News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9D • September 22, 2019

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Headlines:

1. Visa Bulletin Reflects Substantial Forward Movement; USCIS Instructs Employment-Based Beneficiaries to Use ‘Dates for Filing’ in October -The Department of State’s Visa Bulletin for October 2019 reflects substantial forward movement. Also, beneficiaries of employment-based immigrant petitions should use the “Dates for Filing” rather than the “Final Action Dates,” or priority dates, when filing during October 2019.

2. USCIS Reminds Employers: Only Unrestricted Social Security Cards Are Acceptable for I-9 Purposes -USCIS has reminded employers that they may accept only unrestricted Social Security cards for I-9 verification purposes, and has updated the form accordingly.

3. DHS Reverses Medical Deferred Action Cancellation, Will Consider Case-by-Case -After initially sending out letters canceling noncitizen recipients’ deferred action status based on medical reasons, and ordering them to leave the country, and then allowing pending applications to continue but not accepting new applications, the Department of Homeland Security has announced that it will resume considering such applications on a case-by-case basis. The policy garnered significant media attention, particularly relating to children, and was the subject of a recent congressional hearing.

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. Visa Bulletin Reflects Substantial Forward Movement; USCIS Instructs Employment-Based Beneficiaries to Use ‘Dates for Filing’ in October

The Department of State’s Visa Bulletin for the month of October 2019 reflects substantial forward movement as anticipated with the beginning of the federal fiscal year on October 1, 2019. Specifically, only the EB-1 preference category as well as India and China-born applicants remain backlogged for the dates that U.S. Citizenship and Immigration Services (USCIS) will accept applications during the month of October 2019.

In a departure from recent months, USCIS also confirmed on its website that beneficiaries of employment-based immigrant petitions should use the “Dates for Filing” rather than the “Final Action Dates,” or priority dates, when filing during the month of October 2019. In the recent past, USCIS had generally required employment-based immigrant visa applications to be filed based on the Final Action Dates, which were typically later than the Dates for Filing.

Although USCIS will accept applications during the month of October, an applicant’s Final Action Dates, or priority dates, must become Current before USCIS may approve the case.

Beneficiaries of employment-based immigrant petitions who may become eligible to file adjustment of status applications in October may want to start preparation of these applications as soon as possible with their Alliance of Business Immigration Lawyers attorney to plan for the earliest possible filing date in the month of October.

Details: Visa Bulletin for October 2019; USCIS notice regarding the use of Dates for Filing for October 2019

 

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2. USCIS Reminds Employers: Only Unrestricted Social Security Cards Are Acceptable for I-9 Purposes

U.S. Citizenship and Immigration Services (USCIS) has reminded employers that they may accept only unrestricted Social Security cards for Form I-9 employment authorization verification purposes, and has updated the I-9 form accordingly.

If the Social Security card has one of the following restrictions, USCIS said the employer should ask the employee to provide a different document showing work authorization:

  • Not valid for employment
  • Valid for work only with INS authorization
  • Valid for work only with DHS authorization

Details: E-Verify reminder about unrestricted Social Security numbers and cards

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3. DHS Reverses Medical Deferred Action Cancellation, Will Consider Case-by-Case

After initially sending out letters canceling noncitizen recipients’ deferred action status based on medical reasons, and ordering them to leave the country, and then allowing pending applications to continue but not accepting new applications, the Department of Homeland Security has announced that it will resume considering such applications on a case-by-case basis. The policy garnered significant media attention, particularly relating to children, and was the subject of a recent congressional hearing.

According to reports, Acting Homeland Security Secretary Kevin McAleenan made the decision, which followed dramatic testimony at a hearing before the House of Representatives’ Oversight Committee from several affected immigrants who said they expected to die without the treatment they can get only in the United States.

Details:

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4. 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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5. ABIL Member / Firm News

Joseph Law Firm, P.C. has a new partner and a new name. It is now Joseph & Hall P.C. See https://www.immigrationissues.com/.
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6. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9C • September 15, 2019

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Headlines:

1. Supreme Court Allows Enforcement of Trump Administration Asylum Rule -The Supreme Court has allowed enforcement of a new Trump administration rule, which requires asylum seekers passing through third countries to apply for asylum in those countries first before seeking asylum in the United States, to move forward pending disposition of the administration’s appeal in the Ninth Circuit.

2. DHS Issues Guidance on Visa Requirements for Bahamian Citizens Traveling to the United States -The Department of Homeland Security (DHS) issued guidance for Bahamians wishing to travel to the United States following the recent devastation of Hurricane Dorian.

3. El Salvador TPS EADs Listing a Sept. 9 Expiration Remain Valid Through Jan. 2 -Employment authorization documents for El Salvadoran temporary protected status beneficiaries showing a category code of “A-12” or “C-19” and an expiration date of 09/09/2019 are valid through January 2, 2020. Workers do not need to present additional documentation.

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. Supreme Court Allows Enforcement of Trump Administration Asylum Rule

The Supreme Court has allowed enforcement of a new Trump administration rule, which requires asylum seekers passing through third countries to apply for asylum in those countries first before seeking asylum in the United States, to move forward pending disposition of the administration’s appeal in the Ninth Circuit. Most of those affected are Central Americans trying to reach the United States. Other migrants also seek asylum when they arrive at the southern border from other parts of the world, including Asia, Africa, and South America.

Two justices dissented from the Supreme Court’s decision in Barr v. East Bay Sanctuary Covenant, including Ruth Bader Ginsburg and Sonia Sotomayor, who wrote, “Once again, the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution.” Thousands of people reportedly are waiting in Mexico for their turn to apply for asylum in the United States.

Details:

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2. DHS Issues Guidance on Visa Requirements for Bahamian Citizens Traveling to the United States

The Department of Homeland Security (DHS) issued guidance on September 9, 2019, for Bahamians wishing to travel to the United States following the recent devastation of Hurricane Dorian. According to reports, the Trump administration does not plan to extend temporary protected status to Bahamians in the United States.

DHS is requiring all such Bahamians to possess valid, unexpired travel documents, such as a passport or Bahamian Travel Document listing the nationality as Bahamian. Bahamians arriving to the United States by vessel must be in possession of a valid passport and valid travel visa, DHS said. Bahamian citizens may apply for admission to the United States without a visa at one of the U.S. Customs and Border Protection (CBP) Preclearance facilities located in Nassau or Freeport International Airports if they meet certain requirements. Travelers who would otherwise qualify for the Visa Waiver Program and who travel by air from a CBP Preclearance facility in Freeport or Nassau may not need a U.S. visitor’s visa. All other travelers arriving from the Bahamas (U.S. citizens and lawful permanent residents, and individuals of other nationalities) must possess a valid, unexpired government–issued passport.

Acting CBP Commissioner Mark Morgan told CNN, however, that CBP would “apply discretion on a case-by-case basis” to Bahamians who make it to the United States without travel documents. “We’re not going to deny somebody solely because they don’t have travel documents,” he said. Meanwhile, Sens. Marco Rubio and Rick Scott sent a letter to the Trump administration asking it to suspend “certain visa requirements” for Bahamians with relatives in the United States with whom they can stay. The letter noted Florida’s “historically deep ties with the Bahamas” and that many Floridians have family in the Bahamas. On September 9, 2019, Sen. Rubio tweeted that “a cruise ship took 1,500 survivors to Palm Beach without requiring them to show visas after coordinating a pre-screening for passports & clean criminal record with @CBP.” This contrasted with a ferry that kicked 100 Bahamian passengers off; Sen. Rubio tweeted that that ship “apparently didn’t coordinate a pre-screening & then didn’t want to wait for one.”

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3. El Salvador TPS EADs Listing a Sept. 9 Expiration Remain Valid Through Jan. 2

The Department of Justice (DOJ) issued a reminder on September 9, 2019, that employment authorization documents (EADs) for El Salvadoran temporary protected status (TPS) beneficiaries showing a category code of “A-12” or “C-19” and an expiration date of 09/09/2019 are valid through January 2, 2020. DOJ noted that workers do not need to present additional documentation, such as an I-797C receipt notice, for this automatic extension for Form I-9 work authorization verification purposes.

EADs were also extended for TPS beneficiaries from Sudan, Nicaragua, and Haiti, pending resolution of Ramos v. Nielsen, in which the U.S. District Court for the Northern District of California enjoined DHS in late 2018 from implementing and enforcing decisions to terminate TPS for those countries.

Details:

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4. 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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5. ABIL Member / Firm News

Cyrus Mehta was quoted by Law360 in “Attys Face Greater Urgency After High Court OKs Asylum Bar.” Mr. Mehta said that if he were to represent someone who had perhaps sneaked into the U.S. but would have been subject to the asylum bar—which only applies to those who entered the U.S. after July 15—he would treat that person as a withholding of removal or CAT relief case, and advise the migrant of the limitations. But he said he could also bring an asylum claim on the person’s behalf and challenge the legality of the regulation. For example, if the migrant had applied for asylum in a third country but hadn’t been formally denied, the case could be made that a lack of response constitutes a “de facto refusal” in a country without a functioning asylum system. The article is available by registering at Law360.

Mr. Mehta has authored a new blog entry, “Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing Denial of a National Interest Waiver.”

Stacy Caplow and Maryellen Fullerton, of Cyrus D. Mehta & Partners PLLC, have co-authored a new blog entry, “Migrant ‘Protection’ Protocol: A Report From the Front Lines.”

Siskind Susser, PC, has received this year’s InnovAction award from the College of Law Practice Management (along with Suffolk Law School) for its Visalaw.ai initiative. This is one of the legal field’s top awards for practice management innovation, and Siskind Susser PC is the first immigration firm to receive it in the two decades it has been awarded.

Stephen Yale-Loehr was quoted by the Houston Chronicle in “Trump Administration Blocks Most Asylum Seekers in ‘Profound’ Change to System as Legal Fights Continue.” He noted that Supreme Court justices historically have been more deferential to presidential power in immigration than in most other areas. But, recalling outrage over migrant family separation that caused the Trump administration to announce an end to the policy before a federal judge forced it to do so, he noted, “The court of public opinion is just as important as courts of law.”

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

  • Wall Street Journal, “AI Workers Deserve Special Visa Consideration, Group Says” (Mr. Yale-Loehr said that proposals by a global group focused on artificial intelligence that is calling on governments to revamp their visa policies to make it easier for AI professionals to move around the world are unlikely to succeed in the United States. “I wish them well, but a lot of these things I do not think are going to be implemented in the United States,” he said.
  • Times of India, “Deloitte, Apple, Cognizant Biggest Filers of LCAs in FY 2019” (Mr. Yale-Loehr said the decline in H-1B filings is not limited to Indian companies. “Overall, the number of LCAs filed by the top 10 employers in the third quarter of 2019 was 218,906, down from 374,951 in the same quarter of 2018. The percentage decline is slightly higher for Indian companies, but the more significant finding is the overall decline,” he said.
  • Law360 (available by registration), “Future of Asylum Bar Remains Uncertain, Despite Court Block.” Mr. Yale-Loehr noted that another restricted injunction could also lead to asylum seekers becoming “savvy” and deliberately entering the United States within the Ninth Circuit only. “Here with the stakes so high, I think that there are particularly compelling reasons to decide this issue nationwide and not circuit by circuit,” he said.

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6. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9B • September 08, 2019

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Headlines:

1. OFLC Announces Schedule for E-Filing of LCAs -Affected LCA programs include the H-1B, H-1B1, and E-3 visa classifications.

2. USCIS Proposes Deleting Time Limits on Work Authorization Processing for Asylum Applicants -USCIS has announced a proposed rule to remove the 30-day time limit on granting or denying an initial application for an employment authorization document. USCIS also proposes to remove the provision requiring applicants to submit their renewal requests to USCIS 90 days before the expiration of their work authorization.

3. Reciprocity Schedule for France Revised for E Treaty Trader/Investor Visas -Effective September 26, 2019, the reciprocity schedule for France will be revised for E visas (treaty traders and investors).

4. USCIS Reopens Previously Pending Deferred Action Requests -USCIS announced that it will reopen all non-military deferred action cases that were pending on August 7, 2019.

5. State Dept. Issues Reminder About Uses of Passport Books/Cards Under ‘Real ID’ -The Department of State recently issued a reminder about upcoming changes to domestic air travel documentation requirements under the Real ID Act, which requires all state-issued identification documents to meet a set of minimum security standards.

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. OFLC Announces Schedule for E-Filing of LCAs

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has announced its schedule for electronic filing of labor condition applications (LCAs) in the Foreign Labor Application Gateway (FLAG) System. Affected LCA programs include the H-1B, H-1B1, and E-3 visa classifications. OFLC noted:

  • Beginning September 16, 2019, the FLAG System’s LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. However, the FLAG System will not permit the submission of LCA applications until 12 noon ET on October 1, 2019.
  • OFLC will continue to accept online submissions of the Form ETA-9035E through the iCERT System until 11:59 a.m. ET on October 1, 2019. The ability to submit LCA applications using the iCERT System will be deactivated at 12 noon ET on that date.
  • OFLC will process all LCA applications submitted through the iCERT System, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System.

OFLC has created instructional videos on how to create and manage a FLAG System account and prepare the Form ETA-9035E, to be posted by September 13, 2019, at the OFLC notice link below. Additionally, OFLC will host an instructional webinar on Wednesday, September 18, 2019, to provide technical assistance to employers and authorized attorneys or agents. More information is available at the links below.

Details: OFLC notice (scroll to September 5); September 18 webinar (meeting password: Welcome!24, call-in number: 888-469-1548; participant passcode: 2477817)

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2. USCIS Proposes Deleting Time Limits on Work Authorization Processing for Asylum Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a proposed rule to remove the 30-day time limit on granting or denying an initial application for an employment authorization document (EAD) in affirmative asylum applications. USCIS also proposes to remove the provision requiring applicants to submit their renewal requests to USCIS 90 days before the expiration of their work authorization. The notice of proposed rulemaking is expected to be published in the Federal Register on September 9, 2019.

USCIS said that elimination of the 30-day processing timeframe for such EADs is intended to ensure that the agency has sufficient time to receive, screen, and process these applications, and to reduce opportunities for fraud and protect the security-related processes undertaken for each EAD application. USCIS said that timeframes achieved in FY 2017 (prior to a court order mandating adherence to the 30-day timeframe set by regulation) “are sustainable and USCIS intends to meet these timeframes if the proposed rule is adopted.” USCIS said that during that period in FY 2017, it adjudicated approximately 78 percent of such applications within 60 days.

Details: Proposed rule (unpublished version available as of September 7)

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3. Reciprocity Schedule for France Revised for E Treaty Trader/Investor Visas

Effective September 26, 2019, the reciprocity schedule for France will be revised for E visas (treaty traders and investors). The reciprocity tables will be updated to reflect this change. Reportedly, the maximum validity for E-1 and E-2 visas will be decreased from 60 months to 15 months.

Details: U.S. Embassy Paris, France notice; Department of State’s visa reciprocity page

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4. USCIS Reopens Previously Pending Deferred Action Requests

U.S. Citizenship and Immigration Service (USCIS) announced that it will reopen all non-military deferred action cases that were pending on August 7, 2019. Deferred action is a discretionary decision to temporarily postpone the removal from the United States of a person who is unauthorized to stay.

On August 7, USCIS stopped considering deferred action for non-military requestors and sent denial letters to applicants, which led to controversy as many cases were based on medical need. A lawsuit was filed subsequently on behalf of the Irish International Immigrant Center by the American Civil Liberties Union and Lawyers for Civil Rights. A hearing on this issue, to be held before the House Subcommittee on Civil Rights and Civil Liberties, is scheduled for September 11, 2019.

Deferred action related to military members and Deferred Action for Childhood Arrivals cases were not affected by the August 7 action. USCIS said “consideration of such cases is ongoing.”

Details: USCIS announcement; lawsuit; news article; denial letter sent by USCIS to a deferred action applicant

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5. State Dept. Issues Reminder About Uses of Passport Books/Cards Under ‘Real ID’

The Department of State recently issued a reminder about upcoming changes to domestic air travel documentation requirements under the Real ID Act, which requires all state-issued identification documents to meet a set of minimum security standards. IDs that do not meet these standards will not be accepted for federal purposes, including as ID for boarding domestic flights. State IDs, such as driver’s licenses, may need updating.

The reminder notes that the U.S. passport book and U.S. passport card are both accepted by the Transportation Security Administration as ID for domestic flights. The passport card cannot be used for international air travel. In addition to its acceptance as ID for domestic flights, the passport card can be used for entering the United States at land border crossings and sea ports of entry from Canada, Mexico, the Caribbean, and Bermuda. The passport card costs $30 for adults who have a passport book, and $65 for first-time adult applicants. The card has the same validity period as the book (valid for 10 years for those over 16).

Details: Department of State reminder; Real ID website to check state status; Real ID FAQ

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6. New Publications and Items of Interest

LCA e-filing instructions. The Department of Labor’s Office of Foreign Labor Certification has created instructional videos on how to create and manage a FLAG System account for filing labor condition applications and how to prepare the Form ETA-9035E, to be posted by September 13, 2019, at the OFLC notice link below. Additionally, OFLC will host an instructional webinar on Wednesday, September 18, 2019, to provide technical assistance to employers and authorized attorneys or agents. More information is available from OFLC (scroll to September 5); September 18 webinar (meeting password: Welcome!24, call-in number: 888-469-1548; participant passcode: 2477817).

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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7. ABIL Member / Firm News

Partners H. Ronald Klasko, William A. Stock, and Elise A. Fialkowski have been included in 26th edition of Best Lawyers in America in the area of immigration law.

Robert Loughran was named the Best Lawyers 2020 Immigration Law “Lawyer of the Year” in Austin, Texas, for the third year. Recognition was based on the consensus of almost 50,000 leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Mr. Loughran is the Managing Partner of Foster LLP‘s Austin office with a concentration in corporate immigration, investor immigration, and emigration to third countries. Mr. Loughran presents frequently before legal, professional, and academic organizations on the topics of U.S. and foreign work authorization, employer sanctions, maintenance of status, and changes in government proceedings.

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Recent H-1B Case Brings Hope that Reliance of the Umbrella ‘All Other’ Occupational Classification Need Not Be Fatal.”

Greg Siskind, of Siskind Susser, has been included in the 26th edition of Best Lawyers in America in the area of immigration law.

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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:

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. 9, No. 4 • September 04, 2019

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Headlines:

1. REMOTE WORK IN COLOMBIA: AN OVERVIEW -This article provides an overview of remote work policies and practices in Colombia.

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

3. COLOMBIA -There have been several developments.

4. ITALY -The working holiday visa will soon be available bilaterally between Italy and Hong Kong.

5. RUSSIA -There have been a variety of developments.

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

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

Details:

1. REMOTE WORK IN COLOMBIA: AN OVERVIEW

This article provides an overview of remote work policies and practices in Colombia.

In Colombia, the immigration law establishes that those foreign individuals who work remotely and enter into a local agreement must apply for a visa whether or not they enter Colombia.

Likewise, and according to Decree 1067 of 2015, any natural or legal person who joins, employs, or admits a foreign individual through any modality, especially a labor, cooperative, or civil relationship that generates a profit, must require a visa that allows the activity, occupation, or trade declared in the visa application. Moreover, all foreigners who provide any type of service through local contracts must be registered in the platforms of Migration Colombia (SIRE) and the Ministry of Labor (RUTEC) to comply fully with the current immigration regulations. Additionally, they need to register their visas and be issued the foreigners’ ID card, which must be processed in Colombia.

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2. 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: http://www.cilf.ca/2019/07/22/exit-entry/

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3. COLOMBIA

There have been several developments

Present and Future of the Mercosur Visa

Colombia, as of 2004, became an Associated State of the Southern Common Market (MERCOSUR), which has not only dealt with trade matters but has also come to regulate the mobility of people in the region. A clear example of this is the Mercosur visa, which is granted by the mutual reciprocity principle, and which seeks to authorize nationals of the countries that are part of the agreement to transit through these countries and, among others, to develop tourism and business activities.

Details: http://www.tannus.co/en/present-and-future-of-the-mercosur-visa/

The Practice of Regulated Professions by Foreign Workers

In Colombia, it is common for human resources (HR) departments to handle the employment of foreign workers. This is why it has become indispensable for HR staff to know the requirements for such workers to be legally employed, not only from the perspective of labor and social security, but also with respect to migration. Under the immigration regulations, the following, among others, must be taken into account: the visa, the registration of the visa, the foreigner ID card, notifications in SIRE and RUTEC, and permits to perform regulated professions.

Details: See http://www.tannus.co/en/the-practice-of-regulated-professions-by-foreign-workers/

Start of PEP Renewal

Migration Colombia has begun the process of renewing Special Permits for Permanence (PEP) that are about to expire for those Venezuelan nationals who are in the national territory.

Details: See http://www.tannus.co/en/start-of-pep-renewal/

Migration Flexibility for Venezuelans

The exodus of Venezuelan nationals to Colombia and the world continues, motivated by the unfortunate situation of the neighboring country, which is still going on and does not seem to have a short-term solution. For this reason, the flow of migrants is increasing, especially to South American countries, and therefore some nations have decided to modify their immigration laws. Countries such as Peru and Chile have tightened their controls and recently decided to request visas for all Venezuelans. On the contrary, Colombia continues to ease requirements and grant benefits for the entry and stay of these migrants.

Details: See http://www.tannus.co/en/migration-flexibility-venezuelans/

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4. ITALY

The working holiday visa will soon be available bilaterally between Italy and Hong Kong.

On July 5, 2019, Italy and Hong Kong signed an agreement to mark the establishment of a bilateral Working Holiday Scheme (WHS).

Under the WHS between Hong Kong and Italy, youths aged between 18 and 30 years from each country may apply for a visa that will allow them to stay in the other country for up to 12 months. During that period, they may work to finance their stay or study short-term courses. The annual quota from each side will be 500.

The agreement was signed by the Secretary for Labour and Welfare of the Government of the Hong Kong Special Administrative Region (HKSAR), Dr. Law Chi-kwong, and the Under Secretary of State, Ministry of Foreign Affairs and International Cooperation of the Government of the Italian Republic, Manlio Di Stefano, at the Central Government Offices, Tamar.

Details: Visa application procedures for applicants from Hong Kong will soon be available on the website of the Consulate General of Italy in Hong Kong at https://conshongkong.esteri.it/consolato_hongkong/en/

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5. RUSSIA

There have been a variety of developments:

Russian Government Approves Agreement With Republic of Croatia

The Russian government has approved an agreement with the Republic of Croatia, which amends a previously signed agreement on citizens of one country visiting the other. According to the agreement, the citizens of one country will be able to visit the other country without a visa for 90 days out of every 180 days, provided they have a valid identity document. The agreement is under discussion between the two countries.

Quota for Engaging Foreign Labor Slightly Increased

The Ministry of Labor and Social Development has slightly increased the quota for engaging foreign labor this year. The increase was made in all Russian regions, although it was not large, at 6 to 10 percent on average.

Updated High-Migration Risk Countries List

The high-migration risk countries list has been updated. Inclusion of a country on the list means that documents filed for the work permits, visas, invitations, and other purposes for citizens of these countries will be additionally reviewed by government officials, which will almost always result in delays in processing as well as denials of applications and/or the necessity to undergo additional administrative procedures; for example, a general manager of the inviting company may be required to be interviewed.

E-Visas to be Introduced Starting January 2021

Russian President Vladimir Putin has ordered the Prime Minister and heads of several responsible government agencies (Foreign Affairs Ministry, Internal Affairs Ministry, and Federal Security Service) to introduce a unified e-visa for foreign citizens to enter Russia starting January 1, 2021.

This will be a short-term visa (up to 16 days) and will combine several possible purposes of entry: tourist, business, humanitarian, and guest. A visa fee will be levied.

The unified e-visa will be issued for those visiting all territories of the Russian Federation (with the exception of special zones, organizations, and places where foreign nationals need special permission to enter).

Foreign Citizens Now May Enter Kaliningrad Region Using Electronic Visas

As of July 1, 2019, foreign citizens of certain countries can apply for an electronic visa to enter the Special Economic Zone in the Kaliningrad region.

Entry using electronic visas is allowed only through certain border control posts:

  • Air border control post in Kaliningrad (Hrabrovo);
  • Sea border control post in Kaliningrad: Kaliningrad, Baltiysk, Svetliy;
  • Road border control posts in Bagrationovsk, Gusev, Mamonovo, (Gzhehotki), Mamonovo (Gronovo), Morskoye, Pogranichniy, Sovetsk, and Chernyshevskoye;
  • Rail border control posts in Mamonovo and Sovetsk.

Also, the International Affairs Ministry was expected to update the website where foreign nationals can submit applications for electronic visas. It is possible to file documents for an electronic visa through https://evisa.kdmid.ru/ru-RU.

Electronic visas have been issued in Russia since August 1, 2017. On the basis of such visas, it is already possible to visit the Primorskiy Region, Kamchatka, and Sakhalin. According to International Affairs Ministry data, more than 37,500 people from 18 countries have visited Russia since the introduction of the procedure.

At the moment, according to the information from the International Affairs Ministry’s Consular Department, citizens of designated countries can apply for electronic visas (entry should be made through the specified border control posts. A list of such posts is published on the Consular Department webpage at https://evisa.kdmid.ru/ru-RU).

For the application, the electronic visa applicant does not need an invitation letter, and a personal appearance at the consulate is not required. This visa is issued free of charge. The average waiting time is 20 minutes. To apply for an electronic visa, it is necessary only to visit the International Affairs Ministry Consular Department website, complete the application form with passport data, and attach a photo.

Electronic visas are issued only for short-term visits. Such visas are only issued for 30 calendar days, starting from the issuance date. The allowed stay is up to 8 days only within the validity period. The validity period or the allowed stay cannot be extended.

Bill Simplifying Regime of Stay for Foreign Citizens Who Work in Cultural Pursuits Filed to Federation Council

The bill introduces the following:

  1. Issuance of ordinary business visas up to 30 days to foreign citizens who are entering Russia for not more than 30 calendar days for participation in performances (organization of performances and/or events on the basis of civil agreements for an agreed fee or free of charge) during which such foreign citizens perform literary works, art, or folk art, or are entering Russia on the invitation of government cultural institutions to participate in art, educational, scientific, or pedagogical work.

This category of foreign citizens does not require a work permit, work visa, or patent, and the inviting party does not require permission for engaging foreign labor.

  1. Issuance of ordinary business visas up to 1 year, and in case of reciprocity up to 5 years, to foreign citizens who are entering Russia to perform scientific research or teach upon the invitation of scientific and higher education organizations (with the exception of religious education organizations) for higher education programs that have government accreditation.

Bill Simplifying TRP (Temporary Residence Permit) and PRP (Permanent Residence Permit) Procedures for Certain Categories of Foreign Nationals is Under Review

The State Duma is reviewing a bill to simplify procedures for certain categories of foreign nationals applying for TRP and PRP in Russia.

As in the previous versions of the bill, the following is suggested:

  • The possibility for Ukrainian nationals to apply for TRP without the need to first receive a quota for the TRP application filing, provided they are refugees;
  • Documents for TRP processed within 4 months instead of 6 months;
  • The possibility for a foreign national to apply for annulment of the TRP;
  • Specific comment that TRP or PRP will be annulled in case the foreign national spends more than 6 months in a calendar year (in total) outside of Russia;
  • Several categories of foreign nationals to have the ability to file PRP applications without the need to apply for the TRP first: foreign citizens who were born in RSFSR, who are native speakers of the Russian language, who have relatives or spouses permanently living in Russia, who were deported from Crimea, and qualified foreigners as well as HQS (highly qualified specialists);
  • PRP to have unlimited validity (except for PRPs issued to qualified specialists and HQS, who will receive PRP for 3 years).

Chinese Border Control Officers Checking Contents of Smart Phones of Russian Citizens Who Enter China

It has been reported recently that Chinese authorities are checking the contents of smart phones belonging to Russian citizens crossing the China-Russia border in Guangzhou. In particular, popular messenger apps, email, and photos were checked. Checks were explained as an attempt to find those having compromising information, although there are no details on what information can be considered compromising, other than noncompliance with immigration laws. At the same time, Russian citizens have been detained who tried to enter China on the basis of business visas with the real aim of performing work activities in China.

Based on the principle of reciprocity, the Russian government may unofficially introduce the same kinds of checks.

Maldives: Agreement on Visa-Free Entry Has Come Into Force

Effective July 25, 2019, an agreement with the Government of Maldives on visa-free entry has come into force.

According to the agreement, citizens of either country may enter the other country and stay for up to 90 days. The total limit of stay will be determined by legislation of each country.

If the citizens of one country wish to stay longer in the territory of the other country or to perform work, study, or obtain permanent residence, they must apply for the appropriate visa from the authorities of the country where they wish to stay.

Andorra: Government Approves Agreement Providing for a Visa-Free Regime

Russia now has an agreement with the Government of Andorra to introduce a visa-free regime between the countries. According to the agreement, citizens of either country will be able to enter the other country and stay for up to 90 days out of every 365 days, starting from the first entry.

If the citizens of one country wish to stay longer in the territory of the other country or to perform work or commercial activities, they must apply for the appropriate visa from the authorities of the country where they wish to stay.

Botswana: Government Approves Agreement Providing for a Visa-Free Regime

Russia now has an agreement with the Government of Botswana to introduce a visa-free regime between the countries. According to the agreement, citizens of either country will be able to enter the other country and stay for up to 30 days, the total limit of stay being 90 days out of every 180 days.

If the citizens of one country wish to stay longer in the territory of the other country or to perform work, study, or obtain permanent residence, they will be required to apply for the appropriate visa from the authorities of the country where they wish to stay.

China: Government Approves Agreement Providing for a Visa-Free Regime for Tourist Groups

Russia has approved an agreement with the Government of China to introduce a visa-free regime between the countries for tourist groups.

According to the draft of the agreement, “tourist groups” are a group of citizens of the other country, from three up to 50 persons, headed by a representative of a tourist organization who enters with tourism purposes.

Members of the tourist group can travel only with the group, accompanied by the group leader (representative of the tourist organization) and according to a travel plan approved in advance (travel plan and other information about the trip must be confirmed by documentation).

The overall stay of foreign citizens in the territory of the receiving country cannot exceed 21 days.

Professional Mastership Championships

An organization approved by the Russian Government to represent Russia in the “Worldskills International Championship” will be able to hire foreign nationals without the need to receive corporate employment permission for the period of preparation and the events of the organization in the territory of Russia.

Foreign nationals will be able to work at championships in Russia without the need for a work permit or patent. Invitation letters to such foreigners will be issued irrespective of the allocated quota. The list of championships is determined by the Russian Government.

Visa Formalities Simplified for Artists and Scientists

According to a new law, a standard business visa valid for 30 days can be issued to foreign citizens who enter Russia for a period of not more than 30 days:

  • For an artistic tour (organization of performances and/or events on the basis of civil agreements for an agreed fee or free of charge) during which such foreign citizens perform literary works, art, or folk art; or
  • Upon invitation of government cultural institutions to participate in art, educational, scientific, or pedagogical work.

These categories of foreign nationals do not need to apply for a work permit or patent as well as a work visa.

Employers can engage such foreign citizens without applying for a corporate employment permit (Law: On the status of foreign citizens in Russia).

Year of Theatre: Visas for Guests are Free of Charge

The Russian Government has issued an order under which foreign participants and guests of events of the Year of Theatre 2019 can receive visas to Russia free of charge. Mass media participating in the events can also apply for Russian visas free of charge at Russian consulates abroad.

Applications for visas are filed by the Ministry of Culture and members of the Year of Theatre 2019 organization committee.

2019 Quota Amended

The Ministry of Labor and Social Development has again redistributed the quota for foreign labor for this year. Quotas have been insignificantly raised for almost all Russian regions, including Moscow.

Citizenship for Qualified Specialists

Qualified specialists soon will be able to apply for Russian citizenship after only one year of working in Russia, starting October 2019. These include foreign citizens and stateless persons who work in Russia as qualified specialists.

To be eligible a foreign citizen must work in a specific position (the list of occupations is approved by the Ministry of Labor and Social Development), and his or her employer must have made the necessary payments to the Russian Pension Fund.

The list is lengthy, including occupations such as midwife, veterinarian, doctor, laboratory assistant, psychiatrist, statistician, gas welder, chief project engineer, chief metallurgist, director of economics, various types of engineer, mathematician, nurse, medical laboratory technician, process pipeline installer, pharmacy laboratory specialist, locksmith, ship repairman, pharmacist, electrician, medical assistant, grinder, drilling technician, and others.

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6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

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7. 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.

Klasko Immigration Law Partners was named for the fourth year in a row to the 2019 Best Places to Work annual list published by the Philadelphia Business Journal.

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.

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.

Mr. 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. The podcast is available at Stitcher.

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.

Robert Loughran presented “Update on Nonimmigrant Visa Processing at U.S. Consulates Abroad” on May 18, 2019, at the Federal Bar Association’s Immigration Law Conference in Austin, Texas.

Mr. Loughran presented “How Employment-Based Immigration Practice Has Evolved Under the Current Administration to Include Litigation” on June 13, 2019, at the State Bar of Texas Annual meeting in Austin.

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.

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

Bettina Offer and Gabriele Mastmann, of Offer & Mastmann, and Gunther Mävers were nominated by Best Lawyers in Germany and Handelsblatt for immigration.

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.

Mr. 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 at https://www.dailyjournal.com/.

Rodrigo Tannus has authored several new articles in Diario la República:

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.

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:

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.

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.

Mr. 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

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9A • September 01, 2019

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1. Continue to Use “Expiring” I-9 Form Until Further Notice, USCIS Says -Until further notice, employers should continue using the Form I-9 (Employment Eligibility Verification) currently available on I-9 Central, even after the August 31, 2019, expiration date has passed

2. USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions -USCIS has changed the direct filing addresses for certain petitioners filing Form I-129, Petition for a Nonimmigrant Worker, as of September 1, 2019.

3. Ninth Circuit Dismisses Challenge to Denial of National Interest Waiver for Lack of Jurisdiction -Affirming the district court’s dismissal for lack of subject-matter jurisdiction of an Iranian engineer’s suit challenging the denial of his petition for a national interest waiver (NIW) related to his application for a work visa, a panel of the U.S. Court of Appeals for the Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review NIW denials.

4. USCIS Policy Guidance Changes Definition of “Residing in the United States” for Purposes of Acquiring Citizenship -Effective October 29, 2019, USCIS is changing its policy regarding eligibility for U.S. citizenship of children born to U.S. government employees and U.S. armed forces members employed or stationed outside the United States.

5. Guidance Updated on Adjudication of Cuban Adjustment Act Cases -USCIS accepts certain documents as evidence that an applicant is a Cuban native or U.S. citizen, and has updated its guidance to provide examples of acceptable documents.

6. ABIL Global: Belgium -There have been several developments with respect to business immigration in Belgium this year, including the introduction of a single permit authorizing a foreign employee to work and reside in Belgium, and new legal frameworks for work authorizations/permits in Flanders, Brussels, and Wallonia

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

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

Details:
1. Continue to Use “Expiring” I-9 Form Until Further Notice, USCIS Says

U.S. Citizenship and Immigration Service (USCIS) has announced that until further notice, employers should continue using the Form I-9 (Employment Eligibility Verification) currently available on I-9 Central, even after the August 31, 2019, expiration date has passed.

Details: USCIS announcement (scroll to 08/27/19); I-9 Central; I-9 form and instructions

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2. USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions

U.S. Citizenship and Immigration Services (USCIS) has changed the direct filing addresses for certain petitioners filing Form I-129, Petition for a Nonimmigrant Worker, as of September 1, 2019. USCIS said that starting October 1, 2019, “we may reject Forms I-129 that are filed at the wrong service center.”The changes apply to the following cap-exempt H-1B petitions:

  • Continuing previously approved employment from the same employer
  • Changing previously approved employment
  • New concurrent employment
  • Changing an employer
  • Changing status to H-1B
  • Notifying a U.S. consulate, port of entry, or pre-flight inspection
  • Amending a petition

The announcement excludes petitions:

  • Filed by cap-exempt petitioners or for cap-exempt entities
  • That are cap-exempt based on a Conrad/Interested Government Agency waiver
  • Where the employer is located in Guam or the beneficiary will be performing services in Guam. This also excludes all H-1B1, H-1B2, and H-1B3 petitions

Details: USCIS announcement with links to direct filing addresses; direct filing addresses for the I-129

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3. Ninth Circuit Dismisses Challenge to Denial of National Interest Waiver for Lack of Jurisdiction

Affirming the district court’s dismissal for lack of subject-matter jurisdiction of an Iranian engineer’s suit challenging the denial of his petition for a national interest waiver (NIW) related to his application for a work visa, a panel of the U.S. Court of Appeals for the Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review NIW denials. Among other things, the panel also noted that his due process claim that he did not receive a copy of a request for evidence for the denial of his second petition failed on the merits because notice sent to his home address “was reasonably calculated to reach him.”

Details: Ninth Circuit’s opinion (scroll down)

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4. USCIS Policy Guidance Changes Definition of “Residing in the United States” for Purposes of Acquiring Citizenship

U.S. Citizenship and Immigration Service (USCIS) has issued policy guidance, effective October 29, 2019, and applicable prospectively to applications filed on or after that date, that defines “residence” and clarifies distinctions between U.S. residence and physical presence. USCIS is changing its policy regarding eligibility for U.S. citizenship of children born to U.S. government employees and U.S. armed forces members employed or stationed outside the United States.

Specifically, the guidance:

  • Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States
  • Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring U.S. citizenship under INA 320.

USCIS said it is rescinding the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered “residing in” the United States. The changes also will affect the ability of U.S.-born citizens to transmit citizenship to children if they do not meet the more restrictive test for residing in the United States.

Details: USCIS Policy Alert; USCIS announcement; statement from Acting USCIS Director Ken Cuccinelli

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5. Guidance Updated on Adjudication of Cuban Adjustment Act Cases

U.S. Citizenship and Immigration Services has updated policy guidance relating to adjustment of status under the Cuban Adjustment Act (CAA), enacted in 1966 as a special avenue for Cuban refugees to adjust to lawful permanent resident status in the United States. USCIS accepts certain documents as evidence that an applicant is a Cuban native or U.S. citizen, and has updated its guidance to provide examples of acceptable documents.

The guidance, dated August 13, 2019, states that an expired or unexpired Cuban passport can be evidence of being a Cuban native, and an unexpired Cuban passport can be evidence of Cuban citizenship. USCIS is also clarifying that a Cuban Citizenship Letter (Carta de Ciudadanía) or a Nationality Certificate (Certificado de Nacionalidad) may be evidence of Cuban citizenship. Previously, acceptable evidence of Cuban citizenship generally included “a Cuban Civil Registry document issued in Havana.” However, a birth certificate issued by the Civil Registry or a Cuban consular certificate documenting an individual’s birth outside of Cuba to at least one Cuban parent is not sufficient to establish Cuban citizenship, the guidance states. This remains true even if the birth or consular certificate states the individual to whom the certificate was issued is a Cuban citizen.

Details: USCIS policy guidance

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6. ABIL Global: Belgium

There have been several developments with respect to business immigration in Belgium this year, including the introduction of a single permit authorizing a foreign employee to work and reside in Belgium, and new legal frameworks for work authorizations/permits in Flanders, Brussels, and Wallonia.

Introduction of Single Permit

Before 2019, the process for employees was always a “dual permit” system: an employment authorization/work permit authorized a foreign employee to work, and a Belgian residence permit authorized legal residence in Belgium.

As of 2019, the single permit has been implemented, in principle, for any (with a few exceptions) employment for more than 90 days. This means that the applicant will receive one Belgian permit authorizing him or her to work and reside in Belgium. For employment up to 90 days and some situations of employment for more than 90 days (e.g., frontier workers, au pairs), the “dual permit” system remains in place.

The single permit application must be filed by the employer and the employee with the regional Ministry (Flanders, Brussels, or Wallonia) with jurisdiction (in general this will be determined by the place of work in Belgium). The process includes the following phases:

  • The first phase is the admissibility check. The regional Ministry will check whether the file is complete, and will, in principle, confirm this within 10 days. If the file is not complete, the applicant(s) will be informed and will have 15 days to complete the file. If the file is timely completed, it is considered admissible. If the file is not timely completed, the application will not be processed further.
  • The second phase is the processing of the single permit application. The maximum processing time is 4 months/120 days (in exceptional circumstances, the processing time can theoretically even be extended) after notification by the regional Ministry that the application is complete. The regional Ministry will first make a decision on the work aspect: in the event of an approval, a work authorization will be issued. Afterwards, the federal immigration office will make a decision regarding residence. At present, the average processing time is approximately 3 months.
  • If the application is approved by the federal immigration office (this can be an explicit or implicit approval), the employer and the employee will be informed, and instructions to issue a residence authorization will be sent to the relevant authorities, either the Belgian embassy in the employee’s home country, for an employee residing abroad (the employee will receive a visa D), or the Belgian municipality where the employee legally resides, for an employee who is already legally residing in Belgium. The employee residing abroad can travel to Belgium with the visa D; he or she must register with the local municipality and will receive a temporary document before the single permit will be issued. The employee can start working as soon as the temporary document is issued.

New Legal Framework for Flanders for Work Authorizations/Permits

In general (for all single and dual permit applications), Flanders adopted a Decree, dated December 7, 2018, with new corporate immigration rules as of January 1, 2019. A portion of these new rules relates to the implementation of European Union (EU) directives (e.g., ICT (Intra-Corporate Transfers), researchers, trainees, volunteers). These new rules have not yet taken effect, however. This is expected to happen in the next few months.

There are several important changes:

  • Eligibility as a “highly skilled” or executive employee

“Highly skilled” implies having a higher education degree, issued by an education establishment accredited as a higher education establishment by its country of location. Degrees issued by private schools will not be taken into account. The studies must have taken at least 3 years, or have resulted in education qualification level 5 as defined by ISCED (International Standard Classification of Education).

Executives are defined as employees who (i) are entrusted with daily management of the company and authorized to represent and bind the company, and (ii) lead the company and supervise the activities of “lower” employees.

  • Salary threshold for highly skilled and executive employees

The gross salary threshold for highly skilled employees and executives will be determined on the basis of the average gross salary, published by federal authorities. The average annual gross salary is 12 times the average monthly gross salary. For 2019, the average annual gross salary is 41,868 € (12 x 3,489 €). For highly skilled employees, the salary threshold is 100% of the average annual gross salary (exception: locally employed highly skilled < 30 years and nurses: 80% of the average annual gross salary, or 33,494.40 € for 2019). For executives, the salary threshold is 160% of the average annual gross salary; for 2019 this is 66,989 €.

Salary includes all payments to the employee in consideration for work. The payments/amounts must be certain in advance/at the start of the employment in Belgium, which means that they must be mentioned in the assignment letter. The fact that the payment must be certain excludes discretionary bonuses. Allowances, directly linked and specific to the assignment, are considered part of the salary, unless they are paid in reimbursement of expenditures actually incurred on account of the assignment, such as expenditures on travel, lodging, and board. Travel, lodging, and board allowances are thus not considered as salary.

  • Duration of work authorizations for highly skilled and executive employees

The maximum duration of work authorization for the highly skilled and executives is 3 years instead of 1 year. The maximum duration depends on the duration of validity of the employment contract or assignment letter.

New Legal Framework for Brussels for Work Authorizations/Permits

A Decree of the Brussels Region government dated May 16, 2019, introduced new rules regarding work authorizations/permits as of June 1, 2019. A portion of the new rules relates to the implementation of EU directives (e.g., researchers, trainees, volunteers). These new rules have not yet taken effect; this is expected to happen in the next few months.

Some key points:

  • ICT (Intra-Corporate Transfer) permits

ICT permits can be applied for as of June 1, 2019, for managers (maximum 3 years), specialists (maximum 3 years), and trainee-employees (maximum 1 year), who have been employed for at least 6 months uninterrupted, immediately preceding the transfer. There is a degree requirement (3 years of higher education for managers and specialists; university, at least a bachelor’s degree, for trainee-employees), as well as a salary threshold (for 2019: 53,970 € for managers, 43,176 € for specialists, and 26,985 € for trainee-employees). The rules regarding short-term and long-term mobility for ICT permit holders also took effect as of June 1, 2019.

  • Duration of work authorizations for the highly skilled and executives

For applications filed as of June 1, 2019, highly skilled and executive work authorizations can be valid up to 3 years (instead of 1 year). The maximum duration depends on the duration of validity of the employment contract or assignment letter. Instead of filing an annual renewal application, the only obligation for the employer is to submit copies of salary documents and, for assignees, of the foreign social security confirmation document and of the Belgian Limosa (this is an online notification for assignees with the Belgian national social security office).

New Legal Framework for Wallonia for Work Authorizations/Permits

A Decree of the Walloon Region government dated May 16, 2019, is the new legal framework for work authorizations/permits issued by the Walloon Region. The new rules apply as of June 1, 2019, without affecting the validity of already issued authorizations/permits. An important section of the Decree relates to the implementation of EU directives (e.g., ICT, researchers, trainees, volunteers). These new rules have not yet taken effect; this is expected to happen in the next few months.

A few key points/novelties:

  • Salary threshold for the highly skilled and executives

As of 2020, the annual gross salary threshold for highly skilled and executive-level permits will be defined on the basis of the average annual gross salary. For the highly skilled, the threshold is 100% of the average annual gross salary (41,868 €); for executives, 160% (66,989 €). In addition, the annual gross salary cannot be less favorable than the applicable salary for similar jobs (currently and pursuant to the law, collective bargaining agreements, or practices);

Effective immediately, the definition of salary is clarified. Salary includes all payments to the employee in consideration for work. The amounts must be known with certainty to the employer, employee, and Belgian authorities before the start of the employment in Belgium. The fact that the amount must be certain excludes discretionary bonuses; contributions paid for professional supplementary pension schemes are not taken into account either. In the event of assignment, allowances, directly linked and specific to the assignment, are considered part of the salary provided they are not paid in reimbursement of expenditures actually incurred on account of the assignment, such as expenditures on travel, lodging, and board. Travel, lodging, and board allowances are thus not considered salary.

  • Duration of work authorizations for the highly skilled and executives

Highly skilled and executive work authorizations can be valid for the duration of the employment contract or assignment letter, up to a maximum of 3 years (instead of 1 year). Instead of filing an annual renewal application, the employer must submit copies of salary documents on/by the anniversary date of issuance of the work authorization.

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7. 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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8. ABIL Member / Firm News

Partners H. Ronald Klasko, William A. Stock, and Elise A. Fialkowski have been included in 26th edition of Best Lawyers in America in the area of immigration law.

Robert Loughran was named the Best Lawyers 2020 Immigration Law “Lawyer of the Year” in Austin, Texas, for the third year. Recognition was based on the consensus of almost 50,000 leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Mr. Loughran is the Managing Partner of Foster LLP‘s Austin office with a concentration in corporate immigration, investor immigration, and emigration to third countries. Mr. Loughran presents frequently before legal, professional, and academic organizations on the topics of U.S. and foreign work authorization, employer sanctions, maintenance of status, and changes in government proceedings.

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Recent H-1B Case Brings Hope that Reliance of the Umbrella ‘All Other’ Occupational Classification Need Not Be Fatal.”

Greg Siskind, of Siskind Susser, has been included in the 26th edition of Best Lawyers in America in the area of immigration law.

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