News from the Alliance of Business Immigration Lawyers Vol. 14, No. 8B • August 15, 2018

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Headlines:

 

1. Controversial DHS Draft Rule Proposes Changes to Public Charge Definition –

A controversial Department of Homeland Security (DHS) draft rule leaked to the media would make more immigrants inadmissible or deportable for receiving public benefits.

2. EB-1 Green Cards Backlogged Worldwide –

The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019.

3. USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors –

Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

4. New Publications and Items of Interest –

New Publications and Items of Interest

5. Member News –

Member News

6. Government Agency Links –

Government Agency Links

 

Details:

1. Controversial DHS Draft Rule Proposes Changes to Public Charge Definition

A controversial Department of Homeland Security (DHS) draft proposed rule leaked to the media would make it more difficult for legal immigrants who have received public benefits to become U.S. citizens or permanent residents. Immigrants and their immediate family members, including U.S. citizen children, would be included. Currently, immigrants who are likely to become a burden on the government can already be excluded, but the draft rule would expand the definition of impermissible public benefits to include programs like certain Affordable Care Act subsidies, SNAP (formerly Food Stamps), subsidized benefits under Medicaid, and the Children’s Health Insurance Program.

Also included in the draft rule is a proposal to amend the extension of stay and change of status regulations to allow U.S. Citizenship and Immigration Services (USCIS) to consider whether an applicant is using or receiving, or likely to use or receive, public benefits. If implemented, the rule could affect an estimated 20 million immigrants.

The draft rule states that one of the principal problems with the current definition of public charge is that it tests whether the noncitizen is “primarily dependent on the government.” “Primary dependence entails a finding that an applicant for admission or adjustment of status is 50 percent or more dependent on the government. DHS does not believe that an alien must be 50 percent or more dependent on the government to be considered a public charge,” the draft rule notes. DHS is also proposing to define “public “benefit as “any government assistance in the form of cash, checks or other forms of money transfers, or instruments and non-cash government assistance in the form of aid, services, or other relief, that is means-tested or intended to help the individual meet basic living requirements such as housing, food, utilities, or medical care. This includes certain non-cash as well as cash public assistance.”

The draft rule also proposes to codify the “totality of the circumstances” standard used in making public charge determinations. DHS’s proposed standard would involve weighing all the positive and negative considerations related to a person’s “age, health, family status, assets and resources, financial status, education and skills, any required affidavit of support, and any other factor or circumstance that may warrant consideration in the determination.” DHS would also consider the noncitizen’s immigration status as part of this determination. The draft rule proposes that certain factors and circumstances would carry heavy weight. Otherwise, the weight given to an individual factor would depend on the particular facts and circumstances of each case and the relationship of the factor to other factors in the analysis. “For negative factors, some facts and circumstances may be mitigating while other facts and circumstances may be aggravating. Any factor or circumstance that decreases the likelihood of an applicant becoming dependent on public benefits is mitigating. Similarly, any factor or circumstance that increases the likelihood of an applicant becoming dependent on public benefits is aggravating,” the draft rule states.

The draft rule also would propose that USCIS consider a past request or receipt of a fee waiver as part of the financial status factor: “Requesting or receiving a fee waiver for an immigration benefit suggests a weak financial status. In general, a fee waiver is granted based on an alien’s inability to pay the fee. An inability to pay a fee for an immigration benefit suggests an inability to be self-sufficient,” the draft rule states.

The draft rule notes that some immigrant and nonimmigrant immigrant categories are exempt from public charge inadmissibility. According to the draft, DHS plans to propose listing these categories in the regulation. In addition, DHS proposes to list in the regulation the applicants whom the law allows to apply for a waiver of the public charge inadmissibility ground. DHS also proposes to exclude certain public benefits, such as public education, from consideration for purposes of this draft rule.

“Heavily weighted negative factors” under the draft rule would include a lack of employability; receipt or use of one or more public benefits; medical condition(s) without non-subsidized health insurance; a previous finding of inadmissibility or deportability based on public charge. Heavily weighted positive factors include significant income, assets, and resources. “DHS proposes to consider it a heavily weighted positive factor if the alien has financial assets, resources, support, or annual income of at least 250 percent of the [federal poverty guidelines].” Benefits excluded from consideration would include Federal Old-Age, Survivors, and Disability Insurance benefits; veterans’ benefits; government pension benefits, government employee health insurance; government employee transportation benefits; unemployment and worker’s compensation; Medicare benefits (“unless the premiums are partially or fully paid by a government agency); state disability insurance; in-state college tuition; government student loans; and small amounts of public benefits as defined in the draft rule.

The draft rule lists several categories of noncitizens who are exempt from admissibility based on public charge considerations, including refugees and asylees; Amerasian immigrants; Afghan and Iraqi Special Immigrants serving as translators with the U.S. Armed Forces; those applying for adjustment of status under the Cuban Adjustment Act; those adjusting status under certain sections of the Nicaraguan Adjustment and Central American Relief Act; and Haitians adjusting status under the Haitian Refugee Immigration Fairness Act.

The categories and programs could change under any final rule. Any changes would come out first as a proposed rule with time for comments, and it could be a year or longer before any new rule is finalized. Moreover, any final rule could be subject to litigation.

The Alliance of Business Immigration Lawyers recommends that immigrants comply with current rules in the meantime. For example, it appears that California residents are required to sign up for the Affordable Care Act. Even if that were to change under a final rule, they should comply with today’s rules.

The draft rule, which has not yet been published in the Federal Register, is available here.

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2. EB-1 Green Cards Backlogged Worldwide

The Department of State (DOS) announced recently that the worldwide limits on the highest-preference green cards, EB-1s, was reached for the fiscal year.

The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019. While the EB-1 backlog for Indian and Chinese nationals was already expected to last well beyond October, earlier comments from the DOS Visa Control and Reporting Division suggested that the EB-1 worldwide backlog was likely to clear in October with the arrival of the new fiscal year. However, USCIS is now creating demand for visas by prioritizing EB-1 green cards for in-person interviews, and the backlog is not expected to clear for several months.

The final action date for EB-1 worldwide (except for India and China) is expected to be cut off at or before September 30, 2018, and stay there through at least December. The final action date indicates the priority date at which new applications for permanent resident status will no longer be accepted and at which existing applications will cease to move forward through processing.

An October 2018 final action date would give petitioners who file their I-140s between now and the end of September an advantage—provided they are not Indian or Chinese nationals—because they would be able to proceed with filing their applications for permanent resident status if EB-1 does indeed move forward in the new fiscal year.

A number of factors appear to be influencing this ongoing backlog, including the requirement that all employment-based green card applicants must undergo a personal interview at the nearest USCIS District Office. As applicants queue up for interviews with no certain outcome, it muddies the waters by which the DOS judges visa availability for its monthly assessment.

The Visa Bulletin for September notes:

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

The implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY-2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.

The Visa Bulletin also provides the following information on potential monthly movement in the employment-based categories for the next few months:

Employment First:
WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.


Employment Second:
Worldwide: Current for the foreseeable future.
China: Slow movement pending receipt of demand from recent advances
India: Up to two weeks


Employment Third:
Worldwide: Current
China: Up to three weeks
India: Slow movement pending receipt of demand from recent advances
Mexico: Current
Philippines: Minimal


Employment Fourth: Current for most countries
El Salvador, Guatemala, and Honduras: Little, if any forward movement
Mexico: Up to three months


Employment Fifth: The category will remain “Current” for most countries
China-mainland born: Up to one week
Vietnam: Steady forward movement


The above final action date projections…indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

The September 2018 Visa Bulletin

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3. USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence after considering feedback received during a 30-day public comment period. Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending, USCIS said.

On May 10, 2018, USCIS posted a draft policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised memo supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

“As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories,” said Director L. Francis Cissna. “USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws. People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”

USCIS noted that on August 7, 2018, the Department of Homeland Security released the FY 2017 Entry/Exit Overstay Report. The estimated total overstay rates were lower in FY 2017 for F and J nonimmigrants, but the F, M, and J categories continue to have significantly higher overstay rates than other nonimmigrant visa categories, USCIS noted, “supporting the need to address the calculation of unlawful presence for this population.” For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student “has not been out of status for more than five months at the time of filing,” USCIS said. Under the revised memo, the accrual of unlawful presence “is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.”

USCIS noted that “if the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act.” Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Some immigration attorneys believe the revision to the policy is insufficient, especially for those students who may have violated their status earlier. Other potential stumbling blocks may include errors by USCIS or an educational entity entering information into the SEVIS system inaccurately, or students in optional practical training who may be found to have violated status if their training is later found inconsistent with their degrees or who worked at third-party sites that inadequately supervised them.

USCIS plans to hold a national stakeholder engagement regarding this policy memo on August 23, 2018. To receive an invitation to this engagement, submit your email address here.

The USCIS announcement

The revised memo

Additional information on the revised memo

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4. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

Organizations seeking non-lawyer and lawyer volunteers. Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is available here.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. More information 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

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.com and aclu.org.
  • Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.

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5. Member News

Klasko Immigration Law Partners was included in the 2018 Best Places to Work by the Philadelphia Business Journal. The firm was named a Best Place to Work for the third consecutive year. Klasko issued a statement: “Given the emotionally charged climate surrounding immigration, the firm is honored to have continued the tradition of consistently fostering a rewarding and positive work environment.”

Cyrus Mehta was quoted extensively by the Times of India in “Tough Policy for International Students in U.S.” The article is at timesofindia.com.

Mr. Mehta has authored a new blog entry, “USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants in Great Jeopardy.”

Sophia Genovese, of Cyrus D. Mehta and Associates, PLLC, has authored a new blog entry, “Indirect Refoulement: Why the U.S. Cannot Create a Safe Third Country Agreement with Mexico.”

Angelo Paparelli has authored a new blog entry, “California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ ‘FDNS’ Enforcement Officers.”

Stephen Yale-Loehr was quoted by ABC News in “First Lady Melania Trump Sponsored Parents’ Green Card Application.” He noted, “The most obvious way that they would have become green card holders is by being the parents of a U.S. citizen—i.e., Melania Trump.”

Mr. Yale-Loehr was quoted by the Miami Herald in “Venezuelan Military Deserter Faces Deportation Back to Government U.S. Calls Dictatorship.” Mr. Yale-Loehr, who has represented military deserters seeking asylum in the United States and co-directs the asylum clinic at Cornell Law School, said that in the past those who have fled the military from governments of U.S. adversaries have been more likely to gain asylum. “If you’re fleeing a government that the United States supports, like Canada, you’re more likely to lose asylum,” he noted. “But if you’re fleeing a government like Venezuela that the United States opposes then you’re more likely to win asylum, even if the facts are similar.”

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6. 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

Department of State Visa Bulletin

Visa application wait times for any post

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New Data Show Increase in H-1B Denials and RFE’s

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Data released by the National Foundation for American Policy shows a startling impact on immigration by the Trump Administration. H-1B Denials and Requests for Evidence (RFEs) increased significantly from the 3rd quarter of FY 2017 to the 4th quarter, a result of the Buy American and Hire American executive order.

The Trump Administration’s restrictive “Buy American and Hire American” executive order was issued on April 18, 2017, shortly before the start of the 4th quarter of fiscal year 2017, which began on July 1. The impact of the order on the admission of highly skilled foreign workers immediately took hold, as evidenced by data from the National Foundation for American Policy.

The number of denials for H-1B petitions increased from a rate of 15.9% in the third quarter to 22.4% in the fourth quarter, a proportional increase of 41%. The percent of RFE’s issued in the fourth quarter was 69%, compared to 23% in the third quarter. Equally startling data includes the fact that USCIS adjudicators were more likely to issue denials and RFE’s to Indian applicants.

Attorneys from the Alliance of Business Immigration Lawyers agree with the viewpoint of economists that foreign-born professionals greatly benefit America’s economy. An overwhelming percentage of full-time graduate students in electrical engineering and computer science at U.S. universities are international students. These students then stay in the U.S. to work through the STEM Optional Practical Training (OPT) program. This program too has been targeted by the Administration, resulting in a decreased enrollment of 8% in 2017, compared to 34% in 2016. Who has been affected the most? Applicants from India and China.

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs

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A rule about to be proposed by the Trump administration would punish immigrants who use welfare, the Alliance of Business Immigration Lawyers said. The rule, which has become available through leaked drafts, is still in the works, but would disqualify immigrants from obtaining green cards or seeking or renewing temporary visas if they or their dependents, including their U.S. citizen children, have received one or more of a broad range of public benefits.

For over a century, U.S. immigration laws have sought to keep out immigrants who are likely to become a “public charge,” meaning a foreign national who depends on government benefit programs. According to a leaked draft of a new proposed rule, the Trump administration plans to authorize federal officials to broaden their interpretation of what constitutes a public charge. According to an analysis of the draft rule by the Migration Policy Institute at https://www.migrationpolicy.org/news/through-back-door-remaking-immigration-system-expected-public-charge-rule, nearly half of the U.S. noncitizen population could be at risk of a public-charge determination, up from the current 3 percent. The analysis notes that under current rules, only immigrants who primarily depend on cash benefits or who are in government-funded, long-term institutional care are considered public charges. The proposed policy, however, could disqualify immigrants from obtaining permanent residence or seeking or renewing a temporary visa if they or their legal dependents, including U.S. citizens, received one or more of a broad range of public benefits.

Attorneys from the Alliance of Business Immigration Lawyers (ABIL) are fielding many questions regarding this proposal, and are assuring clients that this is just a draft leaked rule. As such, any changes will come out first as a proposed rule, with time for comments. It could be a year or longer until any new rule is finalized. Moreover, any final rule could be immediately subject to litigation.

ABIL advises all applicants to comply with current rules. For example, California residents may be required to sign up for medical insurance under the Affordable Care Act. Even if that were to change under a final rule, the requirement still needs to be complied with at this time.

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News from the Alliance of Business Immigration Lawyers Vol. 14, No. 8A • August 01, 2018

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Headlines:

 

1. State Dept. Announces Oversubscription of August Employment-Based Preference Categories, Limits on Special Immigrant Translator Visa Availability –

The Department of State’s Visa Bulletin for the month of August 2018 includes announcements about employment visa availability.

2. USCIS Postpones Implementation of Memorandum on Notices to Appear –

USCIS announced that issuance of operational guidance is pending for its recent memorandum on notices to appear; therefore, implementation of the memorandum is postponed until the operational guidance is issued.

3. New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, Will Require E-Verify Participation –

CW-1 employers must pay a mandatory $50 “fraud prevention and detection” fee with each petition, in addition to other current fees.

4. CBP Announces Inspection Changes for CW Visa Holders Arriving in Guam –

CNMI-Only Transitional Worker (CW) visa holders may be admitted in Guam when in transit to the Northern Mariana Islands.

5. DHS Extends TPS Designation for Somalia for 18 Months –

DHS has extended the temporary protected status designation for Somalia through March 17, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

6. Office of Foreign Labor Certification Releases Foreign Labor Recruiter List –

OFLC said that providing the list enables the agency to “be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes, because they will be able to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.”

7. ICE Announces Arrests, Charges in New York, Boston –

ICE arrested 65 people for violating U.S. immigration laws during a five-day period ending July 20, 2018, in New York City and on Long Island. In Boston, 25 people were charged as a result of an ICE probe targeting document and benefit fraud.

8. Trump Threatens Immigration-Related Shutdown Ahead of Midterm Elections –

According to reports, Republicans are concerned that this may mean President Trump intends to veto any spending bill that doesn’t include everything he wants, passed by Congress to continue government functions past the end of September, when the government runs out of money.

9. ABIL Global: United Kingdom –

What now for the Windrush Generation?

10. New Publications and Items of Interest –

New Publications and Items of Interest

11. Member News –

Member News

12. Government Agency Links –

Government Agency Links

 

Details:

1. State Dept. Announces Oversubscription of August Employment-Based Preference Categories, Limits on Special Immigrant Translator Visa Availability

The Department of State’s Visa Bulletin for the month of August 2018 includes the following announcement:

OVERSUBSCRIPTION OF AUGUST EMPLOYMENT-BASED PREFERENCE CATEGORIES

WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED FIRST (E1) PREFERENCE: As readers were advised in item F of the July Visa Bulletin, there continues to be an extremely high rate of demand for E1 numbers, primarily for USCIS adjustment of status applicants. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose an E1 Final Action Date for the month of August, with this date being imposed immediately. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

INDIA Employment-based Fourth (E4) AND Certain Religious Workers (SR) preference categories: There has been extremely high demand in these preference categories. Pursuant to the Immigration and Nationality Act, it has been necessary to impose E4 and SR Final Action Dates for India, which has reached its per-country limit. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.

The implementation of the above mentioned dates will only be temporary, with the dates returning to Current status for October, the first month of fiscal year 2019.

The bulletin also includes this update on special immigrant translator visa availability:

Given the limited availability of visa numbers and the existing demand, the Department expects to reach the FY-2018 annual limit of 50 Special Immigrant Visas in the SI category early this year. As a result, it has been necessary to maintain an August Final Action Date of April 22, 2012. Once the annual limit of 50 visas is reached, further issuances in the SI category will not be possible until October 2018, under the FY-2019 annual limit. The SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains current.

The bulletin for August 2018

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2. USCIS Postpones Implementation of Memorandum on Notices to Appear

U.S. Citizenship and Immigration Services (USCIS) announced on July 30, 2018, that issuance of operational guidance is pending for its recent memorandum on notices to appear (NTAs); therefore the implementation of the memorandum is postponed until the operational guidance is issued.

Policy Memorandum 602-0050.1, “Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,” was issued on June 28, 2018, and instructed USCIS components to create or update operational guidance on NTAs and Referrals to ICE, to be issued within 30 days of the Policy Memorandum.

The announcement

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3. New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, Will Require E-Verify Participation

On July 24, 2018, President Trump signed the Northern Mariana Islands U.S. Workforce Act of 2018 (H.R. 5956), extending the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker program (CW-1 program) through 2029 and increasing the CW-1 cap for fiscal year (FY) 2019. The CW-1 program allows employers within the CNMI to apply for permission to employ foreign (nonimmigrant) workers who are otherwise ineligible to work in the CNMI under other nonimmigrant worker categories.

CW-1 employers must pay a mandatory $50 “fraud prevention and detection” fee with each petition, in addition to other current fees. USCIS said it will reject any petition received after July 24, 2018, that includes incorrect or insufficient fees. This new fraud prevention and detection fee does not apply to CW petitions already filed and pending with USCIS as of July 24, 2018.

The Workforce Act will require CNMI employers seeking CW-1 workers to enroll in E-Verify and comply with the requirements of the E-Verify program. Although E-Verify enrollment is not currently required, it will soon be a requirement for all employers filing for CW-1 visas. U.S. Citizenship and Immigration Services (USCIS) said it “strongly encourages CNMI employers to enroll in the E-Verify program as soon as possible.”

The Workforce Act raises the CW-1 cap for FY 2019 from 4,999 to 13,000, and provides new CW-1 caps for subsequent fiscal years. After announcing on April 11, 2018, that it had received CW-1 petitions for more than the number of visas previously available for FY 2019, USCIS will now resume accepting CW-1 petitions. Employers whose petitions were previously rejected because the cap was reached must file a new petition if they want CW workers to be considered under the increased cap. USCIS said it did not retain and cannot reopen previously rejected petitions.

In addition to extending the CW-1 program, the Workforce Act extends the following Consolidated Natural Resources Act of 2008 provisions until December 31, 2029:

  • The exemption from national caps for H-1B and H-2B workers in the CNMI and on Guam;
  • The bar on asylum applications in the CNMI; and
  • The CNMI-Only Nonimmigrant Investor (E-2C) program.

USCIS said the Department of Homeland Security (DHS) is exercising its discretion, as provided in the Act, to delay implementation of other changes to the CW program affecting
CW-1 filers until DHS issues an interim final rule. As of July 24, 2018, USCIS will only accept the May 9, 2018, version of Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker. USCIS will reject and return fees for any petitions submitted using a December 11, 2017, or earlier version date of Form I-129CW.

The USCIS notice

The new law

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4. CBP Announces Inspection Changes for CW Visa Holders Arriving in Guam

U.S. Customs and Border Patrol (CBP) has announced that under the Northern Mariana Islands U.S. Workforce Act of 2018, effective immediately, CNMI-Only Transitional Worker (CW) visa holders may be admitted in Guam when in transit to the Commonwealth of the Northern Mariana Islands (CNMI). A CW nonimmigrant visa is valid for admission to Guam for the purpose of transit only.

The CW visa classification allows employers in the CNMI to apply for permission to employ foreign (nonimmigrant) workers who are otherwise ineligible to work under other nonimmigrant worker categories. Individuals approved for CW status who travel outside of the CNMI must obtain a CW nonimmigrant visa from the U.S. embassy or consulate in their country of citizenship to apply for readmission to the CNMI and retain their CW status.

The CBP announcement

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5. DHS Extends TPS Designation for Somalia for 18 Months

The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Somalia for 18 months, through March 17, 2020, due to “ongoing armed conflict and extraordinary and temporary conditions.”

Individuals from Somalia with TPS will be eligible to re-register for an extension of their status through March 17, 2020. Before the conclusion of the 18-month extension, DHS Secretary Kirstjen Nielsen will review conditions in Somalia to determine whether its TPS designation should be extended again or terminated.

DHS said there are approximately 500 Yemeni TPS beneficiaries. This 18-month extension of Somalia’s designation for TPS permits current Somali TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through March 17, 2020. To be eligible for TPS under Somalia’s current designation, along with meeting the other eligibility requirements, such individuals must have continuously resided in the United States since May 1, 2012, and have been continuously physically present in the United States since September 18, 2012.

The announcement

Further details about this extension for TPS, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice.

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6. Office of Foreign Labor Certification Releases Foreign Labor Recruiter List

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has published a list of foreign labor recruiters. OFLC said that providing the list enables the agency to “be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes, because they will be able to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.” OFLC said workers may use the partial case number(s) associated with a recruiter on the list to identify the particular job order(s) in OFLC’s Electronic Job Registry, available in the iCERT system, for which the recruiter is seeking workers.

The Department said it compiles this data from disclosures employers and their attorneys or agents made in conjunction with filing a Form ETA-9142B, H-2B Application for Temporary Employment Certification, about the foreign labor recruiters they engage, or plan to engage, in the recruitment of H-2B workers.

The Department noted that it does not endorse or vouch for any foreign labor agent or recruiter included in the Foreign Labor Recruiter List, nor does inclusion on the list signify that the recruiter is in compliance with the H-2B program.

The announcement and list

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7. ICE Announces Arrests, Charges in New York, Boston

Officers from U.S. Immigration and Customs Enforcement’s (ICE) Enforcement and Removal Operations (ERO) arrested 65 people during a five-day period ending July 20, 2018, in New York City and on Long Island. In Boston, 25 people were charged as a result of an ICE Homeland Security Investigations (HSI) probe targeting document and benefit fraud.

During the New York operation, ERO arrested 65 individuals for violating U.S. immigration laws. The arrestees include nationals from Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, and Ukraine. ERO deportation officers made arrests in the Bronx, Brooklyn, Queens, Manhattan, Staten Island, Nassau County, and Suffolk County.

Charges filed in Boston included a wide range of crimes, from aggravated identity theft to theft of public funds and others. The arrests and charges announced were a result of “Operation Double Trouble,” a long-term, coordinated investigation by HIS’s Document and Benefit Fraud Task Force (DBFTF) comprising local, state, and federal agencies “joining together to detect, deter and disrupt organizations and individuals involved in a wide range of document, identity and benefit fraud schemes,” ICE said.

ICE’s New York announcement

ICE’s Boston announcement

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8. Trump Threatens Immigration-Related Shutdown Ahead of Midterm Elections

On July 29, 2018, President Donald Trump tweeted:

I would be willing to “shut down” government if the Democrats do not give us the votes for Border Security, which includes the Wall! Must get rid of Lottery, Catch & Release etc. and finally go to system of Immigration based on MERIT! We need great people coming into our Country!

With respect to funding a wall along the border with Mexico, which President Trump previously promised Mexico would pay for, in May President Trump said, “we’re going to get the wall, even if we have to think about closing up the country for a while.” He signed a spending bill in late March without everything he wanted in it but said, “I will never sign another bill like this again.”

As of press time, there were no further specifics. According to reports, Republicans are concerned that this may mean President Trump intends to veto any spending bill that doesn’t include everything he wants, including bills passed by Congress to continue government functions past the end of September, when the government runs out of money. Some in Congress hope to avoid drama before the midterm elections in November.

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9. ABIL Global: United Kingdom

What now for the Windrush Generation?

The United Kingdom (UK) government’s “hostile environment” policy was introduced in 2014 with the intention of identifying migrants in the UK without immigration permission with the ultimate purpose of removing those deemed to be without lawful status from the UK. This was achieved by restricting access to employment, housing, and vital public services such as health care, as well as detaining individuals who could not provide evidence of their immigration status. Unfortunately, it had a wider impact on those who were lawfully in the UK but had not previously been required to hold documentary evidence. One such group was the “Windrush Generation”—Commonwealth citizens who arrived in the UK before 1973 and who were given indefinite permission to reside in the UK by virtue of the Immigration Act 1971. Many came from the Caribbean in 1948 on a ship called the “Empire Windrush,” and more came in subsequent years. They did not need a document to prove their status; their initial date of entry was deemed to be sufficient. Children born in the UK to Windrush parents were also automatically born British.

There are reports of a number of individuals being wrongfully caught by the hostile environment policy by, for example, being prevented from returning to the UK following overseas travel, facing bankruptcy and destitution as a result of losing jobs and access to benefits, or having their housing taken away.

Following media pressure, the government committed to “swiftly put right the wrongs that have been done.” A new task force has handled more than 13,000 queries to date and guidance has been published for affected individuals. Concessions have been made for those who wish to naturalize as British citizens. Application fees have been waived for confirmation of immigration or nationality status.

In terms of the hostile environment policies, guidance for employers and landlords has been updated to deal with undocumented Commonwealth citizens. The government has also suspended a series of other policies, including checks on bank accounts and data-sharing with the revenue and customs, driver and vehicle licensing, and work and pensions agencies. A compensation scheme designed to help those wrongfully affected is to be set up shortly.

While it seems that much has been done to help those affected by the hostile policies, the government’s response was unacceptably slow after much of the damage had been caused. Not only should lessons be learned from this, but the system as a whole needs to be reviewed seriously, with transparency and public consultation, if the government wants to stop this from happening again.

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10. New Publications and Items of Interest

A new study on H-1B denials and requests for evidence (RFEs) by the National Foundation for American Policy (NFAP) finds that H-1B denials and RFEs increased significantly in the fourth quarter of FY 2017, likely due to new Trump administration policies, according to data obtained from U.S. Citizenship and Immigration Services (USCIS). The proportion of H-1B petitions denied for foreign-born professionals increased by 41% from the third to the fourth quarter of FY 2017, rising from a denial rate of 15.9% in the third quarter to 22.4% in the fourth quarter. The number of RFEs in the fourth quarter of FY 2017 almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 versus 63,599). Failure to comply with an adjudicator’s RFE will result in the denial of an application. As a percentage of completed cases, the RFE rate was approximately 69% in the fourth quarter compared to 23% in the third quarter of FY 2017, the study found. A report on the study is here.

Alliance of Business Immigration Lawyers:

Organizations seeking non-lawyer and lawyer volunteers. Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is available here.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division will present a series of webinars for employers and employees. For more information, see Justice Dept. Website.

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 available 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
  • How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, nytimes.com and aclu.org.
  • Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.

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11. Member News

In addition to those listed in the previous Insider, the following were included in Who’s Who 2018:

Seth Dalfen (Gomberg Dalfen)

Helene Dang (Foster LLP)

Addie Hogan (Pearl Law Group)

Jan Pederson (Maggio Kattar Nahajzer & Alexander, PC)

Jay Strimel (Seyfarth Shaw LLP)

Cyrus Mehta has authored a new blog entry, “Heightened Ethical and Strategic Considerations for Business Immigration Attorneys After USCIS’s New Removal Policy.”

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry, “Vague Laws Invite Arbitrary Power: Making the Case for Crimes Involving Moral Turpitude Being Void for Vagueness.”

Mr. Mehta and Ms. Genovese have co-authored a new blog entry, “Administrative Review Versus Judicial Review When an Employment-Based Petition is Denied.”

Angelo Paparelli was included in the Daily Journal‘s “Top Labor & Employment Lawyers” list. The Daily Journal is a leading law news periodical in California.

Mr. Paparelli was quoted by Bloomberg Law in “Judge Gives Calif. Lawyers ‘Breathing Room’ on Immigration.” He said that California’s Immigrant Worker Protection Act (A.B. 450) “created a lot of confusion” for employers trying to comply with both state and federal authorities. With the court’s order, he said, “I think we are back to square one,” and you “can take your immigration lawyer off speed dial.” With respect to site visits by USCIS’s Fraud Detection and National Security Directorate (FDNS), he said the “standard process is to get access to the workplace of the individual” whose visa petition was the basis for the visit. The idea is to ensure that the foreign worker’s job location, job duties, and other information match up with what the employer listed on the petition. “That is where there is a clear conflict with A.B. 450.” If an employer won’t allow the FDNS agent to view the employee’s work space without a warrant, or the employee’s paperwork without a subpoena, the agency will revoke the petition, he said. If the employer allows an FDNS agent in, it could face fines from the state. The article

Mr. Paparelli was quoted by Law360 in “USCIS Memos Signal Sea Change for Business Immigration.” He said that attorneys should file for renewal up to six months before the current expiration of status so that applicants do not fall out of status before the agency adjudicates their petitions, which would make them vulnerable to removal proceedings. He also advised referencing USCIS regulations on initial evidence required in visa petitions, creating a record of the exact evidence provided to satisfy each element in anticipation of potential federal court litigation. The article is available by registering here.

Stephen Yale-Loehr will talk about “Our Broken Immigration System and How to Fix It” at Dartmouth’s Osher Lifelong Learning Institute in Hanover, New Hampshire on August 2, 2018, as part of a series, “Our Divided Country: How to Find Common Ground.” For more information or to register.

Mr. Yale-Loehr was quoted recently by various media outlets:

On family reunification:

  • Univision
  • Agence France-Presse (numerous newspapers, including this article).
  • Pacific Standard: Mr. Yale-Loehr noted that if the government misses the deadline, the federal judge has little means to enforce the order. “You can’t throw the government in jail. It’s hard to do too much as a court, other than keep the hearings public…and try to urge the government to reunify the families as soon as possible.”

On the EB-5 program:

  • Pacific Standard, “Amid Immigration Uproar, Trump Keeps Mum on the EB-5 Immigrant Investor Program.” Mr. Yale-Loehr said, “In March, Congress considered making significant changes to the EB-5 program, such as increasing the minimum investment amount to $800,000 and making it harder to put EB-5 projects in major metropolitan areas. Because of the mid-term elections this fall, I suspect that Congress will again kick the EB-5 can down the road and extend the program for another year without making any changes.”

On the decline in optional practical training (OPT) applications:

  • San Jose Mercury News, “H-1B Visa Alternative ‘OPT’ Sees Big Drop in Growth.” The shrinkage is likely a result of moves by the White House to limit immigration; the Trump administration has “declared war” on legal immigrants, leading to worries among foreign students about the future, said Mr. Yale-Loehr. “Foreign students are concerned about whether they’ll be able to work in the United States after they graduate, either on OPT or on an H-1B after OPT. We may be seeing more international students returning home after they graduate, rather than applying for OPT. We’re shooting ourselves in the foot by dissuading international students from staying in the United States. In effect, we’re telling the best and the brightest to go back home and set up companies in their countries that will compete with U.S. companies.”

On ICE tactics:

  • NBC News, “Numbers Show ICE is Using Tougher Tactics in New York Under Trump, Says Report.” Mr. Yale-Loehr said, “”ICE feels more liberated in arresting people than under the prior administration.” He noted that courthouse arrests make immigrants afraid to report crimes. “It makes immigrants fearful about reporting crimes to the police, showing up for cases that they are supposed to be involved with or testify in or attend because they have a relative in the case. It’s the same kind of concern that police officers have about ICE enforcement priorities generally.”
  • Daily Mail, “ICE More Than Tripled Its U.S. Work Place Investigations in 2018.” Mr. Yale-Loehr said, “I question whether this takes away resources that really should go after criminal gangs and other serious criminal aliens. The administration is trying to instill fear among undocumented immigrants.”

On U.S. asylum:

  • Voice of America, “Questions, Answers About Seeking Asylum in U.S.” Mr. Yale-Loehr said that asylum-seekers “need to be better prepared than ever before, and they need to make sure their testimony is consistent. …People can still win asylum if they have well-prepared cases. In my experience, most people who apply for asylum do so out of desperation, not because they’re trying to game the system. We have an international commitment to make sure people are not sent back to the place [where] they would be persecuted. It’s not just something nice to do, it’s our obligation to protect those people.”

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12. 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

Department of State Visa Bulletin

Visa application wait times for any post

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