1. District Court Strikes Down DHS Rule Extending STEM OPT, But Stays Action Until 2016 -The court struck down a 2008 interim rule extending the duration of STEM OPT by 17 months but stayed that action until February 12, 2016, to avoid disruption and allow DHS to submit the rule for notice and comment.
2. GAO Calls for Better Assessment of Fraud Risks, Economic Benefits From EB-5 Program -The GAO noted that fraud risks are constantly evolving and that USCIS continually identifies new fraud schemes, but the agency does not have documented plans to conduct regular future risk assessments.
3. Senate Holds Hearing on Obama Administration’s Executive Actions -The hearing followed the White House’s announcement on July 15, 2015, of progress on the Obama administration’s executive actions on immigration and next steps, as part of an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.
4. USCIS Accounts for Returns of Erroneously Issued DACA EADs -USCIS said it has accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return.
5. TPS Registration Deadline is August 18 for Liberia, Guinea, Sierra Leone -The TPS designations for these three countries run through May 21, 2016.
6. USCIS Summarizes Temporary Immigration Relief Measures for Marianas -USCIS reminded people affected by Typhoon Soudelor that certain U.S. immigration benefits or relief may be available to them.
7. New Publications and Items of Interest -New Publications and Items of Interest
8. ABIL Member/Firm News -ABIL Member/Firm News
9. Government Agency Links –Government Agency Links
The U.S. District Court for the District of Columbia recently struck down an interim rule promulgated by the Department of Homeland Security (DHS) in April 2008 extending, for eligible science, technology, engineering, and mathematics (STEM) students, the duration of optional practical training (OPT) by 17 months. However, the court stayed that action until February 12, 2016, to avoid disruption and allow DHS to submit the rule for notice and comment.
The plaintiff, Washington Alliance of Technology Workers, a collective-bargaining organization that represents STEM workers, had challenged the interim rule. The complaint alleged, among other things, that the plaintiff’s members who had technology-related degrees in the computer programming field and had applied for STEM employment were in direct and current competition with OPT students on a STEM extension.
OPT allows a nonimmigrant foreign national on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. When DHS published the interim rule, the agency explained that OPT employees often are unable to obtain H-1B status within their authorized period of stay in F-1 status, including the 12-month OPT period, and thus are forced to leave the United States. “The inability of U.S. employers, in particular in the fields of science, technology, engineering and mathematics, to obtain H-1B status for highly skilled foreign students and foreign nonimmigrant workers has adversely affected the ability of U.S. employers to recruit and retain skilled workers and creates a competitive disadvantage for U.S. companies,” DHS said.
The court vacated the 17-month STEM extension described in the interim rule at 73 Fed. Reg. 18944 (Apr. 8, 2008), but stayed the vacatur until February 12, 2016, and remanded to DHS for further proceedings. The court concluded that immediate vacatur of the 2008 rule would be “seriously disruptive,” noting that in 2008, DHS estimated that there were approximately 70,000 F-1 students on OPT and that one-third had earned degrees in a STEM field. While DHS has not disclosed the number of people currently taking advantage of the OPT STEM extension, the court said it had no doubt that vacating the 2008 rule would force thousands of foreign students with work authorizations to scramble to depart the United States Vacating the 2008 rule could also impose a costly burden on the U.S. tech sector, the court noted, if thousands of young workers have to leave their jobs quickly. The court said it saw no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor disruption for the technology sector. As such, the court ordered that the vacatur be stayed until February 12, 2016, “during which time DHS can submit the 2008 Rule for proper notice and comment.”
The U.S. Government Accountability Office (GAO) recently released a report that calls for additional actions to better assess fraud risks and report economic benefits in the EB-5 program. The GAO noted that fraud risks are constantly evolving and that U.S. Citizenship and Immigration Services (USCIS) continually identifies new fraud schemes, but the agency does not have documented plans to conduct regular future risk assessments.
Among other things, fraud risks previously identified include uncertainties about whether invested funds are obtained lawfully and various investment-related schemes to defraud investors. The GAO noted that USCIS has taken steps to address fraud risks by enhancing its fraud risk management efforts, including establishing a dedicated entity to oversee these efforts. However, USCIS’s information systems and processes limit its ability to collect and use data on EB-5 program participants to address fraud risks. The GAO noted that USCIS plans to collect and maintain more complete data in its new information system; however, the GAO reported in May 2015 that the new system is nearly four years delayed. In the meantime, USCIS does not have a strategy for collecting additional information, including some information on businesses supported by EB-5 program investments, that officials noted could help mitigate fraud, such as misrepresentation of new businesses. Given that information system improvements with the potential to expand USCIS’s fraud mitigation efforts will not take effect until 2017 at the earliest and that gaps exist in USCIS’s other information collection efforts, developing a strategy for collecting such information would better position USCIS to identify and mitigate potential fraud, the GAO said.
The GAO noted that USCIS increased its capacity to verify job creation by increasing the size and expertise of its workforce and providing clarifying guidance and training, among other actions. However, the GAO said that USCIS’s methodology for reporting program outcomes and overall economic benefits “is not valid and reliable because it may understate or overstate program benefits in certain instances” because it is based on the minimum program requirements of 10 jobs and a $500,000 investment per investor instead of the number of jobs and investment amounts collected by USCIS on individual EB-5 program forms. For example, the GAO noted, USCIS reported 4,500 jobs for 450 investors on one project using its methodology instead of 10,500 jobs reported on EB-5 program forms for that project. Further, investment amounts are not adjusted for investors who do not complete the program or invest $1 million instead of $500,000. USCIS officials said they were not statutorily required to develop a more comprehensive assessment. However, tracking and analyzing data on jobs and investments reported on program forms would better position USCIS to more reliably assess and report on the EB-5 program’s economic benefits, the GAO said.
The U.S. Senate Committee on the Judiciary held a hearing on July 21, 2015, “Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims.” The hearing followed the White House’s announcement on July 15, 2015, of progress on the Obama administration’s executive actions on immigration and next steps, as part of an effort begun in November 2014 to address problems in the U.S. immigration system through a series of executive actions.
Those testifying at the hearing included U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez; Grace Huang, Public Policy Coordinator, Washington State Coalition Against Domestic Violence; J. Thomas Manger, Chief of Police, Montgomery County (Maryland) Police Department; Sarah Saldaña, Assistant Secretary, U.S. Immigration and Customs Enforcement; and others. Judiciary Committee members Charles Grassley (R-IA) and Patrick Leahy (D-VT) submitted statements.
In his opening statement, Sen. Grassley said that the Obama administration, “in too many cases, has turned a blind eye to enforcement, even releasing thousands of criminals at its own discretion, many of whom have gone on to commit serious crimes, including murder.” He also said that the administration has granted deferred action “to criminal aliens who have committed heinous crimes after receiving this relief from deportation.” Sen. Grassley noted that he has written to Homeland Security Secretary Jeh Johnson about four specific cases in which such individuals received Deferred Action for Childhood Arrivals (DACA). “One of those beneficiaries was a known gang member when he applied and received DACA, then went on to kill four people in North Carolina. Another DACA recipient used his work authorization to gain employment at a popular youth camp in California, where he was recently arrested for child molestation, and distribution of child pornography. I am still waiting for responses on some of these cases,” Sen. Grassley said.
Sen. Leahy noted that immigrants are statistically less likely than individuals born in the United States to commit crimes, and said crimes by certain people “should not be used as an excuse for demonizing an entire community.” He also noted that the Obama administration “has committed unprecedented resources to enforcement efforts at the border and in the interior,” spending nearly $18.5 billion per year on enforcement, “which exceeds all other federal criminal law enforcement spending combined.” The Obama administration, he noted, has removed more individuals than any other administration.
Mr. Rodriguez summarized key executive actions on immigration issues, including DACA. He noted, among other things, that through the end of March 2015, USCIS had received 1,175,689 DACA requests, and rejected and returned more than 71,000 at the outset. Of the 1,104,594 DACA requests accepted by USCIS for consideration, 748,789 were initial requests and 355,805 were renewal requests. Of the initial requests, USCIS approved 664,607 and denied 43,375; 40,807 remained pending as of the hearing date. Of the renewal requests, USCIS approved 243,872 and denied 414; 111,519 remained pending as of the hearing date. Mr. Rodriguez noted that denials may occur when a DACA requestor does not meet the continuous residence or education guidelines, is deemed to pose a threat to national security or public safety, or is otherwise deemed not to warrant deferred action based on a case-by-case review of each application.
He noted that these figures “do not illustrate the human face of DACA.” He noted, for example, the situation of twin sisters who were born in Mexico. Their mother brought them to the United States when they were five years old. The sisters therefore spent most of their childhood in the United States, but did not know if they could ever go to college because they were undocumented. They received DACA and went on to graduate from high school with honors and are now attending a prestigious college. They have said they are committed to working hard so they can give back to the university and the nation. Mr. Rodriguez said they are two of many examples of young people who are now able to fully contribute to their communities and to the nation because they can “finally emerge from the shadows, and give back to the community.” He noted that DACA is part of a greater effort to ensure that valuable and limited enforcement resources “are spent wisely and focused on those individuals who are a danger to national security or a risk to public safety” rather than on people such as the twin sisters he described.
Mr. Rodriguez also noted that when the district court issued a preliminary injunction in Texas v. United States, USCIS ceased preparations to implement the new DACA eligibility guidelines and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). USCIS also took immediate steps intended to ensure that the agency ceased issuing three-year (rather than two-year) periods of deferred action and work authorization to DACA recipients processed under the 2012 memorandum (a change that had begun, as directed by the memorandum, on November 24, 2014). He noted that between November 24, 2014, and the date of the injunction, USCIS granted approximately 108,000 three-year employment authorization documents (EADs) to renewal and initial requestors who were granted deferred action under the 2012 DACA guidelines. He said that the vast majority of these requests were filed before issuance of the 10 memoranda on November 20, 2014, announcing the executive actions. He said the large number of requests and decisions during this period reflected the natural cycle of DACA renewals, as the initial two-year periods of deferred action and work authorization were expiring for those persons who were granted DACA during the initial months after its launch in 2012.
He acknowledged that USCIS failed to prevent the release of approximately 2,000 three-year EADs for individuals eligible for 2012 DACA once the agency’s initial February 17 freeze on all EADs was lifted, and thereafter erroneously issued a small number of three-year EADs due to “manual errors.” In addition, he said, USCIS re-mailed some three-year EADs (approximately 500) that had initially been mailed before the injunction, were returned by the U.S. Postal Service as undeliverable, and were re-mailed by USCIS after the injunction.
Mr. Rodriguez said that as the director of USCIS, “I accept full responsibility for these mistakes.” He noted that the Secretary of Homeland Security has asked the DHS Office of Inspector General (OIG) to investigate the circumstances of the issuance of the approximately 2000 three-year EADs after the issuance of the preliminary injunction order. “USCIS fully supports this investigation, and like Secretary Johnson, I have notified agency leadership and relevant staff components directing full and expedited cooperation with the OIG,” he said.
He also said that USCIS has implemented corrective measures, including the conversion of all the validity periods of deferred action and employment authorization to two years, and that the agency is issuing new two-year EADs for each of the 2,000 erroneously issued three-year EADs, as well as those approximately 500 returned as undeliverable. USCIS notified those individuals who received the now-invalid three-year EADs that their deferred action and employment authorization would be terminated on July 31, 2015, if those individuals did not comply with the requirements for returning the invalid EADs. Additionally, Mr. Rodriguez directed the agency to take additional precautions, “including the modification of USCIS computer systems and additional quality control measures to further minimize the potential for manual error that could lead to unintended issuance of three-year EADs, instead of two years, in future DACA cases,” he said.
TESTIMONY STATEMENTS of all the witnesses at the hearing
U.S. Citizenship and Immigration Services (USCIS) issued an update on August 5, 2015, regarding returns of erroneously issued employment authorization documents (EADs) with more than two years of validity issued after February 16, 2015, to certain Deferred Action for Childhood Arrivals (DACA) recipients. This was after a court order was in place prohibiting the agency from conferring DACA for more than two years. After the court order in Texas v. United States, USCIS can approve deferred action requests and related employment authorization applications based on DACA only for two-year periods.
USCIS said it has accounted for over 99 percent of the approximately 2,600 identified invalid work permits requiring return. Twenty-two of the approximately 2,600 recipients failed to return their work permits or certify good cause for not doing so by the deadline of July 30, 2015. As a result, USCIS terminated DACA for those 22 people.
USCIS noted that the recall only applied to some individuals who received a card after the February 16, 2015, court order; there are approximately 108,000 individuals who have valid three-year DACA work permits and do not need to return them. USCIS said that those who were affected by the recall and returned their invalid three-year work permits should use Case Status Online to verify whether USCIS received the work permit.
Those who returned their cards but their DACA and work authorization was terminated should either call USCIS at 1-800-375-5283, select option 1 for English, then option 8; or visit their local USCIS field offices between 9 a.m. and 3 p.m. Monday through Friday.
USCIS LETTER sent July 14 to affected DACA recipients
Tuesday, August 18, 2015, is the deadline for eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries) to register for temporary protected status (TPS). The deadline marks the end of the 90-day extension of the initial registration period, U.S. Citizenship and Immigration Services (USCIS) said in a reminder. The TPS designations for these three countries began on November 21, 2014, and run through May 21, 2016.
Eligibility criteria include having been “continuously residing” in the United States since November 20, 2014, and having been “continuously physically present in” the United States since November 21, 2014. Eligible persons also must undergo security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.
Liberian nationals currently covered under the two-year extension of deferred enforced departure (DED) based on President Obama’s September 26, 2014, are eligible for TPS. Liberians under DED who have an employment authorization document (EAD) or have applied for an EAD do not need to apply for another EAD related to this TPS designation. However, those who are granted TPS may request a TPS-related EAD at a later date as long as the TPS designation for Liberia remains in effect.
Those who wish to register for TPS must submit Form I-821, Application for Temporary Protected Status; the biometrics services fee (or fee waiver request with documentation) for those who are 14 years old or older; Form I-765, Application for Employment Authorization (regardless of whether the applicant wants an EAD); and the I-765 application fee or fee waiver request with documentation for those who want an EAD. No application fee for the I-765 is required for those who do not want an EAD, and for initial applicants under the age of 14, or 66 and over; the latter may receive their initial EAD cards at no charge.
TPS ANNOUNCEMENT (in French)
ADDITIONAL INFORMATION about TPS for Liberia, Guinea, and Sierra Leone, including guidance on eligibility, the application process and where to file
U.S. Citizenship and Immigration Services (USCIS) recently reminded people affected by Typhoon Soudelor, which caused extensive damage in the Commonwealth of the Northern Mariana Islands (CNMI) on August 2, 2014, that certain U.S. immigration benefits or relief may be available to them. USCIS said it understands that a natural disaster can affect an individual’s ability to maintain lawful immigration status or obtain certain other immigration benefits.
Eligible individuals may request or apply for temporary relief measures, including:
- A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
- Extension or re-parole of individuals previously granted parole by USCIS;
- Expedited adjudication of employment authorization applications; and
- Assistance to lawful permanent residents (LPRs) stranded overseas without immigration or travel documents, such as permanent resident cards (green cards). USCIS and the Department of State will coordinate on these matters when LPRs are stranded in a place that does not have a local USCIS office.
USCIS noted that the agency “may also exercise its discretion to allow for filing delays resulting from the typhoon.” This may include, for example:
- Assistance to those who have not appeared for an interview or submitted required forms of evidence. USCIS noted, “You may show how the typhoon prevented you from appearing or submitting documents as required”; or
- Assistance to those who have not been able to respond to a request for evidence (RFE) or notice of intent to deny (NOID). USCIS said it will extend the deadline for individuals to respond to RFEs or NOIDs by 30 days. This applies to all RFEs and NOIDs with a deadline of August 2 through September 2, 2015. During this time, USCIS said it “will not issue denials based on abandonment of an application or petition in the CNMI.”
USCIS will continue to monitor the situation and will provide updated guidance as needed.
The agency referred people HERE for more information on “special situations.”
Webinars on E-Verify. Upcoming webinars on E-Verify will be held on August 18, 25, and 27 (Form I-9); August 24 (E-Verify Easy Enrollment); August 19 (E-Verify for Executives); August 27 (E-Verify in 30); August 26 (Spanish E-Verify & Form I-9); August 18, 20, and 27 (E-Verify Overview); August 27 (Federal Contractor E-Verify); August 17 and 26 (E-Verify for Existing Users); and August 25 (employee session on myE-Verify). Customized sessions on the topic, date, and time of your choice are available by e-mailing E-VerifyOutreach@uscis.dhs.gov. MORE INFORMATION ON WEBINARS
The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. 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 immigration hotspots around the world.
The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, 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 designed to be used by:
- 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.
- 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.
The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. 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 available on Twitter: @ABILImmigration. RECENT ABIL BLOGS
H. Ronald Klasko was quoted by Law360 on August 4, 2015, in “Attys Slammed With EB-5 Requests as Expiration Date Looms.” “It has never, ever been anywhere near this busy,” he noted. “Almost certainly, the program will be extended. But whether it’s an extension by itself or an extension with some [reforms], nobody really knows right now.”
Robert F. Loughran was featured in a Law360 article about pending USCIS guidance for employers regarding 3-year DACA permits. He noted that employers should not look beyond genuine-looking documents presented by employees when filling out the Form I-9. “Their business is not to be deputized immigration officers. That only ends badly,” he said.
Cyrus Mehta has authored a new blog entry. “Opportunity Knocks in Disappointing Decision Vacating STEM Optional Practical Training Rule for Foreign Students”
Cora-Ann V. Pestaina, of Cyrus D. Mehta & Associates, PLLC, has authored a new blog entry. “BALCA, What Have You Been Up To So Far in 2015?”
Angelo Paparelli was quoted in Site Selection‘s July 2015 edition, in “Greener Pastures,” about the EB-5 program. He said he is heartened by “reasonable additional regulation” of EB-5, such as anti-fraud measures. He also noted rapidly increasing interest in the EB-5 program from institutional players, but said he foresees a shakeout: “We may see a smaller number of regional centers, or see special-purpose regional centers that really are there only to promote the developers’ transactions.” One retired Department of Homeland Security official told Mr. Paparelli that if the regulations become too onerous, investors “will lose their appetite.”
Mr. Paparelli was quoted in Law360 on August 11, 2015, in “U.S. Clarifies EB-5 Amid Continued Chinese Demand.” Commenting on a USCIS policy memorandum clarifying issues of job creation and investment requirements for the EB-5 program, he noted, “In some respects it’s a very helpful clarification. There’s a recognition that if the jobs were created but subsequent events—liquidation or bankruptcy—were to occur, permanent resident status would also be attainable. This is a significant development.” He also said that “[t]here could be some fine-tuning of the [memorandum]. Perhaps some examples should be introduced into the document. All in all, it is a welcome change.”
Bernard Wolfsdorf will be the Conference Program Chair at the 2015 American Immigration Lawyers Association’s EB-5 Investors Summit, to be held August 27-28, 2015, in Las Vegas, Nevada. He will also be presenting on two panels with Charles Oppenheim, Chief of Immigrant Visa Control & Reporting, U.S. Department of State, discussing the effect of Chinese retrogression and the Child Status Protection Act, as well as tips for working with the National Visa Center. The summit will provide the opportunity to learn from critical parts of an EB-5 team, including securities lawyers, business plan writers, economists, developers, migration agents, and regional centers. FOR MORE INFORMATION OR TO REGISTER.
Mr. Wolfsdorf has authored two new blog entries. “Five Reasons Why the EB-5 Immigrant Visa is the Best Option for Chinese Students (Who Can Invest $500,000)” “Urgent Practice Advisory for Preparation of Source of Funds Reports”
Richard Yemm of Wolfsdorf Rosenthal LLP will host a free webinar on “Artist & Entertainer Work Visas (O & P) & Green Cards (EB-11)” on Thursday, August 20, 2015, from 12:30 to 1:45 p.m. (PDT). The webinar will address successful strategies for processing petitions for artists of extraordinary ability, and provide an in-depth discussion on how to qualify for and meet the various eligibility criteria. FOR MORE INFORMATION OR TO REGISTER.
Stephen Yale-Loehr was quoted by Law360 on August 4, 2015, in “Attys Slammed With EB-5 Requests as Expiration Date Looms.” He noted that attorneys at his firm have “basically given up our summer vacations” to work on the influx of cases. “Investors are spooked. And we’re seeing a dramatic rise in the number of investors who are trying to get their petitions filed before September 30, and project developers who are trying to finalize their projects … and that’s causing increased work for both immigration attorneys and the immigration agency.”
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: