News from the Alliance of Business Immigration Lawyers Vol. 12, No. 2A • February 01, 2016
Headlines:
1. DHS Revises Regs on H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants -DHS said the final rule does not impose any additional costs on employers, workers, or any governmental entity.
2. Court Delays STEM OPT Ruling, Preserving Current STEM OPT Program -DHS persuaded the court that it was working diligently to evaluate more than 50,000 comments and promulgate a final rule, but was unable to do so in time for a new rule to be effective by February 12, 2016. The court modified its order to leave the current STEM OPT rule in effect until the new May 10, 2016, deadline.
3. OSC Responds to Query on Steps to Follow After Internal I-9 Audit -An attorney asked what steps a client should take with respect to employee-submitted green cards that the attorney found doubtful, and whether the attorney was obligated to train the client on what to look for in a valid green card.
4. DHS Extends and Redesignates TPS for South Sudan -DHS has determined that an extension of the current designation and a redesignation of South Sudan for TPS are warranted because the ongoing armed conflict and extraordinary and temporary conditions that prompted the 2014 TPS redesignation have persisted, and in some cases deteriorated.
5. New York Immigration Attorney Arrested for Immigration Fraud, Aggravated Identity Theft -According to the complaint, the attorney allegedly engaged in a scheme to use personal information contained in legitimate immigration documents for fraudulent purposes.
6. Supreme Court Agrees to Hear DAPA Case -The Supreme Court has agreed to hear a case challenging President Obama’s November 2014 executive actions to temporarily shield certain undocumented children and parents from removal. The Supreme Court is expected to decide the case in late June.
7. ABIL Global: China -Companies filing for work permits in Beijing must receive preapproval.
8. New Publications and Items of Interest -New Publications and Items of Interest
9. ABIL Member/Firm News -ABIL Member/Firm News
10. Government Agency Links -Government Agency Links
Details:
1. DHS Revises Regs on H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants
In a final rule effective February 16, 2016, the Department of Homeland Security (DHS) is amending its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1), and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.
Specifically, the final rule amends DHS regulations to:
- Include H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that
H-1B1 and principal E-3 nonimmigrants can work for a sponsoring employer without having to apply separately for employment authorization; - Authorize continued employment with the same employer for up to 240 days for an H-1B1 or principal E-3 nonimmigrant whose status has expired while his or her employer’s timely filed extension of stay request remains pending;
- Provide this same continued employment authorization for a CW-1 nonimmigrant whose status has expired while his or her employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending;
- Include principal E-3 and H-1B1 nonimmigrant classifications in existing regulations on the filing procedures for extensions of stay and change of status requests; and
- Allow employers petitioning for EB-1 outstanding professors and researchers to submit initial evidence comparable to the other forms of evidence already listed in 8 CFR § 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.
DHS said the final rule does not impose any additional costs on employers, workers, or any governmental entity. Further, DHS noted, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants “makes them consistent with other similarly situated nonimmigrant worker classifications.” Additionally, this rule “minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3, and CW-1 nonimmigrant workers.” Finally, DHS expects that this change “will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions.”
2. Court Delays STEM OPT Ruling, Preserving Current STEM OPT Program
The U.S. District Court for the District of Columbia has accepted the Department of Homeland Security’s (DHS) request to modify the court’s stay of its ruling that the agency invalidly issued its 2008 rule on STEM OPT (optional practical training for students in science, technology, engineering, and mathematics). The court modified the stay to give DHS an additional 90 days, until May 10, 2016, to re-issue the STEM OPT rule using valid notice-and-comment procedures.
DHS issued a proposed rule on October 19, 2015, and received more than 50,000 comments. The agency persuaded the court that it was working diligently to evaluate those comments and promulgate a final rule, but was unable to do so in time for a new rule to be effective by the February 12, 2016, deadline. The court modified its order to leave the current STEM OPT rule in effect until the new May 10, 2016, deadline.
DHS argued that it needed only the 90-day extension and that it would be able to publish the final rule in time to meet that deadline. The court said it would grant no further extensions.
The plaintiff, Washington Alliance of Technology Workers, said it planned to appeal the extension.
D.C.’S COURT OPINION FROM JANUARY 23, 2016
D.C.’S COURT OPINION FROM AUGUST 12, 2015
3. OSC Responds to Query on Steps to Follow After Internal I-9 Audit
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to an attorney who asked how to advise her client following an internal audit of the client’s I-9 employment authorization verification forms. The attorney asked specifically what steps the client should take with respect to permanent resident cards (Forms I-551) that the attorney found doubtful, and whether the attorney was obligated to train the client on what to look for in a valid green card or whether such training would be outside the scope of what the employer should be trained to do, since that could take the employer beyond the “reasonable person” standard.
OSC noted that it cannot give an advisory opinion on any particular set of facts, only general guidelines. OSC said that to prevent discrimination, an employer or representative conducting an internal I-9 audit should conduct it in a consistent manner, treating similarly situated employees in a similar manner. Employees should not be treated differently based on citizenship, immigration status, or national origin. For example, an employer should apply the same level of scrutiny to all employees’ I-9 documentation and not single out for review the I-9 forms of employees from a particular country or immigration status.
In response to the attorney’s specific question about doubtful green cards, OSC referred to joint guidance recently issued by OSC and U.S. Immigration and Customs Enforcement (ICE), which reminds employers that they are required to accept original I-9 documentation that “reasonably appears to be genuine and to relate to the individual presenting the documentation.” If an employer conducting an internal I-9 audit concludes, based on a photocopy, that the document does not appear genuine or reasonably related to the employee, the employer should address its concern with the employee and provide the employee an opportunity to choose a different document to present from the I-9’s Lists of Acceptable Documents. However, OSC noted, the employee can also give the employer the originally presented document and, if the employer determines that it appears genuine and reasonably related to the employee, the employer must accept that document and not request additional documents. If the employer, on the other hand, determines that the original document does not appear genuine or reasonably related to the employee, “the employer should provide the employee with an opportunity to choose a different document to present from the Lists of Acceptable Documents.”
Regarding whether the attorney’s firm must train her client on “what to look for in a valid green card,” OSC directed her to ICE guidance.
JOIN OSC-ICE GUIDANCE referenced in the response, “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits”
4. DHS Extends and Redesignates TPS for South Sudan
The Department of Homeland Security (DHS) announced on January 25, 2016, that it is extending the designation of South Sudan for temporary protected status (TPS) for 18 months, from May 3, 2016, through November 2, 2017, and redesignating South Sudan for TPS for 18 months, effective May 3, 2016, through November 2, 2017.
DHS said it determined that an extension of the current designation and a redesignation of South Sudan for TPS are warranted because the ongoing armed conflict and extraordinary and temporary conditions that prompted the 2014 TPS redesignation have persisted, and in some cases deteriorated, and would pose a serious threat to the personal safety of South Sudanese nationals if they were required to return to their country. Although the parties to the conflict signed a peace agreement in August 2015, violence persists in many parts of the country, and the implementation of the peace agreement is halting to date, DHS noted.
The notice, from U.S. Citizenship and Immigration Services (USCIS), states that the extension allows currently eligible TPS beneficiaries to retain TPS through November 2, 2017, so long as they otherwise continue to meet the eligibility requirements for TPS. The redesignation of South Sudan allows additional individuals who have been continuously residing in the United States since January 25, 2016, to obtain TPS if otherwise eligible.
DHS also set forth procedures necessary for eligible nationals of South Sudan (or individuals having no nationality who last habitually resided in South Sudan) either to: (1) re-register under the extension if they already have TPS and to apply for renewal of their employment authorization documents (EADs) with USCIS; or (2) submit an initial registration application under the redesignation and apply for an EAD.
For individuals who have already been granted TPS, the 60-day re-registration period runs from January 25, 2016, through March 25, 2016. USCIS will issue new EADs with a November 2, 2017, expiration date to eligible South Sudan TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time frames involved with processing TPS re-registration applications, DHS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on May 2, 2016. Accordingly, DHS is automatically extending the validity of EADs issued under the TPS designation of South Sudan for 6 months, through November 2, 2016. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the employment eligibility verification (Form I-9) and E-Verify processes.
Under the redesignation, individuals who currently do not have TPS (or an initial TPS application pending) may submit an initial application during the 180-day initial registration period that runs from January 25, 2016, through July 25, 2016. In addition to demonstrating continuous residence in the United States since January 25, 2016, and meeting other eligibility criteria, initial applicants for TPS under the redesignation must demonstrate that they have been continuously physically present in the United States since May 3, 2016, the effective date of the redesignation of South Sudan.
Initial TPS applications that were filed under South Sudan’s 2011 designation or the 2013 or 2014 redesignations and remained pending on January 25, 2016, will be treated as initial applications under this redesignation. Individuals who have a pending initial South Sudan TPS application do not need to file a new Application for TPS (Form I-821). DHS provided additional instructions in the notice for individuals whose TPS applications remain pending and who would like to obtain an EAD valid through November 2, 2017.
5. New York Immigration Attorney Arrested for Immigration Fraud, Aggravated Identity Theft
U.S. Citizenship and Immigration Services (USCIS) announced on January 15, 2016, that it played a “critical role” in an investigation leading to the arrest of New York attorney Gnoleba Seri for immigration fraud and aggravated identity theft. Homeland Security Investigations arrested Mr. Seri the same day in New York.
According to the complaint against Mr. Seri, between October 2012 and April 2015, he allegedly engaged in a scheme to use personal information contained in legitimate immigration documents for fraudulent purposes. In his role as a licensed immigration attorney, the complaint alleges, Mr. Seri submitted falsified and forged I-864 forms (affidavits of support for those seeking immigrant visas) in support of his clients’ applications for immigration visas and legal permanent resident status. Specifically, USCIS said, Mr. Seri received legitimate I-864 forms, tax information, pay stubs, and W-2 forms from individuals sponsoring his clients, then fraudulently submitted those documents with applications for other clients. USCIS said he submitted I-864 forms that listed individuals as financial sponsors who had never met the people they purportedly had agreed to sponsor. Those I-864 forms included the sponsors’ real names, identifying information, financial information, and forged signatures. The fraudulent and forged forms all listed Mr. Seri as the preparer and many were notarized by him.
Mr. Seri was charged with one count of visa fraud, which carries a maximum sentence of 10 years in prison; one count of aggravated identity theft, which carries a mandatory consecutive minimum sentence of two years in prison; and one count of mail fraud, which carries a maximum sentence of 20 years in prison.
6. Supreme Court Agrees to Hear DAPA Case
The U.S. Supreme Court has agreed to rule on a challenge to President Obama’s “Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)” program, in U.S. v. Texas, No. 15-674. Most recently, in November 2015, the U.S. Court of Appeals for the Fifth Circuit upheld an injunction based on insufficient notice and opportunity for public comment, preventing the program from proceeding until the legal matter could be addressed. The appeals court also said that President Obama had exceeded his statutory authority.
In an unusual move, the Court has asked the parties to the case whether President Obama violated his constitutional obligations to enforce U.S. laws—a question that goes to the heart of the scope of presidential power. Also at issue is whether the complaining states have standing to sue the federal government. The states argue that they would suffer direct and concrete injury in millions of additional dollars expended if DAPA goes forward; for example, Texas would have to provide driver’s licenses to program beneficiaries.
According to reports, the case is expected to be argued in April and decided in June.
BRIEF SUBMITTED ON BEHALF OF THE OBAMA ADMINISTRATION
OPINION GRANTING A PRELIMINARY INJUNCTION, by the U.S. District Court for the Southern District of Texas, Brownsville Division
7. ABIL Global: China
Companies filing for work permits in Beijing must receive preapproval.
As of January 4, 2016, companies sponsoring work permit applications and Expert Certificates in Beijing must receive preapproval through online certification with the Beijing Labor Bureau. This includes applications for short-term work authorization, employment licenses, work permits (including permits for Hong Kong, Taiwan, and Macao nationals), and expert certificates. Sponsoring companies must apply for and activate a digital certificate with the Labor Bureau online. The Labor Bureau will review the application and schedule an interview for the sponsor to submit the required documents in person.
This is expected to increase the application time for a work permit in Beijing. It is recommended that sponsoring companies register with the Labor Bureau as soon as possible to avoid delays in the work permit process.
8. New Publications and Items of Interest
The 2015 edition of the Global Business Immigration Practice Guide has 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.
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.
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
9. ABIL Member/Firm News
The following ABIL members will speak at the “2016 EB-5 Conference: EB-5 Reboot—New Players, New Rules, New Opportunities,” to be held Saturday, February 13, 2016, in Universal City, California. The event is sponsored by the Los Angeles County Bar Association. MORE INFORMATION
Mr. Kuck was quoted in International Business Times in “Immigration Reform 2016: Do Federal Raids Need Warrants? Undocumented Immigrants Denied Civil Rights, Advocates Say,” published on January 28, 2016. Mr. Kuck said, “It just doesn’t seem right to send back women and children who were truly fleeing for their lives, especially since the Obama administration rigged the system against these people. You are enforcing the law, but you are doing it at the consequence of human rights.”
Cyrus Mehta has authored several new blog entries. “Preserving H-1B Extension For Spouse And Freezing Age Of Child In High Skilled Worker Rule” “Perspectives On Immigration In 2016 Through A Crystal Ball”
Mr. Wolfsdorf and Avi Friedman of Wolfsdorf Rosenthal LLP presented at the 2016 AILA Midwinter CLE Conference, “Leading Edge Business and Removal Practice Issues,” in Nassau, Bahamas, on January 22, 2016. Mr. Wolfsdorf participated in the “Creative and Ethical Strategies for Getting Past ‘No’ ” panel. Mr. Friedman participated in the “Advanced Issues in Nonimmigrant Waivers and Humanitarian Parole” panel. MORE INFORMATION
Mr. Wolfsdorf moderated two panels, “Real Estate Investment” and “Investment Process, Management of Funds and Legal Issues for Chinese Investors” at the China Private Equity Forum in Long Beach, California, on January 20, 2016. MORE INFORMATION
Mr. Wolfsdorf moderated the opening panel, “USCIS Update: 2015 in Review,” at the 2016 Las Vegas EB-5 Conference on January 16, 2016, organized by EB-5 Investors.com. MORE INFORMATION
Stephen Yale-Loehr was quoted in several publications on January 20, 2016, concerning the Supreme Court’s decision to hear the Obama administration’s immigration executive action case, including:
- NY Times
- CNN
- San Francisco Chronicle
- US News and World Report
- Law360: Justices May Finally Give Obama A Win In Immigration Case, available by registration
- Vice News
- China Daily
10. 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 Labor processing times and information on backlogs
Department of State Visa Bulletin