132,000 sea arrivals. Of those 132,000, Italy has received 103,000 and Greece 18,000.

Regarding relocation, 8,500 of the 39,600 targeted relocations from Italy have occurred, which is just 22 percent for Italian relocations. For Greece, 20,000 out of the 63,000 have been relocated, which is 31 percent.

ITALY

The Investor Visa for Italy platform has been launched. Also, Italy warns of a scam in which citizenship is promised quickly. Also, residence permits have been extended to unmarried partners of Italian citizens, and there is a simplified procedure for start-up incorporation.

Investor Visa for Italy Platform

As of December 14, 2017, the Investor Visa for Italy platform is online and applicants can submit applications for the new Investor Visa. The investor visa will be valid for two years. During that time, the applicant can travel to Italy and apply for a residence permit.

The platform is available in English at https://investorvisa.mise.gov.it/index.php/en/. Guidance is available at https://investorvisa.mise.gov.it/images/documenti/Investor-Visa-for-Italy-Policy-Guidance-ENG.pdf. Detailed information on how to apply is at https://investorvisa.mise.gov.it/index.php/it/investor-visa-how-it-works.

Citizenship Scam Warning

After investigations carried out by the Italian finance police, five people were arrested for corruption in the town of Lodigiano. The investigations revealed a system of bribery by public officials falsely confirming the presence of Brazilian nationals and granting residency, consequently leading to their obtaining Italian citizenship. The ring of corruption revolved around an agency in Monza owned by a Brazilian entrepreneur who charged Brazilians between 3,500 and 5,000 euros for this process, while from this amount public officials were paid around 1,250 euros. The scam allowed approximately 500 Brazilians to obtain residency and Italian citizenship in the year 2016, when in reality they were never actually based in the Lodi area.

According to Italian law, in addition to formal registration with the town hall, residency is based on two fundamental elements:

  1. Physical presence in Italy, which must be regular and continuous, as opposed to sporadic and occasional. If an individual spends time in both Italy and another country, the periods of presence outside of Italy are compared with the periods of presence in Italy to determine which is prevalent.
  2. Intention to stay and live in Italy for the foreseeable future, which is subjective. To determine an individual’s intention to live in Italy on a regular basis, numerous aspects are examined, including but not limited to an individual’s conduct, social and personal habits, working relationships, family relationships, and business and personal activities.

Residence Permits Extended to Unmarried Partners of Italian Citizens

The Council of State has ruled (n. 5040/2017) that a foreign partner cohabiting more uxorio (marriage in fact) with an Italian citizen can obtain a residence permit for family reasons. This broad interpretation of Italian immigration law is based on new provisions introduced by Law No. 76/2016 on civil unions, under which cohabitation is defined as “the status of two people who have a stable relationship based on emotional bonds and on reciprocal moral and material assistance,” and on Decree 30/2007 on the right of European Union persons and their family members to move and reside freely within the territory of the EU and European Economic Area member states (Directive 2004/38/EC).

The Council of State’s ruling (in Italian) is at https://www.giustizia-amministrativa.it/cdsintra/wcm/idc/groups/public/documents/document/mday/njay/~edisp/yhe5l52mxqgezolyhcwhshalx4.html.

Simplified Procedure for Start-Up Incorporation

The Administrative Court of Lazio (TAR) confirmed that it is possible to establish an Italian start-up company without a notary. Notary associations had challenged the digital, fast-track procedure set forth by the Italian Start-Up Act, but all the appeals have been rejected, confirming that start-ups can be incorporated digitally. Avoiding notary assistance can save the entrepreneur up to €2,000 for the incorporation of a company.

The incorporation of a start-up can be easily completed using the online start-up platform. Any future corporate amendment can also be filed using the platform.

The start-up platform is at http://startup.registroimprese.it/isin/home. A summary of the legislation in support of innovative start-ups (in English) is at http://www.mise.gov.it/images/stories/documenti/Executive-Summary-of-Italy-s-Startup-Act-new-format-23_02_2017.pdf. A related annual report on the Start-Up Act (in English) is at http://www.mise.gov.it/images/stories/documenti/italian_startup_act_annual_report_to_parliament_2016.pdf.

Back to Top

TURKEY

The situation with respect to the United States-Turkey visa suspension implemented in October 2017 remains extremely volatile and changes frequently. Contact an ABIL Global attorney for advice in specific situations.

According to sources as of press time:

  1. U.S. citizens (with no other nationality) will be issued sticker visas upon entry into Turkey only if they can show legal residency (residence permits) in another country other than the United States. (Note: This is in clear contrast with airport policy over the past month, where U.S. nationals were consistently being issued sticker visas at Turkish airports as long as their flights originated outside the United States.)*
  2. Turkish consulates outside the United States are consistently issuing visas to U.S. nationals physically present at that consular post. Whether a particular consulate retains a local residence requirement is case-by-case.
  3. Turkish posts in the United States are still offering visa appointments to U.S. nationals on a limited basis, based on certain criteria such as medical needs, urgent family issues, international conferences, or sporting events.
  4. Current valid Turkish visas (including sticker visas) continue to be acceptable for entry into Turkey.

* The first point above on sticker visa issuance is the most significant departure from recent practice over the last few weeks. This position has not been confirmed via official government agency sources. This has only been confirmed informally by airport authorities at Sabiha Gökçen International Airport.

Back to Top

UNITED KINGDOM

The United Kingdom plans to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year and has announced new support for international talent. Also, the British government has published a technical note on its proposed administrative procedures for European Union citizens living in the UK, and their family members, who want to stay on after Brexit.

Tier 1 Exceptional Talent Visa Increase

In recognition of the importance of attracting talented individuals to come to the UK, the government has announced its intention to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year.

This route is for exceptionally talented individuals in the fields of science, humanities, engineering, the arts, and technology who wish to work in the UK. Such individuals are already internationally recognized at the highest level as world leaders in their particular fields, or who have already demonstrated exceptional promise and are likely to become world leaders or globally recognized in their fields of expertise.

This category requires an endorsement from one of five endorsing organizations:

  • Tech City UK
    • Arts Council England
    • The British Academy
    • The Royal Society
    • The Royal Academy of Engineering

The current allocation of 1,000 visas is split across these five endorsing bodies, but the additional 1,000 visas will be allocated to any one of these endorsing bodies depending on need.

The application is a two-stage process: (1) applying for an endorsement and (2) applying for a visa. Visas can be granted for up to five years, after which the applicant may apply for indefinite leave to remain. The advantage of this category is that the applicant does not need sponsorship by a business to work in the UK.

New Support for International Talent

In its latest autumn budget, the government has acknowledged the importance of encouraging and attracting talented individuals to come to the UK. The focus is on attracting individuals working in the international scientific and research community to come to the UK to further their careers in the field of research and development and innovation. This will be achieved by:

  • Changing the immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 (Exceptional Talent) route to apply for settlement after three years;
  • Making it quicker for highly skilled students to apply to work in the UK after finishing their degrees; and
  • Reducing red tape in hiring international researchers and members of established research teams by relaxing the resident labor market test and allowing the UK’s research councils and other select organizations to sponsor researchers

The accelerated route to settlement after only three years’ residence in the UK is intended to act as a significant draw for this pool of talented individuals, who will have a choice of which country in which to conduct their business and research activities.

The Chancellor’s reference to making it quicker for highly skilled students to start work is not a new initiative. Since July 2016, the Home Office has been piloting a new scheme for certain universities (currently Bath, Cambridge, Oxford, and Imperial College London). Their students will have their visa issuances facilitated with reduced documentary requirements and may benefit from a short six-month post-study visa to assist them in transitioning into being sponsored under Tier 2 in the UK.

The Immigration Minister, Brandon Lewis MP, also confirmed this during a speech in London on November 16, 2017. The Minister stated, “We are currently running a pilot to test whether highly compliant institutions can reduce the documentary burden being put on students as well as increasing the length of time that those students can stay in the UK after graduation.”

Administrative Procedures Post-Brexit

The British government has published a technical note on its proposed administrative procedures for EU citizens living in the UK, and their family members, who want to stay on after Brexit.

There are no surprises in the document. Much of the content has already been signaled in a June 2017 policy paper, in the Prime Minister’s Florence speech in September 2017, and in the various joint technical notes comparing the EU and UK positions on citizens’ rights that have been published after each round of negotiations.

Below are the key points from the proposals:

  • The rights of EU citizens living in the UK will be set in the Brexit withdrawal agreement and incorporated in UK law.
  • EU citizens who want to continue living in the UK will need to apply to obtain a new status. The application process will also be completely new. It will be simpler than the current voluntary system for registration certificates and permanent residence documents issued under EU law. There will be a right of appeal.
  • EU citizens and their family members will have to apply “within a period of time after exit as specified by the UK authorities,” which will last “around two years” after the UK leaves the EU in March 2019. The new process will be launched before the UK leaves the EU.
  • The authorities will consider exercising discretion to allow a late application if there are good reasons why it could not be made before the deadline.
  • The application fee will not exceed the cost of a British passport, which is currently £72.50 for an adult and £46 for a child.
  • For EU citizens who already have a permanent residence document, there will be a simpler process and a reduced fee.
  • Applicants will need to provide evidence that they were lawfully resident in the UK before the “specified date. (Note: the specified date has not yet been confirmed. It could be any date between March 29, 2017, and March 29, 2019. Most observers believe that it is likely to be March 29, 2019.)
  • Applicants who have not been working will not need to show that they have held comprehensive medical insurance.
  • There will be criminality checks. Criminal conduct up to the date of the UK’s withdrawal from the EU will be assessed in accordance with EU law, which means that an applicant will be disqualified if he or she poses a serious threat to the fundamental interests of society. Criminal conduct after the UK’s withdrawal will be assessed against UK national law. Deportation will be considered if an applicant has received a prison sentence of 12 months or more.
  • EU citizens who meet the conditions for permanent residence under EU law—usually five years’ lawful residence as a worker, self-employed person, student, or self-sufficient person—will be granted settled status.
  • EU citizens who do not meet the conditions for permanent residence but can show that they were living in the UK before the “specified date” will be given temporary status. They will be allowed to stay in the UK until they have built up the five years’ residence needed to apply for settled status.
  • EU citizens who apply for the new status and are refused will be in the UK unlawfully after the end of the “specified period” unless they secure a different type of immigration status. They will not be allowed to work and may be asked to leave the UK.
  • During the “implementation period” after the UK leaves the EU (which is presumably the same as the “specified period“), EU citizens will continue to be able to come and live and work in the UK. There will be a registration system for them.

The document leaves many unanswered questions. For example, what will happen to EU citizens who are not working and cannot provide evidence that they are self-sufficient? What rules will apply to non-EU family members joining EU citizens in the UK after the withdrawal date? If someone is granted settled status but can show that they met the requirements for permanent residence more than one year earlier, will their deemed date of acquisition of settled status be backdated? (This may be important for people who wish to apply for British citizenship.) For EU citizens arriving during the two-year implementation period, what will their status be after the end of the implementation period? And what will happen to other European Economic Area (EEA) nationals (citizens of Norway, Iceland, and Liechtenstein) and Swiss nationals?

It should be remembered that these are just proposals. The negotiations between the EU and the UK are continuing. In the meantime EEA nationals who qualify for a document certifying permanent residence should apply for one now and consider applying for British citizenship.

The technical note is at https://www.gov.uk/government/publications/citizens-rights-administrative-procedures-in-the-uk. The June 2017 policy paper referenced above is at https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu. More information on Brexit is at https://www.kingsleynapley.co.uk/services/specialist-group/brexit.

Back to Top

Mid-December 2017 Immigration Update

Headlines:

  1. USCIS Is Accepting Applications Under International Entrepreneur Rule (IER) But Plans Proposed Rule to Eliminate IER – USCIS is taking steps to implement the International Entrepreneur Rule (IER) in accordance with a recent court decision. USCIS noted that while the agency implements the IER, DHS will also “proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM.”
  2. Supreme Court Allows Trump Travel Ban to Proceed; State Dept. Issues Guidance – On December 4, 2017, the U.S. Supreme Court granted the Trump administration’s motions for emergency stays of preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. The Supreme Court’s orders allow the government to fully implement the Trump administration’s entry restrictions on certain countries.
  3. USCIS Issues FAQ on Rejected DACA Requests, Resubmissions – U.S. Citizenship and Immigration Services recently released a FAQ on rejected Deferred Action for Childhood Arrivals requests, and resubmissions.
  4. Attorney General Issues Memo to EOIR on Reducing Backlogs – The memo and accompanying documents set forth principles and plans to reduce the backlog of cases pending before the EOIR. Some of the proposals are controversial.
  5. OFLC Releases Tips on H-2A Labor Certification Process for Employers – The Department of Labor’s Office of Foreign Labor Certification released a presentation including tips on the H-2A labor certification process for employers.
  6. U.S. Mission in Canada Implements New Appointment Scheduling System for E Visas – On December 5, 2017, the U.S. Mission in Canada sent an alert announcing a new appointment scheduling system for E visa applications. 
  7. Firm In the News…

Details:

  1. USCIS Is Accepting Applications Under International Entrepreneur Rule (IER) But Plans Proposed Rule to Eliminate IER

U.S. Citizenship and Immigration Services (USCIS) announced on December 14, 2017, that it is taking steps to implement the International Entrepreneur Rule (IER) in accordance with a recent court decision. USCIS noted that while the agency implements the IER, the Department of Homeland Security (DHS) will also “proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM.”

USCIS explained that although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because DHS issued a final rule on July 11, 2017, delaying the IER’s effective date until March 14, 2018. USCIS said this “delay rule” was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations. However, a December 1, 2017, ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’s final rule to delay the effective date.

The IER was intended to provide international entrepreneurs a new avenue to apply for parole, enter the United States, and invest in establishing and growing start-up businesses, USCIS noted. The rule established new criteria to guide the adjudication of parole applications from certain foreign entrepreneurs, providing them with temporary admission. The rule did not afford a path to citizenship.

The instructions and form are at https://www.uscis.gov/I-941. The IER is at https://www.federalregister.gov/documents/2017/01/17/2017-00481/international-entrepreneur-rule. The vacated final rule is at https://www.federalregister.gov/documents/2017/07/11/2017-14619/international-entrepreneur-rule-delay-of-effective-date.

Back to Top

  1. Supreme Court Allows Trump Travel Ban to Proceed; State Dept. Issues Guidance

On December 4, 2017, the U.S. Supreme Court granted the Trump administration’s motions for emergency stays of preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. The preliminary injunctions had prohibited the government from fully enforcing or implementing the entry restrictions of Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” to nationals of six countries: Chad, Iran, Libya, Syria, Yemen, and Somalia. The Supreme Court’s orders allowed the government to implement those restrictions fully beginning December 8, 2017, until related litigation is resolved. The District Court injunctions did not affect implementation of entry restrictions against nationals from North Korea and Venezuela. Those individuals remain subject to the restrictions and limitations listed in the Presidential Proclamation. The Proclamation does not restrict the travel of dual nationals as long as they are traveling on the passport of a non-designated country.

The Department of State (DOS) issued a statement on December 4 providing guidance on several details related to the travel ban. Among other things, the statement said:

We will not cancel previously scheduled visa application appointments. In accordance with the Presidential Proclamation, for nationals of the eight designated countries, a consular officer will make a determination whether an applicant otherwise eligible for a visa is exempt from the Proclamation or, if not, may be eligible for a waiver under the Proclamation and therefore issued a visa.

No visas will be revoked pursuant to the Proclamation.  Individuals subject to the Proclamation who possess a valid visa or valid travel document generally will be permitted to travel to the United States, irrespective of when the visa was issued.

We will keep those traveling to the United States and our partners in the travel industry informed as we implement the order in a professional, organized, and timely way.

The DOS provided the following details on the travel restrictions by country:

Nationals of the eight countries are subject to various travel restrictions contained in the Proclamation, as outlined in the following table, subject to exceptions and waivers set forth in the Proclamation.

Country Nonimmigrant Visas Immigrant and Diversity Visas
Chad No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
Iran No nonimmigrant visas except F, M, and J visas No immigrant or diversity visas
Libya No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
North Korea No nonimmigrant visas No immigrant or diversity visas
Somalia No immigrant or diversity visas
Syria No nonimmigrant visas No immigrant or diversity visas
Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies[:] Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members.
Yemen No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas

The DOS statement provides the following list of exceptions:

The following exceptions apply to nationals from all eight countries and will not be subject to any travel restrictions listed in the Proclamation:

a) Any national who was in the United States on the applicable effective date described in Section 7 of the Proclamation for that national, regardless of immigration status;

b) Any national who had a valid visa on the applicable effective date in Section 7 of the Proclamation for that national;

c) Any national who qualifies for a visa or other valid travel document under section 6(d) of the Proclamation;

d) Any lawful permanent resident (LPR) of the United States;

e) Any national who is admitted to or paroled into the United States on or after the applicable effective date in Section 7 of the Proclamation for that national;

f) Any applicant who has a document other than a visa, valid on the applicable effective date in Section 7 of the Proclamation for that applicant or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;

g) Any dual national of a country designated under the Proclamation when traveling on a passport issued by a non-designated country;

h) Any applicant traveling on a diplomatic (A-1 or A-2) or diplomatic-type visa (of any classification), NATO-1 -6 visas, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; except certain Venezuelan government officials and their family members traveling on a diplomatic-type B-1, B-2, or B1/B2 visas[;]

i) Any applicant who has been granted asylum; admitted to the United States as a refugee; or has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Exceptions and waivers listed in the Proclamation are applicable for qualified applicants. In all visa adjudications, consular officers may seek additional information, as warranted, to determine whether an exception or a waiver is available.

Meanwhile, the 9th and 4th Circuits held arguments on the travel ban on December 6 and 8, 2017, respectively. Both courts are likely to issue rulings relatively quickly. The cases are then likely to go to the Supreme Court.

The Supreme Court’s brief orders are at https://www.supremecourt.gov/orders/courtorders/120417zr_4gd5.pdf and https://www.supremecourt.gov/orders/courtorders/120417zr1_j4ek.pdf. The DOS statement, which provides additional details about qualifications and procedures, along with frequently asked questions (FAQs), is at http://bit.ly/2jnCf95. The related Presidential Proclamation is at https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry. The DOS statement provided a link to a related Department of Homeland Security FAQ released in September 2017 at https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes.

Back to Top

  1. USCIS Issues FAQ on Rejected DACA Requests, Resubmissions

U.S. Citizenship and Immigration Services (USCIS) recently released frequently asked questions (FAQ) on rejected Deferred Action for Childhood Arrivals (DACA) requests, and resubmissions.

The FAQ notes that the due date for new, initial DACA requests was September 5, 2017. The due date for DACA renewal requests was September 5, 2017, for recipients whose DACA status expired before that date and was October 5, 2017, for recipients whose DACA expired or will expire between September 5, 2017, and March 5, 2018.

For those whose DACA requests were delivered by the deadline but were not officially “received” by USCIS until the following day and were rejected and returned to applicants for that reason, the FAQ states that USCIS “will identify you and send you a letter inviting you to resubmit your DACA request. You will have 33 days from the date of the letter to resubmit your request. You may wish to keep a copy of all materials included in your resubmission. USCIS expects to be able to identify and send letters to all persons in this situation.”

Those in the situation noted above who have not yet been contacted by USCIS may contact Lockbox Support before resubmitting their DACA packages for reconsideration. Lockbox Support can be emailed at lockboxsupport@uscis.dhs.gov.

The USCIS FAQ, which includes additional details about who may resubmit and why, is at https://www.uscis.gov/daca2017/mail-faqs.

Back to Top

  1. Attorney General Issues Memo to EOIR on Reducing Backlogs

On December 5, 2017, Attorney General Jeff Sessions issued a memorandum to the Department of Justice’s Executive Office for Immigration Review (EOIR), “Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest.” The memo and accompanying documents set forth principles and plans to reduce the backlog of cases pending before the EOIR, some of which have proved controversial.

Mr. Sessions noted that 50 new immigration judges have begun work since January 20, 2017, and that 60 more are expected to be added in the next 6 months. He said that the current backlog of approximately 650,000 cases pending before immigration courts is a challenge but “not insurmountable.” In addition to hiring more immigration judges and support personnel, he said:

[W]e must all work to identify and adopt—consistent with the law—additional procedures and techniques that will increase productivity, enhance efficiencies, and ensure the timely and proper administration of justice. Whether you are an immigration judge who has a unique way to better handle dockets, or an administrative assistant who has a better process for handling the distribution of files in the office, we can all contribute something to improve the system. I, too, anticipate clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice.

Toward this end, Mr. Sessions listed a set of principles to be followed:

  • The immigration courts, the Board of Immigration Appeals, and the Office of the Chief Administrative Hearing Officer within EOIR are responsible for adjudicating cases and administering the immigration laws. We serve the national interest by applying those laws as enacted, irrespective of our personal policy preferences.
  • The timely and efficient conclusion of cases serves the national interest. Unwarranted delays and delayed decision making do not. The ultimate disposition for each case in which an alien’s removability has been established must be either a removal order or a grant of relief or protection from removal provided for under our immigration laws, as appropriate and consistent with applicable law.
  • Meritless cases or motions pending before the immigration courts or the Board of Immigration Appeals should be promptly resolved consistent with applicable law.
  • The efficient and timely completion of cases and motions before EOIR is aided by the use of performance measures to ensure that EOIR adjudicates cases fairly, expeditiously, and uniformly in accordance with its mission.
  • The attempted perpetration of fraud upon the United States government in our immigration court system can lead to delays, inefficiencies, and the improper provision of immigration benefits. Therefore, any and all suspected instances of fraud should be promptly documented and reported to EOIR management, and any other agency with an interest in the identification of and response to such fraud (including the appropriate state bar(s) in cases of attorney misconduct), consistent with applicable law.

A “backgrounder” asserts, among other things, that the Deferred Action for Childhood Arrivals (DACA) program, prosecutorial discretion, and provisional waivers have “slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.” The backgrounder also charges that “[r]epresentatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases.”

The backgrounder states that EOIR plans to pilot video teleconferencing, where immigration judges will adjudicate cases from around the country. Also planned is a review of “existing EOIR regulations and policies to determine changes that could streamline current immigration proceedings (e.g. the [EOIR memo] on continuances issued on July 31, 2017; regulatory changes that will allow immigration judges to deny unmeritorious cases regardless if the annual limit for relief has been met).”

In reaction to the memo and accompanying documents, the American Immigration Lawyers Association (AILA) condemned “attacks by AG Sessions on the immigration courts and the due process rights of immigrants,” stating that “[f]or the AG to blame immigration lawyers for imagined trespasses is both malicious and wrong. We will not let that misinformation pass without setting the record straight.” Benjamin Johnson, AILA Executive Director, said, “Once again, the Attorney General cites flawed facts to castigate the immigration bar for the significant case backlog and inefficiencies in our immigration court system. He blames immigration attorneys for seeking case continuances, disregarding the fact that continuances are also routinely requested by counsel for the government, or are issued unilaterally by the court for administrative reasons.” Mr. Johnson noted, “The number one reason a continuance is requested by a respondent is to find counsel. Other reasons include securing and authenticating documentary evidence from foreign countries, or…locating critical witnesses. And when the government refuses to share information from a client’s immigration file and instead makes them go through the lengthy process of a Freedom of Information/Privacy Act request, a continuance is often a client’s only lifeline to justice.” AILA recommends removing EOIR from the Department of Justice.

The memorandum is at https://www.justice.gov/opa/press-release/file/1015996/download. The backgrounder is at https://www.justice.gov/opa/press-release/file/1016066/download. A related press release from the Department of Justice (DOJ) is at https://www.justice.gov/opa/pr/attorney-general-sessions-issues-memo-outlining-principles-ensure-adjudication-immigration. A DOJ statement is at https://www.justice.gov/opa/pr/attorney-general-sessions-issues-memo-outlining-principles-ensure-adjudication-immigration. AILA’s statement is at http://www.aila.org/advo-media/press-releases/2017/ag-sessions-cites-flawed-facts-imm-court-system.

Back to Top

  1. OFLC Releases Tips on H-2A Labor Certification Process for Employers

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) released a presentation including tips on the H-2A labor certification process for employers. Among other things, the presentation notes that the DOL issues a final determination 30 days before the start date of work if all program requirements are met. Reasons for delaying an H-2A final determination include the employer or authorized representative not providing:

  • Proof of valid workers’ compensation coverage
  • Housing documentation for farmworkers
  • Valid farm labor contractor licenses
  • Valid surety bond for labor contractors
  • Recruitment report

The presentation notes that an employer’s post-recruitment obligations include, among other things:

  • Employers must continue to cooperate with the State Workforce Agency in recruiting for the job opportunity and provide employment to any qualified U.S. worker who applies for the job opportunity
  • Employer must continue to update the initial recruitment report submitted to the CO for certification throughout the entire recruitment period
  • Employer must sign and date the final written recruitment report and be prepared to submit it when requested by the Certifying Officer in the event of an audit examination or other request from the Department

The OFLC presentation is at https://www.foreignlaborcert.doleta.gov/pdf/H-2A_Webinar-October-2017.pdf. A “Quick Start Guide for H-2A Mandatory Documents Upload” is at https://www.foreignlaborcert.doleta.gov/pdf/H-2A_Quick_Start_Guide.pdf.

Back to Top

  1. U.S. Mission in Canada Implements New Appointment Scheduling System for E Visas

On December 5, 2017, the U.S. Mission in Canada (E Visa Unit, American Consulate General, Toronto) sent an alert announcing a new appointment scheduling system for E visa applications. The Mission said this is “strictly a processing change that will allow us to receive and review E-visa applications before the applicant schedules an in-person interview (as opposed to the old system, which permitted applicants to schedule an appointment before submitting an application or supporting documentation).”

Under the new system, the U.S. Mission explained, E visa applications will be sorted into two processing streams based on the time needed to review the required documentation:

  • New Cases and Renewals—First-time applicants and those wishing to renew the registration status of their E visa company will be offered a “deferred interview” appointment. While applicants will still need to first create an appointment profile and pay the required visa application fee online at https://ais.usvisa-info.com, the interview will be deferred until applicants have electronically submitted their application and supporting documents to the U.S. Consulate in Toronto via evisacanada@state.gov. Once their application has been reviewed, which requires at least 10 business days, the U.S. Mission will send applicants instructions on how to make an appointment for an in-person interview. Applicants will be unable to schedule an appointment until then. Only applications in the queue for “New Cases and Renewals” will be considered for company registration or re-registration.
  • Employees of Registered Companies and Dependents—Employees of currently registered E visa companies, and qualifying family members of current E visa holders, may schedule the next available appointment in Calgary, Montreal, Ottawa, Vancouver, or Toronto.

Back to Top

  1. Firm In the News

Cyrus D. Mehta was a Speaker, Protecting Your EB-5 Practice: Ethical Issues and Minimizing Risk, 2017 AILA EB-5 Investors Summit, Las Vegas, NV, December 8, 2017.

Cyrus D. Mehta was a Speaker, Opportunities and Challenges in H-1B Practice – Outsourcing, the H-1B Cap, and Increased Labor Condition application (LCA) Enforcement, 50th Annual Immigration and Naturalization Institute 2017, New York, NY December 6, 2017.

Cyrus D. Mehta was a Speaker, New Administration, New Rules, AILA Latin America and Caribbean Chapter telephone conference, December 5, 2017.

Cyrus D. Mehta published Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked on November 27, 2017; Making Sense of the Acquittal in Kate Steinle’s Case: Why Anti-Immigrant Rhetoric Equating Immigrants with Criminals Must Stop on December 4, 2017; and New York State Bar Association v Avvo: Will the Uberization of Immigration Law Practice Overcome Outdated Advertising Rules Governing Lawyers on December 11, 2017

Cyrus D. Mehta along with Sophia Genovese published Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism On December 18, 2017.

 

 

Back to Top

December 2017 Immigration Update

Headlines:

  1. Federal Court Vacates Delay of International Entrepreneur Rule – On December 1, 2017, a federal court vacated the Trump administration’s delay of an Obama-era rule that would have allowed certain foreign entrepreneurs to obtain immigration parole.
  2. USCIS Designates Adopted Decisions Defining Affected Parties, Function Managers –USCIS has designated two Administrative Appeals Office decisions as Adopted Decisions.
  3. DHS To Terminate TPS Designation for Haiti in July 2019 – Haitians with TPS must reapply for employment authorization documents to continue working legally in the United States until the end of the extension period.
  4. Federal Court Blocks Trump Order To Strip ‘Sanctuary Jurisdictions’ of Federal Funding – A federal court granted two California counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the Trump administration’s executive order with respect to “sanctuary jurisdictions.”
  5. USCIS Announces Caps for Final Three Fiscal Years of CNMI Transitional Worker Program – USCIS encourages employers to file petitions for CW-1 workers as early as possible within six months of the requested employment start date. USCIS will reject a petition if it is filed more than six months in advance.
  6. ABIL Global: European Court Dismisses Challenge to Mandatory Relocation of Displaced Persons – The European Court of Justice recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union Member States.
  7. Firm In The News…

 Details

  1. Federal Court Vacates Delay of International Entrepreneur Rule

On December 1, 2017, federal district Judge James E. Boasberg vacated the Trump administration’s delay of an Obama-era rule that would have allowed certain foreign entrepreneurs to obtain immigration parole (to temporarily enter the United States despite lacking a visa or permanent residence). At the outset of the opinion, the court said, “Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act [APA] shapes the contours of those consequences.”

The “International Entrepreneur Rule” was set to take effect July 17, 2017, but shortly beforehand, the Department of Homeland Security (DHS) issued the “Delay Rule,” delaying the effective date of the original rule until March 14, 2018. The court noted that the agency did so without providing notice or soliciting comment from the public, which is generally required by the APA. The plaintiffs alleged that the agency lacked good cause to dispense with the APA’s strictures and that the Delay Rule was therefore invalid, and the court agreed.

The court noted that the Obama-era DHS promulgated the International Entrepreneur Rule to encourage international entrepreneurs to create and develop start-up entities with high growth potential in the United States. DHS believed that attracting foreign entrepreneurs would “benefit the U.S. economy through increased business activity, innovation, and dynamism.” Before issuance of the regulation, the court observed, foreign entrepreneurs “lacked a clear-cut avenue for entry into this country. …The United States had no dedicated visa category for foreign entrepreneurs, and other visa options were frequently unavailable to that group.” The executive branch, however, cannot unilaterally create a new visa category, the court noted, so it turned to a more temporary solution for these entrepreneurs: parole. This allows a foreign national to be physically present in the United States for a specific, temporary period, ranging from days to years. Parole does not constitute formal “admission” to the United States and gives the recipient no formal immigration status.

To be considered for a discretionary grant of parole for up to 30 months (with reapplication for up to an additional 30 months based on certain conditions) under the International Entrepreneur Rule, an entrepreneur would generally need to demonstrate the following:

  1. The applicant must have formed a new start-up entity in the United States within 5 years of the application;
  2. The applicant must (a) possess at least a 10% ownership interest in the business; and (b) “have an active and central role” in its operations and future growth; and
  3. The applicant must validate the business’s potential “for rapid growth and job creation” by showing (a) it has received at least $250,000 from established U.S. investors; or (b) it has received at least $100,000 in grants from government entities.

The rule also created “alternative criteria” for meeting the final prong: a person partially meeting one of the investment thresholds could provide “additional reliable and compelling evidence” of the company’s potential for rapid growth and job creation. U.S. Citizenship and Immigration Services (USCIS) would also consider other relevant information in making its discretionary determination, such as any criminal history or other serious adverse factors.

The court noted that the agency “meaningfully” revised the final version in response to 763 comments received on the proposed rule. DHS changed the minimum investment amount, the definition of an entrepreneur, and the definition of a start-up entity.

Six days before the effective date of the rule, USCIS issued the superseding Delay Rule postponing the effective date by eight months, to March 14, 2018, but without offering the public advance notice or an opportunity to comment. Instead, it provided a short window for comments only after the Delay Rule took effect. Further, DHS indicated that it was “highly likely” to rescind the International Entrepreneur Rule. Its Delay Rule, therefore, appeared designed to ensure that the Obama-era rule would never take effect, the court noted.

The plaintiffs included two foreign nationals, two U.S. businesses, and the National Venture Capital Association, an organization of individuals who invest in businesses founded by foreign entrepreneurs. The plaintiffs all claimed that the Delay Rule seriously injured their businesses or investments. The Trump administration argued that the APA’s “good cause” exception applied, which allows an agency to dispense with notice-and-comment when it “for good cause finds…that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The court noted that because notice-and-comment is “the default,” the onus is on the agency to establish that a notice-and-comment opportunity should not be given, and an agency “faces an uphill battle to meet that burden.”

Among other things, the plaintiffs argued that through its own delay, the agency forfeited any “good cause” defense. Citing related decisions, the court noted that good cause cannot arise as a result of an agency’s own delay; otherwise, an agency unwilling to provide notice or an opportunity to comment could simply wait until the even of a statutory, judicial, or administrative deadline, then raise up the “good cause” banner and promulgate rules without following APA procedures. In this case, the court said, the government’s briefing never explained the time lag and “struggled” to explain what the agency did between learning of the executive order and issuing the Delay Rule. DHS primarily justified the Delay Rule by citing the expense of implementing the new parole system, among other arguments. The court said that the agency’s proffered reasons for bypassing notice-and-comment were unpersuasive and “easily [fell] short of good cause.” The court noted that the agency estimated it would process roughly 2,900 applications this year and receive $1,285 each in filing fees, generating more than $3.5 million, and that the asserted expense to the government without evidence was not sufficient to overcome the notice-and-comment requirement.

The court concluded, ” If Defendants have additional reasons why a stay might be appropriate pending any appeal, they can so move. Until then, the Court believes that vacatur is the appropriate remedy.”

The full text of the opinion, National Venture Capital Association, et al., v. Elaine Duke, et al., Civil Action No. 17-1912 (JEB), is at http://bit.ly/2BGcN2T.

Back to Top

  1. USCIS Designates Adopted Decisions Defining Affected Parties, Function Managers

U.S. Citizenship and Immigration Services (USCIS) has designated two Administrative Appeals Office (AAO) decisions as Adopted Decisions.

Matter of V-S-G Inc. (AAO Nov. 11, 2017), Adopted Decision 2017-06. This decision clarifies that beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers (“port”) and who have properly requested to do so under INA § 204(j) are “affected parties” under Department of Homeland Security regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings.

The USCIS memorandum notes that other kinds of visa petition beneficiaries, and the subsequent employers of beneficiaries who have ported or sought to port, are not affected parties under DHS regulations and may not participate in visa revocation proceedings.

The AAO decision states that it “settles a tension between longstanding agency regulations and subsequent developments in the law regarding who is a cognizable party to a Form I-140, Immigrant Petition for Alien Worker.” The decision notes that traditionally, the applicant or petitioner is the only recognized party to a proceeding; that is, the beneficiary of a petition generally does not have the ability to participate in the immigration proceeding initiated by the petitioner. The decision sets forth a scenario in which an I-140 beneficiary may become a recognized party in certain limited circumstances in light of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and one of its amendments. In so doing, the decision explains the current USCIS interpretation of applicable regulations to allow such a beneficiary to participate in relevant administrative proceedings.

The decision concludes:

Because we find that beneficiaries who are eligible to port and properly request to port under AC21 are within the statute’s zone of interests, USCIS interprets that statute as requiring a change in the agency’s historical interpretation of the applicable DHS regulations. Our new interpretation is to treat these beneficiaries as affected parties who may participate in revocation proceedings related to their underlying immigrant visa petitions. Because the Beneficiary in this case, who is eligible to port and properly requested to port in compliance with the requirements under AC21, did not have an opportunity to so participate, we will reopen these proceedings and reinstate the Form I-140 immigrant visa petition relating to the Beneficiary and remand these proceedings to the Director, who must afford the Beneficiary an opportunity to respond to any future [Notice of Intent to Revoke] related to this I-140 petition. Should the Director thereafter revoke the immigrant petition’s approval, the Beneficiary may appeal or file a motion to reopen or reconsider from the revocation or he may participate in proceedings arising from an appeal or motion filed by the Petitioner relating to this petition.

Matter of G- Inc. (AAO Nov. 8, 2017), Adopted Decision 2017-05. This decision provides important guidance to U.S. employers who transfer “function managers” (those who primarily manage essential functions rather than people) under the L-1 intracompany visa. A USCIS memorandum explaining the adoption of this decision notes:

Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.

The Matter of V-S-G- memorandum and decision are at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-11-11-PM-602-0149-Matter-of-V-S-G-Inc.-Adopted-Decision.pdf. The Matter of G- memorandum and decision are at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/APPROVED_PM-602-0148_Matter_of_G-_Inc._Adopted_AAO_Decision.pdf. Commentary on Matter of G- is at http://bit.ly/2Bgl3p3.

Back to Top

  1. DHS To Terminate TPS Designation for Haiti in July 2019

Acting Secretary of Homeland Security Elaine Duke recently announced the termination of the temporary protected status (TPS) designation for Haiti with a delayed effective date of 18 months “to allow for an orderly transition before the designation terminates on July 22, 2019.”

The DHS statement said, “Since the 2010 earthquake, the number of displaced people in Haiti has decreased by 97 percent. Significant steps have been taken to improve the stability and quality of life for Haitian citizens, and Haiti is able to safely receive traditional levels of returned citizens. Haiti has also demonstrated a commitment to adequately prepare for when the country’s TPS designation is terminated.”

In May 2017, then-DHS Secretary John Kelly announced a limited extension for Haiti’s TPS designation, stating that he believed there were indications that Haiti may not warrant further TPS extension past January 2018. At the time, then-Secretary Kelly stated that his six-month extension should give Haitian TPS recipients living in the United States time to attain travel documents and make other necessary arrangements for their ultimate departure from the United States, and should also provide the Haitian government with the time it needed to prepare for the future repatriation of all current TPS recipients.

DHS said the effective date of July 22, 2019, would “provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens. During this timeframe, USCIS will work with the State Department, other DHS components and the Government of Haiti to help educate relevant stakeholders and facilitate an orderly transition.”

Haitians with TPS must reapply for employment authorization documents to continue working legally in the United States until the end of the extension period.

The DHS announcement is at https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporary-protected-status-haiti.

Back to Top

  1. Federal Court Blocks Trump Order To Strip ‘Sanctuary Jurisdictions’ of Federal Funding

Following lawsuits by the counties of San Francisco and Santa Clara, California, federal district Judge William H. Orrick ruled against a provision of the Trump administration’s executive order issued in January 2017 to block federal funds from “sanctuary jurisdictions.”

The January executive order stated, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.” The executive order said, among other things, that the policy of the executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The order further said that the Secretary of Homeland Security has the authority to designate a jurisdiction as a sanctuary jurisdiction, and that the Attorney General can take “appropriate enforcement action” against any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

The counties challenging the executive order argued that the relevant provision of the Trump executive order violated the separation of powers doctrine in the Constitution because it improperly sought to wield congressional spending powers. The counties said it was so overbroad and coercive that even if the President had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions. Further, the counties argued that the provision was so vague that it violated the Fifth Amendment’s Due Process Clause and was void for vagueness. And because it sought to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violated the procedural due process requirements of the Fifth Amendment.

The federal government responded that the counties could not demonstrate that the executive order’s sanctuary provision was invalid under all circumstances. It also claimed, among other things, that the provision was consistent with the Constitution’s separation of powers and did not apply to funding in which the county might have a constitutionally protectable interest.

The court noted that the provision in question, by its plain language, attempted to reach all federal grants. The rest of the executive order was broader still, the court noted, addressing all federal funding. And if there was any doubt about the scope of the executive order, the court observed, the President and Attorney General “erased it with their public comments.” The court noted that the President has called the order “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded, the court noted.

The court said that the Constitution vests spending powers in Congress, not the President, so the executive order “cannot constitutionally place new conditions on federal funds.” Further, the court noted, the Tenth Amendment “requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive.” Federal funding that bears no meaningful relationship to immigration enforcement “cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves,” the court said. Because the executive order violates the separation of powers doctrine and deprives the counties of their Tenth and Fifth Amendment rights, the court granted the counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the executive order.

The January executive order is at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united. Additional details on sanctuary jurisdiction cases, including links to this decision and other related decisions, are at http://www.cand.uscourts.gov/who/sanctuary-litigation.

Back to Top

  1. USCIS Announces Caps for Final Three Fiscal Years of CNMI Transitional Worker Program

U.S. Citizenship and Immigration Services (USCIS) has announced the number of visas the agency will grant for the last three fiscal years of the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program. The caps until the end of the program are 9,998 (FY 2018); 4,999 (FY 2019); and 4,999 (FY 2020, until December 31, 2019).

Congress previously mandated that USCIS end the program by reducing the number of workers in the program to zero by December 31, 2019. Under the CW-1 program, employers in the CNMI can apply for permission to employ foreign workers who are ineligible to work in the territory under other nonimmigrant worker categories. The intent of phasing out this foreign worker program is “to encourage the territory’s transition into the U.S. immigration system, as well as to bolster recruitment of U.S. workers in the CNMI,” the USCIS announcement states.

USCIS announced in May 2017 that the agency had received a sufficient number of petitions to reach the maximum possible CW-1 cap for FY 2018. April 11, 2017, was the last day on which USCIS accepted FY 2018 CW-1 petitions requesting an employment start date before October 1, 2018. USCIS “encourages employers to file petitions for CW-1 workers as early as possible within 6 months of the requested employment start date. Please note, however, that USCIS will reject a petition if it is filed more than six months in advance,” the announcement states.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/cnmi-transitional-worker-program-draws-down-uscis-announces-cap-final-three-fiscal-years.

Back to Top

  1. ABIL Global: European Court Dismisses Challenge to Mandatory Relocation of Displaced Persons

The European Court of Justice (ECJ) recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union (EU) Member States.

ECJ judges said the European Council had acted lawfully. The court said that EU institutions were on firm legal ground when they adopted measures to respond to “an emergency situation characterized by a sudden inflow of displaced persons.” The ECJ also concluded that the legality of the decision was not affected by retrospective conclusions about the policy’s effectiveness.

Budapest condemned the court ruling as “appalling and irresponsible.” The foreign minister, Péter Szijjártó, said, “This decision jeopardizes the security and future of all of Europe. Politics has raped European law and values.” Hungary and Poland have not relocated anyone yet, and the Czech Republic has not made any such offers for more than a year. All three countries risk being taken to court by the commission.

Karl Waheed offered the following answers in response to questions about the ECJ’s decision, in his capacity as Vice Chair of the International Bar Association’s (IBA) Immigration and Nationality Law Committee:

  1. What is the view of the Immigration and Nationality Law Committee on the ECJ decision?

The IBA promotes the rule of law, and this decision upholds the rule of law and backs the European Council’s authority to apply it uniformly, despite resistance from some Member States. This is good news for the governance of the EU.

  1. Why did Slovakia and Hungary object in the first place?

Slovakia considers itself to be ethnically homogeneous. It has presently taken in 16 refugees out of the 902 it has pledged to take. However, Slovakia has avoided provoking any “infringement procedures,” which is the financial penalty imposed by the ECJ for refusing to follow their ruling, and it has avoided this by promising to take in more refugees.

Hungary sees itself as defending European and Christian civilization. Prime Minister Orban has pledged to fight the quota. Orban is facing a re-election this fall, which may be encouraging him to double down on his refusal. To date, Hungary has not taken a single person, and in June the ECJ initiated Infringement procedures against it, Poland, and the Czech Republic.

  1. Will this ruling make any difference? Will these two countries now accept refugees?

Yes, this ruling makes the European Council stronger. It reinforces their decision-making authority, even in the face of a lack of unanimity. It shows that the Council can enforce solidarity upon the reluctant EU members to provide relief for the more exposed countries like Italy and Greece.

If the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling of the ECJ. If they do not follow the ruling, we have a deeper political crisis of the EU on our hands.

If Slovakia and Hungary refuse to follow the ruling, the ECJ can implement infringement procedures that financially penalize the countries for not abiding with their ruling, which the ECJ already started initiating in June 2017.

  1. Why was there so much refugee migration in 2015 in particular? Are there still refugees trying to get into Greece/Italy?

Numerous factors contributed. An escalation of the civil war in Syria made it such that more than one out of every two Syrians became a displaced person, either internally within Syria or outside it. Furthermore, German Chancellor Angela Merkel’s offer in September 2015 to accept 1 million refugees had the inverse effect of encouraging more people to emigrate. Concerning the Mediterranean crossings, the civil war in Libya destabilized that country such that there was no authority to prevent the traffickers from shipping out of Libya.

At present, there are still tens of thousands of people on boats arriving monthly in Italy and Greece. According to the International Organization for Migration, in the first five months of 2017, there were 60,000 arrivals in Italy compared to 47,000 in the first five months of 2016. So, the problem is far from being episodic, or from having resolved itself.

Italy and EU are seemingly doing whatever they can, both legally and illegally, to keep boats from arriving in Italy. Take, for example, the EU-Turkey agreement from 2015. The EU is “refouling,” or relocating, thousands of asylum-seekers to Turkey, and yet Turkey is not considered a safe country because it has signed the outdated 1951 Convention relating to the Status of Refugees but not the modern 1968 Protocol.

  1. Where does this ruling leave the relocation “policy” of the EU?

This ruling reinforces the legitimacy of relocating within the EU. The ECJ described the relocation as fair and proportionate, so as to be in solidarity with Greece and Italy receiving so many arrivals. It reinforces the Dublin regulation, which took a hit to its legitimacy during 2015 when both Greece and Germany decided not to abide by it.

  1. Is this problem unique to the EU or are there other places where relocation is used?

It is not unique to the EU. Australia, for example, has similar agreements with Christmas Island and Papua New Guinea, where the latter two countries are paid to “warehouse” the asylum seekers. The problem with this is that these are not humane conditions. The asylum seekers are stuck on tiny islands for years while they wait for Australia to refuse them asylum. And what happens to them when they are refused asylum? Thus, relocation exists in other places, but it is not a model solution. At least within the EU, it can be done ethically among advanced countries, providing humane conditions during the asylum application process.

  1. Do we have any facts relating to the number of refugees affected? How many are there in Greece/Italy waiting relocation or who have been relocated?

According to the United Nations High Commissioner for Refugees, in 2015 approximately 1 million refugees arrived by sea in Europe. For 2016, it was 362,000 sea arrivals. In 2017, as of September, there have been 132,000 sea arrivals. Of those 132,000, Italy has received 103,000 and Greece 18,000.

Regarding relocation, 8,500 of the 39,600 targeted relocations from Italy have occurred, which is just 22 percent for Italian relocations. For Greece, 20,000 out of the 63,000 have been relocated, which is 31 percent.

Back to Top

  1. Firm In The News

Cyrus D. Mehta was a Speaker, US immigration and visa policy in the Trump era – what has changed and what has not? 8th Biennial IBA Global Immigration Conference, London, UK, November 17, 2017.

Cyrus D. Mehta was a Speaker, Ethical Issues In I-140/I-485 Scenarios, Advanced Corporate Immigration: Don’t Cross that Line! Ethics for Immigration Practitioners, New Jersey Institute for Continuing Legal Education, Newark, NJ, November 15, 2017.

Back to Top

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.

Back to Top

  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/.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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

Back to Top

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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

 

 

Back to Top

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.

Back to Top

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.

Back to Top

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.

Back to Top

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

Back to Top

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.

Back to Top

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.

Back to Top

  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.

Back to Top

  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

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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

 

Back to Top

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.

Back to Top

  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/.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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/.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top

  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.

Back to Top