Headlines:

1. USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions

USCIS has begun accepting copies of negative consultation letters directly from labor unions relating to a current or future O nonimmigrant visa petition request.

2. USCIS Changes Filing Location for Petition to Remove Conditions on Residence

Petitioners must send Form I-751 to a USCIS Lockbox facility.

3. USCIS Extends Validity of Certain EADs for TPS Beneficiaries From Somalia, El Salvador

USCIS has automatically extended the validity of certain employment authorization documents issued under the temporary protected status designations of Somalia and El Salvador.

4. Attorney General Delivers Remarks to Largest IJ Class in History

Among other things, Mr. Sessions said more IJs will be added by the end of this calendar year, “with a goal of seeing a 50 percent increase in the number” of IJs since the beginning of the Trump administration.

5. Pro Bono: Visit to a Remote Detention Facility in Georgia

Sophia Genovese, an attorney with Cyrus D. Mehta and Associates, PLLC, traveled to a remote detention facility in Folkston, Georgia, along with several others to provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings.

6. William Reich—In Memoriam

Among his many professional affiliations and recognitions, Bill was a long-time member of the Alliance of Business Immigration Lawyers, where he was highly respected and beloved.

7. New Publications and Items of Interest

New Publications and Items of Interest

8. Member News

ABIL Member / Firm News

9. Government Agency Links

Government Agency Links Read more

Headlines:

 

1. Controversial DHS Draft Rule Proposes Changes to Public Charge Definition –

A controversial Department of Homeland Security (DHS) draft rule leaked to the media would make more immigrants inadmissible or deportable for receiving public benefits.

2. EB-1 Green Cards Backlogged Worldwide –

The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019.

3. USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors –

Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

4. New Publications and Items of Interest –

New Publications and Items of Interest

5. Member News –

Member News

6. Government Agency Links –

Government Agency Links

 

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Details:

1. Controversial DHS Draft Rule Proposes Changes to Public Charge Definition

A controversial Department of Homeland Security (DHS) draft proposed rule leaked to the media would make it more difficult for legal immigrants who have received public benefits to become U.S. citizens or permanent residents. Immigrants and their immediate family members, including U.S. citizen children, would be included. Currently, immigrants who are likely to become a burden on the government can already be excluded, but the draft rule would expand the definition of impermissible public benefits to include programs like certain Affordable Care Act subsidies, SNAP (formerly Food Stamps), subsidized benefits under Medicaid, and the Children’s Health Insurance Program.

Also included in the draft rule is a proposal to amend the extension of stay and change of status regulations to allow U.S. Citizenship and Immigration Services (USCIS) to consider whether an applicant is using or receiving, or likely to use or receive, public benefits. If implemented, the rule could affect an estimated 20 million immigrants.

The draft rule states that one of the principal problems with the current definition of public charge is that it tests whether the noncitizen is “primarily dependent on the government.” “Primary dependence entails a finding that an applicant for admission or adjustment of status is 50 percent or more dependent on the government. DHS does not believe that an alien must be 50 percent or more dependent on the government to be considered a public charge,” the draft rule notes. DHS is also proposing to define “public “benefit as “any government assistance in the form of cash, checks or other forms of money transfers, or instruments and non-cash government assistance in the form of aid, services, or other relief, that is means-tested or intended to help the individual meet basic living requirements such as housing, food, utilities, or medical care. This includes certain non-cash as well as cash public assistance.”

The draft rule also proposes to codify the “totality of the circumstances” standard used in making public charge determinations. DHS’s proposed standard would involve weighing all the positive and negative considerations related to a person’s “age, health, family status, assets and resources, financial status, education and skills, any required affidavit of support, and any other factor or circumstance that may warrant consideration in the determination.” DHS would also consider the noncitizen’s immigration status as part of this determination. The draft rule proposes that certain factors and circumstances would carry heavy weight. Otherwise, the weight given to an individual factor would depend on the particular facts and circumstances of each case and the relationship of the factor to other factors in the analysis. “For negative factors, some facts and circumstances may be mitigating while other facts and circumstances may be aggravating. Any factor or circumstance that decreases the likelihood of an applicant becoming dependent on public benefits is mitigating. Similarly, any factor or circumstance that increases the likelihood of an applicant becoming dependent on public benefits is aggravating,” the draft rule states.

The draft rule also would propose that USCIS consider a past request or receipt of a fee waiver as part of the financial status factor: “Requesting or receiving a fee waiver for an immigration benefit suggests a weak financial status. In general, a fee waiver is granted based on an alien’s inability to pay the fee. An inability to pay a fee for an immigration benefit suggests an inability to be self-sufficient,” the draft rule states.

The draft rule notes that some immigrant and nonimmigrant immigrant categories are exempt from public charge inadmissibility. According to the draft, DHS plans to propose listing these categories in the regulation. In addition, DHS proposes to list in the regulation the applicants whom the law allows to apply for a waiver of the public charge inadmissibility ground. DHS also proposes to exclude certain public benefits, such as public education, from consideration for purposes of this draft rule.

“Heavily weighted negative factors” under the draft rule would include a lack of employability; receipt or use of one or more public benefits; medical condition(s) without non-subsidized health insurance; a previous finding of inadmissibility or deportability based on public charge. Heavily weighted positive factors include significant income, assets, and resources. “DHS proposes to consider it a heavily weighted positive factor if the alien has financial assets, resources, support, or annual income of at least 250 percent of the [federal poverty guidelines].” Benefits excluded from consideration would include Federal Old-Age, Survivors, and Disability Insurance benefits; veterans’ benefits; government pension benefits, government employee health insurance; government employee transportation benefits; unemployment and worker’s compensation; Medicare benefits (“unless the premiums are partially or fully paid by a government agency); state disability insurance; in-state college tuition; government student loans; and small amounts of public benefits as defined in the draft rule.

The draft rule lists several categories of noncitizens who are exempt from admissibility based on public charge considerations, including refugees and asylees; Amerasian immigrants; Afghan and Iraqi Special Immigrants serving as translators with the U.S. Armed Forces; those applying for adjustment of status under the Cuban Adjustment Act; those adjusting status under certain sections of the Nicaraguan Adjustment and Central American Relief Act; and Haitians adjusting status under the Haitian Refugee Immigration Fairness Act.

The categories and programs could change under any final rule. Any changes would come out first as a proposed rule with time for comments, and it could be a year or longer before any new rule is finalized. Moreover, any final rule could be subject to litigation.

The Alliance of Business Immigration Lawyers recommends that immigrants comply with current rules in the meantime. For example, it appears that California residents are required to sign up for the Affordable Care Act. Even if that were to change under a final rule, they should comply with today’s rules.

The draft rule, which has not yet been published in the Federal Register, is available here.

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2. EB-1 Green Cards Backlogged Worldwide

The Department of State (DOS) announced recently that the worldwide limits on the highest-preference green cards, EB-1s, was reached for the fiscal year.

The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019. While the EB-1 backlog for Indian and Chinese nationals was already expected to last well beyond October, earlier comments from the DOS Visa Control and Reporting Division suggested that the EB-1 worldwide backlog was likely to clear in October with the arrival of the new fiscal year. However, USCIS is now creating demand for visas by prioritizing EB-1 green cards for in-person interviews, and the backlog is not expected to clear for several months.

The final action date for EB-1 worldwide (except for India and China) is expected to be cut off at or before September 30, 2018, and stay there through at least December. The final action date indicates the priority date at which new applications for permanent resident status will no longer be accepted and at which existing applications will cease to move forward through processing.

An October 2018 final action date would give petitioners who file their I-140s between now and the end of September an advantage—provided they are not Indian or Chinese nationals—because they would be able to proceed with filing their applications for permanent resident status if EB-1 does indeed move forward in the new fiscal year.

A number of factors appear to be influencing this ongoing backlog, including the requirement that all employment-based green card applicants must undergo a personal interview at the nearest USCIS District Office. As applicants queue up for interviews with no certain outcome, it muddies the waters by which the DOS judges visa availability for its monthly assessment.

The Visa Bulletin for September notes:

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

The implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY-2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

The Visa Bulletin also provides the following information on potential monthly movement in the employment-based categories for the next few months:

Employment First:
WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.

Employment Second:
Worldwide: Current for the foreseeable future.
China: Slow movement pending receipt of demand from recent advances
India: Up to two weeks

Employment Third:
Worldwide: Current
China: Up to three weeks
India: Slow movement pending receipt of demand from recent advances
Mexico: Current
Philippines: Minimal

Employment Fourth: Current for most countries
El Salvador, Guatemala, and Honduras: Little, if any forward movement
Mexico: Up to three months

Employment Fifth: The category will remain “Current” for most countries
China-mainland born: Up to one week
Vietnam: Steady forward movement

The above final action date projections…indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

The September 2018 Visa Bulletin

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3. USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence after considering feedback received during a 30-day public comment period. Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending, USCIS said.

On May 10, 2018, USCIS posted a draft policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised memo supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

“As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories,” said Director L. Francis Cissna. “USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws. People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”

USCIS noted that on August 7, 2018, the Department of Homeland Security released the FY 2017 Entry/Exit Overstay Report. The estimated total overstay rates were lower in FY 2017 for F and J nonimmigrants, but the F, M, and J categories continue to have significantly higher overstay rates than other nonimmigrant visa categories, USCIS noted, “supporting the need to address the calculation of unlawful presence for this population.” For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student “has not been out of status for more than five months at the time of filing,” USCIS said. Under the revised memo, the accrual of unlawful presence “is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.”

USCIS noted that “if the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act.” Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Some immigration attorneys believe the revision to the policy is insufficient, especially for those students who may have violated their status earlier. Other potential stumbling blocks may include errors by USCIS or an educational entity entering information into the SEVIS system inaccurately, or students in optional practical training who may be found to have violated status if their training is later found inconsistent with their degrees or who worked at third-party sites that inadequately supervised them.

USCIS plans to hold a national stakeholder engagement regarding this policy memo on August 23, 2018. To receive an invitation to this engagement, submit your email address here.

The USCIS announcement

The revised memo

Additional information on the revised memo

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4. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

• The latest immigration news is at http://www.abil.com/news.cfm.
• The latest published media releases include:
  • New Data Show Increase in H-1B Denials and RFEs
  • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
  • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
  • ABIL Members Note Immigration Threats for Employers in 2018
• ABIL is available on Twitter: @ABILImmigration.
• Recent ABIL member blogs are at http://www.abilblog.com/.

Organizations seeking non-lawyer and lawyer volunteers. Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is available here.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. More information is available here.

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:

• Statutes of Liberty: (new episode: A Prescription for Success: EB-1 for Physicians)
• Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
• Hidden Brain: The Huddled Masses and the Myth of America
• American Pendulum I

E-Verify free webinar listings

Advisories and tips:

• Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory
• How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, nytimes.com and aclu.org.
• Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.

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5. Member News

Klasko Immigration Law Partners was included in the 2018 Best Places to Work by the Philadelphia Business Journal. The firm was named a Best Place to Work for the third consecutive year. Klasko issued a statement: “Given the emotionally charged climate surrounding immigration, the firm is honored to have continued the tradition of consistently fostering a rewarding and positive work environment.”

Cyrus Mehta was quoted extensively by the Times of India in “Tough Policy for International Students in U.S.” The article is at timesofindia.com.

Mr. Mehta has authored a new blog entry, “USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants in Great Jeopardy.”

Sophia Genovese, of Cyrus D. Mehta and Associates, PLLC, has authored a new blog entry, “Indirect Refoulement: Why the U.S. Cannot Create a Safe Third Country Agreement with Mexico.”

Angelo Paparelli has authored a new blog entry, “California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ ‘FDNS’ Enforcement Officers.”

Stephen Yale-Loehr was quoted by ABC News in “First Lady Melania Trump Sponsored Parents’ Green Card Application.” He noted, “The most obvious way that they would have become green card holders is by being the parents of a U.S. citizen—i.e., Melania Trump.”

Mr. Yale-Loehr was quoted by the Miami Herald in “Venezuelan Military Deserter Faces Deportation Back to Government U.S. Calls Dictatorship.” Mr. Yale-Loehr, who has represented military deserters seeking asylum in the United States and co-directs the asylum clinic at Cornell Law School, said that in the past those who have fled the military from governments of U.S. adversaries have been more likely to gain asylum. “If you’re fleeing a government that the United States supports, like Canada, you’re more likely to lose asylum,” he noted. “But if you’re fleeing a government like Venezuela that the United States opposes then you’re more likely to win asylum, even if the facts are similar.”

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6. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

 

1. Supreme Court Upholds Latest Trump Entry Ban –

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

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

Under the new guidance, USCIS officers will now issue NTAs “for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.”

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

Effective August 6, 2018, DHS is eliminating the nonimmigrant visa exemption for certain Caribbean residents seeking to come to the United States as H-2A agricultural workers and the spouses or children who accompany or follow these workers to the United States. As a result of the interim final rule, these nonimmigrants must have both a valid passport and visa.

4. DHS Extends TPS for Yemen for 18 Months –

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

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

The agreement resolves a DOJ investigation concluding that Triple H unlawfully discriminated against qualified and available U.S. workers based on their citizenship status by preferring to hire temporary workers with H-2B visas.

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

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

7. Attorney General Rescinds 24 Guidance Documents –

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

8. New Publications and Items of Interest –

New Publications and Items of Interest

9. Member News –

Member News

10. Government Agency Links –

Government Agency Links

 

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Details:

1. Supreme Court Upholds Latest Trump Entry Ban

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

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

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

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

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

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

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

The Supreme Court’s opinion

Presidential Proclamation 9645

A related fact sheet from the Department of Homeland Security

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

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

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

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

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

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

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

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

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

The USCIS notice

The updated policy memorandum

The separate policy guidance issued concurrently

The 2011 NTA guidance

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

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

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

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

The DHS final rule

The parallel DOS final rule

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4. DHS Extends TPS for Yemen for 18 Months

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

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

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

The announcement

Further details about this extension for TPS, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice.

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

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

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

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

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

The DOJ’s press release

The Triple H settlement agreement

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

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

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

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

State Department Information on the Hilton Passport Project

Hilton Hotels and Resorts Information on the Hilton Passport Project

DOS separately announced “special passport acceptance events.” Most such events are for first-time applicants and children using Form DS-11 to apply. Those eligible to renew should do so by mail, DOS said.

A city-by-city list

The State Department announcement

For information on renewal by mail

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7. Attorney General Rescinds 24 Guidance Documents

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

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

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

The DOJ announcement

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8. New Publications and Items of Interest

Organizations seeking non-lawyer and lawyer volunteers. A group at Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in detention and deportation proceedings. The list, which is updated on an ongoing basis, is here.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. For more information, see DOJ website.

Alliance of Business Immigration Lawyers press releases. The latest published releases include:

• ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
• ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
• ABIL Members Note Immigration Threats for Employers in 2018

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:

• Statutes of Liberty: new episode, “A Prescription for Success: EB-1 for Physicians“
• Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
• Hidden Brain: The Huddled Masses and the Myth of America
• American Pendulum I

E-Verify free webinar listings are available here.

Advisories and tips:

• Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.  The advisory
• How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, nytimes.com and aclu.org.
• Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.

LexisNexis has released the latest edition of the Global Business Immigration Practice Guide. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

An overview of the immigration law requirements and procedures for over 20 countries;

• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. Recent ABIL member blogs are at http://www.abilblog.com/.

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9. Member News

The following were included in Chambers USA (bio links are included for ABIL members):

Nationwide – Firms

Klasko Immigration Law Partners, LLP

Seyfarth Shaw LLP

Nationwide – Ranked Lawyers

Robert Aronson (Fredrikson & Byron, P.A.)

Charles Foster (Foster LLP)

H. Ronald Klasko

Charles Kuck

Cyrus Mehta

Angelo Paparelli

Gregory Siskind (Siskind Susser PC)

William Stock (Klasko Immigration Law Partners, LLP)

Bernard Wolfsdorf

Stephen Yale-Loehr

 

By State – Firms

Cyrus D. Mehta & Partners, PLLC

Kuck Baxter Immigration

Maggio & Kattar

Miler Mayer, LLP

Pearl Law Group

Seyfarth Shaw

Wolfsdorf Rosenthal LLP

 

By State – Ranked Lawyers

Jim Alexander (John Nahajzer’s partner)

Sharon Cook Poorak (Angelo Paparelli’s partner)

David Fullmer (Mark Ivener’s partner)

Anna Gallagher (John Nahazjer’s partner)

David Isaacson (Cyrus D. Mehta & Partners, PLLC)

Sameer Khedekar (Julie Pearl’s partner)

James King (Angelo Paparelli’s partner)

Charles Kuck

Carolyn Lee (Miller Mayer, LLP)

Cyrus Mehta

Angelo Paparelli

Julie Pearl

Cora-Ann Pestaina (Cyrus Mehta’s partner)

Bernard Wolfsdorf

Stephen Yale-Loehr

The following were included in Who’s Who 2018 (bio links are included for ABIL members):

Thought Leaders (Corporate Immigration):

Enrique Arellano

Bernard Caris

Laura Devine

Kehrela Hodkinson

H. Ronald Klasko

Jelle Kroes

Charles Kuck

Gunther Mävers

Marco Mazzeschi

Cyrus Mehta

Bettina Offer

Angelo Paparelli

Nicolas Rollason

Gregory Siskind (Siskind Susser PC)

William Stock (Klasko Immigration Law Partners, LLP)

Karl Waheed

Bernard Wolfsdorf

Stephen Yale-Loehr

Listed (ABIL members and affiliated) (bio links are included for ABIL members):

Allison-Claire Acker

Jim Alexander

Erik Anderson

Enrique Arellano

Robert Aronson

Joseph Barnett

Meredith Barnette

Sophie Barrett-Brown

Dustin Baxter

Matthew Beatus

Naveen Rahman Bhora

Robert Blanco

Delisa Bressler

Jean-Philippe Brunet

Dagmar Butte

Bernard Caris

Barbara Jo Caruso

Maria Celebi

Ryan Chargois

Natasha Chell

Francis Chin

Eugene Chow

Steven Clark

Arnold Conyer

Philip Curtis

Laura Danielson

Davy Day

Ilda de Sousa

Dyann DelVecchio Hilbern

Robert Lee DeMoss II

Laura Devine

Meagan Dziura

Rami Fakhoury

Elise Fialkowski

Charles Foster

Todd Fowler

Hilary Fraser

Avi Friedman

David Fullmer

Bryan Funai

Anna Marie Gallagher

Steven Garfinkel

Ana Garicano Sole

Hiba Ghalib

Vic Goel

Avi Gomberg

Sander Groen

Elspeth Guild

Thomas Gunnerson

Geneviève Hénault

Janeen Hicks

Kehrela Hodkinson

Loan Huynh

Mark Ivener

Priscilla Jones

Jeff Joseph

Kirby Gamblin Joseph

Mounia Jrabi

Sameer Khedekar

Linda Kim

James King

H. Ronald Klasko

Jelle Kroes

Charles Kuck

Avalyn Castillo Langemeier

Vincent Lau

Carolyn Lee

Judy Lee

Hannah Little

Lisa Locke

Marcia Longdon

Robert Loughran

Dawn Lurie

Gabriele Mastmann

Gunther Mävers

Rosanne Mayer

Marco Mazzeschi

Cyrus Mehta

John Nahajzer

Christy Nguyen

Bettina Offer

Ariel Orrego-Villacorta

Isabelle Owston

Kristal Ozmun

Angelo Paparelli

Julie Pearl

Cora-Ann Pestaina

Sharon Cook Poorak

Hendrik Pretorius

John Quill

Elizabeth Quinn

William Reich

Kimberley Best Robidoux

Nicolas Rollason

Cliff Rosenthal

Nestor Rosin

Iñigo Sagardoy

Gina Sales-Cengiz

Ari Sauer

Gunnar Sievert

Gregory Siskind

Joel Stewart

William Stock

Lynn Susser

Rodrigo Tannus Serrano

Elissa Taub

Andrew Tingley

Yvonne Toy

Kim Vowden

Karl Waheed

Chris Watters

Robert White

Bernard Wolfsdorf

Stephen Yale-Loehr

Richard Yemm

Lisa Yu

Charles Kuck was quoted by PRI in “Deporting Asylum-Seekers Without Giving Them a Chance to Make Their Case Would Violate U.S. and International Laws.” He said, “The reason why asylum-seekers are exempted from immediate removal from the United States is because of our international treaty obligations. The United States has a long history, prior to the signing of the Refugee Convention in 1967, of turning away asylum-seekers. We turned away boatloads of Jews during World War II and we didn’t want to go back to that time.” The article is at pri.org.

Robert Loughran, Vic Goel, and Angelo Paparelli presented on “Multinational Executives, Managers and Specialists—No Longer Favored Categories” on a panel at the Council for Global Immigration 2018 Symposium in Arlington, Virginia, in June. They focused on the distinct challenges to the L-1A and L-1B categories and current enforcement activity related to compliance. For more information, see cfi.org.

Mr. Loughran was interviewed and quoted by the San Antonio Business Journal in “Volume of H-1B Tech Visas Drop in SA, But Demand for Help Remains High.” Specifically, he outlined the continued demand for foreign workers due to the low unemployment rate, and creative U.S. immigration strategies used by employers due to the H-1B cap. The article is at bizjournals.com.

Mr. Loughran recently participated in the State Bar of Texas meeting of the Committee on Laws Relating to Immigration & Nationality, which included a report from the Assistant U.S. Attorney for the Southern District of Texas in Houston responsible for prosecuting false claims to U.S. citizenship, denaturalization, smuggling, unlawful entry, and illegal reentry.

Along with Bryan Funai and Mr. Paparelli, Mr. Loughran recently presented to the Alliance of Business Immigration Lawyers (ABIL) on the immigration impact of mergers and acquisitions and how practitioners can prepare to address immigration issues in advance of corporate reorganizations.

Mr. Loughran recently presented on “Adapting to New Procedures Under the ‘Buy American, Hire American’ Executive Order” at the University of Texas System Benefits & Human Resources Conference.

Mr. Loughran was interviewed and quoted by the Houston Chronicle in “Fate of Visa Program for Startups in Limbo,” commenting on the Trump administration’s efforts to rescind the International Entrepreneur Rule and its impact on venture capitalists and individual entrepreneurs. The article is at houstonchronicle.com.

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

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

Mr. Mehta and Sophia Genovese have co-authored a new blog entry. “Threading the Needle: Challenging Trump’s Travel Ban Despite Trump v. Hawaii” is at The Insightful Immigration Blog.

David Isaacson of Mr. Mehta‘s office has authored a new blog entry, “Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present“.

Angelo Paparelli has authored a new blog entry, “From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police“.

Stephen Yale-Loehr will talk about “Our Broken Immigration System and How to Fix It” at Dartmouth’s Osher Lifelong Learning Institute in Hanover, New Hampshire on August 2, 2018, as part of a series, “Our Divided Country: How to Find Common Ground.” For more information or to register, see dartmouth.edu.

Mr. Yale-Loehr was quoted by Reuters in “U.S. Judge Says Government Must Reunite Immigrant Families or Face Penalties.” Mr. Yale-Loehr said fines amount to a “slap on the wrist” since the government would be paying itself, but a finding of contempt of court would be embarrassing and might lead to compliance. “Nobody likes to be held in contempt of court,” he said. The article is at nasdaq.com.

Mr. Yale-Loehr was quoted by Voice of America in “Proposed [Public Charge] Rule May Affect U.S. Legal Immigration.” Mr. Yale-Loehr said, “This is not a new issue. The United States has prohibited the entry of paupers and people likely to become public charges since 1882. Most potential immigrants must show that they earn at least 125 percent of the federal poverty income guidelines before they are granted green cards, or have sponsors assume financial responsibility for them.” He also noted that of the more than 1 million people granted permanent residence in fiscal year 2017, only 3,237 were found ineligible based on public charge concerns. The article is here.

Mr. Yale-Loehr was quoted by USA Today in “How a Judge Can Punish Trump Administration Over Separated Families.” Legal experts say the judge could threaten contempt of court and jail time against lower-ranking members of federal agencies, could order hefty fines, or could order the agency heads to appear in court as a form of public shaming. He said the somewhat symbolic finding of contempt of court, without much punishment attached, may be the limit of the judge’s ruling. “The court of public opinion, and the admonition by the judge, may be about as much as anyone can practically do at this point.” The article is at usatoday.com.

Mr. Yale-Loehr was quoted by numerous media outlets regarding the Supreme Court’s entry ban decision, including:

• Forbes.com
• CNN
• Associated Press (numerous papers)
• Marketplace.org
• WCBS
• Globe and Mail
• Financial Times
• CNBC
• Huffington Post (picked up by Yahoo)
• USA Today
• San Francisco Chronicle
• Raw Story
• Univision
• Agence France-Presse/Euronews

Mr. Yale-Loehr was quoted by several media outlets about the prospects for abolishing the U.S. Immigration and Customs Enforcement agency:

• USA Today
• Politifact
• Crime Report
• NBC.com
• AFP (many newspapers, including the Daily Mail in the UK)
• Business Journals

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

 

1. DHS Announces Additional 15,000 H-2B Temporary Nonagricultural Worker Visas for FY 2018 –

Secretary Nielsen said there are not enough qualified, U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of U.S. businesses in FY 2018. This allocation is in addition to the 66,000 visas already issued this year.

2. DHS Proposes Ending International Entrepreneur Program –

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

3. USCIS Reminds F-1 Students of Automatic Termination of OPT If They Transfer or Begin Study at Another Educational Level –

USCIS reminded F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document.

4. Re-Registration Period Now Open for Nepal TPS Beneficiaries –

Current beneficiaries of temporary protected status under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register by July 23, 2018.

5. USCIS Corrects Biometric Services Appointment Notices with Wrong Application Support Center Locations –

USCIS plans to mail new biometric services appointment notices to petitioners who received incorrect notices and did not reschedule their appointments or appear as walk-ins.

6. Guidance Revised on EB-5 Immigrant Investor Cases Involving Tenant Occupancy; Adjustment of Status Interview Guidelines/Waiver Criteria –

USCIS said it will no longer accept tenant-occupancy models for filings, and announced the same day that it is updating guidance on adjustment of status interview guidelines and interview waivers.

7. USCIS Recalls Incorrectly Dated Green Cards for Spouses of U.S. Citizens –

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

8. New Publications and Items of Interest –

New Publications and Items of Interest

9. Member News –

Member News

10. Government Agency Links –

Government Agency Links

 

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Details:

1. DHS Announces Additional 15,000 H-2B Temporary Nonagricultural Worker Visas for FY 2018

Secretary of Homeland Security Kirstjen M. Nielsen announced on May 25, 2018, that an additional 15,000 H-2B temporary nonagricultural worker visas will be available for fiscal year 2018. Secretary Nielsen said she determined that there are not enough qualified, U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of U.S. businesses in FY 2018. This allocation is in addition to the 66,000 visas already issued this year. She said she made this decision after consulting with Secretary of Labor Alexander Acosta, members of Congress, and business owners.

The move follows statements President Donald Trump made at a rally on April 28, 2018, during which he said, “The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

Secretary Nielsen said, “The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed. I call on Congress to pass much-needed reforms of the program and to expressly set the number of H-2B visas in statute. We are once again in a situation where Congress has passed the buck and turned a decision over to [the Department of Homeland Security (DHS)] that would be better situated with Congress, who knows the needs of the program. As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

Congress set the annual H-2B visa cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas from the first half of that fiscal year, is available starting April 1 through September 30. On February 27, 2018, USCIS determined that it had received a sufficient number of H-2B petitions to meet the full FY 2018 statutory cap of 66,000.

In the FY 2018 omnibus spending bill, Congress delegated authority to the Secretary to increase the number of temporary nonagricultural worker visas available to U.S. employers through September 30, just as it did in the FY 2017 omnibus bill.

Details on eligibility and filing requirements are included in USCIS guidance. MAY 31, 2018, FEDERAL REGISTER RULE.  THE EARLIER DHS STATEMENT.

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2. DHS Proposes Ending International Entrepreneur Program

The Department of Homeland Security (DHS) has proposed a rule to end the International Entrepreneur Program, which allows certain foreign entrepreneurs to be considered for parole to develop and build start-up businesses in the United States. The rule DHS wants to end is known as the International Entrepreneur Rule (IE Final Rule).

The idea of helping international entrepreneurs began several years ago. In January 2017, the Obama administration published the IE Final Rule. It was supposed to take effect in July 2017. In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the Department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.

DHS is now proposing to eliminate the IE Final Rule because the agency “believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.”

DHS noted that by statute, it has discretionary authority to parole individuals into the United States temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. After reviewing DHS parole programs in accordance with an executive order, “Border Security and Immigration Enforcement Improvements,” issued on January 25, 2017, DHS is proposing to remove regulations published as part of the IE Final Rule. DHS said it concluded that the IE Final Rule “created a complex and highly structured program that was best established by the legislative process rather than relying on an unorthodox use of the Secretary’s authority to ‘temporarily’ parole, in a categorical way, aliens based on ‘significant public benefit.’ “

DHS also said that the Immigration and Nationality Act already provides for visa classifications that enable certain entrepreneurs to start businesses and work in the United States, such as the E-2 nonimmigrant classification and the EB-5 immigrant classification. DHS said it “is committed to reviewing all existing employment-based immigrant and nonimmigrant visa programs to ensure program integrity and protect the interests of U.S. investors and workers.”

The National Venture Capital Association (NVCA) issued a press release calling the move a “major mistake for U.S. job creation and innovation.” NVCA noted that the delay and announced intention to rescind the IE Final Rule “comes at a time of increased global competition for entrepreneurship. The U.S. share of global venture capital investment has dropped precipitously from 90% twenty years ago to 54% last year. Countries like Canada, France, Germany, and Singapore have put in place ‘startup visas’ to bring new companies to their shores. The world’s best immigrant entrepreneurs now have many choices on where to start a new enterprise.”

MAY 25, 2018 DHS ANNOUNCEMENT

MAY 29, 2018 FEDERAL REGISTER RULE PROPOSING ELMINATION OF THE PROGRAM

NVCA PRESS RELEASE

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3. USCIS Reminds F-1 Students of Automatic Termination of OPT If They Transfer or Begin Study at Another Educational Level

U.S. Citizenship and Immigration Services (USCIS) recently reminded F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD).

Although authorization to engage in OPT ends upon transferring to a different school or changing educational level, students in F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status, USCIS said. These requirements include not working with a terminated EAD, because termination means that students are no longer authorized to work in the United States. Working in the United States without authorization “has serious immigration consequences, including removal from the country and bars on reentry. Furthermore, remaining in the United States in violation of lawful nonimmigrant status could lead to an accrual of unlawful presence which includes another set of penalties under the Immigration and Nationality Act,” USCIS warned.

Currently, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) informs USCIS of the termination date, and the OPT termination is automatic under current regulations, USCIS noted. USCIS said it has updated its systems and will begin to enter the EAD termination date into these systems after being notified by SEVP. USCIS will notify affected students and provide them with an opportunity to correct any errors in the record via their designated school official.

The OPT program grew 400% from 2008 to 2016, according to a Pew Research Center analysis of U.S. Immigration and Customs Enforcement data. Students from India made up the largest portion of OPT permit holders during the period analyzed, with 441,400 permit holders, a 30% share of the total number. Students from China came second at 313,500 (21%), followed by South Koreans at 90,800 (6%).

USCIS ANNOUNCEMENT

PEW RESEARCH CENTER REPORT

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4. Re-Registration Period Now Open for Nepal TPS Beneficiaries

U.S. Citizenship and Immigration Services (USCIS) announced on May 22, 2018, that current beneficiaries of temporary protected status (TPS) under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register by July 23, 2018.

All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an EAD by submitting a completed Form I-765, Application for Employment Authorization, at the time they file Form I-821, or separately at a later date.

USCIS said it will issue new EADs with a June 24, 2019, expiration date to eligible Nepali TPS beneficiaries who timely re-register and apply for EADs. Given the time frames involved with processing TPS re-registration applications, however, USCIS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on June 24, 2018. Accordingly, USCIS has automatically extended the validity of EADs issued and currently valid under the TPS designation of Nepal for 180 days, through December 21, 2018.

Nepal’s TPS designation will end on June 24, 2019.

USCIS ANNOUNCEMENT

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5. USCIS Corrects Biometric Services Appointment Notices with Wrong Application Support Center Locations

U.S. Citizenship and Immigration Services (USCIS) announced on May 23, 2018, that due to a processing error on May 4, 2018, USCIS mailed a number of biometric services appointment notices with incorrect Application Support Center (ASC) locations to petitioners who filed Form
I-751, Petition to Remove Conditions on Residence.

The affected notices have a date of 05/04/2018 and a case type of “I-751 – PETITION TO REMOVE CONDITIONS ON RESIDENCE.” The notices tell petitioners to appear for their biometric services appointments starting the week of May 21, 2018, at ASCs located out of the normal geographic area.

On June 8, 2018, USCIS plans to mail new biometric services appointment notices to petitioners who received incorrect notices and did not reschedule their appointments or appear as walk-ins at the closest ASCs to their locations.

USCIS released the following instructions in the meantime:

If you received an incorrect appointment notice, you do not need to travel out of the normal area to attend your biometric services appointment. Instead, you have two options:

• Wait until you receive a new biometric services appointment notice with the correct ASC and new appointment date. You can confirm that we sent a new appointment notice by checking Case Status Online.
• Go to the ASC closest to you as a walk-in. However, you may experience a long wait time and may not be seen that day. You can find the closest ASC by using the ASC locator on uscis.gov/about-us/find-uscis-office.

THE USCIS ANNOUNCEMENT

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6. Guidance Revised on EB-5 Immigrant Investor Cases Involving Tenant Occupancy; Adjustment of Status Interview Guidelines/Waiver Criteria

USCIS announced on May 16, 2018, that it is revising guidance on immigrant investor (EB-5) cases involving tenant occupancy. Previously, the USCIS Policy Manual allowed for tenant-occupancy methodologies used by some petitioners to show that their capital created, or will create, 10 indirect jobs. USCIS said it determined that “these methodologies do not provide reasonable predictions of indirect job creation and are no longer considered reasonable methodologies to support economically or statistically valid forecasting tools.”

USCIS said it therefore will no longer accept tenant-occupancy models for filings. USCIS said it will continue to “give deference to Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, “when directly related to previously approved projects, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.”

USCIS also announced the same day that it is updating guidance on adjustment of status interview guidelines and interview waivers by:

• Clarifying that USCIS will interview all adjustment of status applicants unless the agency waives the interview;
• Removing employment-based and fiancé(e)-based adjustment cases from the list of types of adjustment of status cases in which USCIS might waive the interview; and
• Editing the guidance on relocating cases for adjustment interviews to be consistent with the updated list of cases in which USCIS might waive the interview.

THE USCIS ANNOUNCEMENT

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7. USCIS Recalls Incorrectly Dated Green Cards for Spouses of U.S. Citizens

On May 14, 2018, USCIS began recalling approximately 8,500 permanent resident cards (“green cards”) due to a production error. The green cards were for approved Forms I-751, Petition to Remove Conditions of Residence, for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and were mailed between February and April 2018.

USCIS said it was sending notices to individuals who received the incorrect green cards and to their attorneys of record, if any. The affected individuals should return their incorrect green cards to USCIS in the provided pre-paid envelope within 20 days of receiving the notice, or return their cards to USCIS field offices, USCIS said. USCIS will send replacement green cards within 15 days of receiving the incorrect card.

The recall does not affect these green card holders’ status as lawful permanent residents. If affected individuals need to travel internationally or prove their lawful permanent residence while they wait for a replacement card, they may call the USCIS Contact Center at 800-375-5283 to determine if they need additional proof, the agency said.

Spouses of U.S. citizens may apply for naturalization after three years of permanent residence and must meet other requirements. The incorrect date on these cards could lead applicants to wait longer than necessary to apply to become U.S. citizens, USCIS said.

THE USCIS ANNOUNCEMENT

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8. New Publications and Items of Interest

Alliance of Business Immigration Lawyers press releases. The latest published releases include:

• ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
• ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
• ABIL Members Note Immigration Threats for Employers in 2018

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:

• Statutes of Liberty
• Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
• Hidden Brain: The Huddled Masses and the Myth of America
• American Pendulum I

E-Verify free webinar listings

Advisories and tips:

• Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. THE ADVISORY
• How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTIMES and ACLU.ORG.
• Listings and links to cases challenging executive orders, and related available pleadings, are available at LAWFAREBLOG.COM.

LexisNexis has released the latest edition of the Global Business Immigration Practice Guide. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. Recent ABIL member blogs are available.

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9. Member News

The following ABIL members, partners, and associates will be speaking at the American Immigration Lawyers Association’s conference in San Francisco, California, in June 2018:

AILA Global Migration Section (June 12):

Enrique Arellano: Navigating Ethical Pitfalls Around the World

Bernard Caris: A European Work Permit—Dream or Reality? Implementation of the EU Intra-Corporate Transfer Directive

Maria Celebi: Pulse of Global Immigration in the Golden City

Laura Devine: Recognizing Dangers in the Fog: Recognizing and Managing the Red Flags of Inadmissibility

Elise Fialkowski*: Recognizing Dangers in the Fog: Recognizing and Managing the Red Flags of Inadmissibility

Ana Garicano Sole: Beyond the Visas: Avoiding tax and employment law pitfalls

Marco Mazzeschi: No Longer Business as Usual: The Future of the Global Business Traveler

Ariel Orrego-Villacorta: Pulse of Global Immigration in the Golden City

Karl Waheed: A European Work Permit—Dream or Reality? Implementation of the EU
Intra-Corporate Transfer Directive

AILA Annual Conference (June 13–16):

Robert Aronson*: Selling an Immigration Law Practice

Lily Axelrod*: Hot Topics in Asylum Jurisprudence

Delisa Bressler*: Employment-Based Immigration: Preference Categories

Dagmar Butte: “Old Fashioned” Immigration in a Modern World

Maria Celebi: Taking a Sabbatical: Options for LPRs Planning to Move Abroad

Philip Curtis: Embrace Technology in Your Immigration Practice: Work Faster and Lower Costs

Laura Devine: Taking a Sabbatical: Options for LPRs Planning to Move Abroad

Leslie Ditrani*: To Err Is Human: Addressing Mistakes Made in Business Immigration Cases

Elise Fialkowski*: Counseling Corporate Clients on Employment and Training Opportunities Within F and J

Hilary Fraser*: Building a Profitable Practice

Avi Friedman*: Consular Processing 2: Successes at the Post

Anna Gallagher*: Removal 101

Kehrela Hodkinson: Counseling Clients After NIV Petition Approval

David Isaacson*: Common Non-Criminal Inadmissibility Issues in Today’s Turbulent Climate

H. Ronald Klasko: The Current State of the EB-5 Program

Charles Kuck: The Future of Business Immigration: Storm Clouds on the Horizon

Vincent Lau: U.S. Department of Labor (DOL) Open Forum

Vincent Lau: PERM BALCA and FAQ Review

Carolyn Lee*: The Current State of the EB-5 Program

Loan Huynh*: Anatomy of an H–2B: Using the H-2B as an Alternative to the H–1B

Cyrus Mehta: To Err Is Human: Addressing Mistakes Made in Business Immigration Cases

Angelo Paparelli: Worksite and Mergers & Acquisitions

Cora-Ann Pestaina*: Labor Cert. 102: Recruitment

Hendrik Pretorius*: Practice Innovation Part 1: Today’s Practice Automation Tools

Ari Sauer*:  Doing the Math: Addressing the Complexities of the CSPA

Debra Schneider*: Managing and Winning RFEs and NOIDs

Gregory Siskind*: Practice Innovation Part 1: Today’s Practice Automation Tools

William Stock*: Practice Innovation Part 2: Changing Delivery Models

Lynn Susser: Anatomy of an H–2B: Using the H–-2B as an Alternative to the H–1B

Elissa Taub*: Advanced Strategies in Physician Cases

Bob White*: PERM BALCA and FAQ Review

David Wilks*: Immigration 101: Essential Immigration Terms and Concepts

Bernard Wolfsdorf: NIV Investor to Green Card

Stephen Yale-Loehr: To Err Is Human: Addressing Mistakes Made in Business Immigration Cases

* = Partner or associate of ABIL Member

MORE INFORMATION ON THE AILA CONFERENCE

David Isaacson, of Cyrus D. Mehta and Associates, PLLC, has authored a new blog entry, “Those Who Cannot Remember the Past: How Matter of Castro-Tum Ignores the Lessons of Matter of Avetisyan.”

Jeff Joseph, of Joseph Law Firm, spoke on federal court jurisdiction at the Federal Bar Association’s immigration law section conference, and will speak at the American Immigration Lawyers Association’s Employer Compliance and Worksite Enforcement Conference in Boston, Massachusetts, in August 2018. More information on the latter conference.

Charles Kuck was quoted by the Sacramento Bee in “Deportation Protection Restored in High-Profile Case.” In that case, federal immigration authorities agreed to renew the Deferred Action for Childhood Arrivals status of Jessica Colotl, a Mexican woman whose case made national headlines eight years ago when she was a Georgia college student. Mr. Kuck, who has represented Ms. Colotl since 2010, said, “Jessica is exactly who she appears to be—kind, honest, and the type of person we want and need in the United States. When the government violates people’s rights, no one should be afraid to stand up for what is right and just. Jessica stood up, and she was right. Today, justice prevailed.” SACRAMENTO BEE ARTICLE

Cyrus Mehta has authored a new blog entry, “State Department’s Change to Public Charge Guidance in Foreign Affairs Manual Will Result in Many More Visa Refusals“.

Angelo Paparelli was quoted by the New York Times in “Trump’s Crackdown on Students Who Overstay Visas Rattles Higher Education.” Mr. Paparelli said, “For immigration attorneys, because time is of the essence, if the three- or 10-year bar is triggered, there’s not much you can do. He noted that it is common for students to fall out of compliance while awaiting a new visa or transitioning to a new one. Students who use visas to stay and work after completing their degrees are particularly vulnerable, and their violations could be applied retroactively, and subject them to an automatic ban, he said. “The effect of this change will be felt by businesses. It will foreclose what have been standard approaches to transitioning from student to worker, whether that’s on an H-1B or some other work visa category, or the transition to permanent residence,” he said.  NY TIMES ARTICLE

Bernard Wolfsdorf and Joey Barnett from Wolfsdorf Rosenthal LLP will host a webinar to discuss the hot topics in EB-5 this year. The webinar, to be held June 6, 2018, at 12 noon PST/3 pm EST, has been approved for 1 hour of California Bar CLE credit. For more information or to register, see WOLFSDORF.COM.

Stephen Yale-Loehr was quoted by Raw Story in “Here’s What Racist Lawyer Bro Aaron Schlossberg Could Do If He Really Wanted To Prove He’s Sorry.” “A sanctuary designation doesn’t mean much. It doesn’t prevent ICE officials from entering that city or state,” Mr. Yale-Loehr noted.  The article is at RAWSTORY.COM.

Mr. Yale-Loehr was quoted by Politico in “DACA’s Legal Labyrinth.” Commenting on various options for how the DACA court cases may play out, Mr. Yale-Loehr said the liberal 9th Circuit—urged by the Supreme Court to act “expeditiously” in the California cases—could rule by the end of the summer to keep DACA alive, prompting the administration to petition the Supreme Court. Oral arguments could then be heard in early spring 2019, and a high court decision handed down next June. This timetable, he conceded, “is very speculative.” The article is at POLITICO.COM.

Mr. Yale-Loehr was quoted by the Christian Science Monitor in “In Boston, Pushback on Controversial ICE Tactic Separating Families.” Self-reporting immigrants make tempting targets for enforcement, he noted: “If you want to increase your numbers quickly, arresting people who turn up at [immigration services] are low-hanging fruit. You know what time they’re going to be there.” The article is at CSMONITOR.COM.

Mr. Yale-Loehr was quoted by FactCheck.org in “FactChecking Trump’s Nashville Rally.” President Trump claimed: “Think of it, a lottery. You pick people. Now, let me ask you. So these countries that are sending people in—do you think they are sending us their finest?” Mr. Yale-Loehr noted, “Among other things, the consular officer must make sure the individual is not ‘inadmissible.’ This means that the person has not committed a crime, doesn’t have a serious health problem, isn’t a terrorist, hasn’t committed fraud, and hasn’t overstayed in the U.S. before.” The article is at FACTCHECK.ORG.

Mr. Yale-Loehr was cited by the Huffington Post in “These Indian Women’s Lives Are Frozen By American Immigration Laws.” He noted that the Department of Homeland Security is putting final touches on a proposal to rescind the H-4 EAD program. The rule is expected to be published in June, after which it will go through a series of reviews and clearances that could take months, he said. The article is at HUFFINGTONPOST.COM.

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

 

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

The letter does not specify how these definitions will be revised or when the proposed regulations will be issued.

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

U.S. Supreme Court Justice Neil Gorsuch voted with the Democrat-appointed justices in a 5-4 decision in Sessions v. Dimaya holding that a federal law permitting the removal of foreigners guilty of a “crime of violence” is unconstitutionally vague.

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

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

4. USCIS Announces Convictions in Two Immigration Fraud Cases –

USCIS recently announced convictions in two cases related to immigration fraud.

5. ABIL Global: Turkey –

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

6. New Publications and Items of Interest –

New Publications and Items of Interest

7. Member News –

Member News

8. Government Agency Links –

Government Agency Links

 

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Details:

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

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

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

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

The USCIS letter is available here.

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

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

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

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

The Supreme Court’s opinion

The DHS Press Secretary’s statement

The ICE Deputy Director’s statement

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

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

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

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

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

The settlement agreement is at the Department of Justice website. The DOJ press release is also available here.

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4. USCIS Announces Convictions in Two Immigration Fraud Cases

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

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

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

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

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

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

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

The USCIS announcement is available here.

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5. ABIL Global: Turkey

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

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

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

KEP Registration Generally

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

KEP Registration for MOL/Turkish Work Permits

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

Problems with the KEP System

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

For further information, see this page.

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6. New Publications and Items of Interest

New H-1B study. The National Foundation for American Policy (NFAP) has released a new study on H-1B visas in 2017-18. NFAP noted that more H-1B visas are going to U.S. technology companies, reflecting the strong demand for high-skilled talent in the U.S. economy, and fewer visas are being used by Indian-based companies, which continues a recent trend. NFAP said new USCIS data appears to undermine the argument that the federal government should impose new restrictions on H-1B visas and keep the visas at a low annual limit of 85,000 for companies, which equals only 0.05% of the U.S. labor force of 160 million.

H-1B temporary visas “are important as they are typically the only practical way a high-skilled foreign national working abroad or an international student educated in the United States can work long-term in America,” NFAP notes. Four of 6 high-profile U.S. tech companies—Amazon (2,515), Microsoft (1,479), Intel (1,230), and Google (1,213) —were among the top 10 employers for approved H-1B petitions for initial employment in FY 2017. Facebook, with 720 new H-1B initial petitions approved in FY 2017, an increase of 248, or 53%, and Apple, with 673, a 7% increase, were 14th and 15th on the list. Amazon had the second highest number of H-1B petitions approved for initial employment in FY 2017, with an increase from 1,416 in FY 2016 to 2,515 in FY 2017. NFAP said that Amazon’s use of H-1Bs reflects its increased growth in the United States, particularly in research and development. Further, NFAP noted that the top H-1B employers among high-profile tech companies match up with the U.S. companies that spend the most on research and development. A report on the study is at The National Foundation for American Policy website.

Immigration threats for employers. A recent Alliance of Business Immigration Lawyers press release, “ABIL Members Note Immigration Threats for Employers in 2018,” is available here.

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:

• Statutes of Liberty
• Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
• Hidden Brain: The Huddled Masses and the Myth of America
• American Pendulum I

E-Verify free webinar listings are at the Department of Homeland Security E-Verify website.

Advisories and tips:

Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory is at the National Immigration Project website.

How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, the New York Times and the ACLU.

Listings and links to cases challenging executive orders, and related available pleadings, are available at the Lawfare blog.

LexisNexis has released the latest edition of the Global Business Immigration Practice Guide. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. Recent ABIL member blogs are HERE.

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7. Member News

H. Ronald Klasko has launched a new podcast series, “Statutes of Liberty.” The podcasts are aimed at unraveling the ins and outs of American immigration policy, from the issues of today to the historic basis for laws already in place. Recent episodes focused on the rise of the Indian EB-5 market, trends in the H-1B visa program, a look at employer and employee concerns about the H-1B visa program, and how obtaining Grenadian citizenship and the E-2 visa may be a way to overcome China’s EB-5 visa backlog. The podcasts are available here.

Charles Kuck commented on the recent Supreme Court crime of violence case, in Spanish on CNN.

Cyrus Mehta and Stephen Yale-Loehr were quoted in the Times of India regarding H-1B lobbying.

Mr. Mehta was a guest on the Brian Lehrer show, “Brian Talks New York.” The topic was “Trump vs. New York: Immigration Update.” The video and a description are at the Brian Lehrer show website.

Mr. Yale-Loehr was quoted by Syracuse.com in “Upstate NY Farmer Says ICE Officers Stormed His Farm Without a Warrant, Cuffed Him, Threw His Phone.” Mr. Yale-Loehr noted, “ICE needs a warrant. If they go on someone’s property without one, they are violating the law.” The article is at Syracuse.com.

Mr. Yale-Loehr was quoted by the South China Morning Post in “U.S. Developers Feel Pinch as Chinese Investors Pull Back From EB-5 Programme That Offers Green Card as a Reward.” Mr. Yale-Loehr said it “is bad that fewer Chinese are applying because of the backlog. It is hurting the industry, which means it is also hurting US workers.” Without meaningful changes, he said, “it’s never going to be the heyday that we saw.” The article is available in the South China Morning Post.

Mr. Yale-Loehr was quoted in the following publications:

CNN, re DACA decision

Associated Press (many newspapers, including the Post Gazette)

Saudi Gazette, re travel ban case

South China Morning Post

Nuevo Herald

The Nation (Pakistan)

New York Times, re new DACA ruling

Univision, re travel ban case

Agence France Presse (numerous newspapers, including this publication)

Economic Times of India

Courthouse News Service

Law360 (subscription required)

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8. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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