News from the Alliance of Business Immigration Lawyers Vol. 15, No. 3B • March 15, 2019

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Headlines:

1. Trump Administration Plans to Close USCIS International Operations -USCIS Director L. Francis Cissna told senior staff that the agency’s International Operations Division, which operates in more than 20 countries, will be closed down. The duties of those offices will be transferred to U.S. embassies and consulates and to domestic U.S. offices.

2. USCIS Resumes Premium Processing for All H-1B Petitions -USCIS has resumed premium processing for all H-1B petitions as of March 12, 2019. All H-1B petitions may be upgraded to premium processing or filed originally with a request for premium processing.

3. USCIS Releases Notes on H-1B Filing Tips and RFEs -USCIS discussed five common reasons for RFEs on H-1B petitions, among other things, at a March teleconference.

4. Europe to Require Authorization of U.S. Travelers, Not Visas, for Short-Term Travel -Recent news reports erroneously stated that starting in 2021, visas would be required of U.S. travelers entering Europe. In fact, pre-travel automated screening and authorization, but not visas, will be required to check for “security and migration risks” for those benefiting from visa-free access to Schengen area countries, according to the European Commission.

5. SSA Announces New Travel and Border Crossing Records System -The Social Security Administration has announced a new “Travel and Border Crossing Records” system. The new system will collect information about applicants, beneficiaries, and recipients under Titles II, XVI, and XVIII who have had absences from the United States.

6. TPS Designation Extended for South Sudan -The 18-month extension permits current beneficiaries under South Sudan’s TPS designation to re-register for TPS and remain in the United States with work authorization through November 2, 2020.

7. New Publications and Items of Interest -New Publications and Items of Interest

8. ABIL Member / Firm News -ABIL Member / Firm News

9. Government Agency Links -Government Agency Links

Details:

1. Trump Administration Plans to Close USCIS International Operations

According to reports, the Trump administration plans to close international U.S. Citizenship and Immigration Services (USCIS) offices by the end of 2019. USCIS Director L. Francis Cissna told senior staff that the agency’s International Operations Division, which operates in more than 20 countries, will be closed down. The duties of those offices will be transferred to U.S. embassies and consulates and to domestic U.S. offices and the Department of State (DOS), if DOS agrees. USCIS personnel staffing those offices will return to the United States.

DOS said if it reaches such an interagency agreement, “we anticipate a smooth transition and continued efficient processing of USCIS-related work at all of our missions overseas.” DOS has more than 200 posts worldwide.

Director Cissna said in an email to staff that the closures will “better leverage our funds to address backlogs in the United States while also leveraging existing [DOS] resources at post.” He noted that change “can be difficult and can cause consternation. I want to assure you we will work to make this as smooth a transition as possible for each of our USCIS staff while also ensuring that those utilizing our services may continue to do so and our agency operations continue undisrupted.

In addition to helping people apply for immigration benefits, these offices provide assistance in such tasks as helping U.S. citizens and lawful permanent residents, including military personnel abroad, bring family members to the United States or help them apply for U.S. citizenship; international adoptions; refugee resettlement; and immigration fraud investigations.

According to the International Operations (IO) Division’s website, the division’s work includes reuniting families, enabling adoptive children to come to join permanent families in the United States, considering parole requests from individuals outside the United States for urgent humanitarian reasons or significant public benefit, and providing information services and travel documents to people around the world, including those with unique needs and circumstances. “Operating in a dynamic global environment with constantly changing political, cultural, environmental, and socio-economic contexts, IO has approximately 240 employees located in the U.S. and in three international districts composed of 24 field offices in 21 countries. Our employees are highly diverse and include foreign nationals in addition to U.S. citizens; foreign nationals make up more than half of the IO staff working abroad and approximately one-third of all IO employees.”

Immigration advocates expressed concerns about further discouraging immigrants and disengaging the United States from the rest of the world. Barbara Strack, former chief of USCIS’ Refugee Affairs Division, said the closures would “throw [the legal immigration system] into chaos around the world.” She warned that the move would “smack all government employees abroad, including folks in the military, who have a foreign spouse or kids they are trying to bring to the U.S. legally.”

More information about IO

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2. USCIS Resumes Premium Processing for All H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for all H-1B petitions as of March 12, 2019. All H-1B petitions may be upgraded to premium processing or filed originally with a request for premium processing.

In recent years, USCIS has discontinued premium processing for H-1B cap cases in April to allow sufficient time for application of the lottery and receipting-in of selected petitions. Last year, the agency extended the suspension of premium processing well beyond the cap filing season and expanded the suspension to include most H-1B petitions.

In January 2019, premium processing was restored for FY 2019 cap-subject petitions that were filed in April 2018 and remained pending. In February, USCIS resumed premium processing for non-cap H-1B petitions filed before December 21, 2018. Now USCIS has restored premium processing for all H-1B petitions.

It is not clear whether the agency will continue premium processing for all H-1B petitions once H-1B cap petitions are filed in the first week of April. It is possible that USCIS could discontinue premium processing again for H-1B cap petitions or even other types of petitions.

To request an upgrade to premium processing for pending petitions that have received a Request for Evidence (RFE), petitioners should include their request for premium processing, along with the required fee, when submitting the response to the RFE. The USCIS filing fee for premium processing is $1,410, which guarantees action on the petition within 15 calendar days of USCIS’s receiving the request. If USCIS does not take adjudicative action within the 15-day window, the agency refunds the petitioner’s premium processing fee and continues with expedited processing of the petition.

Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays. If the petition was transferred and the petitioner sends the premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing “clock” will not start until the premium processing request has been received at the correct center.

The USCIS notice, which includes additional details about where to send premium processing requests in the event of a transfer

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3. USCIS Releases Notes on H-1B Filing Tips and RFEs

U.S. Citizenship and Immigration Services (USCIS) has released the official minutes from its teleconference on “H-1B Filing Tips and Requests for Evidence (RFEs),” held March 7, 2019.

Among other things, USCIS discussed five common reasons for RFEs on H-1B petitions:

  1. Evidence demonstrating that the offered position qualifies as a specialty occupation;
  2. Whether the labor condition application properly corresponds to the proffered position in the petition;
  3. Evidence of the employer-employee relationship and qualifying work;
  4. Evidence of the beneficiary’s qualifications; and

The minutes

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4. Europe to Require Authorization of U.S. Travelers, Not Visas, for Short-Term Travel

Recent news reports erroneously stated that starting in 2021, U.S. citizens traveling to Europe will need visas. In fact, pre-travel automated screening and authorization, but not visas, will be required to check for “security and migration risks” for those benefiting from visa-free access to Schengen area countries, according to the European Commission (EC). The “European Travel Information and Authorisation System” (ETIAS) will cross-check visa-exempt travelers, including those from the United States, against European information systems for borders, security, and migration. The automated check is expected to take “minutes” in most cases. The application fee is expected to be about $8.

An EC fact sheet states that an ETIAS travel authorization does not reintroduce visa-like obligations. There is no need to go to a consulate to make an application, no biometric data are collected, and significantly less information is gathered than during a visa application procedure. As a general rule, a Schengen visa procedure can take up to 15 days, and can in some cases be extended up to 30 or 60 days, but the online ETIAS application “only takes a few minutes to fill in. The validity will be for a period of three years, significantly longer than the validity of a Schengen visa. An ETIAS authorisation will be valid for an unlimited number of entries,” the EC states. U.S. travelers staying in Europe for more than 90 days must have a visa.

The Schengen area includes 26 of the 28 European Union (EU) countries, and a few non-EU countries.

A list of countries in the Schengen area

The European Commission’s statement

Additional details

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5. SSA Announces New Travel and Border Crossing Records System

The Social Security Administration (SSA) has announced a new “Travel and Border Crossing Records” system. The new system will collect information about applicants, beneficiaries, and recipients under Titles II, XVI, and XVIII who have had absences from the United States.

The SSA noted that currently, the agency relies on individuals to self-report their foreign travel. Often, the SSA said, it does not receive these reports or receives them untimely, which results in improper payments. For example, the SSA noted, in general, it suspends Title II benefits to aliens who remain outside of the United States for more than six consecutive calendar months. It generally suspends Title II benefits to both U.S. citizens and non-U.S. citizens who travel to a country where payment is restricted by the United States. Additionally, the SSA suspends Title XVI payments to both citizen and noncitizen recipients who are outside of the United States for a full calendar month or 30 consecutive days or longer. With regard to Title XVIII, the SSA plans to collect this information to make decisions on Medicare entitlement claims and to make determinations on physical presence in the United States.

The SSA notice

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6. TPS Designation Extended for South Sudan

Secretary of Homeland Security Kirstjen M. Nielsen announced on March 8, 2019, the extension of the temporary protected status (TPS) designation for South Sudan for an additional 18 months due to the ongoing armed conflict and “extraordinary and temporary conditions” that support the extension.

There are 84 South Sudan TPS beneficiaries, according to Secretary Nielsen. This 18-month extension of South Sudan’s designation for TPS permits current beneficiaries under South Sudan’s TPS designation to re-register for TPS and remain in the United States with work authorization through November 2, 2020. (The last day of the most recent previous extension is May 2, 2019.) To be eligible for TPS under South Sudan’s current designation, along with meeting the other eligibility requirements, individuals must have continuously resided in the United States since January 25, 2016, and have been continuously physically present in the United States since May 3, 2016.

Secretary Nielsen’s statement

Additional details and official re-registration information will be posted

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7. New Publications and Items of Interest

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. For more information or to register, see https://www.justice.gov/crt/webinars.

E-Verify webinars. E-Verify recently made the following announcement: “E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service.” Information is available here. The March 2019 E-Verify webinar calendar is also available. For more on E-Verify, see https://www.e-verify.gov/.

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 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.gov.

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

Advisories and tips:

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

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8. ABIL Member / Firm News

Dagmar Butte will be speaking at the following events:

  • AILA Rome Chapter Conference in Berlin, Germany, on April 30, 2019, on the effect of marijuana legalization at the state level on federal immigration law
  • Federal Bar Association National Conference in Austin, Texas, on May 17, 2019, on “Fundamentals of Business Immigration Law”
  • American Immigration Lawyers Association Annual Conference in Orlando, Florida, on June 19, 2019, on “Changes to Immigration Law Via Trump Administration Memos”
  • Chair of Business Track for AILA Annual Conference in Orlando (see above)

Robert Loughran, partner at Foster LLP, recently spoke on a panel in Austin, Texas, at the South by Southwest (SXSW) Conference. “How Foreign Entrepreneurs Thrive in Trump’s America: It’s (Not So) Complicated” focused on the immigration, corporate, and financial/tax implications foreign entrepreneurs face when setting up a business in Texas and the United States in light of the Trump administration’s new immigration policies. More information

Mr. Loughran and Matthew Myers presented on U.S. immigration considerations specific to Japanese investors, companies, and employees, to representatives of 19 Japanese companies visiting San Antonio, Texas, as part of an economic development delegation at a dinner hosted by the San Antonio Economic Development Foundation. The event took place March 7, 2019.

Cyrus Mehta has authored several new blog entries: “The Best Way for Trump to Offer “Love and Sympathy’ is to Repeal the Muslim Ban,” “Advancing a ‘Social Group Plus’ Claim After Matter of A-B-,” and “.”

Angelo Paparelli has authored a new blog entry, “.”

Stephen Yale-Loehr was quoted by the New York Times in “Ninth Circuit Appeals Court Grants More Protections for Asylum Seekers.” In response to the court’s decision that immigration authorities can no longer swiftly remove asylum seekers who fail an initial screening, Mr. Yale-Loehr said, “This is a historic decision. But the government will surely appeal this to the Supreme Court.” The article

Mr. Yale-Loehr was quoted by CNN in “Meet the Immigrant Who Got a Second Chance from Justice Neil Gorsuch.” The article notes that Justice Gorsuch sided with the Supreme Court’s liberals in invalidating a provision of federal law that requires the mandatory removal of immigrants who have been convicted of some “crimes of violence,” agreeing that the law was unconstitutionally vague. Mr. Yale-Loehr noted that Justice Gorsuch’s vote did not necessarily make him pro-immigrant in every case, as evidenced by some of his other opinions. “But like his predecessor, Justice Scalia, he hates vague laws. This case shows that Congress needs to be more careful when it drafts immigration laws,” Mr. Yale-Loehr said. See CNN for more.

Mr. Yale-Loehr was quoted by Bisnow South Florida in “EB-5 Fund USIF Sued for Racketeering by Representative of Chinese Investors.” The U.S. Immigration Fund bundles foreign money to be loaned to developers for U.S. based projects. The Chicago-based Chinese-American researcher who filed the suit, Xuejun Makhsous, also known as Zoe Ma, alleges that Chinese investors were led to believe that they were backing a five-year loan with a real estate development as collateral, but they were actually purchasing limited partnership interests in a fund not secured by real estate. “It’s an interesting but novel argument. It remains for the court to decide whether it has validity.” The article

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9. 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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