Secretary Nielsen said there are not enough qualified, U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of U.S. businesses in FY 2018. This allocation is in addition to the 66,000 visas already issued this year.
DHS has issued a proposed rule to end a program that allows certain foreign entrepreneurs to be considered for parole to develop and build start-up businesses in the United States.
USCIS reminded F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document.
Current beneficiaries of temporary protected status under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register by July 23, 2018.
USCIS plans to mail new biometric services appointment notices to petitioners who received incorrect notices and did not reschedule their appointments or appear as walk-ins.
USCIS said it will no longer accept tenant-occupancy models for filings, and announced the same day that it is updating guidance on adjustment of status interview guidelines and interview waivers.
USCIS began recalling approximately 8,500 permanent resident cards (“green cards”) due to a production error. The green cards were for approved Forms I-751, Petition to Remove Conditions of Residence, for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and mailed between February and April 2018.
New Publications and Items of Interest
9. Member News –
10. Government Agency Links –
Government Agency Links
Secretary of Homeland Security Kirstjen M. Nielsen announced on May 25, 2018, that an additional 15,000 H-2B temporary nonagricultural worker visas will be available for fiscal year 2018. Secretary Nielsen said she determined that there are not enough qualified, U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of U.S. businesses in FY 2018. This allocation is in addition to the 66,000 visas already issued this year. She said she made this decision after consulting with Secretary of Labor Alexander Acosta, members of Congress, and business owners.
The move follows statements President Donald Trump made at a rally on April 28, 2018, during which he said, “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.”
Secretary Nielsen said, “The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed. I call on Congress to pass much-needed reforms of the program and to expressly set the number of H-2B visas in statute. We are once again in a situation where Congress has passed the buck and turned a decision over to [the Department of Homeland Security (DHS)] that would be better situated with Congress, who knows the needs of the program. As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”
Congress set the annual H-2B visa cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas from the first half of that fiscal year, is available starting April 1 through September 30. On February 27, 2018, USCIS determined that it had received a sufficient number of H-2B petitions to meet the full FY 2018 statutory cap of 66,000.
In the FY 2018 omnibus spending bill, Congress delegated authority to the Secretary to increase the number of temporary nonagricultural worker visas available to U.S. employers through September 30, just as it did in the FY 2017 omnibus bill.
The Department of Homeland Security (DHS) has proposed a rule to end the International Entrepreneur Program, which allows certain foreign entrepreneurs to be considered for parole to develop and build start-up businesses in the United States. The rule DHS wants to end is known as the International Entrepreneur Rule (IE Final Rule).
The idea of helping international entrepreneurs began several years ago. In January 2017, the Obama administration published the IE Final Rule. It was supposed to take effect in July 2017. In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the Department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.
DHS is now proposing to eliminate the IE Final Rule because the agency “believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.”
DHS noted that by statute, it has discretionary authority to parole individuals into the United States temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. After reviewing DHS parole programs in accordance with an executive order, “Border Security and Immigration Enforcement Improvements,” issued on January 25, 2017, DHS is proposing to remove regulations published as part of the IE Final Rule. DHS said it concluded that the IE Final Rule “created a complex and highly structured program that was best established by the legislative process rather than relying on an unorthodox use of the Secretary’s authority to ‘temporarily’ parole, in a categorical way, aliens based on ‘significant public benefit.’ “
DHS also said that the Immigration and Nationality Act already provides for visa classifications that enable certain entrepreneurs to start businesses and work in the United States, such as the E-2 nonimmigrant classification and the EB-5 immigrant classification. DHS said it “is committed to reviewing all existing employment-based immigrant and nonimmigrant visa programs to ensure program integrity and protect the interests of U.S. investors and workers.”
The National Venture Capital Association (NVCA) issued a press release calling the move a “major mistake for U.S. job creation and innovation.” NVCA noted that the delay and announced intention to rescind the IE Final Rule “comes at a time of increased global competition for entrepreneurship. The U.S. share of global venture capital investment has dropped precipitously from 90% twenty years ago to 54% last year. Countries like Canada, France, Germany, and Singapore have put in place ‘startup visas’ to bring new companies to their shores. The world’s best immigrant entrepreneurs now have many choices on where to start a new enterprise.”
3. USCIS Reminds F-1 Students of Automatic Termination of OPT If They Transfer or Begin Study at Another Educational Level
U.S. Citizenship and Immigration Services (USCIS) recently reminded F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD).
Although authorization to engage in OPT ends upon transferring to a different school or changing educational level, students in F-1 status will not be otherwise affected as long as they comply with all requirements for maintaining their student status, USCIS said. These requirements include not working with a terminated EAD, because termination means that students are no longer authorized to work in the United States. Working in the United States without authorization “has serious immigration consequences, including removal from the country and bars on reentry. Furthermore, remaining in the United States in violation of lawful nonimmigrant status could lead to an accrual of unlawful presence which includes another set of penalties under the Immigration and Nationality Act,” USCIS warned.
Currently, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) informs USCIS of the termination date, and the OPT termination is automatic under current regulations, USCIS noted. USCIS said it has updated its systems and will begin to enter the EAD termination date into these systems after being notified by SEVP. USCIS will notify affected students and provide them with an opportunity to correct any errors in the record via their designated school official.
The OPT program grew 400% from 2008 to 2016, according to a Pew Research Center analysis of U.S. Immigration and Customs Enforcement data. Students from India made up the largest portion of OPT permit holders during the period analyzed, with 441,400 permit holders, a 30% share of the total number. Students from China came second at 313,500 (21%), followed by South Koreans at 90,800 (6%).
U.S. Citizenship and Immigration Services (USCIS) announced on May 22, 2018, that current beneficiaries of temporary protected status (TPS) under Nepal’s designation who want to maintain their status through the effective termination date of June 24, 2019, must re-register by July 23, 2018.
All applicants must submit Form I-821, Application for Temporary Protected Status. Applicants may also request an EAD by submitting a completed Form I-765, Application for Employment Authorization, at the time they file Form I-821, or separately at a later date.
USCIS said it will issue new EADs with a June 24, 2019, expiration date to eligible Nepali TPS beneficiaries who timely re-register and apply for EADs. Given the time frames involved with processing TPS re-registration applications, however, USCIS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on June 24, 2018. Accordingly, USCIS has automatically extended the validity of EADs issued and currently valid under the TPS designation of Nepal for 180 days, through December 21, 2018.
Nepal’s TPS designation will end on June 24, 2019.
5. USCIS Corrects Biometric Services Appointment Notices with Wrong Application Support Center Locations
U.S. Citizenship and Immigration Services (USCIS) announced on May 23, 2018, that due to a processing error on May 4, 2018, USCIS mailed a number of biometric services appointment notices with incorrect Application Support Center (ASC) locations to petitioners who filed Form
I-751, Petition to Remove Conditions on Residence.
The affected notices have a date of 05/04/2018 and a case type of “I-751 – PETITION TO REMOVE CONDITIONS ON RESIDENCE.” The notices tell petitioners to appear for their biometric services appointments starting the week of May 21, 2018, at ASCs located out of the normal geographic area.
On June 8, 2018, USCIS plans to mail new biometric services appointment notices to petitioners who received incorrect notices and did not reschedule their appointments or appear as walk-ins at the closest ASCs to their locations.
USCIS released the following instructions in the meantime:
If you received an incorrect appointment notice, you do not need to travel out of the normal area to attend your biometric services appointment. Instead, you have two options:
- Wait until you receive a new biometric services appointment notice with the correct ASC and new appointment date. You can confirm that we sent a new appointment notice by checking Case Status Online.
- Go to the ASC closest to you as a walk-in. However, you may experience a long wait time and may not be seen that day. You can find the closest ASC by using the ASC locator on uscis.gov/about-us/find-uscis-office.
6. Guidance Revised on EB-5 Immigrant Investor Cases Involving Tenant Occupancy; Adjustment of Status Interview Guidelines/Waiver Criteria
USCIS announced on May 16, 2018, that it is revising guidance on immigrant investor (EB-5) cases involving tenant occupancy. Previously, the USCIS Policy Manual allowed for tenant-occupancy methodologies used by some petitioners to show that their capital created, or will create, 10 indirect jobs. USCIS said it determined that “these methodologies do not provide reasonable predictions of indirect job creation and are no longer considered reasonable methodologies to support economically or statistically valid forecasting tools.”
USCIS said it therefore will no longer accept tenant-occupancy models for filings. USCIS said it will continue to “give deference to Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, “when directly related to previously approved projects, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.”
USCIS also announced the same day that it is updating guidance on adjustment of status interview guidelines and interview waivers by:
- Clarifying that USCIS will interview all adjustment of status applicants unless the agency waives the interview;
- Removing employment-based and fiancé(e)-based adjustment cases from the list of types of adjustment of status cases in which USCIS might waive the interview; and
- Editing the guidance on relocating cases for adjustment interviews to be consistent with the updated list of cases in which USCIS might waive the interview.
On May 14, 2018, USCIS began recalling approximately 8,500 permanent resident cards (“green cards”) due to a production error. The green cards were for approved Forms I-751, Petition to Remove Conditions of Residence, for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and were mailed between February and April 2018.
USCIS said it was sending notices to individuals who received the incorrect green cards and to their attorneys of record, if any. The affected individuals should return their incorrect green cards to USCIS in the provided pre-paid envelope within 20 days of receiving the notice, or return their cards to USCIS field offices, USCIS said. USCIS will send replacement green cards within 15 days of receiving the incorrect card.
The recall does not affect these green card holders’ status as lawful permanent residents. If affected individuals need to travel internationally or prove their lawful permanent residence while they wait for a replacement card, they may call the USCIS Contact Center at 800-375-5283 to determine if they need additional proof, the agency said.
Spouses of U.S. citizens may apply for naturalization after three years of permanent residence and must meet other requirements. The incorrect date on these cards could lead applicants to wait longer than necessary to apply to become U.S. citizens, USCIS said.
Alliance of Business Immigration Lawyers press releases. The latest published releases include:
- ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
- ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
- ABIL Members Note Immigration Threats for Employers in 2018
Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:
- Statutes of Liberty
- Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
- Hidden Brain: The Huddled Masses and the Myth of America
- American Pendulum I
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.ORG.
- Listings and links to cases challenging executive orders, and related available pleadings, are available at LAWFAREBLOG.COM.
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 available.
The following ABIL members, partners, and associates will be speaking at the American Immigration Lawyers Association’s conference in San Francisco, California, in June 2018:
AILA Global Migration Section (June 12):
Enrique Arellano: Navigating Ethical Pitfalls Around the World
Bernard Caris: A European Work Permit—Dream or Reality? Implementation of the EU Intra-Corporate Transfer Directive
Maria Celebi: Pulse of Global Immigration in the Golden City
Laura Devine: Recognizing Dangers in the Fog: Recognizing and Managing the Red Flags of Inadmissibility
Elise Fialkowski*: Recognizing Dangers in the Fog: Recognizing and Managing the Red Flags of Inadmissibility
Ana Garicano Sole: Beyond the Visas: Avoiding tax and employment law pitfalls
Marco Mazzeschi: No Longer Business as Usual: The Future of the Global Business Traveler
Ariel Orrego-Villacorta: Pulse of Global Immigration in the Golden City
Karl Waheed: A European Work Permit—Dream or Reality? Implementation of the EU
Intra-Corporate Transfer Directive
AILA Annual Conference (June 13–16):
Robert Aronson*: Selling an Immigration Law Practice
Lily Axelrod*: Hot Topics in Asylum Jurisprudence
Delisa Bressler*: Employment-Based Immigration: Preference Categories
Dagmar Butte: “Old Fashioned” Immigration in a Modern World
Maria Celebi: Taking a Sabbatical: Options for LPRs Planning to Move Abroad
Philip Curtis: Embrace Technology in Your Immigration Practice: Work Faster and Lower Costs
Laura Devine: Taking a Sabbatical: Options for LPRs Planning to Move Abroad
Leslie Ditrani*: To Err Is Human: Addressing Mistakes Made in Business Immigration Cases
Elise Fialkowski*: Counseling Corporate Clients on Employment and Training Opportunities Within F and J
Hilary Fraser*: Building a Profitable Practice
Avi Friedman*: Consular Processing 2: Successes at the Post
Anna Gallagher*: Removal 101
Kehrela Hodkinson: Counseling Clients After NIV Petition Approval
David Isaacson*: Common Non-Criminal Inadmissibility Issues in Today’s Turbulent Climate
H. Ronald Klasko: The Current State of the EB-5 Program
Charles Kuck: The Future of Business Immigration: Storm Clouds on the Horizon
Vincent Lau: U.S. Department of Labor (DOL) Open Forum
Vincent Lau: PERM BALCA and FAQ Review
Carolyn Lee*: The Current State of the EB-5 Program
Loan Huynh*: Anatomy of an H–2B: Using the H-2B as an Alternative to the H–1B
Cyrus Mehta: To Err Is Human: Addressing Mistakes Made in Business Immigration Cases
Angelo Paparelli: Worksite and Mergers & Acquisitions
Cora-Ann Pestaina*: Labor Cert. 102: Recruitment
Hendrik Pretorius*: Practice Innovation Part 1: Today’s Practice Automation Tools
Ari Sauer*: Doing the Math: Addressing the Complexities of the CSPA
Debra Schneider*: Managing and Winning RFEs and NOIDs
Gregory Siskind*: Practice Innovation Part 1: Today’s Practice Automation Tools
William Stock*: Practice Innovation Part 2: Changing Delivery Models
Lynn Susser: Anatomy of an H–2B: Using the H–-2B as an Alternative to the H–1B
Elissa Taub*: Advanced Strategies in Physician Cases
Bob White*: PERM BALCA and FAQ Review
David Wilks*: Immigration 101: Essential Immigration Terms and Concepts
Bernard Wolfsdorf: NIV Investor to Green Card
Stephen Yale-Loehr: To Err Is Human: Addressing Mistakes Made in Business Immigration Cases
* = Partner or associate of ABIL Member
David Isaacson, of Cyrus D. Mehta and Associates, PLLC, has authored a new blog entry, “Those Who Cannot Remember the Past: How Matter of Castro-Tum Ignores the Lessons of Matter of Avetisyan.”
Jeff Joseph, of Joseph Law Firm, spoke on federal court jurisdiction at the Federal Bar Association’s immigration law section conference, and will speak at the American Immigration Lawyers Association’s Employer Compliance and Worksite Enforcement Conference in Boston, Massachusetts, in August 2018. More information on the latter conference.
Charles Kuck was quoted by the Sacramento Bee in “Deportation Protection Restored in High-Profile Case.” In that case, federal immigration authorities agreed to renew the Deferred Action for Childhood Arrivals status of Jessica Colotl, a Mexican woman whose case made national headlines eight years ago when she was a Georgia college student. Mr. Kuck, who has represented Ms. Colotl since 2010, said, “Jessica is exactly who she appears to be—kind, honest, and the type of person we want and need in the United States. When the government violates people’s rights, no one should be afraid to stand up for what is right and just. Jessica stood up, and she was right. Today, justice prevailed.” SACRAMENTO BEE ARTICLE
Cyrus Mehta has authored a new blog entry, “State Department’s Change to Public Charge Guidance in Foreign Affairs Manual Will Result in Many More Visa Refusals“.
Angelo Paparelli was quoted by the New York Times in “Trump’s Crackdown on Students Who Overstay Visas Rattles Higher Education.” Mr. Paparelli said, “For immigration attorneys, because time is of the essence, if the three- or 10-year bar is triggered, there’s not much you can do. He noted that it is common for students to fall out of compliance while awaiting a new visa or transitioning to a new one. Students who use visas to stay and work after completing their degrees are particularly vulnerable, and their violations could be applied retroactively, and subject them to an automatic ban, he said. “The effect of this change will be felt by businesses. It will foreclose what have been standard approaches to transitioning from student to worker, whether that’s on an H-1B or some other work visa category, or the transition to permanent residence,” he said. NY TIMES ARTICLE
Bernard Wolfsdorf and Joey Barnett from Wolfsdorf Rosenthal LLP will host a webinar to discuss the hot topics in EB-5 this year. The webinar, to be held June 6, 2018, at 12 noon PST/3 pm EST, has been approved for 1 hour of California Bar CLE credit. For more information or to register, see WOLFSDORF.COM.
Stephen Yale-Loehr was quoted by Raw Story in “Here’s What Racist Lawyer Bro Aaron Schlossberg Could Do If He Really Wanted To Prove He’s Sorry.” “A sanctuary designation doesn’t mean much. It doesn’t prevent ICE officials from entering that city or state,” Mr. Yale-Loehr noted. The article is at RAWSTORY.COM.
Mr. Yale-Loehr was quoted by Politico in “DACA’s Legal Labyrinth.” Commenting on various options for how the DACA court cases may play out, Mr. Yale-Loehr said the liberal 9th Circuit—urged by the Supreme Court to act “expeditiously” in the California cases—could rule by the end of the summer to keep DACA alive, prompting the administration to petition the Supreme Court. Oral arguments could then be heard in early spring 2019, and a high court decision handed down next June. This timetable, he conceded, “is very speculative.” The article is at POLITICO.COM.
Mr. Yale-Loehr was quoted by the Christian Science Monitor in “In Boston, Pushback on Controversial ICE Tactic Separating Families.” Self-reporting immigrants make tempting targets for enforcement, he noted: “If you want to increase your numbers quickly, arresting people who turn up at [immigration services] are low-hanging fruit. You know what time they’re going to be there.” The article is at CSMONITOR.COM.
Mr. Yale-Loehr was quoted by FactCheck.org in “FactChecking Trump’s Nashville Rally.” President Trump claimed: “Think of it, a lottery. You pick people. Now, let me ask you. So these countries that are sending people in—do you think they are sending us their finest?” Mr. Yale-Loehr noted, “Among other things, the consular officer must make sure the individual is not ‘inadmissible.’ This means that the person has not committed a crime, doesn’t have a serious health problem, isn’t a terrorist, hasn’t committed fraud, and hasn’t overstayed in the U.S. before.” The article is at FACTCHECK.ORG.
Mr. Yale-Loehr was cited by the Huffington Post in “These Indian Women’s Lives Are Frozen By American Immigration Laws.” He noted that the Department of Homeland Security is putting final touches on a proposal to rescind the H-4 EAD program. The rule is expected to be published in June, after which it will go through a series of reviews and clearances that could take months, he said. The article is at HUFFINGTONPOST.COM.
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: