FAQ on Travel Ban

White House Executive Orders: U.S. Travel Ban FAQs

Monday, January 30, 2017 – 9:15am

Note: the information below is based on what we know as of the morning of January 30, 2017.  New developments continue to rapidly change the implementation of President Trump’s Executive Order: “Protecting The Nation From Terrorist Attacks By Foreign Nation,” which includes a ban on entry to the U.S. for citizens of certain Muslim-majority countries.  For individual advice or to know how this Executive Order may impact you, we advise that you consult with our firm.

What Is An Executive Order? Can It Be Challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

On Saturday, January 28, US federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency “stay” that temporarily blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas including green card holders. Several other federal courts have issued similar stays.

What Are The Key Points of This Executive Order?

President Trump signed an Executive Order (EO) the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans.” The EO became effective as of the date of signing. Among the EO’s key provisions are the following:

  • A 90 day ban on the issuance of US visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • An immediate review by the US Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s]. This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the US Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • Requiring all individuals who need visas to apply for them in-person at US consulates, rather than allowing “mail-in” or drop-box applications.

The 90-Day Travel Ban

What exactly does the 90-day ban prohibit?

 The ban halts visa issuance and entry to the United States for affected individuals.

The US Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO – both nonimmigrant (temporary) visas, such as Bs, Fs, H-1Bs, etc. and immigrant visas (green cards)  for those seeking to become US permanent residents.

US Customs and Border Protection (CBP) officers at border crossings, US airports and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

What does it mean to be a “national”?  

A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany, but whose parents were born in Iran, may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.

Does the 90-day travel ban include “dual” nationals? What if the individual was born in one of the 7 countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

Until more information becomes available, we must assume that the ban includes dual nationals in at least some instances. We should assume that it includes those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents. However, certain countries appear to have secured exemptions from the ban for their citizens. Canadian authorities have indicated that the ban will not apply to Canadian citizens traveling on a Canadian passport even if they are dual citizens of one of the 7 countries. It appears there is a similar arrangement in place for British citizens, although some reports suggest it may apply only if those British citizens are coming to the US from the UK rather than directly from one of the 7 countries; other reports suggest that the exemption applies to all British citizens, though those coming directly to the US from one of the 7 countries may face extra scrutiny. Going forward, it is possible that additional countries with close relations with the United States may secure similar treatment for their dual nationals, but for the moment caution is advised for dual citizens of one of the 7 countries and any country other than Canada or Britain.

Does the ban include permanent residents (“green card” holders)?

Initially the ban was being applied to lawful permanent residents (LPRs), but the Secretary of Homeland Security has now indicated that “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare,” LPR status will be “a dispositive factor” in DHS’s determination whether to waive the ban. That is, except under unusual circumstances, the ban will not be applied to LPRs, although LPRs may still face additional questioning upon arrival.

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the 7 countries. Travel to one of the 7 countries however may increase the likelihood of being questioned by CBP about the nature of the visit – why the person was in the country, for how long, etc.  Such individuals may be placed in secondary inspection on arrival at a US airport so that CBP may question them about the purpose and nature of such travel.

Can an affected individual still board a plane and try to enter upon arrival at a US airport?

There have been reports of airlines refusing to board individuals who appear to be affected by the EO’s ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States during the 90 day period, they will most likely not be able to return. The temporary halt in enforcing portions of the ban, discussed below, could end at any time.  We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad.

What about individuals who are outside the United States and want to return?

Airlines may refuse to board anyone who appears to be affected by the ban.  Those who are able to board a plane almost certainly will be refused admission (entry) to the United States on arrival at a US airport. Anyone affected by the ban who is currently outside the United States should consult with an immigration attorney before attempting to return in order to understand the current state of affairs, the risks involved and to develop a strategy based upon his or her individual circumstances.

What will happen to travelers from the 7 countries who are refused entry to the U.S. by CBP?

Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. There is no right to an attorney for individuals who arrive at US airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Keep in mind that CBP officers will be overwhelmed in the coming days in dealing with these arrivals and that it may be difficult – even for experienced immigration attorneys – to communicate quickly with CBP. Wherever possible, advance planning will be critical.

Are there any exceptions to the ban?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York (LINK) issued an emergency stay of certain provisions of the EO. Thus, the US government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide. Several other federal courts have issued similar stays. At least one of the stays, issued in the District of Massachusetts, may potentially allow future flights to the U.S., since CBP has been instructed by the court in that case to advise airlines with flights to Logan Airport that travelers who would otherwise be allowed into the United States will not be refused admission on account of the EO.

The EO as written permits DOS and DHS to issue visas, entry or other immigration benefits to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such waiver requests will be adjudicated in other contexts, or what factors the agencies will consider. Anyone seeking to make such a request is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.

Can CBP detain individuals?

Individuals who are refused admission, and who agree to return on an outbound flight, will be detained or held by CBP until they can depart.

At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. CBP may detain or threaten detention of individuals in such cases.  It is also possible that CBP may agree to defer the inspection of such individuals, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.

How are the US consulates implementing the ban on visas?

There are reports that US consulates are cancelling the nonimmigrant and immigrant visa interviews of anyone subject to the ban.

The American Immigration Lawyers Association (AILA) has received reports that as of the evening of January 27, 2017, all U.S. embassies and consular posts received instructions to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the 7 designated countries who are applying for A, G, NATO, C-2 and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2 and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible. In addition, contractors working with the US embassies and consular posts have been instructed to cancel visa interviews for affected individuals.

How will the EO affect applications pending before the US Citizenship and Immigration Services (USCIS)?

While we do not yet know how USCIS will implement this directive, we assume that the agency may suspend the review and adjudication of applications of affected individuals. This may include adjustment of status applications, applications or petitions to change or extend nonimmigrant status, applications for employment authorization and advance parole travel documents; naturalization applications; and applications for Temporary Protected Status (TPS).

What does the EO mean for the immigration status of someone who is in the United States?

The EO only impacts those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above).

Could the travel ban be longer than 90 days?

The EO states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the travel ban be extended to include other countries?

The EO’s call for a DHS report based, in part, on information provided by other countries that the US government says it needs to property review and vet individuals, appears to allow for DHS to recommend including additional countries in the ban, until they “comply” and provide the US government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the US government.

Suspension Of The US Refugee Admissions Program (USRAP)

Who is affected by the suspension of the USRAP?

All refugees being processed abroad and seeking admission to the United States are impacted.

For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugees applications by and admission of Syrian refugees.

How long is the suspension of USRAP?

The USRAP is suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can only resume refugee admissions for nationals of countries that are found to have sufficient safeguards to ensure security and welfare of the United States.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of sub-sects or minority groups within a country’s predominant religion.

How many refugees will be let in to the United States?

The EO states that DOS and DHS may only admit 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions. If the suspension continues for more than 120 days, it is questionable whether the US will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO. Thus, the US government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas and other individuals from the 7 designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

Elimination of Mailed-In Visa Applications Or The “Drop-Box” Application

The EO eliminates the ability of some individuals who need visas to apply for their visas at US consulate without an in-person interview. Previously, some individuals – due to age, or the fact that they were repeat applicants – could mail-in their passports to the US consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a US visa will be required to make an appointment at a US consulate and appear in-person for the visa interview.

The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. US employers who await the arrival or return of employees may also be negatively impacted given these anticipated slowdowns in the process to obtain US visas.

Does the Executive Order change the Visa Waiver Program or ESTA?

No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP) which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore) may still seek admission to the United States on the basis of their passports and an ESTA clearance.

July 2016 Global Immigration Update

  1. Feature Article

REFUGEES AND RELATED BENEFITS: AN OVERVIEW – This article provides an overview of recent developments with respect to refugees and the benefits granted to them.

  1. Country Updates:

BELGIUM – This article summarizes details on work permit exemptions, related to technical work, for foreign employees in Belgium.

CANADA – Several developments have been announced.

ITALY – Several developments have been announced.

RUSSIA – The Federal Migration Service of Russia has been reorganized.

TURKEY – The European Commission has proposed visa-free travel for Turkish nationals in the Schengen area.

UNITED KINGDOM – Several developments have been announced.

 

  1. Feature Article

REFUGEES AND RELATED BENEFITS: AN OVERVIEW

This article provides an overview of recent developments with respect to refugees and the benefits granted to them.

Canada

In September 2015, a news photograph of a drowned Syrian child sparked a heated debate over refugee rights and Canada’s role to provide refuge. Ever since then, refugee rights have been a recurrent theme in Canada’s media outlets and elsewhere. Below is a brief overview of the benefits granted to refugees (i.e., protected persons or persons who received this status following a favorable pre-removal risk assessment decision) and refugee claimants in Canada with regard to health care coverage and work permits.

Health care coverage. Before June 2012, refugee claimants, even those with pending or failed claims awaiting an appeal, were eligible to be covered under the Interim Federal Health Program, which provided similar health care coverage to what Canadian citizens and permanent residents on social assistance were entitled to (basic health care coverage, prescription drugs, vision care benefits, urgent dental care). Following cuts imposed in 2012 by the Conservative government, coverage became tiered and placed prior eligible persons into four categories. This had the effect of significantly reducing their benefits. On April 1, 2016, following Justice Mactavish’s ruling in the Federal Court that these cuts had a “cruel and unusual” impact on refugee claimants, the Liberal government officially announced that the prior Interim Federal Health Program would be restored to what it was before the changes were introduced. Moreover, it was reported that as of April 2017, additional health care coverage would be available to refugees before their departure for Canada.

Refugees, refugee claimants (determined to be eligible for a hearing), and protected persons now have access to full health care coverage, which includes, for most beneficiaries, coverage for the cost of the Immigration Medical Exam (IME) required under the Immigration and Refugee Protection Act. The Interim Federal Health Program provides resettled refugees with basic coverage until they become eligible for provincial or territorial health insurance as well as supplemental and prescription drug coverage as long as they continue to be assisted by the government. Protected persons have access to basic, supplemental, and prescription drug coverage until they qualify for provincial or territorial health insurance. Refugee claimants have access to the coverage until they become eligible for provincial or territorial health insurance, until they depart from Canada if their claim has been rejected or immediately after their claim is either withdrawn or abandoned or they are re-determined to be ineligible and not able to apply for a pre-removal risk assessment.

Work permits. Most refugee claimants in Canada are eligible to apply for an open work permit. They must prove that their personal information form (PIF) has been filed and referred to the Refugee Protection Division of the Immigration and Refugee Board (IRB), and they must demonstrate their inability to financially sustain themselves without resorting to welfare. If these conditions are met, refugee claimants must undergo a medical examination before a work permit can be issued. In certain cases, a person with a removal order that the Canada Border Services Agency is not able to immediately enforce may be able to obtain a work permit.

 

As noted above, not all refugees are eligible to apply for an open work permit. Those from “designated countries of origin” (such as the United States, Mexico, and most European countries) are prohibited from applying for a work permit unless their claim has been accepted or 180 days following the date their claim has been referred to the IRB.

Germany

The opportunities for refugees to be employed in Germany depend on their residence status.

Applicants with permission to reside (Aufenthaltsgestattung). Foreign third-country nationals having crossed the border who have sought or filed for asylum but are still in asylum proceedings may in principle be granted residence for the purpose of employment with the consent of the labor authorities once they have been in Germany for more than 3 months.

Before giving consent, the labor authorities carry out a job market test by examining the impact of the employment on the labor market, whether priority applicants are available, and the concrete working conditions. With regard to the latter, the applicant must benefit from the same working conditions (e.g., salary and working hours) as applicants from the local job market. However, such a test need not be passed if the application is filed under the EU Blue Card visa category for shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors, or IT consultants earning at least €38,688). The same applies to applications filed under the vocational training visa category (Section 6 Employment Regulation) or the recognized occupation requiring formal training visa category (Section 8 Employment Regulation).

The foreigners’ office can grant residence for the purpose of employment without the consent of the labor authorities in the following cases:

  • Employment as an introductory trainee
  • Employment in in a state-recognized apprenticeable occupation
  • Employment under the highly skilled visa category, the EU Blue Card visa category, or the academic person visa category for holders of a German degree (Section 2 para. 1 Employment Regulation)
  • Employment under the executive visa category (Section 2 Employment Regulation)
  • Employment of a spouse, life partner, relative, or first cousin living together with the applicant in a common household
  • Any employment after four years of having been duly employed in Germany with a residence permit (Aufenthaltserlaubnis), a permission to reside (Duldung), or a temporary suspension of deportation status

Moreover, consent with regard to employees to be employed by temporary agencies may be given only if the applicant resides in Germany for at least 15 months with permission to reside (Aufenthaltsgestattung). In such cases, the priority review is limited to a check of the working conditions based on the specific job, the salary, and the working hours.

Those with permission to reside who must live in a reception facility (Aufnahmeeinrichtung) for six weeks up to six months cannot engage in any employment . The same applies to individuals from countries declared safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia) who filed their application for asylum after August 31, 2015, and must live in a reception facility for the duration of their asylum proceedings or, if their applications are turned down, for the duration until they leave the country.

Applicants with a residence permit (Aufenthaltserlaubnis). Applicants who have received a positive decision as a result of asylum proceedings, regardless of the type of protection (e.g., right of asylum, refugee protection, subsidiary protection) in principle have the right to work, whether on a dependent or self-employed basis. However, in case of a prohibition of deportation, the local foreigners’ office decides whether residence for the purpose of employment is granted. It is noted on the residence title as well as on any additional paperwork that has been issued whether such permission has been granted.

Consent concerning those employed by temporary agencies is only given if the applicant resides in Germany for at least 15 months with a residence permit (Aufenthaltserlaubnis). In such cases, the priority review is limited to a check of the working conditions based on the specific job, the salary, and the working hours.

The foreigners’ office may grant residence for the purpose of employment to applicants from the Balkan states declared safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, Serbia) concerning any kind of employment if the applicant—before entering Germany—has duly filed an application with the German immigration authorities abroad in the country of origin. However, that privilege is limited in time (from 2016 until 2020) and does not apply to applicants who have received benefits under the Seekers’ Benefits Act (Asylbewerberleistungsgesetz) within the last 24 months. The latter does not apply to applicants who filed for asylum between January 1, 2015, and October 24, 2015; resided in Germany on October 24, 2015, with temporary suspension of deportation status (Duldung); and immediately left the country. The aforementioned stipulation is an incentive for those refugees who were in Germany at the time to leave and come back by following the proper process so that the authorities can review the application while the applicant stays abroad.

Applicants with temporary suspension of deportation status (Duldung). Applicants who are not, or are no longer, in asylum proceedings, or whose applications have been turned down but whose deportation has been suspended, are granted a “certificate of suspension of deportation” (Duldung) by the immigration authorities. Such individuals may in principle be granted residence to work with the consent of the labor authorities once they have been in Germany for more than 3 months.

Before giving consent, the labor authorities carry out a job market test by examining the following criteria: the impact of the employment on the labor market, whether priority applicants are available, and the concrete working conditions. With regard to the latter, the applicant must benefit from the same working conditions (e.g., salary and working hours) as applicants from the local job market. However, such a test need not be passed if the application is filed under the EU Blue Card visa category for shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors, or IT consultants earning at least €38,688). The same applies to applications filed under the vocational training visa category (Section 6 Employment Regulation) or the recognized occupation requiring formal training visa category (Section 8 Employment Regulation).

The foreigners’ office can grant residence for the purpose of employment without the consent of the labor authorities in the following cases:

  • Employment as an introductory trainee
  • Employment in a state-recognized apprentice occupation
  • Employment under the highly skilled visa category, the EU Blue Card visa category, or the academic person visa category for holders of a German degree (Section 2 para. 1 Employment Regulation)
  • Employment under the executive visa category (Section 2 Employment Regulation)
  • Employment of a spouse, life partner, relative, or first cousin living together with the applicant in a common household
  • Any employment after four years of working in Germany with a residence permit (Aufenthaltserlaubnis), a permission to reside (Duldung), or a temporary suspension of deportation status

Moreover, consent with regard to employees to be employed by temporary agencies may be given only if the applicant resides in Germany for at least 15 months with a temporary suspension of deportation (Duldung). In such cases, the priority review is limited to a check of the working conditions based on the specific job, the salary, and the working hours.

Those with temporary suspension of deportation status who must live in a reception facility for six weeks up to six months cannot engage in any employment at all. The same applies to individuals having such a status if they entered the country to obtain benefits under the Asylum-Seekers’ Benefits Act; if they prevented residence-terminating measures by, for example, providing misleading information about their identity or nationality; or if they come from a country declared a safe country of origin (e.g., Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia) and their asylum application was filed after August 31, 2015, and was turned down.

Draft Integration Act (Integrationsgesetz). The governing coalition has just presented a draft of the Integration Act intended to facilitate the integration of asylum seekers by making integration measures available at an early stage, but also providing for sanctions if the integration measures are refused or not regularly attended. Furthermore, the principle according to which the grant of residence for the purpose of employment is only possible once the labor authorities have consented after having carried out a job market test will be lifted for three years since, based on the experience of the authorities, the decision was positive in most of the cases anyway. However, this only applies to regions with a low unemployment rate. In any case, the authorities will check whether the conditions of employment, particularly with regard to salary and working hours, are comparable to those that would be offered to an applicant from the local job market.

India

While India has accepted millions of refugees in recent times—mainly Bangladeshis but also Tibetans, Tamil Sri Lankans, Myanmarese, and Afghans—it does not have a separate law on refugees. Moreover, India is not a signatory to the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The Foreigners Act, with its limited definition of “foreigner,” is inadequate to deal with the notions of asylum, non-refoulement, and refugees. On the other hand, India is a signatory to various international and regional treaties and conventions relating to universal human rights and refugees, such as the United Nations Declaration on Territorial Asylum (1967), the Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights. India’s Supreme Court has also extended the application of Article 14 (Right to Equality) and Article 21 (Right to Life and Dignity) to everyone, including migrants and refugees residing within the territory of India. Basic human rights as defined by the United Nations also have been conferred upon refugees in India.

The Ministry of Home Affairs (MHA) intends to amend the Citizenship Act, 1955 to grant citizenship to undocumented migrants who fled religious persecution in Pakistan and Bangladesh. The migrants would include Hindus, Buddhists, Christians, Zoroastrians, Sikhs, and Jains. The MHA seems to have specifically left out Muslims from the list of migrants, or could have allowed any migrant escaping religious persecution. If the criteria for granting citizenship is religious persecution, Muslims should also have been included in this list. The Citizenship Act, 1955 will have to be amended to reflect their exemption from the status of illegal migrant. Accordingly, a bill is being prepared to bring about these changes to the Citizenship Act, 1955 as well as to the Foreigners Act, 1946; the Passport (Entry into India) Act, 1920; and the Passport (Entry into India) Rules 1950.

This benefit will extend to allowing people from “minority” communities in Pakistan who are in India on a long-term visa to buy property, open bank accounts, and obtain permanent account numbers (PANs). Previously, New Delhi announced that Pakistanis and Bangladeshis belonging to minority communities who had entered India legally before December 31, 2014, could stay in the country, even if their statuses had lapsed.

Given the fact that Articles 14 and 15 of the Constitution of India emphasize “equality before law” and “prohibition of discrimination on the basis of religion, caste, sex, race, [and] place of birth,” it will be interesting to see how these amendments to the Citizenship Act or the Foreigners Act will be worded. If such amendments are based on religious discrimination, they may be challenged as violating the fundamental principles laid down by the Constitution of India. The Ministry of External Affairs has also cautioned the Home Ministry that this move could affect relations with India’s neighboring countries. Such a move could also have far-reaching political implications.

Although the Foreigners Act gives unfettered discretion to the government to expel a foreign national, he or she may still invoke the fundamental right to life and liberty as provided for in Article 21 of the Indian Constitution. However, this does not include the right to reside and settle in the country, as provided in Article 19(1)(e), which applies only to citizens of India. In NHRC v. State of Arunachal Pradesh, AIR 1996 SC 1234, the Supreme Court emphasized that it was the duty of a state to protect the life and liberty of Chakma refugees from threats by other groups who are opposed to them, and that the state “must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics.” Moreover, in Ktaer Abbas Al Qutaifi v. Union of India, 1999 CriLJ 919, the Gujrat High Court recognized the principle of non-refoulement in the Refugee Convention so long as the person is not a threat to national security, even though India is not a party to the Convention, as this principle is encompassed in Article 21 of the Indian Constitution.

Italy

Italy’s refugee policies are set forth in Decree 251/2007 (implementing the European Commission (EC)’s directive 2004/83), which establishes a minimum standard for the attribution of the status of refugee, as well as the services they can enjoy (e.g., schooling, employment, healthcare), and Decree 25/2008 (implementing EC directive 2005/85). The decrees identify the basic procedures to assign and end refugee status. Withdrawal can occur when the refugee re-acquires protection from his or her own country, the fear of persecution ends, or he or she acquires a new nationality in a state that can grant his or her protection.

Asylum and protection seekers must present their requests to either the border police at their time of arrival, or the Police Department if they are already on Italian soil. They must remain within a specific area, as determined by the chief officer. The Territorial Commission reviews the application within 30 days and decides whether to interview the applicant. If there is no interview, this may be because there are sufficient reasons to grant refugee status or because the applicant does not have the prerequisites to be granted refugee status. After the interview, the applicant can be granted either refugee status, subsidiary protection, or a stay permit for humanitarian reasons. Refugee status can be refused based on the rejection of the application or for lack of grounds (especially if the individual is found to be applying for protection to delay his or her expulsion from Italy.

United States

In enacting the Refugee Act of 1980, the United States incorporated into domestic law the principles underlying the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The President, in consultation with the U.S. Congress, determines the number of refugees the United States accepts for resettlement each year. This year the United States is accepting 85,000 refugees, including 10,000 refugees from Syria. One year after resettling in the United States, refugees are eligible to apply for permanent resident status.

The United States thoroughly screens all refugee applicants before resettling them in the United States. Successful refugees are investigated at least four times by U.S. and international agencies before they enter the United States. The vetting process can take up to two years.

Shortly after the terrorist attacks in Paris, the U.S. Department of State on November 17, 2015, announced additional screening for Syrian refugee applicants seeking to enter the United States. This process requires Syrian applicants to have their files reviewed at State Department headquarters and then undergo in-person interviews abroad by U.S. Citizenship and Immigration Services (USCIS) officers who have received specialized training. The USCIS Fraud Detection and National Security Unit also separately reviews Syrian refugee applicants with national security concerns. If a Syrian refugee satisfactorily passes these enhanced procedures, he or she must then complete a cultural orientation before entering the United States.

Several U.S. states have expressed concerns about resettling refugees from Syria and other Middle Eastern countries. The federal government and resettlement agencies have sued to prevent state governments from barring Middle Eastern refugees. The federal government argues that U.S. states lack power to refuse refugees based on their country of origin. In general, U.S. courts have ruled that the federal government has supremacy over state governments concerning immigration policy.

Once admitted to the United States, refugees are eligible to work. Employers may find that refugees can fill shortages at a time when other categories of foreign workers are less available than in previous years. A common nonimmigrant employment-based visa category, the H-1B specialty occupation, includes a statutory cap of 65,000 visas under the general-category cap and an additional 20,000 cap under the advanced degree exemption per fiscal year. USCIS received 172,500 H-1B petitions for fiscal year 2015, leaving an unfilled demand for over 107,000 skilled positions. In 2016, potential employers again invested a significant amount of time and effort in the H-1B petition process, only to again have the results decided by a lottery due to the significant number of petitions in excess of the cap. Many refugees are college-educated professionals who may immediately work in specialty occupations for which employers would regularly petition for foreign workers under the H-1B category.

As with all new hires, a Form I-9 (Employment Eligibility Verification) must be completed once a refugee has been offered and has accepted a job with the employer. The refugee should mark “Alien authorized to work” in Section 1 and record “N/A” for the date work authorization expires. Upon admission into the United States, a refugee will be issued a Form I-94/Form I-94A (Arrival/Departure) with an unexpired refugee admission stamp while an employment authorization card is being processed. In completing the I-9, the employer must accept this document as a receipt establishing employment authorization and identity for 90 days. At the end of this 90-day period, the refugee must then present the employer either an original Form I-766 (Employment Authorization Document) or a document from List B, such as a state-issued driver’s license, with a document from List C, such as an unrestricted Social Security card. As with all new hires, a refugee may choose to present any acceptable document from List A or combination of acceptable documents from List B and List C.

Employers are prohibited from discriminating on the basis of race, color, national origin, religion, sex, age, disability, and genetic information. Examples of discrimination include improperly requesting employees to produce more documents than required, improperly requesting that employees present a particular document, improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them, and requiring employees who look or sound “foreign” to present a particular document the employer does not require other employees to present. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices investigates immigration-related discrimination claims and sues employers on behalf of immigrant workers complaining of discrimination.

Syrian refugees are only the latest group to become the focus of anxiety and discrimination. Employers should remind those who may avoid, insult, harass, or slight their new co-workers based on their nationality that such discrimination is un-American and can subject the company to lawsuits. Setting aside the legal issues, and reflecting practically on the disturbing world we live in today, it is a sad fact that we may need to worry more about our unscreened, U.S.-born applicants and co-workers than we do about extensively vetted refugees.

A Department of State fact sheet with frequently asked questions on the Syrian refugee admissions program is at http://www.state.gov/j/prm/releases/factsheets/2016/254651.htm. An overview of the U.S. refugee resettlement program is at http://www.acf.hhs.gov/programs/orr/resource/the-us-refugee-resettlement-program-an-overview.

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  1. Country Updates

Belgium

Below is a summary of details on work permit exemptions, related to technical work, for foreign employees in Belgium.

In principle, any employment in Belgium of a foreign employee requires a work permit, unless an exemption applies.

Several activities are considered business visitors’ activities, which do not trigger a work permit requirement, such as technical activities like initial assembly or first installation of a product. Such a service is defined as: (i) an essential part of a sales/supply agreement; (ii) necessary for the use of the product; and (iii) provided by qualified and/or specialized employees of the supplier. Work in the construction/building industry is excluded.

Official comments from the authorities refer to the following example:

An American company sells a highly technological printing press to a Belgian printing company. The company sends two technicians. They have to install the printing press, adjust it, and provide the Belgian client’s personnel with a training course. All of this takes 5 days. This American company and its employees are exempt.

The work permit exemption only applies to employees who are posted/assigned to Belgium, and the work cannot take longer than 8 days. There is no salary requirement.

Another business visitor activity is urgent maintenance of and repair work on a product. The scope of this work by specialized technical workers is the performing of urgent maintenance of and repair work on goods supplied by the foreign employer to a Belgian customer. The regulations explicitly confirm that IT work falls under the scope of this work permit exemption.

Official comments from the authorities refer to the following example:

The air-conditioning in a Belgian company is defective. The company contacts the supplier in…, who sends out a technician. After half a day the technical problem is solved. The … employer/supplier is exempt from the declaration.

This exemption only applies to employees who are posted/assigned to Belgium, and the employee cannot work more than 5 days per month. The remuneration of the employee must be at least equal to the Belgian minimum wage.

The employer who invokes a work permit exemption must be able to prove that the conditions for the exemption are met (such as in the event of audit by social inspection services). There are specific rules regarding the minimum initial documentation required:

  • For initial assembly and/or first installation of a product: a sworn statement by the employer, and a copy of the supply contract;
  • For urgent maintenance of and repair work on a product: a sworn statement by the employer, and a statement by the client regarding the urgency of the work.

In the event of an audit, the social inspection services can “overrule” the employer’s sworn statement: they can opine on the basis of the facts that the work permit exemption does not apply. This could result in civil or criminal proceedings.

As a general requirement, to be able to invoke a work permit exemption, the employees must be legally residing in Belgium. Unless the employees reside in a hotel, they must make a declaration of arrival with the municipal authorities of the town where they will reside within three working days of arrival.

Legal residence in Belgium for visa waiver citizens implies that the employees have not yet resided in the Schengen area more than 90 days in any 180-day period. Furthermore, these employees must hold a travel document that (i) is valid “at least 3 months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”), and (ii) has “been issued within the previous 10 years.”

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CANADA

Several developments have been announced.

Many are being caught unprepared by new primary inspection tools. Beginning in November 2015, the Canada Border Services Agency (CBSA) updated its frontline systems so that CBSA officers working the Primary Inspection Line (PIL) at border crossings now have immediate access to the Canadian Police Information Centre (CPIC) database. Previously, these frontline officers only had access to an immigration-related database, and an individual seeking to enter Canada would need to be referred to secondary inspection for an Officer to run his or her information through CPIC.

The introduction of this change has affected the information available to PIL CBSA officers, and has the potential to affect any foreign national who has ever been arrested, charged, or convicted of a crime inside or outside of Canada. In the first month of operation, this procedural change flagged 1,800 cases where travelers were identified as having outstanding warrants against them.

All foreign nationals seeking to enter Canada who have been subject to an arrest, charge, or conviction in or outside of Canada need to proactively consider if they are inadmissible to Canada and be prepared to address any issues, including disclosing their past history. Of importance is the fact that the CPIC information is not always up-to-date, so even if the matter was resolved without a conviction (i.e., dismissed or finding of not guilty), the onus is on the foreign national to satisfy the CBSA officer that he or she is admissible. Depending on the nature of the charge or conviction, these foreign nationals might find that prior incidents render them inadmissible to Canada. Failure to disclose the information on entry can result in a finding of misrepresentation, and could lead to a five-year ban on entering Canada, or refusals of future immigration applications. Even without the CPIC system, it is imperative that a foreign national disclose any past infractions, from driving while impaired to issues of criminality.

There are ways to overcome inadmissibility based on a past criminal activity. These include a discretionary application known as a Temporary Resident Permit or a finding of “deemed rehabilitation,” which can be executed directly at the port of entry, or a more involved application for rehabilitation that typically needs to be filed at a Canadian embassy or consular office outside Canada before entry.

Administrative monetary penalties are introduced for employers failing to comply with rules for foreign workers. Canada has introduced a new system of financial penalties and other consequences for employers found to be non-compliant with the conditions of the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). New regulations introducing fines known as Administrative Monetary Penalties (AMPs), and bans on hiring foreign workers for whom work permits are required, came into force on December 1, 2015.

The new system takes various factors into consideration, including the nature and severity of the violation, the employer’s compliance history, and the size of the employer. A points system is used to determine the amount of any applicable fines and the length of any applicable bans. In the spirit of encouraging compliance with program conditions, employers are encouraged to voluntarily disclose non-compliance and may receive reduced consequences for doing so, depending on the circumstances.

Therefore, it is particularly important that employers ensure their employees’ working conditions (such as name of employer, work location, occupation, and wage) remain the same as those outlined in the Labour Market Impact Assessment (LMIA) approval letter or, in the case of an LMIA-exempt position, that the name of the employer, work location, and occupation match those outlined in the offer of employment provided to Immigration, Refugees and Citizenship Canada (IRCC), formerly Citizenship and Immigration Canada. Note, however, that IRCC may see a significant change in wages as an indication that the occupation has changed, and additional information establishing that this is not the case could be required.

The potential consequences for employers are significant: up to $1,000,000 in fines and a permanent ban on hiring foreign workers for whom work permits are required. Consequences may be reduced if employers voluntarily disclose non-compliance and provide justification, especially if employers are able to demonstrate that they were proactive in reporting or addressing the discrepancy or violation. Employers are encouraged to take the following steps:

  1. Identify all foreign workers in the organization with Canadian work permits.
  2. For each foreign worker with an LMIA-based work permit, compare his or her current occupation (job title and duties), wages (including benefits and other compensation), and work location with what was indicated on the LMIA approval letter. Identify any discrepancies and consult with immigration counsel on whether to report these discrepancies to Service Canada as not substantially the same terms as those initially approved.
  3. Review each other Canadian employer-specific work permit to determine if the employer, occupation (job title and duties), and work location are consistent with what is listed on the work permit and with what was submitted to IRCC at the time the work permit application was made. Identify any discrepancies and consult with immigration counsel on whether an application to vary and change the work permit should be made.
  4. Set up a flag in employment records for all employees holding employer-specific Canadian work permits as a reminder to the human resources team that any changes in wage, occupation, or work location should be reviewed with immigration counsel.
  5. Educate human resources personnel and employees with Canadian work permits on the potential implications of changing wages, location of work, or job duties.
  6. Consider implementing a workplace harassment policy, harassment awareness training, and a mechanism for employees to report concerns.
  7. Take steps to review and ensure compliance with provincial and federal legislation regulating employment and the recruitment of employees.
  8. Develop an immigration strategy to transition foreign workers to Canadian permanent residence.
  9. Take steps to ensure that payroll and recruiting records for workers holding Canadian work permits are maintained for 6 years.

As of October 26, 2015, employers offering employment to LMIA-exempt foreign nationals must submit compliance information through the new IRCC Employer Portal. The IMM 5802 form (Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA)) that was in place since February 21, 2015, is no longer accepted. For a foreign worker employed by a non-Canadian company, it is unclear whether the Canadian company receiving the benefit of the work or the foreign worker’s non-Canadian employer is responsible for filing the compliance form and ultimately liable if there is a finding of non-compliance. Recently, IRCC stated that the Canadian company receiving the benefit of the work performed by the foreign worker is responsible for filing the compliance form. Accordingly, the Canadian company will be held liable if there is a finding of non-compliance.

Many Canadian companies are reluctant to assume responsibility for filing the compliance form for their foreign vendors or foreign vendors’ employees. Those that are prepared to file may seek an indemnification from the foreign vendor to mitigate against the foreign vendor’s not keeping payroll records or failing to pay the foreign worker the wage offered at the time the work permit was issued. In other instances, the foreign vendor may be unwilling to provide the Canadian company with details of wages paid to their employees, which are necessary for the Canadian company to file the compliance form. Vendors typically want to avoid the Canadian company’s knowing the foreign vendor’s profit margins. Consequently, this new compliance scheme is likely to have a chilling effect on trade relationships between Canadian and foreign vendors providing services. The foreign national cannot proceed with a work permit application at a port of entry or through a visa office without this compliance requirement first having been completed online.

Given the potential severity of these new penalties and consequences, it is imperative that employers provide accurate and complete information on all LMIA and LMIA-exempt applications.

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ITALY

Several developments have been announced.

Tax on residence permits declared void. The TAR, Lazio’s Regional Administrative Court, has declared void part of the Ministerial decree of October 6, 2011, introducing a residence permit tax and abolishing the fee on applications. This comes after the European Court of Justice had judged the Italian residence permit application tax a breach of European Union (EU) regulations, being disproportionate and a limit on the rights of foreign citizens. The decree had set the renewal fee at a variable rate of 80 to 200 euros, replacing the previous lower fee. Although the tax should no longer be applied, other expenses remain, such as €16 for stamps, €30.46 for the electronic card, and €30 for post office services.

It is likely that the Italian government will lower the tax to an amount considered acceptable by the EU. Further developments and instructions are expected soon.

Increased filing fees for electronic residence permit card. Under a ministerial decree of March 10, 2016, issued by the Ministry of Economy and Finance, the Italian government has increased filing fees for the electronic residence permit (permesso di soggiorno) in credit-card format (format pursuant to Council Regulations No. 1030/2002 and No. 380/2008). The new fee amounts are:

  • Residence permit card—fee waiver: €30.46 (previously €27.50)
  • Residence permit card valid from three months to one year: €110,46 (previously €107,50)
  • Residence permit card valid from one to two years: €130.46 (previously €127.50)
  • EC residence permit card for long-term residents and intracompany residence permit cards for managers and highly skilled workers (application pursuant to Art. 27a of Italian immigration law): €230.46 (previously €227.50)

Counsel no longer allowed to accompany clients submitting applications at Milan Police Office. The Police Office in Milan no longer allows local counsel to accompany clients while they are submitting applications. Counsel can stay with their clients in the waiting room, but when clerks summon applicants to submit the applications, they cannot be accompanied by a third party. In addition, serious delays have been reported in appointments for fingerprinting. Individuals who have filed applications in May have been summoned for September appointments, for example.

Revocation of EC residence permit for long-term residents—right to maintain an ordinary permit of stay if the individual meets the conditions set forth by law. The Administrative Appeal Council (Consiglio di Stato, April 5, 2016, no. 1327) overturned a decision of the Administrative Court and declared that if an EC permit for a long-term resident is revoked, an expulsion order cannot be issued without taking into account whether the individual has the right to obtain an ordinary permit of stay and therefore is still entitled to remain in Italy on different grounds. An exception exists if the individual is a danger to national security.

Civil union law for same-sex couples passes. A same-sex civil union law was published in the official gazette on May 21, 2016, and took effect June 5, 2016. Implementing decrees will follow to harmonize all other regulations—included immigration regulations—with the new law.For the full text of the law (Italian only), see: http://www.gazzettaufficiale.it/eli/id/2016/05/21/16G00082/sg

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RUSSIA

The Federal Migration Service of Russia has been reorganized.

On April 5, 2016, Russian President Vladimir Putin signed a Presidential Order reorganizing the Federal Migration Service of Russia. Specifically, it no longer exists as an independent government service. It is one of the departments of the Internal Affairs Ministry.

Previously, the Federal Migration Service had been a part of the Internal Affairs Ministry. It was detached from the Internal Affairs Ministry and established as a separate government service in 2004.

Over the last few years, Federal Migration Service officials complained that the Service did not belong to the so-called “enforcement agencies” and was therefore not able to conduct investigations, arrest people, and overall engage in operational-search activity. The Service constantly required Internal Affairs assistance in such matters. The “merger” is expected to solve this problem.

President Putin also announced that a third of the Federal Migration Service employees will be dismissed. It remains to be seen whether this will affect the efficiency of the Service.

The change is only organizational and no related legislative changes in the immigration sphere have yet been made.

Kirillova Olga Evgenievna has been appointed as the chief of the Federal Migration Service, replacing Romodanovskiy Konstantin Olegovich.

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TURKEY

The European Commission has proposed visa-free travel for Turkish nationals in the Schengen area.

Under a European Commission proposal for visa-free travel for Turkish citizens in the Schengen area, Turks would have visa-free access to the 26 countries of the Schengen zone. This is reportedly in return for Turkey accepting back an outflow of migrants traveling via the Aegean Sea to Greece.

The proposed change would lift visa requirements by the end of June for Turks traveling for short-stay (three-month) tourism or business trips, but will not include granting Turks the right to get a job in Europe. The change could take effect from July, but first it requires approval by the European Parliament and member states. It will not apply to the United Kingdom or Ireland, which are not part of the Schengen area, so the visa requirement will still apply to Turks traveling to those areas.

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UNITED KINGDOM

Several developments have been announced.

Immigration Act 2016 Enacted

The Immigration Bill has completed its passage through Parliament. The bill received Royal Assent on May 12, 2016, and was published on May 17, 2016, as the Immigration Act 2016. The bill creates a number of new criminal offenses of which both individuals and businesses need to be aware and for which they should plan to ensure that they do not fall afoul of the new law. A summary of some of the key proposed offenses is outlined below.

Illegal Working

There is a new offense for an employee who works illegally. This offense applies where a person works when he or she has not been granted leave to enter or remain in the United Kingdom (UK), or the person’s leave to enter or remain in the UK is invalid or has ceased to have effect, or the person is subject to a condition preventing him or her from doing the work. The proposed offense is punishable by imprisonment for up to a maximum of 51 weeks (currently 6 months), or by a fine, or both. A person convicted of the offense may also have his or her earnings seized. “Working” is given a broad statutory definition that purports to cover an array of working arrangements.

Crucially for businesses, the bill includes an offense of employing an illegal worker. This offense covers a situation where a person employs an employee who is disqualified from employment by reason of the employee’s immigration status and the hirer has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status.

This offense has a broader application than its predecessor under § 21 of the Immigration, Asylum and Nationality Act 2006. This offense now can be tried on indictment and a maximum penalty of five years of imprisonment can be imposed. This offense is in addition to the civil penalties under § 15 of the Immigration, Asylum and Nationality Act 2006, under which a company can be fined for employing an illegal worker.

This new offense means that businesses in particular need to be much more diligent about ensuring the correct checks are made when hiring new employees to avoid criminal liability.

Residential Tenancies

The bill creates an offense where a landlord knows or has reasonable grounds to believe that an adult is disqualified from renting as a result of his or her immigration status, yet allows the adult to occupy residential premises. There is also a separate offense where a tenant’s leave to remain in the UK expires during the term of the tenancy, the tenant continues to occupy the property, and the landlord is aware of this or has reasonable cause to believe this has happened but fails to notify the Secretary of State as soon as reasonably practicable.

Similar offenses apply to letting (leasing) agents when they carry out “right to rent” checks on behalf of a landlord and know, or have reasonable cause to believe, that a landlord will be entering into a tenancy agreement with a person disqualified as a result of his or her immigration status and fail to inform the landlord despite having sufficient opportunity to do so.

Driving

There are further powers relating to the provision of driving licenses. These include a power to search premises for a driving license belonging to someone unlawfully in the UK that has been revoked. There is also a criminal offense for failing to surrender a driving license that has been revoked on the grounds of immigration status without reasonable excuse. Finally, there is a new offense of unlawfully driving while in the UK. This offense criminalizes someone who is caught driving while unlawfully in the UK as a result of his or her immigration status.

This package of criminal offenses (which are designed to work alongside additional civil powers) makes it very difficult for people unlawfully in the UK to live a normal life. In addition, the new offenses now place onerous burdens on (often small) businesses to undertake checks on employees and tenants. The best way for businesses and landlords to ensure that they do not fall afoul of the criminal law is to ensure that the correct checks are undertaken, and that records of the checks are retained.

Changes to Tier 2

Following the publication of the Migration Advisory Committee (MAC)’s report on its review of the Tier 2 visa category in January 2016, the Home Office has announced details of the changes it will introduce for the Tier 2 visa route. Despite fears that the restrictive measures recommended by the MAC would be followed in their entirety, the government has adopted a more cautious approach in some areas and decided not to introduce some of the changes that would have been most damaging to businesses.

The changes will be introduced in two stages. The first tranche is expected to take effect in autumn 2016 (most likely with the October Rules changes). The second tranche will be implemented with the April 2017 Rules changes. They are as follows:

Autumn 2016 changes:

  • There will be an increase in the Tier 2 (General) minimum salary threshold to £25,000 for experienced workers, maintaining the minimum threshold of £20,800 for new entrants.
  • There will be exemptions from the increased Tier 2 (General) experienced worker salary threshold for nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin. The exemption will end in July 2019.
  • The salary threshold for the Tier 2 (ICT) Short-Term route will be raised to £30,000.
  • The minimum salary requirement for the Tier 2 ICT (Graduate Trainee) category will be reduced from £24,800 to £23,000, and the number of places available to companies will rise from 5 to 20 per year.
  • The Tier 2 (ICT) Skills Transfer category will be closed to new applications.
  • Extra weighting will be given to overseas graduates in the Tier 2 (General) monthly quota allocation, to make it easier for employers to score the necessary points to secure a restricted Certificate of Sponsorship.
  • Employers will continue to be able to sponsor non-European Economic Area (EEA) graduates of UK universities without first testing the resident labor market and without being subject to the annual limit on Tier 2 (General) places. Graduates will also be able to switch roles once they secure permanent jobs at the end of their training programs, without the sponsors having to undertake resident labor market tests.
  • The Immigration Health Surcharge will be introduced for the Tier 2 (ICT) category.
  • Nurses will remain on the shortage occupation list but employers will need to carry out a resident labor market test before recruiting a non-EEA nurse.

April 2017 changes:

  • The Tier 2 (General) minimum salary threshold will be raised to £30,000 for experienced workers.
  • The Tier 2 (ICT) Short-Term category will be closed to new applications.
  • The Immigration Skills Charge (ISC) will be introduced for employers of Tier 2 migrants. This will be £1,000 per migrant per annum (£364 for small businesses and those in the charitable sector). An exemption to the charge will apply to PhD-level jobs and international students switching from Tier 4 to Tier 2 (General).
  • The high-earners’ salary for Long-Term ICTs will be reduced from £155,300 to £120,000.
  • The one-year experience requirement in the Long-Term ICT category will be removed where the applicant is earning over £73,900.
  • There will be a waiver of the resident labor market test and prioritization for Tier 2 (General) places where the visa grant(s) are in support of the relocation of a high-value business to the UK or, potentially, an inward investment project.
  • The MAC’s recommendation of a 24-month period of employment to qualify for Tier 2 (ICT) will not be introduced.
  • Following a review of allowances under the Tier 2 (ICT) categories, there may be some changes to the type and amount of any allowance that can be amalgamated with the base salary, to meet the minimum salary threshold.

These measures will be a relief to those employers running graduate recruitment programs, since the government has decided not to introduce any restrictions that would jeopardize these programs. Furthermore, the reduction in the high-earner threshold to £120,000 will remove more migrants from the annual limit on Tier 2 (General) places, leaving more available for those earning lower salaries. In addition, with regard to those Tier 2 (ICT) migrants earning more than £73,900, removing the requirement for 12 months of employment overseas will make it easier for sponsors to transfer these highly skilled migrants from their overseas offices to take up work in the UK at short notice.

It is unclear how the 12-month cooling-off period will apply to those Tier 2 (ICT) migrants transferring to the UK for a short period, once the Tier 2 (ICT) Short-Term route is closed in April 2017. Currently, Tier 2 (ICT) Short-Term migrants can return to the UK under the Tier 2 (ICT) Long-Term route without first having to spend 12 months overseas (known as the 12-month cooling-off period). Will migrants needing to come to the UK for short periods continue to be exempt from the cooling-off period if they are coming to the UK for three months or less and will this minimum period be increased if the cooling-off period will continue to apply?

Also, the finer details of how the ISC will apply to sponsors who are also paying an Apprenticeship Levy have yet to be clarified. It is hoped that sponsors will not be subjected to a double charge.

Tier 2 Migrants Taking a Sabbatical

The latest version of the Tiers 2 and 5 sponsor guidance took effect on April 6, 2016. The guidance includes changes to the reporting requirements for Tier 2 migrants who wish to take a period of unpaid leave or sabbatical. The prior position was that if a Tier 2 migrant took a sabbatical of 30 days or more over a single period, or over more than one period during any calendar year (January 1 to December 31), the employer could no longer sponsor the migrant and had to report this to the Home Office via the Sponsor Management System within 10 days. The new guidance stipulates that sponsorship of the migrant must now cease if the period of unpaid leave or sabbatical is four weeks or more. The four weeks is calculated according to the migrant’s normal working pattern. For example, if the migrant works three days per week, the four weeks would be 12 working days. In effect, this means that Tier 2 migrants must ensure that any unpaid leave or sabbatical taken is under four weeks.

The only exception is if the absence is due to maternity, paternity, shared parental, adoption, or long-term sick leave. In those cases, sponsorship of the Tier 2 migrant may continue throughout the period of the absence.

Delays in Production of Biometric Residence Permits

Some migrant employees have experienced delays in receiving their Biometric Residence Permits (BRPs). This is reportedly due to technical issues affecting BRP production that have led to a backlog. The Home Office expects that the backlog should be cleared shortly. The normal timescale for receiving a BRP is 10 working days from the date of decision.

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January 2016 Immigration Update

Headlines:
 
1. USCIS Seeks Comments on Proposed Rule to Change Certain Employment-Based Visa Programs – USCIS seeks public comments on a proposed rule published on December 31, 2015, “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” that would change certain aspects of employment-based visa programs.
 
2. Omnibus Bill Includes Hefty Fee Increases for L-1 and H-1B Visas, EB-5 Regional Center Extension, Other Immigration-Related Provisions – The combined omnibus bill that Congress passed on December 18, 2015, includes several immigration measures.
 
3. Labor Dept. Issues Emergency Guidance on H-2B Changes – The Office of Foreign Labor Certification has provided emergency guidance to employers seeking to employ nonimmigrant workers in H-2B temporary or seasonal nonagricultural employment. The guidance is for employers seeking to obtain prevailing wage determinations and temporary labor certifications.
 
4. Secretary of State Kerry Sends Letter to Iranian Foreign Minister re Visa Waiver Issues – Kerry said, among other things, that the United States remained committed to lifting visa sanctions as provided under a recent nuclear deal with Iran.
 
5. House Votes for Stricter Visa Waiver Program Following Terror Concerns; Obama Announces Changes – Following recent terror attacks in Paris, France, and San Bernardino, California, the U.S. House of Representatives voted to tighten restrictions on travelers under the VWP. Also, President Barack Obama announced new security measures for the VWP, including gathering more information from travelers about visits to Syria and Iraq.
 
6. Obama Orders Review of K-1 Fiancé(e) Visa Program Following California Attack – President Barack Obama has ordered a review of the K-1 fiancé(e) visa program in response to terrorism concerns following the mass shooting in San Bernardino, California. 
 
7. DHS Considers Removing Hundreds of Newly Arrived Undocumented Families; Candidates React – According to reports, the Obama administration is considering removing hundreds of families who came to the United States without authorization and have been ordered to leave by an immigration judge. The vast majority are said to have fled violence in Central America. 
 
8. OSC Opines on Terminating U.S. Workers and Hiring Contract Workers – An individual recently received a response to a question about whether an employer may terminate U.S. workers and rely instead on contract workers with temporary work visas.
 
9. OSC, ICE Issue Joint Guidance for Employers Conducting I-9 Audits – The guidance notes that although not required by law, an employer may conduct an internal audit of I-9 forms to ensure ongoing compliance with the employer sanctions provision of the INA. An employer may choose to review all or a sample of I-9 forms selected based on neutral and nondiscriminatory criteria.
 
10. USCIS Transfers Some Cases From Vermont Service Center – USCIS will notify those whose cases are transferred. The original receipt number will not change, and processing of the case will not be delayed “except for the additional time needed to transfer the file.” The filing location and instructions for these forms will not change.
 
11. USCIS Updates Petition to Remove Conditions on Residence for Marriage-Based Green Cards – The new edition is dated 11/23/15.
 
12. USCIS Changes Filing Location for Notices of Motion or Appeal Related to Citizenship Applications – Starting on January 1, 2016, those filing a Notice of Motion or Appeal in response to a decision on citizenship application must mail the I-290B to the Chicago Lockbox. USCIS will no longer accept these forms at local field offices.
 
13. BALCA Holds That Institutions of Higher Education Need Not Include Other Types of Entities in Wage Surveys – In Matter of University of Michigan, the BALCA ruled in favor of an employer that argued its wage survey of institutions of higher education was sufficient in determining the prevailing wage for a Senior Associate Regulatory Analyst.
 
14. Users Report Problems With New 9 FAM-e – Among other things, users report that the crosswalked citations for the new 9 FAM-e in some cases do not correspond appropriately to sections in the legacy 9 FAM.
 
15. Firm In The News…
 
Details:
 
1. USCIS Seeks Comments on Proposed Rule to Change Certain Employment-Based Visa Programs
 
U.S. Citizenship and Immigration Services (USCIS) seeks public comments on a proposed rule published on December 31, 2015, “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” that would change certain aspects of employment-based visa programs. USCIS is also proposing regulatory amendments “to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).”
 
Comments are due by February 29, 2016. To submit comments, follow the instructions in the notice.
 
Among other things, USCIS said it proposes to amend its regulations to:
  • Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’s consistency in adjudication.
  • Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. USCIS said the proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
  • Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I-140 petitions because the employer withdrew the petition or because the employer’s business shut down.
  • Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:
  1. Are the beneficiaries of an approved I-140 petition;
  2. Remain unable to adjust status due to visa unavailability; and
  3. Can demonstrate that compelling circumstances exist that justify issuing an employment authorization document.
Such employment authorization may only be renewed in limited circumstances.
 
(Note:  This provision has justifiably disappointed the beneficiaries of employment-based I-140 petitions who are caught in the backlogs.  It will benefit a very limited amount of people, and the “compelling circumstances” standard is also extremely high.  Furthermore, renewal of the employment authorization is only possible if the beneficiary’s priority date is within one year of the official cut-off date or if the beneficiary can once again show compelling circumstances)  
 
Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.
These proposed changes do not take effect now. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.
 
 
2. Omnibus Bill Includes Hefty Fee Increases for L-1 and H-1B Visas, EB-5 Regional Center Extension, Other Immigration-Related Provisions
 
The combined omnibus spending bill that Congress passed on December 18, 2015, includes several immigration measures. Among other things, the supplemental fees for L-1 and H-1B petitions are increasing for companies that employ 50 or more employees in the United States and have more than 50 percent of their U.S. workforce in H-1B, L-1A, or L-1B nonimmigrant status. Specifically, the previously expired fees for L-1 petitions will increase from $2,250 to $4,500, and the fees for H-1B petitions will increase from $2,000 to $4,000. These supplemental fees must be paid on initial and extension petitions.
 
The bill also extends without substantive changes through September 30, 2016, four immigration programs: the EB-5 regional center program, the E-Verify program, the religious worker visa program, and the Conrad State 30 waiver program for certain foreign doctors on J-1 visas.
 
Also passed was a prohibition against foreign nationals in the Visa Waiver Program (VWP) if they have visited Syria or Iraq at any time on or after March 1, 2011. The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan. The omnibus spending law exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government. In addition, the U.S. government may waive exclusion from the VWP program if it would be in the law enforcement or national security interests of the United States.
 
The new law also allows certain workers previously counted against the H-2B cap to return to the United States without being counted against the cap a second time.
 
 
3. Labor Dept. Issues Emergency Guidance on H-2B Changes
 
Responding to new requirements contained in the 2016 Department of Labor Appropriations Act, which was signed into law on December 18, 2015, as part of the omnibus spending bill mentioned in the prior article, the Labor Department’s Office of Foreign Labor Certification (OFLC) has provided emergency guidance to employers seeking to employ nonimmigrant workers in H-2B temporary or seasonal nonagricultural employment. The operational guidance is for employers seeking to obtain prevailing wage determinations and temporary labor certifications under the H-2B nonimmigrant visa classification.
 
Among other things, the guidance notes that certain provisions in the Appropriations Act require non-substantive modifications to ETA Form 9165. To comply with the law, OFLC has requested emergency approval from the Office of Management and Budget (OMB) on non-substantive changes to the form. The guidance states that until a notice of action is issued by the OMB, the Certifying Officer (CO) cannot issue a prevailing wage determination where use of a private survey has been requested. 
 
The new provisions also require non-substantive modifications to Appendix B of the Form ETA-9142B. Specifically, the current Appendix B contains references to an employer’s compliance with the wage offer guarantee, corresponding employment, three-fourths guarantee, and the definition of temporary need under 20 CFR § 655.6. To comply with the new law, OFLC has requested emergency approval from OMB on non-substantive changes to the Appendix B. Until a notice of action is issued by OMB, the CO cannot issue any certification determinations on H-2B applications for temporary labor certification. 
 
When a certification decision is issued, the CO will provide the employer with a copy of the revised Appendix B approved by OMB as well as a Final Determination Letter containing instructions for submitting all appropriate documentation to U.S. Citizenship and Immigration Services. Until OMB approves a revised Appendix B, employers may continue to file H-2B applications with the prior version of Appendix B. After receipt of the notice of action from the OMB, the OFLC will provide a revised Appendix B to the employer with a certification decision.
 
The OFLC said it will issue a further announcement as soon as the agency has received the notices from the OMB. The guidance is at https://www.foreignlaborcert.doleta.gov/pdf/Emergency_Guidance_2016_DOL_Appropriations_Act.pdf. Additional guidance on prevailing wage determinations, issued December 29, 2015, is at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf
 
4. Secretary of State Kerry Sends Letter to Iranian Foreign Minister re Visa Waiver Issues
 
U.S. Secretary of State John Kerry sent a letter on December 19, 2015, to Iranian Foreign Minister Mohammad Javad Zarif assuring him that the United States remains committed to lifting visa sanctions as provided for under the Joint Comprehensive Plan of Action (JCPOA). The JCPOA is a diplomatic agreement intended to ensure that Iran’s nuclear program remains peaceful. Among other things the JCPOA will eventually lift certain economic and visa sanctions on Iran.
 
Secretary of State Kerry noted that the Obama administration has the authority to waive recent changes in visa requirements passed in Congress as part of the omnibus spending bill. See the omnibus article in this issue, above. Secretary Kerry expressed confidence that the visa provisions in the omnibus spending bill “will not in any way prevent us from meeting our JCPOA commitments, and that we will implement them so as not to interfere with legitimate business interests of Iran.” To this end, he noted that the United States has “a number of potential tools available to us, including multiple entry ten-year business visas, programs for expediting business visas, and the waiver authority provided under the new legislation.” He said he would be “happy to discuss this further and provide any additional clarification.”
 
The text of the letter is at http://www.niacouncil.org/text-sec-kerry-letter-to-zarif-regarding-visa-waiver-reform/. For more on JCPOA, see http://www.state.gov/e/eb/tfs/spi/iran/jcpoa/. The visa provisions are set forth in JCPOA Annex 2.
 
5. House Votes for Stricter Visa Waiver Program Following Terror Concerns; Obama Announces Changes
 
Following recent terror attacks in Paris, France, and San Bernardino, California, the U.S. House of Representatives voted on December 8, 2015, to tighten restrictions on travelers under the Visa Waiver Program (VWP). The VWP allows people from 38 countries to enter the United States for up to 90 days without obtaining a visa. The bill passed 407 to 19. The bill would require visitors to obtain a visa if they traveled to Syria, Iraq, Iran, or Sudan during the past five years, and would increase information-sharing among the United States and other participating VWP countries, among other things. The Senate has not yet voted on the legislation.
 
Also, President Barack Obama announced new security measures for the VWP, including gathering more information from travelers about visits to Syria and Iraq. The administration is also considering pilot programs for collecting biometric information from VWP travelers, and is urging Congress to allow an increase in fines against air carriers that do not properly verify passport data and to require all travelers to use passports that include security chips. These measures come amid pressure separately from many U.S. governors against allowing in an additional 10,000 Syrian refugees.
 
The U.S. Travel Association, which supports the House-passed measure, noted that the VWP facilitates international travel to the United States, generating billions of dollars in economic output and supporting U.S. jobs. International travelers stay longer and spend more while here, the association noted, with an average of 18 nights and nearly $4,400 per person per trip. For every 35 overseas travelers who decide to visit the United States, an additional U.S. job is created, the association reported. In 2014, more than 20.4 million travelers arrived through the VWP (59% of overseas visitors), generating $190 billion in economic output and supporting nearly one million jobs. “This is why, largely as a result of the VWP, travel is our nation’s number one services export, generating a trade surplus of $74 billion in 2014,” the association said. 
 
See https://vwp.ustravel.org/ for more information, including a chart showing differences between nonimmigrant visas and the VWP in eligibility requirements, the application process, pre-arrival procedures, and port of entry requirements.
 
6. Obama Orders Review of K-1 Fiancé(e) Visa Program Following California Attack
 
President Barack Obama has ordered a review of the K-1 fiancé(e) visa program in response to terrorism concerns following the mass shooting in San Bernardino, California, that killed 14 people and injured many others on December 2, 2015. A husband-and-wife team launched the attack following the wife’s admission to the United States several years ago as a K-1 fiancée. President Obama said he ordered the Departments of State and Homeland Security to review the program.
 
Recent reports have noted, among other things, that security checks on the wife, Tashfeen Malik, for admission to the United States on a K-1 visa failed to uncover her support on social media of violent jihad and her statements that she wanted to participate in it. Social media is not routinely reviewed as part of Homeland Security checks. How such reviews of social media postings could occur, and whether they are appropriate, is reportedly a topic of debate within the U.S. government.
 
Approximately 35,925 people entered the United States in fiscal year 2014 on fiancé(e) visas. For statistics on FY 2014 nonimmigrant visas issued by country and type of visa, see http://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/NIVDetailTables/FY14NIVDetailTable.pdf. 
 
7. DHS Considers Removing Hundreds of Newly Arrived Undocumented Families; Candidates React
 
According to news reports, the Obama administration is considering removing hundreds of families who came to the United States without authorization since early 2015 and have been ordered to leave by an immigration judge. The vast majority are said to have fled violence in Central America. 
 
The reports of possible removals, or “raids,” are providing fodder for controversy among the candidates for President. Republican frontrunner Donald Trump took credit for the possible deportations: “Wow, because of the pressure put on by me, ICE TO LAUNCH LARGE SCALE DEPORTATION RAIDS. It’s about time!” Democratic frontrunner Hillary Clinton’s campaign spokesperson said, “Hillary Clinton has real concerns about these reports, especially as families are coming together during this holiday season. She believes it is critical that everyone has a full and fair hearing, and that our country provides refuge to those that need it. And we should be guided by a spirit of humanity and generosity as we approach these issues.” Democratic candidate Bernie Sanders said, “I am very disturbed by reports that the government may commence raids to deport families who have fled here to escape violence in Central America. We need to take steps to protect children and families seeking refuge here, not cast them out.”
 
U.S. Immigration and Customs Enforcement recently released statistics showing a steep drop in removals in fiscal year (FY) 2015. In FY 2012, there were 409,849 removals; by FY 2015, the number had dropped to 235,413. Detailed statistics are at https://www.ice.gov/removal-statistics
 
8. OSC Opines on Terminating U.S. Workers and Hiring Contract Workers
 
An individual recently received a response to a question about whether an employer may terminate U.S. workers and rely instead on contract workers with temporary work visas. Bruce A. Morrison, chairman of the Bethesda, Maryland-based Morrison Public Affairs Group, also asked whether a violation can be established where an employer replaces a protected employee with a nonprotected employee provided by a third-party company rather than by directly hiring a replacement from outside of the protected class. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice, responded on December 22, 2015. 
 
Among other things, OSC noted that citizenship status discrimination occurs when protected individuals are denied or deprived of employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination under the Immigration and Nationality Act (INA), the OSC noted, adding that the INA grants OSC jurisdiction over citizenship status discrimination claims involving employers with four or more employees.
 
OSC explained that except in very narrow circumstances, an employer violates the antidiscrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status. This is true, OSC said, regardless of whether the employer takes the discriminatory employment actions itself through direct hiring or contracts as a joint employer with an outside agency to implement its discriminatory staffing plan. Whether an employer has violated the antidiscrimination provision through its use of contract workers will depend upon the facts of each case, OSC noted, including: (1) whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire; (2) the circumstances surrounding the selection of the third-party staffing contractor; and (3) the extent to which the original employer could be considered a joint employer of the contract workers. In addition, OSC pointed out that nothing prevents the filing of a charge against the contractor for potential citizenship status discrimination, or prevents OSC from independently investigating the contractor for potential discrimination if OSC receives information indicating a possible violation.
 
 
9. OSC, ICE Issue Joint Guidance for Employers Conducting I-9 Audits
 
U.S. Immigration and Customs Enforcement (ICE) and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) jointly issued new “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits” on December 17, 2015. The guidance notes that although not required by law, an employer may conduct an internal audit of I-9 forms to ensure ongoing compliance with the employer sanctions provision of the INA. An employer may choose to review all or a sample of I-9 forms selected based on neutral and nondiscriminatory criteria. If a subset of I-9 forms is audited, “the employer should consider carefully how it chooses Forms I-9 to be audited to avoid discriminatory or retaliatory audits, or the perception of discriminatory or retaliatory audits,” the guidance notes. Penalties for violations “may be imposed even if an internal audit has been performed.” The guidance states that internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee for any reason. An employer “should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope or selective nature.”
 
The guidance recommends a “transparent process” for interacting with employees during any internal audit. This includes informing employees in writing that the employer will conduct an internal audit of I-9 forms, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive. The guidance states that when a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency. The employer should provide the employee with copies of his or her Form I-9, any accompanying documents, and any other documentation showing the alleged deficiency. If the employee is not proficient in English, the employer should communicate in the appropriate language where possible. The employer should also provide clear instructions to employees with questions or concerns related to the internal audit on how to seek additional information from the employer to resolve those questions or concerns.
 
An employer cannot correct errors or omissions in Section 1 of the I-9 form, only in Sections 2 or 3, the guidance notes. The employer should ask the employee to correct any errors in Section 1. The guidance states that the best way to correct such an error is to have the employee draw a line through the incorrect information, enter the correct or omitted information, and initial and date the corrected or omitted information. A preparer or translator can help by making the correction or helping the employee to make the correction.
 
The guidance recommends that before conducting an audit, an employer should consider the purpose and scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process. An employer should consider the process it will have for fielding questions or concerns about the audit, how it will inform the employees of that process, how it will document its communications with employees, and how it will ensure consistent standards when addressing any I-9 deficiencies revealed by the audit, the guidance notes.
 
Among other things, the guidance also notes that an employer is not required to terminate employees who, as a result of the employer’s internal I-9 audit, disclose that they were previously not work-authorized, even though they are currently work-authorized. An employer may continue to employ the employee upon completion of a new I-9 noting the authorizing document(s), and should attach the new I-9 to the previously completed I-9 together with a signed and dated explanation, the guidance states.
 
The guidance also notes that an employer should not use the Social Security Number Verification Service (SSNVS) during an internal I-9 audit. The Social Security Administration (SSA) will verify Social Security numbers and names solely to ensure that the records of current or former employees are correct for the purpose of completing Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement). Additionally, any notification about a mismatch makes no statement about an employee’s immigration status. Rather, it simply indicates an error in either the employer’s records or SSA’s records “and should not be used as a basis to take adverse action against an employee. In other words, SSNVS is not intended to be used to verify employment authorization in connection with the Form I-9 process,” the guidance notes.
 
Additional information, such as how to correct other types of errors and determining whether documentation is acceptable, is included in the guidance at http://www.justice.gov/crt/file/798276/download. For further information about the proper use of SSNVS, see the SSNVS Handbook at https://www.ssa.gov/employer/ssnvs_handbk.htm
 
 
10. USCIS Transfers Some Cases From Vermont Service Center
 
U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework from the Vermont Service Center (VSC) to the California Service Center (CSC) and the Nebraska Service Center (NSC) “to balance workloads.” 
 
The CSC will now process Forms I-539, Application to Extend/Change Nonimmigrant Status. The NSC will process Forms I-765, Application for Employment Authorization, filed by asylum applicants with pending asylum applications filed on or after January 4, 1995. The eligibility category for the application is (c)(8). 
 
USCIS will notify those whose cases are transferred. The original receipt number will not change, and processing of the case will not be delayed “except for the additional time needed to transfer the file.” The filing location and instructions for these forms will not change.
 
USCIS noted that an individual’s case status can be checked at Case Status Online by entering the receipt number. Applicants can also sign up to receive automatic case status updates by email, and can submit an inquiry if they do not receive a decision within the published processing time. Inquiries may be made at 800-375-5283 (TDD 800-767-1833), or online at https://egov.uscis.gov/e-request/Intro.do
 
 
 
11. USCIS Updates Petition to Remove Conditions on Residence for Marriage-Based Green Cards
 
U.S. Citizenship and Immigration Services (USCIS) has published an update to Form I-751, Petition to Remove Conditions on Residence. The new edition is dated 11/23/15.
 
Beginning on February 29, 2016, USCIS will accept only the 11/23/15 edition. The edition date is at the bottom of every page of the form and instructions. The expiration date at the top says 11/30/2017.
 
The latest form and instructions are at http://www.uscis.gov/i-751.  
 
 
12. USCIS Changes Filing Location for Notices of Motion or Appeal Related to Citizenship Applications
 
U.S. Citizenship and Immigration Services (USCIS) announced that starting on January 1, 2016, those filing a Form I-290B, Notice of Motion or Appeal, in response to a decision on a Form N-600 (Application for Certificate of Citizenship) or N-600K (Application for Citizenship and Issuance of Certificate Under Section 322) must mail the I-290B to the Chicago Lockbox. USCIS will no longer accept these forms at local field offices. 
 
USCIS will provide a 30-day grace period from January 1-30, 2016, for those who file an I-290B with the local office. Local field offices that receive a Form I-290B during this time will forward it to the Chicago Lockbox. After January 30, 2016, local field offices will return all I-290Bs for Forms N-600 or N-600K they receive and advise applicants to file instead at the Chicago Lockbox.
 
For those filing via the U.S. Postal Service, the address is: 
 
USCIS
P.O. Box 805887
Chicago, IL  60680-4120
 
For those filing via USPS express mail/courier, the address is:
 
USCIS
Attn: FBAS
131 S. Dearborn, 3rd Floor
Chicago, IL  60603-5517
 
 
 
13. BALCA Holds That Institutions of Higher Education Need Not Include Other Types of Entities in Wage Surveys
 
In Matter of University of Michigan, 2015-PWD-00006 (Nov. 18, 2015), the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) ruled in favor of an employer, the University of Michigan, that argued its wage survey of institutions of higher education was sufficient in determining the prevailing wage for a Senior Associate Regulatory Analyst. The Center Director (CD) had required that other types of entities be included in the employer’s wage survey, but the employer noted, among other things, that it had no obligation to provide such a survey.
 
The BALCA observed that the regulation at 20 CFR § 656.40(e) states that in computing the prevailing wage for an employee of an institution of higher education, or an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization, the prevailing wage level takes into account the wage levels of employees only at such institutions and organizations in the area of intended employment. This regulation was based on § 415 of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). 
 
Under the regulations, the BALCA noted, an ACWIA wage for an institution of higher education may sample only other institutions of higher education. “The CD’s insistence that the Employer provide a survey that sampled each type of ACWIA entity is inconsistent with the Department’s interpretation of the regulation and therefore constitutes an abuse of discretion,” the BALCA held. The BALCA overruled the CD and remanded the case to the CD for further processing consistent with the BALCA’s order.
 

 

14. Users Report Problems With New 9 FAM-e
 
Some users are reporting problems with the new 9 FAM-e, which replaced the legacy Volume 9 of the Foreign Affairs Manual (9 FAM) on November 18, 2015, and is the “authoritative source for visa guidance,” according to the Department of State’s (DOS) December 2015 Visa Bulletin.
 
DOS developed crosswalk tables correlating old citations with new, so that users could match new 9 FAM-e sections with former locations in the legacy 9 FAM. Users report, however, that the citations in some cases do not correspond appropriately. Also, some of the 9 FAM-e sections listed in the crosswalk do not yet show up in the online 9 FAM-e and are listed as “unavailable.” The legacy 9 FAM is no longer available online. There are also concerns about the cross-references disappearing over time. Users are raising these concerns with DOS.
 
The announcement is in section F of the December 2015 Visa Bulletin at http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-december-2015.html

 

15. Firm In The News
 
Cyrus Mehta was a Speaker at the following events:
  • Making Sense of the Visa Bulletin, Legal Support Unit, Legal Services NYC, New York, NY, December 14, 2015.
  • Emerging Developments at the State Department and American Consulates and Marriage and the Family, 48th Annual Immigration & Naturalization Institute, Practising Law Institute, New York, NY, December 3-4, 2015.
  • Ethical Issues that Counting Sheep May Not Resolve, 18th Annual AILA New York Chapter Immigration Law Symposium, AILA New York Chapter, New York, NY, December 1, 2015
Cora-Ann V. Pestaina was a Speaker, Sleep Like A Baby From PERM Through I-140, 18th Annual AILA New York Chapter Immigration Law Symposium, AILA New York Chapter, New York, NY, December 1, 2015