Mid-July 2018 Immigration Update

Supreme Court Upholds Latest Trump Entry Ban – On June 26, 2018, the U.S. Supreme Court upheld 5-4 the Trump administration’s third travel ban order. The ban prevents the entry into the United States of certain nationals from specific countries, with some exceptions.

USCIS Updates Notice to Appear Policy Guidance to ‘Support DHS Enforcement Priorities’ – Under the new guidance, USCIS officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

DHS Issues Final Rule Eliminating Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to United States as H-2A Agricultural Workers – Effective August 6, 2018, DHS is eliminating the nonimmigrant visa exemption for certain Caribbean residents seeking to come to the United States as H-2A agricultural workers and the spouses or children who accompany or follow these workers to the United States. As a result of the interim final rule, these nonimmigrants must have both a valid passport and visa.

DHS Extends TPS for Yemen for 18 Months – DHS has extended the temporary protected status designation for Yemen through March 3, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Justice Dept. Settles Claims Against Landscaping Company for Discriminating Against U.S. Workers – The agreement resolves a DOJ investigation concluding that Triple H unlawfully discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas.

Dept. of State Partners with Hilton Hotels and Resorts on Passport Project – DOS employees have assisted Hilton’s “Passport Concierge Booths” across the United States to provide passport applications, photos, and opportunities to ask questions about applying for a passport.

Attorney General Rescinds 24 Guidance Documents – Attorney General Jeff Sessions announced on July 3, 2018, that he is rescinding 24 guidance documents that were “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” A DOJ task force is continuing its “review of existing guidance documents to repeal, replace, or modify.”

Firm in the News

Supreme Court Upholds Latest Trump Entry Ban

On June 26, 2018, the U.S. Supreme Court upheld, by a 5-4 vote, the Trump administration’s third travel ban order under Presidential Proclamation 9645, issued September 24, 2017. The ban prevents indefinitely the entry into the United States of certain nationals from specific countries, with some exceptions.

A Department of Homeland Security (DHS) fact sheet noted that, among other things, the government:

  • Maintained, modified, or eased restrictions on five of six countries designated by Executive Order 13780, issued in March 2017: Iran, Libya, Syria, Yemen, and Somalia.
  • Lifted restrictions on Sudan.
  • Added restrictions and/or additional vetting on three additional countries (Chad, North Korea, and Venezuela) found not to meet baseline requirements, but that were not included in Executive Order 13780. Effective April 13, 2018, Chad was removed from this list.

The Court observed that plaintiffs alleged that the primary purpose of the entry ban was religious animus and that the President’s stated concerns about vetting protocols and national security were pretexts for discriminating against Muslims. At the heart of their case was a series of statements by the President and his advisers both during the campaign and since the President assumed office. Chief Justice Roberts, writing for the majority, said the issue was not whether to denounce the President’s statements, but the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.  In doing so, he said, the Court must consider not only the statements of a particular president but also the authority of the presidency itself.

Justice Roberts noted that the Proclamation “is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Three additional features of the entry policy supported the government’s claim of a legitimate national security interest, Justice Roberts noted. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. “Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review,” the majority concluded.

Justices Breyer, Kagan, Sotomayor, and Ginsburg dissented. Justice Sotomayor said, among other things, “Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus rather than by the Government’s asserted national-security justifications.” Ultimately, she said, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has morphed into a Proclamation putatively based on national-security concerns. “But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers.”

The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf. Presidential Proclamation 9645 is at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/. A related fact sheet from the Department of Homeland Security is at https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes.

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USCIS Updates Notice to Appear Policy Guidance to ‘Support DHS Enforcement Priorities’

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on July 5, 2018, that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security (DHS).

A Notice to Appear (NTA) instructs a person to appear before an immigration judge on a certain date. The issuance of an NTA starts removal proceedings against the person. Under the new guidance, USCIS officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

USCIS said that “Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.” As explained in concurrently issued DACA-specific guidance, USCIS said it will continue to apply NTA guidance issued in 2011 to these cases. USCIS said it will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

The new policy memorandum updates the guidelines USCIS officers use to determine when to refer a case to U.S. Immigration and Customs Enforcement (ICE) or to issue an NTA. USCIS said the revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

USCIS noted that the revised policy does not change agency policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary protected status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status; and
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA, as noted above.

Under separate policy guidance issued concurrently, USCIS officers will continue to apply “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens,” dated November 7, 2011, to the issuance of NTAs and referrals to ICE for DACA recipients and requestors.

The USCIS notice is at https://www.uscis.gov/news/news-releases/uscis-updates-notice-appear-policy-guidance-support-dhs-enforcement-priorities. The updated policy memorandum is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. The separate policy guidance issued concurrently is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0161-DACA-Notice-to-Appear.pdf. The 2011 NTA guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf.

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DHS Issues Final Rule Eliminating Nonimmigrant Visa Exemption for Certain Caribbean Residents Coming to United States as H-2A Agricultural Workers

The Department of Homeland Security (DHS) issued a final rule on July 6, 2018, that eliminates the nonimmigrant visa exemption for certain Caribbean residents seeking to come to the United States as H–2A agricultural workers and the spouses or children who accompany or follow these workers to the United States. As a result of the related interim final rule, these nonimmigrants must have both a valid passport and visa. The Department of State (DOS) revised its regulations in a parallel interim final rule and is issuing a parallel final rule. Both the DHS and DOS final rules take effect August 6, 2018.

DHS noted that one commenter on the interim final rule stated that eliminating this longstanding exemption creates new costs and inconveniences for individuals from these areas, which could dramatically decrease or essentially prevent these workers from coming to the United States. The commenter stated that the cost of securing a visa would be more than the average Jamaican worker could likely afford. DHS responded that while the visa exemption for agricultural workers from the specified Caribbean countries dates back more than 70 years, it was created primarily to address U.S. labor shortages during World War II by expeditiously providing a source of agricultural workers from the British Caribbean to meet the needs of agricultural employers in the southeastern United States. This basis for the exemption no longer exists, DHS said, and continuing to provide an exemption for these individuals would be incongruent with the visa requirements for H-2A workers from other countries. While removing this exemption may make the process more difficult for individuals from these specified areas, it “creates an equitable standard for everyone who would like to enter the United States as an H-2A agricultural worker or as the spouse or child accompanying or following such an individual,” DHS said. The agency added that it also “better ensures that individuals from the specified Caribbean areas seeking admission as H–2A nonimmigrants, and their spouses and children, are in fact eligible for admission under the desired classification and permits greater screening for potential fraudulent employment.” Furthermore, the agency said that by eliminating this exemption, the U.S. government is “better situated to ensure that workers are protected from illegal employment and recruitment- based abuses,” including the imposition of prohibited fees.

DHS also stated that the exemption “posed a security risk” because exempt workers did not undergo the same visa issuance process as H-2A applicants from other countries, including undergoing a face-to-face consular interview and associated fingerprint and security checks.

The DHS final rule is at https://www.gpo.gov/fdsys/pkg/FR-2018-07-06/pdf/2018-14534.pdf. The parallel DOS final rule is at https://www.gpo.gov/fdsys/pkg/FR-2018-07-06/pdf/2018-14513.pdf.

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DHS Extends TPS for Yemen for 18 Months

The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Yemen for 18 months, through March 3, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Individuals from Yemen with TPS will be eligible to re-register for an extension of their status through March 3, 2020. Before the conclusion of the 18-month extension, DHS Secretary Kirstjen Nielsen will review conditions in Yemen to determine whether its TPS designation should be extended again or terminated.

DHS said there are approximately 1,250 Yemeni TPS beneficiaries. This 18-month extension of Yemen’s designation for TPS permits current Yemeni TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 3, 2020. To be eligible for TPS under Yemen’s current designation, along with meeting the other eligibility requirements, such individuals must have continuously resided in the United States since January 4, 2017, and have been continuously physically present in the United States since March 4, 2017.

The announcement is at https://www.dhs.gov/news/2018/07/05/secretary-nielsen-announcement-temporary-protected-status-yemen. Further details about this extension for TPS, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice.

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Justice Dept. Settles Claims Against Landscaping Company for Discriminating Against U.S. Workers

On June 26, 2018, the Department of Justice (DOJ) reached a settlement agreement with Triple H Services LLC, a landscaping company based in Newland, North Carolina, that conducts business in Virginia and four other states. The agreement resolves a DOJ investigation concluding Triple H unlawfully discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas.

The DOJ investigation found that although Triple H went through the motions of advertising more than 450 landscape laborer vacancies in five states, it did so in a manner that misled U.S. workers about the available positions and prevented or deterred some from applying. The agency found that Triple H did not consider several qualified U.S. workers who applied for positions in Virginia during the recruitment period, and instead hired H-2B visa workers. In several states where jobs were available, DOJ found that Triple H prematurely closed the online job application process for U.S. worker applicants, filled positions with H-2B visa workers without first advertising the jobs to U.S. workers in the relevant locations, or advertised vacancies in a manner that did not make the postings visible to job seekers using state workforce agency online services. DOJ concluded that in taking these actions, Triple H effectively denied U.S. workers access to jobs based on its preference for hiring temporary H-2B visa workers to fill the positions.

Under the settlement, Triple H must establish a back pay fund, with a cap of $85,000, to compensate certain individuals who were harmed by its practices. The agreement also requires Triple H to pay $15,600 in civil penalties, engage in enhanced recruitment activities to attract U.S. workers, and be subject to DOJ monitoring for a three-year period.

This settlement is part of the Civil Rights Division’s “Protecting U.S. Workers Initiative,” which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers. Under this initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with three employers. Since the initiative’s inception, employers have agreed to pay or have distributed over $285,000 in back pay to affected U.S. workers, DOJ said. The Division has also increased its collaboration with other federal agencies to combat discrimination and abuse by employers using foreign visa workers.

The DOJ’s press release is at https://www.justice.gov/opa/pr/justice-department-settles-claims-against-landscaping-company-discriminating-against-us. The Triple H settlement agreement is at https://www.justice.gov/opa/press-release/file/1074821/download.

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Dept. of State Partners with Hilton Hotels and Resorts on Passport Project

The Department of State (DOS) is working with Hilton Hotels and Resorts on the “Hilton Passport Project,” which “seeks to inspire and encourage U.S. citizens to apply for a passport.” DOS noted that approximately 60% of U.S. citizens do not have a U.S. passport.

DOS employees have assisted Hilton’s “Passport Concierge Booths” across the United States to provide passport applications, photos, and opportunities to ask questions about applying for a passport.

A passport application typically takes around six to eight weeks from the time of application to be processed, including mailing time. Expedited Service is an additional $60 and takes two to three weeks.

More information on the Hilton Passport Project is available at https://travel.state.gov/content/travel/en/News/passports/hilton-passport-project.html and https://www.hiltonpassportproject.com/.

DOS separately announced “special passport acceptance events.” Most such events are for first-time applicants and children using Form DS-11 to apply. Those eligible to renew should do so by mail, DOS said. A city-by-city list is at https://travel.state.gov/content/dam/passports/content-page-resources/Acceptance%20Event%20PDF%207.2.18.pdf. The announcement is at https://travel.state.gov/content/travel/en/News/passports/special-passport-acceptance-fairs.html. For information on renewal by mail, see https://travel.state.gov/content/travel/en/passports/apply-renew-passport/renew-by-mail.html.

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Attorney General Rescinds 24 Guidance Documents

Attorney General Jeff Sessions announced on July 3, 2018, that he is rescinding 24 guidance documents that were “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” A DOJ Task Force is continuing its “review of existing guidance documents to repeal, replace, or modify.”

The list of guidance documents that DOJ has withdrawn in 2018 includes, among others:

  • Bureau of Justice Assistance (BJA) State Criminal Alien Assistance Program Guidelines, 2016
  • Federal Protections Against National Origin Discrimination, April 30, 2006
  • Look at the Facts, Not at the Faces: Your Guide to Fair Employment, Approx. July 2009
  • Refugees and Asylees Have the Right to Work, May 2011
  • Language Assistance Self-Assessment and Planning Tool for Recipients of Federal Financial Assistance, on or before February 12, 2003
  • FAQs About the Protection of Limited English Proficiency (LEP) Individuals under Title VI of the Civil Rights Act of 1964 and Title VI Regulations, March 1, 2011
  • Draft Language Access Planning and Technical Assistance Tool for Courts, December 18, 2012

The DOJ announcement is at https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-rescinds-24-guidance-documents
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Firm in the News

At the recently concluded AILA Annual Conference in San Francisco, June 13-16, 2018, all of the Firm’s partners were invited to serve as Discussion Leaders of their panels.

Cora-Ann Pestaina was Discussion Leader of a panel entitled Labor Cert. 102: Recruitment on June 15, 2018. David Isaacson was a Discussion Leader of a panel entitled Common Non-Criminal Inadmissibility Issues in Today’s Turbulent Climate, AILA Annual Conference 2018, San Francisco, CA, June 16, 2018. Cyrus Mehta was the Discussion Leader of a panel entitled To Err is Human: Addressing Mistakes Made in Business Immigration Cases, June 16, 2018. The details of the program are available at https://www.aila.org/conferences/in-person/annual.

Mr. Mehta was  invited to present at a CLE organized by the First Judicial Department Attorney Grievance Committee, New York,  on the latest developments relating to asylum and family separation on July 12, 2018.

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

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

July 2018 Immigration Update

USCIS Recalls 800 Incorrectly Printed Employment Authorization Documents – USCIS said the cards contain a production error that transposed the first and last names of the individuals receiving the EADs.

ICE/SEVP Warns Students About Volunteer Positions – SEVP warned that reporting non-qualifying volunteer opportunities as OPT employment will be deemed a violation of reporting requirements and subject the student to removal from the United States.

USCIS Releases Data on DACA Requestors With ‘Criminal Arrest Record’ – USCIS said the report includes those whose applications were approved and denied, criminal and immigration-related civil offenses, and arrests and “apprehensions.” The report notes that the data include those who have not been convicted of any crimes.

USCIS Completes Lottery for Temporary Increase in FY 2018 H-2B Cap – USCIS has completed a lottery for H-2B temporary nonagricultural petitions under a temporary final rule that increased the numerical limit, or cap, on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of FY 2018.

ICE Arrests 146 on Immigration Violations at Ohio Meat-Processing Company – ICE said the enforcement action is part of a year-long, ongoing investigation based on evidence that Fresh Mark may have knowingly hired undocumented workers at its meat processing and packaging facility, and that many of these workers are using fraudulent identification belonging to U.S. citizens.

ABIL Global: Australia – Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

USCIS Recalls 800 Incorrectly Printed Employment Authorization Documents

On June 21, 2018, U.S. Citizenship and Immigration Services (USCIS) began recalling approximately 800 employment authorization documents (EADs) that were issued in conjunction with Form I-589, Application for Asylum and for Withholding of Removal, which were granted by USCIS asylum officers. USCIS said the cards contain a production error that transposed the first and last names of the individuals receiving the EADs. USCIS mailed these cards to recipients in April and May 2018.

USCIS said it is sending notices to individuals who received the incorrect EADs, as well as to their attorneys or accredited representatives, if a G-28 was submitted with the corresponding Form I-589. The agency said the affected individuals should return their incorrect EADs to USCIS in the provided pre-paid envelope within 20 days of receiving the notice. Recipients may also return their EADs to a USCIS field office. Replacement EADs will be sent within 15 days of receiving the incorrect card, USCIS said.

USCIS noted that the recall does not affect these individuals’ employment authorization because they are authorized for employment without needing an EAD. Affected recipients’ Forms I-94 showing that they were granted asylum is also evidence that they are authorized to be employed. USCIS said that any affected individuals who need proof of their employment authorization can notify the USCIS Contact Center.

The USCIS notice is at https://www.uscis.gov/news/alerts/uscis-recall-800-incorrectly-printed-employment-authorization-documents. More information about the USCIS Contact Center, including the telephone numbers to call, is at https://www.uscis.gov/contactcenter.

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ICE/SEVP Warns Students About Volunteer Positions

U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program office broadcast the following on May 18, 2018, to students on optional practical training (OPT):

Volunteer positions that are not directly related to your course of study do not qualify as [OPT] and must not be listed as OPT employment. Reporting non-qualifying volunteer opportunities as OPT employment will be deemed a violation of your reporting requirements and subject you to removal from the United States.

In addition, non-qualifying volunteer positions do not stop the accrual of unemployment which is limited to a total of 90 days during OPT. Accordingly, if you have been unemployed for more than 90 days, you must leave the United States or be subject to removal even if you have volunteered while unemployed.

Note: A volunteer position does not meet the conditions of a science, technology, engineering and mathematics OPT extension.

The alert is at https://www.ice.gov/sites/default/files/documents/Document/2018/bcm-1805-01.pdf.

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USCIS Releases Data on DACA Requestors With ‘Criminal Arrest Record’

U.S. Citizenship and Immigration Services (USCIS) recently released data on Deferred Action for Childhood Arrivals (DACA) requestors who have a “criminal arrest record.” USCIS said the report includes those whose DACA applications were approved and denied, criminal and immigration-related civil offenses, and arrests and “apprehensions.” The report notes that the data include those who have not been convicted of any crimes.

The report notes that since 2012, about 1% of approved DACA requestors have an arrest in any given year. “An arrest indicates the individual was arrested or apprehended only and does not mean the individual was convicted of a crime. Further, individuals may not have been charged with a crime resulting from the arrest, may have had their charges reduced or dismissed entirely, or may have been acquitted of any charges. Errors may result from the mining of complex text files.”

A breakdown on approved DACA requestors with a prior arrest, by type of offense, shows that the vast majority were for driving-related offenses (20,926), which include driving without a valid license, moving and non-moving violations, and speeding, but exclude driving under the influence. The next-largest category of offense was immigration-related, which  include visa overstays, immigration holds, and removal and deportation proceedings.

The report is at https://bit.ly/2K5OO47.

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USCIS Completes Lottery for Temporary Increase in FY 2018 H-2B Cap

U.S. Citizenship and Immigration Services (USCIS) has completed a lottery for H-2B temporary nonagricultural petitions it began receiving on May 31, 2018, under a temporary final rule that increased the numerical limit, or cap, on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2018. In the first five business days of filing, USCIS received petitions for more beneficiaries than the number of H-2B visas available under the FY 2018 supplemental cap. USCIS used a computer-generated selection process to randomly select enough petitions to meet, but not exceed, the increased H-2B cap for FY 2018. USCIS ran this lottery on June 7, 2018, and on June 11, 2018, began issuing notifications to the selected petitioners.

USCIS said it is rejecting and returning unselected petitions with their filing fees, as well as any cap-subject petitions received after June 6, 2018. Petitions accepted for processing will have a receipt date of June 11, 2018. Premium processing service for these petitions begins on that receipt date. Only employers whose petitions were accepted will receive receipt notices.

USCIS noted that a petition may be denied if USCIS discovers, after a petition has been filed, that an original approved temporary labor certification (TLC) was not submitted with the petition in accordance with the Form I-129 instructions, or if a petitioner requests more workers than were certified on the TLC. USCIS will not refund fees for a petition that has been denied.

USCIS continues to accept H-2B petitions that are exempt from, or not counted toward, the cap. These include 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, 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 noted that Congress set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 through September 30). The 15,000 additional visas for FY 2018 are available only to U.S. businesses which, among other requirements, attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petitions.

The USCIS notice is at https://www.uscis.gov/news/alerts/uscis-completes-lottery-temporary-increase-fy-2018-h-2b-cap. Information on premium processing is at https://www.uscis.gov/forms/how-do-i-use-premium-processing-service. More 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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ICE Arrests 146 on Immigration Violations at Ohio Meat-Processing Company

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit executed a criminal search warrant at Fresh Mark in Salem, Ohio, on June 19, 2018, and federal document search warrants at three other Fresh Mark locations in northern Ohio. During the search warrant execution, authorities identified 146 Fresh Mark employees working at the Salem meat processor who were subject to arrest for immigration violations.

ICE said the enforcement action is part of a year-long, ongoing HSI investigation based on evidence that Fresh Mark may have knowingly hired undocumented workers at its meat processing and packaging facility, and that many of these workers are using fraudulent identification belonging to U.S. citizens.

The action was coordinated with HIS’s federal, state, and local counterparts, including the Northern District of Ohio’s U.S. Attorney’s Office; U.S. Border Patrol, ICE Enforcement and Removal Operations; U.S. Customs and Border Protection Air and Marine Operations; HSI Detroit and Chicago Special Response Teams; the Salem Police Department; and the Columbiana County Sheriff’s Office.

ICE said that in the context of any enforcement action, “ICE utilizes prosecutorial discretion on cases involving humanitarian concerns, such as health or family considerations.” Accordingly, during the June 19 action, “several individuals were processed and released from custody the same day as a result of humanitarian considerations,” ICE said. Aliens who are being detained will be transported to a nearby processing facility and placed in removal proceedings. Aliens will be detained in facilities in Michigan and Ohio while awaiting removal proceedings.

A 24-hour toll-free detainee locator hotline is available for family members of those arrested in the operation to field questions about detention status and the removal process. The hotline operates in English and Spanish; the phone number is 1-888-351-4024.

The ICE notice is at https://www.ice.gov/news/releases/ice-executes-federal-criminal-search-warrants-fresh-mark-146-arrested-immigration.

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ABIL Global: Australia

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

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

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

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

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

Nomination

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

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

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

A further change, not yet effective, that has passed the Senate is the introduction of the Skilling Australians Fund. Under the previous 457 Program, an employer had to demonstrate that it met certain training benchmarks by providing evidence that it had spent the equivalent of 1% of its payroll in training Australian employees. Alternatively, if the employer was unable to establish the 1% requirement, it could pay an amount equivalent to 2% of its payroll to a registered training body to meet this benchmark.

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

The current training benchmarks remain in force until the new amendments come into effect.

Visa Application

The following are now the requirements for a TSS visa:

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

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

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

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

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

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

EMPLOYER NOMINATION—SUBCLASS 186 VISA

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

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

TRT Stream

The following are the current requirements:

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

Eligibility for All Streams

The applicant must:

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

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

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

Mid-June 2018 Immigration Update

Lottery Has Begun for Increased H-2B Petitions – USCIS began accepting H-2B petitions under the temporary final rule increasing the numerical limit, or cap, on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of FY 2018.

Labor Dept. Adds Time Received to Receipt Date for Review of H-2B Temporary Labor Certification Applications; Related News – OFLC released information on how H-2B applications for temporary employment certification filed by employers on or after July 3, 2018, will be assigned to staff for review.

USCIS Sends Letter on B-1/B-2 Upcoming Proposed Regulation – Proposed regulatory revisions will clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States.

Expect Retrogression of Mexico E-4 and SR Final Action Dates in July, State Dept. Says – There continues to be high demand in the Mexico E-4 and SR categories, which is expected to result in the Mexico E-4 per-country limit being reached during June.

132 Members of Congress Urge DHS to Continue Allowing H-4 Spouses of H-1B Nonimmigrants to Work – The letter notes that providing work authorization for accompanying spouses helps U.S. employers recruit and retain highly qualified employees.

USCIS Announces Launch of Online FOIA Request Processing System – USCIS is commencing digital delivery of this service in phases. Initially, requestors who have an immigration court date pending and file a request for documents can create an account within myUSCIS to receive documents digitally.

SAVE Goes Paperless – Benefit-granting agencies using USCIS’ Systematic Alien Verification for Entitlements program, used to verify a benefit applicant’s immigration status, can no longer submit paper versions of verification requests.

Firm in the News

Lottery Has Begun for Increased H-2B Petitions

USCIS began accepting H-2B petitions on May 31, 2018, under the temporary final rule increasing the numerical limit, or cap, on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2018.

USCIS said that in the first five business days of filing, USCIS received petitions for more beneficiaries than the number of H-2B visas available under the FY 2018 supplemental cap. Accordingly, USCIS said it is required by regulation to use a computer-generated process, commonly known as a lottery, to randomly select the number of petitions required to meet the increased cap for FY 2018.

The lottery will include all H-2B cap-subject petitions received between May 31, 2018, and June 6, 2018. USCIS said it will reject and return all unselected petitions with their filing fees, as well as any cap-subject petitions received after June 6.

All selected petitions will be assigned the same receipt date once the lottery is completed. Premium processing service for accepted petitions will begin on that receipt date, USCIS said.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-conduct-lottery-temporary-increase-fy-2018-h-2b-cap. USCIS said it would post another Web alert once the lottery is completed.

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Labor Dept. Adds Time Received to Receipt Date for Review of H-2B Temporary Labor Certification Applications; Related News

On June 1, 2018, the Department of Labor’s Office of Foreign Labor Certification (OFLC) released information on how H-2B applications for temporary employment certification filed by employers on or after July 3, 2018, will be assigned to staff for review. Applications filed on or after that date will be sequentially assigned to analysts based on both the calendar date and time (eastern time zone) on which the applications are received. The receipt time will be measured to the millisecond.

OFLC explained that it continues to experience significant increases in the number of H-2B applications requesting temporary labor certification. Those submissions are generally received on the earliest day employers seeking to obtain visas for their workers under the semi-annual allotments are permitted by regulation to file (i.e., 75 to 90 days before the start date of work), OFLC noted. For example, in the past several second-half semi-annual filing cycles, the overwhelming majority of H-2B applications were received on January 1, which is the earliest date on which an H-2B application may be filed for a period of need beginning on April 1. Because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory time frames for filing a request for temporary labor certification, stakeholders have also raised questions regarding the earliest time of day on which an application can be submitted to OFLC. To process the significant surge of applications that OFLC expects to receive in a short period of time during the semi-annual visa allotment periods in a more equitable manner and to clarify the time at which an application is received, OFLC will be implementing the new procedures.

The announcement, which includes examples, is at https://www.foreignlaborcert.doleta.gov/ (scroll to June 1, 2018).

In other news, the Labor Condition Application for Nonimmigrant Workers (Form ETA-9035/9035E) has been extended through June 30, 2018. OFLC said its request for a three-year extension is under review with the Office of Management and Budget (OMB), and that OFLC will continue to extend the form in one-month increments until approved by OMB.

Also, OFLC has published an attestation form (ETA Form 9142-B-CAA-2) and accompanying instructions in support of the temporary rule issued jointly on May 31, 2018, by the Departments of Homeland Security and Labor, “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program.” That rule increased the H-2B cap for FY 2018 by up to 15,000 additional visas for U.S. businesses that are likely to suffer irreparable harm (i.e., permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petitions before the end of FY 2018. Affected employers must submit the new attestation to USCIS along with Form I-129 in support of an H-2B application subject to the H-2B cap before the end of FY 2018.

The attestation form is at https://www.foreignlaborcert.doleta.gov/pdf/Form_ETA-9142-B-CAA-2_05.25.18.pdf. The announcement is at https://www.foreignlaborcert.doleta.gov/ (scroll to May 31, 2018).

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USCIS Sends Letter on B-1/B-2 Upcoming Proposed Regulation

On May 30, 2018, L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), sent a letter to Rep. Paul Mitchell (R-Mich.), who had hosted a May 16, 2018, roundtable on B-1 visa issues. The letter notes that USCIS is reviewing existing regulations, policies, and programs and developing a combination of rulemaking, policy memoranda, and operational changes to implement President Trump’s “Buy American and Hire American” executive order. Among other things, the letter states:

One area of focus is the B visa program. As noted in the Spring 2018 Unified Agenda, the Department of Homeland Security (DHS) is working on a proposed regulation pertaining to nonimmigrants admitted to the United States as temporary visitors for business (B-1) or pleasure (B-2). The proposed regulatory revisions will clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States. As stated in the Unified Agenda, “Such clarification is necessary to ensure fair and consistent adjudication and enforcement, as well as to make the criteria more transparent.”

The letter states that this rulemaking is a “priority” and that USCIS is “taking a lead role in drafting the proposed regulation,” which will include an opportunity for public comment.

The letter also references discussion of “B-1 in lieu of H” issues during the roundtable:

As explained, USCIS adjudicates applications from individuals who are already here and wish to extend a stay in B status or change to another nonimmigrant status (that is, change either to or from B status). USCIS also adjudicates employer petitions in H nonimmigrant visa classifications. As part of the above-described regulatory process, we are, in coordination with the Department of State and other immigration components within DHS, reviewing existing policy with respect to “B-1 in lieu of H-1,” as well as “B-1 in lieu of H-3.”

Director Cissna’s letter, copied to six Republicans and two Democrats, refers to a meeting “in the near future” with Rep. Mitchell to “discuss our efforts to improve the B visa program, as well as our other regulatory initiatives and statutory suggestions.”

The letter is at https://www.uscis.gov/sites/default/files/files/nativedocuments/B-1_Visa_abuse_-_Representative_Mitchell.pdf.

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Expect Retrogression of Mexico E-4 and SR Final Action Dates in July, State Dept. Says

The Department of State’s Visa Bulletin for the month of June 2018 notes that there continues to be high demand in the Mexico employment-based fourth preference (E-4) and special religious (SR) categories, which is expected to result in the Mexico E-4 per-country limit being reached during June. This means that retrogression of the July E-4 and SR Final Action Dates for Mexico is expected, the bulletin states. “This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits,” the bulletin notes.

The Visa Bulletin for June 2018 is at https://travel.state.gov/content/dam/visas/Bulletins/visabulletin_June2018.pdf.

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132 Members of Congress Urge DHS to Continue Allowing H-4 Spouses of H-1B Nonimmigrants to Work

One hundred and thirty-two members of Congress sent a letter on May 16, 2018, to Kirstjen Nielsen, Secretary of Homeland Security, urging maintenance of the current regulation granting work authorization to certain H-4 dependent spouses of H-1B nonimmigrant workers. The letter states that the opportunity for H-4 visa holders to work “has made our economy stronger, while providing relief and economic support to thousands of spouses—mostly women—who have resided in the United States for years.” The letter notes that many are on the path to permanent residence and would already be permanent residents if not for decades-long employment backlogs. “Rescinding the rule will hurt the competitiveness of U.S. employers and the U.S. economy, as well as H-4 accompanying spouses and their families,” the letter states.

The letter notes that providing work authorization for accompanying spouses helps U.S. employers recruit and retain highly qualified employees, “putting U.S. policy on par with other countries—such as Canada and Australia—competing to attract foreign nationals.” The letter notes additional reasons for allowing H-4 spouses to continue to work in the United States.

U.S. Citizenship and Immigration Services Director L. Francis Cissna responded on May 24, 2018, on Secretary Nielsen’s behalf. He stated that the Department of Homeland Security is committed to growing the U.S. economy and creating jobs for U.S. workers, and that the public will be given the opportunity to provide feedback during a notice-and-comment period “on any revisions to regulations that DHS determines appropriate, including revisions relating to the rule providing employment authorization to certain H-4 nonimmigrants.”

The letter and Director Cissna’s response are at https://www.uscis.gov/sites/default/files/files/nativedocuments/H-4_dependents_of_H-1B_Visa_holders_-_Representative_Jayapal.pdf.

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USCIS Announces Launch of Online FOIA Request Processing System

U.S. Citizenship and Immigration Services (USCIS) recently announced the launch of its “Freedom of Information Act (FOIA) Immigration Records SysTem (FIRST),” which the agency said “will eventually allow users to submit, manage, and receive FOIA requests entirely online.” Before this change, USCIS only accepted FOIA requests by mail, fax, and email, and requestors typically received their documents on a CD by mail.

USCIS is rolling out FIRST’s digital delivery of services in phases. Initially, requestors who have an immigration court date pending and file a request for documents can create an account within myUSCIS to receive documents digitally. Through their accounts, requestors can track the status of their FOIA cases and will receive an email notification when USCIS has uploaded their records. In the coming months, USCIS said, this digital delivery option will be expanded to all FOIA and Privacy Act (PA) requestors. When FIRST is fully operational, requestors will be able to use a completely digital FOIA/PA system, from online submission to retrieving and downloading responsive documents. USCIS will notify the public as additional services become available.

USCIS said that FIRST is part of the agency’s “ongoing effort to move the nation’s legal immigration system away from paper-based services to digital transactions.”

The announcement is at https://www.uscis.gov/news/uscis-implement-online-processing-foia-requests.

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SAVE Goes Paperless

As of June 1, 2018, benefit-granting agencies using U.S. Citizenship and Immigration Services’ (USCIS) Systematic Alien Verification for Entitlements (SAVE) program, used to verify a benefit applicant’s immigration status, can no longer submit paper versions of Form G-845, Verification Request. Previously, agencies submitted paper forms to request immigration status verification and for additional verification requests. Now all agencies must submit their requests and institute additional verification electronically, which USCIS said would “drastically” reduce case processing time.

“Without the use of paper during the verification process, SAVE will improve its efficiencies by reducing mailroom workloads and the time spent receiving and reviewing paper documents,” said Tammy Meckley, associate director of the Immigration Records and Identity Services Directorate (IRIS) at USCIS. “As a result, we will see a faster resolution of cases for both the requesting agency and the intended benefit recipient.”

The SAVE paperless initiative is part of a larger effort by USCIS to eliminate paper-based forms, as the agency transitions to online submission of benefit requests. The agency said the SAVE Paperless Initiative “will eliminate 170,000 paper form submissions and returned responses annually, reducing resource costs and postal fees. Additionally, the transition to a paperless environment will reduce case completion time from 20 days to less than five days.”

The USCIS announcement is at https://www.uscis.gov/news/save-goes-completely-paperless.

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Think Tank Report Notes 150-year Wait for Indian Immigrants With Advanced Degrees

A new blog entry by the Cato Institute notes that as of April 20, 2018, U.S. Citizenship and Immigration Services (USCIS) reported that there were 632,219 Indian immigrants and their spouses and minor children waiting for green cards (U.S. permanent residence). The shortest wait is for the highest skilled category for EB-1 immigrants with “extraordinary ability.” The blog states that extraordinary immigrants from India will have to wait “only” six years. EB-3 immigrants—those with bachelor’s degrees—will have to wait about 17 years. The biggest backlog, the blog notes, is for EB-2 workers who have advanced degrees. At current rates of visa issuances, the blog estimates that they will have to wait 151 years for a green card. “Obviously, unless the law changes, they will have died or left by that point,” the blog notes. It is available at https://www.cato.org/blog/150-year-wait-indian-immigrants-advanced-degrees. The USCIS report referred to in the blog is at https://bit.ly/2LEALzt

Firm In The News

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) received the 2018 Edith Lowenstein Memorial Award from the American Immigration Lawyers Association (AILA) for excellence in advancing the practice of immigration law. He received the award during AILA’s Annual Conference in San Francisco, California. For more information, see https://bit.ly/2HRrFgH.

Mr. Mehta was quoted in “USCIS Change Could Bar Many International Students,” published by Forbes. “There has always been a strict distinction between violating status and being unlawfully present in the United States. One can be in violation of status without being unlawfully present. Even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence. This is because an F, M and J nonimmigrant is usually admitted for a Duration of Status (D/S) rather than up to a certain date.” The article is at https://bit.ly/2LAI9vR.

Mr. Mehta authored a new blog entry. “Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B Visa or Labor Certification Denial?” is at https://bit.ly/2JU8Mi6.

June 2018 Global Immigration Update

Feature Article

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

Country Updates

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

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

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

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

Feature Article

CITIZENSHIP: AN OVERVIEW

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

Canada

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

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

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

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

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

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

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

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

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

  1. Does your jurisdiction permit dual citizenship?

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

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

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

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

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

Colombia

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

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

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

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

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

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

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

No.

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

No.

  1. Does your jurisdiction permit dual citizenship?

Yes, it is permitted.

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

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

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

Yes.

India

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

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

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

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

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

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

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

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

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

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

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

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

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

No.

  1. Does your jurisdiction permit dual citizenship?

India does not allow or recognize dual citizenship.

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

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

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

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

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

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

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

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

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

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

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

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

Mexico

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

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

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

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

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

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

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

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

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

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

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

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

  1. Does your jurisdiction permit dual citizenship?

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

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

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

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

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

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

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

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

Peru

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

To be eligible for Peruvian naturalization, a person must:

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

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

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

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

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

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

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

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

  1. Does your jurisdiction permit dual citizenship?

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

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

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

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

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

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

South Africa

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

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

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

Only adopted children qualify for citizenship by descent.

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

See (2).

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

No, only for permanent residence.

  1. Does your jurisdiction permit dual citizenship?

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

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

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

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

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

Turkey

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

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

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

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

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

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

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

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

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

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

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

Yes.

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

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

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

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

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

United Kingdom

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

The two most common ways to naturalize are:

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

Typically, applicants must:

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

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

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

British citizens are divided into two categories:

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

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

Additionally, there are separate processes for children who:

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

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

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

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

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

  1. Does your jurisdiction permit dual citizenship?

Yes, the UK permits dual citizenship.

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

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

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

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

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

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Country Updates

HONG KONG

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

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

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

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

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

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

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

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

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

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

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

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

Independent Legal Advice and Right to Counsel in Expatriation Proceedings

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

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

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

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

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

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

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

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

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

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

Chairman James has written that:

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

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

Immigration and Tax Consequences of Expatriation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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ITALY

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

2018/19 Entry Quotas for Non-EU Professional Sportspeople

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

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

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

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

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

Labor Inspectors to Increase Investigations

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

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

Update on Work for Family Permit Applicants

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

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

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

Italy Implements Policy to Attract International Talent

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

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RUSSIA

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

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

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

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UNITED KINGDOM

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

New Application Process for Work or Study Visas in the UK

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

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

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

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

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

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

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

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

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

How do I register for the new service?

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

What about pending adverts?

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

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June 2018 Immigration Update

Headlines:

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

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

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

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

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

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

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

Firm in the News

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TPS for Hondurans to End in January 2020

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

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

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

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

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

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

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

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

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

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Trump Says Guest Workers Will Be Allowed into United States

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

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

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

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Firm In The News

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

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

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

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Mid-May 2018 Immigration Update

Headlines:

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

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

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

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

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

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

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

Firm in the News…

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TPS for Hondurans to End in January 2020

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

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

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

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

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

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

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

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

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

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Trump Says Guest Workers Will Be Allowed into United States

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

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

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

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Firm In The News

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

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

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

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

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May 2018 Immigration Update

Headlines:

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

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

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

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

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

Firm in the News…

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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USCIS Announces Convictions in Two Immigration Fraud Cases

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

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

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

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

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

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

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

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

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ABIL Global: Turkey

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

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

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

KEP Registration Generally

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

KEP Registration for MOL/Turkish Work Permits

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

Problems with the KEP System

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

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

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Firm In The News

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

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

Mr. Mehta recently spoke at the following conferences:

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

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

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Mid-April 2018 Immigration Update

Headlines:

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

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

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

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

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

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

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

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

Firm in the News

 

Details:

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

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

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

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

8 U.S.C. § 1325(a) states:

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

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

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

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

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

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

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

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

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

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

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USCIS Launches E-Verify Website

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

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

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

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

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EOIR Announces Controversial Metrics for Immigration Judge Performance

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

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

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

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

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

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

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

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

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National Guard Troops Deploy to Southern U.S. Border

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

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

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

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

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

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

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

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

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

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Reminder: SAVE Goes Paperless

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

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

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Firm In The News

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

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

This is what Who’s Who Legal have said:

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

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

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

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

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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