Mid-April 2018 Immigration Update

Headlines:

Attorney General Orders ‘Zero Tolerance’ Policy for Improper Entries at Southwest Border; President Issues Memo on ‘Catch and Release – Attorney General Jeff Sessions directed federal prosecutors along the southwest border of the United States to adopt immediately a “zero-tolerance policy.” Later the same day, President Donald Trump issued a memorandum on “catch and release” at the border and other enforcement actions.

USCIS Completes H-1B Cap Random Selection Process for FY 2019 – USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption.

USCIS Launches E-Verify Website – The new website provides information about E-Verify and employment eligibility verification, including employee rights and employer responsibilities in the employment verification process.

EOIR Announces Controversial Metrics for Immigration Judge Performance – The new metrics, to be measured annually, include a goal of 700 case completions per year per IJ with a remand rate of less than 15 percent.

ICE Raids Meat-Packing Plant in Tennessee in Largest Single Workplace Raid in a Decade – Federal authorities arrested 97 people at a Tennessee meat-processing plant on immigration and other charges.

National Guard Troops Deploy to Southern U.S. Border – U.S. Defense Secretary James N. Mattis announced the authorization of up to 4,000 National Guard troops to deploy to the U.S. border with Mexico “to support the Department of Homeland Security border security mission there.”

SPLC Sues DHS for Unconstitutionally Blocking Detained Migrants’ Access to Lawyers –SPLC has filed a federal lawsuit alleging that DHS is violating the Constitution by blocking detained migrants from accessing lawyers. SPLC says the suit is the first of its kind to “highlight decades-long, widespread DHS violations of detained immigrants’ rightful access to counsel in civil immigration prisons in multiple facilities in the Southeast.”

Reminder: SAVE Goes Paperless – As of May 1, 2018, organizations must submit all verification requests electronically.

Firm in the News

 

Details:

Attorney General Orders ‘Zero Tolerance’ Policy for Improper Entries at Southwest Border; President Issues Memo on ‘Catch and Release’

Attorney General Jeff Sessions issued a memorandum on April 6, 2018, directing federal prosecutors along the southwest border of the United States to adopt immediately a “zero-tolerance policy for all offenses referred for prosecution under [8 U.S.C.] section 1325(a).” Later the same day, President Donald Trump issued a memorandum on “catch and release” at the border and other enforcement actions.

Mr. Sessions said the new zero-tolerance policy supersedes any existing policies, and that it should be applied “to the extent practicable, and in consultation with [the Department of Homeland Security.” If adopting such a policy requires additional resources, Mr. Sessions directs each office to identify and request those resources.

“You are on the front lines of this battle,” the memo states. “I respect you and your team.” He reminded federal prosecutors that “our goal is not simply more cases. It is to end the illegality in our immigration system.”

8 U.S.C. § 1325(a) states:

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

The Trump memo directs the Secretaries of Homeland Security, Defense, and Health and Human Services, along with the Attorney General, to submit reports detailing all measures that their departments “have pursued or are pursuing to expeditiously end ‘catch and release’ practices.” Among other things, the reports must include measures taken to “allocate all legally available resources” to ensure the detention of people for violations of immigration law at or near the U.S. borders, and must provide a “detailed list of all existing facilities, including military facilities, that could be used, modified, or repurposed to detain aliens for violations of immigration law at or near the borders of the United States.” The reports must also include the number of credible fear and reasonable fear claims received, granted, and denied, in each year since the beginning of fiscal year 2009, “broken down by the purported protected ground upon which a credible fear or reasonable fear claim was made.”

The Sessions memo is at https://bit.ly/2qeOzIH. The Trump memo is at https://bit.ly/2uS3Q7d.

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USCIS Completes H-1B Cap Random Selection Process for FY 2019

On April 11, 2018, USCIS announced that it had used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6 that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap, USCIS said.

The agency said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, also will not be counted toward the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

The announcement is at https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2019.

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USCIS Launches E-Verify Website

U.S. Citizenship and Immigration Services (USCIS) recently launched a new website, E-Verify.gov. USCIS called it “the authoritative source for information on electronic employment eligibility verification.” The website is intended for employers, employees, and the general public.

The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. The site “allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov,” USCIS said.

Employers can access E-Verify from a Web browser. Nearly all employees are confirmed as work-authorized “instantly or within 24 hours,” the agency said. The system, which has nearly 800,000 enrolled employers, compares information from an employee’s I-9 to records available to the Department of Homeland Security and the Social Security Administration to verify authorization to work in the United States.

USCIS said it “encourages all U.S. employers to verify all new hires through E-Verify.” The announcement is at https://bit.ly/2JAvJnl.

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EOIR Announces Controversial Metrics for Immigration Judge Performance

In a move that provoked immediate controversy, James McHenry, Director of the Department of Justice’s Executive Office for Immigration Review (EOIR), sent a memorandum on March 30, 2018, to all Immigration Judges (IJs) announcing the establishment of new performance metrics effective October 1, 2018. The memo notes that the “impact and implementation” of the metrics are subject to bargaining with the National Association of Immigration Judges (NAIJ).

The new metrics, to be measured annually, include a goal of 700 case completions per year per IJ with a remand rate of less than 15 percent. “Needs improvement” is defined as completing more than 560 but fewer than 700 cases per year and a remand rate of between 15 and 20 percent. Benchmarks for satisfactory performance include, among other things, cases completed on the initial hearing date for 100 percent of credible fear and reasonable fear reviews unless the Department of Homeland Security “does not produce the alien on the hearing date.”

Lawrence O. Burman, secretary of NAIJ, predicted that “[i]t’s going to be a disaster and it’s going to slow down the adjudications.” The president of NAIJ, Judge A. Ashley Tabaddor, said, “Clearly this is not justice,” and predicted the plan will “undermine the very integrity of the court.” Paul Schmidt, former chairman of the Board of Immigration Appeals, echoed those concerns, noting that when cases were rushed in the past, not only were mistakes made that resulted in returns from the federal Courts of Appeals, thus increasing the backlog, but some of the “botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases.” Judge Tabaddor also said in an email to Mr. Schmidt:

Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.

Mr. McHenry’s cover memo is at http://www.abajournal.com/images/main_images/from_Asso_Press_-_03-30-2018_McHenry_-_IJ_Performance_Metrics_.pdf. Relevant portions of the EOIR performance plan, which include performance standards and goals, are at http://www.abajournal.com/images/main_images/03-30-2018_EOIR_-_PWP_Element_3_new.pdf. Comments from Mr. Burman, Judge Tabaddor, and Mr. Schmidt are at http://immigrationcourtside.com/.

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ICE Raids Meat-Packing Plant in Tennessee in Largest Single Workplace Raid in a Decade

In the largest single workplace raid in a decade, federal authorities arrested 97 people at a Tennessee meat-processing plant on immigration and other charges. Of those, 86 were reportedly arrested on civil immigration charges; 32 were released without explanation and 54 were detained. In addition to the immigration charges, company owners are being investigated for alleged tax evasion and hiring undocumented workers.

The operation was conducted jointly with U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the Internal Revenue Service, and the Tennessee Highway Patrol.

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National Guard Troops Deploy to Southern U.S. Border

U.S. Defense Secretary James N. Mattis announced on April 6, 2018, the authorization of up to 4,000 National Guard troops to deploy to the U.S. border with Mexico “to support the Department of Homeland Security border security mission there.” National Guard troops began deploying after the announcement.

In a joint statement, Mr. Mattis and Department of Homeland Security (DHS) Secretary Kirstjen M. Nielsen said DHS worked closely with border-state governors and identified security vulnerabilities the National Guard could address.

President Donald J. Trump authorized the National Guard, with the affected governors’ approval, to enhance its support to U.S. Customs and Border Protection along the southern U.S. border. The troops “will not perform law enforcement activities or interact with migrants or other individuals detained by DHS without approval from Mattis,” according to the Department of Defense. “Arming will be limited to circumstances that might require self-defense,” the National Guard announcement noted.

The National Guard’s efforts will include “aviation, engineering, surveillance, communications, vehicle maintenance and logistical support,” chief Pentagon spokesperson Dana W. White said in a news briefing on April 5, 2018.

The National Guard’s statement is at http://www.nationalguard.mil/News/Article/1487429/national-guard-troops-deploy-to-southern-us-border/.

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SPLC Sues DHS for Unconstitutionally Blocking Detained Migrants’ Access to Lawyers

The Southern Poverty Law Center (SPLC) has filed a federal lawsuit in the U.S. District Court for the District of Columbia alleging that the Department of Homeland Security (DHS) is violating the Constitution by blocking detained migrants from accessing lawyers. SPLC says the suit is the first of its kind to “highlight decades-long, widespread DHS violations of detained immigrants’ rightful access to counsel in civil immigration prisons in multiple facilities in the Southeast.” The suit names DHS, U.S. Immigration and Customs Enforcement, and federal officials as defendants.

SPLC said that in 2017 it launched the “Southeast Immigrant Freedom Initiative” to enlist and train volunteer lawyers to provide free legal representation to detained migrants in removal proceedings in the southeast United States. “About 250 volunteers, including attorneys, law students and interpreters, have come to the South to offer free assistance, only to have client meetings delayed or denied, or they have been unable to communicate with clients due to limits on electronics that can facilitate interpretation,” SPLC said. “DHS intentionally selects private companies who operate immigration prisons as cash cows in remote, rural areas of the Southeast that are beyond the reach of most lawyers,” said Lisa Graybill, deputy legal director for the SPLC. “Their profit model is to simply warehouse as many people as they can for as long as they can, and they resist having to accommodate legal visits while remaining immune from any scrutiny or oversight. With this lawsuit, we are demanding that DHS be held accountable for the choices it makes.”

The complaint is at https://www.splcenter.org/sites/default/files/2018-04-04_dkt_0001_complaint.pdf. The SPLC announcement is at https://www.splcenter.org/news/2018/04/04/splc-sues-dhs-unconstitutionally-blocking-detained-immigrants-access-lawyers. An SLPC fact sheet on detained migrants that includes statistics is at https://www.splcenter.org/sites/default/files/ijp_access_case.pdf.

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Reminder: SAVE Goes Paperless

The Systematic Alien Verification for Entitlements (SAVE) program issued a reminder that SAVE will become a fully electronic process. As of May 1, 2018, organizations must submit all verification requests electronically. SAVE will no longer process mailed submissions of Forms G-845, Documentation Verification Request, and Form G-845, 3rd Step Document Verification Request. Any paper forms received after that date will be returned without a response.

Questions may be emailed to save.help@uscis.dhs.gov. For more information about SAVE, see https://www.uscis.gov/save/resources.

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Firm In The News

Cyrus Mehta has been recognized by Who’s Who Legal as among the most highly regarded Thought Leaders in North America in Corporate Immigration Law. See at http://whoswholegal.com/profiles/41905/0/mehta/cyrus-d-mehta/

Both Cyrus Mehta and Cora-Ann V. Pestaina have been included in the Who’s Who Legal directory of leading legal practitioners in Corporate Immigration Law. See at http://whoswholegal.com/firms/3749/office/5271/cyrus-d-mehta-partners-pllc/

This is what Who’s Who Legal have said:

Cyrus Mehta is “the best lawyer in New York City”, say peers, who add, “He is at the top of his game and a leader in his field.” He is an esteemed expert in Indian and US immigration and is one of the most highly ranked individuals in this year’s research. One source comments: “Everyone should have a direct line to Cyrus.”

Cora-Ann V. Pestaina is recommended for her expert handling of complex immigration issues for major multinational clients in the IT, healthcare and pharmaceutical sectors.

Mr. Mehta has published a new blog entry. “Analyzing the Definition of a Specialty Occupation Under INA 214(i) to Challenge H-1B Visa Denials” is at https://bit.ly/2vkbmbb.

Mr. Mehta and Mr. Yale-Loehr were quoted in “Indian H-1B Filings Set to Drop by 50% This Year,” published by Times of India at https://bit.ly/2H6hyIw.

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H-1B Tips for Employers

On April 2, employers can start filing H-1B temporary visa petitions for foreign professionals for work starting October 1, 2018. The law limits new H-1B visa numbers to 85,000 a year. Because many more employers than that are likely to file petitions, U.S. Citizenship and Immigration Services (USCIS) will receive applications for one week and then conduct a lottery to determine which applications will actually be processed. Applications that receive a receipt will then be adjudicated for approval or denial.

Getting selected in the H-1B lottery does not necessarily mean a petition will be approved. USCIS issued 45% more requests for additional evidence on H-1B petitions in 2017 than the previous year. There was also a higher percentage of denials, longer processing times, and tougher standards on filing requirements. We foresee even more scrutiny of H-1B petitions this year, as well as longer processing times.

We recommend the following potential ways for employers to maximize their H-1B chances:

  •     Apply based on a master’s degree from a U.S. nonprofit university as long as all degree requirements are completed before April 1
  •     Ensure close match between course of study and job duties
  •     Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
  •     Apply for “consular notification,” not change of status, to preserve OPT if OPT lasts beyond October 1
  •     Apply for “change of status” if OPT expires before October 1 to preserve work eligibility under “cap gap” policy, but avoid travel
  •     Choose O*NET code and wage level carefully
  •     If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
  •     Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Labor Department, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a “specialty occupation”
  •     Consider other visa options if your employees is not selected in the H-1B lottery
  •     Check USCIS website for changes to form, fee, filing location

Mid-March 2018 Immigration Update

Headlines:

  1. California, Sued by Dept. of Justice for ‘Sanctuary’ Laws, Continues to Resist – DOJ filed a lawsuit against the state of California, its governor, and its attorney general over several “sanctuary” laws passed by the state. State officials remained defiant.
  2. Lost in the Weed: Practitioners Warn About Potential Immigration Consequences of Marijuana Use – Immigration practitioners are warning clients that CBP and USCIS officials are increasingly asking people about past marijuana usage.
  3. DHS Extends TPS for Syria – DHS has extended the temporary protected status designation for Syria for 18 months, through September 30, 2019.
  4. SAVE Moves From Paper To Electronic Verification Request Submissions – USCIS said that “updates have only been made to the Additional Verification process at this time, and the Initial Verification process will be updated later this year.”
  5. ABIL Global: Belgium – This article discusses the types of permits used for corporate immigration in Belgium, the probable implementation of a single permit in 2018, and salary thresholds.
  6. Firm In The News… 

Details:

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1. California, Sued by Dept. of Justice for ‘Sanctuary’ Laws, Continues to Resist

The Department of Justice (DOJ) filed a lawsuit on March 6, 2018, against the state of California, Governor Jerry Brown, and the state’s attorney general, Xavier Becerra, over several “sanctuary” laws passed by the state. DOJ argues in its complaint that these laws “have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California. The Supremacy Clause does not allow California to obstruct the United States’ ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution. Accordingly, the provisions at issue here are invalid.”

The three laws at issue are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration law compliance; the California Values Act, which limits communication from state and local law enforcement with federal immigration officials and prevents them from investigating people for immigration enforcement purposes; and A.B. 103, which subjects local detention facilities to twice-yearly inspections by the California Attorney General’s office.

It appeared that the Trump administration’s pushback against California and other states enacting such laws is not confined to lawsuits or ICE raids. Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), reportedly said after one of the laws was enacted that “[w]e’ve got to start charging some of these politicians with crimes.” And Homeland Security Secretary Kirstjen Nielsen said the Department of Justice was looking into “what avenues might be available” for potentially charging state and local officials. On March 6, in a speech in California, U.S. Attorney General Jeff Sessions invoked the Civil War, stating, “There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg or to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled.”

California officials remained defiant in the face of the lawsuit and other threats. Mr. Becerra responded to the lawsuit and related threats that California will not do the federal government’s “bidding on immigration enforcement and deportation.” He said state and federal teams “work together to go after drug dealers and go after gang violence,” but that the state would not “change from being focused on public safety” rather than on deportation.

On January 17, 2018, U.S. Senators Dianne Feinstein (D-Cal.) and Kamala Harris (D-Cal.) sent a letter to Mr. Homan asking for a full accounting of how ICE raids are being prioritized and conducted, quoting a television interview where Mr. Homan had said “California better hold on tight.” Sens. Feinstein and Harris said they were deeply concerned that ICE was not prioritizing violent criminals. “We firmly believe that law enforcement must prioritize dangerous criminals and not undocumented immigrants who do not pose a threat to public safety. Diverting resources in an effort to punish California and score political points is an abhorrent abuse of power, not to mention a terrible misuse of scarce resources.” Oakland Mayor Libby Schaaf recently publicly warned that ICE agents were about to conduct a large operation in her area. “I know that Oakland is a city of law-abiding immigrants and families who deserve to live free from the constant threat of arrest and deportation. I believe it is my duty and moral obligation as mayor to give those families fair warning when that threat appears imminent,” she said. Mr. Homan said that as a result, federal agents subsequently were able to arrest only about 200 people instead of a higher percentage of the 1,000 they had targeted. President Trump threatened to pull all ICE agents out of California.

Subsequently, James Schwab, ICE’s spokesperson in San Francisco, quit his position, stating, “I quit because I didn’t want to perpetuate misleading facts. I asked them to change the information. I told them that the information was wrong, they asked me to deflect, and I didn’t agree with that. Then I took some time and I quit.” He said he “didn’t feel like fabricating the truth to defend ourselves against [Mayor Schaaf’s] actions was the way to go about it. We were never going to pick up that many people. To say that 100 percent are dangerous criminals on the street, or that those people weren’t picked up because of the misguided actions of the mayor, is just wrong.”

The lawsuit against California is at http://bit.ly/2FnG3ke. The Feinstein-Harris letter is at http://bit.ly/2mJ3UyD.

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2. Lost in the Weed: Practitioners Warn About Potential Immigration Consequences of Marijuana Use

More and more states are legalizing marijuana for both medical and recreational use. But federal law still makes most marijuana use criminally prosecutable and a ground of inadmissibility for people wishing to come to the United States. Immigration practitioners are warning clients that U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services officials are increasingly asking people about past marijuana usage.

According to the Immigrant Legal Resource Center (ILRC), as of January 2018, 28 states and the District of Columbia had legalized medical marijuana, and 8 states plus the District of Columbia had legalized recreational marijuana for adults. ILRC warns that if a noncitizen admits to an immigration official that he or she has ever possessed marijuana, the person “can face very serious immigration problems.” This is true “even if the person never was convicted of a crime, just used marijuana at home, and it was permitted under state law.” ILRC recommends avoiding marijuana until a person is a U.S. citizen; getting legal counsel in the event of a real medical need; never leaving the house carrying marijuana, a medical marijuana card, or related paraphernalia or accessories; and not posting photos or information about use of marijuana on phones or social media. ILRC also recommends never discussing marijuana use or possession with any immigration or border official. If an official asks about marijuana, “say that you don’t want to talk to them and you want to speak to a lawyer. You have the right to remain silent.  …once you admit it, you can’t take it back. If you did admit this to a federal officer, get legal help quickly.”

About a year ago, CBP issued a travel advisory in Minnesota for medical marijuana prescription holders, reminding travelers planning trips “across the border into Minnesota or North Dakota to leave their medicinal marijuana at home.” Although medical marijuana is legal in many U.S. states and Canada, the travel advisory notes that “the sale, possession, production and distribution of marijuana all remain illegal under U.S. federal law. Consequently, crossing with a valid medical marijuana prescription is prohibited and could potentially result in fines, apprehension, or both.”

The CBP travel advisory is at https://www.cbp.gov/newsroom/local-media-release/travel-advisory-medical-marijuana-prescription-holders. The ILC warning is at https://www.ilrc.org/sites/default/files/resources/marijuana_english.pdf.

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3. DHS Extends TPS for Syria

The Department of Homeland Security announced on March 5, 2018, that it is extending the temporary protected status (TPS) designation for Syria for 18 months, from April 1, 2018, through September 30, 2019. The extension allows currently eligible TPS beneficiaries to retain TPS through September 30, 2019, as long as they otherwise continue to meet the eligibility requirements.

DHS said new employment authorization documents (EADs) will be issued to eligible Syrian TPS beneficiaries who timely re-register and apply for EADs under this extension. If an employee has an EAD (Form I-766) with an original expiration date of March 31, 2018, and containing the category code “A-12” or “C-19,” this EAD is automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the 180-day automatic extension period, September 27, 2018.

The notice, which sets forth procedures for nationals of Syria (or those having no nationality who last habitually resided in Syria) to re-register for TPS and apply for EADs, is at https://www.gpo.gov/fdsys/pkg/FR-2018-03-05/html/2018-04454.htm. Additional information is at http://bit.ly/2me8buA.

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4. SAVE Moves From Paper To Electronic Verification Request Submissions

U.S. Citizenship and Immigration Services (USCIS) announced that on May 1, 2018, the Systematic Alien Verification for Entitlements (SAVE) Program will no longer accept the paper G-845, Documentation Verification Request, or the paper G-845, 3rd Step Document Verification Request. As of that date, all verification requests must be submitted electronically.

In a separate email alert, USCIS said that “updates have only been made to the Additional Verification process at this time, and the Initial Verification process will be updated later this year.”

USCIS said questions may be emailed to SAVE.Help@uscis.dhs.gov. The announcement is at https://www.uscis.gov/save/whats-new.

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5. ABIL Global: Belgium

This article discusses the types of permits used for corporate immigration in Belgium, the probable implementation of a single permit in 2018, and salary thresholds.

With the exception of the Blue Card, Belgium currently has a dual permit system with separate documents for each type of permit. Employment authorizations and work permits, which allow a foreigner to work in Belgium, are processed by the Belgian Regions (Flanders, Brussels, and Wallonia). Visa and residence permits, which relate to the right to enter and reside in Belgium, are issued by the Belgian federal authorities.

All this may change soon, when the single permit will probably be implemented. An important step toward the implementation of the single permit is a cooperation agreement between the Belgian Regions signed on February 2, 2018. The agreement aims, among other things, to define criteria for the territorial competence (jurisdiction) for applications; to confirm the principle, within some limits, of mutual recognition of permits issued by another Region; and to determine the competence for audits. A draft bill to approve this cooperation agreement was filed with the Belgian federal Chamber of Representatives on February 8, 2018, and was adopted by the Committee for Interior and Public Affairs within the Chamber on March 9, 2018. A plenary discussion and vote will be the next step. A preliminary draft bill to implement the single permit was approved by the federal Council of Ministers on February 9, 2018.

One of the requirements for some Belgian fast-track work permits B, as well as for the Blue Card, is a salary threshold: the annual gross remuneration must meet the threshold amount, which is adjusted on a yearly basis.

The new salary thresholds effective January 1, 2018, are:

  • For highly skilled work permits: € 40,972 (€ 40,124 for 2017);
  • For executive-level work permits: € 68,356 (€ 66,942 for 2017);
  • For Blue Cards: € 52,978 (€ 51,882 for 2017).

The Ministries will only issue a fast track work permit B or Blue Card if it is clear that the employee’s salary will meet the threshold amount. The Ministries will only take into account amounts that will definitely be paid. Discretionary bonuses, COLA (Cost of Living Allowances), and most other allowances cannot be taken into account when processing the work permit application.

The correct salary payment, as well as correct use of a work permit, will be crucial for a renewal after one year: partial/limited use of a work permit (e.g., a work permit valid for one year that has only been used for six months) may result in a refusal to renew.

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6. Firm In The News… 

Cyrus Mehta has authored several new blog entries. “California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found To Be Unconstitutional” is at http://bit.ly/2IqxClW. “The Draconian Documentation Regime for Third-Party Arrangements in H-1B Visa Petitions” is at http://bit.ly/2IfTYqv.

Mr. Mehta‘s blog was quoted extensively by Gadgets Now in “U.S. Immigration Expert Says New H-1B Rules Anti-India.” Regarding a new USCIS policy memorandum on H-1B visas issued on February 22, 2018, Mr. Mehta speculated about possible anti-India bias, noting, “While most would not want to openly admit it, one wonders whether this business model would be so maligned and attacked if it was developed in a Scandinavian country rather than India. Indian H-1B workers have been unfairly disparaged even in the media for displacing American workers as we saw in the Disney episode without any regard to the benefits these H-1B workers ultimately bring to the American economy.” The article is at http://bit.ly/2GrJiEr. The USCIS memo is at http://bit.ly/2BMRVt3.

Mr. Mehta was quoted by the Times of India in “U.S. Tightens H-1B Visa Rules, Indians To Be Hit.” “The new policy suggests…that additional evidence may also be needed, such as more details in the work orders or in letters from the end client regarding the beneficiaries’ work assignment. While all these issues in the new USCIS policy are already asked for in challenges to the H-1B petition known as Requests for Evidence, it provides more incentive for USCIS to ask for more evidence regarding the specific nature of the H-1B worker’s work.” The article is at http://bit.ly/2Hl9DDq.

March 2018 Immigration Update

Headlines:

  1. Supreme Court Declines Trump Administration Appeal in DACA Case – The U.S. Supreme Court let stand without comment a ruling by a federal judge to block the Trump administration’s plan to end Deferred Action for Childhood Arrivals by March 5, 2018.
  2. Supreme Court Says Certain Aliens May Be Held in Indefinite Detention, Remands Case to Ninth Circuit – The U.S. Supreme Court remanded a case to the U.S. Court of Appeals for the Ninth Circuit that challenges the government’s authority to hold an alien in detention indefinitely without a bond hearing. The Court said that certain aliens may be held in detention indefinitely while proceedings are pending, and that periodic bond hearings are not required. Justice Breyer dissented in strong terms.
  3. USCIS Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions – USCIS has published a policy memorandum clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.
  4. USCIS Expands Credit Card Payment Option for Fees – The new payment option is available for the 41 fee-based forms processed at USCIS Lockbox facilities.
  5. State Dept. Discusses Visa Availability in the Coming Months – The Department of State’s Visa Bulletin for March 2018 discusses visa availability in the coming months in several categories.
  6. USCIS Revises Mission Statement, Removes “Nation of Immigrants” – USCIS has revised its mission statement to remove the terms “nation of immigrants” and “customers,” among other changes.
  7. USCIS Finalizes Guidance on Signature Requirements; Power-of-Attorney Signatures Will No Longer Be Accepted – USCIS announced on February 16, 2018, that petitioners and applicants who seek immigration benefits must provide a valid signature on forms submitted to the agency, and that power-of-attorney signatures will no longer be accepted in most cases.
  8. ABIL Global: Turkey – The Telecommunications Authority has created a new registration system for Turkish companies to file applications and receive official government communications electronically.
  9. Firm In The News… 

Details:

1.     Supreme Court Declines Trump Administration Appeal in DACA Case

On February 26, 2018, the U.S. Supreme Court blocked the Trump administration’s attempt to bypass the U.S. Court of Appeals for the Ninth Circuit and let stand without comment a ruling by a federal judge in California on January 9, 2018, to end Deferred Action for Childhood Arrivals (DACA) by March 5, 2018. This means that the Trump administration must continue to accept renewal applications for the time being from those enrolled in DACA. The case is expected to be considered next by the Ninth Circuit.

The Supreme Court said, “It is assumed the court of appeals will act expeditiously to decide this case.” It could take another year for the case to wind its way back to the Supreme Court. Congressional legislation is also a possibility, although current prospects for such action seem dim.

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2.      Supreme Court Says Certain Aliens May Be Held in Indefinite Detention, Remands Case to Ninth Circuit

On February 27, 2018, the U.S. Supreme Court remanded a case to the U.S. Court of Appeals for the Ninth Circuit that challenges the government’s authority to hold an alien in detention indefinitely without a bond hearing. The Court said that certain aliens may be held in detention indefinitely while proceedings are pending, and that periodic bond hearings are not required. In this case, the Supreme Court was asked to interpret several provisions of U.S. immigration law that authorize the government to detain aliens in the course of immigration proceedings.

The Court said that because the Ninth Circuit “erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as ‘a court of review, not of first view,’ … we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.” The Court also noted several additional issues for the Ninth Circuit to address, such as whether respondents could continue litigating their claims as a class and whether the Court of Appeals continues to have jurisdiction.

The Court observed that all parties appeared to agree that the text of the provisions at issue, when read most naturally, did not give detained aliens the right to periodic bond hearings during the course of their detention. “But by relying on the constitutional avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue,” the Court noted, concluding that “[i]mmigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country.”

Justice Breyer dissented, saying he would find it alarming “to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.” He said, among other things, that given the “serious constitutional problem” of prolonged detention of noncitizens, he “would interpret the statutory provisions before us as authorizing bail.” He referred to the Declaration of Independence, which states that all have certain rights, among them the right to liberty, and that the Constitution’s Due Process Clause “protects each person’s liberty from arbitrary deprivation.” He also noted that for a long time, “liberty has included the right of a confined person to seek release on bail.” Justice Breyer said, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”

The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf.

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3.     USCIS Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

USCIS said this clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. “This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location,” USCIS said. The guidance explains that for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

  • The beneficiary will be employed in a specialty occupation; and
  • The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition, the guidance states. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

USCIS said the updated policy guidance aligns with President Trump’s “Buy American and Hire American” Executive Order and directive to protect the interests of U.S. workers.

Reaction. Some immigration attorneys have noted that the new policy suggests that additional evidence may be needed in addition to contracts and work orders, such as more details in the work orders or in letters from the end client regarding the beneficiary’s work assignment. It appears that employers will need to provide more evidence to establish that the H-1B worker will be performing qualified duties under the H-1B program at the end client. If USCIS does not have evidence that this is the case, it could either deny the H-1B petition or grant it for less than three years. According to reports, requests for evidence in response to H-1B visa applications were up 45% (a total of 85,265 requests) in January to August 2017 over the same time period a year earlier.

The USCIS policy memorandum is at http://bit.ly/2BMRVt3. A related announcement is at https://www.uscis.gov/news/news-releases/uscis-strengthens-protections-combat-h-1b-abuses.

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4.     USCIS Expands Credit Card Payment Option for Fees

U.S. Citizenship and Immigration Services (USCIS) announced that it will now accept credit card payments for filing most of its forms.

The new payment option is available for the 41 fee-based forms processed at USCIS Lockbox facilities. To pay by Visa, MasterCard, American Express or Discover, applicants will need to Form G-1450, Authorization for Credit Card Transaction. USCIS will enter credit card data into the Pay.gov system, operated by the U.S. Department of the Treasury, and will then destroy the Form G-1450 to protect the credit card information.

Applicants for naturalization and those renewing or replacing their permanent resident cards (green cards) can already use a credit card when they file online at the USCIS website. In addition, USCIS has been accepting credit card payments for naturalization forms filed at Lockbox facilities since 2015.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-expands-credit-card-payment-option-fees. Links to the 41 fee-based forms affected by this announcement are at https://www.uscis.gov/forms/forms-processed-uscis-lockbox-facilities. Lockbox information is at https://www.uscis.gov/about-us/directorates-and-program-offices/lockbox-intake/office-intake-and-document-production. Pay.gov is at https://pay.gov/public/home. The G-1450 is at https://www.uscis.gov/sites/default/files/files/form/g-1450.pdf.

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5.     State Dept. Discusses Visa Availability in the Coming Months

The Department of State’s Visa Bulletin for March 2018 discusses visa availability in the coming months in several categories.

Special Immigrant Translator category. Given the limited availability of visa numbers and the existing demand, the Department said it expects to reach the FY 2018 annual limit of 50 Special Immigrant Visas in the SI category early this year. As a result, it has been necessary to maintain a March Final Action Date of April 22, 2012. It is likely that number use will require the SI category to become Unavailable in the coming months. Once the annual limit of 50 visas is reached, further issuances in the SI category will not be possible until October 2018, under the FY 2019 annual limit. The SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains Current.

Vietnam Employment Fifth Preference category. Continued heavy applicant demand is expected to result in the Vietnam Employment Fifth preference category reaching the per-country annual limit during March, the Department said. Once this happens, the category will become subject to a final action date, and visa availability for the remainder of FY 2018 will depend on the extent to which otherwise unused numbers are available.

Employment Fourth Preference Certain Religious Workers category. Pursuant to the continuing resolution, signed on February 9, 2018, the non-minister special immigrant program expires on March 23, 2018. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight March 22, 2018, the Department noted. Visas issued before this date will have a validity date of March 22, 2018, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight March 22, 2018. If there is no legislative action extending this category for FY 2018, the final action date would immediately become Unavailable for March for all countries, the Department said.

Employment Fifth Preference categories (I5 and R5). The continuing resolution signed on February 9, 2018, extended this immigrant investor pilot program until March 23, 2018. The I5 and R5 visas may be issued until the close of business on March 23, 2018, and may be issued for the full validity period, the Department said. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after March 23, 2018. If there is no legislative action extending this category for FY 2018, the final action date would immediately become Unavailable for March for all countries, the Department said.

The March 2018 Visa Bulletin is at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-march-2018.html.

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6.     USCIS Revises Mission Statement, Removes “Nation of Immigrants”

In what may be a sign of the times, U.S. Citizenship and Immigration Services (USCIS) has revised its mission statement to remove the term “nation of immigrants,” among other changes.

USCIS Director Francis Cissna announced the new mission statement on February 22, 2018. He emphasized the principles of “upholding the rule of law and ensuring the integrity of our immigration system.” He singled out deletion of the word “customers,” which, he said, “promotes an institutional culture that emphasizes the ultimate satisfaction of applicants and petitioners, rather than the correct adjudication of such applications and petitions according to the law. Use of the term leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve. All applicants and petitioners should, of course, always be treated with the greatest respect and courtesy, but we can’t forget that we serve the American people.”

The new mission statement says:

U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

The former mission statement said:

USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.

The new USCIS mission statement is at https://www.uscis.gov/aboutus. USCIS Director Cissna’s related statement is at https://www.uscis.gov/news/news-releases/uscis-director-l-francis-cissna-new-agency-mission-statement.

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7.     USCIS Finalizes Guidance on Signature Requirements; Power-of-Attorney Signatures Will No Longer Be Accepted

U.S. Citizenship and Immigration Services (USCIS) announced on February 16, 2018, that petitioners and applicants who seek immigration benefits must provide a valid signature on forms submitted to the agency, and that power-of-attorney signatures will no longer be accepted in most cases. If forms are filed by a corporation or other legal entity, they must be signed by an authorized person. The new policy is effective March 18, 2018.

A related final policy memorandum has updated an interim memorandum that outlined the elements of a valid signature and permitted entities that filed petitions with USCIS to use the signature of an individual based on a power of attorney. Because of concerns about consistency and program integrity, USCIS reversed the interim memorandum’s policy on power-of-attorney signatures.

The prohibition on power-of-attorney signatures does not affect signatures on behalf of individuals younger than age 14 or those with disabilities. The final memorandum makes additional changes, such as providing that an authorized signatory must be employed by the petitioner and that USCIS may reject a form submitted with a faulty signature instead of offering the opportunity to fix the deficiency.

USCIS said it will publish revised instructions for individual forms to clearly specify the applicable signature requirements. USCIS will also address requirements for electronic signatures in future guidance.

The announcement is at https://www.uscis.gov/news/news-releases/uscis-finalizes-guidance-signature-requirements. The final policy memorandum is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-16-PM-602-0134.1-Signatures-on-Paper-Applications-Petitions-Requests-and-Other-Documents.pdf.

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8.     ABIL Global: Turkey

The Telecommunications Authority has created a new registration system for Turkish companies to file applications and receive official government communications electronically.

Various Turkish government ministries are reminding companies that the Telecommunications Authority has created a new registration system for Turkish companies to receive official government communications and notices electronically. This is called the KEP system (kayitli electronik posta). Under the new system, no work permit applications can be logged in without a company-sponsored utilization of its KEP account.

The Information, Communication and Technologies Authority of Turkey (under the Ministry of Transportation, Maritime Affairs and Communication) will ask companies and individuals who sponsor work permits to register for this KEP system. The system presumably will then electronically verify filings, approvals, cancellations, and requests for evidence.

Many visitors have had urgent questions regarding this abrupt change. Several officers confirmed that the new application system is just now operational, so few applicants have been able to log in a new application so far. It appears that the initial delay was an integration problem that has been resolved. The government decided to keep the old system activated to allow cases already filed to continue to process. Therefore, for those cases in process, documents may still be uploaded, cases canceled, and approvals received via the old system.

In the meantime, the system appears to work in this manner:

  1. The company purchases a KEP account via a registered notary or the Turkish postal system
  2. The company designates a specific individual to act as contact
  3. The designee receives an activation memory stick for an “electronic notification tool” from the agency to load onto the company’s system
  4. The company (or authorized attorney) logs in a work permit application
  5. All subsequent related filings and communications presumably will be carried out through the KEP system

The website for this system is at https://www.turkkep.com.tr/. How helpful or complicated the KEP system will be remains to be seen. There are still significant unknowns.

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  1. Firm In The News

Cora-Ann V. Pestaina published BALCA Holds That Foreign Language Requirement Did Not Need To Be Listed In The Advertisements on February 20, 2018

David Isaacson published Rodriguez Tovar v. Sessions: The Ninth Circuit Holds That a Child Sponsored By a Lawful Permanent Resident Should Not Be Penalized For The LPR Parent’s Naturalization on February 27, 2018.

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Mid-February 2018 Immigration Update

Headlines:

  1. Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission – Four immigration bills failed in the U.S. Senate, and a House bill appears doomed. Also, a second court enjoined DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The decision included certain limitations.
  2. President Trump Calls for Establishment of National Vetting Center – President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”
  3. Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule – A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”
  4. Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces – Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, USCIS announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018, and will take a “flexible” approach.
  5. Alleged P-3 Entertainer Visa Fraud Scheme Busted – The P-3 visa allows entertainers to visit the United States to perform in culturally unique events and deepen U.S. understanding of different cultures. An indictment alleged that defendants choreographed a widespread P-3 visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers.
  6. USCIS To Process Recently Filed Asylum Applications Over Older Ones – USCIS will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog.
  7. USCIS, DOS Tighten Screening Procedures for Refugees and Family Members – USCIS and DOS implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-to-join refugees.”
  8. Firm In the News

Details:

1.      Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission

A bipartisan deal on immigration, the so-called “Common Sense Plan,” failed on February 15, 2018, in the U.S. Senate, 54-45. The legislation would have provided a pathway to legalization for Deferred Action for Childhood Arrivals (DACA) “Dreamers” and provided $25 billion for border security measures, among other things. Reportedly, the Trump administration opposed the deal and had threatened to veto it despite substantial bipartisan support. A White House-supported bill also failed in the Senate, 39-60. The latter bill would have cut family immigration, ended the diversity visa (DV) program, and increased federal removal powers. Two other immigration proposals also failed on February 15.

Sen. John Thune was quoted as saying, “Well, we’ll go back to the drawing board.” Sen. Susan Collins (R-Maine) said she was “very disappointed” and added that “we’ve got real problems that we need to solve.”

Meanwhile, the U.S. House of Representatives is hard at work on a tough bill—the “Securing America’s Future Act,” also dubbed the “Goodlatte bill” after its main author, Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee—that appears not to have sufficient support in either the House or the Senate. Among other things, the bill would provide temporary, renewable legal status to DACA recipients rather than citizenship. It would authorize border wall funding, end family-based immigration, end the DV program, and require employers to use the E-Verify program, among other measures.

Also, on February 13, 2018, the U.S. District Court for the Eastern District of New York became the second court to enjoin DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The court ordered the Trump administration to maintain the DACA program on the same terms and conditions that existed before promulgation of the DACA Rescission Memo, subject to several limitations: the administration need not consider new applications by individuals who have never before obtained DACA benefits; need not continue granting advance parole to DACA beneficiaries; and may adjudicate DACA renewal requests on a case-by-case basis.

The court decision is at https://www.nilc.org/wp-content/uploads/2018/02/Batalla-Vidal-v-Nielsen-updated-pi-order-2018-02-13.pdf. A Department of Homeland Security press release issued before the Senate voted on the “Common Sense Plan” is at https://www.dhs.gov/news/2018/02/15/schumer-rounds-collins-destroys-ability-dhs-enforce-immigration-laws-creating-mass.

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2.     President Trump Calls for Establishment of National Vetting Center

On February 6, 2018, President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center (NVC) “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”

A statement issued by the White House said the NVC, to be led by the Department of Homeland Security, “will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.”

The statement says:

The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfil that obligation.

The statement is at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-regarding-creation-national-vetting-center/.

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3.     Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule

A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”

Among other things, the letter notes that “Rescission of the International Entrepreneur Rule” has been pending review with the Office of Management and Budget since November 17, 2017. “This potential new rule places a dark cloud over IER, as immigrant entrepreneurs are uncertain of how long IER will be in place,” the letter notes:

The rescission rule stifles investment into new companies with foreign-born founders, which ultimately costs the U.S. economy. It also exacerbates an alarming trend of elite entrepreneurs launching successful startups outside the United States. Twenty years ago our country’s share of global venture investment was 90%, but that number has dropped precipitously to 81% in 2006 and to 53% in 2017. In 2016, China was home to six of the ten largest venture capital investments in the world. If we continue to push entrepreneurs overseas, our share of global investment will continue to decrease.

As background, on January 17, 2017, the Department of Homeland Security (DHS) published the International Entrepreneur final rule with an original effective date of July 17, 2017. On July 11, 2017, DHS published a final rule delaying the effective date until March 14, 2018, to allow for a full review of the rule. The Trump administration proposed in late 2017 to rescind the final rule. In December 2017, a federal court ruled in National Venture Capital Association v. Duke that the rule should go into effect because the government had not provided sufficient notice-and-comment for the delay rule under the Administrative Procedure Act.

The full text of the coalition letter is at http://technet.org/press-release/technet-renews-call-for-president-to-preserve-international-entrepreneur-rule. TechNet, with 77 member companies, sent a similar letter to U.S. Citizenship and Immigration Services, available at https://technetorg.app.box.com/s/q9t2kd9y7nr9vj4qbi7zs8ow93g2qept. The court’s decision is at https://www.courthousenews.com/wp-content/uploads/2017/12/Venture-Capital-ruling.pdf. A USCIS statement following the court order is at https://www.uscis.gov/news/news-releases/uscis-begin-accepting-applications-under-international-entrepreneur-rule. Information on how to submit an international entrepreneur application is at https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole.

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4.     Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces

Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, U.S. Citizenship and Immigration Services (USCIS) announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018.

USCIS said it is “maintaining a flexible approach to this issue,” which may include randomly selecting petitions received on the final receipt date “to ensure that we allocate H-2B visas fairly and do not exceed the cap.” USCIS said more information would be forthcoming.

The USCIS announcement is at https://www.uscis.gov/news/alerts/surge-h-2b-petitions-possible-second-half-fy-2018. Information on the cap count for H-2B nonimmigrants is at https://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h-2b-nonimmigrants.

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5.     Alleged P-3 Entertainer Visa Fraud Scheme Busted

A 15-count indictment was unsealed on February 8, 2018, in federal court in Brooklyn, New York, charging Stella Boyadjian, Hrachya Atoyan, and Diana Grigoryan, also known as “Dina Akopovna,” for their roles in a multi-year visa fraud scheme that brought Armenian citizens into the United States for profit. The defendants are charged with multiple counts of visa fraud and with conspiring to defraud the United States, commit visa fraud, and illegally bring undocumented persons into the United States. Boyadjian and Grigoryan are also charged with related money laundering, and Boyadjian is charged with aggravated identity theft.

As alleged in the indictment, the defendants choreographed their widespread visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers to deceive a government program that allows foreign nationals to temporarily enter the United States as artistic performers in the P-3 visa category. That category allows entertainers to visit the U.S. to perform in culturally unique events and to deepen U.S. understanding of different cultures.

Boyadjian allegedly ran a nonprofit organization called Big Apple Music Awards Foundation Inc. (BAMA), based in Rego Park, New York, which she and her co-conspirators used to further their visa fraud scheme. As part of the alleged scheme, the defendants and their co-conspirators solicited undocumented persons and charged them fees ranging from $3,000 to $15,000 per applicant to fraudulently obtain P-3 visas by submitting false Forms I-129 and supporting documents to U.S. Citizenship and Immigration Services. Upon approval of the I-129 petitions, the defendants and their co-conspirators acquired fraudulent dance certificates and organized staged photo sessions where foreign nationals wore Armenian dance costumes to make it appear as though they were traditional Armenian musicians, singers, and performers. After being trained how to falsely answer questions during visa interviews, the P-3 visa applicants presented these fake certificates and photos during their P-3 visa interviews. Once in the United States, some beneficiaries of the P-3 visas paid the defendants an additional fee to be included in applications for extensions of their fraudulently obtained visas. The defendants furthered their visa fraud scheme by creating flyers and other documents purporting to hold BAMA-sponsored concerts and events in the United States.

USCIS’ announcement is at https://www.uscis.gov/news/news-releases/three-individuals-indicted-visa-fraud-scheme-profit.

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6.     USCIS To Process Recently Filed Asylum Applications Over Older Ones

U.S. Citizenship and Immigration Services (USCIS) announced recently that the agency will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog. The agency said it faces a “crisis-level backlog” of 311,000 pending asylum cases as of January 21, 2018, making the asylum system “increasingly vulnerable to fraud and abuse. This backlog has grown by more than 1750 percent over the last five years, and the rate of new asylum applications has more than tripled.”

To address this issue, USCIS said it will follow these priorities when scheduling affirmative asylum interviews:

  1. Applications that were scheduled for an interview but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
  2. Applications pending 21 days or fewer since filing; and
  3. All other pending applications, starting with newer filings and working back toward older filings.

Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.

USCIS said this priority approach was used for 20 years until 2014, and “seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization.” Returning to a “last in, first out” interview schedule will allow USCIS “to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings,” USCIS said.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog. Information on affirmative asylum interview scheduling is at https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-interview-scheduling.

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7.     USCIS, DOS Tighten Screening Procedures for Refugees and Family Members

On February 1, 2018, U.S. Citizenship and Immigration Services (USCIS) and the Department of State implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-to-join refugees.” A following-to-join refugee is the spouse or child of a principal refugee who lives abroad and wishes to join the principal refugee in the United States.

These measures were implemented following a 120-day review mandated by Executive Order 13780, which directed the Department of Homeland Security to determine what additional procedures should be implemented to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.

According to USCIS, new measures that apply to following-to-join refugees processed overseas include:

  • Ensuring that following-to-join refugees receive the full baseline interagency screening and vetting checks that other refugees receive.
  • Requesting that the following-to-join refugee submit his or her Form I-590, Registration for Classification as Refugee, in support of the principal refugee’s Form I-730, Refugee/Asylee Relative Petition, earlier in the adjudication process. USCIS or the Department of State will contact petitioners directly to request this information.
  • Vetting certain nationals or stateless persons against classified databases.

The USCIS notice is at https://www.uscis.gov/news/alerts/uscis-strengthening-screening-family-members-abroad-seeking-join-refugees-united-states. A related Department of State memorandum is at https://www.dhs.gov/sites/default/files/publications/17_1023_S1_Refugee-Admissions-Program.pdf. A report required by Executive Order 13780 is at https://www.justice.gov/opa/press-release/file/1026436/download.

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  1. Firm In The News

Cyrus D. Mehta was the Program Chair, Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Related Relief, Practicing Law Institute, New York, NY and via Webcast, February 9, 2018.

Cyrus D. Mehta was the Program Chair and Speaker, Basic Immigration Law 2018, Practicing Law Institute, New York, NY and via Webcast, February 8, 2018.

Cyrus D. Mehta was a Moderator, Lessons Across Borders: What the U.S. and Canada Can Teach One Another About Establishing a Successful Immigration and Asylum Policy, American Bar Association 2018 Midyear Meeting, Vancouver, February 3, 2018.

Cyrus D. Mehta was a Speaker, Ten Changes President Trump Has Made Without Immigration Legislation, teleconference (with Greg Siskind) sponsored by the Alliance of Business Immigration Lawyers, January 25, 2018.

Cyrus D. Mehta published The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification along with Sophia Genovese on February 6, 2018.

Cyrus D. Mehta published The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir along with Sophia Genovese on February 12, 2018.

February 2018 Immigration Update

Headlines:

  1. State of the Union Speech Outlines Immigration Reform Proposal; White House Releases ‘Framework’ on Immigration and Border Security – President Donald Trump outlined several immigration-related themes during his State of the Union address on January 30, 2018. Also, the Trump administration released its “Framework on Immigration Reform & Border Security” on January 25, 2018.
  2. Immigration Innovation Act of 2018 Introduced in Senate – Sens. Orrin Hatch (R-Utah) and Jeff Flake (R-Ariz.) introduced the “Immigration Innovation (I-Squared) Act of 2018” in the U.S. Senate on January 25, 2018. The bill (S. 2344) would authorize additional visas for “well-educated aliens” to live and work in the United States.
  3. USCIS Announces Termination of TPS Designation in 2019 for El Salvador – TPS for El Salvador will be terminated effective September 9, 2019. The 60-day re-registration period began January 18, 2018, and runs through March 19, 2018.
  4. USCIS Automatically Extends EAD Validity for Certain Haitians With TPS; Re-Registration Period Now Open – The designation of Haiti for TPS will expire on July 22, 2019. Current beneficiaries of TPS under Haiti’s designation who want to maintain that status through the program’s termination date must re-register by March 19, 2018. USCIS has automatically extended the validity of EADs for certain individuals with TPS from Haiti.
  5. DOJ Announces End to Use of Civil Enforcement Authority to Enforce Agency Guidance Documents – The Office of the Associate Attorney General announced a new policy on January 25, 2018, that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules.
  6. USCIS Emailing Notifications to H-2A Petitioners, Using Pre-Paid Mailers to Send RFEs – USCIS has begun emailing notifications of receipt and approval to H-2A (temporary agricultural worker) petitioners who file Forms I-129, Petitions for a Nonimmigrant Worker. Also, USCIS said it is using pre-paid mailers provided by H-2A petitioners to send requests for evidence (RFE) if issued in a case.
  7. DOL Issues Notice on Change for H-2B Labor Certification Period of Need – The DOL’s Office of Foreign Labor Certification alerted employers and other interested stakeholders about a process change “to better assure fairness regarding the issuance of H-2B temporary labor certifications due to the unprecedented volume of applications received on January 1, 2018.”
  8. Dep’t of State Updates Guidance on Affidavits of Support and Public Charge Determinations – The Department of State recently updated guidance on affidavits of support and public charge determinations.
  9. USCIS Releases Guidance on L-1 Relationships and Proxy Votes – A recent policy memorandum from U.S. Citizenship and Immigration Services (USCIS) clarifies a 1982 precedent decision, Matter of Hughes, by instructing officers that proxy votes must be irrevocable from the time of filing the L-1 petition through adjudication to establish a qualifying relationship. The petitioner must file an amended petition if any changes of ownership and control of the organization occur after USCIS adjudicates the petition.
  10. CBP Issues Guidance on Border Searches of Electronic Devices – CBP issued a memorandum providing guidance and standard operating procedures for border searches of electronic devices.
  11. Federal Contractors With E-Verify FAR Requirement Must Enroll in E-VerifyFederal contractors and subcontractors with an E-Verify Federal Acquisition Regulation (FAR) requirement must enroll in and use E-Verify.
  12. ABIL Global: Mexico – This article provides commentary on “duty of care” in Mexico’s corporate immigration system.
  13. Firm In The News

Details:

1.    State of the Union Speech Outlines Immigration Reform Proposal; White House Releases ‘Framework’ on Immigration and Border Security

President Donald Trump outlined several immigration-related themes during his State of the Union address on January 30, 2018. Also, the Trump administration released its “Framework on Immigration Reform & Border Security” on January 25, 2018. Following are highlights of these communications.

State of the Union. President Trump called for “immigration policies that focus on the best interests of American workers and American families.” He asserted that “for decades, open borders have allowed drugs and gangs to pour into our most vulnerable communities. They’ve allowed millions of low-wage workers to compete for jobs and wages against the poorest Americans. Most tragically, they have caused the loss of many innocent lives.” He said he is “calling on Congress to finally close the deadly loopholes that have allowed MS-13, and other criminal gangs, to break into our country.”

President Trump said that after meeting extensively with both Democrats and Republicans “to craft a bipartisan approach to immigration reform,” his administration “presented Congress with a detailed proposal” that includes four pillars:

  1. A path to citizenship for 1.8 million “illegal immigrants who were brought here by their parents at a young age.” Under the plan, “those who meet education and work requirements, and show good moral character, will be able to become full citizens of the United States over a 12-year period.”
  2. Fully securing the border. “That means building a great wall on the southern border, and it means hiring more heroes…to keep our communities safe. Crucially, our plan closes the terrible loopholes exploited by criminals and terrorists to enter our country, and it finally ends the horrible and dangerous practice of catch and release.”
  3. Ending the diversity visa lottery. “It’s time to begin moving toward a merit-based immigration system, one that admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.”
  4. Ending “chain migration” by limiting family migration to spouses and minor children.

President Trump also said he signed an order to keep the “detention facilities” open in Guantanamo Bay, Cuba.

Framework on Immigration Reform & Border Security. Among other things, the framework calls for a $25 billion “trust fund” for a border wall system, ports of entry/exit, and northern border enhancements. It also proposes providing legal status for Deferred Action for Childhood Arrivals (DACA) recipients, including a 10- to 12-year path to citizenship that includes “requirements for work, education and good moral character.” The framework would eliminate the Diversity Visa lottery.

The next day, Kirstjen Nielsen, Secretary of Homeland Security, released a brief statement supporting President Trump’s “security-focused immigration framework,” including funding for the “border wall system, the ability to quickly remove those who break our immigration laws and reforms to our immigration system.” Secretary Nielsen said, “This is what DHS front-line personnel have asked for to secure our borders and maintain the integrity of our immigration system.”

The White House statement is at https://www.whitehouse.gov/briefings-statements/white-house-framework-immigration-reform-border-security/. DHS Secretary Nielsen’s statement is at https://www.dhs.gov/news/2018/01/26/secretary-kirstjen-m-nielsen-statement-white-house-immigration-framework.

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2.     Immigration Innovation Act of 2018 Introduced in Senate

Sens. Orrin Hatch (R-Utah) and Jeff Flake (R-Ariz.) introduced the “Immigration Innovation (I-Squared) Act of 2018” in the U.S. Senate on January 25, 2018. The bill (S. 2344) would authorize additional visas for “well-educated aliens” to live and work in the United States.

A summary from Sen. Hatch outlines the bill as follows:

Employment-Based Nonimmigrant Visas (H–1B)

  • U.S. advanced degrees: Uncaps the existing exemption (currently 20,000) for holders of U.S. master’s degrees or higher from the annual numerical limitation on H–1B visas for individuals who are being sponsored for or who will be sponsored for a green card.
  • Statutory cap: Increases the annual base allocation of H–1B visas from 65,000 to 85,000.
  • Market escalator: Creates a market-based escalator to allow the supply of H–1B visas to meet demand. Under the escalator, up to 110,000 additional H–1B visas (for a total of 195,000) may be granted in a fiscal year if certain demand requirements are met.
  • Lottery prioritization: Prioritizes adjudication of cap-subject H–1B visa petitions for holders of U.S. master’s degrees or higher, holders of foreign Ph.D.’s, and holders of U.S. STEM (science, technology, engineering, and mathematics) bachelor’s degrees.
  • Hoarding penalties: Subjects employers who fail to employ an H–1B worker for more than 3 months during the individual’s first year of work authorization to a penalty.
  • Prohibitions on replacement: Prohibits employers from hiring an H–1B visa holder with the purpose and intent to replace a U.S. worker.
  • Work authorization for H–1B spouses and children: Provides work authorization for spouses and dependent children of H–1B visa holders.
  • Worker mobility: Increases H–1B worker mobility by establishing a grace period during which H–1B visa holders can change jobs without losing legal status.
  • Dependent employers: Updates 1998 law exempting H–1B dependent employers from certain recruitment and nondisplacement requirements. Raises from $60,000 to $100,000 the H–1B salary level at which the salary-based exemption takes effect. Narrows education-based exemption to H–1B hires with a U.S. Ph.D. Eliminates exemptions for “super-dependent” employers.

Green Cards

  • Per-country numerical limits: Eliminates annual per-country limit for employment-based permanent resident “green cards” and adjusts per-country caps for family-based green cards.
  • Green card recapture: Enables the recapture of green card numbers that were approved by Congress in previous years but not used.
  • Exemptions from green card cap: Exempts spouses and children of employment-based green card holders, holders of U.S. STEM master’s degrees or higher, and certain individuals with extraordinary ability in the arts and sciences, from worldwide numerical caps on employment-based green cards.
  • Worker mobility: Increases worker mobility for individuals on the path to a green card by enabling them to change jobs earlier in the process without losing their place in the green card line.
  • Employmentbased conditional green cards: Creates a new conditional green card category to allow U.S. employers to sponsor university-educated foreign professionals through a separate path from H–1B.

Student Visas

  • Dual intent: Enables F–1 student visa holders to seek permanent resident status while a student or during Optional Practical Training (OPT).

STEM Education and Worker Training

  • Promoting American Ingenuity Account: Increases fees for H–1B visas and employment-based green cards and directs fees toward state-administered grants to promote STEM education and worker training.

Sen. Hatch’s statement is at https://www.hatch.senate.gov/public/index.cfm/2018/1/hatch-flake-introduce-merit-based-high-skilled-immigration-bill-for-the-21st-century.

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3.     USCIS Announces Termination of TPS Designation in 2019 for El Salvador

The designation of El Salvador for temporary protected status (TPS) was set to expire on March 9, 2018. The Secretary of Homeland Security has determined that conditions in El Salvador no longer support its designation for TPS and that termination of the TPS designation of El Salvador is required. The Secretary therefore is terminating the designation effective September 9, 2019, which is 18 months following the end of the current designation. The 60-day re-registration period began January 18, 2018, and runs through March 19, 2018.

Nationals of El Salvador (and those having no nationality who last habitually resided in El Salvador) who have been granted TPS and wish to maintain their TPS and receive TPS-based employment authorization documents (EAD) valid through September 9, 2019, must re-register for TPS in accordance with the procedures set forth in the USCIS notice.

USCIS has automatically extended the validity of EADs with TPS from El Salvador with an original expiration date of March 9, 2018, and containing the category code “A-12” or “C-19.” The employee with such an EAD may continue to work without a new one (and without a receipt notice) through the end of the automatic extension period, September 5, 2018, USCIS said.

The notice is at https://www.gpo.gov/fdsys/pkg/FR-2018-01-18/pdf/2018-00885.pdf. A correction notice is at https://www.federalregister.gov/documents/2018/01/22/C1-2018-00885/termination-of-the-designation-of-el-salvador-for-temporary-protected-status.

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4.     USCIS Automatically Extends EAD Validity for Certain Haitians With TPS; Re-Registration Period Now Open

As announced in late 2017, the designation of Haiti for temporary protected status (TPS) will expire on July 22, 2019. Current beneficiaries of TPS under Haiti’s designation who want to maintain that status through the program’s termination date of July 22, 2019, must re-register by March 19, 2018. Also, USCIS has automatically extended the validity of employment authorization documents (EADs) for certain individuals with TPS from Haiti.

EADs for Haitians with TPS with an original expiration date of January 22, 2018, and containing the category code “A-12” or “C-19” are automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the automatic extension period, July 21, 2018.

Additionally, those Haitians with TPS who have an EAD with an expiration date of July 22, 2017, and who have not yet received the new EAD applied for during the last re-registration period are also covered by this automatic extension. For the Form I-9, these employees may show their EAD with a July 22, 2017, expiration date, their EAD application receipt (Notice of Action, Form I-797C) that notes the application was received on or after May 24, 2017, and USCIS’s statement on this automatic extension at https://www.uscis.gov/news/re-registration-period-now-open-haitians-temporary-protected-status.

The re-registration notice is at https://www.uscis.gov/news/re-registration-period-now-open-haitians-temporary-protected-status. The notice of termination of TPS for Haitians is at https://www.gpo.gov/fdsys/pkg/FR-2018-01-18/html/2018-00886.htm.

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5.     DOJ Announces End to Use of Civil Enforcement Authority to Enforce Agency Guidance Documents

As a follow-up to a memorandum issued by Attorney General Jeff Sessions in November 2017, the Office of the Associate Attorney General announced a new policy on January 25, 2018, that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. Under the DOJ’s new policy, agency civil litigators are prohibited from using guidance documents, or noncompliance with guidance documents, to establish violations of law in affirmative civil enforcement actions.

The November memo prohibits the DOJ from issuing guidance documents that have the effect of adopting new regulatory requirements or amendments to the law that are binding on persons or entities outside the Executive Branch. The memo prevents the agency “from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents,” a DOJ announcement said.

“Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking,” Associate Attorney General Rachel Brand said.

The announcement is at https://www.justice.gov/opa/pr/associate-attorney-general-brand-announces-end-use-civil-enforcement-authority-enforce-agency. The November memo is at https://www.justice.gov/opa/press-release/file/1012271/download.

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6.     USCIS Emailing Notifications to H-2A Petitioners, Using Pre-Paid Mailers to Send RFEs

As of January 22, 2018, U.S. Citizenship and Immigration Services (USCIS) has begun emailing notifications of receipt and approval to H-2A (temporary agricultural worker) petitioners who file Forms I-129, Petitions for a Nonimmigrant Worker. Also, USCIS said it is using pre-paid mailers provided by H-2A petitioners to send requests for evidence (RFE) if issued in a case.

These process changes apply only to H-2A petitions “due to their highly time-sensitive nature,” USCIS said.

Email notifications. USCIS will send notifications of receipt and approval to the email address provided by H-2A petitioners in Part 1 of Form I-129 and to any email address provided for their attorneys or accredited representatives on a valid Form G-28. There is no charge for this service.

In addition to these emailed notifications, USCIS will continue to send receipt and approval notices by postal mail and update Case Status Online at https://egov.uscis.gov/casestatus/landing.do.

Pre-paid mailers for RFEs. H-2A petitioners can submit two pre-paid mailers if they want to expedite delivery of both the final decision notice and any RFE issued for the petition.

Service centers normally use pre-paid mailers only for final decision notices. Any pre-paid mailers submitted for H-2A petitions must meet the same requirements (see link below) as pre-paid mailers used for other forms and classifications.

USCIS will no longer send receipt notices to H-2A petitioners via pre-paid mailer. This is because the emailed receipt notice will include the relevant receipt number, the agency said.

The USCIS notice is at https://www.uscis.gov/news/alerts/uscis-will-email-notifications-h-2a-petitioners-use-pre-paid-mailers-send-requests-evidence. Requirements for pre-paid mailers are at https://www.uscis.gov/news/alerts/clarification-uscis-customers-can-select-delivery-service-receive-certain-documents.

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7.     DOL Issues Notice on Change for H-2B Labor Certification Period of Need

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) alerted employers and other interested stakeholders on January 17, 2018, about a process change “to better assure fairness regarding the issuance of H-2B temporary labor certifications due to the unprecedented volume of applications received on January 1, 2018.”

Among other things, the alert notes that H-2B employers receiving Notices of Acceptance can proceed to meet the additional regulatory requirements, including recruitment of U.S. workers and submission of recruitment reports. Employers receiving Notices of Deficiency that are corrected, and who then receive a Notice of Acceptance, can also proceed to meet the additional regulatory requirements.

The alert states that OFLC is making a change to its process regarding the issuance of final labor certification decisions. This process change “will better reflect the sequential order in which employers filed applications,” the alert notes. OFLC will not begin releasing certified H-2B applications (Form ETA-9142B, Application for Temporary Employment Certification) until February 20, 2018. On that day, OFLC will release certified H-2B applications that have met all regulatory requirements as of that day in sequential order based on the original calendar day and time the application was filed (i.e., receipt time). Thereafter, OFLC will continue to release certified H-2B applications in a sequential manner until all applications are released. OFLC will continue to issue rejections, withdrawals, and denials of labor certification applications in accordance with standard procedures. This process change “will allow employers who filed promptly on January 1, 2018, sufficient time to meet regulatory requirements, including the recruitment and hiring of qualified and available U.S. workers, thus preserving the sequential order of filing that took place on January 1, 2018, to the extent possible,” the alert states.

The alert is at https://www.foreignlaborcert.doleta.gov/news.cfm (scroll down to January 17, 2018).

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8.     Dep’t of State Updates Guidance on Affidavits of Support and Public Charge Determinations

The Department of State recently updated guidance on affidavits of support and public charge determinations:

UNCLASSIFIED 18 STATE 942
January 4, 2018
From: SECSTATE WASHDC

Subject: Update to 9 FAM 302.8 Public Charge – INA 212(A)(4)

2. Guidance at 9 FAM 302.8 has been updated and reorganized.

3. INA 212(a)(4)(B) continues to provide that officers must take into account the totality of the alien’s circumstances at the time of visa application, including, at a minimum: (a) age, (b) health, (c) family status, (d) assets, resources, financial status, and (e) education and skills. As revised, 9 FAM 302.8-2(B)(2) now includes detailed guidance to help officers assess these statutory factors when considering the totality of the applicant’s circumstances. For instance, 9 FAM 302.8-2(B)(2)(f)(1)(b)(i) provides that an officer may consider “past or current receipt of public assistance of any type” in determining whether an applicant is likely to become a public charge, although officers must make a determination based on the present circumstances. Consequently, an applicant’s current receipt of public assistance may not raise significant future concerns, based on the totality of circumstances. For example, if the applicant just completed an educational degree and received a credible job offer, the applicant’s education and skills might provide a sufficient basis to find that the applicant overcomes any public charge ineligibility concerns in spite of current lack of assets. Alternatively, an applicant’s past receipt of public assistance could be very significant: for example, if the applicant’s spouse was the family’s primary income earner, but recently died. In this case, the applicant’s recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances.

  1. Additionally, 9 FAM 302.8-2(B)(3), paragraph b, as revised provides that a “properly filed and sufficient, non-fraudulent” Affidavit of Support by itself may not satisfy the INA 212(a)(4) public charge requirement. The Affidavit of Support requirement at INA 213A and the public charge ineligibility at INA 212(a)(4) are distinct requirements which, where both are applicable, must both be satisfied. Accordingly, a properly filed and sufficient Affidavit of Support is essential, but does not preclude denial on public charge grounds. Officers should consider such affidavits as one factor in the totality of the applicant’s circumstances, and, may find the applicant is likely to become a public charge if, for example, the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs. Similarly, if an applicant does not clearly overcome public charge concerns but could with a joint sponsor, then a consular officer’s evaluation of the likelihood the joint sponsor would voluntarily meet his or her financial obligations toward the applicant becomes vital to the adjudication. See 9 FAM 302.8-2(B)(3)(b)(1)(b).
  2. The updated guidance at 9 FAM 302.8 is effective immediately.

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9.     USCIS Releases Guidance on L-1 Relationships and Proxy Votes

A recent policy memorandum from U.S. Citizenship and Immigration Services (USCIS) clarifies a 1982 precedent decision, Matter of Hughes, by instructing officers that proxy votes must be irrevocable from the time of filing the L-1 petition through adjudication to establish a qualifying relationship. The petitioner must file an amended petition if any changes of ownership and control of the organization occur after USCIS adjudicates the petition.

The memo notes that although Matter of Hughes focused on joint venture scenarios, issues of ownership and control can arise in other circumstances. Specifically, owners of entities often use proxy votes to determine control of the entity. In typical proxy voting cases, a person is authorized to vote equity owned by another. Neither Matter of Hughes nor previous USCIS guidance have addressed whether proxy votes must be irrevocable to establish control, the memo states.

The fact that proxies may be revoked is an issue when establishing control of a company through proxy votes, the memo notes. A petitioner can show control by submitting documentation demonstrating that one or more equity holders irrevocably granted the ability to vote their equity to another equity holder, thereby effectively (and legally) giving the other equity holder “control” over the company or companies in question. The memo notes that such documentation may include relevant evidence regarding the legal framework under which the proxy was granted (such as the laws of the jurisdiction in which the entity is organized and the jurisdiction in which any agreements were executed), the organizational documents of the entity, irrevocable proxy agreements, official meeting minutes detailing the irrevocable proxy, and an affidavit from the proxy-granting equity holder with sufficient specificity regarding the details of the irrevocable proxy. As always, the memo states, the petitioner bears the burden of proof and the evidence the petitioner provides must be credible and sufficient for the adjudicator to determine eligibility. “If a petitioner cannot demonstrate the requisite common ownership and control from the time of filing through the time USCIS adjudicates the petition, it fails to establish a qualifying relationship,” the memo states. “Further, changes of ownership and control of the organization post-adjudication may constitute a substantial change in circumstances or new material information requiring re-adjudication by USCIS to ensure compliance with the regulations. In such cases, the petitioner must file an amended L-1 petition.”

The memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-12-29-PM-602-0155-L-1-Qualifying-Relationships-and-Proxy-Votes.pdf.

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10.     CBP Issues Guidance on Border Searches of Electronic Devices

U.S. Customs and Border Protection (CBP) issued a memorandum on January 4, 2018, providing guidance and standard operating procedures for border searches of electronic devices. The guidance applies to “searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media, disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices subject to inbound and outbound border searches” by CBP.

Among other things, the memo states that border searches of electronic devices may include searches of the information stored on a device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include “an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely.” The memo includes procedures for handling material identified as protected by attorney-client privilege or attorney work product, and other sensitive information such as medical records, journalist work, and business or commercial information.

The memo states that if presented with an electronic device containing information that is protected by a passcode or encryption or other security mechanism, a CBP officer may request and retain passcodes or other means of access as needed to facilitate the examination of an electronic device or information contained on an electronic device, including information on the device that is accessible through software applications present on the device that is being inspected or has been detained, seized, or retained in accordance with the memo.

Passcodes and other means of access obtained during the course of a border inspection “will only be utilized to facilitate the inspection of devices” and information subject to border search “will be deleted or destroyed when no longer needed to facilitate the search of a given device, and may not be utilized to access information that is only stored remotely,” the memo states. If an officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the officer may “detain the device pending a determination as to its admissibility, exclusion, or other disposition,” the memo notes.

The memo is at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf.

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11.     Federal Contractors With E-Verify FAR Requirement Must Enroll in E-Verify

U.S. Citizenship and Immigration Services issued a reminder that as of January 5, 2018, federal contractors and subcontractors with an E-Verify Federal Acquisition Regulation (FAR) requirement must enroll in and use E-Verify. Beginning January 5, 2018, new federal contractors and subcontractors with a FAR requirement must provide their Data Universal Numbering System (DUNS) during the E-Verify enrollment process. The DUNS Number is a unique, nine-digit identification number assigned by Dun and Bradstreet to the organizations maintained in its database. Existing E-Verify employers designated as federal contractors with a FAR requirement do not have to provide their DUNS number, but will be prompted to enter it in E-Verify when they update their company profile.

More information on E-Verify is at https://www.uscis.gov/e-verify and https://www.uscis.gov/e-verify/enroll-e-verify. An E-Verify enrollment checklist is at https://www.uscis.gov/e-verify/getting-started/enrollment-checklist. A video on how to enroll in E-Verify is at https://www.uscis.gov/e-verify/video-how-enroll-e-verify-1. Contact information for E-Verify is at https://www.uscis.gov/e-verify/customer-support/contact-e-verify.

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12.   ABIL Global: Mexico

This article provides commentary on “duty of care” in Mexico’s corporate immigration system.

On a global scale, the immigration regimes of every country evolve according to diverse reasons. It is often hard to keep track due to the fast pace at which the financial and political climate may transform. In the case of Mexico, a major reform took place in 2012 after a longstanding regime that lasted nearly 40 years, and yet there is no legislation that specifically addresses the concept of “duty of care,” despite growing concerns among practitioners and employers.

From a regulatory standpoint, the Mexican immigration regime is governed by the Constitution, the Migration Act, and its regulations, along with several decrees, programs, and guidelines for the practical application of the law. All of these instruments are aligned with core objectives as established in the National Development Plan and the Strategic Plan of the National Immigration Institute 2013-2018, which are heavily oriented toward the protection of the human rights of migrants, fostering economic growth through facilitating legal migratory flows, promoting family reunion, and encouraging foreign direct investment.

In light of the above, illegal immigration was decriminalized and the term “illegal” was removed from a regulatory standpoint, the immigration procedures were streamlined, and the sanctions for non-compliance of foreigners in the country have been relaxed.

Within this context, such flexibilities are ironically deceiving. It is common to find employers and foreign nationals continuing to be penalized with administrative sanctions, monetary fines, and other difficulties that may interrupt business continuity and compromise a foreign national’s legal stay in the country. In addition, provisions in other areas of law, including tax and labor regulations, must be observed to ensure that foreign nationals working and doing business in the country remain fully compliant and avoid such risks.

There is a challenge to guarantee that the concept of “duty of care” not only remains in the vocabulary of law practitioners and employers but also is included in the regulations and the culture of all corporations that mobilize foreign employees internationally.

Although the Instituto Nacional de Migración (INM) does not directly penalize companies for foreign employees’ non-compliance with immigration laws, employers acting as sponsors are held accountable and the implications may indirectly affect business objectives. Furthermore, sanctions imposed on expatriates also permeate companies’ records with the INM and may affect future applications when the same company is acting as the sponsor.

Although duty of care is not a concept that Mexican laws specifically address, its practice is widespread within corporations and international assignees. Hence, the potential contingencies it may entail must be considered by corporations in defining their global immigration programs, even in countries such as Mexico, that could be deemed with a low risk and relaxed regulations for corporate and business activities.

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  1. Firm In the News

Cyrus D. Mehta was a Guest Speaker on the topic: How To Help Clients Even While President Trump Is Restricting Immigration, at the AILA Philadelphia Chapter Meeting, Philadelphia, PA, January 18, 2018.

Cyrus D. Mehta published Potential Adjustment of Status Options After the Termination of TPS on January 22, 2018; and The American Dream Is For Everyone with Sophia Genovese on January 29, 2018.

David Isaacson published What Comes Next: Potential Relief Options After the Termination of TPS  on January 17, 2018.

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Mid-January 2018 Immigration Update

Headlines:

  1. Former DHS Secretaries Urge Congress To Act on DACA Now; Administration Begins Accepting DACA Renewal Applications – Former DHS Secretaries Michael Chertoff, Jeh Johnson, and Janet Napolitano sent a letter to Republican and Democratic congressional leaders urging swift passage of legislation to allow the 690,000 “Dreamers” under the Deferred Action for Childhood Arrivals program to continue to live and work in the United States. Also, USCIS resumed accepting renewal applications for DACA based on a federal court order.
  2. DHS To Terminate TPS for El Salvador in September 2019, Suggests ‘Legislative Solution’ – Temporary protected status TPS designation for El Salvador will be terminated on September 9, 2019. DHS suggested the possibility of a legislative solution in the meantime.
  3. New I-94 Feature Reminds VWP Travelers of Number of Remaining Days – A new feature added to the I-94 website allows Visa Waiver Program (VWP) travelers to check the status of their admission to the United States. This check informs travelers of the number of days remaining in their lawful period of admission or the number of days they have remained past that period. In addition, CBP said it will now send email notifications to VWP travelers who are still in the United States 10 days before the expiration of their lawful admission period.
  4. OFLC Alerts Employers, Stakeholders Re High Volume of H-2B Temporary Labor Certification Requests – OFLC alerted employers and stakeholders about the high volume of applications received requesting temporary labor certification under the H-2B visa program.
  5. CBP Updates Directive on Border Searches of Electronic Devices – The new directive supersedes the previous directive released in August 2009.
  6. USCIS Clarifies Proxy Vote Use for Certain Intracompany Transferee Visa Petitions – USCIS issued updated policy guidance clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.
  7. DOJ Clarifies Policy on EADs for TPS Hondurans and Nicaraguans – DOJ recently clarified policy with respect to employment authorization documents based on USCIS’s automatic extension of their validity for individuals with temporary protected status from Honduras and Nicaragua.
  8. DOJ Settles U.S. Worker Discrimination Claims Against Colorado Agricultural Company – Among other things, the complaint alleged that although U.S. citizens had to complete a background check and a drug test before starting work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them.
  9. Firm In The News…

Details:

  1. Former DHS Secretaries Urge Congress To Act on DACA Now; Administration Begins Accepting DACA Renewal Applications

On January 3, 2018, former Department of Homeland Security Secretaries Michael Chertoff, Jeh Johnson, and Janet Napolitano sent a letter to Republican and Democratic congressional leaders urging swift passage of legislation to allow the 690,000 “Dreamers” under the Deferred Action for Childhood Arrivals (DACA) program to continue to live and work in the United States.

Specifically, the DHS secretaries urged passage of a DACA bill by January 19, 2018, as a “best-case deadline.” They noted that this would provide enough time for U.S. Citizenship and Immigration Services (USCIS) to process applications “before tens of thousands of DACA recipients are negatively impacted by the loss of their work authorization or removal from the United States.” They warned that by the Trump administration’s March 5 deadline, the number of DACA recipients losing status “skyrockets to an average of 1,200 a day.”

The DHS secretaries further warned that if DACA recipients lose their work authorization, this would create uncertainty and negatively affect the business community that has hired 90 percent of them. “Congressional delay past the next few weeks will force the employers of hundreds of thousands of DACA recipients into a state of instability” in which they must plan to lose employees, the letter said.

On January 13, 2018, USCIS resumed accepting renewal applications for DACA based on a federal court order: “Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.” The notice states:

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

The court’s preliminary injunction noted, among other things:

For the reasons DACA was instituted, and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below). Beginning March 5, absent an injunction, one thousand individuals per day, on average, will lose their DACA protection. The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status. This would tear authorized workers from our nation’s economy and would prejudice their being able to support themselves and their families, not to mention paying taxes to support our nation. Too, authorized workers will lose the benefit of their employer-provided healthcare plans and thus place a greater burden on emergency healthcare services.

On provisional relief motions, district judges must also weigh the balance of hardships flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be repeated. The only hardship raised by defendants is interference with the agency’s judgment on how best to allocate its resources in keeping our homeland secure, as well as its judgment in phasing out DACA. Significantly, however, the agency’s judgment here was not based on a policy change. It was based on a mistake of law. If the instant order is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary injunction will set that right without imposing any policy unwanted by the Executive Branch.

The DHS secretaries’ letter is at https://assets.documentcloud.org/documents/4342660/Letter-on-DACA-From-Former-Homeland-Security.pdf. USCIS’ announcement about resumption of acceptance of renewal applications, which states that “[a]dditional information will be forthcoming,” is at https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction. The preliminary injunction is at https://www.uscis.gov/sites/default/files/USCIS/Humanitarian/Deferred%20Action%20for%20Childhood%20Arrivals/234_Order_Entering_Preliminary_Injunction.pdf.

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2. DHS To Terminate TPS for El Salvador in September 2019, Suggests ‘Legislative Solution’

On January 8, 2018, Secretary of Homeland Security Kirstjen Nielsen announced that the temporary protected status (TPS) designation for El Salvador will be terminated on September 9, 2019. The Department of Homeland Security (DHS) said that the “substantial disruption of living conditions caused by [a 2001] earthquake no longer exist.”

DHS said that to allow for an orderly transition for the estimated 200,000 affected people, the effective date of the termination of TPS for El Salvador will be delayed 18 months, to September 9, 2019, “to 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.”

DHS said that the 18 months “will also provide time for El Salvador to prepare for the return and reintegration of its citizens.” During this time frame, DHS plans to work with the Department of State and the government of El Salvador “to help educate relevant stakeholders and facilitate an orderly transition.” In addition to posting materials online, DHS components will participate in teleconferences, town halls, and roundtables “to ensure that affected populations have a full and accurate understanding of their rights and obligations,” DHS said.

DHS also noted, “Only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years. The 18-month delayed termination will allow Congress time to craft a potential legislative solution.”

Salvadorans with TPS will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of El Salvador’s TPS designation becomes effective September 9, 2019. DHS said that further details, including the re-registration period, will appear in a Federal Register notice. Salvadoran TPS beneficiaries should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.

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  1. New I-94 Feature Reminds VWP Travelers of Number of Remaining Days

U.S. Customs and Border Protection (CBP) recently launched two new “traveler compliance initiatives” on January 5, 2018. A new feature added to the I-94 website, under the “View Compliance” tab, allows Visa Waiver Program (VWP) travelers to check the status of their admission to the United States. This check informs travelers of the number of days remaining in their lawful period of admission or the number of days they have remained past that period. In addition, CBP said it will now send email notifications to VWP travelers who are still in the United States 10 days before the expiration of their lawful admission period.

CBP noted that the Arrival-Departure Record (Form I-94) provides nonimmigrant visitors with evidence that they have been lawfully admitted to the United States, which is necessary to verify alien registration, immigration status, and employment authorization. To use the online system to check days remaining or overstayed, travelers enter their biographic and passport information. Days remaining and days overstayed are calculated using the authorized period of admission date designated by a CBP officer when a traveler arrived in the country.

All emails regarding traveler compliance checks will be sent from Staycompliance-donotreply@cbp.dhs.gov. CBP warned that if a notification email did not come from this address, “it may be a phishing scam or other fraudulent email.:

CBP said it encourages travelers to plan ahead to ensure a smooth and efficient processing experience. The announcement about the new feature is at https://www.cbp.gov/newsroom/national-media-release/cbp-reminds-travelers-time-remaining-us-expanded-i-94-website. Additional information on the I-94 and traveler compliance checks is at https://I94.cbp.dhs.gov.

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4. OFLC Alerts Employers, Stakeholders Re High Volume of H-2B Temporary Labor Certification Requests

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) made a “public service announcement” on January 3, 2018, to alert employers and other interested stakeholders about the high volume of applications received requesting temporary labor certification under the H-2B visa program.

On January 1, 2018, the earliest date on which an employer seeking an employment start date of April 1 may file an H-2B application requesting temporary labor certification, OFLC received approximately 4,500 applications covering more than 81,600 worker positions. Except where a statutory exemption applies, the Department of Homeland Security (DHS) may only issue up to 33,000 H-2B visas for employers seeking to hire H-2B workers during the second half of FY 2018 (April 1 to September 30).

The OFLC said it “takes each request for temporary labor certification seriously and administers the labor certification program in a manner that protects the wages and working conditions of both H-2B and U.S. workers who support the seasonal workforce needs of U.S. small businesses, consumers, and communities.” The agency said it is “working as expeditiously as possible to issue first case actions, review responses to Notices of Deficiency (NODs), and issue Notices of Acceptance where possible. First case actions are taken on a first filed basis and responses to NODs are evaluated in the order in which they are received.”

The announcement is at https://www.foreignlaborcert.doleta.gov/news.cfm.

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  1. CBP Updates Directive on Border Searches of Electronic Devices

On January 4, 2018, U.S. Customs and Border Protection issued an update to the agency’s directive governing border searches of electronic devices. The new directive supersedes the previous directive released in August 2009.

John Wagner, CBP Deputy Executive Assistant Commissioner for Field Operations, noted that the updated directive “includes provisions above and beyond prevailing constitutional and legal requirements. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”

Among other things, the directive states that “[a]s a constitutional matter, border search authority is premised in part on a reduced expectation of privacy associated with international travel.” The directive states that border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. Officers may not intentionally use the device to access information that is solely stored remotely. An advanced search may be conducted if activity violating laws enforced by CBP, or a national security concern, is suspected. The directive includes information on handling assertions of attorney-client privilege, attorney work product, work-related information carried by journalists, medical records, business confidential information, passwords, or other sensitive material.

CBP explained that in FY 2017, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices. Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched (more than 29,200). In FY 2016, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).

CBP said its border searches of electronic devices “have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.”

The new directive is at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/cbp-directive-3340-049a-border-search-electronic-media.pdf. A related announcement is at https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and.

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  1. USCIS Clarifies Proxy Vote Use for Certain Intracompany Transferee Visa Petitions

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on January 3, 2018, clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.

USCIS explained that a U.S. or foreign employer may file an L-1 visa petition to temporarily transfer a foreign employee to the United States from one of its operations outside the country. The employer must prove that a qualifying relationship exists between the foreign employer and the U.S. company when the petition is filed by showing that either the two companies are the same employer or the companies are related as a parent, subsidiary, or affiliate company.

To determine if a qualifying relationship exists, USCIS officers examine ownership and control of the entities. In some cases, a petitioner may seek to establish control based on the use of proxy votes, USCIS noted. Proxy votes are obtained when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company or companies in question.

The new policy memorandum clarifies that when proxy votes are a determining factor in establishing control, the petitioner must now show that the proxy votes are irrevocable from the time of filing through the time USCIS adjudicates the petition, along with evidence the relationship will continue during the approval period requested. Previous guidance did not address whether proxy votes must be irrevocable to establish control, USCIS said.

The agency noted that this policy update “does not change the requirement for petitioners to file an amended petition when the ownership or control of the organization changes after its original L-1 petition was approved. Amended petitions must also comply with the clarified guidance regarding irrevocable proxy votes.”

The USCIS announcement, which includes a link to the updated policy guidance, is at https://www.uscis.gov/news/news-releases/uscis-clarifies-proxy-vote-use-certain-intracompany-transferee-visa-petitions.

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7.     DOJ Clarifies Policy on EADs for TPS Hondurans and Nicaraguans

The Immigrant & Employee Rights Section of the Department of Justice’s (DOJ) Civil Rights Division recently clarified policy with respect to employment authorization documents (EADs) based on U.S. Citizenship and Immigration Services’ (USCIS) automatic extension of their validity for individuals with temporary protected status from Honduras and Nicaragua. An email to the related DOJ listserv sent January 5, 2018, stated:

If your employee has an Employment Authorization Document (Form I-766, often referred to as an “EAD”) with an original expiration date of January 5, 2018 and containing the category code “A-12” or “C-19,” this EAD is automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the automatic extension period. TPS Honduras EADs have been automatically extended for six months, through July 4, 2018. TPS Nicaragua EADs have been automatically extended for 60 days, through March 6, 2018.

The email notes that in addition, some EAD holders, including those with TPS who already applied to renew an EAD, may choose to show their existing EADs with a qualifying I-797C receipt notice. For both TPS Honduras and TPS Nicaragua, this combination of documents allows the employee to work through July 4, 2018 (instead of until March 6 for a TPS Nicaragua employee who chooses to show their automatically-extended EAD only), DOJ said.

For employers that have an existing employee who presented an EAD that has now been automatically extended, the employee’s Form I-9 should be updated to reflect the extension:

1. For Section 1, the employee may:

  • Draw a line through the expiration date.
  • Write the new expiration date above the previous date.

– TPS Honduras employees as well as TPS Nicaragua employees who choose to show their EAD and qualifying receipt notice should write, “July 4, 2018.”

– TPS Nicaragua employees who choose to show only their automatically-extended EAD should write, “March 6, 2018.”

– Initial and date the correction in the margin of Section 1.

2. For Section 2, employers should:

  • Draw a line through the expiration date written in Section 2.
  • Write the new expiration date above the previous date.

– “July 4, 2018” for all TPS Honduras employees as well as TPS Nicaragua employees who show their EAD and qualifying receipt notice.

– “March 6, 2018” for TPS Nicaragua employees who choose to show only their automatically extended EAD.

– Initial and date the correction in the margin of Section 2.

The new announcement referenced additional information on when an employee can choose to show their EAD and I-797C, in a USCIS fact sheet issued last year, at https://www.uscis.gov/sites/default/files/USCIS/Verification/I-9%20Central/FactSheets/Fact-Sheet-AutoExtendEAD.pdf.

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8. DOJ Settles U.S. Worker Discrimination Claims Against Colorado Agricultural Company

The Department of Justice (DOJ) recently announced that it has reached a settlement agreement with Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado. The settlement resolves a lawsuit the DOJ filed against the company on September 28, 2017, alleging that the company discriminated against U.S. citizens because of a preference for foreign workers, in violation of the Immigration and Nationality Act (INA).

The Department’s lawsuit alleged that in 2016, Crop Production discriminated against at least three U.S. citizens by refusing to employ them as seasonal technicians at its El Campo, Texas, location because the company preferred to employ temporary foreign workers under the H-2A visa program. According to the DOJ complaint, Crop Production imposed more burdensome requirements on U.S. citizens than it did on H-2A visa workers to discourage U.S. citizens from working at the facility. For example, the complaint alleged that although U.S. citizens had to complete a background check and a drug test before starting work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them. The complaint also alleged that Crop Production refused to consider a limited-English-proficient U.S. citizen for employment yet hired H-2A visa workers with limited-English proficiency. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A visa workers instead of U.S. workers.

The settlement agreement requires Crop Production to pay civil penalties of $10,500 to the United States, undergo DOJ-provided training on the antidiscrimination provision of the INA, and comply with departmental monitoring and reporting requirements. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Crop Production agreed to pay $18,738.75 in lost wages to affected U.S. workers.

The settlement is part of the Division’s Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign workers.

The settlement agreement is at https://www.justice.gov/opa/press-release/file/1018286/download.

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  1. Firm In The News

Cyrus D. Mehta published No-Win Immigration Policy Denying H-1B Extensions to Skilled Workers From India So That They Self-Deport on January 6, 2018.  

January 2018 Immigration Update

Headlines

  1. ABIL Commentary: Threats, Opportunities for Employers in 2018 – After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL) shared their thoughts on what employers can expect in 2018.
  2. REAL ID Act: New Security Measures Start January 22 – Starting January 22, 2018, passengers who have driver’s licenses issued by a state that does not yet comply with the REAL ID Act and that has not received an extension will need to show an alternative form of acceptable identification for domestic air travel. Passengers who have licenses issued by a state that is complying or that has an extension to become compliant with REAL ID requirements may continue to use their licenses as usual.
  3. DHS Implements New VWP Security Measures – The new measures include requiring VWP countries “to use counterterrorism information to better screen travelers,” assessing VWP countries “to ensure they implement safeguards against the aviation sector,” and requiring certain VWP countries “to initiate public information campaigns to reduce overstays.”
  4. USCIS Announces Restrictions on TN Economist Status – New policy guidance states that financial analysts, marketing analysts, and market research analysts are not eligible for classification as a TN economist.
  5. Judge Lifts Trump Ban on Certain Following-to-Join Refugees – A federal judge in Seattle preliminarily enjoined federal agencies from enforcing a Trump administration-imposed ban on certain following-to-join refugees from entering the United States. The court said that it did so at an early stage in the proceedings because the plaintiffs showed that they were likely to succeed on their claims that the agencies exceeded their statutory authority.
  6. EB-5, Special Immigrant Religious Worker Categories Extended to January 19 – The Department of State’s Visa Bulletin for January 2018 discusses the scheduled expiration of two employment-based visa categories. Both have been extended at least until January 19, 2018, with passage of a short-term continuing resolution in Congress.
  7. TPS Extended for Honduras Until July 2018, Terminated for Nicaragua in January 2019 – The Department of Homeland Security recently announced that the temporary protected status designation has been extended for Honduras until July 5, 2018, and will be terminated for Nicaragua as of January 5, 2019.
  8. USCIS Reaches H-2B Cap for First Half of FY 2018 – December 15, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2018. USCIS will reject new cap-subject H-2B petitions received after December 15 that request an employment start date before April 1, 2018.
  9. Cuba News: USCIS Rescinds Matter of Vazquez as Adopted Decision; U.S. Embassy in Havana Temporarily Suspends Operations – USCIS has made several announcements recently with respect to Cuba, including issuing a new policy memorandum that rescinds Matter of Vazquez as an Adopted Decision, and temporarily suspending operations at its field office in Havana.
  10. ABIL Global: France – The French government, in its continual effort to facilitate international professional mobility, is rolling out several digital tools to simplify entry and work procedures in France for foreign employees. The latest important innovation is the online portal “France Visas,” which allows applying for visas online. This portal is in addition to a number of other applications already in place for electronic registration and declarations relating to the international mobility of foreign employees.
  11. Firm In the News…

Details:

1.     ABIL Commentary: Threats, Opportunities for Employers in 2018

After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL), of which our firm is a member, shared their thoughts on what employers can expect in 2018. Below is a summary of their responses and reports from the field.

Where Things Stand Now

The Trump administration appears to be attempting to keep various campaign promises on immigration and border enforcement that mesh with the President’s (and his supporters’) overall dim view of foreign people entering the United States. Before he was elected, President Trump made a wide range of anti-immigration promises couched in national security terms. Those promises included, among other things, building a massive wall along the southern border and making Mexico pay for it; immediately deporting undocumented migrants; barring Muslims from entering the United States; “extreme vetting” of immigrants; and creating a “deportation force.” The President has waffled on Deferred Action for Childhood Arrivals (DACA) “Dreamers,” verbally expressing his support and understanding of their plight and then canceling the DACA program with an exhortation for Congress to handle it.

Executive orders issued since his inauguration have included various entry/travel bans, limits on refugees, and threats to sanctuary cities to pull their federal funding. The first travel ban on people entering from several predominantly Muslim countries was announced seven days after his inauguration with no apparent advance process, discussion, preparation, warning, or guidance to the Department of Homeland Security. The result was chaos and protests at airports. Various court challenges and subsequent travel bans ensued.

Arrests for “noncriminal immigration violators” are up, with 31,888 noncriminal arrests during the first eight months of the Trump administration, according to U.S. Customs and Immigration Enforcement. On the other hand, deportations have actually decreased by about 14,000 this year, reports say, but Attorney General Jeff Sessions has called for a “concerted effort” by immigration courts to speed up processing of pending immigration cases.

Concerns for 2018

Current concerns for 2018 include:

  • Animosity of the administration toward immigrants: “This is leaching into all areas of USCIS adjudications and the attitude of [U.S. Customs and Border Patrol agents toward] travelers with a bona fide legal basis for entry,” one attorney reported. “They will do as they please right now until challenged,” said another.
  • Creeping arbitrariness and unpredictability: Attorneys report clients being held up at the border or turned away in some cases due to considerations that do not seem to be based in law or regulation. Denials are being issued in some cases filed by employers on behalf of professionals that previously would have been considered routine. Some agents of the federal government appear to believe it is now open season on cracking down, and to be acting accordingly. Officers are no longer required to defer to previous decisions when extensions are requested. An attorney reported an example of such decision-making: a “perfectly clean” request for a three-year L-1 worker was approved without an RFE for one year because “she is an employee at will, so only one year is allowed.” Another attorney reported similar treatment for Trade NAFTA clients at certain ports of entry. A third attorney said, “To me the top threat is something that affects everything we do—it is the sense (which is not universal but permeates the ranks) inside [the Departments of Homeland Security and State] that they have impunity and are not bound by the rule of law. Unless and until employers adopt a long-term view and sue—as opposed to the short-term approach of just refiling and hoping for a better result—the agencies are right.”
  • More and more demands for additional documents, interviews, and requests for evidence (RFEs): Among other things, U.S. Citizenship and Immigration Services (USCIS) is reportedly considering mandatory interviews for all applications to renew or replace green cards (Forms I-90). Interviews for petitions to remove conditions on residence for certain married couples (I-751) are already a “nightmare.” USCIS is phasing in interviews for adjustment of status applications based on employment, including for some who have already filed their applications. Executive orders are requiring visa applications and adjudications to be reviewed for compliance with “extreme vetting” and “Buy American/Hire American” policies, for both initial petitions and extensions. There has been a sharp uptick (45% compared to last year, according to USCIS) in RFEs on H-1B visa petitions for skilled workers.
  • Massive backlogs and delays in applications and petitions increasing as a result of the greater scrutiny, in some cases leading to disruptions in travel, work, and study plans.
  • Attorneys’ fees increasing as a result of the additional work.
  • An overall “brain drain” and reduction in quality employees as immigration decreases, deportations increase, and more and more people leave the United States for Canada or other countries perceived to be friendlier to immigration, or never apply to enter the United States in the first place.
  • Arbitrary caps on H-2B workers and lack of a returning worker exemption.
  • A lack of visa categories for unskilled workers who are not temporary (which constitutes about 75% of the entire workforce).
  • Denials of advance parole renewal requests filed by green card applicants if they leave the country.
  • Stress on employers as they find it harder to fill important positions in a timely manner or are accused of not wanting to hire U.S. workers when in some cases there are simply not enough U.S. workers qualified and available to take the jobs.
  • Stress on clients, including would-be immigrants and their families; family separation; stress on attorneys.
  • Travel restrictions on people from certain countries based on a new ban issued in September that the Supreme Court allowed to be put into effect while appeals run their course.
  • Ending temporary protected status for some (e.g., Nicaraguans and Haitians), and making it harder to designate or extend such status in the future.
  • A planned removal of the regulation allowing certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization documents (EADs), with a notice of proposed rulemaking scheduled for February 2018. This is expected to result in lost filing fees and labor turnover costs for employers with workers on H-4 EADs.
  • A proposed electronic registration program for H-1B petitions subject to numerical restrictions, with a notice of proposed rulemaking considered for February 2018, along with possible further restrictions on H-1B visas.
  • A proposal to make it more difficult to obtain a J-1 waiver.
  • Privacy issues: As of the middle of fiscal year 2017, approximately 30,000 travelers had their electronic devices searched at the border or at ports of entry. This was three times the number searched in 2015.

Future Concerns

In addition to those noted above, future concerns include:

  • A planned revision (not yet described) of the definition of Specialty Occupation for H-1B workers and additional requirements for H-1B wages, with a notice of proposed rulemaking scheduled for October 2018.
  • Proposed new requirements for F and M students with respect to the practical training period, to include increased oversight of schools and participating students, with a notice of proposed rulemaking scheduled for October 2018.

Hopeful Signs

Although no one has a crystal ball and things look bleak overall for the foreseeable future on the immigration front, there are a few positive indications on the horizon. For example, according to reports, after conferring with President Trump, leaders in Congress are seriously considering introducing a measure in January 2018 to allow DACA “Dreamers” to stay in the United States. As of September 4, 2017, there were 689,821 people with valid DACA status in the country. Sen. Lindsey Graham (R-SC) was quoted in late December following a meeting with President Trump: “He wants to make a deal. He wants to fix the entire system.”

Also reportedly under serious consideration is meaningful EB-5 reform legislation, such as the Fairness for High-Skilled Immigrants Act, which would allow some EB-5 investors to obtain immigrant visas more quickly because their place in the waiting line would no longer depend on the nation of chargeability. And USCIS began accepting applications again under the International Entrepreneur Rule in December, albeit temporarily while the agency drafts a notice of proposed rulemaking to quash it permanently.

Otherwise, some court challenges are either already working their way through the system (e.g., on the latest travel ban) or may be filed in the future.

Recommendations

In general, ABIL recommends that employers and employees consider:

  • Allowing much more time than before for the application/petition process. Posted processing times are not reliable. Several additional months may be required if there is an RFE or an unanticipated additional security check or other problem.
  • Filing a mandamus action in federal court to compel the agency to act if a case experiences extreme processing delays.
  • Not leaving the United States in the short term if status is in any way uncertain.
  • Contacting your ABIL attorney for advice and help in specific situations.

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  1. REAL ID Act: New Security Measures Start January 22

Starting January 22, 2018, passengers who have driver’s licenses issued by a state that does not yet comply with the REAL ID Act and that has not received an extension will need to show an alternative form of acceptable identification for domestic air travel. Passengers who have licenses issued by a state that is complying or that has an extension to become compliant with REAL ID requirements may continue to use their licenses as usual.

Starting October 1, 2020, every air traveler must present a REAL ID-compliant license or another acceptable form of identification for domestic air travel. A REAL ID compliant license is one that meets, and is issued by a state that complies with, the REAL ID Act’s security standards.

The Department of Homeland Security (DHS) noted that REAL ID allows compliant states to issue driver’s licenses and identification cards where the identity of the applicant cannot be assured or for whom lawful presence is not determined. Some states currently issue such noncompliant cards to undocumented individuals. These cards must clearly state on their face (and in the machine-readable zone) that they are not acceptable for official purposes and must use a unique design or color to differentiate them from compliant cards, DHS said. DHS cautioned against assuming that possession of a noncompliant card indicates the holder is an undocumented individual, given that several states issue noncompliant licenses for reasons unrelated to lawful presence.

Many states are already REAL ID compliant. DHS reportedly has granted the following states and territories an extension until October 2018 to meet federal standards and make their state-issued IDs compliant: Alaska, American Samoa, California, Guam, Idaho, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Missouri, Montana, Northern Mariana Islands, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, U.S. Virgin Islands, Virginia, and Washington.

States under review for a renewed extension include New York, Michigan, and Louisiana.

Travelers can check DHS’s website for additional information and can check with a state’s driver’s license-issuing agency about how to acquire a compliant license. DHS’s REAL ID webpage is at https://www.dhs.gov/real-id. DHS’s Transportation Security Administration’s list of acceptable forms of identification for airport checkpoints is at https://www.tsa.gov/travel/security-screening/identification.

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  1. DHS Implements New VWP Security Measures

Secretary of Homeland Security Kirstjen M. Nielsen announced on December 15, 2017, that the Department of Homeland Security (DHS), in consultation with the Department of State and other federal agencies, is implementing new security requirements for the Visa Waiver Program (VWP). VWP allows citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Each year, the United States allows more than 20 million visitors to travel to the United States under the VWP.

The new measures include requiring VWP countries “to use counterterrorism information to better screen travelers,” assessing VWP countries “to ensure they implement safeguards against the aviation sector,” and requiring certain VWP countries “to initiate public information campaigns to reduce overstays.”

Specifically, DHS is introducing the following measures applicable to all countries in the VWP:

  • Requiring VWP countries to fully implement existing information-sharing arrangements by systematically screening travelers crossing their borders against U.S. counterterrorism information;
  • Assessing VWP countries on the effectiveness of safeguards against insider threats in the aviation security environment; and
  • Requiring VWP countries having a two percent or greater rate of business or tourism nonimmigrant visitors overstaying the terms of their admission into the United States to initiate a public information campaign to reduce overstay violations by educating their nationals on the conditions for admission into the United States.

DHS reportedly said that Hungary, Greece, Portugal, and San Marino will launch public campaigns to inform their citizens because two percent of travelers from those countries overstayed their terms of admission.

DHS is also asking Congress to codify existing VWP requirements to bolster efforts in the following areas:

  • Reporting of foreign terrorist fighter information to multilateral organizations, such as INTERPOL and EUROPOL;
  • Systematically collecting and analyzing passenger travel data (Advance Passenger Information/Passenger Name Records); and
  • Concluding arrangements to permit U.S. Federal Air Marshals to operate onboard U.S. air carriers for last point of departure flights to the United States.

As part of its regular cooperation with VWP countries, DHS said it “will develop targeted engagement plans to support implementation of these measures.” DHS has assessed that these security enhancements will not hinder lawful trade and travel. Qualified nationals will continue to be able to travel to the United States under the VWP, DHS noted.

DHS also said that travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, Syria, Libya, Somalia, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country); and
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

In addition, travelers must have an e-passport to use the VWP. An e-passport is an enhanced secure passport with an embedded electronic chip. An e-passport is readily identified by a unique international symbol on the cover.

DHS Secretary Nielsen’s statement is at https://www.dhs.gov/news/2017/12/15/secretary-kirstjen-nielsen-announces-targeted-security-enhancements-visa-waiver. Additional information on the VWP, including a list of participating countries, is at https://www.dhs.gov/visa-waiver-program-requirements.

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  1. USCIS Announces Restrictions on TN Economist Status

U.S. Citizenship and Immigration Services (USCIS) recently published policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for Trade NAFTA (TN) nonimmigrant status as an economist. The policy guidance states that financial analysts, marketing analysts, and market research analysts are not eligible for classification as a TN economist.

North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the United States to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, which USCIS said has resulted in inconsistent decisions about whether certain analysts and financial professionals qualify for TN status as economists.

USCIS said the new policy is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations, USCIS said.

With respect to the occupation of financial analyst, USCIS said it recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts “primarily conduct quantitative analyses of information affecting investment programs of public or private institutions,” USCIS said. Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS said it is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA.

Some attorneys warn that TN Economists—even those who were previously approved—could experience increased scrutiny when returning to the United States. Strategies may include arguing that a position meets the definition of an economist, amending the position description, avoiding international travel, or considering nonimmigrant alternatives. Contact your Alliance of Business Immigration Lawyers attorney for advice in specific situations.

The USCIS policy memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-1120-PM-602-0153_-TN-Economists.pdf.

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  1. Judge Lifts Trump Ban on Certain Following-to-Join Refugees

On December 23, 2017, a federal judge in Seattle preliminarily enjoined federal agencies from enforcing a Trump administration-imposed ban on certain following-to-join refugees from entering the United States. The court said that it did so at an early stage in the proceedings because the plaintiffs showed that they were likely to succeed on their claims that the agencies exceeded their statutory authority and also that the plaintiffs meet other qualifying factors necessary for preliminary injunctive relief.

The court noted that the plaintiffs in the two motions at issue are refugees “in dire circumstances,” whose family members “yearn to be reunited with them,” and humanitarian organizations whose fundamental mission is “to help these vulnerable refugees resettle in the United States.” Among the plaintiffs are a Somali immigrant, admitted to the United States in 2014 as a refugee, who became a lawful permanent resident in 2016. He filed a petition to bring his wife and children to the United States as following-to-join refugees. His wife and children completed their final interviews and security and medical clearances, received a formal assurance from a refugee resettlement agency, and were on the brink of travel but have not yet received permission from the Department of Homeland Security to travel. His wife and oldest stepson are both Kenyan citizens, so the U.S. Embassy in Somalia said they could travel to the United States, but said that his four- and five-year-old sons could not do so because they are considered Somali citizens due to their father’s nationality.

Another plaintiff is an Iraqi national who served as an interpreter for the U.S. military, which put him in extreme danger in Iraq. He fled Iraq for Cairo, Egypt, without his family in 2014 and applied for refugee status in the United States. He was conditionally approved for U.S. resettlement in December 2015 and received an assurance of sponsorship from a resettlement agency. He was told to get ready to travel to the United States and was updating his passport when the restrictions on refugee admissions went into effect.

Also among the plaintiffs is a transgender woman who faces extreme harassment and persecution in Egypt because of her gender identity. Her refugee application was being processed on an expedited basis until the restrictions took effect.

The organizational plaintiffs, which include Jewish Family Services and the American Civil Liberties Union, are also suffering “irreparable harm,” the court said. They have dedicated significant resources to helping refugees from the countries in question. Due to the government’s actions, the organizations claim they will need to lay off employees, reduce services, cancel established programs, lose institutional knowledge, and ultimately lose goodwill with volunteers and community partners. Evidence of these threatened losses supported a finding of the possibility of irreparable harm, the court said, adding that the indefinite duration of the “delay” in admitting the refugees “leaves the organizations unable to operate or plan effectively, further deteriorating goodwill and adding to their harms.” Further, the court noted, the organizations cannot simply shift resources to “unaffected” refugees as the government suggested. Rather, they have built programs specifically to serve Muslim and Arabic-speaking refugees.

Among other things, the government asserted that the “doctrine of consular nonreviewability” applied to the claims in this case. However, the court observed that courts have traditionally applied that doctrine to bar challenges to decisions by consular officials adjudicating individual visa applications. In this case, the court noted, defendants relied on out-of-circuit authority to argue for a significant expansion of the doctrine and stated that the principle underlying that doctrine applies regardless of the manner in which the executive branch denies entry to an alien abroad, including a refugee applicant. The court noted that the individual plaintiffs did not seek review of an individual consular officer’s decision to grant or deny a visa pursuant to valid regulations, but rather the government’s promulgation of sweeping immigration policy. Courts can and do review constitutional and statutory challenges to the substance and implementation of immigration policy, the court said.

The court also noted that while the Secretary of Homeland Security has discretion in deciding the outcome of a refugee application, the law does not specify that the Secretary has discretion to suspend adjudication such applications. The court said, “In other words, the Secretary may have discretion over what the decision will be, but not over whether a decision will be made.”

The court also observed that the government offered no evidence that the suspension of admissions of refugees from certain countries was in response to a national security or foreign affairs crisis. The justification offered seemed to be that the government continued to have unspecified concerns regarding the admission of refugees from certain countries. The court agreed that the government has a “compelling” interest in national security, but noted that the government did not point to any specific national security threat that the restrictions curtail.

The court said that the preliminary injunction applies to all following-to-join refugees because, by definition, they have a bona fide relationship with a person in the United States, which is required based on a recent Supreme Court decision. The same, however, is not true for all refugees from the banned countries. “These refugees are not necessarily in a relationship with a United States person or organization,” the court noted.

The court noted that this is an area of “rapidly developing law with related cases presently on appeal and decisions anticipated shortly.” Stay tuned.

The decision is at https://www.politico.com/f/?id=00000160-8609-dcd4-a96b-b7290b5b0001.

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  1. EB-5, Special Immigrant Religious Worker Categories Extended to January 19

The Department of State’s Visa Bulletin for January 2018 states the following with respect to scheduled expiration of two employment-based visa categories. Both have been extended at least until January 19, 2018, with passage of a short-term continuing resolution in Congress:

Employment Fourth Preference [EB-4] Certain Religious Workers (SR):

Pursuant to the continuing resolution, signed on December 7, 2017, the non-minister special immigrant program expires on December 22, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 21, 2017. Visas issued prior to this date will only be issued with a validity date of December 21, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight December 21, 2017.

The final action date for this category has been listed as “Unavailable” for January. If there is legislative action extending this category for FY 2018, the final action date would immediately become “Current” for January for all countries except El Salvador, Guatemala, and Honduras which would be subject to a December 1, 2015 final action date, and for Mexico which would be subject to a June 1, 2016 date.

Employment Fifth Preference [EB-5] Categories (I5 and R5):

The continuing resolution signed on December 7, 2017 extended this immigrant investor pilot program until December 22, 2017. The I5 and R5 visas may be issued until close of business on December 22, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 22, 2017.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for January. If there is legislative action extending them for FY 2018, the final action dates would immediately become “Current” for January for all countries except China-mainland born I5 and R5 which would be subject to a July 22, 2014 final action date.

The January 2018 Visa Bulletin is at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-january-2018.html.

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  1. TPS Extended for Honduras Until July 2018, Terminated for Nicaragua in January 2019

The Department of Homeland Security recently announced that the temporary protected status (TPS) designation has been extended for Honduras until July 5, 2018, and will be terminated for Nicaragua as of January 5, 2019. Details are below.

Honduras

The designation of Honduras for TPS was set to expire on January 5, 2018. The Secretary of Homeland Security did not make a determination on Honduras’s designation by November 6, 2017, the statutory deadline. Accordingly, the TPS designation of Honduras is automatically extended for 6 months, from January 6, 2018, through July 5, 2018. The 60-day re-registration period began December 15, 2017, and runs through February 13, 2018.

In the notice announcing the extension on December 15, 2017, the Department of Homeland Security said that before July 5, 2018, the Secretary will review the conditions in Honduras and decide whether extension, redesignation, or termination is warranted in accordance with the TPS statute. During this period, “beneficiaries are encouraged to prepare for their return to Honduras in the event Honduras’s designation is not extended again and if they have no other lawful basis for remaining in the United States, including requesting updated travel documents from the Government of Honduras,” DHS said.

Nicaragua

The TPS designation of Nicaragua is also set to expire on January 5, 2018. The Secretary of Homeland Security announced on December 15, 2017, that the TPS designation of Nicaragua will be terminated effective January 5, 2019. The 60-day re-registration period began December 15, 2017, and runs through February 13, 2018. DHS said that “[i]t is important for re-registrants to timely re-register during this 60-day period and not to wait until their EADs expire.”

Nationals of Nicaragua (and those having no nationality who last habitually resided in Nicaragua) who have been granted TPS and wish to maintain their TPS and receive TPS-based employment authorization documents (EADs) valid through January 5, 2019, must re-register for TPS in accordance with the procedures set forth in the notice.

The TPS notice for Honduras is at https://www.gpo.gov/fdsys/pkg/FR-2017-12-15/html/2017-27140.htm. The TPS notice for Nicaragua is at https://www.gpo.gov/fdsys/pkg/FR-2017-12-15/html/2017-27141.htm.

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  1. USCIS Reaches H-2B Cap for First Half of FY 2018

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has reached the congressionally mandated H-2B cap for the first half of fiscal year 2018.

December 15, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2018. USCIS will reject new cap-subject H-2B petitions received after December 15 that request an employment start date before April 1, 2018.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2019.

USCIS is currently accepting cap-subject petitions for the second half of FY 2018 for employment start dates on or after April 1, 2018.

U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 through September 30).

USCIS encourages H-2B petitioners to visit the H-2B fiscal year 2018 cap season webpage at https://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h-2b-nonimmigrants.

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9.     Cuba News: USCIS Rescinds Matter of Vazquez as Adopted Decision; U.S. Embassy in Havana Temporarily Suspends Operations

U.S. Citizenship and Immigration Services (USCIS) has made several announcements recently with respect to Cuba, including issuing a new policy memorandum that rescinds Matter of Vazquez as an Adopted Decision, and temporarily suspending operations at its field office in Havana.

Rescission of Matter of Vazquez as an Adopted Decision

A new policy memorandum rescinds Matter of Vazquez as an Adopted Decision. The new memorandum supersedes all prior guidance regarding the determination of Cuban citizenship for purposes of adjustment under the Cuban Adjustment Act. The memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-12-21-PM-602-0154-Matter-of-Vazquez-Rescission.pdf.

Temporary Suspension of Operations in Havana

U.S. Citizenship and Immigration Services (USCIS) announced that due to staff reductions at the U.S. Embassy in Havana, Cuba, USCIS will temporarily suspend operations at its field office in Havana, effective immediately. During this time, the USCIS field office in Mexico City, Mexico, will assume Havana’s jurisdiction.

USCIS says that individuals who live in Cuba must follow the filing instructions in the announcement at https://www.uscis.gov/news/alerts/updated-uscis-procedures-cuba. The U.S. Embassy website for Cuba is at https://cu.usembassy.gov/visas/.

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10.   ABIL Global: France

The French government, in its continual effort to facilitate international professional mobility, is rolling out several digital tools to simplify entry and work procedures in France for foreign employees. The latest important innovation is the online portal “France Visas,” which allows applying for visas online. This portal is in addition to a number of other applications already in place for electronic registration and declarations relating to the international mobility of foreign employees.

A New Online Service: “France Visa”

The online portal “France Visas,” the official website of visas for France, has been available since September 2017 but is gradually being developed to allow people to file online applications for tourism or professional visas. The portal at https://france-visas.gouv.fr/ (English) is a “beta” version, which is not yet available for all countries and is expected to continue to evolve.

“France Visas” allows the automated processing of personal data when applying for entry visas to France for short or long stays. The French government is seeking to facilitate processing of visa applications, tracking of decisions and appeals, and prevention of fraud and misuse. The Internet platform will provide the information required for submitting a visa application and will allow a user to track an application.

The application process will include automatic consultation of several databases: the Schengen Information System (SIS II), the Visa Information System (VIS), the wanted persons list (RPF), and the Interpol travel document list.

All data may be collected by French consulates, agents at external border crossing points, prefectures, and outsourced service providers who guarantee data protection in accordance with French law.

The data retention period is set at five years, from either the expiration date of the visa or the date of creation of the file in case of refusal or interruption of the application. Rights of access and rectification of data are governed by the provisions of the French “Data Protection Act.”

Online Declaration of Foreign Employees Posted to France—”SIPSI”

Any employer established outside France who sends employees to French territory must send a prior declaration of posting of the employees to the labor inspectorate of the place of performance of the service before the start of the service in France. The posting declaration, provided for in articles R. 1263-3 and R. 1263-4, is sent via the “SIPSI” online service (https://www.sipsi.travail.gouv.fr/) to the Foreign Labor Service (SMOE) of the place where the service is performed. When the service is performed in several locations, the posting declaration is sent to the SMOE where the service is first performed. The SIPSI online declaration, first implemented in July 2016, is now fully operational and allows foreign employers posting salaried staff in France to carry out this formality in a simplified manner.

A fee of €40 per application will be charged, starting January 2018, to defer the ongoing costs of SIPSI, per decree of May 3, 2017.

The absence of a posting declaration can lead to the suspension of the service, and a fine of €2000 per detached employee not declared.

Opening Rights to Social Security for Certain Workers—Online Service

Since November 2017, it is now possible to register foreign employees under the French social security system through the AMELI.fr online service. However, at this stage only employees who have entered France under “Passport Talent” status, foreign employees employed in Ile-de-France, models, and foreign language assistants can benefit from this service.

Requests for registration are processed directly by the International Relations Department of Social Security. An employer can open an account on the dedicated website https://www.ameli.fr/ and proceed with the registration of foreign employees eligible for the online service. A temporary social security number is sent within two days and the certificate of rights in about 15 days.

In addition to the redesign of residence permits for professional reasons stemming from a March 2016 law, the implementation of online procedures simplifies the administrative requirements and improves the attractiveness of France in exchange for a reinforced control of foreign employers and employees working in France.

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  1. Firm In the News

Cyrus D. Mehta was a Speaker, Ethics, Business Development and Practice Management in A Digital Age, 19th AILA New York Chapter Immigration Law Symposium, New York, NY, December 18, 2017.

Cyrus D. Mehta published Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism on December 18, 2018 and Top 10 Most Viewed Posts On The Insightful Immigration Blog In 2017 on December 29, 2017.

Cyrus D. Mehta published Matter of G- Inc: Clarifying the Role of the Function Manager Under the L-1Visa with Sophia Genovese, Bender’s Immigration Bulletin, Vo. 22, No. 24, December 15, 2017.

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