News from the Alliance of Business Immigration Lawyers Vol. 14, No. 4B • April 15, 2018
1. Attorney General Orders ‘Zero Tolerance’ Policy for Improper Entries at Southwest Border; President Issues Memo on ‘Catch and Release’ –
Attorney General Jeff Sessions directed federal prosecutors along the southwest border of the United States to adopt immediately a “zero-tolerance policy.” Later the same day, President Donald Trump issued a memorandum on “catch and release” at the border and other enforcement actions.
2. USCIS Completes H-1B Cap Random Selection Process for FY 2019 –
USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption.
3. USCIS Launches E-Verify Website –
The new website provides information about E-Verify and employment eligibility verification, including employee rights and employer responsibilities in the employment verification process.
4. EOIR Announces Controversial Metrics for Immigration Judge Performance –
The new metrics, to be measured annually, include a goal of 700 case completions per year per IJ with a remand rate of less than 15 percent.
5. ICE Raids Meat-Packing Plant in Tennessee in Largest Single Workplace Raid in a Decade –
Federal authorities arrested 97 people at a Tennessee meat-processing plant on immigration and other charges.
6. National Guard Troops Deploy to Southern U.S. Border –
U.S. Defense Secretary James N. Mattis announced the authorization of up to 4,000 National Guard troops to deploy to the U.S. border with Mexico “to support the Department of Homeland Security border security mission there.”
7. SPLC Sues DHS for Unconstitutionally Blocking Detained Migrants’ Access to Lawyers –
SPLC has filed a federal lawsuit alleging that DHS is violating the Constitution by blocking detained migrants from accessing lawyers. SPLC says the suit is the first of its kind to “highlight decades-long, widespread DHS violations of detained immigrants’ rightful access to counsel in civil immigration prisons in multiple facilities in the Southeast.”
8. Reminder: SAVE Goes Paperless –
As of May 1, 2018, organizations must submit all verification requests electronically.
9. New Publications and Items of Interest –
New Publications and Items of Interest
10. Member News –
11. Government Agency Links –
Government Agency Links
1. Attorney General Orders ‘Zero Tolerance’ Policy for Improper Entries at Southwest Border; President Issues Memo on ‘Catch and Release’
Attorney General Jeff Sessions issued a memorandum on April 6, 2018, directing federal prosecutors along the southwest border of the United States to adopt immediately a “zero-tolerance policy for all offenses referred for prosecution under [8 U.S.C.] section 1325(a).” Later the same day, President Donald Trump issued a memorandum on “catch and release” at the border and other enforcement actions.
Mr. Sessions said the new zero-tolerance policy supersedes any existing policies, and that it should be applied “to the extent practicable, and in consultation with [the Department of Homeland Security.” If adopting such a policy requires additional resources, Mr. Sessions directs each office to identify and request those resources.
“You are on the front lines of this battle,” the memo states. “I respect you and your team.” He reminded federal prosecutors that “our goal is not simply more cases. It is to end the illegality in our immigration system.”
8 U.S.C. § 1325(a) states:
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
The Trump memo directs the Secretaries of Homeland Security, Defense, and Health and Human Services, along with the Attorney General, to submit reports detailing all measures that their departments “have pursued or are pursuing to expeditiously end ‘catch and release’ practices.” Among other things, the reports must include measures taken to “allocate all legally available resources” to ensure the detention of people for violations of immigration law at or near the U.S. borders, and must provide a “detailed list of all existing facilities, including military facilities, that could be used, modified, or repurposed to detain aliens for violations of immigration law at or near the borders of the United States.” The reports must also include the number of credible fear and reasonable fear claims received, granted, and denied, in each year since the beginning of fiscal year 2009, “broken down by the purported protected ground upon which a credible fear or reasonable fear claim was made.”
The Sessions memo is HERE. The Trump memo is HERE.
2. USCIS Completes H-1B Cap Random Selection Process for FY 2019
On April 11, 2018, USCIS announced that it had used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.
USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6 that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.
USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap, USCIS said.
The agency said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, also will not be counted toward the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
The announcement is HERE.
3. USCIS Launches E-Verify Website
U.S. Citizenship and Immigration Services (USCIS) recently launched a new website, E-Verify.gov. USCIS called it “the authoritative source for information on electronic employment eligibility verification.” The website is intended for employers, employees, and the general public.
The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. The site “allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov,” USCIS said.
Employers can access E-Verify from a Web browser. Nearly all employees are confirmed as work-authorized “instantly or within 24 hours,” the agency said. The system, which has nearly 800,000 enrolled employers, compares information from an employee’s I-9 to records available to the Department of Homeland Security and the Social Security Administration to verify authorization to work in the United States.
USCIS said it “encourages all U.S. employers to verify all new hires through E-Verify.” The announcement is HERE.
4. EOIR Announces Controversial Metrics for Immigration Judge Performance
In a move that provoked immediate controversy, James McHenry, Director of the Department of Justice’s Executive Office for Immigration Review (EOIR), sent a memorandum on March 30, 2018, to all Immigration Judges (IJs) announcing the establishment of new performance metrics effective October 1, 2018. The memo notes that the “impact and implementation” of the metrics are subject to bargaining with the National Association of Immigration Judges (NAIJ).
The new metrics, to be measured annually, include a goal of 700 case completions per year per IJ with a remand rate of less than 15 percent. “Needs improvement” is defined as completing more than 560 but fewer than 700 cases per year and a remand rate of between 15 and 20 percent. Benchmarks for satisfactory performance include, among other things, cases completed on the initial hearing date for 100 percent of credible fear and reasonable fear reviews unless the Department of Homeland Security “does not produce the alien on the hearing date.”
Lawrence O. Burman, secretary of NAIJ, predicted that “[i]t’s going to be a disaster and it’s going to slow down the adjudications.” The president of NAIJ, Judge A. Ashley Tabaddor, said, “Clearly this is not justice,” and predicted the plan will “undermine the very integrity of the court.” Paul Schmidt, former chairman of the Board of Immigration Appeals, echoed those concerns, noting that when cases were rushed in the past, not only were mistakes made that resulted in returns from the federal Courts of Appeals, thus increasing the backlog, but some of the “botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases.” Judge Tabaddor also said in an email to Mr. Schmidt:
Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.
Mr. McHenry’s cover memo is HERE. Relevant portions of the EOIR performance plan, which include performance standards and goals, are HERE. Comments from Mr. Burman, Judge Tabaddor, and Mr. Schmidt are HERE.
5. ICE Raids Meat-Packing Plant in Tennessee in Largest Single Workplace Raid in a Decade
In the largest single workplace raid in a decade, federal authorities arrested 97 people at a Tennessee meat-processing plant on immigration and other charges. Of those, 86 were reportedly arrested on civil immigration charges; 32 were released without explanation and 54 were detained. In addition to the immigration charges, company owners are being investigated for alleged tax evasion and hiring undocumented workers.
The operation was conducted jointly with U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the Internal Revenue Service, and the Tennessee Highway Patrol.
6. National Guard Troops Deploy to Southern U.S. Border
U.S. Defense Secretary James N. Mattis announced on April 6, 2018, the authorization of up to 4,000 National Guard troops to deploy to the U.S. border with Mexico “to support the Department of Homeland Security border security mission there.” National Guard troops began deploying after the announcement.
In a joint statement, Mr. Mattis and Department of Homeland Security (DHS) Secretary Kirstjen M. Nielsen said DHS worked closely with border-state governors and identified security vulnerabilities the National Guard could address.
President Donald J. Trump authorized the National Guard, with the affected governors’ approval, to enhance its support to U.S. Customs and Border Protection along the southern U.S. border. The troops “will not perform law enforcement activities or interact with migrants or other individuals detained by DHS without approval from Mattis,” according to the Department of Defense. “Arming will be limited to circumstances that might require self-defense,” the National Guard announcement noted.
The National Guard’s efforts will include “aviation, engineering, surveillance, communications, vehicle maintenance and logistical support,” chief Pentagon spokesperson Dana W. White said in a news briefing on April 5, 2018.
The National Guard’s statement is HERE.
7. SPLC Sues DHS for Unconstitutionally Blocking Detained Migrants’ Access to Lawyers
The Southern Poverty Law Center (SPLC) has filed a federal lawsuit in the U.S. District Court for the District of Columbia alleging that the Department of Homeland Security (DHS) is violating the Constitution by blocking detained migrants from accessing lawyers. SPLC says the suit is the first of its kind to “highlight decades-long, widespread DHS violations of detained immigrants’ rightful access to counsel in civil immigration prisons in multiple facilities in the Southeast.” The suit names DHS, U.S. Immigration and Customs Enforcement, and federal officials as defendants.
SPLC said that in 2017 it launched the “Southeast Immigrant Freedom Initiative” to enlist and train volunteer lawyers to provide free legal representation to detained migrants in removal proceedings in the southeast United States. “About 250 volunteers, including attorneys, law students and interpreters, have come to the South to offer free assistance, only to have client meetings delayed or denied, or they have been unable to communicate with clients due to limits on electronics that can facilitate interpretation,” SPLC said. “DHS intentionally selects private companies who operate immigration prisons as cash cows in remote, rural areas of the Southeast that are beyond the reach of most lawyers,” said Lisa Graybill, deputy legal director for the SPLC. “Their profit model is to simply warehouse as many people as they can for as long as they can, and they resist having to accommodate legal visits while remaining immune from any scrutiny or oversight. With this lawsuit, we are demanding that DHS be held accountable for the choices it makes.”
The complaint is HERE. The SPLC announcement is HERE. An SLPC fact sheet on detained migrants that includes statistics is HERE.
8. Reminder: SAVE Goes Paperless
The Systematic Alien Verification for Entitlements (SAVE) program issued a reminder that SAVE will become a fully electronic process. As of May 1, 2018, organizations must submit all verification requests electronically. SAVE will no longer process mailed submissions of Forms G-845, Documentation Verification Request, and Form G-845, 3rd Step Document Verification Request. Any paper forms received after that date will be returned without a response.
Questions may be emailed to email@example.com. For more information about SAVE, click HERE.
9. New Publications and Items of Interest
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: HERE
- Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?: HERE
- Hidden Brain: The Huddled Masses and the Myth of America: HERE
- American Pendulum I: HERE
E-Verify free webinar listings are 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 is HERE.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, HERE.
- Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.
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 HERE.
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.
10. Member News
Who’s Who Legal has announced Thought Leaders and Other Leading Individuals in Corporate Immigration (HERE), including the following members and partners of the Alliance of Business Immigration Lawyers (ABIL) and their firms:
ABIL Members or Partners:
Cyrus D. Mehta & Partners PLLC
Enrique Arellano Rincón Abogados SC
Fredrikson & Byron
Joseph Law Firm
Karl Waheed Avocats
Kingsley Napley LLP
Klasko Immigration Law Partners, LLP
Kroes Advocaten Immigration Lawyers
Kuck Immigration Partners LLC
Laura Devine Solicitors
Mazzeschi—Corporate Immigration and Citizenship Law
Miller Mayer LLP
Seyfarth Shaw LLP
Wolfsdorf Rosenthal LLP
For more information and analysis from Who’s Who, see HERE.
Jeff Joseph, of the Joseph Law Firm, P.C., is lead counsel for a lawsuit filed in late 2016 by the Guam Contractors Association and 11 other plaintiffs against U.S. Citizenship and Immigration Services over USCIS’s blanket denial of H-2B visas for skilled foreign workers. The District Court of Guam recently granted class action status to the lawsuit. For more on the case, see HERE.
Feige Grundman and Alexander Magalli, of Klasko Immigration Law Partners, LLP, co-authored several new blog entries. “EB-1 for Entrepreneurs, Financiers, and Executives: A Wealth of Options” is HERE. It is the final installment of Klasko’s “EB-1: Not Just for Einsteins” blog series, HERE. “EB-1 for Artists: A Creative’s Approach” is HERE.
Mr. Kuck recently served as an expert witness in a case resulting in a nearly $2 million verdict against Ogletree Deakins Nash Smoak & Stewart PC over a junior associate’s forgery of visa document signatures. He noted, “In employee-based immigration, there is always the dual nature of the representation, so you have to be especially on top of associates, and when a conflict does arise, you have to withdraw immediately. Every immigration lawyer with any experience knows about the conflict issues, and I’d say you’d have to be almost willfully ignorant to miss it.” For more on this case, see Law360, HERE.
Mr. Kuck was quoted in the following publications:
Robert Loughran accompanied a State of Texas Trade delegation as an immigration advisor to meet with Japanese government officials and business leaders in Osaka, Kyoto, Nagoya, and Tokyo, Japan, on March 23-30, 2018.
Mr. Mehta has published a new blog entry. “Analyzing the Definition of a Specialty Occupation Under INA 214(i) to Challenge H-1B Visa Denials” is HERE.
Mr. Mehta and Mr. Yale-Loehr were quoted in “Indian H-1B Filings Set to Drop by 50% This Year,” published by Times of India HERE.
Julie Pearl has been ranked as one of the top two Eminent Practitioners in the country by Chambers and Partners. She was recognized as “technically very advanced” and “very well respected.”
Wolfsdorf Rosenthal LLP has published a new blog entry. “An Era of Exclusion: Ongoing U.S. Immigration Policy Changes Under the Trump Administration” is HERE.
Robert Blanco of Wolfsdorf Rosenthal LLP was quoted by the Los Angeles Times in “The Surest Path to a Green Card May Be an Investor Visa – At Least for Anybody With $500,000 to Spare.” He said, “We’re seeing a lot more Indian applicants because there are a lot of Indians here on H-1Bs who are looking at a 10-year wait to get a green card through employee sponsorship. EB-5 is a faster way compared to that.” The article is HERE.
Mr. Yale-Loehr co-authored an op-ed, “Trump is Repelling International College Students From America. Big Mistake,” published by the New York Daily News HERE.
Mr. Yale-Loehr was quoted by LegalTech News in “Cornell Law students and the Immigration Advocates Network Have Developed a Contingency Planning Tool for Immigrants Who Fear They May Be Deported.” He explained how Cornell Law students helped develop an immigration app following conversations with the Immigration Advocates Network about what kinds of technology would best help support their client base. “It makes it easy for immigrants to know how to prepare if they are concerned about possible deportation. Like any emergency plan, you hope you don’t have to actually use it, but you do want to be prepared,” he said. He added that the app, called “Make A Plan,” is not just a hypothetical software application; “it’s something that immigrants are using every day.” The article is HERE.
Mr. Yale-Loehr was quoted by the Dallas Morning News about new case quotas that Attorney General Jeff Sessions is imposing on immigration judges. Mr. Yale-Loehr called the move an attack on judicial independence that may violate due process rights of noncitizens. “You can imagine if we had a backlog in our criminal courts and the Texas Attorney General said every judge had to settle a certain number of cases per week. There would be a huge uproar,” he said. The article is HERE.
Mr. Yale-Loehr was interviewed by WAER, the Syracuse, New York, public radio station, about a draft rule that would restrict public benefits for immigrants. A summary of the interview, along with a link to the full interview, is HERE.
Mr. Yale-Loehr was quoted in “Thousands of Indian Women Find Their Immigration Dreams in Jeopardy,” published by the New York Times. Mr. Yale-Loehr said, “No one should be stuck waiting more than 10 years for a green card. It hurts employers and employees and their families. Indians are being held hostage by our broken immigration system.” The article is HERE.
Mr. Yale-Loehr was quoted in “H-1B Visas: The Evolving Landscape for HR Professionals,” published by Bloomberg BNA. He said the H-1B visa is “the work horse” category for people wishing to work temporarily in the United States. He also noted that for the past several years, more employers have filed petitions than the number of slots available. Mr. Yale-Loehr said that employers are experiencing increased scrutiny from USCIS on H-1B petitions accepted in the most recent lottery. He cited data that USCIS issued 85,000 requests for additional evidence in H-1B petitions, a 45 percent increase from the prior year. USCIS is “much more aggressive” these days about questioning whether a position really requires a bachelor’s degree and whether an individual is being paid an appropriate wage, he said. Mr. Yale-Loehr recommended that employers hire experienced immigration counsel and summarized alternative visa categories in the event that the H-1B petition is unsuccessful.
Mr. Yale-Loehr was quoted in the publication below about the Department of State’s new proposed requirement for visa applicants to disclose their social media usage for the last five years:
Tuoi Tre (Vietnamese), HERE
11. 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: HERE
Department of State Visa Bulletin: HERE
Visa application wait times for any post: HERE