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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May 2018 Immigration Update

Headlines:

USCIS Plans to Revise Definition of Specialty Occupation, Employment, Employer-Employee Relationship, Among Other Actions – The letter does not specify how these definitions will be revised or when the proposed regulations will be issued.

Gorsuch Votes Against Trump Administration in Deportation Case; DHS, ICE Issue Statements – U.S. Supreme Court Justice Neil Gorsuch voted with the Democrat-appointed justices in a 5-4 decision in Sessions v. Dimaya holding that a federal law permitting the removal of foreigners guilty of a “crime of violence” is unconstitutionally vague.

Justice Dept. Settles Immigration-Related Discrimination Claim Against Texas Company – The investigation, initiated based on a worker’s complaint, revealed that Themesoft engaged in citizenship status discrimination against an asylee by refusing to process his application because he was not a lawful permanent resident, U.S. citizen, or H-1B visa holder. DOJ noted that asylees have permanent work authorization.

USCIS Announces Convictions in Two Immigration Fraud Cases – USCIS recently announced convictions in two cases related to immigration fraud.

ABIL GlobalTurkey is requiring companies to have online governmental communications accounts to file work permits.

Firm in the News…

Details:

USCIS Plans to Revise Definition of Specialty Occupation, Employment, Employer-Employee Relationship, Among Other Actions

On April 4, 2018, L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), sent a letter to Sen. Charles Grassley (R-Iowa), Chairman of the Senate Committee on the Judiciary discussing the agency’s review of existing regulations, policies, and programs and its development of “a combination of rulemaking, policy memoranda, and operational changes to implement the ‘Buy American and Hire American’ Executive Order.” Mr. Cissna said that, among other things, USCIS plans to propose regulations to revise the definition of specialty occupation “to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program,” and to revise the definitions of employment and employer-employee relationship “to better protect U.S. workers and wages.” In addition, he said DHS will propose “additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.” The letter does not specify how these definitions will be revised or when the proposed regulations will be issued.

The letter also confirms USCIS’ plans to propose regulatory changes to remove H-4 dependent spouses from the class of aliens eligible for employment authorization.

Mr. Cissna confirmed that USCIS is also drafting a proposed rule to remove the International Entrepreneur Rule, noting that the rule is currently in effect. He said USCIS has not approved “any parole requests under the International Entrepreneur Rule at this time.”

The USCIS letter is at https://www.judiciary.senate.gov/imo/media/doc/2018-04-04%20USCIS%20to%20CEG%20-%20Buy%20America,%20Hire%20America%20update.pdf.

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Gorsuch Votes Against Trump Administration in Deportation Case; DHS, ICE Issue Statements

U.S. Supreme Court Justice Neil Gorsuch voted with the Democrat-appointed justices in a 5-4 decision in Sessions v. Dimaya holding that a federal law permitting the removal of foreigners guilty of a “crime of violence” is unconstitutionally vague. Among other things, the Court noted that the “ordinary case” of a crime of violence is an excessively speculative thing, and that uncertainty about the level of risk that makes a crime “violent” is fatal. The case involved a permanent resident convicted of the crime of burglary.

Justice Gorsuch concurred in part and concurred in the judgment. Among other things, he agreed with the majority that the Immigration and Nationality Act provision at hand was unconstitutionally vague. He said that in the criminal context, the law generally must afford ordinary people fair notice of the conduct it punishes, and that it was hard to see how the Due Process Clause of the U.S. Constitution might require any less than that in the civil context. With respect to the vagueness of the law in question, he said, “Vague laws invite arbitrary power.” Justice Gorsuch also noted, “The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.” He said he was persuaded that the “void for vagueness” doctrine “serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.”

Tyler Q. Houlton, Department of Homeland Security (DHS) Press Secretary, said the decision “significantly undermines DHS’s efforts to remove aliens convicted of certain violent crimes,” and that it “allows our nation to be a safe haven for criminals and makes us more vulnerable.” Tom Homan, U.S. Immigration and Customs Enforcement (ICE) Deputy Director, said he was “disappointed” by the decision. “As a law enforcement agency, ICE will certainly abide by this decision,” he said, but “it will have an adverse impact on our ability to establish that aliens convicted of certain violent crimes…are removable from the United States and ineligible for certain immigration benefits.” He said it was “yet another example of the need for Congress to urgently close the loopholes that allow criminal aliens to avoid removal and remain in the United States.”

The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf. The DHS Press Secretary’s statement is at https://www.dhs.gov/news/2018/04/17/dhs-press-secretary-statement-sessions-v-dimaya. The ICE Deputy Director’s statement is at https://www.ice.gov/news/releases/ice-deputy-director-statement-sessions-v-dimaya.

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Justice Dept. Settles Immigration-Related Discrimination Claim Against Texas Company

The Department of Justice (DOJ) announced on April 20, 2018, that it reached a settlement with Themesoft, Inc., a Texas-based company that provides consulting and staffing services to technology clients. The settlement resolves DOJ’s investigation into whether the company discriminated against a work-authorized immigrant by refusing to allow him to continue in the hiring process.

The investigation, initiated based on a worker’s complaint, revealed that Themesoft engaged in citizenship status discrimination against an asylee by refusing to process his application because he was not a lawful permanent resident, U.S. citizen, or H-1B visa holder. DOJ noted that asylees have permanent work authorization, like U.S. citizens, U.S. nationals, refugees, and lawful permanent residents, so employers are generally prohibited from discriminating against them based on their citizenship status. The investigation also revealed that Themesoft requested specific immigration documentation from the worker because of his citizenship or immigration status, even though the INA’s antidiscrimination provision prohibits such conduct.

Under the settlement agreement, Themesoft will pay civil penalties for the alleged citizenship status discrimination and the unfair documentary practices. Themesoft will also post notices informing workers about their rights under the INA’s antidiscrimination provision, train its staff, and be subject to departmental monitoring and reporting requirements for three years. During the investigation, Themesoft agreed to pay the worker back pay and offered him a job. The Department’s agreement requires Themesoft to timely pay the worker the remainder of the $12,000 in back pay it still owes him.

“Employers must not engage in unlawful discrimination against asylees,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “This settlement serves as a reminder that companies that refer workers to third-party clients should be mindful of their non-discrimination obligations.”

The settlement agreement is at https://www.justice.gov/opa/press-release/file/1055111/download. The DOJ press release is at https://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-texas-company.

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USCIS Announces Convictions in Two Immigration Fraud Cases

U.S. Citizenship and Immigration Services (USCIS) recently announced convictions in two cases related to immigration fraud.

On April 18, 2018, Jessica Godoy Ramos of Lynwood, California, was sentenced for stealing the identity of a New York attorney and filing immigration petitions on behalf of foreign nationals who believed she was a legitimate lawyer, USCIS announced. Ramos was sentenced to 15 months in federal prison. Upon completion of the prison term, she will spend six months in home detention. Calling the crimes “despicable,” presiding U.S. District Judge Dolly M. Gee also ordered Ramos to pay $29,693 in restitution to 16 identified victims.

According to USCIS, Ms. Ramos accepted tens of thousands of dollars from dozens of people who sought her services in an attempt to obtain legal status in the United States. Using the name of the New York attorney, Ms. Ramos filed immigration petitions on behalf of some of the people, but in other cases, she never performed any services. Ms. Ramos also created counterfeit immigration parole documents to make it appear that she had successfully represented her clients.

According to court documents, Ms. Ramos’ clients initially believed she was a legitimate immigration attorney, but several became suspicious when she directed them to appear at USCIS offices for interviews but they did not have any scheduled appointments.

Sentencing in the second case took place on April 19, 2018. That case involved the owner of four schools, Hee Sun Shim of Hancock Park, California. Mr. Shim enrolled hundreds of foreign nationals to fraudulently obtain immigration documents, which allowed them to remain in the United States as “students” even though they rarely, if ever, attended classes. He was sentenced to 15 months in federal prison and ordered to forfeit more than $450,000.

Mr. Shim, along with two co-defendants, ran a “pay-to-stay” scheme through three schools in Koreatown: Prodee University/Neo-America Language School; Walter Jay M.D. Institute, an Educational Center; and the American College of Forensic Studies. A fourth school in Alhambra, Likie Fashion and Technology College, was also involved in the scheme, which ran for at least five years, USCIS said.

USCIS attributed the convictions to the “considerable efforts of the [USCIS] Los Angeles Fraud Detection and National Security (FDNS) unit. Los Angeles FDNS immigration officers worked closely with law enforcement and intelligence community partners to resolve potential fraud, national security and public safety concerns, and to ensure exchange of current and comprehensive information.”

The USCIS announcement is at https://bit.ly/2JhUyDU.

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ABIL Global: Turkey

Turkey is requiring companies to have online governmental communications accounts to file work permits.

Several years ago, Turkey created an online registration system for receiving official government communications and notices electronically. The Information, Communication and Technologies Authority of Turkey (under the Ministry of Transportation, Maritime Affairs and Communication) created the online communication system for private companies and individuals to receive official notices from various government agencies, called the KEP system (kayitli electronik posta).

The Ministry of Labor (MOL) recently announced that companies and individuals who sponsor work permits must register and use the KEP system. MOL will use the system to electronically handle filings, approvals, cancellations, or Requests for Further Evidence.

KEP Registration Generally

All companies in Turkey (with certain exceptions regarding Liaison Offices) must be registered for the KEP system. A KEP account can be purchased by each company through one of the eight entities designated by the Information, Communication and Technologies Authority (link below). The company then designates a specific individual to act as contact, who is the company’s relevant Social Security (SS) e-notification authority (“designee”). The designee must then obtain an electronic activation tool in the form of a memory stick from the agency to load onto the company’s system.

KEP Registration for MOL/Turkish Work Permits

To initiate the KEP system for work permits, the designee must complete the Company’s MOL registration through the online system at https://ecalismaizni.csgb.gov.tr/#/eizin. This requires uploading several company documents to confirm signature authority and shareholder structure. After that is completed, the designee may then delegate authority to a law firm or other agency to represent the company for work permits.

Problems with the KEP System

The use of the KEP account has not been universally welcomed. One point of contention involves the lack of flexibility with regard to whom the company selects as the designee and
e-signature memory-stick holder. This is because the KEP system for MOL requires that an
e-signature be given to the person designated by a company to be the SS contact. Since many larger companies have third parties designated to be the SS contact (a payroll service provider, for example), reluctance to give that same third party an e-signature for the company is not surprising. Hopefully, the MOL and KEP managers may be able to increase flexibility or change the system to address this business concern.

For further information, see https://www.btk.gov.tr/tr-TR/Sayfalar/KEP-Kayitli-Elektronik-Posta-Hizmet-Saglayicilar.

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Firm In The News

Cyrus Mehta was quoted in the Times of India regarding H-1B lobbying: https://timesofindia.indiatimes.com/business/india-business/tcs-infy-hike-lobbying-spends-in-us/articleshow/63903881.cms.

Mr. Mehta was a guest on the Brian Lehrer show, “Brian Talks New York.” The topic was “Trump vs. New York: Immigration Update.” The video and a description are at http://tv.cuny.edu/show/briantalksny/PR2007128.

Mr. Mehta recently spoke at the following conferences:

  • Panelist, DHS/DOS/CIS Ombudsman, 2018 Immigration Law Conference, New Jersey Institute of Continuing Legal Education, Newark, NJ, April 18, 2018
  • Panelist, Battlefield tactics to successfully obtain nonimmigrant visas in the current environment: NIV’s, L-1B’s, RFE’s, H-1Bs, T N’s and OMG’s, AILA Texas, Oklahoma & New Mexico Chapter Spring Conference, April 20, 2018, San Antonio, TX

Cyrus Mehta was quoted in “There’s still some hope for H4 visa holders in US. Here’s why”, published by The Economic Times at https://economictimes.indiatimes.com/nri/working-abroad/theres-still-some-hope-for-h4-visa-holders-in-us-heres-why/articleshow/63954039.cms

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Mid-April 2018 Immigration Update

Headlines:

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

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

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

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

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

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

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

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

Firm in the News

 

Details:

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

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

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

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

8 U.S.C. § 1325(a) states:

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

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

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

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

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

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

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

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

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

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

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USCIS Launches E-Verify Website

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

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

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

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

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EOIR Announces Controversial Metrics for Immigration Judge Performance

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

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

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

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

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

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

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

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

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National Guard Troops Deploy to Southern U.S. Border

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

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

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

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

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

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

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

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

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

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Reminder: SAVE Goes Paperless

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

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

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Firm In The News

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

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

This is what Who’s Who Legal have said:

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

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

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

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

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H-1B Tips for Employers

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

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

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

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

Mid-March 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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3. DHS Extends TPS for Syria

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

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

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

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4. SAVE Moves From Paper To Electronic Verification Request Submissions

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

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

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

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5. ABIL Global: Belgium

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

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

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

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

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

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

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

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

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6. Firm In The News… 

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

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

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

March 2018 Immigration Update

Headlines:

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

Details:

1.     Supreme Court Declines Trump Administration Appeal in DACA Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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4.     USCIS Expands Credit Card Payment Option for Fees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new mission statement says:

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

The former mission statement said:

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

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

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

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

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

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

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

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

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8.     ABIL Global: Turkey

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

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

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

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

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

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

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

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  1. Firm In The News

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

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

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Mid-February 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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2.     President Trump Calls for Establishment of National Vetting Center

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

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

The statement says:

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

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

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

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

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

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

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

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

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

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

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

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

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5.     Alleged P-3 Entertainer Visa Fraud Scheme Busted

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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  1. Firm In The News

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

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

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

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

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

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