February 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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

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

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

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2.     Immigration Innovation Act of 2018 Introduced in Senate

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

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

Employment-Based Nonimmigrant Visas (H–1B)

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

Green Cards

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

Student Visas

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

STEM Education and Worker Training

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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10.     CBP Issues Guidance on Border Searches of Electronic Devices

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

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

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

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

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

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

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

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

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12.   ABIL Global: Mexico

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

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

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

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

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

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

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

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

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  1. Firm In the News

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

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

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

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Mid-January 2018 Immigration Update

Headlines:

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

Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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  1. CBP Updates Directive on Border Searches of Electronic Devices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. For Section 1, the employee may:

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

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

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

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

2. For Section 2, employers should:

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

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

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

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

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

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

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

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

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

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

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

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  1. Firm In The News

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

January 2018 Immigration Update

Headlines

  1. ABIL Commentary: Threats, Opportunities for Employers in 2018 – After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL) shared their thoughts on what employers can expect in 2018.
  2. REAL ID Act: New Security Measures Start January 22 – Starting January 22, 2018, passengers who have driver’s licenses issued by a state that does not yet comply with the REAL ID Act and that has not received an extension will need to show an alternative form of acceptable identification for domestic air travel. Passengers who have licenses issued by a state that is complying or that has an extension to become compliant with REAL ID requirements may continue to use their licenses as usual.
  3. DHS Implements New VWP Security Measures – The new measures include requiring VWP countries “to use counterterrorism information to better screen travelers,” assessing VWP countries “to ensure they implement safeguards against the aviation sector,” and requiring certain VWP countries “to initiate public information campaigns to reduce overstays.”
  4. USCIS Announces Restrictions on TN Economist Status – New policy guidance states that financial analysts, marketing analysts, and market research analysts are not eligible for classification as a TN economist.
  5. Judge Lifts Trump Ban on Certain Following-to-Join Refugees – A federal judge in Seattle preliminarily enjoined federal agencies from enforcing a Trump administration-imposed ban on certain following-to-join refugees from entering the United States. The court said that it did so at an early stage in the proceedings because the plaintiffs showed that they were likely to succeed on their claims that the agencies exceeded their statutory authority.
  6. EB-5, Special Immigrant Religious Worker Categories Extended to January 19 – The Department of State’s Visa Bulletin for January 2018 discusses the scheduled expiration of two employment-based visa categories. Both have been extended at least until January 19, 2018, with passage of a short-term continuing resolution in Congress.
  7. TPS Extended for Honduras Until July 2018, Terminated for Nicaragua in January 2019 – The Department of Homeland Security recently announced that the temporary protected status designation has been extended for Honduras until July 5, 2018, and will be terminated for Nicaragua as of January 5, 2019.
  8. USCIS Reaches H-2B Cap for First Half of FY 2018 – December 15, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2018. USCIS will reject new cap-subject H-2B petitions received after December 15 that request an employment start date before April 1, 2018.
  9. Cuba News: USCIS Rescinds Matter of Vazquez as Adopted Decision; U.S. Embassy in Havana Temporarily Suspends Operations – USCIS has made several announcements recently with respect to Cuba, including issuing a new policy memorandum that rescinds Matter of Vazquez as an Adopted Decision, and temporarily suspending operations at its field office in Havana.
  10. ABIL Global: France – The French government, in its continual effort to facilitate international professional mobility, is rolling out several digital tools to simplify entry and work procedures in France for foreign employees. The latest important innovation is the online portal “France Visas,” which allows applying for visas online. This portal is in addition to a number of other applications already in place for electronic registration and declarations relating to the international mobility of foreign employees.
  11. Firm In the News…

Details:

1.     ABIL Commentary: Threats, Opportunities for Employers in 2018

After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL), of which our firm is a member, shared their thoughts on what employers can expect in 2018. Below is a summary of their responses and reports from the field.

Where Things Stand Now

The Trump administration appears to be attempting to keep various campaign promises on immigration and border enforcement that mesh with the President’s (and his supporters’) overall dim view of foreign people entering the United States. Before he was elected, President Trump made a wide range of anti-immigration promises couched in national security terms. Those promises included, among other things, building a massive wall along the southern border and making Mexico pay for it; immediately deporting undocumented migrants; barring Muslims from entering the United States; “extreme vetting” of immigrants; and creating a “deportation force.” The President has waffled on Deferred Action for Childhood Arrivals (DACA) “Dreamers,” verbally expressing his support and understanding of their plight and then canceling the DACA program with an exhortation for Congress to handle it.

Executive orders issued since his inauguration have included various entry/travel bans, limits on refugees, and threats to sanctuary cities to pull their federal funding. The first travel ban on people entering from several predominantly Muslim countries was announced seven days after his inauguration with no apparent advance process, discussion, preparation, warning, or guidance to the Department of Homeland Security. The result was chaos and protests at airports. Various court challenges and subsequent travel bans ensued.

Arrests for “noncriminal immigration violators” are up, with 31,888 noncriminal arrests during the first eight months of the Trump administration, according to U.S. Customs and Immigration Enforcement. On the other hand, deportations have actually decreased by about 14,000 this year, reports say, but Attorney General Jeff Sessions has called for a “concerted effort” by immigration courts to speed up processing of pending immigration cases.

Concerns for 2018

Current concerns for 2018 include:

  • Animosity of the administration toward immigrants: “This is leaching into all areas of USCIS adjudications and the attitude of [U.S. Customs and Border Patrol agents toward] travelers with a bona fide legal basis for entry,” one attorney reported. “They will do as they please right now until challenged,” said another.
  • Creeping arbitrariness and unpredictability: Attorneys report clients being held up at the border or turned away in some cases due to considerations that do not seem to be based in law or regulation. Denials are being issued in some cases filed by employers on behalf of professionals that previously would have been considered routine. Some agents of the federal government appear to believe it is now open season on cracking down, and to be acting accordingly. Officers are no longer required to defer to previous decisions when extensions are requested. An attorney reported an example of such decision-making: a “perfectly clean” request for a three-year L-1 worker was approved without an RFE for one year because “she is an employee at will, so only one year is allowed.” Another attorney reported similar treatment for Trade NAFTA clients at certain ports of entry. A third attorney said, “To me the top threat is something that affects everything we do—it is the sense (which is not universal but permeates the ranks) inside [the Departments of Homeland Security and State] that they have impunity and are not bound by the rule of law. Unless and until employers adopt a long-term view and sue—as opposed to the short-term approach of just refiling and hoping for a better result—the agencies are right.”
  • More and more demands for additional documents, interviews, and requests for evidence (RFEs): Among other things, U.S. Citizenship and Immigration Services (USCIS) is reportedly considering mandatory interviews for all applications to renew or replace green cards (Forms I-90). Interviews for petitions to remove conditions on residence for certain married couples (I-751) are already a “nightmare.” USCIS is phasing in interviews for adjustment of status applications based on employment, including for some who have already filed their applications. Executive orders are requiring visa applications and adjudications to be reviewed for compliance with “extreme vetting” and “Buy American/Hire American” policies, for both initial petitions and extensions. There has been a sharp uptick (45% compared to last year, according to USCIS) in RFEs on H-1B visa petitions for skilled workers.
  • Massive backlogs and delays in applications and petitions increasing as a result of the greater scrutiny, in some cases leading to disruptions in travel, work, and study plans.
  • Attorneys’ fees increasing as a result of the additional work.
  • An overall “brain drain” and reduction in quality employees as immigration decreases, deportations increase, and more and more people leave the United States for Canada or other countries perceived to be friendlier to immigration, or never apply to enter the United States in the first place.
  • Arbitrary caps on H-2B workers and lack of a returning worker exemption.
  • A lack of visa categories for unskilled workers who are not temporary (which constitutes about 75% of the entire workforce).
  • Denials of advance parole renewal requests filed by green card applicants if they leave the country.
  • Stress on employers as they find it harder to fill important positions in a timely manner or are accused of not wanting to hire U.S. workers when in some cases there are simply not enough U.S. workers qualified and available to take the jobs.
  • Stress on clients, including would-be immigrants and their families; family separation; stress on attorneys.
  • Travel restrictions on people from certain countries based on a new ban issued in September that the Supreme Court allowed to be put into effect while appeals run their course.
  • Ending temporary protected status for some (e.g., Nicaraguans and Haitians), and making it harder to designate or extend such status in the future.
  • A planned removal of the regulation allowing certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization documents (EADs), with a notice of proposed rulemaking scheduled for February 2018. This is expected to result in lost filing fees and labor turnover costs for employers with workers on H-4 EADs.
  • A proposed electronic registration program for H-1B petitions subject to numerical restrictions, with a notice of proposed rulemaking considered for February 2018, along with possible further restrictions on H-1B visas.
  • A proposal to make it more difficult to obtain a J-1 waiver.
  • Privacy issues: As of the middle of fiscal year 2017, approximately 30,000 travelers had their electronic devices searched at the border or at ports of entry. This was three times the number searched in 2015.

Future Concerns

In addition to those noted above, future concerns include:

  • A planned revision (not yet described) of the definition of Specialty Occupation for H-1B workers and additional requirements for H-1B wages, with a notice of proposed rulemaking scheduled for October 2018.
  • Proposed new requirements for F and M students with respect to the practical training period, to include increased oversight of schools and participating students, with a notice of proposed rulemaking scheduled for October 2018.

Hopeful Signs

Although no one has a crystal ball and things look bleak overall for the foreseeable future on the immigration front, there are a few positive indications on the horizon. For example, according to reports, after conferring with President Trump, leaders in Congress are seriously considering introducing a measure in January 2018 to allow DACA “Dreamers” to stay in the United States. As of September 4, 2017, there were 689,821 people with valid DACA status in the country. Sen. Lindsey Graham (R-SC) was quoted in late December following a meeting with President Trump: “He wants to make a deal. He wants to fix the entire system.”

Also reportedly under serious consideration is meaningful EB-5 reform legislation, such as the Fairness for High-Skilled Immigrants Act, which would allow some EB-5 investors to obtain immigrant visas more quickly because their place in the waiting line would no longer depend on the nation of chargeability. And USCIS began accepting applications again under the International Entrepreneur Rule in December, albeit temporarily while the agency drafts a notice of proposed rulemaking to quash it permanently.

Otherwise, some court challenges are either already working their way through the system (e.g., on the latest travel ban) or may be filed in the future.

Recommendations

In general, ABIL recommends that employers and employees consider:

  • Allowing much more time than before for the application/petition process. Posted processing times are not reliable. Several additional months may be required if there is an RFE or an unanticipated additional security check or other problem.
  • Filing a mandamus action in federal court to compel the agency to act if a case experiences extreme processing delays.
  • Not leaving the United States in the short term if status is in any way uncertain.
  • Contacting your ABIL attorney for advice and help in specific situations.

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  1. REAL ID Act: New Security Measures Start January 22

Starting January 22, 2018, passengers who have driver’s licenses issued by a state that does not yet comply with the REAL ID Act and that has not received an extension will need to show an alternative form of acceptable identification for domestic air travel. Passengers who have licenses issued by a state that is complying or that has an extension to become compliant with REAL ID requirements may continue to use their licenses as usual.

Starting October 1, 2020, every air traveler must present a REAL ID-compliant license or another acceptable form of identification for domestic air travel. A REAL ID compliant license is one that meets, and is issued by a state that complies with, the REAL ID Act’s security standards.

The Department of Homeland Security (DHS) noted that REAL ID allows compliant states to issue driver’s licenses and identification cards where the identity of the applicant cannot be assured or for whom lawful presence is not determined. Some states currently issue such noncompliant cards to undocumented individuals. These cards must clearly state on their face (and in the machine-readable zone) that they are not acceptable for official purposes and must use a unique design or color to differentiate them from compliant cards, DHS said. DHS cautioned against assuming that possession of a noncompliant card indicates the holder is an undocumented individual, given that several states issue noncompliant licenses for reasons unrelated to lawful presence.

Many states are already REAL ID compliant. DHS reportedly has granted the following states and territories an extension until October 2018 to meet federal standards and make their state-issued IDs compliant: Alaska, American Samoa, California, Guam, Idaho, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Missouri, Montana, Northern Mariana Islands, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, U.S. Virgin Islands, Virginia, and Washington.

States under review for a renewed extension include New York, Michigan, and Louisiana.

Travelers can check DHS’s website for additional information and can check with a state’s driver’s license-issuing agency about how to acquire a compliant license. DHS’s REAL ID webpage is at https://www.dhs.gov/real-id. DHS’s Transportation Security Administration’s list of acceptable forms of identification for airport checkpoints is at https://www.tsa.gov/travel/security-screening/identification.

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  1. DHS Implements New VWP Security Measures

Secretary of Homeland Security Kirstjen M. Nielsen announced on December 15, 2017, that the Department of Homeland Security (DHS), in consultation with the Department of State and other federal agencies, is implementing new security requirements for the Visa Waiver Program (VWP). VWP allows citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Each year, the United States allows more than 20 million visitors to travel to the United States under the VWP.

The new measures include requiring VWP countries “to use counterterrorism information to better screen travelers,” assessing VWP countries “to ensure they implement safeguards against the aviation sector,” and requiring certain VWP countries “to initiate public information campaigns to reduce overstays.”

Specifically, DHS is introducing the following measures applicable to all countries in the VWP:

  • Requiring VWP countries to fully implement existing information-sharing arrangements by systematically screening travelers crossing their borders against U.S. counterterrorism information;
  • Assessing VWP countries on the effectiveness of safeguards against insider threats in the aviation security environment; and
  • Requiring VWP countries having a two percent or greater rate of business or tourism nonimmigrant visitors overstaying the terms of their admission into the United States to initiate a public information campaign to reduce overstay violations by educating their nationals on the conditions for admission into the United States.

DHS reportedly said that Hungary, Greece, Portugal, and San Marino will launch public campaigns to inform their citizens because two percent of travelers from those countries overstayed their terms of admission.

DHS is also asking Congress to codify existing VWP requirements to bolster efforts in the following areas:

  • Reporting of foreign terrorist fighter information to multilateral organizations, such as INTERPOL and EUROPOL;
  • Systematically collecting and analyzing passenger travel data (Advance Passenger Information/Passenger Name Records); and
  • Concluding arrangements to permit U.S. Federal Air Marshals to operate onboard U.S. air carriers for last point of departure flights to the United States.

As part of its regular cooperation with VWP countries, DHS said it “will develop targeted engagement plans to support implementation of these measures.” DHS has assessed that these security enhancements will not hinder lawful trade and travel. Qualified nationals will continue to be able to travel to the United States under the VWP, DHS noted.

DHS also said that travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, Syria, Libya, Somalia, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country); and
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

In addition, travelers must have an e-passport to use the VWP. An e-passport is an enhanced secure passport with an embedded electronic chip. An e-passport is readily identified by a unique international symbol on the cover.

DHS Secretary Nielsen’s statement is at https://www.dhs.gov/news/2017/12/15/secretary-kirstjen-nielsen-announces-targeted-security-enhancements-visa-waiver. Additional information on the VWP, including a list of participating countries, is at https://www.dhs.gov/visa-waiver-program-requirements.

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  1. USCIS Announces Restrictions on TN Economist Status

U.S. Citizenship and Immigration Services (USCIS) recently published policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for Trade NAFTA (TN) nonimmigrant status as an economist. The policy guidance states that financial analysts, marketing analysts, and market research analysts are not eligible for classification as a TN economist.

North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the United States to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, which USCIS said has resulted in inconsistent decisions about whether certain analysts and financial professionals qualify for TN status as economists.

USCIS said the new policy is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations, USCIS said.

With respect to the occupation of financial analyst, USCIS said it recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts “primarily conduct quantitative analyses of information affecting investment programs of public or private institutions,” USCIS said. Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS said it is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA.

Some attorneys warn that TN Economists—even those who were previously approved—could experience increased scrutiny when returning to the United States. Strategies may include arguing that a position meets the definition of an economist, amending the position description, avoiding international travel, or considering nonimmigrant alternatives. Contact your Alliance of Business Immigration Lawyers attorney for advice in specific situations.

The USCIS policy memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-1120-PM-602-0153_-TN-Economists.pdf.

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  1. Judge Lifts Trump Ban on Certain Following-to-Join Refugees

On December 23, 2017, a federal judge in Seattle preliminarily enjoined federal agencies from enforcing a Trump administration-imposed ban on certain following-to-join refugees from entering the United States. The court said that it did so at an early stage in the proceedings because the plaintiffs showed that they were likely to succeed on their claims that the agencies exceeded their statutory authority and also that the plaintiffs meet other qualifying factors necessary for preliminary injunctive relief.

The court noted that the plaintiffs in the two motions at issue are refugees “in dire circumstances,” whose family members “yearn to be reunited with them,” and humanitarian organizations whose fundamental mission is “to help these vulnerable refugees resettle in the United States.” Among the plaintiffs are a Somali immigrant, admitted to the United States in 2014 as a refugee, who became a lawful permanent resident in 2016. He filed a petition to bring his wife and children to the United States as following-to-join refugees. His wife and children completed their final interviews and security and medical clearances, received a formal assurance from a refugee resettlement agency, and were on the brink of travel but have not yet received permission from the Department of Homeland Security to travel. His wife and oldest stepson are both Kenyan citizens, so the U.S. Embassy in Somalia said they could travel to the United States, but said that his four- and five-year-old sons could not do so because they are considered Somali citizens due to their father’s nationality.

Another plaintiff is an Iraqi national who served as an interpreter for the U.S. military, which put him in extreme danger in Iraq. He fled Iraq for Cairo, Egypt, without his family in 2014 and applied for refugee status in the United States. He was conditionally approved for U.S. resettlement in December 2015 and received an assurance of sponsorship from a resettlement agency. He was told to get ready to travel to the United States and was updating his passport when the restrictions on refugee admissions went into effect.

Also among the plaintiffs is a transgender woman who faces extreme harassment and persecution in Egypt because of her gender identity. Her refugee application was being processed on an expedited basis until the restrictions took effect.

The organizational plaintiffs, which include Jewish Family Services and the American Civil Liberties Union, are also suffering “irreparable harm,” the court said. They have dedicated significant resources to helping refugees from the countries in question. Due to the government’s actions, the organizations claim they will need to lay off employees, reduce services, cancel established programs, lose institutional knowledge, and ultimately lose goodwill with volunteers and community partners. Evidence of these threatened losses supported a finding of the possibility of irreparable harm, the court said, adding that the indefinite duration of the “delay” in admitting the refugees “leaves the organizations unable to operate or plan effectively, further deteriorating goodwill and adding to their harms.” Further, the court noted, the organizations cannot simply shift resources to “unaffected” refugees as the government suggested. Rather, they have built programs specifically to serve Muslim and Arabic-speaking refugees.

Among other things, the government asserted that the “doctrine of consular nonreviewability” applied to the claims in this case. However, the court observed that courts have traditionally applied that doctrine to bar challenges to decisions by consular officials adjudicating individual visa applications. In this case, the court noted, defendants relied on out-of-circuit authority to argue for a significant expansion of the doctrine and stated that the principle underlying that doctrine applies regardless of the manner in which the executive branch denies entry to an alien abroad, including a refugee applicant. The court noted that the individual plaintiffs did not seek review of an individual consular officer’s decision to grant or deny a visa pursuant to valid regulations, but rather the government’s promulgation of sweeping immigration policy. Courts can and do review constitutional and statutory challenges to the substance and implementation of immigration policy, the court said.

The court also noted that while the Secretary of Homeland Security has discretion in deciding the outcome of a refugee application, the law does not specify that the Secretary has discretion to suspend adjudication such applications. The court said, “In other words, the Secretary may have discretion over what the decision will be, but not over whether a decision will be made.”

The court also observed that the government offered no evidence that the suspension of admissions of refugees from certain countries was in response to a national security or foreign affairs crisis. The justification offered seemed to be that the government continued to have unspecified concerns regarding the admission of refugees from certain countries. The court agreed that the government has a “compelling” interest in national security, but noted that the government did not point to any specific national security threat that the restrictions curtail.

The court said that the preliminary injunction applies to all following-to-join refugees because, by definition, they have a bona fide relationship with a person in the United States, which is required based on a recent Supreme Court decision. The same, however, is not true for all refugees from the banned countries. “These refugees are not necessarily in a relationship with a United States person or organization,” the court noted.

The court noted that this is an area of “rapidly developing law with related cases presently on appeal and decisions anticipated shortly.” Stay tuned.

The decision is at https://www.politico.com/f/?id=00000160-8609-dcd4-a96b-b7290b5b0001.

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  1. EB-5, Special Immigrant Religious Worker Categories Extended to January 19

The Department of State’s Visa Bulletin for January 2018 states the following with respect to scheduled expiration of two employment-based visa categories. Both have been extended at least until January 19, 2018, with passage of a short-term continuing resolution in Congress:

Employment Fourth Preference [EB-4] Certain Religious Workers (SR):

Pursuant to the continuing resolution, signed on December 7, 2017, the non-minister special immigrant program expires on December 22, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 21, 2017. Visas issued prior to this date will only be issued with a validity date of December 21, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight December 21, 2017.

The final action date for this category has been listed as “Unavailable” for January. If there is legislative action extending this category for FY 2018, the final action date would immediately become “Current” for January for all countries except El Salvador, Guatemala, and Honduras which would be subject to a December 1, 2015 final action date, and for Mexico which would be subject to a June 1, 2016 date.

Employment Fifth Preference [EB-5] Categories (I5 and R5):

The continuing resolution signed on December 7, 2017 extended this immigrant investor pilot program until December 22, 2017. The I5 and R5 visas may be issued until close of business on December 22, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 22, 2017.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for January. If there is legislative action extending them for FY 2018, the final action dates would immediately become “Current” for January for all countries except China-mainland born I5 and R5 which would be subject to a July 22, 2014 final action date.

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

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  1. TPS Extended for Honduras Until July 2018, Terminated for Nicaragua in January 2019

The Department of Homeland Security recently announced that the temporary protected status (TPS) designation has been extended for Honduras until July 5, 2018, and will be terminated for Nicaragua as of January 5, 2019. Details are below.

Honduras

The designation of Honduras for TPS was set to expire on January 5, 2018. The Secretary of Homeland Security did not make a determination on Honduras’s designation by November 6, 2017, the statutory deadline. Accordingly, the TPS designation of Honduras is automatically extended for 6 months, from January 6, 2018, through July 5, 2018. The 60-day re-registration period began December 15, 2017, and runs through February 13, 2018.

In the notice announcing the extension on December 15, 2017, the Department of Homeland Security said that before July 5, 2018, the Secretary will review the conditions in Honduras and decide whether extension, redesignation, or termination is warranted in accordance with the TPS statute. During this period, “beneficiaries are encouraged to prepare for their return to Honduras in the event Honduras’s designation is not extended again and if they have no other lawful basis for remaining in the United States, including requesting updated travel documents from the Government of Honduras,” DHS said.

Nicaragua

The TPS designation of Nicaragua is also set to expire on January 5, 2018. The Secretary of Homeland Security announced on December 15, 2017, that the TPS designation of Nicaragua will be terminated effective January 5, 2019. The 60-day re-registration period began December 15, 2017, and runs through February 13, 2018. DHS said that “[i]t is important for re-registrants to timely re-register during this 60-day period and not to wait until their EADs expire.”

Nationals of Nicaragua (and those having no nationality who last habitually resided in Nicaragua) who have been granted TPS and wish to maintain their TPS and receive TPS-based employment authorization documents (EADs) valid through January 5, 2019, must re-register for TPS in accordance with the procedures set forth in the notice.

The TPS notice for Honduras is at https://www.gpo.gov/fdsys/pkg/FR-2017-12-15/html/2017-27140.htm. The TPS notice for Nicaragua is at https://www.gpo.gov/fdsys/pkg/FR-2017-12-15/html/2017-27141.htm.

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  1. USCIS Reaches H-2B Cap for First Half of FY 2018

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has reached the congressionally mandated H-2B cap for the first half of fiscal year 2018.

December 15, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2018. USCIS will reject new cap-subject H-2B petitions received after December 15 that request an employment start date before April 1, 2018.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • Current H-2B workers in the United States petitioning 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 from November 28, 2009, until December 31, 2019.

USCIS is currently accepting cap-subject petitions for the second half of FY 2018 for employment start dates on or after April 1, 2018.

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 (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).

USCIS encourages H-2B petitioners to visit the H-2B fiscal year 2018 cap season webpage at https://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h-2b-nonimmigrants.

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9.     Cuba News: USCIS Rescinds Matter of Vazquez as Adopted Decision; U.S. Embassy in Havana Temporarily Suspends Operations

U.S. Citizenship and Immigration Services (USCIS) has made several announcements recently with respect to Cuba, including issuing a new policy memorandum that rescinds Matter of Vazquez as an Adopted Decision, and temporarily suspending operations at its field office in Havana.

Rescission of Matter of Vazquez as an Adopted Decision

A new policy memorandum rescinds Matter of Vazquez as an Adopted Decision. The new memorandum supersedes all prior guidance regarding the determination of Cuban citizenship for purposes of adjustment under the Cuban Adjustment Act. The memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-12-21-PM-602-0154-Matter-of-Vazquez-Rescission.pdf.

Temporary Suspension of Operations in Havana

U.S. Citizenship and Immigration Services (USCIS) announced that due to staff reductions at the U.S. Embassy in Havana, Cuba, USCIS will temporarily suspend operations at its field office in Havana, effective immediately. During this time, the USCIS field office in Mexico City, Mexico, will assume Havana’s jurisdiction.

USCIS says that individuals who live in Cuba must follow the filing instructions in the announcement at https://www.uscis.gov/news/alerts/updated-uscis-procedures-cuba. The U.S. Embassy website for Cuba is at https://cu.usembassy.gov/visas/.

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10.   ABIL Global: France

The French government, in its continual effort to facilitate international professional mobility, is rolling out several digital tools to simplify entry and work procedures in France for foreign employees. The latest important innovation is the online portal “France Visas,” which allows applying for visas online. This portal is in addition to a number of other applications already in place for electronic registration and declarations relating to the international mobility of foreign employees.

A New Online Service: “France Visa”

The online portal “France Visas,” the official website of visas for France, has been available since September 2017 but is gradually being developed to allow people to file online applications for tourism or professional visas. The portal at https://france-visas.gouv.fr/ (English) is a “beta” version, which is not yet available for all countries and is expected to continue to evolve.

“France Visas” allows the automated processing of personal data when applying for entry visas to France for short or long stays. The French government is seeking to facilitate processing of visa applications, tracking of decisions and appeals, and prevention of fraud and misuse. The Internet platform will provide the information required for submitting a visa application and will allow a user to track an application.

The application process will include automatic consultation of several databases: the Schengen Information System (SIS II), the Visa Information System (VIS), the wanted persons list (RPF), and the Interpol travel document list.

All data may be collected by French consulates, agents at external border crossing points, prefectures, and outsourced service providers who guarantee data protection in accordance with French law.

The data retention period is set at five years, from either the expiration date of the visa or the date of creation of the file in case of refusal or interruption of the application. Rights of access and rectification of data are governed by the provisions of the French “Data Protection Act.”

Online Declaration of Foreign Employees Posted to France—”SIPSI”

Any employer established outside France who sends employees to French territory must send a prior declaration of posting of the employees to the labor inspectorate of the place of performance of the service before the start of the service in France. The posting declaration, provided for in articles R. 1263-3 and R. 1263-4, is sent via the “SIPSI” online service (https://www.sipsi.travail.gouv.fr/) to the Foreign Labor Service (SMOE) of the place where the service is performed. When the service is performed in several locations, the posting declaration is sent to the SMOE where the service is first performed. The SIPSI online declaration, first implemented in July 2016, is now fully operational and allows foreign employers posting salaried staff in France to carry out this formality in a simplified manner.

A fee of €40 per application will be charged, starting January 2018, to defer the ongoing costs of SIPSI, per decree of May 3, 2017.

The absence of a posting declaration can lead to the suspension of the service, and a fine of €2000 per detached employee not declared.

Opening Rights to Social Security for Certain Workers—Online Service

Since November 2017, it is now possible to register foreign employees under the French social security system through the AMELI.fr online service. However, at this stage only employees who have entered France under “Passport Talent” status, foreign employees employed in Ile-de-France, models, and foreign language assistants can benefit from this service.

Requests for registration are processed directly by the International Relations Department of Social Security. An employer can open an account on the dedicated website https://www.ameli.fr/ and proceed with the registration of foreign employees eligible for the online service. A temporary social security number is sent within two days and the certificate of rights in about 15 days.

In addition to the redesign of residence permits for professional reasons stemming from a March 2016 law, the implementation of online procedures simplifies the administrative requirements and improves the attractiveness of France in exchange for a reinforced control of foreign employers and employees working in France.

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  1. Firm In the News

Cyrus D. Mehta was a Speaker, Ethics, Business Development and Practice Management in A Digital Age, 19th AILA New York Chapter Immigration Law Symposium, New York, NY, December 18, 2017.

Cyrus D. Mehta published Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism on December 18, 2018 and Top 10 Most Viewed Posts On The Insightful Immigration Blog In 2017 on December 29, 2017.

Cyrus D. Mehta published Matter of G- Inc: Clarifying the Role of the Function Manager Under the L-1Visa with Sophia Genovese, Bender’s Immigration Bulletin, Vo. 22, No. 24, December 15, 2017.

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December 2017 Global Immigration Update

Feature Article  

EFFECT OF CRIMINAL CONVICTIONS ON IMMIGRATION: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to the effect of criminal convictions on immigration.

Country Updates

EUROPEAN UNION – The European Court of Justice recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union Member States.

ITALY – The “Investor Visa for Italy” platform has been launched. Also, Italy warns of a scam in which citizenship is promised quickly. Also, residence permits have been extended to unmarried partners of Italian citizens, and there is a simplified procedure for start-up incorporation.

TURKEY – The situation with respect to the United States-Turkey visa suspension implemented in October 2017 remains extremely volatile and changes frequently.

UNITED KINGDOM – The United Kingdom plans to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year. Also, the British government has published a technical note on its proposed administrative procedures for European Union citizens living in the UK, and their family members, who want to stay on after Brexit.

Feature Article

EFFECT OF CRIMINAL CONVICTIONS ON IMMIGRATION: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to the effect of criminal convictions on immigration.

Canada

In addition to meeting the specific eligibility requirements for either temporary or permanent immigration programs, a foreign national who wishes to visit, study, work, or permanently settle in Canada must ensure admissibility to Canada before arrival. The grounds on which a foreign national may be found inadmissible to Canada are set out in sections 34 to 45 of the Immigration and Refugee Protection Act (IRPA). Among these, subsections 36(1) and 36(2) of IRPA establish serious criminality and “simple” criminality as grounds of inadmissibility.

Under subsection 36(1) of IRPA, serious criminality is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed” or “having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. Subsection 36(2) pertains to “simple” criminality, which is defined as “having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence” or “having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament”.

It is important to note that individuals who are already permanent residents of Canada may be found inadmissible for serious criminality and can be subject to removal proceedings. On the other hand, foreign nationals can be found inadmissible for both “simple” criminality and serious criminality.

To determine whether a foreign national convicted of an offence abroad is inadmissible to Canada, it is necessary to perform a thorough criminal equivalency analysis. If the essential elements of the foreign law creating the offense pursuant to which a foreign national was convicted are comparable to the essential elements of the equivalent Canadian offense, a foreign national may be found inadmissible on criminality or serious criminality grounds. It is noteworthy to mention that in Canada, a conviction for “Driving Under the Influence of Alcohol” (DUI) is generally considered to be a criminal offense (rather than a summary conviction) that renders a foreign national inadmissible to Canada. Following a proper equivalency assessment, if the foreign DUI conviction is indeed considered similar enough to the Canadian offense of “Operating While Impaired,” a foreign national will be found inadmissible to Canada on criminality grounds.

Should a foreign national or permanent resident of Canada be found inadmissible, IRPA provides three different scenarios under which a foreign national can either permanently or temporarily overcome inadmissibility and gain entry into Canada to visit, work, study, or permanently settle: (1) If 10 years have elapsed since the completion of the imposed sentence, a foreign national can be deemed rehabilitated without the need to submit a formal application. A person who is deemed rehabilitated permanently overcomes his or her inadmissibility and may be granted entry into Canada with evidence to support that he or she has completed all the terms of the sentence. (2) If only 5 years have elapsed since the completion of the sentence, a foreign national may apply for permanent criminal rehabilitation by demonstrating that he or she is leading a stable lifestyle and is unlikely to commit another criminal offense. (3) Alternatively, if less than five years have elapsed, an application for a Temporary Resident Permit (TRP) can be made.

Italy

Foreigners seeking to enter Italy may be subject to checks by border, customs, currency, and health authorities.

If all of the requirements are not met, entry may be refused at the border, even if the individual has a valid visa. Under Article 10-bis of Italian Immigration Law, any foreigner who enters or stays in Italy illegally will be fined from € 5,000 to € 10,000.

Upon entering Italy, a foreign national must:

  • Enter through an official border crossing point;
  • Hold a valid passport or equivalent travel document authorizing entry;
  • Hold an entry/transit visa, if required;
  • Have enough money to cover the stay and the return trip (showing a return ticket is sufficient proof)
  • Have documents to justify the purpose and conditions of the stay

According to the Schengen Visa Code, entrance into Italy is not permitted to those who are considered a threat to public order, to the safety of the state, or to one of the other Schengen Member States.

To enter Italy, foreign nationals must not:

  • Be listed in the Schengen Information System as an inadmissible person
  • Be subject to expulsion measures
  • Be considered a threat to public order, national security, and international relations, as well as a threat to public order or national security of other Schengen countries
  • Have been convicted, whether or not the sentence is definitive, for crimes providing for arrest in flagrancy (such as homicide, robbery, riot, harm against public officers under the Italian Criminal Code) or for crimes relating to:
    • Trafficking in dangerous substances, including narcotics
    • Sex offenses and abuses
    • Aiding and abetting of illegal immigrants in Italy and of illegal emigrants from Italy to other states
    • Prostitution exploitation
    • Employment of minors in illicit activities
  • Be convicted, by final judgment, of a copyright-related offense (Law on Copyright and the Italian Criminal Code)
  • Be subject to a previous expulsion order; re-entry before the order allows is permitted only if special permission by the Ministry of Interior is obtained or if the entry ban is lifted beforehand by authorities

Police checks on individuals entering Italy or applying for a visa are made through the Schengen Security System (SIS) database and other available international databases (such as Interpol or Europol). No specific information or representation about past criminal charges is asked of individuals applying for a visa or to non-visa nationals (U.S. citizens) entering the country as business or tourist visitors.

Accordingly, if an individual is not “blacklisted” in the SIS or the other available security databases, he or she should not have any problems in entering Italy and the Schengen area.

Netherlands

When it comes to the relevance of criminal convictions for immigration issues, we should make a clear distinction between short stay on the one hand (less than 90 days), with a Schengen visa or on a free term, and long stay on the other hand. Long stay means more than 90 days and requires a residence permit. Short stay is regulated supranationally under the Schengen Treaty. This treaty is aimed at removing internal border controls between the Member States, and establishing a communal outside border. This means that a Schengen visa is valid for the entire Schengen area, and the rules for denying entry due to drug-related convictions are the same in every Member State. The policy has been laid down in the Schengen visa code.

A long-term stay, with a residence permit, is also mostly regulated by a supranational organization, the European Union (EU). The EU has issued many directives (which are binding on Member States) regulating the issuing of permits for family reunification, students, knowledge workers, seasonal workers, intra-EU migration, and many more categories. For all these permits, the EU decides whether they can be denied in case of a conviction. For a select few types of residence permit not currently governed by an EU directive, the Dutch government still has its own policy regarding drug-related convictions.

So there are three systems governing admissibility and removal from the Netherlands: Schengen, the EU, and the Dutch national system. Under each system, the authorities must establish whether the application or permit holder constitutes a threat to public order. The exact definition varies with each system and by category (admissibility or removal).

For refusing entry under the Schengen regime, a “threat to public order” can exist in the event of a single conviction for any kind of felony. When removing a residence permit holder from the EU, however, the test is much stricter. The threat has to be real and urgent. This means, for example, that it’s relevant what the conviction is for, and even more important, what the sentence is.

Besides being real, the threat also must be urgent. The authorities also take into consideration when the felony was committed and how the person’s behavior has been since then. If the fear of reoffending is low, it will be hard to actually remove someone from the EU.

Even when a threat is real and urgent, the authorities cannot simply remove a residence permit holder. In each individual case, the authorities must argue that their interest in removing the person outweighs the interest the person has to remain in the country. So, even in case of a real and urgent threat, it might not be possible to remove a residence permit holder if the person involved, for example, has been in the country for a long time or has minor children or a spouse living with him or her. The person involved can challenge the balancing of interests by the court.

A main distinction should be made between removing a current residence permit holder and refusing an application for a residence permit. The interest of the state much more easily outweighs the interest of the person involved with respect to an initial admission.

In conclusion, the Schengen area, the EU, and the Netherlands have a fairly balanced system to deal with persons convicted of crimes. There is no system in place requiring that a certain conviction automatically leads to refusal of entry or removal. There always is an individual balancing of interests.

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Country Updates

EUROPEAN UNION

The European Court of Justice (ECJ) recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union (EU) Member States.

ECJ judges said the European Council had acted lawfully. The court said that EU institutions were on firm legal ground when they adopted measures to respond to “an emergency situation characterized by a sudden inflow of displaced persons.” The ECJ also concluded that the legality of the decision was not affected by retrospective conclusions about the policy’s effectiveness.

Budapest condemned the court ruling as “appalling and irresponsible.” The foreign minister, Péter Szijjártó, said, “This decision jeopardizes the security and future of all of Europe. Politics has raped European law and values.” Hungary and Poland have not relocated anyone yet, and the Czech Republic has not made any such offers for more than a year. All three countries risk being taken to court by the commission.

Karl Waheed offered the following answers in response to questions about the ECJ’s decision, in his capacity as Vice Chair of the International Bar Association’s (IBA) Immigration and Nationality Law Committee:

  1. What is the view of the Immigration and Nationality Law Committee on the ECJ decision?

The IBA promotes the rule of law, and this decision upholds the rule of law and backs the European Council’s authority to apply it uniformly, despite resistance from some Member States. This is good news for the governance of the EU.

  1. Why did Slovakia and Hungary object in the first place?

Slovakia considers itself to be ethnically homogeneous. It has presently taken in 16 refugees out of the 902 it has pledged to take. However, Slovakia has avoided provoking any “infringement procedures,” which is the financial penalty imposed by the ECJ for refusing to follow their ruling, and it has avoided this by promising to take in more refugees.

Hungary sees itself as defending European and Christian civilization. Prime Minister Orban has pledged to fight the quota. Orban is facing a re-election this fall, which may be encouraging him to double down on his refusal. To date, Hungary has not taken a single person, and in June the ECJ initiated Infringement procedures against it, Poland, and the Czech Republic.

  1. Will this ruling make any difference? Will these two countries now accept refugees?

Yes, this ruling makes the European Council stronger. It reinforces their decision-making authority, even in the face of a lack of unanimity. It shows that the Council can enforce solidarity upon the reluctant EU members to provide relief for the more exposed countries like Italy and Greece.

If the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling of the ECJ. If they do not follow the ruling, we have a deeper political crisis of the EU on our hands.

If Slovakia and Hungary refuse to follow the ruling, the ECJ can implement infringement procedures that financially penalize the countries for not abiding with their ruling, which the ECJ already started initiating in June 2017.

  1. Why was there so much refugee migration in 2015 in particular? Are there still refugees trying to get into Greece/Italy?

Numerous factors contributed. A consequence of the escalation of the civil war in Syria was that more than one out of every two Syrians became a displaced person, either internally within Syria or outside it. Furthermore, German Chancellor Angela Merkel’s offer in September 2015 to accept 1 million refugees had the inverse effect of encouraging more people to emigrate. Concerning the Mediterranean crossings, the civil war in Libya destabilized that country so that there was no authority to prevent the traffickers from shipping out of Libya.

At present, there are still tens of thousands of people on boats arriving in Italy and Greece on a monthly basis. According to the International Organization for Migration, in the first five months of 2017, there were 60,000 arrivals in Italy compared to 47,000 in the first five months of 2016. So, the problem is far from being episodic, or from having resolved itself.

Italy and EU seem to do whatever they can, both legally and illegally, to keep boats from arriving in Italy. Take, for example, the EU-Turkey agreement from 2015. The EU is “refouling,” or relocating, thousands of asylum-seekers to Turkey, and yet Turkey is not considered a safe country because it has signed the outdated 1951 Convention relating to the Status of Refugees but not the modern 1968 Protocol.

  1. Where does this ruling leave the relocation “policy” of the EU?

This ruling reinforces the legitimacy of relocating within the EU. The ECJ described the relocation as fair and proportionate, so as to be in solidarity with Greece and Italy receiving so many arrivals. It reinforces the Dublin regulation, which took a hit to its legitimacy during 2015 when both Greece and Germany decided not to abide by it.

  1. Is this problem unique to the EU or are there other places where relocation is used?

It is not unique to the EU. Australia, for example, has similar agreements with Christmas Island and Papua New Guinea, where the latter two countries are paid to “warehouse” the asylum seekers. The problem with this is that these are not humane conditions. The asylum seekers are stuck on tiny islands for years while they wait for Australia to refuse them asylum. And what happens to them when they are refused asylum? Thus, relocation exists in other places, but it is not a model solution. At least within the EU, it can be done ethically among advanced countries, providing humane conditions during the asylum application process.

  1. Do we have any facts relating to the number of refugees affected? How many are there in Greece/Italy waiting relocation or who have been relocated?

According to the United Nations High Commissioner for Refugees, in 2015 approximately 1 million refugees arrived by sea in Europe. For 2016, it was 362,000 sea arrivals. In 2017, as of September, there have been 132,000 sea arrivals. Of those 132,000, Italy has received 103,000 and Greece 18,000.

Regarding relocation, 8,500 of the 39,600 targeted relocations from Italy have occurred, which is just 22 percent for Italian relocations. For Greece, 20,000 out of the 63,000 have been relocated, which is 31 percent.

ITALY

The Investor Visa for Italy platform has been launched. Also, Italy warns of a scam in which citizenship is promised quickly. Also, residence permits have been extended to unmarried partners of Italian citizens, and there is a simplified procedure for start-up incorporation.

Investor Visa for Italy Platform

As of December 14, 2017, the Investor Visa for Italy platform is online and applicants can submit applications for the new Investor Visa. The investor visa will be valid for two years. During that time, the applicant can travel to Italy and apply for a residence permit.

The platform is available in English at https://investorvisa.mise.gov.it/index.php/en/. Guidance is available at https://investorvisa.mise.gov.it/images/documenti/Investor-Visa-for-Italy-Policy-Guidance-ENG.pdf. Detailed information on how to apply is at https://investorvisa.mise.gov.it/index.php/it/investor-visa-how-it-works.

Citizenship Scam Warning

After investigations carried out by the Italian finance police, five people were arrested for corruption in the town of Lodigiano. The investigations revealed a system of bribery by public officials falsely confirming the presence of Brazilian nationals and granting residency, consequently leading to their obtaining Italian citizenship. The ring of corruption revolved around an agency in Monza owned by a Brazilian entrepreneur who charged Brazilians between 3,500 and 5,000 euros for this process, while from this amount public officials were paid around 1,250 euros. The scam allowed approximately 500 Brazilians to obtain residency and Italian citizenship in the year 2016, when in reality they were never actually based in the Lodi area.

According to Italian law, in addition to formal registration with the town hall, residency is based on two fundamental elements:

  1. Physical presence in Italy, which must be regular and continuous, as opposed to sporadic and occasional. If an individual spends time in both Italy and another country, the periods of presence outside of Italy are compared with the periods of presence in Italy to determine which is prevalent.
  2. Intention to stay and live in Italy for the foreseeable future, which is subjective. To determine an individual’s intention to live in Italy on a regular basis, numerous aspects are examined, including but not limited to an individual’s conduct, social and personal habits, working relationships, family relationships, and business and personal activities.

Residence Permits Extended to Unmarried Partners of Italian Citizens

The Council of State has ruled (n. 5040/2017) that a foreign partner cohabiting more uxorio (marriage in fact) with an Italian citizen can obtain a residence permit for family reasons. This broad interpretation of Italian immigration law is based on new provisions introduced by Law No. 76/2016 on civil unions, under which cohabitation is defined as “the status of two people who have a stable relationship based on emotional bonds and on reciprocal moral and material assistance,” and on Decree 30/2007 on the right of European Union persons and their family members to move and reside freely within the territory of the EU and European Economic Area member states (Directive 2004/38/EC).

The Council of State’s ruling (in Italian) is at https://www.giustizia-amministrativa.it/cdsintra/wcm/idc/groups/public/documents/document/mday/njay/~edisp/yhe5l52mxqgezolyhcwhshalx4.html.

Simplified Procedure for Start-Up Incorporation

The Administrative Court of Lazio (TAR) confirmed that it is possible to establish an Italian start-up company without a notary. Notary associations had challenged the digital, fast-track procedure set forth by the Italian Start-Up Act, but all the appeals have been rejected, confirming that start-ups can be incorporated digitally. Avoiding notary assistance can save the entrepreneur up to €2,000 for the incorporation of a company.

The incorporation of a start-up can be easily completed using the online start-up platform. Any future corporate amendment can also be filed using the platform.

The start-up platform is at http://startup.registroimprese.it/isin/home. A summary of the legislation in support of innovative start-ups (in English) is at http://www.mise.gov.it/images/stories/documenti/Executive-Summary-of-Italy-s-Startup-Act-new-format-23_02_2017.pdf. A related annual report on the Start-Up Act (in English) is at http://www.mise.gov.it/images/stories/documenti/italian_startup_act_annual_report_to_parliament_2016.pdf.

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TURKEY

The situation with respect to the United States-Turkey visa suspension implemented in October 2017 remains extremely volatile and changes frequently. Contact an ABIL Global attorney for advice in specific situations.

According to sources as of press time:

  1. U.S. citizens (with no other nationality) will be issued sticker visas upon entry into Turkey only if they can show legal residency (residence permits) in another country other than the United States. (Note: This is in clear contrast with airport policy over the past month, where U.S. nationals were consistently being issued sticker visas at Turkish airports as long as their flights originated outside the United States.)*
  2. Turkish consulates outside the United States are consistently issuing visas to U.S. nationals physically present at that consular post. Whether a particular consulate retains a local residence requirement is case-by-case.
  3. Turkish posts in the United States are still offering visa appointments to U.S. nationals on a limited basis, based on certain criteria such as medical needs, urgent family issues, international conferences, or sporting events.
  4. Current valid Turkish visas (including sticker visas) continue to be acceptable for entry into Turkey.

* The first point above on sticker visa issuance is the most significant departure from recent practice over the last few weeks. This position has not been confirmed via official government agency sources. This has only been confirmed informally by airport authorities at Sabiha Gökçen International Airport.

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UNITED KINGDOM

The United Kingdom plans to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year and has announced new support for international talent. Also, the British government has published a technical note on its proposed administrative procedures for European Union citizens living in the UK, and their family members, who want to stay on after Brexit.

Tier 1 Exceptional Talent Visa Increase

In recognition of the importance of attracting talented individuals to come to the UK, the government has announced its intention to double the number of visas available in the Tier 1 (Exceptional Talent) category from 1,000 to 2,000 per year.

This route is for exceptionally talented individuals in the fields of science, humanities, engineering, the arts, and technology who wish to work in the UK. Such individuals are already internationally recognized at the highest level as world leaders in their particular fields, or who have already demonstrated exceptional promise and are likely to become world leaders or globally recognized in their fields of expertise.

This category requires an endorsement from one of five endorsing organizations:

  • Tech City UK
    • Arts Council England
    • The British Academy
    • The Royal Society
    • The Royal Academy of Engineering

The current allocation of 1,000 visas is split across these five endorsing bodies, but the additional 1,000 visas will be allocated to any one of these endorsing bodies depending on need.

The application is a two-stage process: (1) applying for an endorsement and (2) applying for a visa. Visas can be granted for up to five years, after which the applicant may apply for indefinite leave to remain. The advantage of this category is that the applicant does not need sponsorship by a business to work in the UK.

New Support for International Talent

In its latest autumn budget, the government has acknowledged the importance of encouraging and attracting talented individuals to come to the UK. The focus is on attracting individuals working in the international scientific and research community to come to the UK to further their careers in the field of research and development and innovation. This will be achieved by:

  • Changing the immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 (Exceptional Talent) route to apply for settlement after three years;
  • Making it quicker for highly skilled students to apply to work in the UK after finishing their degrees; and
  • Reducing red tape in hiring international researchers and members of established research teams by relaxing the resident labor market test and allowing the UK’s research councils and other select organizations to sponsor researchers

The accelerated route to settlement after only three years’ residence in the UK is intended to act as a significant draw for this pool of talented individuals, who will have a choice of which country in which to conduct their business and research activities.

The Chancellor’s reference to making it quicker for highly skilled students to start work is not a new initiative. Since July 2016, the Home Office has been piloting a new scheme for certain universities (currently Bath, Cambridge, Oxford, and Imperial College London). Their students will have their visa issuances facilitated with reduced documentary requirements and may benefit from a short six-month post-study visa to assist them in transitioning into being sponsored under Tier 2 in the UK.

The Immigration Minister, Brandon Lewis MP, also confirmed this during a speech in London on November 16, 2017. The Minister stated, “We are currently running a pilot to test whether highly compliant institutions can reduce the documentary burden being put on students as well as increasing the length of time that those students can stay in the UK after graduation.”

Administrative Procedures Post-Brexit

The British government has published a technical note on its proposed administrative procedures for EU citizens living in the UK, and their family members, who want to stay on after Brexit.

There are no surprises in the document. Much of the content has already been signaled in a June 2017 policy paper, in the Prime Minister’s Florence speech in September 2017, and in the various joint technical notes comparing the EU and UK positions on citizens’ rights that have been published after each round of negotiations.

Below are the key points from the proposals:

  • The rights of EU citizens living in the UK will be set in the Brexit withdrawal agreement and incorporated in UK law.
  • EU citizens who want to continue living in the UK will need to apply to obtain a new status. The application process will also be completely new. It will be simpler than the current voluntary system for registration certificates and permanent residence documents issued under EU law. There will be a right of appeal.
  • EU citizens and their family members will have to apply “within a period of time after exit as specified by the UK authorities,” which will last “around two years” after the UK leaves the EU in March 2019. The new process will be launched before the UK leaves the EU.
  • The authorities will consider exercising discretion to allow a late application if there are good reasons why it could not be made before the deadline.
  • The application fee will not exceed the cost of a British passport, which is currently £72.50 for an adult and £46 for a child.
  • For EU citizens who already have a permanent residence document, there will be a simpler process and a reduced fee.
  • Applicants will need to provide evidence that they were lawfully resident in the UK before the “specified date. (Note: the specified date has not yet been confirmed. It could be any date between March 29, 2017, and March 29, 2019. Most observers believe that it is likely to be March 29, 2019.)
  • Applicants who have not been working will not need to show that they have held comprehensive medical insurance.
  • There will be criminality checks. Criminal conduct up to the date of the UK’s withdrawal from the EU will be assessed in accordance with EU law, which means that an applicant will be disqualified if he or she poses a serious threat to the fundamental interests of society. Criminal conduct after the UK’s withdrawal will be assessed against UK national law. Deportation will be considered if an applicant has received a prison sentence of 12 months or more.
  • EU citizens who meet the conditions for permanent residence under EU law—usually five years’ lawful residence as a worker, self-employed person, student, or self-sufficient person—will be granted settled status.
  • EU citizens who do not meet the conditions for permanent residence but can show that they were living in the UK before the “specified date” will be given temporary status. They will be allowed to stay in the UK until they have built up the five years’ residence needed to apply for settled status.
  • EU citizens who apply for the new status and are refused will be in the UK unlawfully after the end of the “specified period” unless they secure a different type of immigration status. They will not be allowed to work and may be asked to leave the UK.
  • During the “implementation period” after the UK leaves the EU (which is presumably the same as the “specified period“), EU citizens will continue to be able to come and live and work in the UK. There will be a registration system for them.

The document leaves many unanswered questions. For example, what will happen to EU citizens who are not working and cannot provide evidence that they are self-sufficient? What rules will apply to non-EU family members joining EU citizens in the UK after the withdrawal date? If someone is granted settled status but can show that they met the requirements for permanent residence more than one year earlier, will their deemed date of acquisition of settled status be backdated? (This may be important for people who wish to apply for British citizenship.) For EU citizens arriving during the two-year implementation period, what will their status be after the end of the implementation period? And what will happen to other European Economic Area (EEA) nationals (citizens of Norway, Iceland, and Liechtenstein) and Swiss nationals?

It should be remembered that these are just proposals. The negotiations between the EU and the UK are continuing. In the meantime EEA nationals who qualify for a document certifying permanent residence should apply for one now and consider applying for British citizenship.

The technical note is at https://www.gov.uk/government/publications/citizens-rights-administrative-procedures-in-the-uk. The June 2017 policy paper referenced above is at https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu. More information on Brexit is at https://www.kingsleynapley.co.uk/services/specialist-group/brexit.

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Mid-December 2017 Immigration Update

Headlines:

  1. USCIS Is Accepting Applications Under International Entrepreneur Rule (IER) But Plans Proposed Rule to Eliminate IER – USCIS is taking steps to implement the International Entrepreneur Rule (IER) in accordance with a recent court decision. USCIS noted that while the agency implements the IER, DHS will also “proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM.”
  2. Supreme Court Allows Trump Travel Ban to Proceed; State Dept. Issues Guidance – On December 4, 2017, the U.S. Supreme Court granted the Trump administration’s motions for emergency stays of preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. The Supreme Court’s orders allow the government to fully implement the Trump administration’s entry restrictions on certain countries.
  3. USCIS Issues FAQ on Rejected DACA Requests, Resubmissions – U.S. Citizenship and Immigration Services recently released a FAQ on rejected Deferred Action for Childhood Arrivals requests, and resubmissions.
  4. Attorney General Issues Memo to EOIR on Reducing Backlogs – The memo and accompanying documents set forth principles and plans to reduce the backlog of cases pending before the EOIR. Some of the proposals are controversial.
  5. OFLC Releases Tips on H-2A Labor Certification Process for Employers – The Department of Labor’s Office of Foreign Labor Certification released a presentation including tips on the H-2A labor certification process for employers.
  6. U.S. Mission in Canada Implements New Appointment Scheduling System for E Visas – On December 5, 2017, the U.S. Mission in Canada sent an alert announcing a new appointment scheduling system for E visa applications. 
  7. Firm In the News…

Details:

  1. USCIS Is Accepting Applications Under International Entrepreneur Rule (IER) But Plans Proposed Rule to Eliminate IER

U.S. Citizenship and Immigration Services (USCIS) announced on December 14, 2017, that it is taking steps to implement the International Entrepreneur Rule (IER) in accordance with a recent court decision. USCIS noted that while the agency implements the IER, the Department of Homeland Security (DHS) will also “proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM.”

USCIS explained that although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because DHS issued a final rule on July 11, 2017, delaying the IER’s effective date until March 14, 2018. USCIS said this “delay rule” was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations. However, a December 1, 2017, ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’s final rule to delay the effective date.

The IER was intended to provide international entrepreneurs a new avenue to apply for parole, enter the United States, and invest in establishing and growing start-up businesses, USCIS noted. The rule established new criteria to guide the adjudication of parole applications from certain foreign entrepreneurs, providing them with temporary admission. The rule did not afford a path to citizenship.

The instructions and form are at https://www.uscis.gov/I-941. The IER is at https://www.federalregister.gov/documents/2017/01/17/2017-00481/international-entrepreneur-rule. The vacated final rule is at https://www.federalregister.gov/documents/2017/07/11/2017-14619/international-entrepreneur-rule-delay-of-effective-date.

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  1. Supreme Court Allows Trump Travel Ban to Proceed; State Dept. Issues Guidance

On December 4, 2017, the U.S. Supreme Court granted the Trump administration’s motions for emergency stays of preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. The preliminary injunctions had prohibited the government from fully enforcing or implementing the entry restrictions of Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” to nationals of six countries: Chad, Iran, Libya, Syria, Yemen, and Somalia. The Supreme Court’s orders allowed the government to implement those restrictions fully beginning December 8, 2017, until related litigation is resolved. The District Court injunctions did not affect implementation of entry restrictions against nationals from North Korea and Venezuela. Those individuals remain subject to the restrictions and limitations listed in the Presidential Proclamation. The Proclamation does not restrict the travel of dual nationals as long as they are traveling on the passport of a non-designated country.

The Department of State (DOS) issued a statement on December 4 providing guidance on several details related to the travel ban. Among other things, the statement said:

We will not cancel previously scheduled visa application appointments. In accordance with the Presidential Proclamation, for nationals of the eight designated countries, a consular officer will make a determination whether an applicant otherwise eligible for a visa is exempt from the Proclamation or, if not, may be eligible for a waiver under the Proclamation and therefore issued a visa.

No visas will be revoked pursuant to the Proclamation.  Individuals subject to the Proclamation who possess a valid visa or valid travel document generally will be permitted to travel to the United States, irrespective of when the visa was issued.

We will keep those traveling to the United States and our partners in the travel industry informed as we implement the order in a professional, organized, and timely way.

The DOS provided the following details on the travel restrictions by country:

Nationals of the eight countries are subject to various travel restrictions contained in the Proclamation, as outlined in the following table, subject to exceptions and waivers set forth in the Proclamation.

Country Nonimmigrant Visas Immigrant and Diversity Visas
Chad No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
Iran No nonimmigrant visas except F, M, and J visas No immigrant or diversity visas
Libya No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas
North Korea No nonimmigrant visas No immigrant or diversity visas
Somalia No immigrant or diversity visas
Syria No nonimmigrant visas No immigrant or diversity visas
Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies[:] Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members.
Yemen No B-1, B-2, and B-1/B-2 visas No immigrant or diversity visas

The DOS statement provides the following list of exceptions:

The following exceptions apply to nationals from all eight countries and will not be subject to any travel restrictions listed in the Proclamation:

a) Any national who was in the United States on the applicable effective date described in Section 7 of the Proclamation for that national, regardless of immigration status;

b) Any national who had a valid visa on the applicable effective date in Section 7 of the Proclamation for that national;

c) Any national who qualifies for a visa or other valid travel document under section 6(d) of the Proclamation;

d) Any lawful permanent resident (LPR) of the United States;

e) Any national who is admitted to or paroled into the United States on or after the applicable effective date in Section 7 of the Proclamation for that national;

f) Any applicant who has a document other than a visa, valid on the applicable effective date in Section 7 of the Proclamation for that applicant or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;

g) Any dual national of a country designated under the Proclamation when traveling on a passport issued by a non-designated country;

h) Any applicant traveling on a diplomatic (A-1 or A-2) or diplomatic-type visa (of any classification), NATO-1 -6 visas, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; except certain Venezuelan government officials and their family members traveling on a diplomatic-type B-1, B-2, or B1/B2 visas[;]

i) Any applicant who has been granted asylum; admitted to the United States as a refugee; or has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Exceptions and waivers listed in the Proclamation are applicable for qualified applicants. In all visa adjudications, consular officers may seek additional information, as warranted, to determine whether an exception or a waiver is available.

Meanwhile, the 9th and 4th Circuits held arguments on the travel ban on December 6 and 8, 2017, respectively. Both courts are likely to issue rulings relatively quickly. The cases are then likely to go to the Supreme Court.

The Supreme Court’s brief orders are at https://www.supremecourt.gov/orders/courtorders/120417zr_4gd5.pdf and https://www.supremecourt.gov/orders/courtorders/120417zr1_j4ek.pdf. The DOS statement, which provides additional details about qualifications and procedures, along with frequently asked questions (FAQs), is at http://bit.ly/2jnCf95. The related Presidential Proclamation is at https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry. The DOS statement provided a link to a related Department of Homeland Security FAQ released in September 2017 at https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes.

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  1. USCIS Issues FAQ on Rejected DACA Requests, Resubmissions

U.S. Citizenship and Immigration Services (USCIS) recently released frequently asked questions (FAQ) on rejected Deferred Action for Childhood Arrivals (DACA) requests, and resubmissions.

The FAQ notes that the due date for new, initial DACA requests was September 5, 2017. The due date for DACA renewal requests was September 5, 2017, for recipients whose DACA status expired before that date and was October 5, 2017, for recipients whose DACA expired or will expire between September 5, 2017, and March 5, 2018.

For those whose DACA requests were delivered by the deadline but were not officially “received” by USCIS until the following day and were rejected and returned to applicants for that reason, the FAQ states that USCIS “will identify you and send you a letter inviting you to resubmit your DACA request. You will have 33 days from the date of the letter to resubmit your request. You may wish to keep a copy of all materials included in your resubmission. USCIS expects to be able to identify and send letters to all persons in this situation.”

Those in the situation noted above who have not yet been contacted by USCIS may contact Lockbox Support before resubmitting their DACA packages for reconsideration. Lockbox Support can be emailed at lockboxsupport@uscis.dhs.gov.

The USCIS FAQ, which includes additional details about who may resubmit and why, is at https://www.uscis.gov/daca2017/mail-faqs.

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  1. Attorney General Issues Memo to EOIR on Reducing Backlogs

On December 5, 2017, Attorney General Jeff Sessions issued a memorandum to the Department of Justice’s Executive Office for Immigration Review (EOIR), “Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest.” The memo and accompanying documents set forth principles and plans to reduce the backlog of cases pending before the EOIR, some of which have proved controversial.

Mr. Sessions noted that 50 new immigration judges have begun work since January 20, 2017, and that 60 more are expected to be added in the next 6 months. He said that the current backlog of approximately 650,000 cases pending before immigration courts is a challenge but “not insurmountable.” In addition to hiring more immigration judges and support personnel, he said:

[W]e must all work to identify and adopt—consistent with the law—additional procedures and techniques that will increase productivity, enhance efficiencies, and ensure the timely and proper administration of justice. Whether you are an immigration judge who has a unique way to better handle dockets, or an administrative assistant who has a better process for handling the distribution of files in the office, we can all contribute something to improve the system. I, too, anticipate clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice.

Toward this end, Mr. Sessions listed a set of principles to be followed:

  • The immigration courts, the Board of Immigration Appeals, and the Office of the Chief Administrative Hearing Officer within EOIR are responsible for adjudicating cases and administering the immigration laws. We serve the national interest by applying those laws as enacted, irrespective of our personal policy preferences.
  • The timely and efficient conclusion of cases serves the national interest. Unwarranted delays and delayed decision making do not. The ultimate disposition for each case in which an alien’s removability has been established must be either a removal order or a grant of relief or protection from removal provided for under our immigration laws, as appropriate and consistent with applicable law.
  • Meritless cases or motions pending before the immigration courts or the Board of Immigration Appeals should be promptly resolved consistent with applicable law.
  • The efficient and timely completion of cases and motions before EOIR is aided by the use of performance measures to ensure that EOIR adjudicates cases fairly, expeditiously, and uniformly in accordance with its mission.
  • The attempted perpetration of fraud upon the United States government in our immigration court system can lead to delays, inefficiencies, and the improper provision of immigration benefits. Therefore, any and all suspected instances of fraud should be promptly documented and reported to EOIR management, and any other agency with an interest in the identification of and response to such fraud (including the appropriate state bar(s) in cases of attorney misconduct), consistent with applicable law.

A “backgrounder” asserts, among other things, that the Deferred Action for Childhood Arrivals (DACA) program, prosecutorial discretion, and provisional waivers have “slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.” The backgrounder also charges that “[r]epresentatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases.”

The backgrounder states that EOIR plans to pilot video teleconferencing, where immigration judges will adjudicate cases from around the country. Also planned is a review of “existing EOIR regulations and policies to determine changes that could streamline current immigration proceedings (e.g. the [EOIR memo] on continuances issued on July 31, 2017; regulatory changes that will allow immigration judges to deny unmeritorious cases regardless if the annual limit for relief has been met).”

In reaction to the memo and accompanying documents, the American Immigration Lawyers Association (AILA) condemned “attacks by AG Sessions on the immigration courts and the due process rights of immigrants,” stating that “[f]or the AG to blame immigration lawyers for imagined trespasses is both malicious and wrong. We will not let that misinformation pass without setting the record straight.” Benjamin Johnson, AILA Executive Director, said, “Once again, the Attorney General cites flawed facts to castigate the immigration bar for the significant case backlog and inefficiencies in our immigration court system. He blames immigration attorneys for seeking case continuances, disregarding the fact that continuances are also routinely requested by counsel for the government, or are issued unilaterally by the court for administrative reasons.” Mr. Johnson noted, “The number one reason a continuance is requested by a respondent is to find counsel. Other reasons include securing and authenticating documentary evidence from foreign countries, or…locating critical witnesses. And when the government refuses to share information from a client’s immigration file and instead makes them go through the lengthy process of a Freedom of Information/Privacy Act request, a continuance is often a client’s only lifeline to justice.” AILA recommends removing EOIR from the Department of Justice.

The memorandum is at https://www.justice.gov/opa/press-release/file/1015996/download. The backgrounder is at https://www.justice.gov/opa/press-release/file/1016066/download. A related press release from the Department of Justice (DOJ) is at https://www.justice.gov/opa/pr/attorney-general-sessions-issues-memo-outlining-principles-ensure-adjudication-immigration. A DOJ statement is at https://www.justice.gov/opa/pr/attorney-general-sessions-issues-memo-outlining-principles-ensure-adjudication-immigration. AILA’s statement is at http://www.aila.org/advo-media/press-releases/2017/ag-sessions-cites-flawed-facts-imm-court-system.

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  1. OFLC Releases Tips on H-2A Labor Certification Process for Employers

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) released a presentation including tips on the H-2A labor certification process for employers. Among other things, the presentation notes that the DOL issues a final determination 30 days before the start date of work if all program requirements are met. Reasons for delaying an H-2A final determination include the employer or authorized representative not providing:

  • Proof of valid workers’ compensation coverage
  • Housing documentation for farmworkers
  • Valid farm labor contractor licenses
  • Valid surety bond for labor contractors
  • Recruitment report

The presentation notes that an employer’s post-recruitment obligations include, among other things:

  • Employers must continue to cooperate with the State Workforce Agency in recruiting for the job opportunity and provide employment to any qualified U.S. worker who applies for the job opportunity
  • Employer must continue to update the initial recruitment report submitted to the CO for certification throughout the entire recruitment period
  • Employer must sign and date the final written recruitment report and be prepared to submit it when requested by the Certifying Officer in the event of an audit examination or other request from the Department

The OFLC presentation is at https://www.foreignlaborcert.doleta.gov/pdf/H-2A_Webinar-October-2017.pdf. A “Quick Start Guide for H-2A Mandatory Documents Upload” is at https://www.foreignlaborcert.doleta.gov/pdf/H-2A_Quick_Start_Guide.pdf.

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  1. U.S. Mission in Canada Implements New Appointment Scheduling System for E Visas

On December 5, 2017, the U.S. Mission in Canada (E Visa Unit, American Consulate General, Toronto) sent an alert announcing a new appointment scheduling system for E visa applications. The Mission said this is “strictly a processing change that will allow us to receive and review E-visa applications before the applicant schedules an in-person interview (as opposed to the old system, which permitted applicants to schedule an appointment before submitting an application or supporting documentation).”

Under the new system, the U.S. Mission explained, E visa applications will be sorted into two processing streams based on the time needed to review the required documentation:

  • New Cases and Renewals—First-time applicants and those wishing to renew the registration status of their E visa company will be offered a “deferred interview” appointment. While applicants will still need to first create an appointment profile and pay the required visa application fee online at https://ais.usvisa-info.com, the interview will be deferred until applicants have electronically submitted their application and supporting documents to the U.S. Consulate in Toronto via evisacanada@state.gov. Once their application has been reviewed, which requires at least 10 business days, the U.S. Mission will send applicants instructions on how to make an appointment for an in-person interview. Applicants will be unable to schedule an appointment until then. Only applications in the queue for “New Cases and Renewals” will be considered for company registration or re-registration.
  • Employees of Registered Companies and Dependents—Employees of currently registered E visa companies, and qualifying family members of current E visa holders, may schedule the next available appointment in Calgary, Montreal, Ottawa, Vancouver, or Toronto.

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  1. Firm In the News

Cyrus D. Mehta was a Speaker, Protecting Your EB-5 Practice: Ethical Issues and Minimizing Risk, 2017 AILA EB-5 Investors Summit, Las Vegas, NV, December 8, 2017.

Cyrus D. Mehta was a Speaker, Opportunities and Challenges in H-1B Practice – Outsourcing, the H-1B Cap, and Increased Labor Condition application (LCA) Enforcement, 50th Annual Immigration and Naturalization Institute 2017, New York, NY December 6, 2017.

Cyrus D. Mehta was a Speaker, New Administration, New Rules, AILA Latin America and Caribbean Chapter telephone conference, December 5, 2017.

Cyrus D. Mehta published Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked on November 27, 2017; Making Sense of the Acquittal in Kate Steinle’s Case: Why Anti-Immigrant Rhetoric Equating Immigrants with Criminals Must Stop on December 4, 2017; and New York State Bar Association v Avvo: Will the Uberization of Immigration Law Practice Overcome Outdated Advertising Rules Governing Lawyers on December 11, 2017

Cyrus D. Mehta along with Sophia Genovese published Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism On December 18, 2017.

 

 

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December 2017 Immigration Update

Headlines:

  1. Federal Court Vacates Delay of International Entrepreneur Rule – On December 1, 2017, a federal court vacated the Trump administration’s delay of an Obama-era rule that would have allowed certain foreign entrepreneurs to obtain immigration parole.
  2. USCIS Designates Adopted Decisions Defining Affected Parties, Function Managers –USCIS has designated two Administrative Appeals Office decisions as Adopted Decisions.
  3. DHS To Terminate TPS Designation for Haiti in July 2019 – Haitians with TPS must reapply for employment authorization documents to continue working legally in the United States until the end of the extension period.
  4. Federal Court Blocks Trump Order To Strip ‘Sanctuary Jurisdictions’ of Federal Funding – A federal court granted two California counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the Trump administration’s executive order with respect to “sanctuary jurisdictions.”
  5. USCIS Announces Caps for Final Three Fiscal Years of CNMI Transitional Worker Program – USCIS encourages employers to file petitions for CW-1 workers as early as possible within six months of the requested employment start date. USCIS will reject a petition if it is filed more than six months in advance.
  6. ABIL Global: European Court Dismisses Challenge to Mandatory Relocation of Displaced Persons – The European Court of Justice recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union Member States.
  7. Firm In The News…

 Details

  1. Federal Court Vacates Delay of International Entrepreneur Rule

On December 1, 2017, federal district Judge James E. Boasberg vacated the Trump administration’s delay of an Obama-era rule that would have allowed certain foreign entrepreneurs to obtain immigration parole (to temporarily enter the United States despite lacking a visa or permanent residence). At the outset of the opinion, the court said, “Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act [APA] shapes the contours of those consequences.”

The “International Entrepreneur Rule” was set to take effect July 17, 2017, but shortly beforehand, the Department of Homeland Security (DHS) issued the “Delay Rule,” delaying the effective date of the original rule until March 14, 2018. The court noted that the agency did so without providing notice or soliciting comment from the public, which is generally required by the APA. The plaintiffs alleged that the agency lacked good cause to dispense with the APA’s strictures and that the Delay Rule was therefore invalid, and the court agreed.

The court noted that the Obama-era DHS promulgated the International Entrepreneur Rule to encourage international entrepreneurs to create and develop start-up entities with high growth potential in the United States. DHS believed that attracting foreign entrepreneurs would “benefit the U.S. economy through increased business activity, innovation, and dynamism.” Before issuance of the regulation, the court observed, foreign entrepreneurs “lacked a clear-cut avenue for entry into this country. …The United States had no dedicated visa category for foreign entrepreneurs, and other visa options were frequently unavailable to that group.” The executive branch, however, cannot unilaterally create a new visa category, the court noted, so it turned to a more temporary solution for these entrepreneurs: parole. This allows a foreign national to be physically present in the United States for a specific, temporary period, ranging from days to years. Parole does not constitute formal “admission” to the United States and gives the recipient no formal immigration status.

To be considered for a discretionary grant of parole for up to 30 months (with reapplication for up to an additional 30 months based on certain conditions) under the International Entrepreneur Rule, an entrepreneur would generally need to demonstrate the following:

  1. The applicant must have formed a new start-up entity in the United States within 5 years of the application;
  2. The applicant must (a) possess at least a 10% ownership interest in the business; and (b) “have an active and central role” in its operations and future growth; and
  3. The applicant must validate the business’s potential “for rapid growth and job creation” by showing (a) it has received at least $250,000 from established U.S. investors; or (b) it has received at least $100,000 in grants from government entities.

The rule also created “alternative criteria” for meeting the final prong: a person partially meeting one of the investment thresholds could provide “additional reliable and compelling evidence” of the company’s potential for rapid growth and job creation. U.S. Citizenship and Immigration Services (USCIS) would also consider other relevant information in making its discretionary determination, such as any criminal history or other serious adverse factors.

The court noted that the agency “meaningfully” revised the final version in response to 763 comments received on the proposed rule. DHS changed the minimum investment amount, the definition of an entrepreneur, and the definition of a start-up entity.

Six days before the effective date of the rule, USCIS issued the superseding Delay Rule postponing the effective date by eight months, to March 14, 2018, but without offering the public advance notice or an opportunity to comment. Instead, it provided a short window for comments only after the Delay Rule took effect. Further, DHS indicated that it was “highly likely” to rescind the International Entrepreneur Rule. Its Delay Rule, therefore, appeared designed to ensure that the Obama-era rule would never take effect, the court noted.

The plaintiffs included two foreign nationals, two U.S. businesses, and the National Venture Capital Association, an organization of individuals who invest in businesses founded by foreign entrepreneurs. The plaintiffs all claimed that the Delay Rule seriously injured their businesses or investments. The Trump administration argued that the APA’s “good cause” exception applied, which allows an agency to dispense with notice-and-comment when it “for good cause finds…that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The court noted that because notice-and-comment is “the default,” the onus is on the agency to establish that a notice-and-comment opportunity should not be given, and an agency “faces an uphill battle to meet that burden.”

Among other things, the plaintiffs argued that through its own delay, the agency forfeited any “good cause” defense. Citing related decisions, the court noted that good cause cannot arise as a result of an agency’s own delay; otherwise, an agency unwilling to provide notice or an opportunity to comment could simply wait until the even of a statutory, judicial, or administrative deadline, then raise up the “good cause” banner and promulgate rules without following APA procedures. In this case, the court said, the government’s briefing never explained the time lag and “struggled” to explain what the agency did between learning of the executive order and issuing the Delay Rule. DHS primarily justified the Delay Rule by citing the expense of implementing the new parole system, among other arguments. The court said that the agency’s proffered reasons for bypassing notice-and-comment were unpersuasive and “easily [fell] short of good cause.” The court noted that the agency estimated it would process roughly 2,900 applications this year and receive $1,285 each in filing fees, generating more than $3.5 million, and that the asserted expense to the government without evidence was not sufficient to overcome the notice-and-comment requirement.

The court concluded, ” If Defendants have additional reasons why a stay might be appropriate pending any appeal, they can so move. Until then, the Court believes that vacatur is the appropriate remedy.”

The full text of the opinion, National Venture Capital Association, et al., v. Elaine Duke, et al., Civil Action No. 17-1912 (JEB), is at http://bit.ly/2BGcN2T.

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  1. USCIS Designates Adopted Decisions Defining Affected Parties, Function Managers

U.S. Citizenship and Immigration Services (USCIS) has designated two Administrative Appeals Office (AAO) decisions as Adopted Decisions.

Matter of V-S-G Inc. (AAO Nov. 11, 2017), Adopted Decision 2017-06. This decision clarifies that beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers (“port”) and who have properly requested to do so under INA § 204(j) are “affected parties” under Department of Homeland Security regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings.

The USCIS memorandum notes that other kinds of visa petition beneficiaries, and the subsequent employers of beneficiaries who have ported or sought to port, are not affected parties under DHS regulations and may not participate in visa revocation proceedings.

The AAO decision states that it “settles a tension between longstanding agency regulations and subsequent developments in the law regarding who is a cognizable party to a Form I-140, Immigrant Petition for Alien Worker.” The decision notes that traditionally, the applicant or petitioner is the only recognized party to a proceeding; that is, the beneficiary of a petition generally does not have the ability to participate in the immigration proceeding initiated by the petitioner. The decision sets forth a scenario in which an I-140 beneficiary may become a recognized party in certain limited circumstances in light of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and one of its amendments. In so doing, the decision explains the current USCIS interpretation of applicable regulations to allow such a beneficiary to participate in relevant administrative proceedings.

The decision concludes:

Because we find that beneficiaries who are eligible to port and properly request to port under AC21 are within the statute’s zone of interests, USCIS interprets that statute as requiring a change in the agency’s historical interpretation of the applicable DHS regulations. Our new interpretation is to treat these beneficiaries as affected parties who may participate in revocation proceedings related to their underlying immigrant visa petitions. Because the Beneficiary in this case, who is eligible to port and properly requested to port in compliance with the requirements under AC21, did not have an opportunity to so participate, we will reopen these proceedings and reinstate the Form I-140 immigrant visa petition relating to the Beneficiary and remand these proceedings to the Director, who must afford the Beneficiary an opportunity to respond to any future [Notice of Intent to Revoke] related to this I-140 petition. Should the Director thereafter revoke the immigrant petition’s approval, the Beneficiary may appeal or file a motion to reopen or reconsider from the revocation or he may participate in proceedings arising from an appeal or motion filed by the Petitioner relating to this petition.

Matter of G- Inc. (AAO Nov. 8, 2017), Adopted Decision 2017-05. This decision provides important guidance to U.S. employers who transfer “function managers” (those who primarily manage essential functions rather than people) under the L-1 intracompany visa. A USCIS memorandum explaining the adoption of this decision notes:

Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.

The Matter of V-S-G- memorandum and decision are at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-11-11-PM-602-0149-Matter-of-V-S-G-Inc.-Adopted-Decision.pdf. The Matter of G- memorandum and decision are at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/APPROVED_PM-602-0148_Matter_of_G-_Inc._Adopted_AAO_Decision.pdf. Commentary on Matter of G- is at http://bit.ly/2Bgl3p3.

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  1. DHS To Terminate TPS Designation for Haiti in July 2019

Acting Secretary of Homeland Security Elaine Duke recently announced the termination of the temporary protected status (TPS) designation for Haiti with a delayed effective date of 18 months “to allow for an orderly transition before the designation terminates on July 22, 2019.”

The DHS statement said, “Since the 2010 earthquake, the number of displaced people in Haiti has decreased by 97 percent. Significant steps have been taken to improve the stability and quality of life for Haitian citizens, and Haiti is able to safely receive traditional levels of returned citizens. Haiti has also demonstrated a commitment to adequately prepare for when the country’s TPS designation is terminated.”

In May 2017, then-DHS Secretary John Kelly announced a limited extension for Haiti’s TPS designation, stating that he believed there were indications that Haiti may not warrant further TPS extension past January 2018. At the time, then-Secretary Kelly stated that his six-month extension should give Haitian TPS recipients living in the United States time to attain travel documents and make other necessary arrangements for their ultimate departure from the United States, and should also provide the Haitian government with the time it needed to prepare for the future repatriation of all current TPS recipients.

DHS said the effective date of July 22, 2019, would “provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens. During this timeframe, USCIS will work with the State Department, other DHS components and the Government of Haiti to help educate relevant stakeholders and facilitate an orderly transition.”

Haitians with TPS must reapply for employment authorization documents to continue working legally in the United States until the end of the extension period.

The DHS announcement is at https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporary-protected-status-haiti.

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  1. Federal Court Blocks Trump Order To Strip ‘Sanctuary Jurisdictions’ of Federal Funding

Following lawsuits by the counties of San Francisco and Santa Clara, California, federal district Judge William H. Orrick ruled against a provision of the Trump administration’s executive order issued in January 2017 to block federal funds from “sanctuary jurisdictions.”

The January executive order stated, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.” The executive order said, among other things, that the policy of the executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The order further said that the Secretary of Homeland Security has the authority to designate a jurisdiction as a sanctuary jurisdiction, and that the Attorney General can take “appropriate enforcement action” against any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

The counties challenging the executive order argued that the relevant provision of the Trump executive order violated the separation of powers doctrine in the Constitution because it improperly sought to wield congressional spending powers. The counties said it was so overbroad and coercive that even if the President had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions. Further, the counties argued that the provision was so vague that it violated the Fifth Amendment’s Due Process Clause and was void for vagueness. And because it sought to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violated the procedural due process requirements of the Fifth Amendment.

The federal government responded that the counties could not demonstrate that the executive order’s sanctuary provision was invalid under all circumstances. It also claimed, among other things, that the provision was consistent with the Constitution’s separation of powers and did not apply to funding in which the county might have a constitutionally protectable interest.

The court noted that the provision in question, by its plain language, attempted to reach all federal grants. The rest of the executive order was broader still, the court noted, addressing all federal funding. And if there was any doubt about the scope of the executive order, the court observed, the President and Attorney General “erased it with their public comments.” The court noted that the President has called the order “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded, the court noted.

The court said that the Constitution vests spending powers in Congress, not the President, so the executive order “cannot constitutionally place new conditions on federal funds.” Further, the court noted, the Tenth Amendment “requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive.” Federal funding that bears no meaningful relationship to immigration enforcement “cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves,” the court said. Because the executive order violates the separation of powers doctrine and deprives the counties of their Tenth and Fifth Amendment rights, the court granted the counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the executive order.

The January executive order is at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united. Additional details on sanctuary jurisdiction cases, including links to this decision and other related decisions, are at http://www.cand.uscourts.gov/who/sanctuary-litigation.

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  1. USCIS Announces Caps for Final Three Fiscal Years of CNMI Transitional Worker Program

U.S. Citizenship and Immigration Services (USCIS) has announced the number of visas the agency will grant for the last three fiscal years of the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program. The caps until the end of the program are 9,998 (FY 2018); 4,999 (FY 2019); and 4,999 (FY 2020, until December 31, 2019).

Congress previously mandated that USCIS end the program by reducing the number of workers in the program to zero by December 31, 2019. Under the CW-1 program, employers in the CNMI can apply for permission to employ foreign workers who are ineligible to work in the territory under other nonimmigrant worker categories. The intent of phasing out this foreign worker program is “to encourage the territory’s transition into the U.S. immigration system, as well as to bolster recruitment of U.S. workers in the CNMI,” the USCIS announcement states.

USCIS announced in May 2017 that the agency had received a sufficient number of petitions to reach the maximum possible CW-1 cap for FY 2018. April 11, 2017, was the last day on which USCIS accepted FY 2018 CW-1 petitions requesting an employment start date before October 1, 2018. USCIS “encourages employers to file petitions for CW-1 workers as early as possible within 6 months of the requested employment start date. Please note, however, that USCIS will reject a petition if it is filed more than six months in advance,” the announcement states.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/cnmi-transitional-worker-program-draws-down-uscis-announces-cap-final-three-fiscal-years.

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  1. ABIL Global: European Court Dismisses Challenge to Mandatory Relocation of Displaced Persons

The European Court of Justice (ECJ) recently dismissed a challenge by Slovakia and Hungary to a mandatory allocation of 120,000 asylum seekers from Greece and Italy to other European Union (EU) Member States.

ECJ judges said the European Council had acted lawfully. The court said that EU institutions were on firm legal ground when they adopted measures to respond to “an emergency situation characterized by a sudden inflow of displaced persons.” The ECJ also concluded that the legality of the decision was not affected by retrospective conclusions about the policy’s effectiveness.

Budapest condemned the court ruling as “appalling and irresponsible.” The foreign minister, Péter Szijjártó, said, “This decision jeopardizes the security and future of all of Europe. Politics has raped European law and values.” Hungary and Poland have not relocated anyone yet, and the Czech Republic has not made any such offers for more than a year. All three countries risk being taken to court by the commission.

Karl Waheed offered the following answers in response to questions about the ECJ’s decision, in his capacity as Vice Chair of the International Bar Association’s (IBA) Immigration and Nationality Law Committee:

  1. What is the view of the Immigration and Nationality Law Committee on the ECJ decision?

The IBA promotes the rule of law, and this decision upholds the rule of law and backs the European Council’s authority to apply it uniformly, despite resistance from some Member States. This is good news for the governance of the EU.

  1. Why did Slovakia and Hungary object in the first place?

Slovakia considers itself to be ethnically homogeneous. It has presently taken in 16 refugees out of the 902 it has pledged to take. However, Slovakia has avoided provoking any “infringement procedures,” which is the financial penalty imposed by the ECJ for refusing to follow their ruling, and it has avoided this by promising to take in more refugees.

Hungary sees itself as defending European and Christian civilization. Prime Minister Orban has pledged to fight the quota. Orban is facing a re-election this fall, which may be encouraging him to double down on his refusal. To date, Hungary has not taken a single person, and in June the ECJ initiated Infringement procedures against it, Poland, and the Czech Republic.

  1. Will this ruling make any difference? Will these two countries now accept refugees?

Yes, this ruling makes the European Council stronger. It reinforces their decision-making authority, even in the face of a lack of unanimity. It shows that the Council can enforce solidarity upon the reluctant EU members to provide relief for the more exposed countries like Italy and Greece.

If the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling of the ECJ. If they do not follow the ruling, we have a deeper political crisis of the EU on our hands.

If Slovakia and Hungary refuse to follow the ruling, the ECJ can implement infringement procedures that financially penalize the countries for not abiding with their ruling, which the ECJ already started initiating in June 2017.

  1. Why was there so much refugee migration in 2015 in particular? Are there still refugees trying to get into Greece/Italy?

Numerous factors contributed. An escalation of the civil war in Syria made it such that more than one out of every two Syrians became a displaced person, either internally within Syria or outside it. Furthermore, German Chancellor Angela Merkel’s offer in September 2015 to accept 1 million refugees had the inverse effect of encouraging more people to emigrate. Concerning the Mediterranean crossings, the civil war in Libya destabilized that country such that there was no authority to prevent the traffickers from shipping out of Libya.

At present, there are still tens of thousands of people on boats arriving monthly in Italy and Greece. According to the International Organization for Migration, in the first five months of 2017, there were 60,000 arrivals in Italy compared to 47,000 in the first five months of 2016. So, the problem is far from being episodic, or from having resolved itself.

Italy and EU are seemingly doing whatever they can, both legally and illegally, to keep boats from arriving in Italy. Take, for example, the EU-Turkey agreement from 2015. The EU is “refouling,” or relocating, thousands of asylum-seekers to Turkey, and yet Turkey is not considered a safe country because it has signed the outdated 1951 Convention relating to the Status of Refugees but not the modern 1968 Protocol.

  1. Where does this ruling leave the relocation “policy” of the EU?

This ruling reinforces the legitimacy of relocating within the EU. The ECJ described the relocation as fair and proportionate, so as to be in solidarity with Greece and Italy receiving so many arrivals. It reinforces the Dublin regulation, which took a hit to its legitimacy during 2015 when both Greece and Germany decided not to abide by it.

  1. Is this problem unique to the EU or are there other places where relocation is used?

It is not unique to the EU. Australia, for example, has similar agreements with Christmas Island and Papua New Guinea, where the latter two countries are paid to “warehouse” the asylum seekers. The problem with this is that these are not humane conditions. The asylum seekers are stuck on tiny islands for years while they wait for Australia to refuse them asylum. And what happens to them when they are refused asylum? Thus, relocation exists in other places, but it is not a model solution. At least within the EU, it can be done ethically among advanced countries, providing humane conditions during the asylum application process.

  1. Do we have any facts relating to the number of refugees affected? How many are there in Greece/Italy waiting relocation or who have been relocated?

According to the United Nations High Commissioner for Refugees, in 2015 approximately 1 million refugees arrived by sea in Europe. For 2016, it was 362,000 sea arrivals. In 2017, as of September, there have been 132,000 sea arrivals. Of those 132,000, Italy has received 103,000 and Greece 18,000.

Regarding relocation, 8,500 of the 39,600 targeted relocations from Italy have occurred, which is just 22 percent for Italian relocations. For Greece, 20,000 out of the 63,000 have been relocated, which is 31 percent.

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  1. Firm In The News

Cyrus D. Mehta was a Speaker, US immigration and visa policy in the Trump era – what has changed and what has not? 8th Biennial IBA Global Immigration Conference, London, UK, November 17, 2017.

Cyrus D. Mehta was a Speaker, Ethical Issues In I-140/I-485 Scenarios, Advanced Corporate Immigration: Don’t Cross that Line! Ethics for Immigration Practitioners, New Jersey Institute for Continuing Legal Education, Newark, NJ, November 15, 2017.

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Mid-November 2017 Immigration Update

Headlines:

  1. DHS Announces Delayed Termination of TPS for Nicaragua, Six-Month Extension for Honduras – Acting Secretary of Homeland Security Elaine Duke is terminating TPS for Nicaragua with a delayed effective date of 12 months, to January 5, 2019. She also determined that additional information is necessary regarding the TPS designation for Honduras before a determination can be made. As a result, the TPS designation for Honduras will be automatically extended for 6 months, to July 5, 2018.
  2. U.S. Resumes Limited Visa Operations in Turkey – The U.S. Mission in Turkey announced that embassies and consulates have resumed “limited visa services” in Turkey.
  3. USCIS Warns About Scams Requesting I-9 Forms Via Email – USCIS recently announced that employers have received scam emails requesting Form I-9, Employment Eligibility Verification, information. The emails claim to come from USCIS but do not. Employers are not required to submit Forms I-9 to USCIS but must retain them for a period of time.
  4. E-Verify Employers Can Request Authorization to Post Logo – E-Verify employers can now request authorization from USCIS to post the trademarked E-Verify logo on their websites, presentation materials, and brochures “to let everyone know they are committed to maintaining a legal workforce.”
  5. Firm In The News…

Details:

  1. DHS Announces Delayed Termination of TPS for Nicaragua, Six-Month Extension for Honduras

Acting Secretary of Homeland Security Elaine Duke announced on November 6, 2017, her decision to terminate the temporary protected status (TPS) designation for Nicaragua with a delayed effective date of 12 months to allow for an orderly transition before the designation terminates on January 5, 2019. She also determined that additional information is necessary regarding the TPS designation for Honduras before a determination can be made. As a result, the TPS designation for Honduras will be automatically extended for 6 months from the current January 5, 2018, expiration date to July 5, 2018.

The Department of Homeland Security (DHS) said the decision to terminate TPS for Nicaragua was made after a review of the conditions on which the country’s original 1999 designation were based and whether those “substantial but temporary” conditions prevented Nicaragua from adequately handling the return of its nationals. Based on all available information, Acting Secretary Duke determined that those substantial but temporary conditions caused in Nicaragua by Hurricane Mitch no longer exist, and thus the current TPS designation must be terminated.

DHS said that the 12-month delay in the TPS expiration for Nicaragua “will provide time for individuals with TPS to seek an alternative lawful immigration status in the United States, if eligible, or, if necessary, arrange for their departure. It will also provide time for Nicaragua to prepare for the return and reintegration of their citizens.”

Regarding Honduras, Acting Secretary Duke said she concluded that despite receiving input from a broad spectrum of sources, additional time is necessary to obtain and assess supplemental information pertaining to country conditions in Honduras to make an “appropriately deliberative” TPS designation determination. Based on the lack of definitive information regarding conditions on the ground compared to pre-Hurricane Mitch, the Acting Secretary has not made a determination yet, thereby automatically extending the current TPS designation for Honduras for six months.

DHS noted, however, that it is possible that the TPS designation for Honduras will be terminated at the end of the 6-month automatic extension “with an appropriate delay.”

DHS said that it recognizes the difficulty facing citizens of Nicaragua, “and potentially citizens of other countries,” who have received TPS designation for “close to two decades.” Acting Secretary Duke called on Congress “to enact a permanent solution for this inherently temporary program.”

Nicaraguans and Hondurans with TPS will be required to reapply for employment authorization documents to legally work in the United States until the end of their TPS extensions. Further details will appear in a Federal Register notice, DHS said.

The announcement is at https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcement-temporary-protected-status-nicaragua-and.

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  1. U.S. Resumes Limited Visa Operations in Turkey

The U.S. Mission in Turkey announced on November 6, 2017, that embassies and consulates have resumed “limited visa services” in Turkey.

The U.S. Mission noted that “[w]e continue to have serious concerns about the existing cases against arrested local employees of our Mission in Turkey. We are also concerned about the cases against U.S. citizens who have been arrested under the state of emergency. U.S. officials will continue to engage with their Turkish counterparts to seek a satisfactory resolution of these cases.”

The U.S. Mission also said, however, that it had received “initial high-level assurances” that no additional local employees of the U.S. Mission in Turkey are under investigation. “We have also received initial assurances from the Government of Turkey that our local staff will not be detained or arrested for performing their official duties and that Turkish authorities will inform the U.S. government in advance if the Government of Turkey intends to detain or arrest a member of our local staff in the future.”

The U.S. Mission also said that Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens “are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey.”

As background, on October 8, 2017, the U.S. Department of State announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas included business, tourist, student, and temporary work authorization visas. The suspension also applied to diplomatic and official visas.

The U.S. Mission said that those with questions regarding canceled appointments or other issues resulting from these issues should see https://tr.usembassy.gov/visas/nonimmigrant-visas/.

The latest statements are at https://tr.usembassy.gov/statement-u-s-mission-turkey-re-opening-limited-visa-services-turkey/ and https://tr.usembassy.gov/visas/nonimmigrant-visas/.

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  1. USCIS Warns About Scams Requesting I-9 Forms Via Email

U.S. Citizenship and Immigration Services (USCIS) recently announced that employers have received scam emails requesting Form I-9, Employment Eligibility Verification, information. The emails claim to come from USCIS but do not. Employers are not required to submit Forms I-9 to USCIS but must retain them for a period of time.

USCIS said that the scam emails have been coming from a fraudulent email address: news@uscis.gov. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address, and a fraudulent download link to a non-government web address (uscis-online.org). “Do not respond to these emails or click the links in them,” USCIS warned.

Those who believe they received a scam email requesting I-9 information from USCIS may report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/GettingStarted?OrgCode=USDOEVCC&NextQID=261#crnt. Those who are uncertain may forward the suspicious email to the USCIS webmaster, uscis.webmaster@uscis.dhs.gov. USCIS “will review the emails received and share with law enforcement agencies as appropriate.”

USCIS scam alerts and related resources are at https://www.uscis.gov/avoid-scams/common-scams.

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  1. E-Verify Employers Can Request Authorization to Post Logo

E-Verify employers can now request authorization from U.S. Citizenship and Immigration Services to post the trademarked E-Verify logo on their websites, presentation materials, and brochures “to let everyone know they are committed to maintaining a legal workforce.”

For more information or to apply, see the Trademark and Logo Usage Guidelines website at https://www.uscis.gov/e-verify/about-program/trademark-and-logo-usage-guidelines. The guidelines and licensing agreement are at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/everifytrademark.pdf.

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  1. Firm In The News

Cora-Ann V. Pestsaina published The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions on November 13, 2017.

Cyrus D. Mehta was a Speaker, Attacks on Business Immigration, AILA-NY Chapter Monthly Meeting, New York, NY, November 13, 2017

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November 2017 Immigration Update

Headlines:

  1. Ban on Refugees Expires; Trump Administration Calls for Additional Vetting for 11 Nationalities During 90-Day Review Period – The Trump administration’s 120-day ban on refugee admissions expired on October 24, 2017. On the same day, the Department of State announced that additional in-depth review is needed for refugees of 11 nationalities identified as potentially posing a higher risk to the United States.
  2. USCIS Increases Scrutiny of Certain Nonimmigrant Extension Requests – The agency noted that previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy.
  3. State Dept. Restarts DV Lottery Due to Technical Glitch, Excludes Oct. 3-10 Entries – The Department of State had a recent technical problem on the Diversity Visa lottery site and has reopened a new full entry period, which will end November 22, 2017, at 12 noon ET. The Department also is excluding October 3-10 entries and said that those who applied during that period can apply again.
  4. USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions – USCIS recently changed the direct filing addresses for certain petitioners using Form I-129, Petition for a Nonimmigrant Worker.
  5. Sen. Grassley Urges Reconsideration of Trade NAFTA Nonimmigrant Classification – Sen. Grassley’s letter, to Ambassador Robert E. Lighthizer, the U.S. Trade Representative, noted that “[g]iven President Trump’s willingness to reevaluate—or reject—any and all of the NAFTA agreement, in the interest of protecting American workers, I recommend that you specifically include temporary workers in the ongoing NAFTA review.”
  6. Firm In The News…

 Details:

  1.  Ban on Refugees Expires; Trump Administration Calls for Additional Vetting for 11 Nationalities During 90-Day Review Period

The Trump administration’s 120-day ban on refugee admissions expired on October 24, 2017. On the same day, the Department of State announced that “additional in-depth review is needed with respect to refugees of 11 nationalities previously identified as potentially posing a higher risk to the United States. Admissions for applicants of those 11 potentially higher-risk nationalities will resume on a case-by-case basis during a new 90-day review period.”

Rex Tillerson, Secretary of State; Elaine Duke, Acting Secretary of Homeland Security; and Daniel Coats, Director of the Office of the Director of National Intelligence, sent a related memorandum on October 23, 2017, to President Trump. The State Department announcement and memo do not list the 11 countries, but according to reports, the countries appear to be Egypt, Iran, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen; and Palestinians living in those countries. The memo notes that the 11 countries were those designated on the Security Advisory Opinion (SAO) list, which was established following the 9/11 terrorist attacks on the United States and has evolved over the years through interagency consultations.

The memo states that during the 90-day review period, while a “detailed threat analysis” is being conducted of those 11 countries, the Secretaries of State and Homeland Security “will temporarily prioritize refugee applications from other non-SAO countries,” and that resources that may have been dedicated to processing nationals or stateless persons of SAO countries will be reallocated during that period “to process applicants from non-SAO countries for whom the processing may not be as resource intensive.”

The Department also announced on October 24 that “[f]or family members who are ‘following-to-join’ refugees that have already been resettled in the United States, additional security measures must also be implemented for all nationalities. Admissions of following-to-join refugees will resume once those enhancements have been implemented.” The October 23 memo states that Mr. Tillerson, Ms. Duke, and Mr. Coats “have jointly determined that additional security measures must be implemented before admission of following-to-join refugees can resume.” Those measures are to include “adequate screening mechanisms” that are “similar to the processes employed for principal refugees.”

An Executive Order issued by President Trump on October 24, 2017, states, among other things, that within 180 days, the Attorney General will “provide a report to the President on the effect of refugee resettlement in the United States on the national security, public safety, and general welfare of the United States. The report shall include any recommendations the Attorney General deems necessary to advance those interests.”

The Executive Order also states that within 90 days of October 24, 2017, and annually thereafter, the Secretary of Homeland Security will determine “whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated, and, if so, what those modifications or terminations should be.”

Meanwhile, President Trump announced that the maximum number of refugee admissions to the United States in fiscal year 2018 will be lowered to 45,000, which is the lowest number since the Refugee Act was passed in 1980.

The U.S. Supreme Court said on October 24, 2017, that it would not consider the merits or legality of the Trump administration’s travel ban, issued in March, due to its expiration. Other challenges to new Presidential orders are working their way through lower courts.

The Department of State’s October 24 announcement is at https://www.state.gov/r/pa/prs/ps/2017/10/275074.htm. The October 23 memo is at https://www.state.gov/documents/organization/275306.pdf. President Trump’s related Executive Order is at https://www.whitehouse.gov/the-press-office/2017/10/24/presidential-executive-order-resuming-united-states-refugee-admissions. The White House announcement of the 45,000 refugee cap for FY 2018 is at https://www.whitehouse.gov/the-press-office/2017/09/29/president-donald-j-trump-taking-responsible-and-humanitarian-approach.

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  1. USCIS Increases Scrutiny of Certain Nonimmigrant Extension Requests

Under updated policy guidance, U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories. The guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.

The agency noted that previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy, USCIS said.

USCIS explained that as before, adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The updated guidance instructs officers to apply the same level of scrutiny when reviewing nonimmigrant visa extension requests, even where the petitioner, beneficiary, and underlying facts are unchanged from a previously approved petition. “While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner,” USCIS said, adding that the adjudicator’s determination “is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility.”

The Alliance of Business Immigration Lawyers (ABIL) advises employers and employees to treat nonimmigrant extension applications as no longer routine, and to include the same documentation as required in an initial petition. ABIL also advises allowing more time to file such applications; 180 days before the current petition expires is recommended. Nonimmigrants may want to consider accelerating permanent residence processing. Litigation of extension petitions may be possible in some cases. Contact your ABIL attorney for advice and help in specific situations.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-updates-policy-ensure-petitioners-meet-burden-proof-nonimmigrant-worker-extension-petitions. The updated policy guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf.

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  1. State Dept. Restarts DV Lottery Due to Technical Glitch, Excludes Oct. 3-10 Entries

The U.S. Department of State had a recent technical problem on its Diversity Visa (DV) green card lottery site and has reopened a new full entry period, which started October 18, 2017, at 12 noon ET and will end November 22, 2017, at 12 noon ET. The Department also is excluding October 3-10 entries and said that those who applied during that period can apply again:

Due to a technical issue, the DV-2019 entry period that began on October 3 has been closed. Entries submitted during October 3-10 are not valid and have been excluded from the system; they will not count as a duplicate entry. The technical issue has been resolved and a new full entry period will begin at noon, U.S. Eastern Daylight Time on Wednesday October 18, 2017 and will run until noon Eastern Standard Time on Wednesday November 22, 2017. Only entries submitted during this period will be accepted and considered for selection in the lottery. Please throw away any confirmation number or other documentation that you have if you submitted an entry during Oct. 3-10 Entries will NOT be accepted through the U.S. Postal Service.

The statement and a link to the DV-2019 instructions, registration, and status check are at https://www.dvlottery.state.gov/(S(dcwxi52os10uan4v5iqjeall))/default.aspx. General information about the diversity lottery green card program is at https://travel.state.gov/content/visas/en/immigrate/diversity-visa/entry.html.

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  1. USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions

U.S. Citizenship and Immigration Services (USCIS) recently changed the direct filing addresses for certain petitioners using Form I-129, Petition for a Nonimmigrant Worker. The changes include:

  • Petitioners should now file Form I-129 according to the state where the company or organization’s primary office is located. Previously, petitioners filed their I-129s based on the beneficiary’s temporary employment or training location.
  • Petitioners located in Florida, Georgia, North Carolina, and Texas should now file Form I-129 at the California Service Center.

Starting November 11, 2017, USCIS may reject Form I-129s that are filed at the wrong service center. Instructions on where to file are at https://www.uscis.gov/i-129-addresses. The related announcement is at https://www.uscis.gov/news/alerts/changes-direct-filing-addresses-form-i-129-petitions.

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  1. Sen. Grassley Urges Reconsideration of Trade NAFTA Nonimmigrant Classification

 Sen. Charles Grassley (R-Iowa), chairman of the Senate Committee on the Judiciary, sent a letter on October 23, 2017, to Ambassador Robert E. Lighthizer, the U.S. Trade Representative, to express “ongoing concerns regarding the uncapped TN [Trade NAFTA] nonimmigrant classification,” which is a component of the North American Free Trade Agreement (NAFTA). Sen. Grassley asked Mr. Lighthizer to “consider renegotiating the guest worker provisions of NAFTA as part of any broader examination of the treaty.”

Sen. Grassley’s letter notes, among other things, that given the Trump administration’s “focus on protections for the American worker, including efforts to rein in the H-1B program, businesses will be looking for alternative sources of cheap foreign labor to exploit.” He suggests that employers are likely to turn to the TN visa category. The letter notes that the TN visa, “if left unchanged in its current form, could well undermine the administration’s broader efforts.” He notes that the number of TN visa workers employed in the United States has been growing in recent years and that available statistics suggest that “the number could be approaching 100,000.”

Sen. Grassley’s letter noted, “Given President Trump’s willingness to reevaluate—or reject—any and all of the NAFTA agreement, in the interest of protecting American workers, I recommend that you specifically include temporary workers in the ongoing NAFTA review.”

A statement from Sen. Grassley and the full text of the letter are at https://www.grassley.senate.gov/news/news-releases/grassley-encourages-review-high-skilled-worker-program-nafta-negotiations.

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  1. Firm In the News

 Cyrus D. Mehta published Stopping H-1B Carnage on October 23, 2017; The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests on October 30, 2017; and with Sophia Genevose-Halvorson Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention on November 5, 2017.

Cyrus D. Mehta was a Speaker, Dissecting the Skilled Worker Regulations, LAAC District Chapter of AILA Global Citizenship and Foreign National Conference, Casa de Campo, Dominican Republic, November 3, 2017.

Cyrus D. Mehta was a Speaker, Beyond the Wall: The New Administration’s Impact on Global Immigration, organized by ABA Section of International Law, 2017 Fall Meeting, Miami, FL, October 27, 2017.

 

 

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October 2017 Global Immigration Update

Feature Article

VISA OPTIONS FOR INVESTORS: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to visa options for investors.

Country Updates

BELGIUM – A new Act implements a European Union directive regarding new rules on assignment.

CANADA – The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) came into force on September 21, 2017. This article discusses provisions relating to work and business provisions.

ITALY – Italy introduces a new type of tourist visa and launches a new online consular electronic Schengen visa form. This article also clarifies guidance on “business” and “work” activities for Schengen short-term assignments.

TURKEY – The United States and Turkey have mutually suspended certain visa services.

Feature Article

VISA OPTIONS FOR INVESTORS: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to visa options for investors.

Canada

While at present there is no Canadian federal immigrant investor program, one can still apply to immigrate to Canada as a permanent resident under the Québec Immigrant Investor Program.

History

Canada’s previous immigrant investor program was created in 1986 and went through a number of changes over the years. The hallmark of the program was that it provided for a passive, not at-risk, investment.

On June 19, 2014, Bill C-31 became law in Canada and federal immigrant investor program applications that were in the backlog were terminated and no new applications accepted.

Québec Immigrant Investor Program

The Québec Immigrant Investor Program, which also began in the 1980s, has allowed thousands of families to immigrate permanently to Canada. In many cases, these families might not otherwise have qualified to immigrate (due to education, language, and/or age barriers) under any of the other Canadian or Québec permanent immigration programs.

To be eligible for the Québec Immigrant Investor Program, an applicant must:

  1. Have, alone or with an accompanying spouse, including a de facto spouse, net assets of at least $1.6 million Canadian dollars (approximately $1.2 million U.S. dollars) obtained legally, excluding the amounts received by donation less than six months before the date on which the application was filed;
  2. Have experience in management in a legal farming, commercial, or industrial business, or in a legal professional business where the staff, excluding the investor, occupies at least the equivalent of two full-time jobs, or in an international agency or a government or one of its departments or agencies (note that “management experience” is defined as the exercise, for at least two years in the five years preceding the application for a selection certificate, of duties related to the planning, management, and control of financial resources and of human or material resources under the person’s authority; experience does not include experience acquired in the context of an apprenticeship, training, or specialization process attested to by a diploma); and
  3. Intend to settle in the province of Québec and sign an agreement to invest $800,000 Canadian dollars (approximately $610,000 U.S. dollars) with a financial intermediary (broker or trust company) authorized to participate in the Investor Program. Currently, there are 18 financial intermediaries authorized by the Québec government to participate in the Québec Immigrant Investor Program. After five years, the monies are returned to the applicant but without interest. Alternatively, the $800,000 Canadian dollars can be financed through the financial intermediary.

The assessment of an application will also take into account other factors such as age, the nature and duration of professional training, and language skills.

At present, the Québec Immigrant Investor Program is the only possible passive (not at-risk) immigrant investor program that exists in Canada.

Application Cap and Processing Times

For the 2017–2018 Québec fiscal year (April 1, 2017–March 31, 2018), Québec will accept 1,900 Immigrant Investor Program applications (with a cap of 1,330 for citizens of China). Interestingly, the 1,900 overall cap does not apply to those who have advanced intermediate knowledge of the French language as attested to by a standardized French test recognized by the Québec government. The application period began May 29, 2017, and runs through February 23, 2018.

Processing times are approximately 10 to 14 months (most applicants are interviewed by the Québec government) for the Québec portion of the process. It then takes an additional 12 to 30 months, approximately, for the Canadian government to complete the immigration process (the Canadian government’s role is to check that there are no medical, criminal, or security inadmissibility issues).

Source of Funds

Quebec carefully scrutinizes the source of all of a Québec Immigrant Investor Program applicant’s funds, and not just the minimum net worth of $1.6 million Canadian dollars. The onus is on the applicant to transparently explain in a detailed prescribed narrative document (and possibly at an interview) all of his or her past and present economic activities and how the assets were acquired.

Canadian Permanent Residence—Residency Obligations and Citizenship

Once Québec and Canada approve an application, the applicant, his or her spouse (including common-law or same-sex spouse) and his or her children all become Canadian permanent residents and can reside in any Canadian province. To maintain Canadian permanent resident status, a Canadian permanent resident normally must be physically present in Canada for at lease 730 days in every five-year period.

Canada does not have a citizenship-by-investment program and, as such, a foreign national must be “naturalized” to become a Canadian citizen.

As of the fall of 2017, a Canadian permanent resident can apply for Canadian citizenship after being physically present in Canada for 1,095 days during the five years immediately before the date of his or her application for Canadian citizenship.

Alternative Programs

While there are no other passive Canadian immigrant investor or entrepreneurial programs, options exist to apply for Canadian permanent resident status under other business-related programs, which include

  1. Start-up visa program
  2. Self-employed program (in cultural activities or athletics at a world-class level)
  3. Provincial nominee business/entrepreneur programs

Conclusion

The Québec Immigrant Investor Program is a viable passive investment option for immigrating to Canada with no risk. As such, it is worth considering by investor applicants who have management experience and want themselves and their immediate family members to settle in Canada and become Canadian permanent residents.

Italy

Italy welcomes high-net-worth individuals with new favorable tax rates and a dedicated visa option for foreign investors.

The Italian Budget Law, effective January 1, 2017, contained several measures aimed at attracting foreign investments and encouraging high-net-worth (HNW) individuals to move to Italy. Among these are the introduction of a preferential tax regime for wealthy individuals who take up tax residency in Italy and a new visa program for HNW investors that facilitates the procedure for entry and residence in Italy. Until now, Italian immigration law, unlike other European Union countries, did not provide for a dedicated entry-for-investment visa. Below are highlights of these new efforts under the Italian Budget Law.

Favorable Flat-Tax Regime

On March 8, 2017, the Italian Revenue Agency (Agenzia delle Entrate) issued flat-tax-regime implementing provisions. The law is now fully effective, and guidelines and a checklist of requirements are available. Individuals who become Italian tax residents can take advantage of a substitute tax regime on their foreign income. Regardless of amount, foreign income will only be subject to a yearly flat tax of €100,000. Close family members can also benefit from the favorable tax measures: a flat tax of just €25,000, instead of €100,000, will be applied to their foreign income. Moreover, opting for the new regime guarantees full exemption from reporting requirements with respect to financial and non-financial assets abroad and from succession duties on assets outside Italy. To qualify for the option, the applicant must not have been resident in Italy for at least nine tax years during the previous 10 years; eligible taxpayers can ask to benefit from the substitute tax regime when filing their tax returns; before then, it is possible to submit a preliminary ruling (interpello) to the Italian Revenue Agency.

Dedicated Visa Option: Investor Visa

New provisions have been introduced in Italian immigration law in the framework of promoting foreign investments. An “investor visa” will shortly be available to foreigners intending to invest in Italy under one of the following options:

• €2 million in government bonds, to be kept for at least two years
• €1 million in the share capital of an Italian company, reduced to €500,000 if the company is an innovative start-up
• €1 million in philanthropic donations (culture, education, immigration management, scientific research, or cultural heritage)

Currently, the government is working on implementing an online system for applications that is expected to be launched by the end of November. Applications will be possible only after the online platform is published and the relevant operations manual is ready.

The  main points of the decree include:

  • The authority in charge of evaluating the applicant’s eligibility conditions will be a special committee made up of various authorities, including representatives of the Ministry of Economic Development, Ministry of Interior, Ministry of External Affairs, tax authorities, and financial police;
  • The applications will be managed through an online platform yet to be created, as noted above;
  • Among the documents required, the applicant must submit a police clearance for each country where he or she has lived in the previous 10 years;
  • The application will follow three basic steps: online clearance (nulla osta) application; visa application at the consulate in the foreign country; and residence permit application in Italy;
  • Within three months from the date of entry, the applicant must provide documented evidence of the investment or donation. Failing to do so will result in denial of the residence permit;
  • In case of disinvestment before the terms or if the holder is untraceable, the residence permit can be revoked at any time;
  • After two years, the residence permit can be renewed for an additional three years subject to approval of the committee.

The investor visa implementing decree is at http://www.sviluppoeconomico.gov.it/index.php/it/normativa/decreti-interministeriali/2036986-decreto-interministeriale-21-luglio-2017-nuovo-visto-per-investitori (in Italian).

Peru

This article provides brief comments on the investor visa in Peru.

On January 7, 2017, the New Law of MIGRACIONES, Legislative Decree No. 1350, was published in the Official Gazette, “El Peruano.” The new law and regulations, approved by Supreme Decree No. 007-2017-IN, have been in force since March 1, 2017.

This new immigration legislation has instituted a series of changes and the creation of new migratory statuses. One of these changes concerns investors. The new law allows a foreigner to establish, develop, or manage one or more lawful investments in Peru.

The amount of the investment and other conditions are established by regulation. Eligibility requirements include:

A) An investment equal to or higher than 500,000.00 Peruvian Sol (PEN), equivalent to approximately US$155,275. The investment amount can be modified by Superintendence Resolution.

B) Serving only as manager or director of a foreign person’s own company, for which he or she must comply with the corresponding labor or tax rules. This position of the foreigner is not included in quotas for the local company’s payroll, established in Legislative Decree No. 689 (Law of Hiring of Foreign Personnel) and its regulations. Under no circumstances may the foreign person support the investment through the transfer of shares.

MIGRACIONES is the authority that grants this migratory status. The Investor visa allows multiple entries. The foreign individual receives a resident permit (foreign card/carné de extranjería) for 365 days, renewable while the same conditions exist.

Procedurally, there are two alternative ways to obtain Investor status. First, an “obtainment visa process” implies that all the necessary documentation is submitted at MIGRACIONES offices in Peru; however, the applicant remains abroad initially. Once his or her visa is approved, he or she collects it from the Peruvian consulate previously chosen. Then he or she comes to Peru to finish the process. This procedure takes 30 working days from the time of initial filing. Alternatively, a “change of immigration status (in-country) process” implies that the foreign national enters Peru in tourist or business migratory status, then applies at MIGRACIONES for the Investor visa and submits the required documentation. This procedure takes 60 working days from the time of initial filing.

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Country Updates

BELGIUM

A new Act implements a European Union directive regarding new rules on assignment.

An Act of December 11, 2016, effective December 30, 2016, implemented EU Directive 2014/67/EU regarding assignment. This Act provides that the Belgian inspection services can ask the foreign posting undertaking to submit four types of documents:

  1. Copy of employment contract (or a similar document),
  2. Miscellaneous information (information regarding foreign currency for payment of salary, the allowances or   benefits in kind related to employment abroad, and the conditions for repatriation),
  3. Overview of the working hours (start, end, and duration), and
  4. Proof of salary payment.

This list of documents can be modified by an implementing Royal Decree.

Furthermore, the inspection services can ask for a translation of the documents into one of the Belgian official languages (Dutch, French, German) or English. Waivers/exemptions can be created by Royal Decree, based on the limited duration of the activities in Belgium or the specific nature of these activities. After the termination of the posting, the documents should be kept available for one year. During and after the assignment (one year), the documents can be kept in paper or electronic form.

The posting undertaking also has to designate a person to liaise with the Belgian inspection services. This person must forward documents (see #2 above) to the inspection services, if requested. Information regarding the person to liaise must be noted in the Limosa declaration: This change has been implemented by a Royal Decree dated September 14, 2017, and will take effect on October 1, 2017. The following information must be mentioned:

•Name, first names, and date of birth;
•Capacity of person to liaise; and
•Address (physical and email), and telephone number.

The person to liaise can be the employer or a third person. During parliamentary discussions of the Act, it was confirmed that the person to liaise can be domiciled abroad.

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CANADA

The Canada-European Union Comprehensive Economic and Trade Agreement (CETA) came into force on September 21, 2017. This article discusses provisions relating to work and business provisions.

Chapter 10 of CETA contains various labor mobility provisions for citizens of the European Union (EU) who are seeking entry into Canada for work and/or business-related purposes.

The provisions of CETA apply to Canada and to EU members: Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Estonia, Ireland, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden, and the United Kingdom.

CETA is expected to facilitate the entry into Canada of three main categories of business visitors and professionals as described below:

Business Visitors

CETA adds to the existing Business Visitor provisions in the Immigration and Refugee Protection Regulations by extending the scope within which eligible candidates may seek entry into Canada for business purposes.

Under CETA, specific provisions have been established for Short-Term Business Visitors and for Business Visitors for Investment Purposes to enter Canada. Annex 10-D of CETA provides a detailed list of all the activities permissible for short-term business visitor entries into Canada, which differs from the business visitor activity list provided in the North American Free Trade Agreement (NAFTA). Notable examples under CETA include entry for business visitors for meetings and consultations, for training seminars, and for commercial transactions.

In addition to Short-Term Business Visitors, individuals can enter Canada as Business Visitors for Investment Purposes. A business visitor for investment purposes is described as “an employee in a managerial or specialist position who is responsible for setting up an enterprise but who does not engage in direct transactions with the general public and will not receive direct or indirect remuneration from a Canadian source.”

Individuals seeking to enter Canada under either of these Business Visitor categories can be granted entry into Canada for a maximum duration of 90 days in any six-month period.

Professionals

Two types of professionals can obtain Work Permits under CETA: contractual service suppliers and independent professionals (self-employed professionals).

To be eligible for these Work Permit categories, contractual service suppliers or independent professionals must be employed in the EU, their employer must not have an existing establishment in Canada, and the employer (or the individual in the case of an independent professional) must have a contract to provide services to a Canadian customer in Canada. Unlike Appendix 1603.D.1 of NAFTA, Annex 10-E of CETA includes a list of the service sectors within which contractual service suppliers or independent professionals can obtain a Work Permit. Thirty-seven service sectors are available to contractual service suppliers, including 17 for independent professionals. Most occupations found under these service sectors are limited to managerial and professional occupations (skill levels 0 and A of the National Occupational Classification (NOC) system).

These types of Work Permits are exempt from the standard Labour Market Impact Assessment (LMIA) process and can be issued for a maximum duration of 12 months. Work Permits under this category can be renewed at an immigration officer’s discretion.

With the exception of certain Romanian and Bulgarian citizens, eligible candidates will be able to apply for these LMIA-exempt Work Permits directly at a Canadian Port of Entry. Romanian and Bulgarian citizens who require a Temporary Resident Visa (TRV) to enter Canada will be able to benefit from the two-week processing for Work Permits under the Global Skills Strategy, an initiative launched by Immigration, Refugees and Citizenship Canada (IRCC) on June 12, 2017.

Key Personnel

  • Intra-Corporate (Company) Transferees and Graduate Trainees

CETA offers both a Senior Personnel and a Specialist Work Permit category akin to what is available under NAFTA as a Senior Manager or a Specialized Knowledge worker. However, CETA uniquely introduces a new Work Permit subcategory under the Intra-Corporate (company) stream specifically for Graduate Trainees. Under this subcategory, a candidate who is a citizen of the EU, who possesses a university degree, and who has been offered employment in a subsidiary or a branch of their employer abroad can obtain a one-time 12-month Work Permit to enter Canada for career development purposes or to receive training in the company’s business techniques and methods.

  • Investors

Another similarity between NAFTA and CETA is the Investor Work Permit category. Under the new provisions of CETA, an investor candidate who can obtain a Work Permit is someone who is employed by a company that “has committed or is in the process of committing a substantial amount of capital” into the Canadian economy and who will “establish, develop or administer the operation of an investment in a capacity that is supervisory or executive.”

It will also be possible for eligible candidates to apply for these LMIA-exempt Work Permits directly at a Canadian Port of Entry, with the same limitations described above for certain Romanian and Bulgarian citizens.

For more information on CETA (business visitors), see http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/business.asp. For more information on CETA (investors), see http://www.cic.gc.ca/english/resources/tools/temp/work/international/canada-eu/investor.asp.

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ITALY

Italy introduces a new type of tourist visa and launches a new online consular electronic Schengen visa form. This article also clarifies guidance on “business” and “work” activities for Schengen short-term assignments.

New tourist visa. The Italian ministry of foreign affairs has introduced a new category of tourist visa, “Turismo—Visita famiglia/amici” (TourismVisit to family/friends), for family members or friends of individuals residing in Italy who wish to visit them for a maximum period of 90 days within 180 days.

Eligibility requirements are similar to the standard tourist visa (e.g., evidence of means of support during the stay, health insurance), but the key factor is an invitation letter from the family member or friend in Italy, confirming availability to host the visa applicant.

New online Schengen visa form. The Italian government has launched a new Web portal, “E-@pplication,” through which Schengen visa applicants can now fill out the visa application form online. The new system only applies to short-stay visa applications—for up to 90 days in Schengen countries (Schengen visa).

Long-term visa applications will continue to be filed using the paper application form.

The government says the new system will ensure greater accuracy of the data entered in the application form and reduction of typos, resulting in an overall improvement in consular services in terms of efficiency, cost, and time optimization.

The online form is available in Italian and English at http://e-applicationvisa.esteri.it/. The process requires the applicant to fill out the online application form, sign it, and print the form containing the barcode, then take it to the relevant Italian consulate.

“Business” and “work” activities for Schengen short-term assignments. For short-term assignments (maximum of 90 days), the Schengen Visa Code and most European Union (EU) national laws do not clearly define which activities can be considered “business” (thus not requiring a work visa) and those which are considered “work.” Useful guidance, however, which has some international recognition, can be found in the Commentary to article 15 of the 2014 OECD Tax Model Convention, which set forth the rules for the international taxation of income from employment.

The Schengen Handbook for the processing of visa applications and the modification of issued visas contains a non-exhaustive list of supporting documents for business trips and for persons traveling for the purpose of carrying out paid activity: “The applicant must provide a work permit or any similar document as provided by the national legislation of the Member State where a paid activity is to be carried out, if applicable.”

Most, if not all, laws of Schengen Member countries do not contain a clear and specific definition of what can be considered “business.” This is a gray area, and many companies do not have clear instructions when they are sending their employees for short business assignments (i.e., for a maximum 90 days in every 180-day period) in the Schengen area.

Italy, for example, defines business visitors as “foreigners who intend to enter the country for commercial/economic purposes, to make contacts or conduct negotiations/arrange deals, for learning or verifying the use and functioning of capital goods purchased or sold under commercial and industrial cooperation agreements.”

Useful guidance—which has valid foundations at the international level (at least among OECD countries)—for assessing whether an activity can be considered “business” or be subject to obtaining a work permit can be found in the OECD Commentary to the new OECD Tax Model Convention. Section 8.14 of the commentary to Art. 15 of the Convention (which set forth the rules for the international taxation of income from employment) states that:

Where a comparison of the nature of the services rendered by the individual with the business activities carried on by his formal employer and by the enterprise to which the services are provided points to an employment relationship that is different from the formal contractual relationship, the following additional factors may be relevant to determine whether this is really the case:

• who has the authority to instruct the individual regarding the manner in which the work has to be performed;
• who controls and has responsibility for the place at which the work is performed;
• the remuneration of the individual is directly charged by the formal employer to the enterprise to which the services are provided …;
• who puts the tools and materials necessary for the work at the individual’s disposal;
• who determines the number and qualifications of the individuals performing the work;
• who has the right to select the individual who will perform the work and to terminate the contractual arrangements entered into with that individual for that purpose;
• who has the right to impose disciplinary sanctions related to the work of that individual;
• who determines the holidays and work schedule of that individual

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TURKEY

The United States and Turkey have mutually suspended certain visa services.

On October 8, 2017, the U.S. Department of State (DOS) announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas include business, tourist, student, and temporary work authorization visas. The suspension applies to diplomatic and official visas. Ambassador John Bass said, “[T]his suspension of services is not a visa ban on Turkish citizens. It’s a suspension of our consideration of new visa applications. If you have a valid visa, you can still travel to the United States. If you want to apply for a visa at another U.S. embassy or consulate outside of Turkey, you are free to do so.”

Ambassador Bass said the suspension was due to the arrest of a Turkish staff member of the U.S. diplomatic mission in Turkey. That staff member was allegedly linked to the U.S.-based cleric Muhammed Fethullah Gülen Hocaefendi, who Turkey has blamed for a failed coup, according to reports. Turkey has similarly suspended nonimmigrant visa services at its diplomatic facilities in the United States.

A statement posted by the U.S. Embassy & Consulates in Turkey said, “Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey.”

Immigrant visas have not been suspended.

As Turkey’s visa suspension for U.S. citizens is breaking news, there are a few clarifications and unresolved issues:

What is clear as of now:

  • No new visa, whether e-visa, student, AMS visa, or work visa, will be issued to a U.S. citizen, regardless of the consular post location, until further notice. The e visa website will not proceed once U.S. citizenship is selected.
  • Those with valid work or residence cards are currently still allowed entry.
  • Airlines outside of Turkey are already asking passengers to present a current visa, work or residence cards to proceed with check-in. If not shown, they will likely not be allowed to board.

There is no formal government statement yet regarding whether the visa must have been activated (or initially used) before October 8, 2017. Although initially officers in Sabiha Gokcen airport indicated the visa had to be used at least once before October 8, passport officers at the main airport (Ataturk Airport) in Istanbul verbally confirmed that initial entry on the visa before October 8 is not required. Observers remain cautiously optimistic that any U.S. citizen with a valid Turkish visa in their passport or e-visa can use it regardless of whether an initial entry already occurred.

Passport officers in Ataturk airport also informally communicated that U.S. citizens with an alternate nationality and passport would not be restricted from applying for a Turkish visa based on that passport.

What remains unknown:

It is unknown whether the Ministry of Labor or Interior Ministry (who issue work and residence cards) may follow up to issue their own bar for U.S. citizens. As of today, observers have seen no denials of work or residence permit applications (whether initial or renewal) of U.S. citizens. However, supervisors at the Work Permit Directorate have informally indicated that work permits for U.S. citizens are on hold for now and that the Directorate is anticipating firm guidance on this issue soon. However, it is clear that if the work permit application is not a domestic filing (i.e., filed while the U.S. citizen held a current residence permit) or a renewal, the applicant will not be able to finalize his or her work authorization to issuance of a work visa unless this diplomatic stalemate is resolved.

Ambassador Bass’s statement is at https://tr.usembassy.gov/ambassador-john-bass-statement-suspension-visa-services-turkey/. The statement from the U.S. Embassy & Consulates in Turkey is at https://tr.usembassy.gov/visas/. Additional information is at https://twitter.com/USEmbassyTurkey.

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Mid-October 2017 Immigration Update

Headlines:

  1. Kirstjen Nielsen Nominated as Secretary of Homeland Security – On October 12, 2017, President Donald Trump announced the nomination of Kirstjen Nielsen for the position of Secretary of Homeland Security.
  2. Lee Cissna Confirmed as Director of USCIS – The U.S. Senate confirmed Lee Francis Cissna as director of U.S. Citizenship and Immigration Services on October 5, 2017.
  3. Revised Form Allows Work Authorization and SSN Application Simultaneously – Foreign nationals in certain categories can now apply for work authorization and a social security number using a single form, the updated Form I-765, Application for Employment Authorization.
  4. Premium Processing Now Available for All Petitioners Seeking H-1B Visas – USCIS resumed premium processing on October 3, 2017, for all H-1B visa extension-of-stay petitions. Premium processing is now available for all types of H-1B petitions.
  5. USCIS Reminds About Immigration Services Available To Those Affected by Disasters – USCIS released a reminder about immigration services that may help people affected by unforeseen circumstances, including disasters such as hurricanes. USCIS said the measures may be available on a case-by-case basis upon request.
  6. DOL Changes iCERT System for H-2A and H-2B Programs – OFLC said new easy-to-understand steps and instructions “will serve to clarify regulatory filing requirements and improve the quality and consistency of H-2A and H-2B applications received for processing.”
  7. State Dept. Releases Cable on Revised Guidance re 90-Day Rule – The cable advises posts on revised guidance regarding the 90-day rule, formerly known as the “30/60 day rule.”
  8. U.S. Suspends Certain Visa Services in Turkey – The United States has suspended certain visa services in Turkey.
  9. Firm In The News…

 Details: 

  1. Kirstjen Nielsen Nominated as Secretary of Homeland Security 

On October 12, 2017, President Donald Trump announced the nomination of Kirstjen Nielsen for the position of Secretary of Homeland Security. Ms. Nielsen is currently the White House principal deputy chief of staff. She was John Kelly’s deputy when he served as President Trump’s first Secretary of Homeland Security, and came with Mr. Kelly to the White House when he became President Trump’s chief of staff.

According to a White House statement, Ms. Nielsen has experience in the areas of homeland security policy and strategy, cybersecurity, critical infrastructure, and emergency management. She is the first nominee for this position to have previously worked within the Department of Homeland Security, having served there in two administrations, first as senior legislative policy director for Transportation and Security Administration under President George W. Bush and then as Department of Homeland Security Chief of Staff under President Trump. Before joining the Trump administration, Ms. Nielsen founded a risk and security management consulting firm. She previously served as Special Assistant to the President and senior director for prevention, preparedness, and response on the White House Homeland Security Council under President George W. Bush, in addition to serving as a corporate attorney and as a congressional staff member.

Elaine Duke has been serving as acting Secretary of Homeland Security since April 2017.

The White House statement is at https://www.whitehouse.gov/the-press-office/2017/10/11/president-donald-j-trump-nominates-kirstjen-nielsen-secretary-homeland. Related remarks by the President are at https://www.whitehouse.gov/the-press-office/2017/10/12/remarks-president-trump-announcing-nomination-kirstjen-nielsen-secretary.

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  1. Lee Cissna Confirmed as Director of USCIS 

The U.S. Senate confirmed Lee Francis Cissna as director of U.S. Citizenship and Immigration Services on October 5, 2017. The vote was 55-43 in favor of Mr. Cissna’s confirmation.

Mr. Cissna most recently helped write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits. He also helped draft the American Job Creation and Investment Promotion Reform Act of 2015, which included an array of what have come to be known as EB-5 “integrity” measures.

Most recently, Mr. Cissna was Director of Immigration Policy in the Office of Policy of the U.S. Department of Homeland Security (DHS). Before serving in that position, Mr. Cissna served in USCIS’ Office of the Chief Counsel. Before that, he was an attorney in private practice in the immigration group of the law firm of Kaufman & Canoles in Richmond, Virginia. Mr. Cissna also served in the U.S. Department of State as a U.S. Foreign Service Officer stationed in Port-au-Prince, Haiti, and Stockholm, Sweden. Before that, he was an attorney in the international trade practice group at the law firms of Steptoe & Johnson LLP and Kirkpatrick & Lockhart LLP. Mr. Cissna graduated from Massachusetts Institute of Technology with a BS in physics and political science; Columbia University with an MA in international affairs; and Georgetown University Law Center with a JD.

Due to USCIS’s crucial role in granting many immigration benefits, the Alliance of Business Immigration Lawyers (ABIL) issued a press release urging Mr. Cissna to:

  • Encourage adjudicators to apply the statutes and regulations as written
  • Refrain from altering regulations through the promulgation of policy memoranda
  • Solicit stakeholder input before and not after changing existing or implementing new policy
  • As a benefits granting agency, return to an alien-based reading of the immigration statute and its implementing regulations

ABIL’s press release is at http://www.prweb.com/releases/2017/10/prweb14782675.htm. President Trump’s statement announcing his intent to nominate Mr. Cissna is at https://www.whitehouse.gov/the-press-office/2017/04/08/president-donald-j-trump-announces-intent-nominate-lee-francis-cissna.

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  1. Revised Form Allows Work Authorization and SSN Application Simultaneously for Certain Categories

Based on a new information-sharing partnership between U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA), foreign nationals in certain categories or classifications can now apply for work authorization and a social security number using a single form, the updated Form I-765, Application for Employment Authorization.

USCIS explained that to lawfully work in the United States, foreign workers in some categories and classifications need both an employment authorization document (EAD) from USCIS and a Social Security number (SSN) from the SSA. Previously, applicants needed to submit a Form I-765 to USCIS for an EAD and then submit additional paperwork in person at their local Social Security office to obtain an SSN.

The revised USCIS form includes additional questions that allow applicants to apply for an SSN or replacement card without visiting a Social Security office. As of October 2, 2017, USCIS began transmitting the additional data collected on the form to the SSA for processing. Applicants who receive their approved EADs from USCIS should receive their Social Security card from SSA within the following two weeks.

The USCIS notice is at https://www.uscis.gov/news/news-releases/new-uscis-form-streamlines-process-obtain-work-authorization-document-and-social-security-number-simultaneously

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  1. Premium Processing Now Available for All Petitioners Seeking H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) resumed premium processing on October 3, 2017, for all H-1B visa extension-of-stay petitions. Premium processing is now available for all types of H-1B petitions.

USCIS explained that when a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time. If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

In addition to the October 3 resumption of premium processing for H-1B visa extension of stay petitions, USCIS had previously resumed premium processing for H-1B petitions subject to the annual cap, petitions filed on behalf of physicians under the Conrad 30 waiver program, and interested government agency waivers and certain H-1B petitions that are not subject to the cap.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/premium-processing-now-available-all-petitioners-seeking-h-1b-visas.

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  1. USCIS Reminds About Immigration Services Available To Those Affected by Disasters 

U.S. Citizenship and Immigration Services (USCIS) released a reminder about immigration services that may help people affected by unforeseen circumstances, including disasters such as hurricanes. USCIS said the following measures may be available on a case-by-case basis upon request:

  • Changing nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. Failure to apply for the extension or change before expiration of the authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond the person’s control;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waivers due to an inability to pay;
  • Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Assistance if a person was unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card); and
  • Rescheduling a biometrics appointment.

USCIS said that those making such requests should explain how the impact of a hurricane (or other disaster) created a need for the requested relief.

The reminder, which includes information on how to make such a request, is at https://www.uscis.gov/news/alerts/immigration-help-available-those-affected-hurricanes.

  1. DOL Changes iCERT System for H-2A and H-2B Programs 

In an effort to provide better service and ensure that more complete H-2A and H-2B applications are submitted for review, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is releasing new enhancements to the iCERT System’s application filing module that will help employers or, if applicable, their authorized attorneys or agents identify and upload required documentation supporting their applications. OFLC said new easy-to-understand steps and instructions “will serve to clarify regulatory filing requirements and improve the quality and consistency of H-2A and H-2B applications received for processing.”

An employer seeking temporary labor certification under the H-2A or H-2B visa programs must submit an application and all required supporting documentation to the Department’s Office of Foreign Labor Certification (OFLC) either electronically using the iCERT System (http://icert.doleta.gov) or by U.S. mail.

Since 2013, the iCERT System has permitted employers or, if applicable, their authorized attorneys or agents to submit H-2A and H-2B applications online, electronically upload supporting documentation, and receive all communications during the processing of their applications via email. For fiscal year 2017, more than 83% of H-2A applications and approximately 94% of H-2B applications were submitted electronically through the iCERT System. OFLC said that electronic submission of all required documentation at the time of filing “facilitates a more efficient and consistent review of the employer’s application, and reduces the incidence of the OFLC Certifying Officer returning the incomplete application without further review or issuing a Notice of Deficiency to request missing documentation.”

OFLC strongly encourages employers or, if applicable, their authorized attorneys or agents to download and read the Quick Start Guides associated with these new system enhancements, available in Adobe PDF format: H-2A program or H-2B program.

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  1. State Dept. Releases Cable on Revised Guidance re 90-Day Rule 

The Department of State recently released the following cable to the field:

UNCLASSIFIED 17 STATE 95090

Sep 16, 2017

Subject: Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule

1.  SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.

The 90 day rule

2.  The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by: 1) engaging in unauthorized employment; 2) enrolling in a course of unauthorized academic study; 3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or 4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation. You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

3.  If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

The cable is at https://travel.state.gov/content/dam/visas/policy_updates/17%20STATE%2095090%20Change%20to%20INA%20212(a)(6)(C)(i)%20and%20Introduction%20of%2090%20Day%20Rule.pdf.

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  1. U.S. Suspends Certain Visa Services in Turkey 

The United States has suspended certain visa services in Turkey. On October 8, 2017, the U.S. Department of State (DOS) announced that it was suspending nonimmigrant visa services at its diplomatic facilities in Turkey. Nonimmigrant visas include business, tourist, student, and temporary work authorization visas. The suspension applies to diplomatic and official visas. Ambassador John Bass said, “[T]his suspension of services is not a visa ban on Turkish citizens. It’s a suspension of our consideration of new visa applications. If you have a valid visa, you can still travel to the United States. If you want to apply for a visa at another U.S. embassy or consulate outside of Turkey, you are free to do so.”

Ambassador Bass said the suspension was due to the arrest of a Turkish staff member of the U.S. diplomatic mission in Turkey. That staff member was allegedly linked to the U.S.-based cleric Muhammed Fethullah Gülen Hocaefendi. Turkey has blamed Mr. Gülen for a failed coup, according to reports. Turkey has similarly suspended nonimmigrant visa services at its diplomatic facilities in the United States.

A statement posted by the U.S. Embassy & Consulates in Turkey said, “Turkish citizens with valid visas may continue to travel to the United States. Turkish citizens are also welcome to apply for a nonimmigrant visa outside of Turkey whether or not they maintain a residence in that country. Please note that an applicant applying outside of Turkey will need to pay the application fee for services in that country, even if a fee has previously been paid for services in Turkey.”

Immigrant visas have not been suspended.

Ambassador Bass’s statement is at https://tr.usembassy.gov/ambassador-john-bass-statement-suspension-visa-services-turkey/. The statement from the U.S. Embassy & Consulates in Turkey is at https://tr.usembassy.gov/visas/. Additional information is at https://twitter.com/USEmbassyTurkey.

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  1. Firm In The News

Cyrus D. Mehta published Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’ on October 17, 2017.

David Isaacson published From Bad to Worse: Why We Should Not Let the Trump Administration’s Outrageous Immigration Demands Make the SUCCEED Act Seem Like a Reasonable Alternative on October 10, 2017

 

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