News from the Alliance of Business Immigration Lawyers Vol. 15, No. 8B • August 11, 2019

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Headlines:

1. State Dept. Establishes, Retrogresses August Employment-Based Final Action Dates -The Visa Bulletin for August 2019 notes a steadily increasing level of employment-based applicant demand since late May for adjustment-of-status cases filed with USCIS, although the State Department is hoping to return priority dates to what they’ve been before July 2019 after the new fiscal year begins in October.

2. USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address -USCIS is subjecting all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers.

3. Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case -The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, USCIS; the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis’ H-1B petition on behalf of the data analyst.

4. ICE Conducts Secretive Workplace Raids in Mississippi -Six hundred agents took part in raids of chicken processing plants that netted nearly 700 detainees and left some children stranded after school or day care because their parents were taken into custody.

5. USCIS Plans to Close 13 International Field Offices and Three District Offices -The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.

6. State Dept. Releases DV-2020 Results -Approximately 83,884 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, DOS said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020.

7. USCIS Extends Comment Period for Tip Form -USCIS has extended the comment period until September 9, 2019, for a new USCIS Tip Form to facilitate the collection of information from the public regarding “credible and relevant claims of immigration benefit fraud impacting both open adjudications as well as previously approved benefit requests where the benefit remains valid.”

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. State Dept. Establishes, Retrogresses August Employment-Based Final Action Dates

The Department of State’s Visa Bulletin for August 2019 notes 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, with no indication that this increase will end in the near future. Therefore, the bulletin states, “it has been necessary to establish or retrogress many of the August Final Action Dates in an effort to hold worldwide number use within the maximum allowed under the respective FY-2019 annual limits.”

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

Details: Visa Bulletin for August 2019

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2. USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address

U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that as of August 5, 2019, it is rejecting Form I-129 nonimmigrant worker petitions that do not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of the form.

USCIS is subjecting all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers. USCIS said it recognizes that in certain circumstances, the person signing Part 8 of Form I-129 may be an employee of the petitioning entity and have the same address as that of the petitioner named in Part 1 of the form. In such a case, USCIS would not reject the I-129 because of the duplicate addresses.

Details: USCIS notice

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3. Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case

The U.S. District Court for the District of Columbia recently granted summary judgment for plaintiffs and denied defendants’ motion to dismiss in an H-1B case, RELX, Inc. v. Baran. The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, U.S. Citizenship and Immigration Services (USCIS); the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis’ H-1B petition on behalf of the data analyst.

The government responded to the H-1B petition with a request for evidence (RFE) related to whether the data analyst position was a specialty occupation, finally denying the petition after LexisNexis sent documentation. Plaintiffs filed suit, but shortly before they filed their opening motion, the government reopened the petition without notifying defendants or providing a reason. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had reopened the case.

Among other things, the court noted that an agency’s failure to set forth its reasons for a decision constitutes arbitrary and capricious action, and the court must undo the agency action. The court also noted that the government issued an RFE requesting nearly identical information as it did when it last reviewed the petition. Also, upon imminent expiration of the data analyst’s F-1 visa, she would have lost her job and been required to leave the United States for an extended period of time, thus causing “significant hardship,” the court observed. Because the agency failed to request any new information when it attempted to reopen the petition, the court found the circumstances of the reopening “highly suspect and contrary to the regulations.” Finding that the LexisNexis position was “a distinct occupation which required a specialized course of study,” as supported by a “mountain of evidence” that “more than meets the preponderance of the evidence standard,” the court concluded that the agency’s decision to deny the H-1B petition was not based on a consideration of the relevant factors, was a clear error of judgment, and that USCIS “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the data analyst.

Details: Case text

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4. ICE Conducts Secretive Workplace Raids in Mississippi

U.S. Immigration and Customs Enforcement (ICE) conducted mass raids on workplaces in the first week of school in Mississippi. According to reports, the operation was conducted without much advance notice, even to the White House. Six hundred agents took part in raids of chicken processing plants that netted nearly 700 detainees and left some children stranded after school or day care because their parents were taken into custody. About half of those detained were released the next day, as they were determined not to be a public threat, and some were taken back to their workplaces with a summons to appear later in immigration court. The action drew criticism because of the timing—just days after a mass shooting in El Paso, Texas, targeting Hispanic immigrants.

Details: News articles: Washington Post, NPR

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5. USCIS Plans to Close 13 International Field Offices and Three District Offices

U.S. Citizenship and Immigration Services (USCIS) has announced plans to close 13 international field offices and three district offices between now and August 2020. The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.

USCIS said that many functions currently performed at international offices “will be handled domestically or by USCIS domestic staff on temporary assignments abroad.” As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices. USCIS said it is working closely with DOS “to minimize interruptions in immigration services to affected applicants and petitioners.”

USCIS said it plans to maintain operations at its international field offices in Beijing and Guangzhou, China; Nairobi, Kenya; New Delhi, India; Guatemala City, Guatemala; Mexico City, Mexico; and San Salvador, El Salvador.

Details: USCIS notice

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6. State Dept. Releases DV-2020 Results

The Department of State’s (DOS) Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2020 diversity lottery. Approximately 83,884 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, DOS 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 that ran in late 2018. The visas were 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. Those selected will need to act on their immigrant visa applications quickly, DOS said. Applicants should follow the instructions in their notification letters.

Details: Visa Bulletin for August 2019, including the country-by-country breakdown

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7. USCIS Extends Comment Period for Tip Form

U.S. Citizenship and Immigration Services (USCIS) has extended the comment period until September 9, 2019, for a new USCIS Tip Form to facilitate the collection of information from the public regarding “credible and relevant claims of immigration benefit fraud impacting both open adjudications as well as previously approved benefit requests where the benefit remains valid.” The estimated total number of respondents is 55,000.

Details: Federal Register notice

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8. 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 by clicking here.

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:

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:

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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9. ABIL Member / Firm News

Charles Foster, of Foster LLP, was featured along with some of the nation’s experts on immigration reform in the “Rational Middle Immigration Documentary Series, exploring how to solve the United States’ immigration challenges and remake the U.S. economy while protecting U.S. values, workers, and families. The first season is a collection of short films and is available by clicking here.

William Stock, of Klasko Immigration Law Partners, LLP, was placed on Human Resource Executive Magazine’s and Lawdragon’s annual joint publication of the “best of” lawyer list for its 12th year. In 2018, the firm’s managing partner, H. Ronald Klasko, was inducted into Lawdragon’s Hall of Fame. For more information, see Klasko Law Partners, LLP website, as well as Lawdragon.

Angelo Paparelli was quoted by Law360 in “How Attorneys Can Brace for Rising EB-5 Compliance Checks.” Mr. Paparelli said that unannounced site visits can be unstructured, but a regional center should establish a formal procedure for communicating with officials from U.S. Citizenship and Immigration Services (USCIS) and take charge of the process. He said a designated representative from the center should ask officers to identify themselves, whether they have a judicial subpoena or warrant, and what specifically they are seeking. He said they should also engage counsel and suggest following up via email to provide requested documentation in an organized manner. A lawyer can then act as an intermediary to narrow the scope of the site visit, asking whether USCIS is interested in a particular investor or investment project, he noted. The article is available by registering at Law360.

Stephen Yale-Loehr was quoted by Axios in “Lutheran Denomination Claims it is the First ‘Sanctuary Church Body’.” Mr. Yale-Loehr noted that although U.S. Immigration and Customs Enforcement officers frequently stay out of a church if undocumented immigrants are staying there, churches do not provide federal legal sanctuary. “I think for publicity reasons, immigration enforcement does not like to go into churches,” he said.

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, 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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News from the Alliance of Business Immigration Lawyers Vol. 15, No. 8A • August 04, 2019

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Headlines:

1. Matter of H-G-G-, Adopted Decision on TPS -Matter of H-G-G- affects TPS recipients and their eligibility to adjust their status under section 245 of the Immigration and Nationality Act, reaffirming the DHS position that TPS recipients are considered as being in and maintaining lawful nonimmigrant status only during the period TPS is in effect.

2. USCIS Updates Filing Addresses for Some I-129 Petitions -Though no normal announcement was made, USCIS has updated the direct filing addresses for Form I-129, Petition for a Nonimmigrant Worker.

3. USCIS Announces Citizenship and Assimilation Grant Opportunities -USCIS announces two new funding opportunities under the Citizenship and Assimilation Grant Program, potentially providing $10 million in grants for citizenship preparation programs.

4. ABIL Global: Canada -The Entry/Exit Program is a significant development that has been many years in the making.

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

6. ABIL Member / Firm News -ABIL Member / Firm News

7. Government Agency Links -Government Agency Links

Details:

1. Matter of H-G-G-, Adopted Decision on TPS

The Administrative Appeals Office (AAO) decision in Matter of H-G-G- affects Temporary Protected Status (TPS) beneficiaries and their eligibility to adjust their status under section 245 of the Immigration and Nationality Act, reaffirming the position held by the Department of Homeland Security that TPS recipients are considered as being in and maintaining lawful nonimmigrant status exclusively throughout the period of time that TPS is in effect. Granting TPS does neither confers an admission nor cures or otherwise affects any previous failure to maintain continuously a lawful status.

Furthermore, Matter of H-G-G- also states that the U.S. Courts of Appeals for the 6th and 9th Circuits’ holding that a grant of TPS supplies the requisite admission for purposes of adjustment justifies USCIS to follow those directives only in these respective jurisdictions and pertaining to that specific issue. USCIS will universally apply the holding in Matter H-G-G- when dealing with the question of whether a grant of TPS absolves a prior unlawful status.

Details: Matter of H-G-G-

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2. USCIS Updates Filing Addresses for Some I-129 Petitions

Though no normal announcement was made, USCIS has updated the direct filing addresses for Form I-129, Petition for a Nonimmigrant Worker. Specifically, changes were made on the USCIS webpage for the filing addresses for H-1B cap-exempt petitions for extension of stay, change of status, concurrent employment, consular notification, and amended petitions, excluding those filed for H-1B cap-exempt entities, H-1B cap-exempt petitions based on a Conrad/IGA waiver or Guam, and all H-1B1, H-1B2, and H-1B3 petitions.

Petitions listed on the USCIS webpage under “Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker,” under the dropdown box entitled, “All Other H-1B Petitions (H-1B extension of stay, change of status, concurrent employment, POE/PFI/consular notification, and amended petitions),” are now accepted at:

  • California Service Center (CSC),
  • Nebraska Service Center (NSC),
  • Texas Service Center (TSC), and
  • Vermont Service Center (VSC)

Details: USCIS Form I-129 direct filing addressed

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3. USCIS Announces Citizenship and Assimilation Grant Opportunities

On July 30, USCIS announced it would accept applications for two funding opportunities under the Citizenship and Assimilation Grant Program, potentially providing $10 million in grants for citizenship preparation programs. The grants are available to organizations that prepare lawful permanent residents for naturalization, promoting knowledge of English, U.S. history, and civics.

There are two different grant opportunities:

  • The Citizenship Instruction and Naturalization Application Services grant opportunity will fund up to 36 organizations offering both citizenship instruction and naturalization application services to lawful permanent residents.
  • The Refugee and Asylee Assimilation Program grant opportunity will fund up to four organizations to provide individualized services to lawful permanent residents who entered the United States under the U.S. Refugee Admissions Program or were granted asylum. These services will assist these individuals in acquiring knowledge and skills leading The grant aims to promote long-term assimilation through the education of lawful permanent residents who strive for naturalization but lack the instruction, information, and services necessary to attain it.

Applications for either of these grant opportunities are due by August 13, 2019.

Within 30 days of receiving the award, all funded grant recipients must enroll in E-Verify as a regular employer and remain in good standing with E-Verify throughout the entire period of grant performance. USCIS projects its announcement of award recipients to occur in September.

To apply for one of these funding opportunities, visit grants.gov. For additional information on the Citizenship and Assimilation Grant Program for fiscal year 2019, visit uscis.gov/grants or email the USCIS Office of Citizenship at citizenshipgrantprogram@uscis.dhs.gov.

Details: To apply for either funding opportunity, visit grants.gov; for more information on the Citizenship and Assimilation Grant Program for FY 2019, uscis.gov/grants or email the USCIS Office of Citizenship at mcitizenshipgrantprogram@uscis.dhs.gov.

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4. ABIL Global: Canada

The Entry/Exit Program is a significant development that has been many years in the making.

Part of the Beyond the Border Action Plan, the Entry/Exit Program is a joint Canada-U.S. initiative that establishes a coordinated entry/exit information system to facilitate the exchange of traveler biographic information (such as name and date of birth). Collected upon entry at the common land border between the two countries, a record of entry into one country is now considered a record of exit from the other.

In addition to the exchange of this data with the United States at land borders, the Canada Border Services Agency (CBSA) will collect exit data on all travelers leaving by air. Air carriers will begin sharing their data in 2020 and 2021. Consequently, overstay indicators will not begin appearing within the entry/exit search results for temporary residents who have overstayed their allowable time in Canada until the air carrier information is shared.

Details: Entry/Exit Program

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5. New Publications and Items of Interest

Immigrant Doctors Can Help Lower Physician Shortages in Rural America The Center for American Progress published an in-depth report, “Immigrant Doctors Can Help Lower Physician Shortages in Rural America.” Greg Siskind, founding partner of Siskind Susser PC was thanked in the acknowledgements of the report, which concluded that immigrant doctors’ ability to better serve rural communities would be improved with the implementation of federal and state policies removing immigration and licensing barriers. Read the report here

The Trump administration is making legal immigration harder, too. León Rodríguez, partner at Seyfarth Shaw LLP and former director of USCIS, outlines the different ways the Trump administration is making legal immigration more difficult in an Op-ed for The Washington Post.

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

“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 at https://www.youtube.com/watch?v=yHlVFveEK64.

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:

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:

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.

Back to Top

6. ABIL Member / Firm News

Cyrus Mehta has authored a new blog entry, “Need to Plan Ahead Before Sponsoring a Senior Parent for a Green Card.”

Mr. Mehta was also quoted by The Times of India in “US officials site-visiting cos hiring STEM-OPT trainees.” Speaking about strategy STEM-OPT students need to implement in the event ICE officials visit the third-party worksite the student is employed, Mr. Mehta states, ““If there is a site visit, STEM-OPT students who are placed at third part sites are more vulnerable, as the third-party client may have no knowledge of the circumstances of their placement by the employer and may not be able to answer questions adequately to the site visit inspector. It is important for the employer who places STEM-OPT students at a third party client site to ensure complete compliance, which means that the employer still controls the employment and supervises their training at the client site. The employer’s own supervisors should be able to answer questions in the event of a site visit.”

Stephen Yale-Loehr provided his take on how the latest EB-5 regulations will affect employment for U.S. workers on The Everyday Immigration Podcast. The podcast is available by clicking here.

Mr. Yale-Loehr was also quoted by FiveThirtyEight in “Will The 2020 Democrats Reject Obama’s Immigration Legacy?” Explaining Obama’s shift in immigration policy as his presidency continued, Mr. Yale-Loehr stated, “When a legislative solution fell apart, he switched to a less punitive approach.”

Charles Kuck released the latest edition of his podcast, the Immigration Hour. The July 30 edition examines the Attorney General’s decision in Matter of L-E-A- on families asocial groups as well as the recent Guatemala-US “Safe Third Country” agreement.

Kuck Baxter Immigration LLC published its US legal guide for Corporate Immigration. Click here to view the guide.

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7. 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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