News from the Alliance of Business Immigration Lawyers Vol. 14, No. 5B • May 15, 2018

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Headlines:

 

1. Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision –

A lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief; NAACP celebrates another DACA decision.

2. USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants –

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence.

3. DOJ, USCIS Announce Agreement on Protecting U.S. Workers –

A Memorandum of Understanding will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws.

4. DOJ Settles Immigration-Related Claim Against University of California, San Diego –

The Department’s investigation concluded that the university unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

5. TPS for Hondurans to End in January 2020 –

Honduran citizens with current TPS registrations will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of Honduras’ TPS designation becomes effective January 5, 2020.

6. IT Company to Pay 12 Employees for Violations of H-1B Program –

IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division.

7. Trump Says Guest Workers Will Be Allowed into United States –

“The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

8. New Publications and Items of Interest –

New Publications and Items of Interest

9. Member News –

Member News

10. Government Agency Links –

Government Agency Links

 

Details:

1. Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision

Seven states—Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia—filed a complaint in the U.S. District Court for the Southern District of Texas, Brownsville Division, to stop the Deferred Action for Childhood Arrivals (DACA) program. The lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief.

Plaintiffs note that the court “has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” but states that plaintiffs “are amenable to a remedy that enjoins Defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.”

In another DACA case, the National Association for the Advancement of Colored People (NAACP) celebrated a “huge victory for DACA recipients around the nation.” A federal court in Washington, DC, found legally insufficient a memorandum issued by the Department of Homeland Security (DHS) terminating the DACA program and struck down the memorandum unless DHS can offer a stronger basis for ending the program, the NAACP noted.

Federal Judge John Bates said the decision by the Trump administration to rescind DACA was “virtually unexplained” and as such “unlawful.” He gave DHS 90 days to provide a legally sufficient explanation. If DHS fails to provide an explanation that meets legal muster, the NAACP noted, “DACA will be vacated in its entirety and DHS will be required to maintain the program for current enrollees and to accept and process applications from new enrollees who meet the program’s eligibility rules.”

With the morass of DACA-related cases filed, some decided in favor of DACA recipients, and amid potentially disparate results, the issue could end up before the U.S. Supreme Court.

THE SEVEN-STATE COMPLAINT

THE OPINION IN THE NAACP CASE

THE NAACP’S STATEMENT

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2. USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo provides guidance to USCIS officers and “assists USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States.” The memo also revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance takes effect August 9, 2018.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible, USCIS said.

USCIS said this new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, duration of status started accruing unlawful presence only after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or only after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

THE MEMO

RELATED USCIS STATEMENT

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3. DOJ, USCIS Announce Agreement on Protecting U.S. Workers

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice announced on May 11, 2018, a Memorandum of Understanding (MOU) that “expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” This new effort “improves the way the agencies share information, collaborate on cases, and train each other’s investigators,” USCIS said.

The MOU will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination. The new MOU “expands upon the two agencies’ existing partnership,” USCIS said.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against U.S. workers by favoring foreign visa workers,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against U.S. workers based on their citizenship status.”

“Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS,” said USCIS Director L. Francis Cissna. “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level.”

USCIS’S STATEMENT

THE MOU

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4. DOJ Settles Immigration-Related Claim Against University of California, San Diego

The Department of Justice announced on May 10, 2018, that it has reached a settlement agreement with the University of California, San Diego. The settlement resolves the Department’s investigation into whether the university’s Resource Management and Planning Vice Chancellor Area (RMP) discriminated against workers in violation of the Immigration and Nationality Act (INA) when verifying their continued authorization to work.

The Department’s investigation concluded that the RMP unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

Under the settlement, the university will pay a penalty to the United States, train its RMP human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

THE ANNOUNCEMENT

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5. TPS for Hondurans to End in January 2020

On May 4, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced her decision to terminate the temporary protected status (TPS) designation for Honduras with a “delayed effective date of 18 months to allow for an orderly transition before the designation terminates” on January 5, 2020.

The USCIS Web page asks users not to pay for or submit any form until USCIS updates the official re-registration information. Honduran citizens with current TPS registrations will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of Honduras’ TPS designation takes effect on January 5, 2020. Further details about this termination for TPS, including the re-registration period, will appear in a Federal Register notice, USCIS said. Honduran TPS beneficiaries “should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.”

ADDITIONAL DETAILS

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6. IT Company to Pay 12 Employees for Violations of H-1B Program

IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD). According to the Department, Cloudwick Technologies provides “data solution services” to major corporations nationwide, including American Express, Bank of America, Apple, Cisco, Comcast, Intuit, Safeway, Verizon, Visa, and many others.

WHD investigators found that the company paid affected employees well below the wage levels required under the H-1B program based on job skill level, and also made illegal deductions from workers’ salaries. As a result, some of the H-1B employees that Cloudwick brought from India with promised salaries of up to $8,300 per month instead received as little as $800 net per month.

“The intent of the H-1B foreign labor certification program is to help American companies find the highly skilled talent they need when they can prove that a shortage of U.S. workers exists,” said Susana Blanco, Wage and Hour Division District Director in San Francisco. “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed.”

In addition to the recovery of back wages, the IT employer has also signed an enhanced compliance agreement requiring it to hire an independent third-party monitor to help ensure future compliance.

THE DEPARTMENT’S ANNOUNCEMENT

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7. Trump Says Guest Workers Will Be Allowed into United States

At a Make America Great Again Rally in Washington, Michigan, on April 28, 2018, President Donald Trump was quoted as saying, “For the farmers, OK, it’s going to get good. And we’re going to have strong borders, but we have to have your workers come in.” That appeared to contradict other Trump administration efforts to reduce migration to the United States generally.

According to reports, President Trump added, “The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

There was no immediate indication of specifics, such as when, how, or how many guest workers will be able to enter the United States, and how many will be agricultural or nonagricultural. In the omnibus spending bill, the Department of Homeland Security was authorized to expand the H-2B visa program. President Trump’s Mar-a-Lago resort and other businesses use hundreds of guest worker visas, news reports have noted. During his campaign, then-candidate Trump told CNN, “You cannot get help during the season. The season goes from, like, October to March. It’s almost impossible to get help. And part of the reason you can’t get American people is they want full-time jobs.”

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8. New Publications and Items of Interest

Webinars for employers and employees. The Immigrant & Employee Rights Section of the Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. FOR MORE INFORMATION

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

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

E-Verify free webinar listings

Advisories and tips:

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

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

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

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

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

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

This comprehensive guide is for:

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

This publication provides:

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

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

An excerpt of the book is on the ABIL WEBSITE.

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

ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOGS.

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9. Member News

Klasko Immigration Law Partners, LLP‘s EB-1 Team Editor, Steve Miller, chats with associates Lisa Felix and Feige Grundman in a new podcast about current trends for EB-1, EB-2 and NIW petitions, including increased scrutiny across the board. They offer tips on how to use expert opinions to explain what is special about your case within your field. LISTEN TO THE PODCAST

Charles Kuck was quoted by WABE in “Ga. Supreme Court Refuses to Hear DACA In-State Tuition Case.” Mr. Kuck, who represented the students in the case, said, “We’re quite disappointed, but we’re not surprised. But our fight will continue. It might not continue in the courts but will continue in the legislature, and it will continue at the Board of Regents itself, which has the ultimate authority to fix this injustice.” THE ARTICLE

Kuck Baxter Immigration, LLC, was nominated for an Emmy for its January 2018 commercial, “¡Estamos contigo!,” meaning, “We are with you.” The commercial is a production of PA Media Marketing Group, LLC. The commercial, in Spanish, emphasizes the firm’s commitment to stand beside its clients and to defend their rights no matter their nationality. THE VIDEO

Cyrus Mehta has authored a new blog entry. “USCIS Blurs Distinction Between Violation of Status and Unlawful Presence for F-1, J and M Nonimmigrants” is HERE.

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry. “Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas Will Eviscerate Due Process” is HERE.

Cora-Ann Pestaina, of Mr. Mehta‘s office, has authored a new blog entry. “Guidance to the Perplexed After USCIS Sneaks In Ban on Third-Party Placement of STEM OPT Workers” is HERE.

Robert Loughran was quoted in Human Resource Executive magazine regarding the workforce disruption that would occur if various forms of protected status come to an end. “If you get rid of millions of people, how do you staff the positions they’re currently filling? How do our buildings get cleaned or built and how does our food get farmed or made? No one has seen a true ‘day without an immigrant’ because these millions of people are woven into the fabric of our society.” THE ARTICLE

Stephen Yale-Loehr was quoted in an Associated Press story about the likelihood that the U.S. Supreme Court will take up the Deferred Action for Childhood Arrivals (DACA) case. THE ARTICLE

Mr. Yale-Loehr was quoted by Forbes in “Would the Justice Department Have Prosecuted Anne Frank’s Father?” THE ARTICLE

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

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10. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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ABIL Attorneys Release H-1B Tips for Employers

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The H-1B filing season starts April 2, 2018. Attorneys from the Alliance of Business Immigration Lawyers offer tips for employers aiming for success in the H-1B lottery.

On April 2, employers can start filing H-1B temporary visa petitions for foreign professionals for work starting October 1, 2018. The law limits new H-1B visa numbers to 85,000 a year. Because many more employers than that are likely to file petitions, U.S. Citizenship and Immigration Services (USCIS) will receive applications for one week and then conduct a lottery to determine which applications will actually be processed. Applications that receive a receipt will then be adjudicated for approval or denial.

Getting selected in the H-1B lottery does not necessarily mean a petition will be approved. USCIS issued 45% more requests for additional evidence on H-1B petitions in 2017 than the previous year. There was also a higher percentage of denials, longer processing times, and tougher standards on filing requirements. ABIL attorneys foresee even more scrutiny of H-1B petitions this year, as well as longer processing times.

ABIL attorneys recommend the following potential ways for employers to maximize their H-1B chances:

  • Apply based on a master’s degree from a U.S. nonprofit university as long as all degree requirements are completed before April 1
  • Ensure close match between course of study and job duties
  • Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
  • Apply for “consular notification,” not change of status, to preserve OPT if OPT lasts beyond October 1
  • Apply for “change of status” if OPT expires before October 1 to preserve work eligibility under “cap gap” policy, but avoid travel
  • Choose O*NET code and wage level carefully
  • If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
  • Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Labor Department, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a “specialty occupation”
  • Consider other visa options if your employees is not selected in the H-1B lottery
  • Check USCIS website for changes to form, fee, filing location

PRESS RELEASE

News from the Alliance of Business Immigration Lawyers Vol. 14, No. 5A • May 01, 2018

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Headlines:

 

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

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

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

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

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

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

4. USCIS Announces Convictions in Two Immigration Fraud Cases –

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

5. ABIL Global: Turkey –

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

6. New Publications and Items of Interest –

New Publications and Items of Interest

7. Member News –

Member News

8. Government Agency Links –

Government Agency Links

 

Details:

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

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

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

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

The USCIS letter is available here.

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

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

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

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

The Supreme Court’s opinion

The DHS Press Secretary’s statement

The ICE Deputy Director’s statement

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

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

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

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

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

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

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4. USCIS Announces Convictions in Two Immigration Fraud Cases

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

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

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

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

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

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

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

The USCIS announcement is available here.

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5. ABIL Global: Turkey

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

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

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

KEP Registration Generally

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

KEP Registration for MOL/Turkish Work Permits

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

Problems with the KEP System

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

For further information, see this page.

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6. New Publications and Items of Interest

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


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

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

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

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

Advisories and tips:

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

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

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

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

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

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

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

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

This comprehensive guide is for:

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

This publication provides:

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

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

An excerpt of the book is on the ABIL website.

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

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

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7. Member News

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

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

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

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

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

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

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

CNN, re DACA decision

Associated Press (many newspapers, including the Post Gazette)

Saudi Gazette, re travel ban case

South China Morning Post

Nuevo Herald

The Nation (Pakistan)

New York Times, re new DACA ruling

Univision, re travel ban case

Agence France Presse (numerous newspapers, including this publication)

Economic Times of India

Courthouse News Service

Law360 (subscription required)

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8. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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