Mid-October 2018 Immigration Update

Headlines:

F-1 ‘Cap-Gap’ Status, Work Authorization Extension No Longer Valid as of October 1 – USCIS reminded F-1 students who have an H-1B petition that remained pending on October 1, 2018, that they risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment) because their “cap-gap” work authorization was only valid through September 30.

USCIS to Begin Implementing NTA Policy – As of October 1, USCIS could start removal proceedings against some foreign nationals without underlying immigration status if their applications are denied and they do not leave the United States. Employment-based petitions and humanitarian applications are not currently subject to the policy.

DOL OIG Finds ETA’s Lack of Key Controls Over H-2B Process Jeopardizes Businesses – The Employment and Training Administration’s lack of controls over the H-2B applications process has jeopardized businesses that depend on H-2B workers, the OIG has found.

Judge Temporarily Blocks Termination of TPS for Sudan, El Salvador, Haiti, Nicaragua – The judge said in his ruling that there was “evidence that this [termination] may have been done in order to implement and justify a pre-ordained result desired by the White House.”

Department of State No Longer Issuing Visas for Unmarried Same-Sex Partners – Only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes, the Department said.

President Trump Signs ‘KIWI Act’ With New Zealand on Nonimmigrant Treaty Traders/Investors – The KIWI Act will allow eligible New Zealand nationals to enter the United States as nonimmigrant traders and investors provided New Zealand grants reciprocal treatment to U.S. nationals.

USCIS Provides Guidance on Implementing New Law re Foreign Workers on Guam, Northern Marianas – USCIS recently provided guidance on the implementation of a new law allowing certain H-2B workers on Guam and in the Northern Mariana Islands to qualify for an exemption to the “temporary need” requirement if they begin employment by December 30, 2023.

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F-1 ‘Cap-Gap’ Status, Work Authorization Extension No Longer Valid as of October 1

U.S. Citizenship and Immigration Services (USCIS) issued an alert on September 28, 2018, reminding F-1 students who have an H-1B petition that remained pending on October 1, 2018, that they risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment) because their “cap-gap” work authorization was only valid through September 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS noted in the late-September alert that it might not be able to adjudicate H-1B change of status petitions for all F-1 students by October 1.

USCIS noted that its regulations allow an F-1 student who is the beneficiary of a timely filed
H-1B cap-subject petition requesting a change of status to H-1B on October 1 to have his or her F-1 status and any current employment authorization extended through September 30. This is referred to as filling the “cap-gap,” USCIS explained, meaning the regulations provide a way of filling the gap between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30, with October 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied before October 1.

USCIS said that while the temporary suspension of premium processing of certain types of
H-1B petitions has allowed the agency to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after October 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, USCIS said, “the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization.” If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past September 30, USCIS explained, he or she may continue to work as authorized.

The USCIS notice is at https://www.uscis.gov/news/alerts/f-1-cap-gap-status-and-work-authorization-extension-only-valid-through-sept-30-2018. Additional information on the cap-gap is at https://bit.ly/1ob5Dfz.

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USCIS to Begin Implementing NTA Policy

As of October 1, U.S. Citizenship and Immigration Services (USCIS) could start removal proceedings against some foreign nationals without underlying immigration status if their applications are denied and they do not leave the United States.

USCIS first announced the Notice to Appear (NTA) policy in July 2018, but decided to delay its implementation. USCIS said it will initially apply the policy to Form I-485 permanent residence applicants and to Form I-539 applicants to extend or change nonimmigrant status. Employment-based petitions (including H-1B, L-1, O, and E petitions) are not currently subject to the policy. The NTA policy also exempts humanitarian applications. Existing guidance for employment-based and humanitarian case types will remain in effect, USCIS noted.

USCIS said it “will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied.” If a person is not in a period of authorized stay and does not leave the United States, he or she may be issued an NTA. USCIS said it “will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.” An immigration judge would determine whether the person should be removed or is entitled to relief that would allow him or her to remain in the U.S. USCIS noted that “[e]xcept as specifically provided by law, the issuance, service, or filing of an NTA to commence removal proceedings does not negate any right to seek administrative review, whether by motion to the USCIS office that issued the unfavorable decision, or by appeal to the USCIS Administrative Appeals Office.”

USCIS noted that it “will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.”

Specifically, USCIS said the updated policy affects the following categories of cases where the individual is removable:

  • Cases where fraud or misrepresentation is substantiated, and/or cases where there is evidence the applicant abused any program related to receiving public benefits. USCIS said it will issue an NTA in these cases, “even if we deny the case for reasons other than fraud.”
  • Criminal cases where an applicant is charged with (or convicted of) a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS said it will, where circumstances warrant, refer cases to U.S. Immigration and Customs Enforcement without issuing an NTA or adjudicating immigration benefits.
  • Cases where USCIS has denied a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases where an applicant will be unlawfully present in the United States when USCIS denies the petition or application.

USCIS did not change its policy for the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary protected status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status; and
  • Cases involving Deferred Action for Childhood Arrivals (DACA) recipients and requestors when (1) processing an initial or renewal DACA request or DACA-related benefit request or (2) processing a DACA recipient for possible termination of DACA. A policy memorandum on DACA recipients referenced by USCIS’s NTA announcement is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0161-DACA-Notice-to-Appear.pdf.

The USCIS guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. A related announcement is at https://www.uscis.gov/news/alerts/uscis-begin-implementing-new-policy-memorandum-notices-appear. A related Web page is at https://www.uscis.gov/legal-resources/notice-appear-policy-memorandum.

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DOL OIG Finds ETA’s Lack of Key Controls Over H-2B Process Jeopardizes Businesses

The Department of Labor’s Office of Inspector General (OIG) recently found that the Employment and Training Administration’s (ETA) lack of controls over the H-2B applications process has jeopardized businesses that depend on H-2B workers. The OIG investigated this issue after members of Congress expressed concerns over reported delays in the H-2B application process, which allows U.S. employers to hire temporary nonimmigrant workers for nonagricultural labor and services. H-2B application processing delays “could prevent employers from obtaining foreign workers by their date of need” or “obtain[ing] U.S. workers to fill those positions,” the OIG said.

The OIG noted that ETA did not evaluate the impact of its overall H-2B process on two other agencies (the Departments of Homeland Security and State) that are part of the overall process, hold staff accountable for meeting internal application processing goals, or manage resources appropriately, potentially affecting jobs in numerous industries, such as shrimp and crab, landscaping, housekeeping, construction, amusement parks, forestry, and meat and poultry. The OIG review found ETA’s mean time to process applications at prevailing wage was 5 days more than the internal goal, and at the processing center it was 41 days over the internal goal. “These delays, particularly in seasonal industries, would have serious adverse effects on business owners and local economies,” the OIG said. As a result, ETA could not demonstrate whether it ensured that employers’ needs for temporary foreign labor were being met.

The delays potentially affected up to 148,000 positions and could have had adverse effects on business owners who rely on this labor, whether a foreign laborer or U.S. worker would fill the position, the OIG said. For fiscal year (FY) 2016, for example, the OIG identified about 100,000 positions potentially affected that were not processed timely. In addition, for FY 2017, the OIG found that about 48,000 positions were affected because ETA did not timely review 36 percent of the applications (133,985 positions total certified).

The OIG recommended that the Deputy Assistant Secretary for ETA develop policy to ensure that H-2B applications are processed timely, develop a method for tracking and reporting on processing timeliness for H-2B applications, and develop a staffing plan to address peak seasons for receipt of H-2B applications. The OIG noted that the Principal Deputy Assistant Secretary for Employment and Training stated that the agency has taken actions to address these recommendations. The OIG noted that “ETA disagreed with some of our conclusions; however, nothing in their response changed our report.”

The report, “ETA’s Lack of Key Controls Over the H-2B Application Process Jeopardized Businesses That Depend on H-2B Workers” (06-18-002-03-321, issued September 28, 2018) is at https://www.oig.dol.gov/public/reports/oa/2018/06-18-002-03-321.pdf.

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Judge Temporarily Blocks Termination of TPS for Sudan, El Salvador, Haiti, Nicaragua

U.S. District Judge Edward Chen, for the Northern District of California, issued a preliminary injunction on October 3, 2018, temporarily blocking the Trump administration from terminating temporary protected status (TPS) for Sudan, El Salvador, Haiti, and Nicaragua while a legal challenge continues.

The judge said in his ruling that there was “evidence that this [termination] may have been done in order to implement and justify a pre-ordained result desired by the White House. Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution. The issues are at least serious enough to preserve the status quo.”

A Department of Justice statement reportedly countered, “The court contends that the duly elected President of the United States cannot be involved in matters deciding the safety and security of our nation’s citizens or in the enforcement of our immigration laws. The Justice Department completely rejects the notion that the White House or the Department of Homeland Security did anything improper. We will continue to fight for the integrity of our immigration laws and our national security.”

Evidence in the lawsuit, Ramos v. Nielsen, includes email exchanges that appear to indicate that a predetermined goal of terminating TPS was set in advance of a substantial improvement in country conditions. The emails also appear to reflect internal discrepancies in some assessments of conditions with the conclusion that TPS should be terminated. For example, one email notes that under the TPS statute, TPS must be extended for an additional period of 6, 12, or 18 months if the statutory conditions supporting a country’s designation continue to exist, and that a review of conditions in Sudan indicated that it remained unsafe and that the statutory requirements for TPS designation continued to be met. The email includes remarks that the decision memo for Sudan “reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo.”

The court’s decision is at https://www.uscis.gov/sites/default/files/USCIS/Laws/ramos-v-nielsen-order-granting-preliminary-injunction-case-18-cv-01554-emc.pdf. Some of the email exchanges noted above are at https://www.pacermonitor.com/view/NEFG44I/Ramos_et_al_v_Nielsen_et_al__candce-18-01554__0096.2.pdf?mcid=tGE3TEOA and https://www.pacermonitor.com/view/MZ5CE2A/Ramos_et_al_v_Nielsen_et_al__candce-18-01554__0096.1.pdf?mcid=tGE3TEOA.

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Department of State No Longer Issuing Visas for Unmarried Same-Sex Partners

Effective October 1, 2018, the Department of State says it will no longer issue visas for unmarried same-sex partners of diplomats and others. U.S. embassies and consulates will now adjudicate visa applications that are based on a same-sex marriage in the same way as applications are adjudicated for opposite-gender spouses, the Department said. The notice advises prospective applicants to “reference the specific guidance on the visa category for which you are applying for more details on documentation required for derivative spouses.” A Department FAQ, “U.S. Visas for Same-Sex Spouses,” notes that “only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes.”

The FAQ also states that “the same sex spouse of a visa applicant coming to the United States for any purpose—including work, study, international exchange or as a legal immigrant—will be eligible for a derivative visa. Likewise, stepchildren acquired through same sex marriages can also qualify as beneficiaries or for derivative status.” A FAQ notes that a U.S. citizen who is engaged to be married to a foreign national of the same sex and cannot marry that person in the fiancé(e)’s country can file a Form I-129F to apply for a fiancé(e) K visa. “As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for the purpose of marriage,” the FAQ states.

Some observers noted that since only 25 countries currently allow same-sex marriage, this could effectively take same-sex partners away from their families or push them into marriages that are prohibited by law in their home countries.

The FAQ on U.S. visas for same-sex spouses is at https://travel.state.gov/content/dam/visas/DOMA/DOMA%20FAQs%20-%202015%20Supreme%20Court%20Ruling.pdf. More details are at https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visas-diplomats.html.

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President Trump Signs ‘KIWI Act’ With New Zealand on Nonimmigrant Treaty Traders/Investors

The Knowledgeable Innovators and Worthy Investors (KIWI) Act was signed into law on August 1, 2018. The KIWI Act will allow eligible New Zealand nationals to enter the United States as nonimmigrant traders and investors provided New Zealand grants reciprocal treatment to U.S. nationals.

Scott Brown, the U.S. Ambassador to New Zealand, said, “With this addition of New Zealand to our eligible Treaty Traders and Investors visa program, we look forward to even greater bilateral commerce and entrepreneurship. The KIWI Act received overwhelming, bipartisan support in the U.S. Congress, showing the broad and unshakable support for the U.S.-New Zealand partnership. This legislation demonstrates the United States’ continuing recognition of the value of Kiwi investment and innovation.”

Mr. Brown said he agrees with New Zealand’s Minister of Foreign Affairs Winston Peters that this action will “improve access to the United States for New Zealand businesspeople and investors, further developing our trading relationship to the benefit of both countries.” He also agrees with the New Zealand United States Council that the KIWI Act will “lower the barriers to success” for New Zealand businesses to have success in the growing United States economy.

A statement from the U.S. Embassy in New Zealand is at https://nz.usembassy.gov/signing-of-the-kiwi-act/. A White House statement is at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-signs-s-2245-s-2850-law/.

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USCIS Provides Guidance on Implementing New Law re Foreign Workers on Guam, Northern Marianas

U.S. Citizenship and Immigration Services (USCIS) recently published a policy memorandum providing guidance on the implementation of a new law allowing certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) to qualify for an exemption to the “temporary need” requirement if they begin employment on or before December 30, 2023.

USCIS said it is accepting H-2B petitions filed pursuant to the provision, part of the National Defense Authorization Act for Fiscal Year 2019, which exempts the temporary need requirement for certain health care workers on Guam and in the CNMI, as well as for workers directly connected to, or directly associated with, the planned military realignment of U.S. Marines from Okinawa, Japan, to Guam. The new law also eliminated the annual cap of 4,000 H-2B workers for Guam and the CNMI that were permitted to use the temporary need exemption.

The policy memorandum provides detailed information on how petitioners may demonstrate eligibility for the exemptions under the new law. Petitioners must continue to comply with other H-2B requirements, including submission of an approved temporary labor certification issued by Guam’s Department of Labor or the U.S. Department of Labor, as appropriate. Employers on Guam and in the CNMI remain exempt from the national H-2B cap until December 31, 2029.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-provides-guidance-implementing-new-law-related-foreign-workers-guam-northern-mariana-islands. The policy memorandum, dated October 1, 2018, is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-10-01-PM-602-0164-H-2B-Policy-Memorandum-to-Interpret-Guam.pdf.

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Firm in the News

Cyrus Mehta received the Advocate Award at the annual gala of the Northern Manhattan Improvement Corporation (NIMC) on October 4, 2018. Since 1979, NMIC has been a source of support and opportunities for the most vulnerable community members in upper Manhattan, and now the Bronx. NIMC provides immigration services, preserves and develops affordable housing, and supports survivors of intimate partner violence. For more information, see http://www.nmic.org/benefit2018/.

Mr. Mehta spoke at the New York City Bar on “Stress Testing International Law: A Time of Archipelagos, Moats, and Walls” on October 9, 2018. For more information, see https://services.nycbar.org/EventDetail?EventKey=REFL100918&WebsiteKey=f71e12f3-524e-4f8c-a5f7-0d16ce7b3314.

Mr. Mehta was quoted extensively by the Times of India in “Tough Policy for International Students in U.S.” The article is at https://m.timesofindia.com/india/tough-policy-for-international-students-in-us/amp_articleshow/65360658.cms. He was also quoted in “Sponsoring U.S. Green Card for Parents to Get Tougher” at https://bit.ly/2RRrvMa and “Draft Proposes Fresh U.S. Immigration Curb” at https://bit.ly/2QKOM1c.

Cora-Ann V. Pestaina served as a moderator at the American Immigration Lawyers Association (AILA) New York Chapter CLE entitled “The H-1B & Public Access Files” on October 9, 2018.

David Isaacson spoke on a panel entitled “Petitions for Review and Petitions for Certiorari” at the 2018 AILA Federal Court Conference and Webcast: Removal Litigation, in Washington, D.C., on September 21, 2018.

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October 2018 Immigration Update

Headlines:

DHS Announces Controversial Proposed Rule on Changes to Public Charge Definition – DHS has announced that it will soon publish a controversial proposed rule that would make it much more difficult for many who have lower incomes or less education, or who have received public benefits, to become permanent residents.

USCIS Proposes Change in Fee Waiver Evidence – USCIS would reduce the evidence required for the I-912 to only a person’s household income. The agency would no longer require proof of whether an individual receives a means-tested benefit.

USCIS Is Conducting Site Visits to H-2B Employers – According to reports, USCIS is conducting site visits to H-2B employers nationwide in a variety of industry sectors.

State Dept. Opens Registration for Diversity Visa Program for 2020 – The online registration period for the DV-2020 diversity visa lottery program begins in early October.

President Signs Temporary Funding Bill Extending Four Immigration Provisions Until December 7 – The E-Verify, Conrad State 30 J-1 waiver program for certain foreign physicians, EB-5 regional center and special immigrant non-minister religious worker programs have been extended past the September 30 deadline by late-breaking legislation.

USCIS, OFLC Note Relief Available to Hurricane/Typhoon Survivors – USCIS and OFLC recently released information about immigration services and relief that may help people affected by emergency situations, including severe storms such as Hurricane Florence and Typhoon Mangkhut.

Justice Dept. Announces Settlement in H-2B Discrimination Case – The DOJ investigation determined that a company failed to consider applications from qualified U.S. workers for its housekeeper positions.

USCIS Revises G-28 Notice of Entry of Appearance –USCIS has published a revised version of Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with an edition date of 09/17/18, and has extended the grace period for prior versions.

Global: Spain – Spain has implemented a European Union directive on research and student permits.

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DHS Announces Controversial Proposed Rule on Changes to Public Charge Definition

The Department of Homeland Security (DHS) has announced that it will soon publish a controversial proposed rule that would make it much more difficult for many who have lower incomes or less education, or who have received public benefits, to become permanent residents, obtain visas, or extend or change/adjust their nonimmigrant visa status. Reportedly, rumors of the impending rule have already resulted in some immigrants in the United States dropping out of social services for fear of potential complications to their efforts to stay in the country.

Currently, those who are likely to become a burden on the government can already be excluded if they accept certain cash benefits. The proposed rule would greatly expand the definition of public benefits to be considered when public charge determinations are made. DHS explained that the public benefits proposed to be designated in this rule include federal, state, local, or tribal cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and public housing. The first three benefits listed above are cash benefits that are already covered under current policy, DHS said.

There are some exclusions. DHS noted that by statute, asylees, refugees, and other categories of vulnerable individuals are not subject to the public charge ground of inadmissibility. When considering receipt of public benefits in the public charge inadmissibility determination, DHS would also not consider any public benefits received by those serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or the spouse or child of the service member. Additionally, DHS would not consider disaster relief, emergency medical assistance, benefits received by a person’s U.S. citizen children, or Medicaid benefits received by children of U.S. citizens and potential adoptive children of U.S. citizens.

Among other things, the proposed rule would also require an immigrant to earn at least 125 percent of the federal poverty guidelines, and states that a household income of 250 percent of that level would be deemed “heavily positive.” Heavily weighted positive factors would include “significant income, assets, and resources.” Income and financial status would be considered as part of the “totality of the circumstances.” Some deemed inadmissible on public charge grounds might be allowed to pay for a public charge bond at the risk of losing it if they use any of the listed benefits. Negative considerations would include limited English proficiency and adverse physical or mental health conditions.

The proposed rule would also allow U.S. Citizenship and Immigration Services (USCIS) to consider whether an applicant is using or receiving, or likely to use or receive, public benefits. The proposed rule would impose new costs on people applying to get green cards using Form
I-485 who are subject to the public charge grounds of inadmissibility. DHS would require any adjustment applicants subject to the public charge inadmissibility ground to submit new Form
I-944 with their Form I-485 to demonstrate they are not likely to become a public charge.

The proposed rule would also impose additional costs for seeking extension of stay or change of status by filing Form I-129 (Petition for a Nonimmigrant Worker), Form I-129CW (Petition for a CNMI-Only Nonimmigrant Transitional Worker), or Form I-539 (Application to Extend/Change Nonimmigrant Status), as applicable. These applicants would have to demonstrate that they have not received, are not currently receiving, and are not likely in the future to receive, public benefits as described. DHS noted that these applicants may also incur additional costs if the agency determines that they must submit Form I-944 in support of their applications for extension of stay or change of status. Moreover, the proposed rule would impose new costs associated with the proposed public charge bond process, including new costs for completing and filing Form I-945 ( Public Charge Bond) and Form I-356 (Request for Cancellation of Public Charge Bond).

In addition to the effects on individuals, DHS said it recognizes that anticipated reductions in federal and state transfers under federal benefit programs as a result of the proposed rule may have “downstream and upstream impacts on state and local economies, large and small businesses, and individuals.” For example, DHS explained, the rule might result in reduced revenues for healthcare providers participating in Medicaid, pharmacies that provide prescriptions to participants in the Medicare Part D Low Income Subsidy (LIS) program, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.

Current or past applications for or receipt of public benefits as defined “suggests that the alien’s overall financial status is so weak that he or she is or was unable to fully support him or herself without government assistance, i.e., that the alien will receive such benefits in the future. DHS, therefore, proposes to consider any current and past receipt of certain public benefits “as a negative factor in the totality of the circumstances, because it is indicative of a weak financial status and increases the likelihood that the alien will become a public charge in the future.” DHS proposes that past receipt of a fee waiver be considered as part of the financial status factor. “Requesting or receiving a fee waiver for an immigration benefit suggests a weak financial status. Since fee waivers are based on an inability to pay, a fee waiver for an immigration benefit suggests an inability to be self-sufficient,” DHS said.

DHS also said that an applicant’s education and skills “are mandatory statutory factors that must be considered when determining whether an alien is likely to become a public charge in the future.” In general, DHS said, someone with educational credentials and skills “is more employable and less likely to become a public charge.” DHS, therefore, proposes that when considering this factor, the agency would consider “whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge, if authorized for employment,” to include consideration of the applicant’s history of employment, English proficiency, licenses, certifications, and academic degrees.

Another proposed “heavily weighed negative factor” would be a lack of “private health insurance or the financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide care for him- or herself, to attend school, or to work.” A person may provide evidence of the prospect of obtaining health insurance, such as pending employment that provides employer-sponsored health insurance, DHS said. With respect to a person’s general state of health, DHS said the agency “would rely on panel physician and civil surgeon medical examination for purposes of whether an individual’s circumstances [give] rise to this heavily weighted negative factor.” Age would also be considered, with an age of less than 18 or greater than 61 requiring a demonstration of employment or sufficient household assets and resources.

The categories and programs could change under the final rule, which could take many months up to a year or longer before it is finalized. Among other things, the Trump administration will need to review potentially thousands of comments before it can finalize the rule. Moreover, the rule is likely to be subject to litigation.

DHS said the proposed rule will be published in the Federal Register “in the coming weeks.” Once it is published, a comment period will last 60 days. A DHS press release announcing the proposed rule is at https://www.dhs.gov/news/2018/09/22/dhs-announces-new-proposed-immigration-rule-enforce-long-standing-law-promotes-self. A copy of the proposed rule marked “unofficial” and provided by DHS is at https://www.dhs.gov/sites/default/files/publications/18_0921_USCIS_Proposed-Rule-Public-Charge.pdf.

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USCIS Proposes Change in Fee Waiver Evidence

U.S. Citizenship and Immigration Services (USCIS) has proposed revising evidence requirements for Form I-912, Request for Fee Waiver. Specifically, USCIS would reduce the evidence required for the I-912 to only a person’s household income and no longer require proof of whether an individual receives a means-tested benefit.

USCIS explained that its policy since 2011 has been to permit a fee waiver where an applicant received a means-tested benefit, even for a short period of time. USCIS said it has found that the various income levels used in states to grant means-tested benefits “result in inconsistent income levels being used to determine eligibility for a fee waiver.” Therefore, the revised form “will not permit a fee waiver based on receipt of a means-tested benefit, but will retain the poverty-guideline threshold and financial hardship criteria.”

USCIS said that if it decides to proceed with the form revision after considering public comments, it will rescind Policy Memorandum PM-602-0011.1, Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11-26 (Mar. 13, 2011) and issue new guidance on the documentation acceptable for individuals to present to demonstrate that they are unable to pay a fee when requesting a fee waiver. The applications and petitions that are eligible for a fee waiver will not be changed by this form and policy change, USCIS said.

USCIS will accept comments on this proposed change until November 27, 2018. Instructions on how to send comments are at https://www.govinfo.gov/content/pkg/FR-2018-09-28/html/2018-21101.htm.

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USCIS Is Conducting Site Visits to H-2B Employers

According to reports, U.S. Citizenship and Immigration Services (USCIS) is conducting site visits to H-2B employers nationwide in a variety of industry sectors. A site inspector may ask to review documentation and interview staff and the H-2B worker. There may be follow-up contacts and the agency will document the findings in a Compliance Review Report and determine whether further investigation is warranted.

Among the questions being asked of employers are the H-2B workers’ job titles, dates of beginning and ending of employment, daily job duties, physical locations where the work is performed, the onsite point of contact for the workers at the worksite, how the workers are monitored to determine whether they are appearing for work as required, whether any of the workers failed to complete the full employment period and, if so, whether the employer reported this failure to USCIS (including documentary evidence such as copies of emails or mailed letters), whether the employer offers housing to H-2B workers and if so, where, what type, and at what cost, and whether the employer offers transportation to and from the worksite.

General information on site visits (which does not mention H-2B workers specifically) is at https://www.uscis.gov/about-us/directorates-and-program-offices/fraud-detection-and-national-security/administrative-site-visit-and-verification-program.

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State Dept. Opens Registration for Diversity Visa Program for 2020

The Department of State has announced that the online registration period for the DV-2020 diversity visa lottery program begins on Wednesday, October 3, 2018, at 12 noon EDT (GMT-4), and concludes on Tuesday, November 6, 2018, at 12 noon EST (GMT-5). Individuals who submit more than one entry during the registration period will be disqualified. The Department advises applicants not to wait until the last week of the registration period to enter because heavy demand may result in website delays. No late entries or paper entries will be accepted.

There are no changes concerning eligible countries from the previous fiscal year. For DV-2020, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

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

There are two other ways in which those who were not born in an eligible country might be able to qualify, the Department said:

  • Was your spouse born in a country whose natives are eligible? If yes, you can claim your spouse’s country of birth—provided that both you and your spouse are named on the selected entry, are found eligible and issued diversity visas, and enter the United States simultaneously.
  • Were you born in a country whose natives are ineligible, but in which neither of your parents was born or legally resident at the time of your birth? If yes, you may claim the country of birth of one of your parents if it is a country whose natives are eligible for the DV-2020 program.

Instructions on the DV-2020 program and additional details on eligibility, including education/work experience requirements, are at https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-instructions.html. An English-language version of the instructions in PDF format is at https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2020-Instructions-Translations/DV-2020-Instructions-English.pdf. The related Federal Register notice is at https://www.gpo.gov/fdsys/pkg/FR-2018-09-25/pdf/2018-20796.pdf.

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President Signs Temporary Funding Bill Extending Four Immigration Provisions Until December 7

The E-Verify, Conrad State 30 J-1 waiver program for certain foreign physicians, EB-5 regional center, and special immigrant non-minister religious worker programs have been extended past the September 30 deadline by late-breaking legislation. President Donald Trump signed a combined “minibus” appropriations bill and continuing resolution on September 28, 2018, to continue funding these and other programs until December 7, 2018.

More information on the legislation is at https://www.congress.gov/bill/115th-congress/house-bill/6157/text. The Visa Bulletin for October 2018 is at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-october-2018.html.

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USCIS, OFLC Note Relief Available to Hurricane/Typhoon Survivors

U.S. Citizenship and Immigration Services (USCIS) and the Office of Foreign Labor Certification (OFLC) of the Department of Labor’s Employment and Training Administration recently released information about immigration services and relief that may help people affected by emergency situations, including severe storms such as Hurricane Florence and Typhoon Mangkhut.

USCIS. The following USCIS services may be available on a discretionary basis upon request for individuals who have been directly affected by Hurricane Florence or Typhoon Mangkhut, USCIS said:

  • Changing nonimmigrant status or extending nonimmigrant stay for an individual currently in the United States. If a person does not apply for the extension or change before his or her authorized period of admission expires, USCIS may excuse the delay if it was due to extraordinary circumstances beyond the applicant’s control;
  • Re-parole for those to whom USCIS previously granted parole;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Extension of response time or acceptance of a late response to a Request for Evidence or a Notice of Intent to Deny;
  • Rescheduling an interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card); and
  • Rescheduling a biometrics appointment.

USCIS said that when making such a request, the applicant should explain how Hurricane Florence or Typhoon Mangkhut is related to the need for the requested relief.

OFLC. Hurricane Florence generated significant damage to businesses in South Carolina, North Carolina, Virginia, and other states, OFLC noted. The agency accordingly established internal procedures that recognize, as a result of the storm, that employers and/or their representative(s) may not be able to timely respond to a request for information or documentation, such as an audit. OFLC said it “will extend the time to respond for employers affected by the storm.” Extensions will be granted “for issues that arise from storm-related conditions, including delays caused as a result of the storm, as well as those delays that may have occurred as a result of storm preparations in the week before the storm,” OFLC said.

The OFLC announcement discusses the effects of the storm on mail delivery, email delivery, advising OFLC of new mailing addresses and contact information, and applicability of due date deadline extensions.

For applications in the H-2A, H-2B, and PERM programs, and requests for prevailing wages, where either the employer or its attorney or agent is located in a Hurricane Florence major disaster area (the counties and parishes that have been or are later designated by the Federal Emergency Management Agency as disaster areas eligible for individual or public assistance), OFLC said it is postponing certain regulatory and procedural deadlines. Specifically, OFLC “is extending deadlines for employer responses to Atlanta National Processing Center (ANPC), Chicago National Processing Center (CNPC), and National Prevailing Wage Center issued audit requests, requests for additional information, requests for reconsideration, and similar requests that have deadlines,” OFLC said. Extensions of time to appeal either (1) agency denials of labor certifications, debarments, revocations, or other agency actions related to the labor certification to the Office of Administrative Law Judges, or (2) adverse final agency actions on such matters to a federal court, must be made in each case to the presiding authority, the agency said.

The USCIS announcement is at https://bit.ly/2plPy9b. The OFLC announcement, which includes additional information, is at https://www.foreignlaborcert.doleta.gov/pdf/Guidance_for_Hurricane_Florence.pdf.

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Justice Dept. Announces Settlement in H-2B Discrimination Case

The Department of Justice (DOJ) reached a settlement agreement on September 18, 2018, with Palmetto Beach Hospitality LLC (Palmetto), a company that provides housekeeping services to hotels in the Myrtle Beach, South Carolina, area. The agreement resolves the Department’s investigation into whether Palmetto unlawfully denied employment to qualified and available U.S. workers because it preferred to hire temporary foreign workers on H-2B visas.

DOJ said it is the fourth settlement under the Civil Rights Division’s “Protecting U.S. Workers Initiative,” which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers.

The DOJ investigation determined that Palmetto failed to consider applications from qualified U.S. workers for its housekeeper positions, even though employers must recruit and hire available and qualified U.S. workers before they receive permission to hire temporary foreign workers under the H-2B visa program. After ignoring applications from U.S. workers, Palmetto represented to the Department of Labor (DOL) that it could not find qualified U.S. workers and obtained authorization to employ temporary visa workers, DOJ said.

Under the settlement, Palmetto must engage in several types of enhanced recruiting and job advertising efforts to attract qualified U.S. workers, far beyond those required by the H-2B visa rules. Palmetto also must set aside $35,000 to pay any wages lost by U.S. workers whose applications it improperly rejected or ignored and pay $42,000 in civil penalties to the United States. Palmetto also is subject to DOJ monitoring.

Under the initiative, DOJ’s Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with four employers. Since the initiative’s inception, employers have agreed to pay or have distributed over $320,000 in back pay to affected U.S. workers. The Division has also increased its collaboration with other federal agencies, including a new formalized partnership with DOL to combat discrimination and abuse by employers using foreign workers.

The DOJ announcement is at https://www.justice.gov/opa/pr/justice-department-announces-fourth-settlement-protecting-us-workers-discrimination. The Palmetto settlement agreement is at https://www.justice.gov/opa/press-release/file/1094886/download. Information on the formalized partnership between DOJ and DOL is at https://www.justice.gov/opa/pr/departments-justice-and-labor-formalize-new-partnership-protect-us-workers-discrimination-a-0.

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USCIS Revises G-28 Notice of Entry of Appearance

U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with an edition date of 09/17/18. This revised version removes the geographic requirement for sending an original notice to a U.S. address for attorneys and representatives that had been added to the 05/05/16 and 05/23/18 versions of the form.

USCIS is also extending the grace period for prior versions of Form G-28. The 05/05/16 and 03/04/15 versions of the form are valid until November 19, 2018. Starting on that date, USCIS will only accept Forms G-28 with the edition dates of 09/17/18 or 05/23/18. The edition date appears at the bottom of the page on the form and instructions.

The USCIS notice is at https://www.uscis.gov/news/alerts/uscis-publishes-revised-form-g-28-and-extends-grace-period-prior-versions.

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Global: Spain

Spain has implemented an EU directive on research and student permits.

Spain has finally implemented, or “transposed,” European Union (EU) Directive 2016/801/EC through the Royal Decree-Law 11/2018, effective September 4, 2018. The Directive’s goal is to continue to attract talented and skilled people to the EU.

The transposition introduces into the Spanish legal framework the regulation of an EU research permit granting the right to intra-EU mobility, with validity for 12 months to enable researchers to seek employment once the research permit has expired.

Regarding students, the transposition introduces a permit valid for 12 months for students to seek employment once their student permits have expired, the possibility of their obtaining student permits through an in-country process (skipping the visa step process), and sponsoring of the student permit application by the Study Center instead of by the student. Also, a new training permit for students is valid for up to two years after obtaining a university degree.

In a nutshell, new permits have been implemented under Spain’s legal framework to facilitate foreign nationals’ research activity in Spain and their intra-EU mobility and to facilitate the training of foreign students and, under certain circumstances, their incorporation into the Spanish labor market.

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Firm in the News

Cyrus Mehta was quoted by Times of India in an article entitled “The new US deportation policy gives H-1B visa holders a temporary recess.” The article is at http://www.thehansindia.com/posts/index/National/2018-09-28/The-new-US-deportation-policy-gives-H-1B-visa-holders-a-temporary-recess/415121

Mr. Mehta was also an invited speaker in an  Ethics Training program organized by the Immigration Justice Corps in New York on September 18, 2018.

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Mid-September 2018 Immigration Update

Headlines:

USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor UnionsUSCIS has begun accepting copies of negative consultation letters directly from labor unions relating to a current or future O nonimmigrant visa petition request.

USCIS Changes Filing Location for Petition to Remove Conditions on Residence – Petitioners must send Form I-751 to a USCIS Lockbox facility.

USCIS Extends Validity of Certain EADs for TPS Beneficiaries From Somalia, El Salvador – USCIS has automatically extended the validity of certain employment authorization documents issued under the temporary protected status designations of Somalia and El Salvador.

Attorney General Delivers Remarks to Largest IJ Class in History – Among other things, Mr. Sessions said more IJs will be added by the end of this calendar year, “with a goal of seeing a 50 percent increase in the number” of IJs since the beginning of the Trump administration.

Pro Bono: Visit to a Remote Detention Facility in Georgia – Sophia Genovese, an attorney with Cyrus D. Mehta and Associates, PLLC, traveled to a remote detention facility in Folkston, Georgia, along with several others to provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings.

William Reich—In Memoriam – Among his many professional affiliations and recognitions, Bill was a long-time member of the Alliance of Business Immigration Lawyers, where he was highly respected and beloved.

Firm in the News…

Details:

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USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions

Effective September 14, 2018, U.S. Citizenship and Immigration Services (USCIS) has begun accepting copies of negative consultation letters directly from labor unions relating to a current or future O nonimmigrant visa petition request. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification.

O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts; individuals with extraordinary achievement in the motion picture or television industry; and certain essential support personnel.

USCIS explained that typically, a petitioner submits the necessary O visa consultation with the petition, and that this process requirement remains unchanged. USCIS Director L. Francis Cissna recently met with several labor unions to discuss concerns they had with the consultation process for O visa petitions, particularly “that some advisory opinions may be falsified by petitioners and submitted to USCIS as no-objections or favorable consultations, when in fact these were negative,” the agency said. The labor unions will now be able to send a copy of a negative consultation letter to USCIS so it can be compared to the consultation letter submitted to USCIS by the petitioner.

USCIS said labor unions should send copies of negative O nonimmigrant consultation letters to UnionConsultationMailbox@uscis.dhs.gov. To make sure USCIS matches the letters to the correct petitions, labor unions should include the last five digits of each beneficiary’s passport number in the consultation letters.

After six months, USCIS will analyze the data collected “to identify areas for improvement in the consultation process.”

The announcement is at https://www.uscis.gov/news/alerts/uscis-now-accepting-copies-negative-o-visa-consultations-directly-labor-unions.

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USCIS Changes Filing Location for Petition to Remove Conditions on Residence

On September 10, 2018, U.S. Citizenship and Immigration Services (USCIS) changed the filing location for Form I-751, Petition to Remove Conditions on Residence. This form was previously filed at the California and Vermont Service Centers. Now, petitioners must send Form I-751 to a USCIS Lockbox facility. However, the California, Nebraska, Vermont, and Texas Service Centers will be the adjudicating offices. When filing at a USCIS Lockbox facility, petitioners have the option to pay the fee with a money order, personal check, cashier’s check, or credit card.

For more information, see https://www.uscis.gov/unassigned/filing-location-change-form-i-751. USCIS’s I-751 webpage is at https://www.uscis.gov/i-751.

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USCIS Extends Validity of Certain EADs for TPS Beneficiaries From Somalia, El Salvador

U.S. Citizenship and Immigration Services (USCIS) has automatically extended the validity of certain employment authorization documents (EADs) issued under the temporary protected status (TPS) designations of Somalia and El Salvador. Following are highlights:

Somalia. USCIS has automatically extended the validity of EADs issued under the TPS designation of Somalia with an original expiration date of September 17, 2018, for 180 days, through March 16, 2019. Additionally, individuals who have EADs with an expiration date of March 17, 2017, and who applied for a new EAD during the last re-registration period but have not yet received it are covered by this automatic extension.

Those who are covered by this automatic extension may continue to use their existing EADs through March 16, 2019, as evidence that they are authorized to work, USCIS said.

The following documentation constitutes proof of authorization for a Somali TPS beneficiary to continue working legally in the United States:

  • A TPS-related EAD with a September 17, 2018, expiration date, or
  • A TPS-related EAD with a March 17, 2017, expiration date and an EAD application receipt (Form I-797C, Notice of Action) noting that the application was received on or after January 17, 2017.

The Federal Register notice is at https://www.federalregister.gov/documents/2018/08/27/2018-18444/extension-of-the-designation-of-somalia-for-temporary-protected-status. USCIS’s webpage on Somalian TPS is at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-somalia.

El Salvador. USCIS has automatically extended the validity of EADs issued under the TPS designation of El Salvador through March 4, 2019. The EADs of TPS beneficiaries under the El Salvador designation whose EADs are based on TPS may now be valid through March 4, 2019, if the EAD includes a category code of A12 or C19, the beneficiary has not received his or her new EAD, and:

  • The EAD has a marked expiration date of March 9, 2018, and the beneficiary applied for a new EAD after January 18, 2018; or
  • The EAD has a marked expiration date of September 9, 2016, and the beneficiary applied for a new EAD on or after July 8, 2016.

USCIS said it will mail a Notice of Continued Evidence of Work Authorization to individuals who are eligible for the additional 180-day automatic extension. The notice will provide evidence of the automatic extension of the EAD through March 4, 2019, to show to employers. Individuals who receive the notice may use it in combination with their current EADs as evidence of work authorization through March 4, 2019. Those who have a pending EAD application and believe they are eligible for the additional automatic extension but did not receive the Notice of Continued Evidence of Work Authorization by September 4, 2018, should contact USCIS at 202-272-8377 or the USCIS Contact Center number at https://www.uscis.gov/contactcenter.

Eligible beneficiaries may show their employers USCIS’s webpage on El Salvador TPS (click on the Automatic Employment Authorization Document (EAD) Extension link at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-el-salvador in combination with the current EAD to demonstrate continued employment authorization until they receive their Notice of Continued Evidence of Work Authorization.

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Attorney General Delivers Remarks to Largest IJ Class in History

On September 10, 2018, Attorney General Jeff Sessions delivered remarks to 44 new Immigration Judges (IJs), the largest class of IJs in history.

Among other things, Mr. Sessions said more IJs will be added by the end of this calendar year, “with a goal of seeing a 50 percent increase in the number” of IJs since the beginning of the Trump administration.

He also said that “[g]ood lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.” He called attention to the fact that earlier in 2018, the Department of Homeland Security (DHS) “announced that it would seek to refer 100 percent of illegal border crossers to the Department of Justice for criminal prosecution in Federal courts.” He said that U.S. Attorneys are prosecuting over 90 percent of those cases referred to the Department of Justice, which he noted is a “two to threefold increase” and is the ” ‘zero tolerance’ policy you have heard about. You don’t get to enter the border unlawfully, between ports of entry, and place our [Customs and Border Protection] officers at risk without consequences.”

Mr. Sessions said that the asylum system “has been abused for years to the detriment of the rule of law, sound public policy, and public safety.” He said that “[s]aying a few simple words—claiming a fear of return—has transformed a straightforward arrest for illegal entry and immediate return…too often into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing.” He asserted that “the vast majority of the current asylum claims are not valid under the law.” He said that for the past five years, only 20 percent of claims have been found to be meritorious after a hearing before an IJ, and that in addition, roughly 15 percent are found invalid by U.S. Citizenship and Immigration Services as a part of their initial credible fear screenings. “Further illustrating this point,” Mr. Sessions said, “in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried.”

Mr. Sessions also said it is the duty of the IJs to carry out his ruling on the principles of asylum and immigration law, and said “there will be more still to come.” “When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases. As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey.”

The full text of Mr. Sessions’ speech is at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-largest-class-immigration-judges-history.

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Pro Bono: Visit to a Remote Detention Facility in Georgia

Sophia Genovese, an attorney with Cyrus D. Mehta and Partners, PLLC, traveled to a remote detention facility in Folkston, Georgia, along with several others to provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. The program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings to assist as many as possible in obtaining release. Ms. Genovese noted that their rationale is that since bond and parole representation take up substantially less time than asylum representation, they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.

Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, Florida, and nearly 300 miles from Atlanta, Georgia, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack due process, Ms. Genovese said. Rather, through assembly-line adjudication, IJs hear several dozen cases within the span of a few hours.

Even with the tireless efforts of the staff attorneys and volunteers at SIFI, she noted, there are too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds to navigate the confusing waters of immigration court alone.

During initial screenings, Ms. Genovese encountered numerous individuals who filled out their asylum applications on their own, using the Internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. While these asylum seekers are smart and resourceful, it is nearly impossible for them to successfully pursue their own asylum claims, she said. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearings where IJs will adjudicate their asylum claims, they will be left to argue their claims in the Atlanta Immigration Court, where the vast majority of asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.

Ms. Genovese summarizes below the stories of some of the asylum-seekers she met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, she said, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. Below are their stories, edited for conciseness:

Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation

At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.

Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.

Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given [Attorney General Jeff] Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a U.S. citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.

Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman

During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.

He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who he believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.

Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.

Mr. S-‘s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief.

As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the United States to sponsor him, he may be eligible for employment-based relief based on his master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.

Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group

My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the United States to escape this persecution.

Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-‘s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.

August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter who spoke his language. Mr. G- was so out of the loop with what was going on that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague and I spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.

Mr. G- firmly stated that he would be killed if he were forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.

Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.

Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his evangelical Christianity, given that Mr. G-‘s persecution was compounded by his visible Mam ethnicity and vocal evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. Mr. G-‘s low prospects of success are particularly heart-wrenching.

[Update: Ms. Genovese subsequently received word that Mr. G- had been ordered removed. Despite the fact that his hearing was conducted entirely in Spanish and he has arguable claims to relief, Mr. G- has decided not to appeal his removal order and instead return to Guatemala. Prolonged detention has taken a serious toll on Mr. G-‘s physical and mental health.]

Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion

I also assisted in the drafting of a bond motion for a 20-year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.

Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-‘s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.

A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, he would be killed. Fearing for his life, Mr. O- fled to the United States in April 2018 and has been in detention ever since.

SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-‘s asylum claim is particularly strong, and because he has family in the United States, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ who appropriately follows the law and will grant him asylum.

For more, see https://bit.ly/2x9Nhl7.

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William Reich—In Memoriam

William Reich (bio: http://www.abil.com/lawyers/lawyers-reich.cfm), “Bill” to his friends, began life as the child of Holocaust survivors. He was born in Tel Aviv on October 5, 1947, about seven months before the State of Israel was established in May 1948. In 1956, at age nine, he and his family emigrated to Guatemala. Two years later, speaking only Spanish and Hebrew, they made their way to New York City and began a life as recent immigrants.

In the beginning, Bill’s knowledge about his new country came mostly from the movies, but he quickly learned its language and customs. As so many immigrant children do, he helped his parents navigate the complexities of life in a bustling American city. Growing up in the boroughs, wearing second-hand clothing, and becoming aware of his parents’ immense sacrifices to ensure his and his sister’s success in their chosen land, Bill developed a lifelong appreciation for immigrants. He understood and empathized with their struggles, and he counted himself fortunate to be a part of their ongoing journeys.

At age 17, in 1964, Bill became a U.S. citizen. After graduating from Queens College, he left the big city and attended law school in Buffalo, a place he came to love and never left. In 1974, he joined the Buffalo law firm that would come to be known as Serotte Reich, where he began his career practicing criminal law and litigation. But his passion for immigrants prevailed, and soon he introduced his firm to the growing and dynamic field of immigration law. Four decades later, Bill had become recognized as one of our nation’s top legal strategists in immigration law, particularly when solving complicated and challenging waiver and border cases. Many immigration lawyers across the United States sent their toughest cases to Bill to resolve. While never offering guarantees, he turned immigration disasters into successes, allowing foreign students to fulfill their dreams and finish school, helping separated families to be reunited, and transforming many near tragedies into cases with miraculous endings. Bill sought out and relied on the good graces of fair and kind adjudicators, and found discretion in places where everyone else had given up hope. As one close colleague recently said, “If any lawyer could fit a square peg in a round hole, it was Bill.”

Bill was generous with his knowledge, frequently mentoring other lawyers, speaking at regional and national conferences hosted by the American Immigration Lawyers Association and other groups, giving numerous media interviews, and publishing many articles dealing with the trans-border movement of business personnel under the North American Free Trade Agreement as well as unique immigration issues faced by border practitioners. Among his many professional affiliations and recognitions, Bill was a long-time member of the Alliance of Business Immigration Lawyers, where he was highly respected and beloved.

As well as being a brilliant and passionate immigration lawyer, Bill was a deeply honest, genuine, and kind person. He was ethical and considerate and he inspired his colleagues to be both good lawyers and good human beings. His zest for life was evident to all who knew him. He drew upon the challenges he and his family faced as new arrivals to this country and embodied the indomitable immigrant spirit. Bill’s was the ultimate success story, as he committed himself to fighting for the rights of those immigrants and refugees who followed in his family’s footsteps. He was a giant in his field who lifted up many others. He will be deeply missed.

Rest in peace, Bill and Shlomo!

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Firm in the News

Cyrus Mehta was quoted extensively by The Times of India in “Students seeking jobs hit H-1B premium wall.” The article is at

https://timesofindia.indiatimes.com/india/students-seeking-jobs-hit-h-1b-premium-wall/articleshow/65726829.cms

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September 2018 Immigration Update

Headlines:

State Dept. Announces Oversubscription of September Employment-Based Second and Third Preference Categories – The Department of State’s Visa Bulletin for September 2018 announced oversubscription of employment-based visa numbers in several categories.

USCIS Extends, Expands Suspension of Premium Processing for Certain H-1B Petitions; Increases Premium Processing Fee – USCIS announced that it is extending the temporary suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, 2018, will expand this temporary suspension to include certain additional H-1B petitions. USCIS said it estimates that these suspensions will last until February 19, 2019. USCIS is also raising the fee for premium processing.

USCIS Automatically Extends EAD Validity for Certain Haiti and Yemen TPS Beneficiaries; Reminders Issued for Hondurans, Syrians, Nepalese – USCIS is automatically extending the validity of employment authorization documents for certain temporary protected status beneficiaries from Haiti and Yemen. Reminders were also issued for other countries.

USCIS Updates Guidance, Accepts Comments on Regional Center Geographic Area – USCIS is updating guidance and accepting comments regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests affect the filing of Form I-526 petitions.

Burbank Man Who Allegedly Led Prescription Drug Ring Arrested on New Charges of Fraudulently Procuring U.S. Citizenship – A Burbank, California, man who operated a string of allegedly sham medical clinics was arrested on new charges that he unlawfully procured U.S. citizenship. The man already faces federal charges of using the clinics to orchestrate a massive narcotics scheme.

Canada – On July 31, 2018, amendments to Canada’s Immigration and Refugee Protection Regulations providing for the expansion of biometric information collection for foreign nationals seeking to enter or remain in Canada entered into force.

Firm in the News…

Details:

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State Dept. Announces Oversubscription of September Employment-Based Second and Third Preference Categories

The Department of State’s Visa Bulletin for the month of September 2018 includes the following excerpted information:

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY 2018 annual limits.

The implementation of the above-mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-Based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY 2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Visa Availability in the Coming Months

EMPLOYMENT-based categories (potential monthly movement)

Employment First:

WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.

Employment Second:

Worldwide: Current for the foreseeable future.

China: Slow movement pending receipt of demand from recent advances

India: Up to two weeks

Employment Third:

Worldwide: Current

China: Up to three weeks

India: Slow movement pending receipt of demand from recent advances

Mexico: Current

Philippines: Minimal

Employment Fourth: Current for most countries

El Salvador, Guatemala, and Honduras: Little, if any forward movement

Mexico: Up to three months

Employment Fifth: The category will remain “Current” for most countries

China-mainland born: Up to one week

Vietnam: Steady forward movement

The above final action date projections for the [Employment category] indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

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USCIS Extends, Expands Suspension of Premium Processing for Certain H-1B Petitions; Increases Premium Processing Fee

U.S. Citizenship and Immigration Services (USCIS) announced on August 28, 2018, that it is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, 2018, will expand this temporary suspension to include certain additional H-1B petitions. USCIS said it estimates that these suspensions will last until February 19, 2019, and that it will notify the public via uscis.gov before resuming premium processing for these petitions. The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until September 10, 2018. USCIS also said it is raising the premium processing fee.

Suspension extended, expanded. USCIS said the suspension will help the agency to reduce overall H-1B processing times by allowing it to:

  • Process long-pending petitions, which USCIS has been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
  • Be responsive to petitions with time-sensitive start dates; and
  • Prioritize adjudication of H-1B extension-of-status cases that are nearing the 240-day mark.

According to reports from employers, an increasing number of employees were insisting on premium processing for petitions due to the increase in denials and requests for evidence (RFEs), as well as USCIS’s “no deference” policy, assertion of its ability to deny cases without RFEs, and its recent initiative to start removal proceedings upon denial of nonimmigrant petitions.

While H-1B premium processing is suspended, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected. The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).

USCIS said it will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before September 11, 2018. Therefore, USCIS will refund the premium processing fee if:

  • The petitioner filed the Form I-907 for an H-1B petition before September 11, 2018; and
  • USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

The suspension does not apply to:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization; or
  2. Petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, question 2, page 2 of the current Form I-129) with a concurrent request to:
    1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, question 4, page 2 of the current Form I-129); or
    2. Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, question 4, page 2 of the current Form I-129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129, USCIS said.

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate that he or she meets at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite requests.

USCIS said it reviews all expedite requests on a case-by-case basis and that requests are granted “at the discretion of the office leadership.”

The announcement is at https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays.

Increased fee for premium processing. USCIS announced on August 31, 2018, that it is raising the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, beginning on October 1, 2018. The premium processing fee will increase to $1,410, a 14.9 percent increase from the current fee of $1,225. This increase “represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers,” USCIS said.

Premium processing is an optional service that allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.

USCIS said it intends to hire additional staff and invest in information technology systems with the funds generated by the fee increase.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-adjusting-premium-processing-fee. The related Federal Register final rule is at https://www.federalregister.gov/documents/2018/08/31/2018-19108/adjustment-to-premium-processing-fee.

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USCIS Automatically Extends EAD Validity for Certain Haiti and Yemen TPS Beneficiaries; Reminders Issued for Hondurans, Syrians, Nepalese

U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of employment authorization documents (EADs) for certain temporary protected status (TPS) beneficiaries from Haiti and Yemen.

Haiti. USCIS said EADs issued under Haitian TPS are automatically extended through January 17, 2019, for certain beneficiaries with an EAD based on that TPS status. EADs under Haitian TPS may now be valid through January 17, 2019, if the EAD includes a category code of A12 or C19, the beneficiary has not yet received his or her new EAD, and:

  • The EAD expired on January 22, 2018, and the beneficiary applied for a new EAD during the last re-registration period; or
  • The EAD expired on July 22, 2017, and the beneficiary applied for a new EAD on or after May 24, 2017.

Affected beneficiaries may continue to use their current EADs as evidence of work authorization through January 17, 2019, USCIS said. Because they have pending EAD applications, USCIS is mailing them an individual Notice of Continued Evidence of Work Authorization that provides additional evidence of this automatic extension to show to employers Those who have not yet received the Notice of Continued Evidence of Work Authorization should contact USCIS at 202-272-8377 or 800-375-5283 (TTY 800-767-1833). USCIS says affected beneficiaries “may provide your employer with this notice until you receive your Notice of Continued Evidence of Work Authorization.” If USCIS approves the TPS re-registration application and the beneficiary applied for a new EAD, he or she should receive a new EAD with the expiration date of July 22, 2019.

Yemen. USCIS also has automatically extended the validity of EADs issued under Yemen TPS with an original expiration date of September 3, 2018, for 180 days, through March 2, 2019. Individuals who have EADs with an expiration date of March 3, 2017, and who applied for a new EAD during the last re-registration period for Yemen but have not yet received their new EADs are covered by this automatic EAD extension. USCIS had recently announced an extension of the designation of Yemen for Temporary Protected Status (TPS) for 18 months, from September 4, 2018, through March 3, 2020.

Those whose EADs are covered by this automatic extension may continue to use their existing EADs through March 2, 2019, as evidence that they are authorized to work. To prove that they are eligible to continue working legally, USCIS said such beneficiaries may show the following documentation to their employers. Government agencies may also accept these documents if they need to determine their immigration status:

  • The TPS-related EAD with a September 3, 2018, expiration date; or
  • The TPS-related EAD with a March 3, 2017, expiration date and the EAD application receipt (Form I-797C, Notice of Action) that notes the application was received on or after January 4, 2017

Honduras, Syria, Nepal. The Systematic Alien Verification for Entitlements (SAVE) program released the following reminders in its July 2018 newsletter:

  • TPS for Honduras will terminate January 5, 2020. EADs are automatically extended through January 1, 2019.
  • TPS for Syria is designated through September 30, 2019. EADs are automatically extended through September 27, 2018.
  • TPS for Nepal will terminate June 24, 2019. EADs are automatically extended through December 21, 2018.

The USCIS notice about the Haiti EAD extension is at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti (scroll down to “Automatic Employment Authorization Document (EAD) Extension”). The notice of TPS extension for Yemen is at https://www.gpo.gov/fdsys/pkg/FR-2018-08-14/html/2018-17556.htm. A Federal Register notice on the Yemen EAD extension is at https://bit.ly/2MhmzBq.

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USCIS Updates Guidance, Accepts Comments on Regional Center Geographic Area

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum on August 24, 2018, announcing that it is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests affect the filing of Form I-526, Immigrant Petition by Alien Entrepreneur. USCIS said the updated policy guidance “is controlling and supersedes any prior guidance.”

USCIS said the updated policy guidance:

  • Clarifies that USCIS reviews whether an economic methodology is reasonable to demonstrate that a regional center’s geographic area is limited, to include whether the multipliers and assumptions about a project’s geographic impact are reasonable.
  • Explains that a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.
  • Affirms that a Form I-924 amendment must be filed and approved to expand the regional center’s geographic area for requests made on or after February 22, 2017.
  • Clarifies how USCIS adjudicates regional center-associated Form I-526 petitions where the regional center has requested an expansion of its geographic area.
  • Explains that USCIS considers a change in regional center affiliation a material change in cases where the change takes place after Form I-526 has been filed.

USCIS is accepting comments on the policy guidance update until September 9, 2018. For more information, see https://www.uscis.gov/outreach/feedback-opportunities/policy-manual-comment.

The policy alert is at https://www.uscis.gov/sites/default/files/USCIS/Laws/20180824_EB5GeographicArea.pdf. The USCIS Policy Manual is at https://www.uscis.gov/policymanual/HTML/PolicyManual.html.

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Burbank Man Who Allegedly Led Prescription Drug Ring Arrested on New Charges of Fraudulently Procuring U.S. Citizenship

A Burbank, California, man who operated a string of allegedly sham medical clinics was arrested on August 7, 2018, on new charges that he unlawfully procured U.S. citizenship. The man already faces federal charges of using the clinics to orchestrate a massive narcotics scheme.

Armen Simonyan, who was free on bond in the narcotics-trafficking case, was arrested after being named in a two-count indictment returned by a federal grand jury. The new indictment charges Mr. Simonyan with unlawful procurement of U.S. citizenship and making a false statement on a passport application.

The indictment outlines Mr. Simonyan’s “15-year history of securing United States immigration benefits via fraud and identity theft,” USCIS said. Mr. Simonyan allegedly entered the United States from Armenia under a stolen identity and a fraudulent passport. He then sought asylum in the United States, allegedly using a false narrative that he was born in Azerbaijan to parents of mixed Armenian-Azerbaijani nationality; that his family suffered ethnic violence, including the murder of both of his parents; and that he fled to the United States via Russia. The indictment alleges that, in fact, Mr. Simonyan was born in Armenia to Armenian parents, that he entered the United States from Armenia, and that both of his parents were alive.

Mr. Simonyan will lose his U.S. citizenship if convicted of the immigration fraud charge.

The indictment also charges Mr. Simonyan with lying on his application for a U.S. passport after he gained citizenship. The alleged false statements related to his place of birth, his date of birth, and his claim that his mother was deceased.

Mr. Simonyan is currently scheduled to go on trial in the narcotics case on February 12, 2019. If convicted of the charges in the new indictment, he would face up to 20 years in prison, in addition to the statutory maximum of 60 years in federal prison that he faces in the narcotics case.

The immigration investigation was conducted by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) unit and the U.S. Department of State’s Diplomatic Security Service, and was conducted under the aegis of HIS’s Document and Benefit Fraud Task Force. Substantial assistance was provided by U.S. Citizenship and Immigration Services’ Fraud Detection and National Security unit, the Drug Enforcement Administration, and the U.S. Department of Health and Human Services’ Office of Inspector General.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/burbank-man-who-allegedly-led-prescription-drug-ring-arrested-new-charges-fraudulently-procuring-us-citizenship.

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Canada

On July 31, 2018, amendments to Canada’s Immigration and Refugee Protection Regulations providing for the expansion of biometric information collection for foreign nationals seeking to enter or remain in Canada entered into force.

Since July 31, 2018, when these amendments became effective, the Canada Border Services Agency, Royal Canadian Mounted Police, Shared Services Canada, and Immigration, Refugees and Citizenship Canada have begun collecting biometric information for all foreign nationals between the ages of 14 and 79 applying for work permits, study permits, temporary resident permits, temporary resident visas, and Canadian permanent residence, regardless of whether visas are required. These rules do not apply to U.S. nationals seeking to enter Canada on a temporary status (permanent residence applications will require biometrics for U.S. nationals) as well as visa-exempt nationals seeking to enter Canada solely as visitors with valid Electronic Travel Authorization (eTA) documents.

The expansion of biometric collection is being rolled out in two phases. Since July 31, 2018, citizens of most countries in Europe, Africa, and the Middle East (and some Asian countries) must provide biometric information. On December 31, 2018, the second phase will add countries from both Asia and the Americas (including Australia and New Zealand). In practice, biometric information is being collected directly at Canadian ports-of-entry (POEs) for visa-exempt nationals eligible to present their temporary resident applications upon arrival in Canada and at Visa Application Centers for visa-requiring nationals presenting their temporary resident applications from abroad.

To facilitate this increased biometric collection, the government of Canada has announced the implementation of “biometric collection service points” at approximately 57 POEs across Canada (which includes all major airports) and in numerous locations around the world. The biometric information collected is valid for a 10-year period. Foreign nationals who have already provided biometric information will not be subject to this new regulation until their biometric information expires. Similarly, applicants applying to renew their temporary resident status from within Canada will not need to provide biometric information until the implementation of in-Canada enrollment services expected in February 2019.

The objective behind this biometric expansion project is to protect the safety of Canada’s borders and the security of all Canadians by providing authorities with the tools necessary to effectively screen temporary and permanent resident applicants before their entry into Canada. It remains unclear whether the benefits of the Biometric Expansion Project will outweigh potential frustrations associated with a more cumbersome application process, especially for visa-exempt nationals who may be unaccustomed to these types of increased security measures.

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Firm in the News

Cyrus Mehta’s views on the latest immigration law developments have been quoted in Time of India, https://timesofindia.indiatimes.com/world/us/us-eases-rules-for-foreign-students/articleshow/65456857.cms  and Law 360, https://www.law360.com/articles/1078426/immigration-attys-brace-for-surging-i-9-audits

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August 2018 Global Immigration Update

Feature Article

VISA WAIVER PROGRAMS: AN OVERVIEW – This article provides an overview of visa waiver programs in several countries.

Country Updates

AUSTRALIA – Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

HONG KONG – This article provides an overview of the acquisition of Chinese nationality in the Hong Kong SAR and related tax issues.

ITALY – Italy has implemented a new directive on the conditions of entry and residence of third-country nationals for certain purposes. There are new rules for non-EU/EEA students and researchers.

RUSSIA – A new federal law changes the rules for address registrations of foreign nationals and stateless persons in the Russian Federation.

UNITED KINGDOM – This article discusses next steps for the “Windrush Generation”; details of the Brexit settlement scheme, including a toolkit for employers; and good news for employers of Tier 2 migrants: the easing of pressure on the Tier 2 cap.

Firm in the News…

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Feature Article

VISA WAIVER PROGRAMS: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to visa waiver programs.

Canada

To be granted admission to Canada as a visitor, foreign nationals are subject to different entry conditions depending on their country of citizenship. Pursuant to subsections 190(1) and 190(2) of the Immigration and Refugee Protection Regulations, certain foreign nationals can apply to enter Canada as a visitor directly at a Canadian port of entry while others must apply for a Temporary Resident Visa (TRV) before arriving in Canada, usually through a Visa Office abroad.

Citizens of the following countries are visa-exempt and therefore do not require a TRV to travel to Canada: Andorra, Australia, Austria, Bahamas, Barbados, Belgium, Brunei Darussalam, Bulgaria, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Federal Republic of Germany, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Republic of Korea, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Sweden, Switzerland, and United Arab Emirates. In addition, British citizens, most British overseas citizens, citizens of Israel, citizens of the United States and persons who have been lawfully admitted to the United States for permanent residence as well as holders of certain diplomatic passports, and holders of passports issued by the Hong Kong Special Administration Region and the Ministry of Foreign Affairs in Taiwan are also exempt from the requirement to obtain a TRV.

While citizens of these visa-exempt countries do not require TRVs to travel to Canada, most must obtain an electronic travel document called an Electronic Travel Authorization (eTA) if they wish to travel to Canada by air. The eTA must be applied for and obtained before boarding a flight to Canada. Canadian citizens, Canadian permanent residents, and U.S. citizens are exempt from this requirement and can continue to enter Canada using their valid Canadian passport, valid Canadian permanent resident card, or valid U.S. passport. The eTA is only required for air travel, which means that citizens of visa-exempt countries can continue to enter Canada without an eTA at a Canadian land border crossing.

There are a few limited exceptions to the requirement for citizens of visa-requiring countries to obtain TRVs. For example, since May 1, 2017, certain citizens of Brazil and Romania can apply for an eTA instead of the usual requirement to obtain a visa to fly to or to transit through a Canadian airport. This new exemption to obtaining a TRV applies to citizens of these two countries who have held a Canadian visa in the past 10 years or who currently hold a valid U.S. nonimmigrant visa. In addition, pursuant to paragraph 190(3)(f) of the Immigration and Refugee Protection Regulations, a foreign national who would normally require a TRV is authorized to re-enter Canada following a visit to the United States or St. Pierre and Miquelon if they hold valid temporary resident status in Canada and are returning to Canada before the end of the period initially authorized for their temporary stay.

A foreign national who is granted entry as a visitor can normally remain in Canada for an initial period of six months unless otherwise indicated by a Border Services Officer of the Canada Border Services Agency. Extended stays of up to two years can be granted for parents and grandparents having applied and obtained a “Super Visa.”

Colombia

Under Colombian immigration laws, foreign nationals of more than 90 countries do not require visas to enter Colombia. They may apply for an entry and stay permit (PIP), which is granted to visa-waivered foreigners upon arrival at the port of entry.

PIP-6

To undertake commercial or business activities such as attending or participating in academic, scientific, artistic, cultural, or sporting events without any remuneration; being interviewed as part of a recruitment process; participating in business training; or performing journalistic activities or coverage, foreign nationals may apply for an entry-and-stay permit 6 (PIP-6) and may stay initially for 90 days, extendable for an additional 90 days, for a maximum stay of 180 days per calendar year. It is important to note that PIP-6 holders are not permitted to bill clients, nor is client-to-client billing permitted.

PIP-7

In the same way, foreign nationals engaging in urgent technical activities for 30 days or less may obtain a PIP-7 entry-and-stay permit for short-term technical authorization upon arrival when presenting the pre-approval letter, issued by Colombian Immigration. The request for the pre-approval letter is submitted to Colombian Immigration and is generally issued within five business days. The PIP-7 is issued immediately upon arrival in Colombia at the port of entry to non-restricted nationalities.

Some of the visa waiver benefits are available to citizens of the European Union, Andorra, Antigua and Barbuda, Argentina, Australia, Bahamas, Barbados, Belize, Bhutan, Bolivia, Brazil, Brunei-Darussalam, Canada, Chile, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Fiji, Georgia, Granada, Guatemala, Guyana, Honduras, Iceland, Indonesia, Israel, Jamaica, Japan, Liechtenstein, Lithuania, Luxembourg, Korea, Malaysia, Malta, Marshall Islands, Mexico, Monaco, New Zealand, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Romania, Saint Kitts and Nevis, Saint Vincent and Grenadines, Saint Marino, Saint Lucia, Solomon Islands, Singapore, Slovenia, Suriname, Switzerland, Trinidad and Tobago, Turkey, United Kingdom, United States, Uruguay, and Venezuela.

Moreover, nationals of Cambodia, India, Nicaragua, Myanmar, China, Thailand, Vietnam, and Nicaragua who hold a valid visa with a validity of more than six months, or residence status from a Schengen country or the United States, also qualify for the visa-free regime and could apply for these permits.

France

European Union (EU) law determines the foreign nationals who may benefit from visa waivers to enter Member States, which include France. The list of countries who are visa-waived countries are listed in an annex to EU regulation 539/2001.

EU law, through its directives, determines the content of national immigration laws and regulations. The EU Directive 2016/801 of 11 May 2016 recasts conditions of entry and residence of third-country nationals for the purpose of of research, studies, training, voluntary service, pupil exchange schemes or educational projects, and au pairing. Besides recasting previous directives, this directive establishes improved intra-EU mobility of third-country scientists, their accompanying family members, and students, making the EU more attractive to these strategic populations of third-country nationals.

French legislation already meets most of the minimum standards for admitting third-country nationals for the purpose of research, studies, training, voluntary service, pupil exchange schemes or educational projects, and au pairing. However, the legislation will have to be modified to allow for the improved intra-EU mobility required by this directive for scientists, their accompanying family members, and students.

The following articles of the directive are of particular interest:

Intra-EU Mobility for Scientists (Articles 28, 29, 30)

Third-country nationals admitted to a Member State in scientist status for one year can carry out their activities in a second Member State for a maximum period of 180 days. A third-country scientist admitted to a Member State under a multi-year permit can carry out their activities in a second Member State for 360 days, or more if the second Member State allows for a longer period.

The family members admitted as such in the first Member State may accompany the scientist to the second Member State. The directive does not provide for a right to work for such family members in the second Member State.

Intra-EU Mobility for Students (Article 31)

Third-country nationals admitted to a Member State and who are covered by a Union or multilateral program that comprises mobility measures or by an agreement between two or more higher education institutions can carry out their studies in one or several second Member States for a period of up to 360 days per Member State.

Immigration reform is expected to fully transpose the EU Directive 2016/801 into national legislation in France in the next few months.

India

India has implemented an efficient e-Visa that obviates the need to apply for a visa at an Indian consulate or mission.

The e-Visa has three sub-categories: e-Tourist visa, e-Business Visa, and e-Medical visa. The sole objective of the traveler visiting India, according to the Government of India website (https://indianvisaonline.gov.in/evisa/tvoa.html), must be for “recreation, sightseeing, casual visit to meet friends or relatives, short duration medical treatment or casual business visit.” Although “casual business visit” has not been defined, based on anecdotal evidence, it is being interpreted broadly to involve legitimate business activities not involving work or employment. Those activities are subject to a separate employment visa. The passport should have at least six months’ validity from the date of arrival in India, and must also have at least two blank pages for stamping by the immigration officer at the port of entry. Moreover, the traveler should have a return ticket or onward journey ticket, with sufficient money to spend during his or her stay in India.

Applicants who are nationals from the following countries or territories are eligible:

Albania, Andorra, Angola, Anguilla, Antigua & Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Burundi, Cambodia, Cameron Union Republic, Canada, Cape Verde, Cayman Islands, Chile, China, China-SAR Hongkong, China-SAR Macau, Colombia, Comoros, Cook Islands, Costa Rica, Côte d’lvoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, East Timor, Ecuador, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Iran, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kiribati, Kyrgyzstan, Laos, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Mozambique, Myanmar, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niger Republic, Niue Island, Norway, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Macedonia, Romania, Russia, Rwanda, Saint Christopher and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Tonga, Trinidad & Tobago, Turks & Caicos Island, Tuvalu, Uganda, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Uzbekistan, Vanuatu, Vatican City-Holy See, Venezuela, Vietnam, Zambia, and Zimbabwe.

Eligible applicants may apply online a minimum of four days in advance of the date of arrival and not earlier than 120 days after. For example, if an applicant is applying on September 1, the applicant can select an arrival date from September 5 to January 2.

The applicant should carry a copy of the Electronic Travel Authorization (ETA) at the time of travel, and the ETA status should be shown as “GRANTED” before traveling begins.

The validity of the e-Visa is 60 days from the date of arrival in India .Double entry is permitted on the e-Tourist Visa and e-Business Visa. Triple entry is permitted on e-Medical Visa. The e-Visa can be used a maximum of two times in a calendar year; i.e., between January and December. It is non-extendable, non-convertible, and not valid for visiting protected, restricted, and cantonment areas. Special prior permission needs to be sought to visit such areas of India.

Nationals of yellow fever-affected countries or travelers arriving from these countries must carry a yellow fever vaccination card at the time of arrival in India; otherwise they may be quarantined for six days upon arrival in India.

The Government of India website has also issued the following advisory:

Services of e-Visa involves completely online application for which no facilitation is required by any intermediary/agents etc. It is advised not to believe or fall in trap of any such unscrupulous elements who claim speedy/express grant of e-Visa and charge money for it. [Wording and emphasis in original.]

Further details can be found at https://indianvisaonline.gov.in/evisa/tvoa.html.

Mexico

A major legislative reform to the Mexican immigration regime in November 2012 aligned migratory policies with current challenges that had not been successfully addressed under the previous General Populations Law that had been valid for nearly 40 years. Some of the founding principles that govern immigration policy in Mexico today include protection of immigrants’ human rights, addressing immigration as a shared responsibility with other countries’ governments, fostering international mobility within the framework of respect and security, attracting investment, and facilitating the free movement of people within the country for transit, business, tourism, and work-related purposes.

Consistent with the above, nearly 30 former immigration status and subcategories have been superseded and simplified into three main immigration statuses, known as “conditions of stay”: Visitor, Temporary Resident, and Permanent Resident.

Foreign nationals from designated countries can enter Mexico without a visa for transit, tourism, and business purposes in visitor status. Furthermore, nationals from countries that require a visa to enter Mexico as visitors may be exempt from this requirement if they are:

  1. Holders of a valid visa to enter the United States, Canada, Japan, United Kingdom, or the Schengen countries;
  2. Holders of permanent resident status in Canada, the United States, Japan, the United Kingdom, the Schengen countries, or the Pacific Alliance member countries (Chile, Colombia, and Peru); or
  3. Holders of an APEC Business Traveler Card (ABTC) approved by Mexico.

Foreign nationals from visa-required countries who do not meet any of these conditions may apply for a visitor visa at the nearest visa-adjudicating Mexican consular post to their place of residence and secure a visa within 10 business days upon fulfilling the requirements for the purpose of the trip. In practice, most consulates grant this type of visa within one to three business days and the requirements typically include proof of economic solvency or evidence of an invitation from a Mexican-based entity for business-related purposes, among other standard requirements.

The visitor status is appropriate for short-term stays of up to 180 days per entry without extension. Nonetheless, there is no limit on the number of times a foreign national may enter Mexico under visitor status.

Since Mexican migration law does not distinguish among business activities, foreign visitors entering for business may engage in most kinds of business and work-related activities, provided that these are legal and consistent with their declaration at the port of entry to the country. Foreigners cannot be remunerated directly from a Mexican source under visitor status on a visa waiver.

Notwithstanding the above, several options foreigners have as visitors may be deceiving because there are contingencies that can be triggered due to frequent travel or compliance with other applicable laws, such as labor and tax. Examples of the latter include signing on behalf of a company, contracting, or opening a bank account.

Companies that plan to send foreign employees to Mexico for business and work-related purposes should evaluate the overall implications pertaining to other applicable laws, in addition to the immigration laws.

This information is of a general nature and should not be relied upon as legal advice.

Russia

The federal law of July 19, 2018, № 202-FZ, “On amending individual legal acts of the Russian Federation pertaining to easier E visa procedures for foreign citizens on the territory of Russian Federation state border airport checkpoints located in the Far Eastern Federal District,” comes into force on August 19, 2018.

The federal law provides for extending entry and exit E visa procedures to the territory of airport checkpoints located in the Far Eastern Federal District. At the moment, the E visa procedures are valid for entry into the Russian Federation and exit from the Russian Federation only through the following checkpoints across the state border, located on the territory of the Free Port of Vladivostok:

  1. Air checkpoint “Vladivostok (Knevichi)”;
  2. Maritime checkpoints “Vladivostok,” “Zarubino,” “Petropavlovsk-Kamchatsky,” “Korsakov,” and “Posiet”;
  3. Railway checkpoints “Pogranichny,” “Khasan,” and “Makhalino”; and
  4. Road checkpoints “Poltavka” and “Turiy Rog.”

Beginning August 19, 2018, the E visa procedures will be available for entry into the Russian Federation and exit from the Russian Federation at following air checkpoints of the Far Eastern Federal District: Khabarovsk (Novy), Petropavlovsk-Kamchatsky (Yelizovo), Yuzhno-Sakhalinsk (Khomutovo), Blagoveshchensk, and Anadyr (Ugolny).

E Visa Specifics and Application Process

  1. Only citizens of the following countries can obtain an e-visa, the list is set out by the Government of the Russian Federation:

Algeria

Bahrain

Brunei

India

Iran

Qatar

People’s Republic of China

Democratic People’s Republic of Korea

Kuwait

Morocco

Mexico

United Arab Emirates

Oman

Saudi Arabia

Singapore

Tunisia

Turkey

Japan

  1. An E visa is free. Invitations, hotel booking confirmations, or any other documents that confirm the purpose of visit to the Russian Federation are not required for an E visa.
  2. An E visa is valid for entry into the Russian Federation and exit from the Russian Federation only through the checkpoints established by the government of the Russian Federation and located on the territory of the Free Port of Vladivostok and, since August 19, 2018, also in the Far Eastern Federal District.
  3. An E visa is for single entry and is issued for a period of 30 calendar days from the date of issuance. The permitted period of stay in the Russian Federation on an electronic visa is up to 8 calendar days, starting from the date of entry. The validity of the E visa and the permitted period of stay under E visa in Russia cannot be extended.
  4. E visas can only be issued for the following categories:
  • Business (purpose of the visit: business),
  • Tourist (purpose of the visit: tourism),
  • Humanitarian (purpose of the visit: sports, cultural relations, or scientific and technical relations).

If the purpose of the visit does not correspond to any of the above, the visa is issued through diplomatic missions or consular offices of the Russian Federation.

  1. Foreign citizens who have arrived in the Russian Federation on E visas have the right to travel only within the Far Eastern Federal District, with the exception of territories, organizations, and facilities. Special permission to enter the latter is required in accordance with federal laws of the Russian Federation.

Foreign citizens can leave the Russian Federation on E visas only through checkpoints in the territory of the Free Port of Vladivostok and the Far Eastern Federal District.

E visa applications are filed through the website of the Consular Department of the Ministry of Foreign Affairs:

In accordance with paragraph 2 of article 18.8 of the Code of Administrative Violations of the Russian Federation, a violation by a foreign citizen or stateless person of the rules of entry to the Russian Federation or the regime of stay (residence) in the Russian Federation, such as a discrepancy between the declared purpose of the visit to the Russian Federation and the activities actually carried out within the period of stay (residence) in the Russian Federation will result in the imposition of administrative fines in the amount of two thousand to five thousand rubles, with or without deportation.

Legislative Overview

Relevant laws include:

  • Federal law of July 19, 2018, № 202-FZ, “On amending individual legal acts of the Russian Federation pertaining to easier E visa procedures for foreign citizens on the territory of Russian Federation state border airport checkpoints located in the Far Eastern Federal District”
  • Government Decree of May 30, 2017, № 667, “About establishment of the electronic visa procedure specifics and entry into the Russian Federation on the basis of E visas for foreign citizens arriving to the Russian Federation through checkpoints located on the territory of Free Port of Vladivostok, through the air checkpoints located on the territory of the Far Eastern Federal District, and about modification of regulations on the state system of migration and registration, and identity documents’ production, registration and control”
  • Government Order of April 14, 2017, № 692-R, “On the list of countries whose citizens can obtain the single-entry business, tourist, and humanitarian E visas upon arrival in the Russian Federation through the checkpoints of the Free Port of Vladivostok”
  • Resolution of the Government of the Russian Federation of July 19, 2018, № 848, “On amendments to the Government Decree of May 30, 2017, № 667”
  • Code of Administrative Violations of Russian Federation of December 30, 2001, № 195-FZ

Turkey

Although foreign nationals of some countries can enter Turkey visa-free for business visitor purposes, as a general rule, foreign nationals require a visa to enter and remain in Turkey to pursue business activities. This may be either an electronic visa/E visa or occasionally a consular-issued visa. The duration of stay period (generally 30, 60, or 90 days) and the fee for the visa depend on the nationality of the applicant. A more precise list of those nationalities that are visa-free and those that require an E visa or consular visa is available on the website of the Ministry of Foreign Affairs of the Republic of Turkey: http://www.mfa.gov.tr/yabancilarin-tabi-oldugu-vize-rejimi.tr.mfa

Countries whose nationals may visit Turkey visa-free include many European countries such as France, Germany, Greece, and Denmark. The list also includes many neighboring countries such as Iran, Bulgaria, Jordan, Lebanon, Croatia, Azerbaijan, Moldova, and Albania, as well as several Latin American countries. Nationals from many developed countries, such as the United States, Canada, and the United Kingdom, must obtain E visas to enter Turkey.

A foreigner may apply for an E visa at https://www.evisa.gov.tr/en/.

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Country Updates

AUSTRALIA

Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

While certain transitional arrangements remain, the old Subclass 457 Visa in Australia has now been replaced by the Temporary Skills Shortage (TSS) Visa (Subclass 482).

As with the previous 457 process, the TSS visa process consists of three separate applications: the application by the employer to be approved as a sponsor, the nomination, and the visa application. To sponsor an employee, the employer must be approved as a Standard Business Sponsor. Sponsorship approvals may be valid for five years. In certain circumstances, a sponsor may seek accreditation, which may enable future nominations and may expedite visas for that accredited sponsor.

Central to the nomination application has been the establishment of two separate lists of approved occupations: the Short-Term Skills Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL). Visas granted relating to nominations of occupations on the STSOL will only be granted for a two-year period. After the two years, a further and final period of two years may be sought. Where International Trade Obligations apply, a four-year visa may be granted. Visa applications granted relating to nominations for occupations on the MLTSSL may be approved for a four-year period.

Only the holders of TSS visas relating to MLTSSL occupations are entitled to be nominated for an Employer Nomination Subclass 186 Permanent Visa. This provision has caused substantial angst. After criticism, certain revisions of the lists have already taken place and occupations previously on the STSOL have been removed and inserted on the MLTSSL.

Nomination

For a nomination to be approved, the following criteria must be met:

  • It must be made by an approved sponsor;
  • It must relate to an occupation appearing on one of the two lists;
  • There must be no adverse information relating to the business of the sponsor;
  • The position must be genuine and full-time;
  • The sponsor must establish that the salary is a market rate salary; and
  • There must be evidence of labor market testing.

As mentioned above, labor market testing is now required for all 482 visas subject to certain exemptions relating to international trade obligations. At present, under the regulations, the relevant position must have been advertised twice within the last six months for at least 21 days on two separate occasions. Amendments to this provision specifying a one-month period of advertising within the last four months have been passed by the Upper House but not yet implemented.

A further change that has passed the Senate is the introduction of the Skilling Australians Fund, which took effect on August 12, 2018. Under the previous 457 Program, an employer had to demonstrate that it met certain training benchmarks by providing evidence that it had spent the equivalent of 1% of its payroll in training Australian employees. Alternatively, if the employer was unable to establish the 1% requirement, it could pay an amount equivalent to 2% of its payroll to a registered training body to meet this benchmark.

The Skilling Australians Fund legislation replaces the training benchmark provisions with the requirement that, at time of nomination, an employer having a turnover of greater than $10 million pay to the Fund the sum of $1,800 for each year of the TSS visa. For sponsors having a turnover of less than $10 million, the amount is $1,200. The approved amendments also provide for a cap on the contributions payable by a sponsor.

Visa Application

The following are now the requirements for a TSS visa:

  • The visa applicant must be the subject of an approved nomination;
  • In certain circumstances, the visa applicant must have completed a skills assessment;
  • The visa applicant must meet the English language requirement, unless exempted; and
  • The visa applicant must meet health and character requirements.

English language requirement. Applicants who are not subject to an exemption must meet the English language requirement. Note that the English language scores required for those visa applicants applying for occupations appearing on the MLTSSL are higher than those appearing on the STSOL.

Health criteria. The TSS regulations now require medical examinations for all TSS visa applicants.

Character requirements. The TSS regulations now require all TSS visa applicants to provide police clearances. However, visa applicants sponsored by an accredited sponsor are not required to obtain these certificates.

Prior work experience. Both the STSOL and MLTSSL require evidence that the visa applicant has worked in the nominated occupation or a related field for at least two years before filing the application. This provision effectively excludes recent graduates from being sponsored for a TSS visa.

The visa applicant who applies for a STSOL occupation must demonstrate that the application is genuine.

EMPLOYER NOMINATION—SUBCLASS 186 VISA

Below is a brief summary of the requirements for the Subclass 186, Employer Nomination Visa. Certain transitional provisions apply to holders of either a TSS or 457 Visa granted prior to April 2017.

The structure of the Subclass 186 visa is unaffected and still consists of three streams: the Temporary Residence Transition (TRT) Stream; the Direct Entry (DE) Stream, and the Labour Agreements Stream. This brief overview does not discuss the latter.

TRT Stream

The following are the current requirements:

  • The applicant must hold a TSS as a nominee for an occupation appearing on the MLTSSL. Transitional arrangements continue to apply to those visa applicants who were granted visas prior to April 2017.
  • The applicant must have worked for the employer for at least three of the previous four years in the same position for which he or she has been nominated.

Eligibility for All Streams

The applicant must:

  • Have been nominated by an Australian employer within the six months prior to application;
  • Be under 45 years at the date of application;
  • Have the required skills and qualifications at the time of application;
  • Have at the time of application the required English language skills;
  • Meet health and character requirements; and
  • Generally be less than 45 years old at the time of application. However, certain exemptions apply for those applicants applying for an ENS through the Temporary Residence Transition Stream who have been working for the nominating employer as the holder of a TSS or 457 visa for at least three years and who, in each of those years, have received a salary over $142,000.

English language requirements. Applicants, unless exempted, must prove that they have “competent English”.  This means that IELTS Level 6 is required in all 4 categories.  Other English language tests have been approved.

Skills requirements. All applicants must demonstrate at least three years of relevant work experience and, in the case of the Direct Entry Stream, a valid Skills Assessment in the nominated position.

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HONG KONG

This article provides an overview of the acquisition of Chinese nationality in the Hong Kong SAR and related tax issues.

The immigration landscape has evolved a great deal and many wealthy and successful businesspeople in Asia now seek citizenship in a jurisdiction with lenient or no residence requirements for citizenship as a hedge against political uncertainty in their home countries and as an alternative to uprooting themselves to settle in a destination country.

These popular “citizenship by investment” programs include Malta, Cyprus, and a number of countries in the Caribbean, including St. Kitts and Nevis, Grenada, Dominica, Antigua and Barbuda, and St. Lucia.

Although Hong Kong SAR does not have a “citizenship by investment” program and permanent residence requires seven years of continuous “ordinary residence,” for many businesspeople who have established businesses or settled in Hong Kong or who have been on extended employment assignments there, the acquisition of Hong Kong permanent residence or “right of abode” and Chinese nationality have become increasingly attractive options.

With its proximity to China and its low-tax regime, Hong Kong is a strategic gateway into business opportunities in mainland China. In addition to its well-established infrastructure, Hong Kong has a simple and low tax regime. It has no capital gains tax, no tax on dividends and interest income, no sales tax, and no estate tax. Assessable profits of corporations is at 16.5% while the standard salaries tax, at 15%, is among the lowest in the world.

This has made Hong Kong a top location for commerce, investment, and trade. Moreover, Hong Kong is a common-law jurisdiction. These characteristics have consistently attracted multinationals to set up Asia Pacific regional headquarters in Hong Kong, and foreign expatriates around the world have been drawn to work in Hong Kong and to take part in growing economic opportunities in Asia, including global talent in the areas of finance, banking, marketing, information technology, telecommunications, and management.

Some of these executives and businesspeople are native-born Americans while others are skilled professionals originally from Taiwan, mainland China, Korea, and India who settled in the United States after studies there and became naturalized U.S. citizens and then were assigned by their multinational employers to work in Hong Kong.

As Hong Kong only taxes its residents on salaries and profits from a Hong Kong source, while the United States taxes its citizens on a worldwide basis, some Americans are taking a hard look at the costs and benefits of keeping their U.S. citizenship and contemplating acquiring another nationality should they decide to relinquish their U.S. citizenship.

Under Article 7 of the Chinese Nationality Law, a foreign national or a stateless person who is willing to abide by China’s Constitution and Laws may apply for naturalization as a Chinese national if:

  • They have near relatives who are Chinese nationals;
  • They have settled in China; or
  • For other legitimate reasons.

Under Article 18, Annex III to the Basic Law of the Hong Kong SAR of the People’s Republic of China, the Nationality Law of the People’s Republic of China applies in the Hong Kong SAR effective July 1, 1997.

Under Cap 540 S 3, the Chinese Nationality (Miscellaneous Provisions) Ordinance, nationality applications in the Hong Kong SAR are filed with the Immigration Department of the Hong Kong SAR (Hong Kong Immigration Department).

Factors Considered in the Application for Naturalization

There are many factors considered in an application for naturalization, and each application will be considered on its own merits. These factors include whether:

  • The applicant has a near relative who is a Chinese national with the right of abode in Hong Kong;
  • The applicant has the right of abode in Hong Kong;
  • The applicant’s habitual residence is in Hong Kong;
  • The principal members of the applicant’s family (spouse and minor children) are in Hong Kong;
  • The applicant has a reasonable income to support himself and his family;
  • The applicant has paid taxes in accordance with the law;
  • The applicant is of good character and sound mind;
  • The applicant has sufficient knowledge of the Chinese language;
  • The applicant intends to continue to live in Hong Kong once the naturalization application is approved;
  • There are other legitimate reasons to support the application.

The Hong Kong Immigration Department has a great deal of discretion in adjudicating naturalization cases, with emphasis given to different factors at different points in time based on policy and security considerations.

Under Cap 540 S 5 of the Chinese Nationality Law (Miscellaneous Provisions) Ordinance, the discretionary decision of the Director of Immigration in naturalization applications is not subject to appeal to, or review in, any court, and there is no requirement for the Director to assign any reason for the decision, but the discretion is to be exercised without regard to the race, color, or religion of any person who may be affected by its exercise.

A successful applicant is granted a certificate of naturalization on payment of the prescribed fee. The Director of Immigration may cancel the certificate of naturalization if the Director is satisfied on reasonable grounds that the certificate was obtained by fraud, false representation, or the concealment of any material facts.

In 1997, when Hong Kong first reverted to the People’s Republic of China, it was virtually impossible for a foreigner to acquire Chinese nationality unless the applicant had a Chinese spouse and had Chinese language proficiency. Now, however, many foreign nationals successfully naturalize even if they do not have close relatives who are Chinese nationals and lack Chinese language proficiency, especially if they are highly educated senior business executives who pay substantial taxes in Hong Kong or entrepreneurs who have shown their commitment to Hong Kong and have been permanently settled for many years there and are of benefit to and an asset to the Hong Kong community.

Dual Nationality Not Recognized

The present processing time for a naturalization application filed at the Hong Kong Immigration Department is about 10 to 12 months. A case can only be “approved in principle,” subject to the applicant furnishing proof that he or she has renounced his or her present nationality. This is because Article 3 of the Nationality Law of the People’s Republic of China provides that dual nationality is not recognized for any Chinese national. More to that point, Article 8 of the Nationality Law states that any person who applies for naturalization whose application has been approved shall not retain foreign nationality. Thus, a successful applicant for naturalization as a Chinese national must renounce his or her present nationality before he or she can become a Chinese national. This is so even if the successful applicant’s present country of nationality permits and recognizes dual nationality.

Some U.S. citizens who originally had Chinese nationality and the right of abode in Hong Kong made a “Declaration of Change of Nationality” with the Hong Kong Immigration Department when they returned to Hong Kong in order to be treated as foreign nationals in the Hong Kong SAR for the purpose of consular protection.

Such persons, after the declaration of change of nationality has been approved by the Hong Kong Immigration Department, may continue to enjoy the right of abode in Hong Kong so long as they had such a right before July 1, 1997, or they return to settle in Hong Kong within 18 months from July 1, 1997, or on the date they return to settle in Hong Kong have not immediately before that date been absent from Hong Kong for a continuous period of more than 36 months. They are, however, no longer entitled to Hong Kong SAR passports as such passports are only issued to Chinese nationals with the right of abode in Hong Kong.

A successful U.S. citizen applicant for Chinese nationality must renounce his or her U.S. nationality pursuant to Section 349(a)(5) of the Immigration & Nationality Act, 8 USC § 1481(a)(5), before a Certificate of Naturalization as a Chinese national and a Hong Kong SAR passport can be issued.

At one time, the U.S. consulate in Hong Kong refused to permit U.S. citizens to renounce their nationality because they would be rendered stateless if they did not have another nationality. Thus, prospective renunciants were required to present the passport of another country before their applications for renunciation would be processed.

Upon clarification with the U.S. Department of State’s Office of Policy Review and Interagency Liaison Office of the Overseas Citizenship Division (now renamed the Office of Legal Affairs of the Overseas Citizen Services), the Director opined that an individual’s resulting statelessness will not, in and of itself, necessarily preclude the approval of the renunciant’s Certificate of Loss of Nationality. However, the Department will take note of that status in determining whether or not the individual has manifested the requisite intention to relinquish his or her citizenship. It thus seems clear that a U.S. citizen may proceed with renouncing his or her U.S. citizenship before being granted naturalization by his or her new country of nationality.

There is also judicial and administrative precedent to support the position that statelessness will not preclude a person from the legal right to renounce citizenship. In Davis v. District Director, 481 F. Supp. 1178 (DDC 1979), the U.S. District Court for the District of Columbia held that a U.S. citizen can renounce citizenship without acquiring another nationality even if the expatriation results in statelessness.

Furthermore, in Matter of Davis, 16 I&N Dec. 514 (BIA 1978), the Board of Immigration Appeals pointed out that even the United Nations Convention on the Reduction of Statelessness (to which the U.S. is not a signatory) allows for the voluntary renunciation of citizenship with resulting statelessness if the renunciant gives “definite evidence of his determination to repudiate his allegiance.”

The right to renounce despite being rendered stateless is now clearly stated in 7 FAM 1215e, which states, “We will accept and approve renunciations of persons who do not already possess another nationality.”

For foreign nationals who have acquired the right of abode in Hong Kong, naturalization as a Chinese national may be an attractive option, as, under the “One Country, Two Systems” formula, Hong Kong has a totally different tax regime from China, and Chinese nationals who hold the right of abode in Hong Kong are entitled to a Hong Kong SAR passport, which, unlike a People’s Republic of China passport with extremely limited visa-free privileges, accords the bearer visa-free or visa-on-arrival privileges to some 147 countries and territories.

In an increasingly globalized world, many naturalized or natural-born U.S. citizens who are permanent residents in Hong Kong and who have developed very successful careers in Asia have discovered that for them, it makes sense to give up their U.S. citizenship and to become naturalized Chinese citizens in Hong Kong and to obtain Hong Kong SAR passports.

In calendar year 2017, a total of 1,534 applications for naturalization as Chinese nationals were received by the Hong Kong Immigration Department. See https://www.immd.gov.hk/eng/facts/naturalisation-nationality.html.

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ITALY

Italy has implemented a new directive on the conditions of entry and residence of third-country nationals for certain purposes. There are new rules for non-EU/EEA students and researchers.

By means of legislative decree 11 May 2018, n. 71 (date of entry into force July 5, 2018), Italy has implemented Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes, educational projects, and au pairing.

In accordance with the directive, the new regulations provide for enhanced mobility rights for researchers and students and introduce the possibility for researchers to remain in Italy after the completion of a research program for the purpose of finding a job or setting up a business.

Below is an overview of the main features of the new regulations:

  • Students holding a valid permit issued by a European Union (EU) Member State, covered by mobility programs/agreements, can enter and stay in Italy for a period of up to 360 days to carry out part of their studies, with no need to apply for a residence permit;
  • Upon completion of the research program, researchers may apply for a permit for the purpose of job-searching or entrepreneurship, valid up to 12 months. Such a permit can be converted into a permit for work;
  • There are shorter processing times for entry clearance, visas, and permits for researchers;
  • Researchers (and their family members) holding a valid permit issued by one EU Member State can stay in Italy to carry out part of the research for a period of up to 180 days in any 360-day period, with no need to apply for a residence permit (short-term mobility). For stays longer than 180 days in any 360-day period, the normal procedure applies and researchers will receive a residence permit with the wording “researcher-mobility” (long-term mobility).

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RUSSIA

A new federal law changes the rules for address registrations of foreign nationals and stateless persons in the Russian Federation.

In accordance with the Federal Law of June 27, 2018, N 163-FZ, “On amendments to the Federal Law ‘On address registration of foreign nationals and stateless persons in the Russian Federation,’ ” as of July 8, 2018, the rules for address registrations of foreign nationals and stateless persons in the Russian Federation are changing.

The Federal Law of June 27, 2018, was developed to execute the resolution of the Constitutional Court of the Russian Federation of July 19, 2017, № 22-P. This resolution:

  1. Clarifies the definition of “place of stay” of a foreign national or stateless person in the Russian Federation and the definition of “host party” for the foreign national or stateless person in the Russian Federation; and
  2. Sets out article 21 of the Federal Law in the new edition, fixing the list of places of stay that can be used for address registration for foreign nationals and stateless persons in the Russian Federation.

Place of stay of a foreign national or stateless person in the Russian Federation means the residential or other premises in which a foreign national or stateless person actually lives (regularly uses for sleep and rest);

Host party for the foreign national or a stateless person in the Russian Federation means a Russian national, foreign national, or stateless person permanently residing in the Russian Federation (i.e., having a residence permit in the Russian Federation); a legal entity; a branch; or a representative office of a legal entity. The foreign national or stateless person must use the residential or other premises for actual residence.

According to the adopted changes, legal entities will not be able to act as a host party and issue the address registration at the company’s office address (except when a foreign employee actually lives at the employer’s address or at the employer’s premises that do not have registered address data).

HQS employees can be considered as a host party with respect to their family members, if they own the residential premises in the territory of the Russian Federation and use them for an actual residence.

Address registration should be carried out at the address of the actual residence of a foreign national or stateless person in the territory of the Russian Federation by the owner of the residential premises (e.g., house, apartment, room), except in cases fixed by the Federal Law (e.g., staying in a hotel or in another organization providing hotel services, sanatorium, holiday house, or staying in a social services organization or in an institution that performs administrative punishment).

Currently, VFBS clarifies the law enforcement practice regarding:

  • The procedure for foreign national address registration if the foreign national resides in the apartment rented for an employee by the employer;
  • The possibility of foreign national address registration at the place of residence on the basis of a power of attorney issued by the owner of the residential premises (if the owner for any reason is not able to fulfill the obligations of address registration and visit the immigration authority in person); and
  • The possibility of foreign national address registration if the foreign national owns the apartment and actually lives there, but does not have a permanent residence permit in the territory of the Russian Federation.

The territorial immigration authorities in Moscow may have different requirements with respect to the documents required to be provided for address registration as of July 8, 2018, which may be clarified on a case-by-case basis.

Address registration is carried out at the address of the actual residence of a foreign national in the territory of the Russian Federation (apartment or hotel).

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UNITED KINGDOM

This article discusses next steps for the “Windrush Generation”; details of the Brexit settlement scheme, including a toolkit for employers; and good news for employers of Tier 2 migrants: the easing of pressure on the Tier 2 cap.

What Now for the Windrush Generation?

The United Kingdom (UK) government’s “hostile environment” policy was introduced in 2014 with the intention of identifying migrants in the UK without immigration permission with the ultimate purpose of removing those deemed to be without lawful status from the UK. This was achieved by restricting access to employment, housing, and vital public services such as health care, as well as detaining individuals who could not provide evidence of their immigration status. Unfortunately, it had a wider impact on those who were lawfully in the UK but had not previously been required to hold documentary evidence. One such group was the “Windrush Generation”—Commonwealth citizens who arrived in the UK before 1973 and who were given indefinite permission to reside in the UK by virtue of the Immigration Act 1971. Many came from the Caribbean in 1948 on a ship called the “Empire Windrush,” and more came in subsequent years. They did not need a document to prove their status; their initial date of entry was deemed to be sufficient. Children born in the UK to Windrush parents were also automatically born British.

There are reports of a number of individuals being wrongfully caught by the hostile environment policy by, for example, being prevented from returning to the UK following overseas travel, facing bankruptcy and destitution as a result of losing jobs and access to benefits, or having their housing taken away.

Following media pressure, the government committed to “swiftly put right the wrongs that have been done.” A new task force has handled more than 13,000 queries to date and guidance has been published for affected individuals. Concessions have been made for those who wish to naturalize as British citizens. Application fees have been waived for confirmation of immigration or nationality status.

In terms of the hostile environment policies, guidance for employers and landlords has been updated to deal with undocumented Commonwealth citizens. The government has also suspended a series of other policies, including checks on bank accounts and data-sharing with the revenue and customs, driver and vehicle licensing, and work and pensions agencies. A compensation scheme designed to help those wrongfully affected is to be set up shortly.

While it seems that much has been done to help those affected by the hostile policies, the government’s response was unacceptably slow after much of the damage had been caused. Not only should lessons be learned from this, but the system as a whole needs to be reviewed seriously, with transparency and public consultation, if the government wants to stop this from happening again.

Brexit Update: Further Details of the Settlement Scheme Announced

On June 21, 2018, the UK government published a Statement of Intent outlining details of the new European Union (EU) Settlement Scheme. Under the Scheme, EU citizens and their family members resident in the UK before December 31, 2020, will be able to apply for UK immigration status. The new application will be rolled out in phases starting in late 2018 and will be subject to an initial private beta test phase commencing shortly. The Scheme will be fully open by March 30, 2019.

The Scheme encompasses two new application types, which will be added to the Immigration Rules:

  • A pre-settlement application where limited leave to remain will be granted for up to five years; and
  • A settlement application where indefinite leave to remain (ILR) will be granted once an applicant can demonstrate continuous residence in the UK for five years.

The main criteria for eligibility under the Scheme will be continuous residence in the UK, which means that applicants will not be required to show they meet all the requirements of the current free movement rules, such as any requirement to have held Comprehensive Sickness Insurance or generally to detail the exercise of specific rights (e.g., the right to work) under EU law.

What does continuous residence mean?

  • For those who have resided in the UK for less than five years, it means they must not have been absent from the UK for more than six months in any 12-month period. Up to 12 months’ absence is permitted for exceptional reasons such us pregnancy, childbirth, ill health, study, or vocational training;
  • For those who have resided in the UK for five years, they must not have been absent from the UK for five years or more since completing the five-year period;
  • EU nationals who are temporarily absent from the UK on December 31, 2020, will still be considered residents for the purposes of the Scheme, provided they can meet the continuous residence criteria.

Eligibility for ILR after less than five years

Some people will be eligible for ILR after less than five years’ residence, including:

  • Those who have worked in the UK for at least three years and subsequently left to work in another EU Member State and have maintained a place of residence in the UK, to which they return at least once a week;
  • Those who have worked prior to retirement for at least 12 months and have resided in the UK for at least the last three years;
  • Those who have stopped work due to incapacity, having been continuously resident for more than the previous two years;
  • Bereaved family members of an EU citizen who had been resident in the UK as a worker or self-employed at the time of death, provided the EU citizen was continuously resident in the UK for at least two years before their death (unless their death was the result of a work-related incident) and the family member was resident in the UK with the EU citizen immediately before their death and is continuously resident in the UK;
  • Children under 21 who are continuously resident in the UK, provided their EU parent is being granted ILR.

Requirements for a valid application under the Scheme

The application must:

  • Be filed in the UK using the required digital application process;
  • Include payment of a fee of £65 or £32.50 for children under 16;
  • Include proof of identity and nationality: EU citizens must provide a valid passport or national identity document, and non-EU family members must provide either a valid passport, biometric residence card, or Biometric Residence Permit (BRP). Alternative evidence is acceptable in compelling or compassionate circumstances;
  • Include submission (“enrolment”) of a facial image via the uploading of a new passport photo (not previously used in a passport). Non-EU family members who do not have a BRP must attend an application center in the UK to submit (“enrol”) their fingerprints and facial image.

How will the application process work?

  • There will be an online application form, which will be short, simple, and user-friendly;
  • Where possible, the application process will help the applicant establish continuous residence, and whether or not it amounts to five years, by using data held by HMRC and later, by the DWP;
  • If the applicant can demonstrate five years’ continuous residence, then, subject to criminal and security checks, the applicant will be granted ILR;
  • For those who have previously been issued a document certifying permanent residence (PR), they can exchange this free of charge for ILR under the Scheme, subject only to criminal and security checks and to confirm that their status has not lapsed due to absence from the UK for more than five years;
  • Where automatic checks do not indicate the EU citizen has been continuously resident for five years, or has been continuously resident for less than five years, applicants can upload documentary evidence of their continuous residence (or evidence they are in one of the categories eligible for ILR with less than five years of continuous residence). Where appropriate, they will be granted ILR, subject to criminal and security checks;
  • Otherwise, applicants will be granted limited leave to remain for up to five years;
  • Non-EU family members not previously issued PR will also have access to the automated process and, where necessary, documents can be uploaded by the applicant. They will also need evidence of their relationship to the EU family member for the relevant period and evidence of that person’s continuous residence in the UK during that period;
  • Evidence of status will be given in digital form and no physical document will be issued. Non-EU family members will have both a digital means of evidencing their status, plus a BRP, where they do not already hold a BRP;
  • EU citizens granted either limited leave to remain or ILR will be able to be joined by close family members resident overseas at the end of the transitional period (December 31, 2020), if the relationship existed at that date and it continues when that person wishes to come to the UK.

Those who still wish to apply for PR under the EU provisions may continue to do so at this time.

On May 25, 2018, in its response to the Home Affairs Select Committee’s report on the Home Office delivery of Brexit, the UK government provided further clarification with respect to the rights of EU citizens after Brexit.

Specifically it has confirmed:

  • As previously advised, a new EU Exit Settlement Scheme will be launched by the end of 2018. Under the Scheme, EU applicants and their family members who have lawfully resided in the UK for at least five years will be granted ILR. The government had previously described it as a “new settled status” and it was surprising that the government has opted to describe the new status as ILR, given that it will be a significantly enhanced version of the ILR currently granted to non-EU nationals;
  • An example of one of the enhancements is that ILR granted under the Scheme will lapse after five years’ absence from the UK, not the usual two;
  • A further example is that this ILR status, granted under UK law, will sit alongside free movement rights before exit and for the duration of the transition period;
  • The full enjoyment of free movement rights include the ability to have direct family members join EU nationals in the UK, without having to show that they meet the domestic British Immigration Rules;
  • For those EU citizens who have already acquired PR and since left the UK, provided they have retained their PR status by returning to the UK at least every two years, they may apply for the new settled status (ILR) if they return to take up residence in the UK at any point prior to the end of the transitional period (December 30, 2020);
  • Any applicant whose application for ILR is initially rejected will have the right to appeal the decision and may re-apply at any time before June 30, 2021;
  • EU citizens living in the UK as students or self-sufficient people will not have to prove that they have held Comprehensive Sickness Insurance (CSI) to qualify for ILR. However, the government has clarified that any EU citizen traveling to the UK during the transition period and who is not ordinarily resident in the UK will continue not to be eligible for National Health Service-funded care and will need to have the necessary CSI, such as a European Health Insurance Card or an SI form.

Toolkit for Employers on EU Settlement Scheme

On July 25, 2018, the Home Office published a toolkit for employers on the EU Settlement Scheme. This consists of a number of useful documents that provide details about the proposed roll-out of the new digital EU settlement scheme application process, the timing of the roll-out, and how employees and their family members may qualify under the Scheme. The documents are designed to be shared by employers with all appropriate stakeholders, including human resources staff, line managers of EU citizen employees, and EU citizen employees.

The toolkit is at https://www.gov.uk/government/publications/eu-settlement-scheme-employer-toolkit.

Good News for Employers of Tier 2 Migrants: Easing of Pressure on the Tier 2 Cap

After considerable lobbying by the health minister Jeremy Hunt and other ministers, the UK Home Secretary recently announced changes to the Immigration Rules, which include measures to ease pressure on the Tier 2 visa cap. The main change is that all NHS doctors and nurses will no longer be subject to the restrictive Tier 2 visa cap, thus freeing up the visas to be taken up by employers in other business sectors, as of July 6, 2018.

These NHS staff will be able to apply for the unrestricted Tier 2 visas, which will enable the health sector to fill the many vacant positions, while employers in other sectors will see the benefit of additional visa availability in restrictive certificate-of-sponsorship allocations.

This is very welcome news as the Tier 2 cap salary threshold has peaked as high as £60,000 during the past six months, preventing many employers from securing Tier 2 visas for their staff earning less. There is a severe recruitment crisis being experienced by employers in many sectors—particularly lower-salary sectors including engineering, IT, and architecture—that have not been able to secure Tier 2 visas for their staff.

Not to downplay the significance of this announcement, although this change will ease the pressure on the cap, it will only partially improve the availability of restricted Tier 2 visas because the overall cap of 20,700 visas per annum will remain in place. Given the level of oversubscription each month since the cap was first reached last December, it is likely that the monthly quota will still be oversubscribed, but by not as much. So although the minimum salary to qualify for a Tier 2 restrictive visa will fall with the removal of NHS staff from the quota, there will still be significant numbers of higher earners applying for these visas and thus using up the monthly quota.

Previously, some of these higher earners would have been doctors, so their removal from the cap would free up visas for other employers to use, but many doctors reportedly failed to secure a visa because their role was not on the shortage occupation list and did not attract a salary in excess of around £55,000 (on the other hand, nurses and a handful of other medical occupations are on the shortage occupation list; such roles would have qualified for a visa due to the additional points awarded for shortage occupation roles). So the numbers of nurses, shortage occupation doctors, and higher-salaried doctors who were previously receiving the visas will determine how many extra visas will be available.

The government has said that there will effectively be 8,000 more of these visas available each year, but we will have to await data on visa allocation decisions to find out what the minimum salary will be to qualify. It will vary each month as the monthly quota of these visas varies throughout the year, with more being available during the peak recruitment season over the summer.

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Firm in the News

Cyrus Mehta was recognized by Who’s Who Legal: Thought Leaders 2018 as among the most highly regarded Thought Leaders in North America in Corporate Immigration Law.  See at http://whoswholegal.com/practiceareas/152/edition/5318/Thought%20Leaders/#lawyers

Cyrus Mehta was included in Chambers and Partners USA as among the Band 1 Ranked Lawyers Nationwide in Immigration.  See at:  https://www.chambersandpartners.com/12788/31/editorial/5/1

According to Chambers and Partners USA:

Cyrus Mehta has attained a stellar reputation for his expertise in business and family immigration matters, naturalization issues and asylum claims. Fellow practitioners recommend him as “one of the brightest immigration lawyers in the country,” describing him as “a creative thinker in immigration law.”

Cyrus Mehta, David Isaacson and Cora-Ann Pestaina were included in Chambers and Partners USA as among the top Ranked Immigration Lawyers in New York.  See at:  https://www.chambersandpartners.com/12806/31/editorial/5/1

Cyrus D. Mehta & Partners, PLLC was listed in Chambers and Partners USA as among the leading Immigration Firms in New York.  See at:  https://www.chambersandpartners.com/12806/31/editorial/5/1

Cyrus Mehta was quoted by the BBC in “Travel Ban: Trump Hails ‘Tremendous’ Supreme Court Ruling.” Mr. Mehta said the majority opinion “gave in to President Trump’s hate and bigotry and will be viewed as a blemish.” The article is at https://www.bbc.com/news/world-us-canada-44619976.

Mr. Mehta participated in a show on TV Asia, “Skilled Immigrants: To Stay or Not?,” that highlights the plight of skilled immigrants and their families caught in green card backlogs. The show is available at https://bit.ly/2ufcx7T.

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Mid-August 2018 Immigration Update

Headlines:

Controversial DHS Draft Rule Proposes Changes to Public Charge Definition – A controversial Department of Homeland Security (DHS) draft rule leaked to the media would make more immigrants inadmissible or deportable for receiving public benefits.

EB-1 Green Cards Backlogged Worldwide – The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019.

USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors – Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

Firm in the News…

Details:

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Controversial DHS Draft Rule Proposes Changes to Public Charge Definition

A controversial Department of Homeland Security (DHS) draft proposed rule leaked to the media would make it more difficult for legal immigrants who have received public benefits to become U.S. citizens or permanent residents. Immigrants and their immediate family members, including U.S. citizen children, would be included. Currently, immigrants who are likely to become a burden on the government can already be excluded, but the draft rule would expand the definition of impermissible public benefits to include programs like certain Affordable Care Act subsidies, SNAP (formerly Food Stamps), subsidized benefits under Medicaid, and the Children’s Health Insurance Program.

Also included in the draft rule is a proposal to amend the extension of stay and change of status regulations to allow U.S. Citizenship and Immigration Services (USCIS) to consider whether an applicant is using or receiving, or likely to use or receive, public benefits. If implemented, the rule could affect an estimated 20 million immigrants.

The draft rule states that one of the principal problems with the current definition of public charge is that it tests whether the noncitizen is “primarily dependent on the government.” “Primary dependence entails a finding that an applicant for admission or adjustment of status is 50 percent or more dependent on the government. DHS does not believe that an alien must be 50 percent or more dependent on the government to be considered a public charge,” the draft rule notes. DHS is also proposing to define “public “benefit as “any government assistance in the form of cash, checks or other forms of money transfers, or instruments and non-cash government assistance in the form of aid, services, or other relief, that is means-tested or intended to help the individual meet basic living requirements such as housing, food, utilities, or medical care. This includes certain non-cash as well as cash public assistance.”

The draft rule also proposes to codify the “totality of the circumstances” standard used in making public charge determinations. DHS’s proposed standard would involve weighing all the positive and negative considerations related to a person’s “age, health, family status, assets and resources, financial status, education and skills, any required affidavit of support, and any other factor or circumstance that may warrant consideration in the determination.” DHS would also consider the noncitizen’s immigration status as part of this determination. The draft rule proposes that certain factors and circumstances would carry heavy weight. Otherwise, the weight given to an individual factor would depend on the particular facts and circumstances of each case and the relationship of the factor to other factors in the analysis. “For negative factors, some facts and circumstances may be mitigating while other facts and circumstances may be aggravating. Any factor or circumstance that decreases the likelihood of an applicant becoming dependent on public benefits is mitigating. Similarly, any factor or circumstance that increases the likelihood of an applicant becoming dependent on public benefits is aggravating,” the draft rule states.

The draft rule also would propose that USCIS consider a past request or receipt of a fee waiver as part of the financial status factor: “Requesting or receiving a fee waiver for an immigration benefit suggests a weak financial status. In general, a fee waiver is granted based on an alien’s inability to pay the fee. An inability to pay a fee for an immigration benefit suggests an inability to be self-sufficient,” the draft rule states.

The draft rule notes that some immigrant and nonimmigrant immigrant categories are exempt from public charge inadmissibility. According to the draft, DHS plans to propose listing these categories in the regulation. In addition, DHS proposes to list in the regulation the applicants whom the law allows to apply for a waiver of the public charge inadmissibility ground. DHS also proposes to exclude certain public benefits, such as public education, from consideration for purposes of this draft rule.

“Heavily weighted negative factors” under the draft rule would include a lack of employability; receipt or use of one or more public benefits; medical condition(s) without non-subsidized health insurance; a previous finding of inadmissibility or deportability based on public charge. Heavily weighted positive factors include significant income, assets, and resources. “DHS proposes to consider it a heavily weighted positive factor if the alien has financial assets, resources, support, or annual income of at least 250 percent of the [federal poverty guidelines].” Benefits excluded from consideration would include Federal Old-Age, Survivors, and Disability Insurance benefits; veterans’ benefits; government pension benefits, government employee health insurance; government employee transportation benefits; unemployment and worker’s compensation; Medicare benefits (“unless the premiums are partially or fully paid by a government agency); state disability insurance; in-state college tuition; government student loans; and small amounts of public benefits as defined in the draft rule.

The draft rule lists several categories of noncitizens who are exempt from admissibility based on public charge considerations, including refugees and asylees; Amerasian immigrants; Afghan and Iraqi Special Immigrants serving as translators with the U.S. Armed Forces; those applying for adjustment of status under the Cuban Adjustment Act; those adjusting status under certain sections of the Nicaraguan Adjustment and Central American Relief Act; and Haitians adjusting status under the Haitian Refugee Immigration Fairness Act.

The categories and programs could change under any final rule. Any changes would come out first as a proposed rule with time for comments, and it could be a year or longer before any new rule is finalized. Moreover, any final rule could be subject to litigation.

The Alliance of Business Immigration Lawyers recommends that immigrants comply with current rules in the meantime. For example, it appears that California residents are required to sign up for the Affordable Care Act. Even if that were to change under a final rule, they should comply with today’s rules.

The draft rule, which has not yet been published in the Federal Register, is available at https://assets.documentcloud.org/documents/4413837/Read-the-Trump-administration-s-draft-proposal.pdf.

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EB-1 Green Cards Backlogged Worldwide

The Department of State (DOS) announced recently that the worldwide limits on the highest-preference green cards, EB-1s, was reached for the fiscal year.

The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019. While the EB-1 backlog for Indian and Chinese nationals was already expected to last well beyond October, earlier comments from the DOS Visa Control and Reporting Division suggested that the EB-1 worldwide backlog was likely to clear in October with the arrival of the new fiscal year. However, USCIS is now creating demand for visas by prioritizing EB-1 green cards for in-person interviews, and the backlog is not expected to clear for several months.

The final action date for EB-1 worldwide (except for India and China) is expected to be cut off at or before September 30, 2018, and stay there through at least December. The final action date indicates the priority date at which new applications for permanent resident status will no longer be accepted and at which existing applications will cease to move forward through processing.

An October 2018 final action date would give petitioners who file their I-140s between now and the end of September an advantage—provided they are not Indian or Chinese nationals—because they would be able to proceed with filing their applications for permanent resident status if EB-1 does indeed move forward in the new fiscal year.

A number of factors appear to be influencing this ongoing backlog, including the requirement that all employment-based green card applicants must undergo a personal interview at the nearest USCIS District Office. As applicants queue up for interviews with no certain outcome, it muddies the waters by which the DOS judges visa availability for its monthly assessment.

The Visa Bulletin for September notes:

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

The implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY-2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

The Visa Bulletin also provides the following information on potential monthly movement in the employment-based categories for the next few months:

Employment First:

WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.

Employment Second:

Worldwide: Current for the foreseeable future.

China: Slow movement pending receipt of demand from recent advances

India: Up to two weeks

Employment Third:

Worldwide: Current

China: Up to three weeks

India: Slow movement pending receipt of demand from recent advances

Mexico: Current

Philippines: Minimal

Employment Fourth: Current for most countries

El Salvador, Guatemala, and Honduras: Little, if any forward movement

Mexico: Up to three months

Employment Fifth: The category will remain “Current” for most countries

China-mainland born: Up to one week

Vietnam: Steady forward movement

The above final action date projections…indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

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

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USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence after considering feedback received during a 30-day public comment period. Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending, USCIS said.

On May 10, 2018, USCIS posted a draft policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised memo supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

“As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories,” said Director L. Francis Cissna. “USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws. People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”

USCIS noted that on August 7, 2018, the Department of Homeland Security released the FY 2017 Entry/Exit Overstay Report. The estimated total overstay rates were lower in FY 2017 for F and J nonimmigrants, but the F, M, and J categories continue to have significantly higher overstay rates than other nonimmigrant visa categories, USCIS noted, “supporting the need to address the calculation of unlawful presence for this population.” For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student “has not been out of status for more than five months at the time of filing,” USCIS said. Under the revised memo, the accrual of unlawful presence “is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.”

USCIS noted that “if the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act.” Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Some immigration attorneys believe the revision to the policy is insufficient, especially for those students who may have violated their status earlier. Other potential stumbling blocks may include errors by USCIS or an educational entity entering information into the SEVIS system inaccurately, or students in optional practical training who may be found to have violated status if their training is later found inconsistent with their degrees or who worked at third-party sites that inadequately supervised them.

USCIS plans to hold a national stakeholder engagement regarding this policy memo on August 23, 2018. To receive an invitation to this engagement, submit your email address at https://public.govdelivery.com/accounts/USDHSCISINVITE/subscriber/new?preferences=true.

The USCIS announcement is at https://www.uscis.gov/news/uscis-issues-revised-final-guidance-unlawful-presence-students-and-exchange-visitors. The revised memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf. Additional information on the revised memo is also available at https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissibility.

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Firm in the News

Cyrus Mehta was quoted extensively by the Times of India in “Tough Policy for International Students in U.S.” The article is at https://m.timesofindia.com/india/tough-policy-for-international-students-in-us/amp_articleshow/65360658.cms.

Mr. Mehta has authored a new blog entry. “USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants in Great Jeopardy” is at https://bit.ly/2PbVxJA.

Sophia Genovese has authored a new blog entry. “Indirect Refoulement: Why the U.S. Cannot Create a Safe Third Country Agreement with Mexico” is at https://bit.ly/2P7QJou.

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August 2018 Immigration Update

Headlines:

State Dept. Announces Oversubscription of August Employment-Based Preference Categories, Limits on Special Immigrant Translator Visa Availability – The Department of State’s Visa Bulletin for the month of August 2018 includes announcements about employment visa availability.

USCIS Postpones Implementation of Memorandum on Notices to Appear – USCIS announced that issuance of operational guidance is pending for its recent memorandum on notices to appear; therefore, implementation of the memorandum is postponed until the operational guidance is issued.

New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, Will Require E-Verify Participation – CW-1 employers must pay a mandatory $50 “fraud prevention and detection” fee with each petition, in addition to other current fees.

CBP Announces Inspection Changes for CW Visa Holders Arriving in GuamCNMI-Only Transitional Worker (CW) visa holders may be admitted in Guam when in transit to the Northern Mariana Islands.

DHS Extends TPS Designation for Somalia for 18 Months – DHS has extended the temporary protected status designation for Somalia through March 17, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Office of Foreign Labor Certification Releases Foreign Labor Recruiter List – OFLC said that providing the list enables the agency to “be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes, because they will be able to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.”

ICE Announces Arrests, Charges in New York, BostonICE arrested 65 people for violating U.S. immigration laws during a five-day period ending July 20, 2018, in New York City and on Long Island. In Boston, 25 people were charged as a result of an ICE probe targeting document and benefit fraud.

Trump Threatens Immigration-Related Shutdown Ahead of Midterm Elections – According to reports, Republicans are concerned that this may mean President Trump intends to veto any spending bill that doesn’t include everything he wants, passed by Congress to continue government functions past the end of September, when the government runs out of money.

United Kingdom – What now for the Windrush Generation?

Firm in the News

Details:

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State Dept. Announces Oversubscription of August Employment-Based Preference Categories, Limits on Special Immigrant Translator Visa Availability

The Department of State’s Visa Bulletin for the month of August 2018 includes the following announcement:

OVERSUBSCRIPTION OF AUGUST EMPLOYMENT-BASED PREFERENCE CATEGORIES

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED FIRST (E1) PREFERENCE: As readers were advised in item F of the July Visa Bulletin, there continues to be an extremely high rate of demand for E1 numbers, primarily for USCIS adjustment of status applicants. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose an E1 Final Action Date for the month of August, with this date being imposed immediately. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

INDIA Employment-based Fourth (E4) AND Certain Religious Workers (SR) preference categories: There has been extremely high demand in these preference categories. Pursuant to the Immigration and Nationality Act, it has been necessary to impose E4 and SR Final Action Dates for India, which has reached its per-country limit. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

The implementation of the above mentioned dates will only be temporary, with the dates returning to Current status for October, the first month of fiscal year 2019.

The bulletin also includes this update on special immigrant translator visa availability:

Given the limited availability of visa numbers and the existing demand, the Department 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 an August Final Action Date of April 22, 2012. 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.

The bulletin for August 2018 is at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-august-2018.html.

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USCIS Postpones Implementation of Memorandum on Notices to Appear

U.S. Citizenship and Immigration Services (USCIS) announced on July 30, 2018, that issuance of operational guidance is pending for its recent memorandum on notices to appear (NTAs); therefore the implementation of the memorandum is postponed until the operational guidance is issued.

Policy Memorandum 602-0050.1, “Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” was issued on June 28, 2018, and instructed USCIS components to create or update operational guidance on NTAs and Referrals to ICE, to be issued within 30 days of the Policy Memorandum.

The announcement is at https://www.uscis.gov/news/alerts/updated-guidance-implementation-notice-appear-policy-memorandum.

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New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, Will Require E-Verify Participation

On July 24, 2018, President Trump signed the Northern Mariana Islands U.S. Workforce Act of 2018 (H.R. 5956), extending the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker program (CW-1 program) through 2029 and increasing the CW-1 cap for fiscal year (FY) 2019. The CW-1 program allows employers within the CNMI to apply for permission to employ foreign (nonimmigrant) workers who are otherwise ineligible to work in the CNMI under other nonimmigrant worker categories.

CW-1 employers must pay a mandatory $50 “fraud prevention and detection” fee with each petition, in addition to other current fees. USCIS said it will reject any petition received after July 24, 2018, that includes incorrect or insufficient fees. This new fraud prevention and detection fee does not apply to CW petitions already filed and pending with USCIS as of July 24, 2018.

The Workforce Act will require CNMI employers seeking CW-1 workers to enroll in E-Verify and comply with the requirements of the E-Verify program. Although E-Verify enrollment is not currently required, it will soon be a requirement for all employers filing for CW-1 visas. U.S. Citizenship and Immigration Services (USCIS) said it “strongly encourages CNMI employers to enroll in the E-Verify program as soon as possible.”

The Workforce Act raises the CW-1 cap for FY 2019 from 4,999 to 13,000, and provides new CW-1 caps for subsequent fiscal years. After announcing on April 11, 2018, that it had received CW-1 petitions for more than the number of visas previously available for FY 2019, USCIS will now resume accepting CW-1 petitions. Employers whose petitions were previously rejected because the cap was reached must file a new petition if they want CW workers to be considered under the increased cap. USCIS said it did not retain and cannot reopen previously rejected petitions.

In addition to extending the CW-1 program, the Workforce Act extends the following Consolidated Natural Resources Act of 2008 provisions until December 31, 2029:

  • The exemption from national caps for H-1B and H-2B workers in the CNMI and on Guam;
  • The bar on asylum applications in the CNMI; and
  • The CNMI-Only Nonimmigrant Investor (E-2C) program.

USCIS said the Department of Homeland Security (DHS) is exercising its discretion, as provided in the Act, to delay implementation of other changes to the CW program affecting
CW-1 filers until DHS issues an interim final rule. As of July 24, 2018, USCIS will only accept the May 9, 2018, version of Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker. USCIS will reject and return fees for any petitions submitted using a December 11, 2017, or earlier version date of Form I-129CW.

The USCIS notice is at https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation. The new law is at https://www.congress.gov/bill/115th-congress/house-bill/5956?q=%7B%22search%22%3A%5B%22HR+5956%22%5D%7D&r=1.

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CBP Announces Inspection Changes for CW Visa Holders Arriving in Guam

U.S. Customs and Border Patrol (CBP) has announced that under the Northern Mariana Islands U.S. Workforce Act of 2018, effective immediately, CNMI-Only Transitional Worker (CW) visa holders may be admitted in Guam when in transit to the Commonwealth of the Northern Mariana Islands (CNMI). A CW nonimmigrant visa is valid for admission to Guam for the purpose of transit only.

The CW visa classification allows employers in the CNMI to apply for permission to employ foreign (nonimmigrant) workers who are otherwise ineligible to work under other nonimmigrant worker categories. Individuals approved for CW status who travel outside of the CNMI must obtain a CW nonimmigrant visa from the U.S. embassy or consulate in their country of citizenship to apply for readmission to the CNMI and retain their CW status.

The CBP announcement is at https://www.cbp.gov/newsroom/national-media-release/cbp-announces-inspection-changes-cw-visa-holders-arriving-guam.

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DHS Extends TPS Designation for Somalia for 18 Months

The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Somalia for 18 months, through March 17, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Individuals from Somalia with TPS will be eligible to re-register for an extension of their status through March 17, 2020. Before the conclusion of the 18-month extension, DHS Secretary Kirstjen Nielsen will review conditions in Somalia to determine whether its TPS designation should be extended again or terminated.

DHS said there are approximately 500 Yemeni TPS beneficiaries. This 18-month extension of Somalia’s designation for TPS permits current Somali TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 17, 2020. To be eligible for TPS under Somalia’s current designation, along with meeting the other eligibility requirements, such individuals must have continuously resided in the United States since May 1, 2012, and have been continuously physically present in the United States since September 18, 2012.

The announcement is at https://www.dhs.gov/news/2018/07/19/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected. Further details about this extension for TPS, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice.

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Office of Foreign Labor Certification Releases Foreign Labor Recruiter List

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has published a list of foreign labor recruiters. OFLC said that providing the list enables the agency to “be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes, because they will be able to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.” OFLC said workers may use the partial case number(s) associated with a recruiter on the list to identify the particular job order(s) in OFLC’s Electronic Job Registry, available in the iCERT system (https://icert.doleta.gov/), for which the recruiter is seeking workers.

The Department said it compiles this data from disclosures employers and their attorneys or agents made in conjunction with filing a Form ETA-9142B, H-2B Application for Temporary Employment Certification, about the foreign labor recruiters they engage, or plan to engage, in the recruitment of H-2B workers.

The Department noted that it does not endorse or vouch for any foreign labor agent or recruiter included in the Foreign Labor Recruiter List, nor does inclusion on the list signify that the recruiter is in compliance with the H-2B program.

The announcement and list are at https://www.foreignlaborcert.doleta.gov/Foreign_Labor_Recruiter_List.cfm.

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ICE Announces Arrests, Charges in New York, Boston

Officers from U.S. Immigration and Customs Enforcement’s (ICE) Enforcement and Removal Operations (ERO) arrested 65 people during a five-day period ending July 20, 2018, in New York City and on Long Island. In Boston, 25 people were charged as a result of an ICE Homeland Security Investigations (HSI) probe targeting document and benefit fraud.

During the New York operation, ERO arrested 65 individuals for violating U.S. immigration laws. The arrestees include nationals from Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, and Ukraine. ERO deportation officers made arrests in the Bronx, Brooklyn, Queens, Manhattan, Staten Island, Nassau County, and Suffolk County.

Charges filed in Boston included a wide range of crimes, from aggravated identity theft to theft of public funds and others. The arrests and charges announced were a result of “Operation Double Trouble,” a long-term, coordinated investigation by HIS’s Document and Benefit Fraud Task Force (DBFTF) comprising local, state, and federal agencies “joining together to detect, deter and disrupt organizations and individuals involved in a wide range of document, identity and benefit fraud schemes,” ICE said.

ICE’s New York announcement is at https://www.ice.gov/news/releases/ice-arrests-65-during-operation-cross-check-new-york-city-and-long-island. ICE’s Boston announcement is at https://www.ice.gov/news/releases/ice-hsi-boston-attorney-general-announce-25-arrests-large-scale-document-and-benefit.

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Trump Threatens Immigration-Related Shutdown Ahead of Midterm Elections

On July 29, 2018, President Donald Trump tweeted:

I would be willing to “shut down” government if the Democrats do not give us the votes for Border Security, which includes the Wall! Must get rid of Lottery, Catch & Release etc. and finally go to system of Immigration based on MERIT! We need great people coming into our Country!

With respect to funding a wall along the border with Mexico, which President Trump previously promised Mexico would pay for, in May President Trump said, “we’re going to get the wall, even if we have to think about closing up the country for a while.” He signed a spending bill in late March without everything he wanted in it but said, “I will never sign another bill like this again.”

As of press time, there were no further specifics. According to reports, Republicans are concerned that this may mean President Trump intends to veto any spending bill that doesn’t include everything he wants, including bills passed by Congress to continue government functions past the end of September, when the government runs out of money. Some in Congress hope to avoid drama before the midterm elections in November.

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United Kingdom

What now for the Windrush Generation?

The United Kingdom (UK) government’s “hostile environment” policy was introduced in 2014 with the intention of identifying migrants in the UK without immigration permission with the ultimate purpose of removing those deemed to be without lawful status from the UK. This was achieved by restricting access to employment, housing, and vital public services such as health care, as well as detaining individuals who could not provide evidence of their immigration status. Unfortunately, it had a wider impact on those who were lawfully in the UK but had not previously been required to hold documentary evidence. One such group was the “Windrush Generation”—Commonwealth citizens who arrived in the UK before 1973 and who were given indefinite permission to reside in the UK by virtue of the Immigration Act 1971. Many came from the Caribbean in 1948 on a ship called the “Empire Windrush,” and more came in subsequent years. They did not need a document to prove their status; their initial date of entry was deemed to be sufficient. Children born in the UK to Windrush parents were also automatically born British.

There are reports of a number of individuals being wrongfully caught by the hostile environment policy by, for example, being prevented from returning to the UK following overseas travel, facing bankruptcy and destitution as a result of losing jobs and access to benefits, or having their housing taken away.

Following media pressure, the government committed to “swiftly put right the wrongs that have been done.” A new task force has handled more than 13,000 queries to date and guidance has been published for affected individuals. Concessions have been made for those who wish to naturalize as British citizens. Application fees have been waived for confirmation of immigration or nationality status.

In terms of the hostile environment policies, guidance for employers and landlords has been updated to deal with undocumented Commonwealth citizens. The government has also suspended a series of other policies, including checks on bank accounts and data-sharing with the revenue and customs, driver and vehicle licensing, and work and pensions agencies. A compensation scheme designed to help those wrongfully affected is to be set up shortly.

While it seems that much has been done to help those affected by the hostile policies, the government’s response was unacceptably slow after much of the damage had been caused. Not only should lessons be learned from this, but the system as a whole needs to be reviewed seriously, with transparency and public consultation, if the government wants to stop this from happening again.

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Firm in the News:

Mr. Mehta was a speaker on a panel entitled “The Evolving Landscape for the Immigration Practitioner” at the Practising Law Institute’s Defending Immigration Removal Proceedings 2018 Seminar on July 26, 2018, in New York and which was also simultaneously webcast.

Cora-Ann V. Pestaina was a speaker on a panel entitled All “Ls” Broken Loose in Texas at the American Immigration Lawyers Association’s Web Seminar on July 31, 2018.

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June 2018 Global Immigration Update

Feature Article

CITIZENSHIP: AN OVERVIEW – This article provides an overview in Q&A format of citizenship issues in several countries.

Country Updates

HONG KONG – This article discusses expatriation issues in Hong Kong; explains the rationale behind some U.S. citizens’ decision to migrate to Hong Kong and, in some cases, renounce their U.S. citizenship; provides tips for those contemplating renunciation; and discusses the immigration and tax consequences.

ITALY – This article provides updates on 2018/19 entry quotas for non-EU professional sportsmen, labor inspectors increasing investigations to ensure compliance with rules for transnational posting of workers, work for family permit applicants, and Italy’s new legislative decree to attract international talent.

RUSSIA – Russia has updated its rules on address registrations during the World Cup and Confederation Cup FIFA events.

UNITED KINGDOM – There is a new application process for work or study visas in the United Kingdom (UK). Also, on the advertising site for Tier 2 applications, Universal Jobmatch will be replaced by Find a Job.

Feature Article

CITIZENSHIP: AN OVERVIEW

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

Canada

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

To become a Canadian citizen through the process of naturalization, an individual must be a Canadian permanent resident and must have accumulated a physical presence in Canada of at least three years (or 1,095 days) in the five-year period immediately preceding the date of the application (or since becoming a permanent resident of Canada if less than five years ago). In addition, applicants for Canadian citizenship between the ages of 18 and 54 must prove that they have “adequate knowledge of English or French” and must demonstrate that they have “knowledge of Canada and the responsibilities and privileges of citizenship” by taking the citizenship test. Lastly, all applicants must have filed their income tax returns for at least three years during their eligibility period and must not be inadmissible to Canada on criminality or security grounds.

  1. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

As a general rule, individuals who were born abroad to a parent who was a Canadian citizen at the time of their birth can normally become citizens themselves through “descent” (i.e., without first becoming a Canadian permanent resident). However, amendments to the Citizenship Act were introduced on April 17, 2009, which limit citizenship by descent to the first generation. This means that individuals who were not already citizens on April 17, 2009, cannot become citizens through descent if they were born abroad in the second generation (i.e., to a Canadian citizen parent who at the time of their birth was a citizen by descent). There are some exceptions to this rule related to Canadian or provincial government service abroad.

  1. Do these eligibility requirements differ for minor children or adopted persons?

Minor children who are Canadian permanent residents can apply to become Canadian citizens without having to demonstrate that they have accumulated a physical presence of at least 1,095 days in Canada. However, minor children applying alone (i.e., not at the same time as their parent) must comply with the requirement to have been present in Canada at least 1,095 days in the five years preceding the date of application.

Individuals who are adopted by a Canadian citizen (whether as minors or adults) can apply directly for Canadian citizenship without first becoming a Canadian permanent resident or, in the alternative, they can first become a Canadian permanent resident and then immediately apply for Canadian citizenship. The advantage of first becoming a Canadian permanent resident instead of applying directly for Canadian citizenship is that this way the adopted person will retain the ability to pass Canadian citizenship to any future children born abroad. However, the limitation on citizenship by descent after the first-generation rule applies.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

Canada does not offer any direct “citizenship by investment” programs. However, the Province of Québec operates a passive immigrant investor program under which applicants with a net worth of CAD$1,600,000 (subject to change in August 2018 to CAD$2,000,000) and a minimum of two years of management experience can apply to become Canadian permanent residents. Once they meet the eligibility requirements, these individuals can apply to become Canadian citizens through the process of naturalization.

  1. Does your jurisdiction permit dual citizenship?

Canadian citizens are allowed to keep their current citizenship or obtain new foreign citizenships. However, since November 2016 dual citizens who are traveling to Canada by air must use their valid Canadian passports (with the exception of dual U.S./Canadian citizens, who can continue to travel on their U.S. passports).

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Canadian citizens can renounce their citizenship according to the criteria set out in Subsection 9(1) of the Citizenship Act (i.e., the main criteria are to have citizenship in another country or to have citizenship in another country upon approval of the application to renounce, be 18 years old or older, and not reside in Canada). Once a renunciation application is approved, the individual will lose status in Canada. Canadian permanent residents who had applied to become Canadian citizens through naturalization will not revert to their prior status.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Yes. Subsection 5(4) of the Citizenship Act allows the Minister to grant citizenship based on discretion to any person “to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada.”

Colombia

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

For Latin American and Caribbean nationals: Be domiciled in Colombia for a term of one year as of the issuance of a residence visa.

For Spanish nationals: Be domiciled in Colombia for a two-year term as of the issuance of a residence visa.

For foreigners who are not Latin American, Caribbean, or Spanish: Be domiciled in Colombia for a five-year term. This term will be reduced to two years if the foreigner is married to a Colombian national, has a Colombian permanent companion, or has a Colombian child after the issuance of a residence visa.

  1. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

Per Article 96 of the Colombian Constitution, Colombians are considered citizens by descent in the following cases:

  1. a) Colombia natives when one of the following two conditions are met: (i) one of the parents is a native or Colombian citizen; or (ii) a person is the child of foreigners who were domiciled in Colombia at the time of birth.
  2. b) Children of a Colombian father or mother born abroad but domiciled in Colombia afterwards or registered in a Colombian consulate.
  3. Do these eligibility requirements differ for minor children or adopted persons?

No.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

No.

  1. Does your jurisdiction permit dual citizenship?

Yes, it is permitted.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Yes, it is possible. Colombian law also allows a person to recover Colombian nationality after renouncing it.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Yes.

India

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

Citizenship of India by naturalization can be acquired by a foreign national (other than an undocumented migrant) who is ordinarily resident in India for 12 years (throughout the period of 12 months immediately preceding the date of application and for 11 years in the aggregate in the 14 years preceding the 12 months).

In addition, other qualifications must be met by the applicant as specified in the Third Schedule of The Citizenship Act, 1955 (hereinafter the Citizenship Act). The applicant must be of good character; renounce the citizenship of the country where he or she is already a citizen; have adequate knowledge of a language specified in the Eighth Schedule of the Constitution (English is not among them); and must not be a subject or citizen of any country where citizens of India are prevented by law or practice from becoming subjects or citizens by naturalization.

Although different from naturalization, another option for acquiring Indian citizenship is through registration. One form of registration is available for a person who is married to a citizen of India and who is, ordinarily, a resident in India for 7 years before making an application (throughout the period of 12 months immediately before making an application and for 6 years in the aggregate in the 8 years preceding the 12 months).

  1. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

A person born outside India on or after January 26, 1950, but before December 10, 1992, is a citizen of India by descent, if his or her father was a citizen of India by birth at the time of the person’s birth. If the father was a citizen of India by descent only, that person shall not be a citizen of India, unless the birth is registered at an Indian consulate within one year from the date of birth or with the permission of the central government, after the expiration of that period.

A person born outside India on or after December 10, 1992, but before December 3, 2004, is considered a citizen of India if either of his or her parents was a citizen of India by birth at the time of his birth. If either of the parents was a citizen of India by descent, that person shall not be a citizen of India, unless the birth is registered at an Indian consulate within one year from the date of birth or with the permission of the central government, after the expiration of that period.

A person born outside India on or after December 3, 2004, shall not be a citizen of India, unless the parents declare that the minor does not hold a passport of another country and his or her birth is registered at an Indian consulate within one year from the date of birth or with the permission of the central government, after the expiration of that period.

  1. Do these eligibility requirements differ for minor children or adopted persons?

Indian citizenship by registration can be acquired by a minor child (younger than 18 years old) whose parents are both Indian citizens under § 5(1)(d) of the Citizenship Act.

Application for registration of the birth of a minor child to an Indian consulate under § 4(1) of the Citizenship Act shall be accompanied by an undertaking in writing from the parents of such minor child that he or she does not hold the passport of another country.

Any minor child can be registered as a citizen of India under § 5(4) of the Citizenship Act if the central government is satisfied that there are special circumstances justifying such registration. Each case would be considered on the merits.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

No.

  1. Does your jurisdiction permit dual citizenship?

India does not allow or recognize dual citizenship.

A person whose previous nationality was Indian before acquiring any foreign nationality must surrender his or her Indian passport to the nearest Indian Mission/Post immediately after acquisition of foreign citizenship and must obtain a surrender certificate.

Holding or acquiring an Indian passport or travelling on an Indian passport after acquisition of foreign citizenship constitutes an offense under the Indian Passport Act, 1967, and attracts penalties.

Although Indian citizenship is terminated when a person takes the citizenship of another country under § 9 of the Citizenship Act, it is also mandatory for all persons of Indian origin who had ever held an Indian passport to renounce their Indian citizenship upon acquiring any foreign nationality. This is a prerequisite for obtaining further benefits such as visas or Overseas Citizen of India (OCI) cards from the Indian consulate. Such persons must renounce their Indian citizenship and obtain a Surrender Certificate for their Indian passports, whether valid or expired. If the Indian passport has been lost, an applicant may still formally renounce his or her Indian citizenship.

If the Indian passport has already been stamped as “Cancelled” subsequent to acquisition of U.S./foreign citizenship, there is no penalty for acquiring a Surrender Certificate if it has not been obtained earlier.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Under § 8 of the Citizenship Act, an Indian citizen of full age and capacity may renounce citizenship, and upon such renunciation as prescribed through a declaration of renunciation, may be registered with the prescribed authority. This results in the person ceasing to be a citizen of India.

However, if any such declaration is made during any war in which India may be engaged, registration may be withheld unless the central government otherwise directs.

The minor child of such a person also ceases to be a citizen of India if the parent ceases to be a citizen of India through renunciation. However, this child, within one year of attaining full age, may make a declaration that he wishes to resume Indian citizenship and shall again become a citizen of India.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Section 6 of the Citizenship Act enables the central government to grant a certificate of naturalization to foreign nationals if they seek Indian citizenship and fulfill the conditions specified in the Third Schedule of the Citizenship Act.

The central government can waive any or all of the conditions specified in the Third Schedule if, in its opinion, the applicant has rendered distinguished service to the cause of science, philosophy, art, literature, world peace, or human progress.

For further details on Indian citizenship, see the official website of the Foreigners Division, Ministry of Home Affairs, Government of India, at https://indiancitizenshiponline.nic.in/.

Mexico

2012 was an important year for immigration law in Mexico. New legal paradigms took place, having a tremendous impact with regard to refugees and the process of acquiring Mexican nationality. This process is also known as derived nationality, which means that someone voluntarily decides to acquire a nationality in addition to the one they currently hold.

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

There are several options under which a foreigner can choose to obtain Mexican nationality by naturalization:

  • By residency: Legal residency in the country either as a permanent or temporary resident. In general, five years of residence in Mexico are required, while there are some exceptions, including a two-year residency for nationals from any Latin American country or from the Iberian Peninsula.
  • By marriage to a Mexican national: After two consecutive years of residency in Mexico by marriage, providing that the spouse has lived in the country for that same amount of time, the spouse can obtain Mexican nationality.

2 and 3. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”? Do these eligibility requirements differ for minor children or adopted persons?

Mexican law supports family reunification; therefore, the law provides for the possibility of acquiring residency in the country by family bonds, and includes the aspect of foreign nationals obtaining Mexican nationality via adoption by Mexicans. Examples include:

  • Being a descendant of a Mexican: This must be evidenced through legal residency of two years in temporary resident status before the request.
  • Having Mexican-born children: This must be evidenced through legal residency of two years in temporary resident status before the request.
  • Holding the custody of a Mexican or having a Mexican minor dependent: This must be evidenced through legal residency of one year in temporary resident status before the request. Residency must be uninterrupted.
  • Being adopted by a Mexican(s): This must be evidenced through legal residency of one year in temporary resident status before the request.

If the request is not made while the adopted or minor persons are still under age, the ones holding custody can process this up to one year after they become of age.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

Mexico does not allow naturalization by investment, but the law does contemplate the possibility of obtaining Mexican nationality if the interested foreigner has made an outstanding contribution in the social, scientific, technical, sports, culture, or business sectors. The foreigner must have a minimum two-year residency in temporary resident status before making this request.

Mexico has maintained an open-border policy and has reaffirmed its promise of holistic support for all international citizens, especially those located in Latin America. Nevertheless, given Mexico’s proximity to the United States and other international considerations, the Mexican government still has established laws for obtaining citizenship. One of the most relevant is the waiver of a person’s right to appeal to their nationality of origin, therefore renouncing all the rights under that nationality he or she would otherwise hold while in Mexico. A person obtaining Mexican citizenship also must take an oath of obedience to Mexican law, institutions, and authorities. This is mandatory as long as the person is located in Mexico.

As part of this process, the interested foreigner must prove sufficient knowledge of the language, history, and culture of Mexico, among other facts, to be granted Mexican nationality. The applicant must not stay abroad longer than 180 days in the period before filing the application, must hold a valid residence card, and must evidence his or her legal stay in the country.

  1. Does your jurisdiction permit dual citizenship?

Mexico allows dual citizenship, but the foreigner must always identify himself or herself as Mexican while in the country. This includes Mexican embassies, consulates, vessels, and aircraft.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

As there are several options under which a foreign national can obtain Mexican nationality, the law also addresses the possibility of loss of Mexican nationality. The options include:

  1. By the procurement of another nationality before any Mexican institution or authority, using a non-Mexican passport or acquiring a title of nobility from a foreign state.
  2. By residing for five continuous years abroad.

Either of the above will result in the immediate loss of Mexican nationality. Mexican nationality by birth does not include any assumption of loss; therefore no native Mexican can lose his or her Mexican nationality.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Although Mexican law is quite flexible, the conditions described in this article must be met when applying for naturalization. Failure to do so will result in the impossibility of obtaining Mexican nationality.

This article includes an overall view of the steps to follow and what acquiring Mexican nationality implies. The way the law is enforced can change from time to time.

Peru

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

To be eligible for Peruvian naturalization, a person must:

  1. Express his or her will to be Peruvian and meet the following requirements:
  2. a) Be at least 18 years of age and enjoy full civil capacity.
  3. b) Reside legally in the territory of the Republic for at least two consecutive years.
  4. c) Exercise regularly a profession, art, trade, business, or entrepreneurial activity.
  5. d) Have no criminal or judicial background and have good conduct.
  6. e) Demonstrate economic solvency that allows him or her to live independently, without affecting public order.
  7. f) Demonstrate a strong grasp of Spanish language and Peruvian history, geography, culture, and current events.
  8. Reside in the territory of the Republic and, by distinguished service to the Peruvian Nation, at the proposal of the Executive Power, the Congress of the Republic confers them this honor through Legislative Resolution.
  9. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

To be eligible for Peruvian “citizenship by descent,” a person must:

  1. Be born in the territory of the Republic.
  2. Be a minor in a state of abandonment, residing in the territory of the Republic, or a child of unknown parents.
  3. Be born in foreign territory, a child of a Peruvian father or mother of birth, who are registered in the corresponding Registry (Civil Status-Birth Section Registry or a Consular Offices of Peru abroad), according to the law.

This right is recognized only for descendants up to the third generation.

  1. Do these eligibility requirements differ for minor children or adopted persons?

The Nationality Law N° 26574 and its Regulations approved by the Supreme decree N° 004-97-IN do not make distinctions in this regard.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

No, citizenship by investment is not offered. This is not considered under Peruvian Nationality Law. However, an investor can apply for citizenship by naturalization by complying with the requirements noted above and established in the Single Text of Administrative Procedures of MIGRACIONES.

  1. Does your jurisdiction permit dual citizenship?

Yes, dual citizenship is permitted. Peruvians by birth who adopt the nationality of another country do not lose their Peruvian nationality unless they expressly renounce it before the competent authority.

Persons who enjoy dual citizenship exercise the rights and obligations of the nationality of the country where they reside. Dual nationality does not confer to foreigners who naturalize themselves the exclusive rights of Peruvians by birth. Peruvians by birth who have dual nationality do not lose the exclusive rights conferred by the Peruvian Political Constitution.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Yes, renunciation is possible. As noted above, Peruvians by birth who adopt the nationality of another country do not lose their nationality, unless they expressly renounce it before the competent authority (MIGRACIONES). Once the renunciation is approved, the individual must return his or her national identity document (ID card) or other Peruvian identity document he or she has in his or her possession.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Yes, as mentioned above, citizenship may be acquired by naturalization if a foreign person is residing in the territory of the Republic and, by distinguished service to the Peruvian Nation, at the proposal of the Executive Power, the Congress of the Republic confers him or her this honor through Legislative Resolution.

South Africa

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

The key requirements are that the applicant (i) be a permanent resident, (ii) have been ordinarily resident in South Africa for at least 5 years and continuously resident for the last 12 months and (iii) demonstrate that he or she can speak one of the country’s official languages and knows the responsibilities and privileges of South African citizenship.

  1. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

Only adopted children qualify for citizenship by descent.

  1. Do these eligibility requirements differ for minor children or adopted persons?

See (2).

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

No, only for permanent residence.

  1. Does your jurisdiction permit dual citizenship?

Yes. The South African Citizenship Act, 1995, provides that if a South African citizen wishes to acquire a second citizenship, the applicant must first obtain the written consent of the Department of Home Affairs to retain his or her South African citizenship before obtaining the second citizenship. Failure to do so will result in the automatic loss of South African citizenship. Separate consent must be obtained for further citizenship applications. If the person who has lost South African citizenship is a citizen by birth, it is permissible to apply for a resumption of that citizenship.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Yes, if the person has an existing citizenship. If the renunciation is done from inside South Africa, the person becomes an illegal foreigner and liable to arrest and deportation. It is possible to apply for a resumption of South African citizenship.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Yes, this can be done by the Minister if there are exceptional circumstances, with the caveat that the only eligibility requirements that can be waived by the Minister relate to the required periods of residence in South Africa. The Minister must report to Parliament should he or she use this power and must identify the person(s).

Turkey

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

For naturalization based on residency (as opposed to citizenship based on “Council of Ministers’ approval of exceptional circumstances,”) the main requirements are that the person must:

  • Have sufficient mental capacity;
  • Have five years’ lawful residence in Turkey (defined as no cumulative absence of 180 days or more);
  • Have the intention to settle in Turkey;
  • Not have a disease that constitutes a danger to public health;
  • Have good moral character;
  • Have sufficient Turkish language skill;
  • Have an income or a profession to provide sufficient support for the applicant and dependents;
  • Not be a threat to national security and public order.

If the applicant is married to a Turkish national, he or she may file an application without being subject to the residence requirement. To be eligible, the person must file after three years of marriage, and prove that he or she still lives in “marital union” with the spouse.

  1. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

A person born inside or outside Turkey of a Turkish national mother or father may register to be a Turkish citizen.

  1. Do these eligibility requirements differ for minor children or adopted persons?

Yes, an adopted child may also acquire Turkish citizenship. Pursuant to Article 17 of the Citizenship Law, a child, under the age of 18, adopted by a Turkish citizen, acquires Turkish citizenship from the date of adoption if he or she does not pose a threat to national security or the public order.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

Yes. The regulations as of January 2017 allow the categories of investors below to be eligible to pursue Turkish citizenship. Each category must seek evidence provided by either the Committee on Banking Supervision, the Under-Secretariat for the Treasury, or the Ministries of Economy, Labor or Environment & Urbanization. This category appears to be underutilized:

  • Applicant has invested $2,000,000 as a free capital investment,
  • Applicant has invested $1,000,000 in real estate in Turkey, bought with a deed restriction that blocks selling for 3 years,
  • Applicant has provided employment for 100 employees,
  • Applicant has invested $3,000,000 US for 3 years with banks active in Turkey (as proven to the Committee on Banking Supervision),
  • Applicant has invested in the government’s debt instruments of $3,000,000 US bought with a deed restriction that blocks selling for 3 years (as proven).
  1. Does your jurisdiction permit dual citizenship?

Yes.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Yes, generally a Turkish national may apply to renounce Turkish citizenship via the Turkish consular post. The process generally takes several months.

If the applicant is a male, the issue of whether he has served compulsory military service will arise and, if not, whether he had been granted the appropriate deferment or exemption. If compulsory military service requirements are not complied with, renunciation may not be granted.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

Yes. Turkey has a naturalization procedure whereby citizenship may be granted for exceptional circumstances by the Council of Ministers. These may include exceptional athletes, entrepreneurs, scientists, or artists. Applicant must still be shown not to be a public threat or contrary to national security.

United Kingdom

  1. What are the main eligibility requirements to present a “citizenship by naturalization” application in your jurisdiction?

The two most common ways to naturalize are:

  • Based on five years of continuous residence in the United Kingdom (UK); or
  • Based on marriage to, or civil partnership with, a British citizen and three years of continuous residence.

Typically, applicants must:

  • Be age 18 or over;
  • Be of sound mind;
  • Intend to continue living in the UK, or to continue in Crown service;
  • Have met the English language and knowledge of life in the UK requirements;
  • Be of good character;
  • Have held Indefinite Leave to Remain in the UK (ILR) or Permanent Residence (PR) for at least 12 months before applying; and
  • meet the relevant residential requirements.

For more information, see https://www.gov.uk/browse/citizenship/citizenship.

  1. Who is eligible to present a “citizenship by descent” application in your jurisdiction? Are there any restrictions to “citizenship by descent”?

British citizens are divided into two categories:

  • British citizens “by descent”: Those who transmit their British citizenship to their children born abroad only if they are in Crown, designated, or EC service.
  • British citizens “otherwise than by descent”: Those who transmit citizenship to children born abroad. With a few exceptions, individuals enjoy this status if:
    • They are British citizens by birth, adoption, registration, or naturalization in the UK or Falkland Islands; or
    • They were British Overseas Territories Citizens by connection with a qualifying territory immediately before May 21, 2002; or
    • They were adopted on or after June 1, 2003, in any country under the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption 1993.
  1. Do these eligibility requirements differ for minor children or adopted persons?

Children under the age of 18 who, for example, are born outside of the UK to a parent who is British “by descent,” may apply to register (instead of naturalize) to become British citizens, provided they meet the relevant registration requirements.

Additionally, there are separate processes for children who:

  • Are stateless;
  • Were born in the UK after 1983;
  • Were born on or after February 4, 1997, in Hong Kong; and
  • Are from Gibraltar.

The process and requirements for adopted children are the same as for biological children.

  1. Does your jurisdiction offer any “citizenship by Investment” programs?

Under the Points-Based System (PBS), migrants from outside the European Economic Area and Switzerland (collectively the “EEA”) who have a minimum of £2 million to invest in the UK can apply under the Tier 1 (Investor) route. This route, while not guaranteeing citizenship, offers a path to naturalize as a British national.

Additionally, higher investment values offer migrants accelerated paths to becoming a citizen. Typically routes under the PBS that offer a path to citizenship take a minimum of six years (five years of continuous residence under the relevant PBS category, and a minimum of one year under Indefinite Leave to Remain (ILR) status). However, investors of £5 million and £10 million may enjoy expedited routes to settled status (ILR) of three and two years, respectively. After one year under ILR status, they may apply for citizenship.

  1. Does your jurisdiction permit dual citizenship?

Yes, the UK permits dual citizenship.

There is no special application to obtain dual citizenship. Individuals must simply apply to obtain foreign citizenship and maintain their British citizenship. However, some countries do not permit dual citizenship, and becoming a national of one of those countries may require an individual to give up British citizenship.

  1. Is it possible to renounce citizenship and, if so, what are the implications and consequences?

Yes. Individuals who renounce their British citizenship lose all associated rights of UK nationals and are subsequently limited to the rights associated with the nationality they retained.

  1. Can citizenship be granted to individuals who have not met the eligibility requirements (e.g., through ministerial discretion or under any exceptional circumstances)?

In certain circumstances, ministers may be able to waive eligibility requirements. In a recent example, the former Home Secretary, Amber Rudd, waived the English language and knowledge of life in the UK requirements for Commonwealth citizens affected by the Windrush crisis. For more information, see https://www.gov.uk/government/news/free-citizenship-for-the-windrush-generation.

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Country Updates

HONG KONG

This article discusses expatriation issues in Hong Kong; explains the rationale behind some U.S. citizens’ decision to migrate to Hong Kong and, in some cases, renounce their U.S. citizenship; provides tips for those contemplating renunciation; and discusses the immigration and tax consequences.

Among desirable immigration destinations, which include Western democracies such as Canada, Australia, the United Kingdom, and New Zealand, the United States until recently was the “Holy Grail” of immigration jurisdictions. With its democracy, robust economy, top educational system, high quality of life, and abundant employment opportunities, people from all over the world flocked to the United States in pursuit of the “American Dream.”

However, in this increasingly globalized world, many immigrants to the United States originally from Hong Kong who have become naturalized U.S. citizens have returned to pursue careers in Hong Kong. Moreover, an increasing number of U.S. citizens, whether naturalized or American-born, have been assigned to work by multinationals in Hong Kong or established businesses in Hong Kong.

With its proximity to China and its low-tax regime, Hong Kong is a strategic gateway to business opportunities in mainland China. In addition to its well-established infrastructure, Hong Kong has a free economy with a simple and low tax regime. It has no capital gains tax, no tax on dividends and interest income from bank deposits, and no sales tax. It abolished the estate tax effective February 11, 2006. Assessable profits of corporations are assessed at 16.5%, while the standard salaries tax, at 15%, is among the lowest in the world.

These factors have made Hong Kong a top location for commerce, investment, and trade. Moreover, Hong Kong’s common law jurisdiction offers a transparent and accessible judicial system that extends to its flexible immigration policies. These characteristics have consistently attracted multinationals to set up Asia Pacific regional headquarters in Hong Kong, and foreign expatriates around the world have been drawn to work in Hong Kong and to take part in growing economic opportunities in Asia, including global talent in the areas of finance, banking, marketing, and management.

For the past decade, many U.S. professionals in the banking and financial industry, as well as U.S. entrepreneurs and investors who have settled in Hong Kong permanently, have either expatriated or are taking a hard look at the costs and benefits of keeping their U.S. citizenship.

In addition to its low tax regime, Hong Kong only taxes its residents on salary income and profits from a Hong Kong source, unlike the United States, which taxes its citizens on a worldwide basis. The U.S. system of taxation is unique in that, unlike most jurisdictions around the world, it taxes its citizens and persons with U.S. lawful permanent resident (“green card”) status on worldwide income regardless of their actual place of residence. Almost all other countries in the world tax their citizens on a territorial basis, i.e., only if they are residents within that country’s territory.

This, coupled with the fact that Americans residing abroad must file U.S. income tax returns and complicated information returns that carry costly penalties even if they have little or no tax obligations due, have been the impetus for an increasing number of Americans to consider renouncing their U.S. nationality. For example, a failure to report a foreign bank account carries a fine of $10,000. Other civil or criminal penalties can involve a fine of $500,000 and imprisonment of not more than five years in certain circumstances.

The increasing number of American citizens residing abroad deciding to give up their U.S. citizenship can also be attributed to the enactment of the Foreign Account Tax Compliance Act (FATCA), which became fully effective on July 1, 2014.

In the first three quarters of 2017, 5,448 persons renounced U.S. citizenship, already topping the total of 5,411 who renounced in calendar year 2016, up 26% from 2015, with 4,279 published expatriates. This in turn was 58% more than 2014.

Under FATCA, foreign financial institutions—including banks, stock brokerage firms, hedge/pension funds, insurance companies, and trusts—must report detailed information to the Internal Revenue Service (IRS) about their American customers each year.

FATCA’s costly IRS reporting requirements and the hefty penalties imposed for noncompliance have resulted in many financial institutions simply closing the pre-existing accounts of their American clients or refusing to open accounts for American citizens living abroad, making it difficult for Americans living and working abroad.

Independent Legal Advice and Right to Counsel in Expatriation Proceedings

Before renouncing citizenship, a person contemplating expatriation should obtain independent legal advice concerning both the tax and immigration consequences. While consular officers will advise the renunciant that the decision to renounce citizenship is a serious and irrevocable one, and must be a voluntary decision, the consular officer should not be expected to give detailed advice about the legal pros and cons of expatriation or the nonimmigrant visa categories available to the renunciant and the limitations of these visa options post-expatriation, especially where the client has continuing business or personal interests in the United States.

In the past, Edward A. Betancourt, former Director of the U.S. Department of State’s Office of Policy Review and Interagency Liaison, Overseas Citizen Services (later renamed the Office of Legal Affairs, Overseas Citizen Services), expressed the view that the State Department “values the important role an attorney may play in advising an individual of the consequences of renouncing his/her citizenship” and “strongly encourages potential renunciants to consult with an attorney before taking the Oath of Renunciation.” To that end, it has included language in Form DS-4079, Request for Determination of Possible Loss of United States Citizenship, advising the executor of the document to consult with an attorney.

Mr. Betancourt further opined in his letter that “[s]ince the presence of an attorney during the procedures leading up to the taking of the Oath of Renunciation will in all likelihood increase a potential renunciant’s understanding of the consequences of renouncing U.S. citizenship, the Department has no objection to an attorney being present during these safeguarding procedures” but noted that “[w]hile the Department encourages the presence of an attorney at all stages leading up to the taking of the Oath of Renunciation, when the consular officer administers the Oath of Renunciation, … a consular officer may ask that a potential renunciant’s attorney not be present in the room at the time he/she administer the Oath” as “[t]he presence of others in the room at the time of the administration of the Oath could suggest that the individual taking the Oath was subjected to the undue influence of another in renouncing his/her U.S. citizenship.” “However, a potential renunciant should be allowed access to his/her attorney at all points in the renunciation process, up to and including the taking of the Oath of Renunciation.”

This well-reasoned opinion unfortunately was never formally reflected in the Foreign Affairs Manual’s guidance notes. Instead, with Mr. Betancourt’s retirement, 7 FAM 1262.3(f) (CT:CON-586; 07-06-2015) now provides, “In order for the consular officer to ascertain whether the renunciant’s action in relinquishing his or her U.S. citizenship is a product of his or her own free will, a parent, guardian, attorney, legal representative, or other representative should not participate in any interview, including a telephonic one, conducted by the consular mission member or attend the administration of the oath of renunciation.”

Furthermore, the language in former 7 FAM 1263a.(3)(b) (CT:CON-407; 06-29-2012), the FAM note concerning Translations, Interpreters and Witnesses, which used to provide specifically that non-English speaking renunciants may be accompanied by their attorney as a witness, was deleted in an update to 7 FAM 1263 published in 2015 (CT:CON-586; 07- 06-2015).

On May 24, 2017, the American Immigration Lawyers Association and the American Immigration Council petitioned the Department of Homeland Security and the Department of State to initiate rulemaking proceedings pursuant to the Administrative Procedure Act, 5 USC 553(e), to provide access to legal counsel in various proceedings, including the representation of U.S. citizens and nationals seeking recognition or relinquishment of their citizenship or nationality status. In the absence of the enactment of regulations, the right to counsel in expatriation interviews is now somewhat limited unless 7 FAM 1262 is revised by the State Department. Prior to this FAM note, the right to counsel in expatriation matters has existed as a matter of policy for at least 40 years.

An attorney’s involvement guarantees the integrity of the act of renunciation, a matter that has important irrevocable consequences, and the presence of the renunciant’s counsel has generally been welcomed by the U.S. consulates and embassies abroad in the past as this ensures that the individual renouncing citizenship is acting completely voluntarily and exercising his or her free will without undue influence or coercion by anyone after seeking independent legal advice.

This right has generally been unquestioned and, in fact, may be constitutionally mandated under the due process clause of the Fifth Amendment given the serious legal consequences of renouncing citizenship. The right to be accompanied by counsel in an administrative proceeding such as renunciation is also supported by statutory authority. See Administrative Procedure Act, 5 USC § 555(b)(1994).

Former 7 FAM § 1232C(2) had specifically stated that an appellant may appear in person or with an attorney who must be admitted to practice in the United States in matters before the Board of Appellate Review which reviews loss of citizenship cases (see 22 CFR 7.5(k)).

Indeed, the right to counsel in the renunciation process has been assumed to exist by Alan James, a former Chairman of the Board of Appellate Review, which until its abolishment, was responsible for the appellate review of expatriation cases. The Board of Appellate Review was eliminated on October 20, 2008, and the procedure for requesting an administrative review of a loss of nationality now rests with the Director of the State Department’s Office of Legal Affairs, Overseas Citizen Services.

Chairman James has written that:

It seems to me that if one consults an attorney and asks him to be present at the renunciation, one would have a hard time later to prevail on appeal. Presumably, one who wants to renounce asks an attorney for advice to ensure that renunciation will be effective. If the attorney sees that all bases are touched at renunciation and does not perceive mental or physical incompetence in the renunciation, there are not likely to be grounds for a later appeal (See Letter from Alan James to Gary Endelman (November 1, 1995) excerpted in Nationality and Citizenship Handbook (Edited by Robert A. Mautino and Gary Endelman, AILA 1996).

Thus, when the renunciant has consulted with and retained counsel to accompany him or her to the expatriation process, very strong proof exists that the renunciant’s formal renunciation is voluntary, unambiguous, and done with informed consent since counsel would have advised the renunciant of the serious legal consequences of this action and is present to witness the voluntary act as well as consult with the renunciant should he or she have any last-minute questions.

Immigration and Tax Consequences of Expatriation

Unlike some jurisdictions such as Hong Kong, where a former Chinese national with the right of abode in Hong Kong can retain his or her right of abode or permanent residence in Hong Kong after a declaration of change of nationality to another nationality is approved, a naturalized U.S. citizen cannot revert to U.S. permanent resident status after he relinquishes U.S. citizenship.

E.B. Duarte Jr., Acting Chief, Naturalization and Special Projects Branch Adjudications, made this point in a letter to Donna Becker:

Persons who gained United States citizenship through naturalization may relinquish United States citizenship; however, they do not revert back to the immigrant classification that they held prior to their naturalization. They would either return to being a citizen of the country of prior citizenship; of if they lost citizenship in that country when they naturalized as a United States citizen, they may in fact become stateless.

A person who retains continuing business interests or close family relationships in the U.S. must therefore consider the nonimmigrant visa options available to them to return to the U.S. and understand the limitations of the activities they may undertake in certain visa categories once they have relinquished their citizenship.

More importantly, § 212(a)(10)(E) of the Immigration & Nationality Act, 8 USC § 1182(a)(1)(E), provides that a former citizen of the United States who officially renounced U.S. citizenship for the purpose of tax avoidance is ineligible for a visa to the United States. While the regulations implementing this statute have never been published in the Federal Register and most consular officers routinely issue visas to former U.S. citizens despite this provision of law being on the books, some less-enlightened consular officers at certain posts have improperly refused to grant visas to former U.S. citizens based on this provision, although these denials were subsequently overturned.

INA § 212(a)(10)(E) states as follows: “Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States Citizenship for the purpose of avoiding taxation by the United States is inadmissible.”

In providing guidance to consular officers in the application of a § 212(a)(10)(E) finding of ineligibility, 9 FAM 302.10-6(B)(2)(CT: VISA-85; 03-07-2016) states: “The role of the Department and the consular officer is very limited in implementing this ground of inadmissibility. Unless the applicant appears as a hit on the lookout system revealing a finding of inadmissibility under INA 212(a)(10)(E), you must assume the applicant is eligible.”

While high-profile and wealthy individuals who renounce their U.S. citizenship attract a great deal of media attention, many individuals who decide to expatriate are actually ordinary middle-class persons who have settled abroad and who are bewildered by the increasingly complex tax and information filing rules of the United States. Their situation were exacerbated when FATCA became effective July 1, 2014.

Some Americans find it difficult to open a bank or brokerage account in their country of residence because of their U.S. citizenship. Others complain of having to incur costly professional accountancy fees to prepare complicated tax returns even though their foreign wages and salary are below the foreign earned income exclusion amount that would render them liable for U.S. taxes (the exclusion amount is US $104,100 for calendar year 2018 and indexed for inflation for future years).

While relinquishing U.S. citizenship should not be taken lightly and many foreign nationals still spend years and significant sums of money to successfully emigrate to the United States and to become U.S. citizens, for many Americans whose lives have taken them abroad, retaining U.S. citizenship has become burdensome. This is especially true for “accidental” Americans who acquired U.S. citizenship by operation of law simply because they were born in the United States or if they acquired U.S. citizenship by descent through birth to a U.S. citizen abroad but have no ties or contact with the United States otherwise. Such persons are nevertheless obligated to file U.S. tax returns, to pay taxes, and to report on foreign bank accounts and other “specified financial assets” and to make other burdensome informational filings as part of their tax returns.

In addition to the immigration consequences of their action, renunciants should be advised that under the Heroes Earnings Assistance and Relief Tax Act of 2008, Pub L. No. 110-245, 122 Stat. 1624 (the “HEART’ Act), § 877A of the Internal Revenue Code imposes an exit tax on certain U.S. citizens (and long-term residents) of the United States who are “covered expatriates.”

Any U.S. citizen, or a long-term resident who is a lawful permanent resident of the United States who held lawful permanent resident status for at least 8 taxable years during the 15-year period ending with the taxable year during which he or she renounces citizenship or abandons lawful permanent resident status, is a “covered expatriate” under § 877(a)(2) of the Internal Revenue Code.

A “covered expatriate” is a person who meets any of the following three tests:

  • The individual’s average annual net U.S. federal income tax liability for the 5 years ending before the date of expatriation is US $165,000 or more for a person who expatriates in 2018.
  • The individual has a net worth of US $2 million or more as of the date of expatriation.
  • The individual fails to certify under penalty of perjury on Form 8854 that he or she has complied with all U.S. federal tax obligations for the preceding 5 years.

The exit tax treats the unrealized gain in appreciated capital assets of a “covered expatriate” as having been sold at their fair market value on the day before the person expatriates even though there has been no actual sale of the assets. For those expatriating in 2018, the first US $713,000 gains are exempt from the expatriation taxes (Rev. Proc. 2017-58) with the excluded amount allocated pro rata among all assets included in the exit tax base, with any gain over this figure subject to U.S. income taxes.

As a result of the media attention focused on Facebook co-founder Eduardo Saverin’s reported tax savings when he moved to Singapore and renounced his U.S. citizenship, Sens. Charles Schumer of New York and Bob Casey of Pennsylvania introduced the Ex-PATRIOT Act, S. 3205, in the 112th Congress on May 12, 2012, to provide that U.S. persons renouncing citizenship for a substantial tax avoidance purpose shall be subject to a 30% withholding tax on capital gains from U.S. investments and banned from admission to the United States under either immigrant or nonimmigrant visa categories. Sen. Schumer’s view was that § 212(a)(10)(E) of the Immigration & Nationality Act was ineffective as it lacked a mechanism for the Attorney General to make a finding of inadmissibility of tax-motivated renunciants and needed to be remedied with additional legislation.

Although S. 3205 died in committee, Sen. Schumer joined with Sen. Jack Reed in the 113th Congress to put forward Senate Amendment 1252 (known as the “Reed-Schumer” Amendment) to a major immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act, to apply an automatic exclusion ground to ex-U.S. citizens with either a net worth of US $2 million or an average annual income tax liability of US $148,000 over the last 5 years. However, the amendment was not included in the version of the bill that passed the Senate on June 27, 2013.

Thus, the admissibility determination remains for the Department of Homeland Security to make, with the consular officer playing a limited role.

When INA § 212(a)(10)(E) was first enacted, the Department of State sent a cable on October 21, 1996 (96–State–219622) to all diplomatic and consular posts on the application and implementation of this new ground of exclusion. The cable explained that three agencies play a role in the implementation of INA § 212(a)(10)(E): the Department of State, the Department of Treasury, and the Immigration and Naturalization Service (INS).

At that time, when a U.S. citizen renounced his or her citizenship at a U.S. consulate, the Health Insurance Portability and Accountability Act of 1996 required an information statement to be filed as part of the process.

The cable advised that the Department of State would provide the Department of Treasury with the information statement filed by the renunciant and Treasury would then review the information provided by State and would coordinate with the INS as to whether § 212(a)(10)(E) was applicable. INS would then determine if the person was ineligible and inform the Department of State’s Visa Office, which would then enter the person’s name into the computerized Lookout System. “The role of the State Department and the consular officer is actually very limited in implementing this ground of ineligibility. Absent a hit revealing a finding of ineligibility, the consular officer would process the visa application to conclusion if the alien is otherwise qualified. A hit would indicate a finding of ineligibility and would be a basis for visa refusal,” the cable said.

Many years have passed since that cable was sent, but implementing regulations have never been published. Although the former INS had drafted a proposed rule to implement § 212(a)(10)(E) after extensive collaboration among the Department of State, the IRS, and the Department of Justice (the INS and the Tax Division), and sent the proposed rule to the Office of Management and Budget in 2000 for approval, the proposed rule was subsequently withdrawn and no further efforts to promulgate rules relating to § 212(a)(10)(E) have been undertaken.

At the time § 212(a)(10)(E) was enacted, expatriate tax liability under the relevant provisions of the Internal Revenue Code was based on whether an individual’s intent upon expatriating was to avoid U.S. taxation. In the same vein, a renunciant might be found inadmissible to the United States if the renunciant’s motive in renouncing U.S. citizenship was found by the attorney general to have been for the purpose of tax avoidance.

Perhaps in part because the determination of a tax avoidance motive was fraught with difficulties, Congress amended the Internal Revenue Code at 26 USC §§ 877, 877A to impose an exit tax on “covered expatriates,” renunciants who met objective financial threshold standards based on average annual net federal income tax liability for the past 5 years, net worth, or the renunciant’s failure to certify that he or she had been in tax compliance for the 5 years immediately preceding expatriation.

This does not mean, however, that an individual who admits to having renounced his or her citizenship for the purpose of tax avoidance cannot be found inadmissible under INA § 212(c)(10)(E).

Conclusion

In calendar year 2017, a total of 1,534 applications for naturalization as Chinese nationals were received by the Hong Kong Immigration Department.

For foreign nationals who have acquired the right of abode in Hong Kong, naturalization as a Chinese national is a potentially attractive option, as, under the “One Country, Two Systems” formula, Hong Kong has a totally different tax regime than China and Chinese nationals who hold the right of abode in Hong Kong are entitled to a Hong Kong SAR passport, which, unlike a People’s Republic of China passport with extremely limited visa-free privileges, accords the bearer visa-free or visa-on-arrival privileges to some 147 countries and territories.

In an increasingly globalized world, many naturalized or natural-born U.S. citizens who are permanent residents in Hong Kong and who have developed very successful careers in Asia have discovered that, for them, it makes sense to give up their U.S. citizenship and to become naturalized Chinese citizens in Hong Kong and obtain Hong Kong SAR passports.

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ITALY

This article provides updates on 2018/19 entry quotas for non-EU professional sportsmen, labor inspectors increasing investigations to ensure compliance with rules for transnational posting of workers, work for family permit applicants, and Italy’s new legislative decree to attract international talent.

2018/19 Entry Quotas for Non-EU Professional Sportspeople

The government has set the maximum number of non-European Union (EU) sportspeople who can be registered by Italian Sports Clubs for the sports season 2018/2019.

The maximum number is 1,090, to be shared among the various National Sports Federations. This number includes both non-EU sportsmen entering in Italy for the first time (as employees or as self-employed workers) and non-EU nationals regularly residing in Italy on a work or family permit.

In Italy, the maximum number of non-EU citizens who can be engaged in competitive sports activities is set by a decree issued by the government each year. The decree is issued on the basis of the Italian National Olympic Committee (CONI) proposal.

Italian Sports Clubs who wish to hire a foreign national must file an application and obtain a special permit from the CONI. Upon receiving approval, the non-EU national athlete must apply for a sports visa at the Italian consulate in the country of residence.

Within eight days of arrival in Italy with the sports visa, the foreigner must apply for the residence permit (permesso di soggiorno), which is issued by the local police.

Labor Inspectors to Increase Investigations

The Italian Labor Inspectorate (Ispettorato Nazionale del Lavoro, INL) is implementing stricter rules on investigating transnational posting of workers. Labor inspectors will increase their investigations to ensure compliance with the provisions of Decree 136/2016 (Directive 2014/67), which governs the transnational posting of workers to Italy.

Inspectors must assess that the posting is genuine and deter any abuse or circumvention of the rules of Decree 136. The Inspectors will make an increased use of the information available on the new Internal Market Information System (IMI). Particular attention will be given to companies that systematically defer sending the required notifications and who rotate the same posted workers frequently to fill the same position.

Update on Work for Family Permit Applicants

The Italian Ministry of Labor has confirmed that family permit applicants can start work right after they have filed the application. It is no longer necessary to wait until the residence permit (permesso di soggiorno) is issued. The receipt of application issued by the post office (ricevuta postale) is enough to start work.

Until now, family permit applicants had to wait for several months, until they had the residence permit in hand, before they could start work activities. Further to the Ministry of Labor clarification, employers can hire family members shortly after they have entered Italy.

Further details from the Ministry of Labor are at https://bit.ly/2kfqeiN (Italian).

Italy Implements Policy to Attract International Talent

On May 8, 2018, the Italian government approved a legislative decree that transposes directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, study, training, voluntary service, pupil exchange schemes, educational projects, and au pairing. The new provisions are expected to facilitate entry, stay, and mobility of third-country nationals seeking to transfer to Italy for one of the above reasons.

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RUSSIA

Russia has updated its rules on address registrations during the World Cup and Confederation Cup FIFA events.

According to Presidential Order #214 dated May 12, 2018, “On amendments to Presidential Order N. 202 dated 09.05.2017,” “On special security measures during the World Cup FIFA 2018 and Confederation Cup FIFA 2017,” the period for foreign nationals to register their addresses between May 25 and July 25, 2018, is increased to 3 calendar days.

During that period, VFBS will be able to support foreign nationals’ address registrations in Moscow only.

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UNITED KINGDOM

There is a new application process for work or study visas in the United Kingdom (UK). Also, on the advertising site for Tier 2 applications, Universal Jobmatch will be replaced by Find a Job.

New Application Process for Work or Study Visas in the UK

On May 17, 2018, UK Immigration Minister Caroline Nokes announced details of the outsourcing of the visa application submission process to a single third-party provider, Sopra Steria, for people applying for a work or study visa, settlement, or citizenship from within the UK. This will take effect in October 2018.

In the lead-up to the introduction of this new outsourced service, the Home Office has implemented the gradual roll-out of online application forms for most application types in the UK, including Tier 2 work visas, Tier 4 student visas, and Tier 1 investor, settlement, and citizenship applications. At the same time as submitting the application forms online, the associated fees are paid and the biometric appointment booked. Applicants have then attended either a Home Office visa application centre to submit their biometric data and deliver their documents or submitted their application package by post and gone to a Post Office to submit their biometric data, once asked to do so by the Home Office.

The application process will now be streamlined. The main changes will be:

  • Once applicants have submitted their applications online and paid the fees, they will be able to upload the required documents in advance of their biometric appointments.
  • Over 60 locations will be provided for applicants to submit their biometric data and present original documents, including their passports.
  • All original documents will be checked at the appointments and immediately returned to the applicants, who can then take their passports and other documents away with them.
  • The Home Office will then process applications immediately.
  • There will no longer be premium service centre (PSC) appointments at the Home Office in Croydon and their other offices around the country. The Tier 2 priority service will also cease. However, Home Office service centres will still be available for certain “vulnerable” applicants and asylum applicants.

With the cessation of the PSC same-day processing service, there is some uncertainty as to whether Sopra Steria will offer a 24-hour service. Full details of turnaround times will be published in due course, along with the associated priority processing fees. Sopra Steria is expected to be able to offer bespoke services, similar to the current Super Premium Service, whereby applicants can submit their biometric data at locations of their choosing, subject to payment of the relevant premium service fees.

Changes to Advertising Site for Tier 2 Visa Applications: Universal Jobmatch to be Replaced by New Find a Job Service

If you are a Tier 2 sponsor with responsibility for placing advertisements on the government’s Universal Jobmatch site to support Tier 2 applications, this will apply to you. When hiring Tier 2 migrants in the Tier 2 General category, sponsors currently using Universal Jobmatch (UJM) when conducting a resident labour market test must register with a new service called Find a Job.

The government has stated that the new Find a Job service offers a simpler and more streamlined way to log in and access information. Key features include:

  • A simple email and password login, replacing Government Gateway
  • Updated functionality and a redesigned account page
  • A streamlined job posting process
  • The ability to access Find a job via Gov.UK and directly through the following URL: dwp.gov.uk

How do I register for the new service?

  • Account details for existing UJM account holders will automatically be moved across to Find a Job so you will automatically be verified and ready to post jobs once you register.
  • Your account login will be the email address on your existing account and you will be asked to create a new password.
  • Each employer account must have an administrator who can add and remove other colleagues (recruiters). You can edit administrator details once you have registered.

What about pending adverts?

  • If the expiration date is beyond June 17, 2018, a new advert will need to be posted on Find a Job.
  • Any existing adverts or applicant details will not be moved to the new service. You will therefore need to save any information that you wish to keep from your UJM account before June 17, 2018
  • UJM will notify account holders shortly as to how to save information currently on the site.
  • You will only be able to access your existing UJM account until June 17, 2018.
  • The Home Office has confirmed that copies of adverts posted on either site will be accepted as evidence to satisfy the resident labour market test, and the Immigration Rules will be updated shortly.

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June 2018 Immigration Update

Headlines:

DHS Announces Additional 15,000 H-2B Temporary Nonagricultural Worker Visas for FY 2018 – Secretary Nielsen said there are not enough qualified, U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of U.S. businesses in FY 2018. This allocation is in addition to the 66,000 visas already issued this year.

DHS Proposes Ending International Entrepreneur Program – DHS has issued a proposed rule to end a program that allows certain foreign entrepreneurs to be considered for parole to develop and build start-up businesses in the United States.

USCIS Reminds F-1 Students of Automatic Termination of OPT If They Transfer or Begin Study at Another Educational Level – USCIS reminded F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document.

Re-Registration Period Now Open for Nepal TPS Beneficiaries – Current beneficiaries of temporary protected status under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register by July 23, 2018.

USCIS Corrects Biometric Services Appointment Notices with Wrong Application Support Center Locations –USCIS plans to mail new biometric services appointment notices to petitioners who received incorrect notices and did not reschedule their appointments or appear as walk-ins.

Guidance Revised on EB-5 Immigrant Investor Cases Involving Tenant Occupancy; Adjustment of Status Interview Guidelines/Waiver Criteria – USCIS said it will no longer accept tenant-occupancy models for filings, and announced the same day that it is updating guidance on adjustment of status interview guidelines and interview waivers.

USCIS Recalls Incorrectly Dated Green Cards for Spouses of U.S. Citizens – USCIS began recalling approximately 8,500 permanent resident cards (“green cards”) due to a production error. The green cards were for approved Forms I-751, Petition to Remove Conditions of Residence, for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and mailed between February and April 2018.

Firm in the News

Details:

Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision

Seven states—Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia—filed a complaint in the U.S. District Court for the Southern District of Texas, Brownsville Division, to stop the Deferred Action for Childhood Arrivals (DACA) program. The lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief.

Plaintiffs note that the court “has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” but states that plaintiffs “are amenable to a remedy that enjoins Defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.”

In another DACA case, the National Association for the Advancement of Colored People (NAACP) celebrated a “huge victory for DACA recipients around the nation.” A federal court in Washington, DC, found legally insufficient a memorandum issued by the Department of Homeland Security (DHS) terminating the DACA program and struck down the memorandum unless DHS can offer a stronger basis for ending the program, the NAACP noted.

Federal Judge John Bates said the decision by the Trump administration to rescind DACA was “virtually unexplained” and as such “unlawful.” He gave DHS 90 days to provide a legally sufficient explanation. If DHS fails to provide an explanation that meets legal muster, the NAACP noted, “DACA will be vacated in its entirety and DHS will be required to maintain the program for current enrollees and to accept and process applications from new enrollees who meet the program’s eligibility rules.”

With the morass of DACA-related cases filed, some decided in favor of DACA recipients, and amid potentially disparate results, the issue could end up before the U.S. Supreme Court.

The seven-state complaint is at https://www.scribd.com/document/377929932/TX-v-USA-Re-DACA-Complaint-050118#from_embed. The opinion in the NAACP case is at https://assets.documentcloud.org/documents/4446318/Microsoft-Princeton-Daca-20180424.pdf. The NAACP’s statement is at https://bit.ly/2KXdfye.

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USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo provides guidance to USCIS officers and “assists USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States.” The memo also revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance takes effect August 9, 2018.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible, USCIS said.

USCIS said this new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, duration of status started accruing unlawful presence only after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or only after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

The memo is at https://www.dropbox.com/s/aqm0zahtx10kscv/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO.pdf?dl=0. A related USCIS statement is at https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors.

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DOJ, USCIS Announce Agreement on Protecting U.S. Workers

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice announced on May 11, 2018, a Memorandum of Understanding (MOU) that “expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” This new effort “improves the way the agencies share information, collaborate on cases, and train each other’s investigators,” USCIS said.

The MOU will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination. The new MOU “expands upon the two agencies’ existing partnership,” USCIS said.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against U.S. workers by favoring foreign visa workers,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against U.S. workers based on their citizenship status.”

“Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS,” said USCIS Director L. Francis Cissna. “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level.”

USCIS’s statement is at https://bit.ly/2Iy1mQV. The MOU is at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports/MOU_5.11.2018.pdf.

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DOJ Settles Immigration-Related Claim Against University of California, San Diego

The Department of Justice announced on May 10, 2018, that it has reached a settlement agreement with the University of California, San Diego. The settlement resolves the Department’s investigation into whether the university’s Resource Management and Planning Vice Chancellor Area (RMP) discriminated against workers in violation of the Immigration and Nationality Act (INA) when verifying their continued authorization to work.

The Department’s investigation concluded that the RMP unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

Under the settlement, the university will pay a penalty to the United States, train its RMP human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

The announcement is at https://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-university.

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TPS for Hondurans to End in January 2020

On May 4, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced her decision to terminate the temporary protected status (TPS) designation for Honduras with a “delayed effective date of 18 months to allow for an orderly transition before the designation terminates” on January 5, 2020.

The USCIS Web page asks users not to pay for or submit any form until USCIS updates the official re-registration information at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-honduras. Honduran citizens with current TPS registrations 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 Honduras’ TPS designation takes effect on January 5, 2020. Further details about this termination for TPS, including the re-registration period, will appear in a Federal Register notice, USCIS said. Honduran TPS beneficiaries “should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.”

Additional details are at https://www.dhs.gov/news/2018/05/04/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected.

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IT Company to Pay 12 Employees for Violations of H-1B Program

IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD). According to the Department, Cloudwick Technologies provides “data solution services” to major corporations nationwide, including American Express, Bank of America, Apple, Cisco, Comcast, Intuit, Safeway, Verizon, Visa, and many others.

WHD investigators found that the company paid affected employees well below the wage levels required under the H-1B program based on job skill level, and also made illegal deductions from workers’ salaries. As a result, some of the H-1B employees that Cloudwick brought from India with promised salaries of up to $8,300 per month instead received as little as $800 net per month.

“The intent of the H-1B foreign labor certification program is to help American companies find the highly skilled talent they need when they can prove that a shortage of U.S. workers exists,” said Susana Blanco, Wage and Hour Division District Director in San Francisco. “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed.”

In addition to the recovery of back wages, the IT employer has also signed an enhanced compliance agreement requiring it to hire an independent third-party monitor to help ensure future compliance.

The Department’s announcement is at https://www.dol.gov/newsroom/releases/whd/whd20180501-2.

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Trump Says Guest Workers Will Be Allowed into United States

At a Make America Great Again Rally in Washington, Michigan, on April 28, 2018, President Donald Trump was quoted as saying, “For the farmers, OK, it’s going to get good. And we’re going to have strong borders, but we have to have your workers come in.” That appeared to contradict other Trump administration efforts to reduce migration to the United States generally.

According to reports, President Trump added, “The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

There was no immediate indication of specifics, such as when, how, or how many guest workers will be able to enter the United States, and how many will be agricultural or nonagricultural. In the omnibus spending bill, the Department of Homeland Security was authorized to expand the H-2B visa program. President Trump’s Mar-a-Lago resort and other businesses use hundreds of guest worker visas, news reports have noted. During his campaign, then-candidate Trump told CNN, “You cannot get help during the season. The season goes from, like, October to March. It’s almost impossible to get help. And part of the reason you can’t get American people is they want full-time jobs.”

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Firm In The News

Cyrus Mehta was a speaker on a panel entitled Particular Social Groups: Recent Cases and Cutting Edge Theories at the Federal Bar Association Immigration Conference in Memphis, TN on May 19, 2918. The other distinguished speakers on this panel were Professor Deborah Anker, Professor Karen Musalo and Dr. Alicia Triche.

Cyrus Mehta has authored a new blog entry. “State Department’s Change to Public Charge Guidance in Foreign Affairs Manual Will Result in Many More Visa Refusals” is at https://bit.ly/2J85SXC.

David Isaacson has authored a new blog entry. “Those Who Cannot Remember the Past: How Matter of Castro-Tum Ignores the Lessons of Matter of Avetisyan” is at https://bit.ly/2LzrA49.

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Mid-May 2018 Immigration Update

Headlines:

Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision – A lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief; NAACP celebrates another DACA decision.

USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants – The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence.

DOJ, USCIS Announce Agreement on Protecting U.S. Workers – A Memorandum of Understanding will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws.

DOJ Settles Immigration-Related Claim Against University of California, San Diego – The Department’s investigation concluded that the university unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

TPS for Hondurans to End in January 2020 – Honduran citizens with current TPS registrations 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 Honduras’ TPS designation becomes effective January 5, 2020.

IT Company to Pay 12 Employees for Violations of H-1B Program – IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division.

Trump Says Guest Workers Will Be Allowed into United States – “The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

Firm in the News…

Details:

Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision

Seven states—Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia—filed a complaint in the U.S. District Court for the Southern District of Texas, Brownsville Division, to stop the Deferred Action for Childhood Arrivals (DACA) program. The lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief.

Plaintiffs note that the court “has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” but states that plaintiffs “are amenable to a remedy that enjoins Defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.”

In another DACA case, the National Association for the Advancement of Colored People (NAACP) celebrated a “huge victory for DACA recipients around the nation.” A federal court in Washington, DC, found legally insufficient a memorandum issued by the Department of Homeland Security (DHS) terminating the DACA program and struck down the memorandum unless DHS can offer a stronger basis for ending the program, the NAACP noted.

Federal Judge John Bates said the decision by the Trump administration to rescind DACA was “virtually unexplained” and as such “unlawful.” He gave DHS 90 days to provide a legally sufficient explanation. If DHS fails to provide an explanation that meets legal muster, the NAACP noted, “DACA will be vacated in its entirety and DHS will be required to maintain the program for current enrollees and to accept and process applications from new enrollees who meet the program’s eligibility rules.”

With the morass of DACA-related cases filed, some decided in favor of DACA recipients, and amid potentially disparate results, the issue could end up before the U.S. Supreme Court.

The seven-state complaint is at https://www.scribd.com/document/377929932/TX-v-USA-Re-DACA-Complaint-050118#from_embed. The opinion in the NAACP case is at https://assets.documentcloud.org/documents/4446318/Microsoft-Princeton-Daca-20180424.pdf. The NAACP’s statement is at https://bit.ly/2KXdfye.

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USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo provides guidance to USCIS officers and “assists USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States.” The memo also revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance takes effect August 9, 2018.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible, USCIS said.

USCIS said this new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, duration of status started accruing unlawful presence only after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or only after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

The memo is at https://www.dropbox.com/s/aqm0zahtx10kscv/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO.pdf?dl=0. A related USCIS statement is at https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors.

For further commentary, see USCIS Blurs Distinction Between Violation of Status and Unlawful Presence for F, J and M Nonimmigrants,  http://blog.cyrusmehta.com/2018/05/uscis-blurs-distinction-between-violation-of-status-and-unlawful-presence-for-f-j-and-m-nonimmigrants.html

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DOJ, USCIS Announce Agreement on Protecting U.S. Workers

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice announced on May 11, 2018, a Memorandum of Understanding (MOU) that “expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” This new effort “improves the way the agencies share information, collaborate on cases, and train each other’s investigators,” USCIS said.

The MOU will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination. The new MOU “expands upon the two agencies’ existing partnership,” USCIS said.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against U.S. workers by favoring foreign visa workers,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against U.S. workers based on their citizenship status.”

“Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS,” said USCIS Director L. Francis Cissna. “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level.”

USCIS’s statement is at https://bit.ly/2Iy1mQV. The MOU is at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports/MOU_5.11.2018.pdf.

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DOJ Settles Immigration-Related Claim Against University of California, San Diego

The Department of Justice announced on May 10, 2018, that it has reached a settlement agreement with the University of California, San Diego. The settlement resolves the Department’s investigation into whether the university’s Resource Management and Planning Vice Chancellor Area (RMP) discriminated against workers in violation of the Immigration and Nationality Act (INA) when verifying their continued authorization to work.

The Department’s investigation concluded that the RMP unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

Under the settlement, the university will pay a penalty to the United States, train its RMP human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

The announcement is at https://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-university.

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TPS for Hondurans to End in January 2020

On May 4, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced her decision to terminate the temporary protected status (TPS) designation for Honduras with a “delayed effective date of 18 months to allow for an orderly transition before the designation terminates” on January 5, 2020.

The USCIS Web page asks users not to pay for or submit any form until USCIS updates the official re-registration information at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-honduras. Honduran citizens with current TPS registrations 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 Honduras’ TPS designation takes effect on January 5, 2020. Further details about this termination for TPS, including the re-registration period, will appear in a Federal Register notice, USCIS said. Honduran TPS beneficiaries “should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.”

Additional details are at https://www.dhs.gov/news/2018/05/04/secretary-homeland-security-kirstjen-m-nielsen-announcement-temporary-protected.

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IT Company to Pay 12 Employees for Violations of H-1B Program

IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD). According to the Department, Cloudwick Technologies provides “data solution services” to major corporations nationwide, including American Express, Bank of America, Apple, Cisco, Comcast, Intuit, Safeway, Verizon, Visa, and many others.

WHD investigators found that the company paid affected employees well below the wage levels required under the H-1B program based on job skill level, and also made illegal deductions from workers’ salaries. As a result, some of the H-1B employees that Cloudwick brought from India with promised salaries of up to $8,300 per month instead received as little as $800 net per month.

“The intent of the H-1B foreign labor certification program is to help American companies find the highly skilled talent they need when they can prove that a shortage of U.S. workers exists,” said Susana Blanco, Wage and Hour Division District Director in San Francisco. “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed.”

In addition to the recovery of back wages, the IT employer has also signed an enhanced compliance agreement requiring it to hire an independent third-party monitor to help ensure future compliance.

The Department’s announcement is at https://www.dol.gov/newsroom/releases/whd/whd20180501-2.

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Trump Says Guest Workers Will Be Allowed into United States

At a Make America Great Again Rally in Washington, Michigan, on April 28, 2018, President Donald Trump was quoted as saying, “For the farmers, OK, it’s going to get good. And we’re going to have strong borders, but we have to have your workers come in.” That appeared to contradict other Trump administration efforts to reduce migration to the United States generally.

According to reports, President Trump added, “The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

There was no immediate indication of specifics, such as when, how, or how many guest workers will be able to enter the United States, and how many will be agricultural or nonagricultural. In the omnibus spending bill, the Department of Homeland Security was authorized to expand the H-2B visa program. President Trump’s Mar-a-Lago resort and other businesses use hundreds of guest worker visas, news reports have noted. During his campaign, then-candidate Trump told CNN, “You cannot get help during the season. The season goes from, like, October to March. It’s almost impossible to get help. And part of the reason you can’t get American people is they want full-time jobs.”

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Firm In The News

Cyrus Mehta was awarded a Lawyer of the Year in Corporate Immigration 2018 by Who’s Who Legal: http://whoswholegal.com/awards/?utm_source=WWL+Awards+&utm_medium=email&utm_campaign=WWL+Awards+2018&utm_term=WWL+Awards+2018+-+See+all+the+winners&utm_content=16090&gator_td=VhT0zHgII5bJCL6bpjaU1TrffpsAcCVgnf9FkK0JMwc79V68yGUuceAwqvl%2bExfM0o5tXmgG9SXaJlu1p2mgd9C8DbfufLRQgleEGFLAF4WJ%2bCSER27szrFC55SwkoDYVijssCyEooPjFFawOVFf7ZKCMIxdeWiImlqJOkwV0mQ%3d

Cyrus Mehta has authored a new blog entry. “USCIS Blurs Distinction Between Violation of Status and Unlawful Presence for F-1, J and M Nonimmigrants” is at https://bit.ly/2wDOEeC.

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry. “Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas Will Eviscerate Due Process” is at https://bit.ly/2I8XJS1.

Cora-Ann Pestaina, of Mr. Mehta‘s office, has authored a new blog entry. “Guidance to the Perplexed After USCIS Sneaks In Ban on Third-Party Placement of STEM OPT Workers” is at https://bit.ly/2KezGh4.

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