July 2019 — ABIL

2. USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations

U.S. Citizenship and Immigration Services (USCIS) has published a final rule, effective November 21, 2019, amending the regulations governing the employment-based fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and “modernize” the EB-5 program. The final rule provides priority date retention for certain EB-5 investors, increases the required minimum investment amounts, changes the targeted employment area (TEA) designation process, and clarifies USCIS procedures for the removal of conditions on permanent residence.

Among other things, the final rule:

Clarifies that the priority date of a petition for classification as an investor is the date the petition is properly filed
Clarifies that a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date
Retains the 50 percent minimum investment differential between a TEA and a non-TEA instead of changing the differential to 25 percent as proposed, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000 rather than $1.35 million, as DHS initially proposed (the minimum non-TEA investment will be $1.8 million)
Bases future inflation adjustments on the initial investment amount set by Congress in 1990 rather than on the most recent inflation adjustment
Modifies the original proposal that any city or town with a population of 20,000 or more may qualify as a TEA, to provide that only cities and towns with a population of 20,000 or more outside of metropolitan statistical areas may qualify as a TEA, eliminates a state’s ability to designate certain geographic and political subdivisions as high unemployment areas, and gives the Department of Homeland Security responsibility for directly making TEA designations “based on revised requirements in the regulation limiting the composition of census tract-based TEAs”

Practitioners are expecting a rush on EB-5 investments in the months before the effective date of November 21, 2019, which could increase the already long waits for EB-5 visas for those from high-volume countries by years, assuming Congress does not allocate additional visa numbers or eliminate per-country caps.

Details: USCIS announcement; Final rule

3. Judges Rule on Third-Country Asylum Ban

Following a joint interim rule issued by the Departments of Justice and Homeland Security on July 16, 2019, that restricted asylum, with some exceptions, for migrants traveling through third countries to reach the United States (most notably for many Central Americans passing through Mexico), two judges issued rulings in separate cases:

Judge Timothy Kelly, of the U.S. District Court in Washington, DC, declined to issue a temporary order to block the asylum ban.
Judge Jon Tigar, of the U.S. District Court in San Francisco, California, issued a preliminary injunction to block the ban until the arguments can be considered and a final decision can be issued.

Details: News reports: CBS News, Immigration Impact; DHS announcement of joint interim rule; interim final rule; ACLU complaint

4. H-2B Petitioners Must Include Temporary Labor Certification Final Determination With Form I-129

U.S. Citizenship and Immigration Services (USCIS) announced on July 26, 2019, that employers who file an H-2B application for temporary labor certification in FLAG will only receive a temporary labor certification electronically, as of July 3, when the Department of Labor implemented its new Foreign Labor Certification Application Gateway (FLAG) system for the H-2B temporary nonagricultural worker program. Those whose applications for a temporary labor certification were processed in FLAG must include a printed copy of the electronic one-page “final determination” of their H-2B temporary labor certification approval when submitting the Form I-129, Petition for a Nonimmigrant Worker.

USCIS said it will consider a printed copy of the final determination as the original and approved temporary labor certification. Applicants must also ensure that the DOL Case Number identified on the final determination matches the ETA Case Number provided in Part 5, Item 2 of the I-129.

Details: USCIS announcement

5. USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently released its 2019 Annual Report.

The report notes that requests for help related to employment authorization documents (EADs) constituted the single largest source of work for the Ombudsman’s Case Team in calendar year 2018—over a third of its total case load. During a four-month period between December 2017 and March 2018, the number of incoming EAD cases spiked 400 percent, most related to processing delays.

The Ombudsman also noted that it explored in depth the H-1B visa program. The lengthy, detailed H-1B section includes 290 footnotes and several recommendations for changing implementation of the H-1B program by USCIS and the Department of Labor to align with President Trump’s “Buy American and Hire American” (BAHA) executive order.

Details: USCIS Ombudsman’s Annual Report for 2019; BAHA order

6. New Publications and Items of Interest

How to prepare for immigration raids. Cornell University’s immigration technology clinic has developed an automated online interview to help people prepare if they or others are worried about being detained or deported. It can help people prepare their family, manage their property, close out their bank accounts, and perform other emergency preparations. The online interview is available in English and Spanish.

Responding to large-scale immigration raids. The Immigration Justice Campaign and the American Immigration Lawyers Association have released information on what to do in the event of large-scale interior enforcement actions. See Immigration Justice and AILA.

CBP accountability. A new website documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project. Click here to view the website.

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. More information or to register

Alliance of Business Immigration Lawyers:

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

Organizations providing help at the southern border and seeking non-lawyer and lawyer volunteers. Cornell Law School’s Migration and Human Rights Program has compiled a list of organizations providing help at the southern border, and seeking donations and 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.

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

- Statutes of Liberty: (new episodes: A Prescription for Success: EB-1 for Physicians; The Best, Brightest, and Backlogged, discusses the backlog, who it affects, how to read the Visa Bulletin, and strategies for EB-1 visas)
- 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 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.

7. ABIL Member / Firm News

Charles Kuck was quoted by the Atlanta Journal Constitution in “Georgia’s Immigration Court Judges Among Toughest in Nation for Asylum.” “I have never seen [immigration] courts as dire as these ones [in Georgia] in the context of granting asylum, which seem to be so far out of the mainstream, not just of other courts around the country but of the actual law itself of asylum,” he said.

Mr. Kuck was quoted by the Atlanta Journal Constitution in “New Details: ICE Detainee From Mexico Dies in South Georgia.” “It is unconscionable. It should be shut down,” Mr. Kuck said of the Stewart Detention Center.

Mr. Kuck recently discussed “the flawed logic of the new Expedited Removal reg, and 9 things we can do to protect ourselves from ICE over-enforcement! We also talk about the Padilla/Matter of M-S- ruling on asylum bonds.” See #TheImmigrationHour on Twitter.

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Expansion of Expedited Removal: Why Pushing to the Limits of the Statute Unconstitutionally Deprives People of Due Process of Law.”

Cyrus Mehta and Stephen Yale-Loehr were quoted by the Times of India in “As U.S. EB-5 Visas Become Expensive, Indian Applications Expected to Slump.” Mr. Yale-Loehr said, “The new EB-5 changes will affect investors from India in a variety of ways. First, I predict a surge of EB-5 petition filings until November 21. After that, I expect a sharp decline in EB-5 petitions, as fewer people will be able to satisfy the new minimum investment amount.” Mr. Mehta noted that many of the attractive projects that are designated in targeted employment areas in metropolitan areas may no longer receive such a designation after November 21, so the investment will go from $500,000 currently for such a project to $1.8 million. “Under the current RBI [Reserve Bank of India] guideline of only allowing $250,000 to be remitted out of India per financial year, the higher investment amounts will serve as a further disincentive. I predict that there will be a rush to file EB-5 applications before the rule change on November 21.

Mr. Yale-Loehr was quoted by Reuters in “U.S. to Expand Rapid Deportation Nationwide With Sweeping New Rule.” Mr. Yale-Loehr said the new policy will create chaos and fear in immigrant communities and could have unintended consequences. “U.S. citizens could be expeditiously removed by error. You don’t have a lot of room to challenge that. You can’t go before an immigration judge,” he noted.

Mr. Yale-Loehr was quoted in several other media outlets about the expansion of expedited removal:

New York Times: “Trump Administration Expands Fast-Tracked Deportations for Undocumented Immigrants”

Law360: “DHS Vastly Expands Deportation Authority,” available by registering here.

Mr. Yale-Loehr was quoted by Tampa Bay Times in “Despite Trump’s Claims, ICE Is Arresting Way More Immigrants Without Criminal Records—Especially in Florida.” Immigration enforcement agents can now “round up anybody they could find, whether they had a criminal conviction or not,” he noted.

8. 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:

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 7C • July 21, 2019

July 21, 2019/in Immigration Insider /by ABIL

Headlines:

1. DOL Unveils New H-2A Proposed Rule -Among other things, the Notice of Proposed Rulemaking would mandate electronic filing of job orders and applications, promote the use of digital signatures, and provide employers with the option of staggering the entry of H-2A workers on a single application.

2. House Holds Hearing on USCIS Policy Changes, Processing Delays -Witnesses included representatives from USCIS, the American Immigration Lawyers Association, Catholic Legal Immigration Network, the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.

3. OFLC Announces List of H-2B Applications Selected for Assignment -OFLC announced the group of 493 H-2B applications covering 12,098 worker positions with the start date of work of October 1, 2019, randomly selected for assignment.

4. State Dept. Announces Temporary Establishment and Retrogression of August Employment-Based Final Action Dates -There has been a steadily increasing level of employment-based applicant demand for adjustment of status cases, and there is no indication that this trending increase will end. Therefore, the agency has established or retrogressed many of the August Final Action Dates.

5. DHS, DOJ Issue Joint Third-Country Asylum Rule -The Departments of Homeland Security and Justice issued a joint interim final rule barring eligibility for asylum, with some exceptions, for those entering or attempting to enter the United States via the southern border after transiting through a third country. The ACLU and others quickly filed suit to stop the ban.

6. USCIS Announces Changes to Naturalization Test -A USCIS working group is revising the naturalization test, and the agency is formalizing a decennial revision process to allow for updates every 10 years. Critics believe this is part of efforts by the Trump administration to reduce naturalizations.

7. State Dept. Announces Diversity Lottery 2020 Results -Approximately 83,884 applicants have been registered and notified and may now apply for an immigrant visa.

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

9. ABIL Member / Firm News -ABIL Member / Firm News

10. Government Agency Links -Government Agency Links

Details:

1. DOL Unveils New H-2A Proposed Rule

The Department of Labor (DOL) posted online an unofficial version of a Notice of Proposed Rulemaking (NPRM) on July 15, 2019, in advance of publication in the Federal Register, on proposed changes to the H-2A temporary agricultural labor certification program. DOL said the proposed changes would modernize the agency’s H-2A regulations “in a way that is responsive to stakeholder concerns and enhances employer access to a legal source of agricultural labor, while maintaining the program’s protections for the U.S. workforce and enhancing enforcement against fraud and abuse.”

Among other things, the NPRM would mandate electronic filing of job orders and applications, promote the use of digital signatures, and provide employers with the option of staggering the entry of H-2A workers on a single application. The NPRM also proposes to enhance standards applicable to rental housing and public accommodations, strengthen surety bond requirements, expand DOL’s authority to use enforcement tools like program debarment for substantial violations of program rules, and update the methodologies used to determine the Adverse Effect Wage Rates and prevailing wages.

Details: Unofficial NPRM; DOL announcement

2. House Holds Hearing on USCIS Policy Changes, Processing Delays

On July 16, 2019, the House of Representatives held a hearing on policy changes and processing delays at U.S. Citizenship and Immigration Services (USCIS). Witnesses included representatives from USCIS, the American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network (CLINIC), the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.

Regarding policy changes, Jill Marie Bussey, CLINIC’s Director of Advocacy, cited the expansion of in-person interview requirements and related “extreme vetting,” new rules on requests for evidence and notices of intent to deny, elimination of the 90-day processing requirement for employment authorization documents, information services “modernization” that includes narrowing of the options and points of access for stakeholders to request information and services regarding their pending cases, the ending of self-scheduling of in-person InfoPass appointments at field offices, and diverting resources to enforcement-focused activities. All of these policy changes, she said, are contrary to USCIS’s mission, contribute to backlogs and inefficiencies, and create unnecessary barriers for applicants and their legal representatives, are not justified by data, and thus have contributed to significant consequences and cascading effects for employers, legal service providers, individuals and families, and USCIS and other agencies.

With respect to processing delays, Marketa Lindt, AILA President, testified that USCIS’s average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. “[I]n FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014. For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency’s overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.”

Details: Hearing testimony and statements

Details: List of H-2B applications in Assignment Group A; DOL announcement of H-2B temporary labor certification program changes and how applications are assigned to staff for review

3. OFLC Announces List of H-2B Applications Selected for Assignment

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced the group of 493 H-2B applications covering 12,098 worker positions with the start date of work of October 1, 2019, randomly selected for assignment.

OFLC said it successfully completed the randomization process on July 8, 2019, and assigned to analysts all of the H-2B applications placed in Assignment Group A for issuance of notices of deficiency or acceptance. Because the total number of H-2B applications contained an insufficient number of worker positions to reach the first semiannual visa allotment (33,000), no other assignment groups were created. OFLC provided written notice to each employer and, where applicable, the employer’s authorized attorney or agent.

4. State Dept. Announces Temporary Establishment and Retrogression of August Employment-Based Final Action Dates

The Department of State’s (DOS) Visa Bulletin for August 2019 notes that there has been a steadily increasing level of employment-based applicant demand since late May for adjustment of status cases filed with U.S. Citizenship and Immigration Services, and there is no indication that this trending increase will end. Therefore, the agency has established or retrogressed many of the August Final Action Dates in an effort to hold worldwide number use within the maximum allowed under the FY 2019 annual limits.

The implementation of these dates is expected to be only a temporary issue, DOS said. For October, the first month of fiscal year 2020, “every effort will be made to return these final action dates to those which applied for July.”

Details: DOS Visa Bulletin for August 2019 (scroll down to “D”)

5. DHS, DOJ Issue Joint Third-Country Asylum Rule

On July 16, 2019, effective immediately, the Departments of Homeland Security and Justice issued a joint interim final rule barring eligibility for asylum, with some exceptions, for those entering or attempting to enter the United States via the southern border who did not apply for protection in at least one third country outside the person’s country of citizenship, nationality, or last lawful habitual residence through which they transited en route to the United States. The rule would also require asylum officers and immigration judges to apply this new bar on asylum eligibility when administering the credible-fear screening process applicable to stowaways and aliens subject to expedited removal under section 235(b)(1) of the Immigration and Nationality Act. The new bar established by this regulation does not modify withholding or deferral of removal proceedings.

The American Civil Liberties Union (ACLU) Foundation’s Immigrants’ Rights Project and others immediately filed suit in the U.S. District Court in San Francisco, California, to stop the asylum ban. They argued that under U.S. law, the government cannot disqualify asylum applicants solely on the basis of transiting through a third country. The complaint states that the rule “is a part of an unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum system at the southern border.”

Comments on the interim final rule are due by August 15, 2019, to be submitted by one of the methods listed in the rule.

Details: DHS announcement; interim final rule; ACLU complaint

6. USCIS Announces Changes to Naturalization Test

On July 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it is revising the current naturalization test in English and civics.

In December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group is reviewing and updating the naturalization test questions. The group will also assess potential changes to the speaking portion of the test. USCIS said it “is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.” Details of the changes being considered were not released. USCIS plans to pilot the test revision this fall, and to set an implementation date in December 2020 or early 2021. USCIS is also formalizing a decennial revision process to allow for updates every 10 years. Critics have expressed concerns that the announcement is a continuation of efforts by USCIS to make naturalization more difficult, including dramatically slowing down the processing of naturalization applications.

Details: USCIS announcement; USCIS memorandum on the revisions

7. State Dept. Announces Diversity Lottery 2020 Results

The Kentucky Consular Center has registered and notified the winners of the DV-2020 diversity lottery. Approximately 83,884 applicants have been registered and notified and may now apply for an immigrant visa, the Department of State (DOS) announced. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, the agency said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020 (October 1, 2019, to September 30, 2020).

Applicants registered for the DV-2020 program were selected at random from 14,722,798 qualified entries (23,182,554 with derivatives) received during the 34-day application period in late 2018. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. DOS said that those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letters and must fully complete the information requested.

Details: DOS Visa Bulletin for August 2019 (scroll down to “E”), which includes a country-by-country list of the numbers

8. New Publications and Items of Interest

How to create a case in E-Verify. E-Verify has released a new video series, “How to Create a Case.” The short videos include Create an E-Verify Case, Close an E-Verify Case, and Process and Refer Your Tentative Nonconfirmation (TNC) Case

How to prepare for immigration raids. Cornell University’s immigration technology clinic has developed an automated online interview to help people prepare if they or others are worried about being detained or deported. It can help people prepare their family, manage their property, close out their bank accounts, and perform other emergency preparations. The online interview is available in English and Spanish.

Responding to large-scale immigration raids. The Immigration Justice Campaign and the American Immigration Lawyers Association have released information on what to do in the event of large-scale interior enforcement actions. See Immigration Justice and AILA.

CBP accountability. A new website documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project. Click here to view the website.

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. More information or to register

Alliance of Business Immigration Lawyers:

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

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

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

- Statutes of Liberty: (new episodes: A Prescription for Success: EB-1 for Physicians; The Best, Brightest, and Backlogged, discusses the backlog, who it affects, how to read the Visa Bulletin, and strategies for EB-1 visas)
- 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 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.

9. ABIL Member / Firm News

Charles Kuck was quoted by the New York Times in “What Happens After an ICE Raid? Explaining the Deportation Process.” Mr. Kuck noted that authorities in the past have used ruses to coax their targets into cooperating, like pretending to be looking for someone else.

Mr. Kuck has released a new podcast series, the Immigration Hour. The latest episode discusses the “raids” that did not occur, the economic impact of the current climate, the role of Ken Cuccinelli as new Director of USCIS, and the “new” anti-asylum regulations.

Kuck Baxter Immigration LLC has opened a new office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 5,000 detained immigrants. The new office will be run by Elizabeth Matherne, who is the former Southern Poverty Law Center’s director for the Irwin Detention Project.

Stephen Yale-Loehr was interviewed by Raw Story in “Immigration Expert Explains Why Trump’s Migrant Policy Won’t Work.” Among other things, in response to a question asking for his thoughts on U.S. Immigration and Customs Enforcement, he said, “All countries need some kind of immigration enforcement agency. The question is how to manage immigration enforcement humanely and effectively. Moreover, Congress will never appropriate enough money to round up and deport all 11 million undocumented immigrants estimated to be in the United States. We should focus our limited priorities on removing terrorists, not people who simply overstayed their visas.”

Mr. Yale-Loehr discussed “Immigration Meritocracy,” regarding his new research project studying merit-based immigration, what a “merit-based” immigration system means, and how it would work in the United States, in a podcast presented by the Everyday Immigration Podcast, produced by LionCeau Productions.

10. Government Agency Links

ollow 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:

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 7B • July 14, 2019

July 14, 2019/in Immigration Insider /by ABIL

Headlines:

1. ICE Moving Forward With Arrests of Thousands of Immigrants and Family Members -ICE plans to move forward with operations to arrest and quickly deport thousands of immigrants and their family members who are in the United States without authorization.

2. House Passes Bill to Eliminate Per-Country Cap on Employment-Based Immigrants -The U.S. House of Representatives passed the “Fairness for High-Skilled Immigrants Act of 2019” (H.R. 1044) on July 10, 2019. The bill will be considered by the Senate next.

3. Executives of Staffing Companies Charged With H-1B Visa Fraud -Four executives of two information technology staffing companies have been arrested on charges of conspiracy to commit visa fraud, for fraudulently using the H-1B visa program to gain an unfair advantage over competitors.

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

5. ABIL Member / Firm News -ABIL Member / Firm News

6. Government Agency Links -Government Agency Links

Details:

1. ICE Moving Forward With Arrests of Thousands of Immigrants and Family Members

President Trump told reporters recently that U.S. Immigration and Customs Enforcement (ICE) is moving forward with previously postponed operations to arrest and quickly deport thousands of immigrants and their family members who are in the United States without authorization. According to reports, some may be held in detention centers in Texas and Pennsylvania and others may be detained in hotel rooms while they are processed.

Immigrants are being advised, among other things, to make emergency plans and that they are not legally required to open the door to ICE agents without a search warrant or court order. Some may have the right to reopen their immigration cases.

Some organizations helping immigrant families in need include KIND (Kids in Need of Defense), Women’s Refugee Commission, Catholic Legal Immigration Network, ACLU Immigrants’ Rights Projects, RAICES, Al Otro Lado, Florence Project, Lawyers for Good Government (Project Corazon Travel Fund), Justice in Motion, Immigrant Families Together, Innovation Law Lab, ActBlue, Lights for Liberty, United We Dream, American Immigration Council, National Immigration Law Center, Human Rights First, National Immigrant Justice Center, ALDEA-People Justice Center, American Immigration Council, Immigrant Justice Campaign, PIRC (Pennsylvania Immigration Resource Center), CIRC (Penn State Law Center for Immigrants’ Rights Clinic), Annunciation House, HIAS, and Cornell Law School.

Additional resources and information for helping families at risk of deportation are listed below under “New Publications and Items of Interest.” See also “ABIL Member/Firm News” below, which includes numerous news articles with related information and advice.

Details: News articles: NYTimes, Daily Mail, Syracuse.com, Quartz, Business Insider, Univision (Spanish)

2. House Passes Bill to Eliminate Per-Country Cap on Employment-Based Immigrants

The U.S. House of Representatives passed the “Fairness for High-Skilled Immigrants Act of 2019” (H.R. 1044) on July 10, 2019. The bill, introduced by Reps. Zoe Lofgren (D-CA) and Ken Buck (R-CO), would eliminate the per-country cap (numerical limitation) on employment-based immigrants and raise family-based per-country caps from 7 to 15 percent. The per-country cap provision would be implemented over a three-year phase-in period: during year one, no more than 85 percent of employment-based visas could be allocated to India or China; in years two and three, no more than 90 percent of employment-based visas could be allocated to those countries. An additional provision protects people who have immigrant visa petitions approved before September 30, 2019. The legislation is expected to benefit primarily Indian and Chinese workers, who constitute the largest proportion of H-1B skilled workers waiting for years in the U.S. green card backlog.

The bill will be considered by the Senate next. The Senate version, S. 386, was recently blocked by Rand Paul (R-Ky.), who said he wants to amend the bill with an accommodation for EB-3 nurses. Other recent developments on the Senate side included the addition of provisions strengthening H-1B specialty occupation enforcement requested by Sens. Mike Lee (R-Utah) and Charles Grassley (R-Iowa). Although the bill has bipartisan support, it is unclear whether it has a chance of passage.

Details: Text and history of the House version; Rep. Lofgren’s statement; Senate version of the bill; news reports from Bloomberg Law, Desert News, and Business Today

3. Executives of Staffing Companies Charged With H-1B Visa Fraud

Four executives of two information technology staffing companies have been arrested on charges of conspiracy to commit visa fraud, for fraudulently using the H-1B visa program to gain an unfair advantage over competitors. The conspiracy charge carries a maximum penalty of five years in prison and a $250,000 fine.

The defendants allegedly used staffing companies to recruit foreign nationals and sponsor them for H-1B visas. According to U.S. Citizenship and Immigration Services (USCIS), to expedite their visa applications, they filed H-1B applications falsely asserting that the foreign workers/beneficiaries had already secured positions at another company when in reality no such positions existed. Instead, the defendants used the fraudulent applications to build a “bench” of job candidates already admitted to the United States who could then be hired out immediately to client companies without the need to wait for visa application processing, giving the defendants an advantage over their competitors in the staffing industry, USCIS said.

Details: USCIS release

4. New Publications and Items of Interest

“Everyday Immigration” podcast. What actually happens when a U.S. citizen marries someone from another country? How do foreign-born co-workers come to the United States? Why do employees have to fill out an immigration form when they start a new job? In the “Everyday Immigration” podcast, twice a month Dave Wilks speaks with people from all walks of life to explore the “everyday” effects of immigration. The podcasts are available here and most major podcast services.

E-Verify benefits video. E-Verify has released a new short video for employers on the basics of E-Verify.

How to prepare for immigration raids. Cornell University’s immigration technology clinic has developed an automated online interview to help people prepare if they or others are worried about being detained or deported. It can help people prepare their family, manage their property, close out their bank accounts, and perform other emergency preparations. The online interview is available in English and Spanish.

Responding to large-scale immigration raids. The Immigration Justice Campaign and the American Immigration Lawyers Association have released information on what to do in the event of large-scale interior enforcement actions. See Immigration Justice and AILA.

CBP accountability. A new website documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project. Click here to view the website.

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. More information or to register

Alliance of Business Immigration Lawyers:

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

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

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

- Statutes of Liberty: (new episodes: A Prescription for Success: EB-1 for Physicians; The Best, Brightest, and Backlogged, discusses the backlog, who it affects, how to read the Visa Bulletin, and strategies for EB-1 visas)
- 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 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.

5. ABIL Member / Firm News

Cyrus Mehta has published a new blog entry, “Save Optional Practical Training for Foreign Students.”

Angelo Paparelli was profiled in the Los Angeles Daily Journal. The profile notes, among other things, that along with compliance audits, counsel and due diligence in mergers, acquisitions and corporate restructuring, Mr. Paparelli focuses on newly developed problems with sponsored worker immigration issues. “This is a time of historically unprecedented executive branch opposition to the legal, employment-based process for sponsorship of highly skilled noncitizens and intense immigration-related work site enforcement,” he said, noting that it is essential to maintain clients’ confidentiality due to fears of government retaliation. The article is available by subscription here.

Stephen Yale-Loehr was quoted by a variety of news outlets regarding reports of possible immigration raids:

Voice of America: U.S. immigration raids planned. Mr. Yale-Loehr said, “Given the inefficiencies in the immig ration court system, many people may have been ordered deported illegally because the immigration agency didn’t have their correct address to notify them about their immigration court date. In such cases, they may have the right to reopen their immigration case,” he said. Mr. Yale-Loehr noted that undocumented people living in the U.S. have certain constitutional rights. “Immigration agents are not legally allowed to forcibly enter a home [without authorization]. Immigrants can refuse to open the door when an agent approaches, unless the agents have a valid search warrant.”
Reuters (several newspapers): “Two thousand people deported is not that large in the annual scheme of things,” said Stephen Yale-Loehr, pointing out that the administration of former President Obama deported more than 400,000 people a year during his first term. “On the other hand, the mere fact that they are announcing these raids is sending fear among immigrants and is causing them to hide or take other actions,” he said. The article notes that President Trump will want to show his supporters that he is delivering on campaign promises to crack down on illegal immigration, a signature policy objective of his administration. “He’s been trying to do something for months,” Mr. Yale-Loehr said.

Mr. Yale-Loehr was also quoted in the following media on the same topic:

Lawandcrime.com: ICE scheduling raids to arrest alleged undocumented immigrants – what to know
Daily Mail: Trump-backed ICE raids have already started in California ahead of thousands of immigrants being rounded up nationwide this weekend, claim lawyers
Quartz: The best ways to help immigrants in the US caught up in ICE raids
Syracuse.com: On eve of planned immigration raids, Syracuse advocates remind people of their rights
City & State: New York’s limited power to resist ICE raids
Business Insider: Immigrants have rights when ICE comes to arrest them, but experts warn this only goes so far
Univision: Did you know that a deportation order can be challenged? (Spanish)
Marketplace

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:

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 7A • July 07, 2019

July 07, 2019/in Immigration Insider /by ABIL

Headlines:

1. Sen. Paul Blocks Bill to Eliminate Per-Country Cap on Employment-Based Green Cards -The “Fairness for High-Skilled Immigrants Act of 2019” (S. 386), a bill that would eliminate the 7 percent per-country cap (numerical limitation) on employment-based immigrants, among other things, was blocked in the Senate by Rand Paul (R-Ky.).

2. OMB Concludes Review of EB-5 Immigrant Investor Program ‘Modernization’ Regulation -It is unclear when the regulation will be published or what, if any, changes have been made since the proposed rule was released in January 2017.

3. U.S. Recognizes Extension of Venezuelan Passport Validity -The Department of State released a statement recognizing an extension of Venezuelan passport validity for an additional five years past the printed date of expiration, for visa issuance and other consular purposes.

4. Trump Administration Imposes Hefty Fines on Immigrant Overstays -ICE has begun sending out notices of fines of up to hundreds of thousands of dollars to immigrants in the United States without authorization for violations including “failing to depart the U.S. as previously agreed.”

5. ABIL Global: Australia -Australia has implemented the Temporary Skill Shortage (TSS) and employer nomination sponsored visas. While certain transitional arrangements remain, the old Subclass 457 Visa has been replaced by the TSS Visa (Subclass 482).

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

7. ABIL Member / Firm News -ABIL Member / Firm News

8. Government Agency Links -Government Agency Links

Details:

1. Sen. Paul Blocks Bill to Eliminate Per-Country Cap on Employment-Based Green Cards

The “Fairness for High-Skilled Immigrants Act of 2019” (S. 386), a bill that would eliminate the 7 percent per-country cap (numerical limitation) on employment-based immigrants, among other things, was blocked in the Senate by Rand Paul (R-Ky.), who wants to amend the bill with an accommodation for EB-3 nurses. The legislation is expected to benefit primarily Indian and Chinese workers, who constitute the largest proportion of foreign H-1B skilled workers waiting for years in the green card backlog.

Other recent developments included the addition of provisions strengthening H-1B specialty occupation enforcement by Sens. Mike Lee (R-Utah) and Charles Grassley (R-Iowa). As of press time, S. 386 had 34 bipartisan co-sponsors; the House version, H.R. 1044, which does not include the H-1B provisions, had 311.

Details: Senate version of the bill; Text and history of the House version; news reports from Bloomberg and Desert News

2. OMB Concludes Review of EB-5 Immigrant Investor Program ‘Modernization’ Regulation

The Office of Management and Budget (OMB) announced on June 27, 2019, that it has completed its review of the “EB-5 Immigrant Investor Program Modernization” regulation. It is unclear when the regulation will be published or what, if any, changes have been made since the proposed rule was released in January 2017.

The January 2017 version proposed several major revisions to the EB-5 program regulations, such as priority date retention for certain EB-5 petitioners for use in connection with any subsequent EB-5 immigrant petition; increasing the standard minimum investment amount for all new EB-5 petitioners from $1 million to $1.8 million, and increasing the minimum investment amount for investors in targeted employment areas (TEAs) from $500,000 to $1.35 million; making changes to the TEA designation process; and revising the process for removing conditions on permanent residence.

Details: 2017 proposed rule; 2017 comments from IIUSA: Invest in the USA

3. U.S. Recognizes Extension of Venezuelan Passport Validity

The Department of State (DOS) released a statement recognizing an extension of Venezuelan passport validity for an additional five years past the printed date of expiration, for visa issuance and other consular purposes.

DOS noted that U.S. Customs and the Border Patrol will likewise recognize the passports covered by a decree signed by Venezuelan Interim President Juan Guaido on May 21, 2019, and published by the National Assembly.

Details: DOS statement

4. Trump Administration Imposes Hefty Fines on Immigrant Overstays

According to reports, U.S. Immigration and Customs Enforcement (ICE) has begun sending out notices of fines of up to hundreds of thousands of dollars to immigrants in the United States without authorization for violations including “failing to depart the U.S. as previously agreed.”

The notices follow an executive order issued on January 25, 2017, “Enhancing Public Safety in the Interior of the United States,” which calls for, among other things, “the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.”

Details: Executive Order; news reports from NPR, US News, and Washington Post

Details: Australian Department of Home Affairs, Temporary Skill Shortage Visa (under development)

5. ABIL Global: Australia

Australia has implemented the Temporary Skill Shortage (TSS) and employer nomination sponsored visas. While certain transitional arrangements remain, the old Subclass 457 Visa has been replaced by the TSS Visa (Subclass 482).

As with the previous 457 process, the TSS Visa consists of three separate applications: (1) the application by the employer to be approved as a sponsor; (2) the nomination; and (3) the visa application. To sponsor an employee, the employer must be approved as a Standard Business Sponsor. Sponsorship approvals may be valid for five years. In certain circumstances, a sponsor may seek accreditation, which may enable future nominations and visas for that accredited sponsor to be expedited.

Central to the nomination application is the establishment of two separate lists of approved occupations: the Short-Term Skills Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL). Visas granted relating to nominations of occupations on the STSOL are granted for a two-year period. After that period, a further and final period of two years may be sought. Where international trade obligations apply, a four-year visa may be granted. Visa applications granted relating to nominations for occupations on the MLTSSL may be approved for a four-year period.

Only the holders of TSS visas relating to MLTSSL occupations are entitled to be nominated for an Employer Nomination Subclass 186 Permanent Visa. As one would expect, this provision has caused substantial angst. Certain revisions of the lists have already taken place and occupations previously on the STSOL have been removed and inserted into the MLTSSL following criticism.

6. New Publications and Items of Interest

Responding to large-scale immigration raids. The Immigration Justice Campaign and the American Immigration Lawyers Association have released information on what to do in the event of large-scale interior enforcement actions. See Immigration Justice and AILA

CBP accountability. A new website documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project. More information

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. More information or to register

Alliance of Business Immigration Lawyers:

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

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

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

- Statutes of Liberty: (new episodes: A Prescription for Success: EB-1 for Physicians; The Best, Brightest, and Backlogged, discusses the backlog, who it affects, how to read the Visa Bulletin, and strategies for EB-1 visas)
- 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 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.

7. ABIL Member / Firm News

Stephen Yale-Loehr was quoted by City & State New York in “Where Are New York’s Sanctuary Cities?” Mr. Yale-Loehr noted that ” ‘[s]anctuary’ means different things to different people. And it is not a legal term.” The article
Back to Top

8. 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: