News from the Alliance of Business Immigration Lawyers Vol. 13, No 8B • August 15, 2017
Headlines:
1. Labor Dept. Announces Revisions to H-1B, H-1B1, and E-3 Forms, Comment Period -Pursuant to a June news release calling for proposed form changes “to better protect American workers, confront fraud, and increase transparency,” the Department of Labor published a notice announcing its intent to revise its information collection for the H-1B, H-1B1 and E-3 programs.
2. State Dept. Announces Oversubscription of EB-2 Category, Annual Numerical Limits for Immigration, Change-of-Address NVC Reporting Requirements -The Department of State’s Visa Bulletins for August and September 2017 include news on several topics.
3. Ninth Circuit Rules Against Good Faith Exception for Unauthorized Worker Employment and I-9 Violations -In a recent decision, the U.S. Court of Appeals for the Ninth Circuit found, among other things, that an employer could not make a good faith defense to a charge of continuing to employ unauthorized workers or failing to properly complete, retain, or produce I-9 employment verification forms.
4. CBP Says Attorneys Not Allowed in Secondary Inspection Areas of Ports of Entry -Attorneys report that CBP says that as of August 21, 2017, they will not be able to accompany clients in the secondary inspection area of any ports of entry, and that this is a national policy.
5. Former Airline Staffing Executive Pleads Guilty in Unlawful Fees Case -The executive admitted he falsely certified that he had received no payments, when in fact he had demanded and collected hundreds of thousands of dollars of unlawful fees from approximately 85 mechanics.
6. CBP Deploys Facial Recognition Biometric Exit Technology at More Airports -CBP has announced the deployment of facial recognition biometric exit technology to several more airports, including McCarran International Airport in Las Vegas, Nevada, for one daily flight from the United States to Guadalajara, Mexico; and to William P. Hobby International Airport in Houston, Texas, for select flights.
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
Details:
1. Labor Dept. Announces Revisions to H-1B, H-1B1, and E-3 Forms, Comment Period
Pursuant to the Secretary of Labor’s June 6, 2017, news release calling for proposed form changes “to better protect American workers, confront fraud, and increase transparency,” the Department of Labor has published a 60-day notice in the Federal Register announcing its intent to revise its information collection for the H-1B, H-1B1 and E-3 programs.
The revisions include the Labor Condition Application for Nonimmigrant Workers (LCA) Form ETA 9035/9035E (electronic), Form ETA 9035CP accompanying instructions, a new Appendix for the Form ETA 9035/9035E, and the Wage and Hour Division’s WH-4 Nonimmigrant Worker Information Form collection.
The Department says it seeks revisions to the Form 9035/9035E and Form 9035CP Instructions to “streamline parts of the current information collection to assist the regulated community with form completion; provide greater clarity of existing employer obligations under the programs; and promote greater program transparency by collecting additional information on the employment of temporary nonimmigrant workers by U.S. employers.” The Department also seeks revisions to the WH-4 “to provide the form in a LIVECYCLE document to improve accessibility and compliance” with the Rehabilitation Act and the Workforce Investment Act; to “assist the regulated community with form completion”; and to “collect additional information to facilitate complainant communication for the enforcement of Forms 9035 and 9035E.”
Written comments must be submitted in accordance with the 60-day notice’s instructions.
The August 3, 2017, announcement of the 60-day notice.
The related June 6, 2017, news release.
2. State Dept. Announces Oversubscription of EB-2 Category, Annual Numerical Limits for Immigration, Change-of-Address NVC Reporting Requirements
The Department of State’s Visa Bulletins for August and September 2017 include news on several topics.
The August bulletin notes the oversubscription of the employment-based second preference (EB-2) category. High demand for numbers for U.S. Citizenship and Immigration Services (USCIS) adjustment-of-status applicants has required the establishment of cut-off dates for August for Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines EB-2 visa numbers. The bulletin says this action will allow number use to be held within the Worldwide annual limit. The Department expects the date for these countries to once again become Current for October, the first month of fiscal year (FY) 2018.
The September bulletin notes that any changes of address for applicants processing their cases overseas should always be reported to the National Visa Center (NVC). The bulletin provides details about what to include in communications with NVC and contact information.
The September bulletin also notes the annual determination of the numerical limits on immigrants for FY 2017. The worldwide employment-based preference limit is 140,000. For FY 2017, the per-country limit is 25,620 and the dependent area annual limit is 7,320.
3. Ninth Circuit Rules Against Good Faith Exception for Unauthorized Worker Employment and I-9 Violations
In a recent decision, the U.S. Court of Appeals for the Ninth Circuit found, among other things, that an employer could not make a good faith defense to a charge of continuing to employ unauthorized workers or failing to properly complete, retain, or produce I-9 employment verification forms.
DLS Precision Fab LLC, a Phoenix, Arizona-based custom sheet metal fabrication company doing business as Di-Matrix Precision Manufacturing, had dealt with the sudden growth of its workforce due to an expansion of a Department of Defense program by hiring a well-credentialed human resources director to ensure compliance with applicable state and federal employment laws. Instead of doing so, however, the HR director shirked his responsibilities to the point of “literally stuffing the government’s correspondence in a drawer and never responding,” according to DLS. U.S. Immigration and Customs Enforcement subsequently inspected DLS’s I-9 forms and other relevant business information and served DLS with notices of suspect documents and intent to fine.
The court noted that the good faith defense, as argued by DLS, did not apply here. DLS conceded that its violations were substantive but contended that the “peculiar facts of this case” justified extending the good faith defense to the substantive violations because DLS had made a good faith effort to comply with the law’s employment requirements by hiring an HR director, but the HR director exhibited bad faith by neglecting his duty to keep DLS compliant. The court was not persuaded. Among other things, the court pointed out that under the law, such a defense might apply to technical or procedural, but not substantive, violations. Also, the court said, “DLS is not the first employer to hire an employee with the expectation that he or she will comply with the law only to be disappointed, nor is it likely to be the last. More broadly, DLS asks us to disregard the company’s responsibility for hiring and supervising its own employees. The HR director was acting as DLS’s agent, and his failure to perform his responsibility may properly be imputed to DLS.”
4. CBP Says Attorneys Not Allowed in Secondary Inspection Areas of Ports of Entry
According to reports from attorneys serving clients in New York, the Buffalo office of U.S. Customs and Border Protection is advising that effective August 21, 2017, attorneys cannot accompany clients in the secondary inspection area of any ports of entry, and that this is a national policy.
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5. Former Airline Staffing Executive Pleads Guilty in Unlawful Fees Case
Following a U.S. Citizenship and Immigration Services (USCIS) investigation, Eleno Quinteros, Jr., former vice president of operations for two airline mechanic staffing companies, pled guilty on August 10, 2017, to charges of making false statements in support of lawful permanent resident petitions for dozens of the companies’ mechanics.
Mr. Quinteros admitted he falsely certified that he had received no payments, when in fact he had demanded and collected hundreds of thousands of dollars of unlawful fees from approximately 85 mechanics. According to the plea agreement, Quinteros collected as much as $567,480 from employees, even though employers are prohibited by law from demanding payment for their fees. Mr. Quinteros used some of the money to pay attorneys assisting with the applications and pocketed the rest.
The employees performed heavy maintenance on aircraft at a variety of locations nationwide. Mr. Quinteros was responsible for recruiting Mexican airline mechanics to work in the United States, and for helping recruits to obtain work visas such as TN or H-2B visas. According to the indictment, Mr. Quinteros first assisted recruits in obtaining work visas to come to the United States. He then agreed to help at least 85 of them pursue lawful permanent residence in exchange for substantial, unlawful fees. He instructed many employees to deposit money in his wife’s bank account or provide him with blank money orders to conceal the source of the unlawful funds.
Mr. Quinteros pleaded guilty to a single count of making a false claim in support of an immigration application. He admitted in his plea, however, that the underlying scheme involved more than 25 immigration documents. His sentencing is set for November 6, 2017.
6. CBP Deploys Facial Recognition Biometric Exit Technology at More Airports
U.S. Customs and Border Protection (CBP) has announced the deployment of facial recognition biometric exit technology to several more airports, including McCarran International Airport in Las Vegas, Nevada, for one daily flight from the United States to Guadalajara, Mexico; and William P. Hobby International Airport in Houston, Texas, for select flights. This follows recent deployments of the technology to Washington Dulles International Airport; George Bush Intercontinental Airport in Houston, Texas; and O’Hare International Airport in Chicago, Illinois. An initial pilot was also conducted at Hartsfield-Jackson Atlanta International Airport. Additional deployments are planned in the near future.
John Wagner, CBP’s Deputy Executive Assistant Commissioner for Field Operations, said, “With the expansion of this technology we will be looking at different flights, airports, lighting conditions, and internal IT configurations to demonstrate to our stakeholders that this solution is flexible, reliable and easy for travelers to use.” Using the flight manifest, CBP builds a flight-specific photo gallery using photographs from the travel document the traveler provided to the airline. CBP then compares the live photo against the document photo in the gallery to ensure that the traveler is the true bearer of the document. If the photo captured at boarding is matched to a U.S. passport, the traveler—having been confirmed as a U.S. citizen—is automatically determined to be out of scope for biometric exit purposes and the photo is “discarded after a short period of time,” CBP said, adding that it “remains committed to protecting the privacy of all travelers.”
7. New Publications and Items of Interest
A national database of occupational licensing, launched by the Center for the Study of Occupational Regulation, St. Francis University, documents and tracks the occupational licensing regulations for many professions. The database, which is free and open to the public, includes regulatory information affecting physicians, physician assistants, nurse practitioners, registered nurses, massage therapists, and physical therapists, among others. From the Find Occupations page, users can select their State, Industry, and Occupation.
Advisories and tips:
- Immigration Court Practitioner’s Guide to Responding to Inappropriate Immigration Judge Conduct, by Catholic Legal Immigration Network, provides practitioners with information about the range of options available when inappropriate immigration judge conduct occurs, including how to file an administrative complaint with the Department of Justice’s Executive Office for Immigration Review.
- Travel ban FAQ, by David Isaacson of Cyrus D. Mehta & Partners PLLC, updated July 19, 2017.
- 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.
- 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.
- Airport Lawyer is a free Web app that is intended to help ensure that immigrants are treated fairly at airports. Arrivals information can be securely passed along to large groups of volunteer attorneys who have been organized to monitor arrivals. See HERE.
- Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.
The latest E-Verify webinar schedule from USCIS is available HERE.
The latest 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 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.
8. ABIL Member/Firm News
The following ABIL members are included in Who’s Who Legal: Corporate Immigration:
Steven Clark, of Clark Lau, LLC
Charles Foster, of Foster LLP
Avi Friedman, of Wolfsdorf Rosenthal
Jeff Joseph, of Joseph Law Firm
Dawn Lurie, of Seyfarth Shaw
Gabriele Mastmann, of Offer & Mastmann
Sharon Cook Poorak, of Seyfarth Shaw
Ari Sauer, of Siskind Susser
Gregory Siskind, of Siskind Susser
William Stock, of Klasko Immigration Law Partners
Elissa Taub, of Siskind Susser
Anastasia Tonello, of Laura Devine Attorneys
Andrew Wilson, of Serotte Reich Wilson, LLP
Brian Zuccaro, of Serotte Reich Wilson, LLP
Mr. Goel and Mr. Siskind were mentioned/quoted in an op-ed on the RAISE Act in Forbes.com, “Cotton and Trump Team Hand America a Bad Bill.”
Mr. Klasko has published a new blog entry. “It’s All About Numbers” (re EB-5)
Mr. Kuck was quoted in an interview with National Public Radio on WABE 90.1, in “Georgia Immigrant, Refugee Advocates Blast Immigration Reduction Bill.” He noted, “People are going to immigrate. People are always going to go to places where there are more opportunities and options. And if America isn’t that place, someplace else will be.”
Mr. Loughran presented and was the discussion leader for “How to Prepare Your Clients for Potential Raids,” a live webinar on worksite enforcement hosted by the American Immigration Lawyers Association on July 18, 2017. As a panelist, Mr. Loughran provided a broad overview of recent enforcement trends and also co-authored a practice advisory on developing proactive immigration action plans for employers.
Mr. Loughran presented “Using EB-5 Capital for Project Development” to the State Bar of Texas Advanced Real Estate Law Seminar in San Antonio, Texas, on July 13, 2017. Mr. Loughran’s presentation focused on the EB-5 Immigrant Investor Program, the potential for use of foreign investment in real estate project development, and alternative U.S. visa options for foreign investors.
Mr. Loughran presented at the Geneva Group International’s Latin America Conference in Santiago, Chile, on “Desarollos en la Ley de Inmigracion de los Estados Unidos,” focused on changes in immigration enforcement by the Trump administration and the U.S. immigration options that continue to remain in place for Chilean and Latin American nationals despite these developments.
Mr. Mehta has published a new blog entry. “RAISE Act Will Hurt Immigrants, Americans and America”
Mr. Paparelli has published a new blog entry. “Trump Administration Should Offer Better Immigration Options for Entrepreneurs—Don’t Throw Out the Entrepreneurial Baby With the Parole Bathwater”
Wolfsdorf Rosenthal LLP has published several new blog entries. “5 Fears Arising From the Latest Foreign Affairs Manual Updates by Department of State” “5 Reasons Why Tom Cotton’s Bill That President Trump Supports Is Bad Policy” “5 Reasons Indian Citizens Should Consider EB-5” “The RAISE Act: A Big Lie?” “California Court of Appeal Rules Form I-864, Affidavit of Support, Creates Enforceable Contract Between Sponsor and Immigrant”
Mr. Yale-Loehr was quoted in an article in the Financial Times about a new bill to slash immigration in half. “It’s going to be very hard to get through Congress. Immigration is just as complicated as healthcare and tax reform,” he said.
Mr. Yale-Loehr was quoted in an article on NBC News about how President Trump’s travel ban may fare in the Supreme Court. “Immigration touches on national sovereignty and the [Supreme] Court has been largely loath to second guess the president,” he said.
Mr. Yale-Loehr was quoted by the Bureau of National Affairs in an article in Bloomberg Law Daily Labor Report about a bill that would boost Northern Mariana Islands foreign worker permits. The legislation is likely a “one-off” because of the small number of permits added and their temporary nature, he noted. It’s also “noteworthy” that an earlier version of the bill called for 2,000 additional permits but that that number was pared down considerably, he said.
Mr. Yale-Loehr was quoted in various international publications regarding President Trump’s support for the RAISE Act, a bill to limit legal immigration, including:
- Los Tiempos
- Financial Times Daily Briefing
- Deutsche Welle
- Financiero
- United Daily News (Taiwan)
- El Cronista
- Deutsche Wirtschafts Nachrichten
- Entorno Inteligente
9. 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