Mid-May 2018 Immigration Update

Headlines:

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

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

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

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

TPS for Hondurans to End in January 2020 – Honduran citizens with current TPS registrations will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of Honduras’ TPS designation becomes effective January 5, 2020.

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

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

Firm in the News…

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TPS for Hondurans to End in January 2020

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

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

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

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

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

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

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

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

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

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Trump Says Guest Workers Will Be Allowed into United States

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

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

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

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Firm In The News

Cyrus Mehta was awarded a Lawyer of the Year in Corporate Immigration 2018 by Who’s Who Legal: http://whoswholegal.com/awards/?utm_source=WWL+Awards+&utm_medium=email&utm_campaign=WWL+Awards+2018&utm_term=WWL+Awards+2018+-+See+all+the+winners&utm_content=16090&gator_td=VhT0zHgII5bJCL6bpjaU1TrffpsAcCVgnf9FkK0JMwc79V68yGUuceAwqvl%2bExfM0o5tXmgG9SXaJlu1p2mgd9C8DbfufLRQgleEGFLAF4WJ%2bCSER27szrFC55SwkoDYVijssCyEooPjFFawOVFf7ZKCMIxdeWiImlqJOkwV0mQ%3d

Cyrus Mehta has authored a new blog entry. “USCIS Blurs Distinction Between Violation of Status and Unlawful Presence for F-1, J and M Nonimmigrants” is at https://bit.ly/2wDOEeC.

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry. “Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas Will Eviscerate Due Process” is at https://bit.ly/2I8XJS1.

Cora-Ann Pestaina, of Mr. Mehta‘s office, has authored a new blog entry. “Guidance to the Perplexed After USCIS Sneaks In Ban on Third-Party Placement of STEM OPT Workers” is at https://bit.ly/2KezGh4.

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May 2018 Immigration Update

Headlines:

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

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

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

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

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

Firm in the News…

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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USCIS Announces Convictions in Two Immigration Fraud Cases

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

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

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

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

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

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

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

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

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ABIL Global: Turkey

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

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

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

KEP Registration Generally

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

KEP Registration for MOL/Turkish Work Permits

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

Problems with the KEP System

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

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

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Firm In The News

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

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

Mr. Mehta recently spoke at the following conferences:

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

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

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Mid-April 2018 Immigration Update

Headlines:

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

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

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

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

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

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

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

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

Firm in the News

 

Details:

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

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

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

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

8 U.S.C. § 1325(a) states:

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

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

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

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

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

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

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

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

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

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

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USCIS Launches E-Verify Website

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

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

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

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

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EOIR Announces Controversial Metrics for Immigration Judge Performance

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

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

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

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

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

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

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

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

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National Guard Troops Deploy to Southern U.S. Border

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

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

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

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

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

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

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

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

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

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Reminder: SAVE Goes Paperless

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

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

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Firm In The News

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

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

This is what Who’s Who Legal have said:

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

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

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

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

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April 2018 Immigration Update

Headlines:

  1. USCIS To Begin Accepting FY 2019 H-1B Cap-Subject Petitions April 2, Suspends Premium Processing – Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the FY 2019 cap. USCIS said it will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher, until September 10, 2018. During this time, the agency will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.
  2. Firm Releases H-1B Tips for Employers – Firm recommends potential ways for employers to maximize their H-1B chances.
  3. Omnibus Spending Bill Includes Immigration Provisions – A $1.3 trillion omnibus spending bill signed by President Donald Trump on March 23, 2018, increases overall funding for various aspects of federal immigration enforcement. Notably, the bill does not include any provisions for addressing the “Dreamers,” beneficiaries of the Deferred Action for Childhood Arrivals program.
  4. State Dept. Seeks to Add Social Media Questions to Visa Application Forms – The Department is seeking OMB approval to revise the immigrant and nonimmigrant visa applications to add several new questions. One question would require all visa applicants to list which social media platforms they used during the five years preceding the date of application.
  5. USCIS Completes Random Selection for H-2B Cap for Second Half of FY 2018 – The agency recently received approximately 2,700 H-2B cap-subject petitions requesting approximately 47,000 workers. This was more than the number of H-2B visas available. As a result, USCIS conducted a lottery to randomly select enough petitions to meet the cap.
  6. USCIS and CBP to Implement Form I-129 Pilot Program for Canadian L-1 Nonimmigrants – The two agencies will start a pilot program from April 30, 2018, to October 31, 2018, at Blaine, Washington, for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement.
  7. USCIS To Begin Accepting CW-1 Petitions for FY 2019 – On April 2, 2018, USCIS will begin accepting petitions under the CNMI-Only Transitional Worker program subject to the FY 2019 cap.
  8. USCIS Clarifies ‘One-in-Three’ Foreign Employment Requirement for Multinational Managers/ExecutivesMatter of S-P- clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the “one-in-three” foreign employment requirement for immigrant classification as a multinational manager or executive.
  9. OIG Says USCIS Has Unclear Website Info and Unrealistic Time Goals for Adjudicating Green Card Applications – Information that USCIS posts on its website about the time it takes field offices to adjudicate green card applications (processing times) is confusing and “unclear and not helpful” because it does not reflect the actual amount of time it takes field offices, on average, to complete green card applications.
  10. DOJ Files Complaint to Denaturalize Diversity Visa Recipient – DOJ recently filed a complaint in the Eastern District of Michigan to revoke the naturalized U.S. citizenship of a diversity visa recipient who allegedly obtained naturalized citizenship after failing to disclose two prior orders of removal.
  11. ICE Announces ‘De-Thaw Initiative’ to Begin on April 1 – ICE announced a new “De-Thaw Initiative” just in time for spring 2018, to implement the President’s recent tweet.
  12. ABIL Global: Canada – This article argues that the Global Skills Strategy is a “mini” step in the right direction for Canada.
  13. Firm In The News

 

Details:

USCIS To Begin Accepting FY 2019 H-1B Cap-Subject Petitions April 2, Suspends Premium Processing

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2019 cap. USCIS said it will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher, until September 10, 2018. During this time, the agency will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. USCIS said it will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

During this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, USCIS will reject both forms. When the agency resumes premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets certain “expedite criteria”:

  • Severe financial loss to company or person
  • Emergency situation
  • Humanitarian reasons
  • Nonprofit organization whose request furthers U.S. cultural and social interests
  • Department of Defense or national interest situation (such expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government)
  • USCIS error
  • Compelling interest of USCIS

USCIS encourages petitioners to submit documentary evidence to support their expedite requests. “We review all expedite requests on a case-by-case basis and will grant requests at the discretion of USCIS office leadership,” the agency said.

USCIS said the temporary suspension will help it reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will be able to process long-pending petitions, “which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years,” and to prioritize adjudication of H-1B extension-of-status cases that are nearing the 240-day mark.

The announcement is at https://bit.ly/2HS69c5. The expedite criteria are at https://www.uscis.gov/forms/expedite-criteria. Additional information on the latter is in the USCIS Policy Manual at https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume1-PartA-Chapter12.html.

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Firm Releases H-1B Tips for Employers

The Firm has issued a press release recommending the following ways for employers to maximize their H-1B chances:

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

The press release is at https://cyrusmehta.com/blog/2018/03/30/h-1b-tips-for-employers/

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Omnibus Spending Bill Includes Immigration Provisions

A $1.3 trillion omnibus spending bill signed by President Donald Trump on March 23, 2018, keeps the federal government in operation through September 30, 2018, and increases overall funding for various aspects of federal immigration enforcement, among other things. Notably, the bill does not include any provisions for addressing the “Dreamers,” beneficiaries of the Deferred Action for Childhood Arrivals program that President Trump discontinued.

Highlights of the bill’s immigration provisions include:

  • Appropriations for U.S. Customs and Border Protection ($14 billion, which represents an approximately 13 percent increase over the previous fiscal year)
  • Appropriations for U.S. Immigration and Customs Enforcement ($7.1 billion, which represents an approximately 10 percent increase over the previous fiscal year)
  • Appropriations for U.S. Citizenship and Immigration Services ($132 million, which represents an approximately 8 percent increase over the previous fiscal year)
  • A requirement for the Department of Homeland Security (DHS) to report to Congress on visa overstay rates by country for fiscal year 2017
  • A requirement for the DHS to publish metrics to measure the effectiveness of security between ports of entry, including methodology and data supporting the resulting measures
  • A prohibition on DHS’s establishing any new border fee for individuals crossing the southern or northern U.S. border at a land port of entry
  • Funding for border wall construction and improvements ($1.5 billion, with restrictions; the Trump administration had asked for $25 billion)
  • “Flexibility” for employers bringing into the United States H-2B nonimmigrants in the seafood industry (an employer may bring in nonimmigrants described in the petition into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants, without filing another petition)
  • A provision defining the H-2B prevailing wage as the greater of (1) the actual wage level paid by the employer to other employees with similar experience and qualifications for the same position in the same location or (2) the prevailing wage level for the occupational classification of the position in the geographic area in which the
    H-2B nonimmigrant will be employed, based on the best information available at the time of filing the petition
  • Inadmissibility for corrupt foreign officials
  • Lautenberg Amendment extension, through September 30, 2018
  • Visa restrictions for certain Cambodian government officials
  • Four programs—EB-5, Conrad 30, religious workers, and E-Verify—extended until September 30, 2018
  • H-2B returning workers provision

The full text of the bill (Pub. L. No. 115–141, Mar. 23, 2018, 132 Stat. 348) is at http://docs.house.gov/billsthisweek/20180319/BILLS-115SAHR1625-RCP115-66.pdf.

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State Dept. Seeks to Add Social Media Questions to Visa Application Forms

The Department of State is seeking Office of Management and Budget approval to revise the immigrant and nonimmigrant visa applications to add several new questions. One question would require all visa applicants to list which social media platforms they used during the five years preceding the date of application. The Department said it will collect this information from visa applicants for “identity resolution and vetting purposes based on statutory visa eligibility standards.”

Other questions seek five years of previously used telephone numbers, email addresses, and international travel; and whether specified family members have been involved in terrorist activities. Additionally, some E-nonimmigrant visa applicants will be asked whether the principal treaty trader was issued a visa. The immigrant visa application will ask for a list of all prior immigration violations. The nonimmigrant visa application will ask whether the applicant has been deported or removed from any country.

The revised visa application form will include additional information regarding the visa medical examination that some applicants may be required to undergo.

The Department is accepting comments from the public until May 29, 2018. The immigrant OMB submission is at https://bit.ly/2E9Ycg4. The nonimmigrant OMB submission is at https://bit.ly/2E9SIBV.

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USCIS Completes Random Selection for H-2B Cap for Second Half of FY 2018

During the first five business days after February 21, 2018, when U.S. Citizenship and Immigration Services (USCIS) began receiving H-2B cap-subject petitions for the second half of fiscal year 2018, the agency received approximately 2,700 H-2B cap-subject petitions requesting approximately 47,000 workers. This was more than the number of H-2B visas available. As a result, USCIS conducted a lottery to randomly select enough petitions to meet the cap. USCIS said it will reject and return petitions and associated filing fees to petitioners that were not selected, as well as any cap-subject petitions received after February 27.

USCIS noted that in January, the Department of Labor announced a change to its process of issuing labor certifications. As a result, on February 7 USCIS advised of the likely need to conduct an H-2B visa lottery for the second half of FY 2018. As was noted in February, USCIS said it would maintain a flexible approach to this issue by ensuring that H-2B visas were allocated fairly and would not exceed the cap.

USCIS said it continues to accept H-2B petitions that are exempt from, or not counted toward, the congressionally mandated cap. This includes petitions for:

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

USCIS said H-2B petitioners may continue to request premium processing with their H-2B petitions. However, because the final receipt date was one of the first five business days of the filing season, petitions accepted in the lottery will be given a receipt date of March 1, 2018. Premium processing service for these petitions began on that receipt date, USCIS said.

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

The USCIS announcement is at https://bit.ly/2t88QUc. The Department of Labor’s notice about a change in the labor certification process is at https://bit.ly/2DTB0SY. USCIS’s February 7 announcement is at https://bit.ly/2GYeQ4Z.

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USCIS and CBP to Implement Form I-129 Pilot Program for Canadian L-1 Nonimmigrants

U.S. Citizenship and Immigration Services’ (USCIS) California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) port of entry (POE) at Blaine, Washington, will implement a joint agency pilot program from April 30, 2018, to October 31, 2018, for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA). USCIS said the pilot is designed to facilitate the adjudication and admission process for Canadians traveling to the United States as L-1 nonimmigrants.

Department of Homeland Security regulations permit an employer to file an L petition on behalf of a Canadian citizen in conjunction with the Canadian citizen’s application for admission to the United States. USCIS said that petitioners choosing to participate in the joint agency pilot program will be asked to:

  • Submit Form I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the CSC before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine POE; and
  • Use a cover sheet annotated with “Canadian L” to ensure quick identification of the I-129 and for any correspondence thereafter, such as a response to a request for evidence (RFE).

A petitioner who chooses not to participate in the pilot program may continue to file its L-1 petition on behalf of a Canadian citizen with CBP at the Blaine POE. In such a case, CBP will accept the petition but will adjudicate it at the next Class A POE.

For those who choose to participate in the pilot program, USCIS will receive fees, issue a Form I-797C receipt notice, and adjudicate the I-129. If USCIS needs additional evidence, the agency will send a request for evidence (RFE) to the petitioner.

CBP will continue to make the final determination on whether a Canadian L-1 applicant is admissible to the United States. Applicants participating in the pilot and seeking an immediate determination of admissibility must bring a copy of the petition approval notice for the I-129 when seeking admission to the United States at the Blaine POE, USCIS said.

If the petitioner chooses to send the applicant to the Blaine POE before USCIS makes a decision on the I-129, there may be delays while USCIS remotely adjudicates the form. USCIS said that in such a case, the applicant must bring a copy of the petition receipt notice for the I-129 and await adjudication of the I-129.

If a petitioner chooses not to file the I-129 in advance with USCIS, the filing may continue to be made with CBP at the Blaine POE, but CBP will adjudicate it during the pilot at the nearest Class A POE. The beneficiary may apply for admission at any designated Class A CBP POE optimized for processing L-1 petitions for Canadian citizen beneficiaries. Accordingly, petitioners can still choose to have CBP adjudicate their petitions at the time an applicant appears at any CBP-designated Class A POE or pre-clearance airport (PC). The three optimized stations nearest to Blaine are Class A POEs Point Roberts, Washington, and Sumas, Washington, and the Vancouver, Washington, PC.

CBP and USCIS “strongly encourage petitioners participating in the L-1 pilot program to file L-1 nonimmigrant petitions with USCIS as far in advance of travel as possible.” USCIS said the L-1 nonimmigrant pilot program for Canadian citizens will allow both agencies to determine the efficiency of the program’s procedures, identify shortcomings, and develop operational improvements. During the six-month pilot, stakeholders may communicate and provide feedback to USCIS through USCIS-IGAOutreach@uscis.dhs.gov. Once the pilot is complete, USCIS will seek feedback from stakeholders before considering extending the program concept to other POEs, the agency said.

Under existing law, a Canadian citizen may apply for admission as an L-1 nonimmigrant by presenting a petitioning employer’s Form I-129 to an immigration officer at a Class A port of entry or pre-clearance airport. Alternatively, an L-1 petitioner may choose to file a Form I-129 for a Canadian citizen with USCIS, seeking to classify the individual as eligible for L-1 nonimmigrant status. If the petitioner chooses to file its petition with USCIS and USCIS approves the I-129, the qualifying Canadian citizen may then apply at a POE for admission to the United States in L-1 status.

The USCIS announcement is at https://bit.ly/2GZw2Hp.

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USCIS To Begin Accepting CW-1 Petitions for FY 2019

On April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting petitions under the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program subject to the fiscal year (FY) 2019 cap. Employers in the CNMI use the CW-1 program to employ foreign workers who are ineligible for other nonimmigrant worker categories. The cap for CW-1 visas for FY 2019 is 4,999.

For the FY 2019 cap, USCIS encourages employers to file a petition for a CW-1 nonimmigrant worker up to six months before the proposed start date of employment and as early as possible within that time frame. USCIS said it will reject a petition if it is filed more than six months in advance. An extension petition may request a start date of October 1, 2018, even if that worker’s current status will not expire by that date.

Since USCIS expects to receive more petitions than the number of CW-1 visas available for FY 2019, the agency may conduct a lottery to randomly select petitions and associated beneficiaries so the cap is not exceeded. “The lottery would give employers the fairest opportunity to request workers, particularly with the possibility of mail delays from the CNMI,” USCIS said.

USCIS will count the total number of beneficiaries in the petitions received after 10 business days to determine if a lottery is needed. If the cap is met after those initial 10 days, a lottery may still need to be conducted with only the petitions received on the last day before the cap was met. USCIS said it will announce when the cap is met and whether a lottery has been conducted.

Employers must submit the most recent version of Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, along with a $200 mandatory CNMI education funding fee and a $460 filing fee for each CW-1 petition. USCIS said it will reject any petition that includes an incorrect or insufficient fee payment.

The USCIS announcement is at https://bit.ly/2FWhT0C.

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USCIS Clarifies ‘One-in-Three’ Foreign Employment Requirement for Multinational Managers/Executives

U.S. Citizenship and Immigration Services (USCIS) has designated Matter of S-P, Inc., as an Adopted Decision. The adopted decision “establishes policy guidance that applies to and shall be used to guide determinations by all [USCIS] employees.  USCIS personnel are directed to follow the reasoning in this decision in similar cases,” the agency said.

Matter of S-P- clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the “one-in-three” foreign employment requirement for immigrant classification as a multinational manager or executive. “To cure the interruption in employment, such a beneficiary would need an additional year of qualifying employment abroad before he or she could once again qualify,” USCIS said.

In Matter of S-P-, the Administrative Appeals Office (AAO) agreed with the petitioner that a period of employment with a different U.S. employer would not automatically disqualify a beneficiary. However, “a break in qualifying employment longer than two years will interrupt a beneficiary’s continuity of employment with the petitioner’s multinational organization. Such breaks may include, but are not limited to, intervening employment with a nonqualifying U.S. employer or periods of stay in a nonimmigrant status without work authorization,” the AAO said.

The memorandum, issued March 19, 2018, includes the decision and is at https://bit.ly/2uehMI4.

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OIG Says USCIS Has Unclear Website Info and Unrealistic Time Goals for Adjudicating Green Card Applications

U.S. Citizenship and Immigration Services’ (USCIS) Office of Inspector General (OIG) recently found that information USCIS posts on its website about the time it takes field offices to adjudicate green card applications (processing times) is confusing and “unclear and not helpful” because it does not reflect the actual amount of time it takes field offices, on average, to complete green card applications.

In addition, the OIG noted that the actual average time it takes USCIS to process green card applications has lengthened. USCIS’s goal is to adjudicate applications within 120 days, but since fiscal year 2011, the OIG said, the overall average number of days has risen to twice the goal. The OIG said it believes the time goal is “unrealistic.”

The OIG recommended that USCIS present information on the USCIS website that is more accurate, and reassess the current time goal of 120 days to determine whether it is reasonable and realistic, increasing the time frame if necessary. USCIS concurred with both recommendations.

The report is at https://www.oig.dhs.gov/sites/default/files/assets/2018-03/OIG-18-58-Mar18.pdf.

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DOJ Files Complaint to Denaturalize Diversity Visa Recipient

The Department of Justice (DOJ) recently filed a complaint in the Eastern District of Michigan to revoke the U.S. citizenship of a diversity visa (DV) recipient who allegedly obtained naturalized citizenship after failing to disclose two prior orders of removal. The case against Humayun Kabir Rahman was referred to DOJ by U.S. Citizenship and Immigration Services (USCIS).

The complaint alleges that Mr. Rahman arrived in the United States in February 1992 at John F. Kennedy International Airport, claiming his true name was Ganu Miah while in possession of a passport that did not belong to him. He was paroled into the United States to seek asylum, and his application was referred to an immigration court, where an immigration judge ordered him removed in 1998. In 1994, while Ganu Miah’s proceeding was underway, Mr. Rahman sought asylum under a different name, Shafi Uddin. That application was also referred to the immigration court, and he was ordered to be removed in 1997. Later in 1997, using a third identity, Humayun Kabir Talukder, Mr. Rahman applied for and received an immigrant visa through the diversity visa program, claiming he had entered the United States by car from Canada. In 2004, he was naturalized as a U.S. citizen. Throughout his immigration and naturalization proceedings, Mr. Rahman concealed that he had twice been ordered removed and lied about his identity and immigration history under oath. Mr. Rahman also was never lawfully admitted to the permanent resident status upon which he naturalized, USCIS said.

The case was investigated by USCIS and the Civil Division’s Office of Immigration Litigation (OIL). The case is being prosecuted by OIL’s National Security and Affirmative Litigation Unit, with support from USCIS Office of the Chief Counsel, Central Law Division.

The USCIS announcement about this case is at https://bit.ly/2IQoxDl. The announcement includes a link to a report by the Department of Homeland Security’s Office of Inspector General (OIG) noting that potentially ineligible individuals have been granted U.S. citizenship because of incomplete fingerprint records. The OIG report is at https://bit.ly/2INqKzv. The complaint is at https://www.justice.gov/opa/press-release/file/1035226/download.

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ICE Announces ‘De-Thaw Initiative’ to Begin on April 1

U.S. Immigration and Customs Enforcement (ICE) announced a new “De-Thaw Initiative” just in time for spring 2018, to implement the President’s recent tweet: “Contrary to what’s been reported in the Fake News Media, I call for Doing Everything With Love! All of my previous tweets have been Misconstrued & taken out of Context. If people would pay attention, they would Learn. Sad!”

Under De-Thaw, ICE plans to:

  • De-deport those recently deported;
  • Encourage them to return;
  • Take in more refugees and asylees;
  • Humanely treat family members;
  • Always treat people with courtesy and respect; and
  • Wish the world could be a kinder place.

ICE spokesperson Gloomy Gus said the agency got the idea from all the snow falling along the East Coast as spring begins, when thawing would normally be expected. “Since our administration is unexpected in so many ways, we decided to celebrate spring by doing something that’s not on the schedule, shaking things up a bit and surprising all the liberal snowflakes,” he said. Mr. Gus added, “Happy April Fool’s Day!”

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ABIL Global: Canada

This article argues that the Global Skills Strategy is a “mini” step in the right direction for Canada.

On June 12, 2017, Immigration, Refugees and Citizenship Canada (IRCC) announced details of the Global Skills Strategy (GSS). The GSS is intended to help promote global investment in Canada and support the Government of Canada’s Innovation and Skills Plan, opening Canada’s doors a little wider for the business community. The GSS includes several new options and avenues for bringing workers into Canada. This article focuses on the work permit exemptions for highly skilled, short-term workers and researchers—a much heralded “quick and easy” route for those who qualify.

The GSS has provided exemptions from the need to obtain work permits under two new categories. An exemption was established for highly skilled (all NOC 0 and NOC A) workers. Those eligible will now be allowed one 15-day work permit-exempt stay in Canada every 6 months, or one 30-day work permit-exempt stay every 12 months. The exemption also applies to researchers coming to Canada; they are now allowed one 120-day stay every 12 months without requiring a work permit when they are working on a research project at a publicly funded degree-granting institution or affiliated research institution.

While these exemptions (particularly the short-term entry for highly skilled workers) have been welcomed by the Canadian business community and allow businesses to bring in consultants and other advisory and technical personnel much more easily, they are not free passes. First, the limits on how much time the workers can spend here are short, and there is no way to extend or break up the time differently. The exemption is limited to one 15-day visit every 6 months, or one 30-day visit per 12 months. Second, it’s not clear that a Canadian business wishing to employ the worker would know if the exemption was applicable. A Canadian business may wish to bring in a worker under the exemption, but if the foreign worker has already used the exemption for another Canadian business, or doesn’t know under which category he or she entered Canada on a previous visit, then the Canadian business could be out of luck or worse. The worker could be refused entry because the exemption has already been used. In addition, many of the workers Canadian businesses seek to bring in are classified under NOC B and do not qualify for the exemption. Some examples are all “technical” roles in science, engineering, and technology; athletes and coaches; and sales personnel in insurance, real estate, and financial markets. Bottom line: the exemption does not apply to many valuable workers.

One other limitation is that although workers can exit and re-enter within the prescribed time frame (15 or 30 consecutive days) of work under the exemption, the authorized work period begins on the date the exemption is granted and is counted consecutively regardless of whether the person is actually working in Canada.

So, while corporate Canada applauds the Canadian government for its efforts to get out of the way of businesses trying to bring in very temporary workers, many are still complaining that the exemption is not broad enough or that it is unwieldy for Canadian businesses to track prior usage of the exemption. Authorized stays are short and Canadian businesses do not have access to information about whether a proposed temporary worker has already “used up” the exemption. As a result, Canadian businesses may find that it’s better to be safe than sorry and continue to apply for a work permit for any visiting worker.

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Firm In The News… 

 Cyrus Mehta was quoted by the Times of India in “U.S. Lawmaker Tries to Stop Offshoring to Call Centres.” Mr. Mehta said, “Although the Bill promotes call centre jobs in the U.S., it will pass on the costs to the U.S. consumer ultimately and so Americans will not overall benefit. It also remains to be seen whether call centre operations in the U.S. can function as efficiently and on a 24×7 basis like they do in India. Are there enough American call centre workers in a nearly full employment economy?” The article is at https://bit.ly/2GnAvWv.

Mr. Mehta recently spoke at the following conferences:

  • “The Secret of My Success: Current Trends in L Visa Processing,” American Immigration Lawyers Association (AILA) South Florida 39th Annual Immigration Law Update; Miami, Florida; March 23, 2018·
  • “Ethics—”Representing Multiple Parties and How to Say Goodbye,” 2018 CLE Conference; AILA Philadelphia Chapter; Philadelphia, Pennsylvania; March 16, 2018

Mr. Mehta has co-authored a new blog entry with Eleyteria Diakopoulos. “Fearlessly Challenging H-1B Visa Denials Through Litigation” is at http://blog.cyrusmehta.com/2018/03/fearlessly-challenging-h-1b-visa-denials-through-litigation.html.

Mr. Mehta has co-authored a new blog entry with Sophia Genovese. “Making the Law Up As He Goes: Sessions Refers Another Case to Himself This Time on Motions for Continuance” is at https://bit.ly/2pVAD5m.

Ms. Genovese has authored a new blog entry. “Sessions Likely to End Asylum Eligibility for Victims of Domestic Violence: How Courts Can Resist” is at https://bit.ly/2I3tmrT.

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H-1B Tips for Employers

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

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

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

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

Mid-March 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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3. DHS Extends TPS for Syria

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

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

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

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4. SAVE Moves From Paper To Electronic Verification Request Submissions

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

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

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

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5. ABIL Global: Belgium

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

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

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

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

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

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

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

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

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6. Firm In The News… 

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

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

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

March 2018 Immigration Update

Headlines:

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

Details:

1.     Supreme Court Declines Trump Administration Appeal in DACA Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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4.     USCIS Expands Credit Card Payment Option for Fees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new mission statement says:

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

The former mission statement said:

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

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

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

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

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

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

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

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

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8.     ABIL Global: Turkey

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

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

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

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

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

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

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

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  1. Firm In The News

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

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

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Mid-February 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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2.     President Trump Calls for Establishment of National Vetting Center

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

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

The statement says:

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

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

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

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

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

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

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

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

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

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

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

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

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5.     Alleged P-3 Entertainer Visa Fraud Scheme Busted

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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  1. Firm In The News

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

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

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

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

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

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

February 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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

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

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

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2.     Immigration Innovation Act of 2018 Introduced in Senate

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

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

Employment-Based Nonimmigrant Visas (H–1B)

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

Green Cards

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

Student Visas

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

STEM Education and Worker Training

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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10.     CBP Issues Guidance on Border Searches of Electronic Devices

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

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

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

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

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

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

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

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

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12.   ABIL Global: Mexico

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

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

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

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

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

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

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

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

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  1. Firm In the News

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

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

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

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Mid-January 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DHS said that to allow for an orderly transition for the estimated 200,000 affected people, the effective date of the termination of TPS for El Salvador will be delayed 18 months, to September 9, 2019, “to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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  1. CBP Updates Directive on Border Searches of Electronic Devices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. For Section 1, the employee may:

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

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

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

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

2. For Section 2, employers should:

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

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

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

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

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

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

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

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

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

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

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

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  1. Firm In The News

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