Headlines:

1. DHS Prioritizes U.S. Advanced Degrees in H-1B Final Rule; Electronic Registration Requirement Postponed -DHS has published a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption and introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule is effective April 1, 2019, although the electronic registration requirement will be suspended for one year.

2. Tens of Thousands of Immigration Court Hearings Canceled Due to Shutdown; Trump Announces Three-Week Reopening of Federal Government -More than 80,000 immigration court hearings were canceled due to the partial federal government shutdown, which added to an already large backlog.

3. USCIS Resumes Premium Processing for FY 2019 H-1B Cap Petitions -USCIS has resumed premium processing for all FY 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (master’s cap).

4. USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs -U.S. Citizenship and Immigration Services and the Department of Homeland Security, in consultation with the Department of State, have announced the list of countries whose nationals are eligible to participate in the H-2A and
H-2B visa programs in 2019.

5. State Dept. Suspends Visa Services in Caracas, Venezuela -The U.S. Embassy in Caracas has suspended routine visa services due to the ordered departure of non-emergency personnel. Due to continued unrest, U.S. citizens are advised to either leave Venezuela or prepare to shelter in place.

6. Trump Administration Implements Remain-in-Mexico Asylum Procedure -The Trump administration is implementing a procedure to force certain asylum-seekers wishing to come to the United States to remain in Mexico while their cases are processed. The plan, to begin at the San Ysidro border crossing, reportedly includes busing asylum-seekers to their hearings at a courthouse in San Diego, California, from Tijuana, Mexico.

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

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

9. Government Agency Links -Government Agency Links

Details:

1. DHS Prioritizes U.S. Advanced Degrees in H-1B Final Rule; Electronic Registration Requirement Postponed

The Department of Homeland Security has published a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption and introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule is effective April 1, 2019, although the electronic registration requirement will be suspended for one year, USCIS said.

Starting on April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations, USCIS said. Specifically, the agency noted, the change will result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for fiscal year (FY) 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS said it will provide H-1B cap filing instructions in advance of the filing season.

As noted above, after considering public feedback, USCIS has suspended the electronic registration requirement for the FY 2020 cap season “to complete user testing and ensure the system and process are fully functional.” Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS said it expects that the electronic registration requirement, once implemented, “will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.”

Additionally, USCIS said it will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Before implementation, USCIS “will conduct outreach to ensure petitioners understand how to access and use the system.” USCIS said it will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.

According to reports, DHS pushed through the proposed rule to finalization quickly. The agency had published a notice of proposed rulemaking on December 3, 2018. Public comments were due January 2; USCIS was not closed during the federal government shutdown because it is funded by fees.

The Alliance of Business Immigration Lawyers recommends that employers assess their need for H-1B employees and begin working on their H-1B petitions now. Annual demand typically far outstrips availability, so the visas are snapped up immediately.

Contact your ABIL attorney for advice and help with preparing H-1B petitions.

The final rule

The USCIS notice

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2. Tens of Thousands of Immigration Court Hearings Canceled Due to Shutdown; Trump Announces Three-Week Reopening of Federal Government

According to a report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), more than 80,000 immigration court hearings were canceled due to the partial federal government shutdown, which began at midnight on December 22, 2018, and ended on January 25. President Donald Trump has announced a reopening of the government for three weeks, until February 15.

The report notes that the active case backlog was already at 809,041 as of the end of November 2018. Judge Dana Leigh Marks termed the shutdown’s effect “devastating” and estimated that it could add three or four years to the wait before those canceled hearings can be rescheduled. According to TRAC figures as of January 11, immigration courts in California experienced the most hearing cancellations: an estimated 9,424. New York had the second highest number of cancellations, at 5,320. Texas was close behind New York with an estimated 5,141 immigration court proceedings canceled.

The fee-based U.S. Citizenship and Immigration Services remained open during the shutdown. Systematic Alien Verification for Entitlements (SAVE) program services remained operational during the shutdown, and SAVE said users should continue to submit cases to verify an applicant’s immigration or citizenship status. The Department of State said that scheduled passport and visa services in the United States and at U.S. embassies and consulates overseas continued during the shutdown “as the situation permit[ted].” E-Verify announced, “E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service.”

The TRAC report

Information about the growing backlog

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3. USCIS Resumes Premium Processing for FY 2019 H-1B Cap Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing as of Monday, January 28, 2019, for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (master’s cap). Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing they may submit.

When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If USCIS does not take certain adjudicative action within the 15-calendar day processing time, the agency refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition. USCIS said this service is only available for pending petitions, not new submissions, “because we have already received enough petitions to meet the FY 2019 cap.”

The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS said it plans “to resume premium processing for the remaining categories of H-1B petitions as agency workloads permit.”

The USCIS announcement

The previous notice about the suspension of premium processing and who is affected

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4. USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS), in consultation with the Department of State (DOS), have announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in 2019.

For 2019, the agencies have agreed to:

• Add Mozambique and Samoa to the list of countries eligible to participate in the H-2A and H-2B visa programs;
• Add Paraguay to the list of countries eligible to participate in the H-2A visa program;
• No longer designate Ethiopia and the Philippines as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
• No longer designate the Dominican Republic as an eligible country for the H-2B visa program because it no longer meets the regulatory standards for that program.

USCIS said factors that could result in the exclusion of a country or the removal of a country from the list include but are not limited to fraud, abuse, denial rates, overstay rates, human trafficking concerns, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country.

The USCIS announcement

The related Federal Register notice

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5. State Dept. Suspends Visa Services in Caracas, Venezuela

The U.S. Embassy in Caracas has suspended routine visa services due to the ordered departure of non-emergency personnel.

Due to the unrest in Venezuela, on January 24, 2019, the U.S. Department of State ordered non-emergency U.S. government employees to leave Venezuela. The U.S. embassy said the U.S. government has limited ability to provide emergency services to U.S. citizens in Venezuela. U.S. citizens are directed to contact U.S. Embassy Caracas for consular assistance. U.S. citizens residing or traveling in Venezuela “should strongly consider departing Venezuela,” the embassy said. Commercial flights remained available. U.S. citizens in Venezuela are advised that if they stay in Venezuela, they ensure that they have adequate supplies to shelter in place, review personal security plans, and monitor local media for updates. The embassy’s Twitter account notes that demonstrations are scheduled to take place throughout Venezuela on February 2, 2019, and may continue in the following days. Movement of U.S. government personnel will be restricted to the vicinity of the U.S. embassy.

The Department’s announcement

The U.S. embassy’s security alert

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6. Trump Administration Implements Remain-in-Mexico Asylum Procedure

According to reports, the Trump administration is implementing a procedure to force certain asylum-seekers wishing to come to the United States to remain in Mexico while their cases are processed. The plan, to begin at the San Ysidro border crossing, reportedly includes busing asylum-seekers to their hearings at a courthouse in San Diego, California, from Tijuana, Mexico.

This activity follows a December 2018 announcement by Homeland Security Secretary Kirstjen Nielsen of a new “Migration Protection Protocols (MPP),” which will apply to individuals arriving in or entering the United States via Mexico without documentation. ” ‘Catch and release’ will be replaced with ‘catch and return,’ ” the announcement states.

The Department of Homeland Security (DHS) released information on the MPP on January 24, 2019. Among other things, the information notes that:

With certain exceptions, MPP applies to aliens arriving in the U.S. on land from Mexico (including those apprehended along the border) who are not clearly admissible and who are placed in removal proceedings under INA § 240. This includes aliens who claim a fear of return to Mexico at any point during apprehension, processing, or such proceedings, but who have been assessed not to be more likely than not to face persecution or torture in Mexico. Unaccompanied alien children and aliens in expedited removal proceedings will not be subject to MPP. Other individuals from vulnerable populations may be excluded on a case-by-case basis.

The December announcement outlines the following process:

• “Aliens trying to enter the U.S. to claim asylum will no longer be released into our country, where they often disappear before a court can determine their claim’s merits.
• Instead, those aliens will be processed by DHS and given a ‘Notice to Appear’ for their immigration court hearing.
• While they wait in Mexico, the Mexican government has made its own determination to provide such individuals humanitarian visas, work authorization, and other protections. Aliens will have access to immigration attorneys and to the U.S. for their court hearings.
• Aliens whose claims are upheld by U.S. judges will be allowed in. Those without valid claims will be deported to their home countries.”

It is unclear how many are expected to follow this process or whether Tijuana has sufficient capacity to keep asylum seekers safe while they await their proceedings in the United States. Litigation is considered likely. The American Immigration Lawyers Association called the new policy a “due process disaster for asylum seekers” and said that asylum seekers waiting in Mexico “would encounter substantial barriers to accessing U.S. attorneys.”

Secretary Nielsen’s December announcement

A related Department of Homeland Security announcement

DHS released U.S. Customs and Border Protection data about apprehensions along the southwest border with the United States and related demographics

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7. New Publications and Items of Interest

Naturalization denials, delays; increased litigation. Syracuse University’s Transactional Records Access Clearinghouse (TRAC) reports that the latest available data from the federal courts show that during December 2018, the government reported 37 new federal civil immigration naturalization lawsuits over the last six months. According to case-by-case information analyzed by TRAC, this number is up 26% over the last six months. This continues an upward monthly trend in naturalization litigation evident since March 2017 after President Trump assumed office, a trend that has accelerated over the last six months, TRAC said. During calendar year 2018, the government reported 380 federal civil immigration naturalization lawsuits. This marked the highest annual total since the 2008-2009 period. The report

E-Verify webinars. Free E-Verify webinars are available by registering here. Upcoming topics include an E-Verify overview, E-Verify for existing users, Form I-9, myE-Verify, and information for federal contractors.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division is presenting webinars for employers and employees. The next webinar is on employers/HR representatives (November 23, 2018). More information here.

Alliance of Business Immigration Lawyers:

• The latest immigration news is at https://www.abil.com/news.cfm.
• The latest published media releases include:
  • ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs
  • New Data Show Increase in H-1B Denials and RFEs
  • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
  • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
  • ABIL Members Note Immigration Threats for Employers in 2018
• ABIL is available on Twitter: @ABILImmigration.
• Recent ABIL member blogs are at http://www.abilblog.com/.

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

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

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

• • : (new episode: )
  • Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants‘?
  • Hidden Brain: The Huddled Masses and the Myth of America

E-Verify free webinar listings are here.

Advisories and tips:

• Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory 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

Vic Goel was quoted by Bloomberg Law’s Daily Labor Report in “H-1B Visa Lottery Gets Last-Minute Overhaul in New Rule.” Reworking the lottery to favor advanced-degree holders “seems to run contrary to the plain language” of the Immigration and Nationality Act,” he said. Among other things, Mr. Goel said that a pre-registration process “makes sense” as long as it’s done fairly, but that he’d “like to see greater transparency in the lottery process.” He also observed that “[n]ot every position that qualifies as a specialty occupation is one where a master’s degree is a requirement,” so some industries and occupations where advanced degrees are less prevalent could wind up losing out. The article

Charles Kuck was quoted by Talking Points Memo in “Trump’s Companies Boosted Foreign Worker Visa Use to 10-Year High.” He said that the Trump Organization’s heavy reliance on visa programs flies in the face of the President’s political rhetoric and actions otherwise. “If in fact he wanted to ‘buy American, hire American,’ he’d say ‘we’re not going to use the immigration system, we’re going to go out and bring our workers down from West Virginia or from Kentucky or Maine and set them up and give them jobs. Why aren’t they recruiting in West Virginia? It’s hypocrisy.” The article

Mr. Kuck recently spoke about President Trump’s border wall efforts and the politics of immigration, on “Political Rewind.” Video, audio, and a related article are available here.

Cyrus Mehta has authored a new blog entry, “.”

Mr. Mehta was quoted by the Times of India in “Reversal in H-1B Lottery Order, First Priority to U.S. Degree Holders,” about his views on the change in the way H-1Bs will be counted so that they will be skewed toward U.S. advanced degree holders: “The skewing of H-1B visas toward those with master’s degrees from U.S. institutions under the new selection methodology is in some senses counter to the H-1B law, which was to permit those with foreign degrees, and equivalent work experience, to qualify for H-1B classification. Hence, a foreign physician with a master’s degree in medicine from a foreign university who intends to provide critical medical services in a shortage area in the United States may have less chances of nabbing an H-1B visa under the new proposal.” He added that “[e]ven a highly skilled IT worker with a bachelor’s degree in computer science from a reputed Indian institution such as the Indian Institute of Technology will have less chance of getting an H-1B in the new proposal. Both the physician and the IT worker with foreign degrees have the potential of making contributions to the U.S. in the same way, or even greater, as one who has recently graduated with an MBA from a U.S. university.” The article

Stephen Yale-Loehr was quoted by Fox News in “As Border Wall Talks Continue, Agents Keep Finding Cross-Border Tunnels.” The article includes a video interview with Mr. Yale-Loehr. Noting that a multi-pronged approach to border security is called for that includes better drones, more personnel, and electronic surveillance, he said, “I agree they have increased their ability to find these tunnels but we keep finding new tunnels—it’s a never-ending problem. And no matter how much money you have or how many personnel you have, you’re never going to be 100 percent effective. But, certainly, they are doing a better job now than they used to.” He said that a wall could be one aspect of a multi-pronged border security approach but that it wouldn’t solve the problem. The article and video

Mr. Yale-Loehr was quoted by Knowledge@Wharton, University of Pennsylvania, in “Exploring Immigration: Will the U.S. See Reform in 2019?” He said, “Congress came close in 2013 with a comprehensive immigration reform package that was passed bi-partisanly through the Senate and was 1,200 pages, but it failed to clear the House of Representatives. It has been historically hard to get immigration through any Congress and it has become only harder in this more politicized environment.” He also commented, “People in Congress are saying if we could combine funding for border security, plus some relief for DACA recipients and some protection for people who have temporary protected status, we could see some movement on immigration. I hope that would be the case, but politically we may be unlikely to achieve that.” Mr. Yale-Loehr concluded, “We need comprehensive immigration reform. There are many broken parts to the immigration system. Just trying to fix one of them, whether it’s asylum or illegal immigration, isn’t going to work. We need to have an overall approach. The Senate tried to do this in 2013. We need to have a national conversation about what is the role of immigration and when immigration can help the United States so that we can come up with a new overall comprehensive framework. Then we can untangle some of the mess that we’ve gotten ourselves into.” The article

Mr. Yale-Loehr was quoted by Voice of America regarding a Forbes.com H-1B column (in Vietnamese). The article

Mr. Yale-Loehr was quoted by the Houston Chronicle in “With Inaction, Supreme Court Gives Longer Life to DACA as Shutdown Drags On.” Commenting on the U.S. Supreme Court’s declining to take up the Trump administration’s appeal in a “Dreamers” case, Mr. Yale-Loehr said, “I think it is very unlikely to be considered this term, which means DACA lives another 10 months.” The article

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9. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

Headlines:

1. January Visa Bulletin Shows Significant Progress in EB-1, EB-3, and Other Workers India -The Department of State’s Visa Bulletin for January 2019 shows significant progress in the EB-1 category for all chargeability areas, as well as in the EB-3 and Other Workers India categories. Other priority dates remain Current or backlogged with little to no movement.

2. Federal Government Shutdown: Agency-by-Agency Update -The partial federal government shutdown continues unabated. Several departments have issued related announcements about the specifics of which immigration services have closed and which remain open.

3. USCIS Discontinues Case-Specific Assistance Via Service Center Email -USCIS is closing its case-specific assistance emailboxes and directing people to its online self-help tools and the USCIS Contact Center instead.

4. USCIS Closes Havana Field Office -USCIS permanently closed its field office in Havana, Cuba, as of December 10, 2018.

5. ABIL Global: Update on Brexit vs. Freedom of Movement (for Workers) -This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

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. January Visa Bulletin Shows Significant Progress in EB-1, EB-3, and Other Workers India

The Department of State’s Visa Bulletin for January 2019 shows significant progress in the EB-1 category for all chargeability areas, as well as in the EB-3 and Other Workers India categories. Other priority dates remain Current or backlogged with little to no movement.

Continuing its policy since the September 2018 Visa Bulletin, U.S. Citizenship and Immigration Services (USCIS) confirmed that adjustment-of-status applications may be filed based on the filing cut-off dates rather than the final action cut-off dates.

Many applicants and their dependent family members physically residing in the United States whose priority dates are significantly backlogged continue to benefit from this policy to be able to receive employment authorization documents and advance parole documents, and to potentially become eligible sooner for immigrant visa portability to change jobs while their employment-based adjustment of status is pending.

Although USCIS will continue to accept adjustment of status applications under the typically earlier filing cut-off dates, the applicant’s priority date must be current under the “final action cut-off date” before USCIS can finally approve the application.

The changes in the Final Action Cut-Off Dates from the December 2018 to the January 2019 Visa Bulletin include:

• EB-1: All Chargeability Areas (except China and India)—Forward progress of three months to October 1, 2017
• EB-1: China and India—Forward progress of three months and two weeks, to December 15, 2016
• EB-2: China—Forward progress of two weeks to August 1, 2015
• EB-3: Philippines—Forward progress of one week to June 22, 2017
• Other Workers: China—Forward progress of one month to July 1, 2007
• Other Workers: Philippines—Forward progress of one week to June 22, 2017
• EB-5: China—Forward progress of one week to September 1, 2014
• EB-5: Vietnam—Forward progress of one month to June 1, 2016

In both the EB-5 Regional Center and the EB-5 Non-Regional Center categories, the “Filing Cut-Off Dates” are Current for applicants born in all countries except for mainland China, which is backlogged to October 1, 2014, allowing for filing of adjustment-of-status applications for those with approved I-526 petitions who are residing in the United States.

In the EB-5 Non-Regional Center category, the “Final Action Dates” are current for all countries except China and Vietnam, which continue to be backlogged but with slight forward movement: currently backlogged at September 1, 2014, for China, and June 1, 2016, for Vietnam. However, the “Final Action Dates” for the EB-5 Regional Center category for all countries are “Unavailable” and immigrant visas cannot be issued right now because of the partial government shutdown discussed in the next article.

Applicants whose priority dates are backlogged should review the filing cut-off dates in the bulletin to determine if they may be eligible to file during the month of January. Applicants who will become eligible to file immigrant visa applications in January should initiate applications now with their Alliance of Business Immigration Lawyers attorney to plan for the earliest possible filing date.

The Visa Bulletin for January 2019

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2. Federal Government Shutdown: Agency-by-Agency Update

The partial federal government shutdown that began at 12:01 a.m. on Saturday, December 22, 2018, continues unabated. Several departments have issued related announcements about the specifics of which immigration services have closed and which remain open, summarized below in alphabetical order:

Department of Labor. DOL’s announcement refers people to its extensive contingency plan.

Department of Justice. DOJ released the following statement: “Due to the lapse in appropriations, Department of Justice websites will not be regularly updated. The Department’s essential law enforcement and national security functions will continue. Please refer to the Department of Justice’s contingency plan for more information.” The contingency plan, dated September 2018

Department of State. DOS announced on December 22, 2018, that scheduled passport and visa services in the United States and at U.S. embassies and consulates overseas will continue “during the lapse in appropriations as the situation permits.” The agency said it will not update its website until full operations resume, with the exception of urgent safety and security information. The National Visa Center, National Passport Information Center, and Kentucky Consular Center will still accept telephone calls and inquiries from the public.

All passport agencies and centers and acceptance facilities (such as U.S. post offices, libraries, and county clerk’s offices) are still accepting applications for U.S. passport books and passport cards during the shutdown, and passports can be renewed by mail, DOS said. Processing times remain the same: four to six weeks for routine service and two to three weeks for expedited service.

Those who have scheduled appointments at a DOS passport agency or center should plan on keeping their appointments, the agency said. Those who need to cancel their appointments at those places may do so by calling 1-877-487-2778 or visiting the Online Passport Appointment System. Those who have scheduled appointments at a passport acceptance facility and need to cancel should contact the facility directly; click here to search for a local facility.

The DOS passport notice

Executive Office for Immigration Review—immigration courts. With respect to the operating status of immigration courts during the shutdown, EOIR said that detained docket cases will proceed as scheduled. Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

The EOIR notice

U.S. Citizenship and Immigration Services. USCIS said that the shutdown does not affect USCIS’s fee-funded activities. USCIS offices remain open and all applicants should attend their interviews and appointments as scheduled, the agency said. The lapse in government appropriations does not affect Form I-9 Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other I-9 requirements.

USCIS noted that several USCIS programs have either expired or suspended operations, or are otherwise affected, until they receive appropriated funds or are reauthorized by Congress. The program-specific announcements are summarized below:

• EB-5 Immigrant Investor Regional Center Program. The EB-5 Immigrant Investor Regional Center Program expired at the end of the day on December 21, 2018, due to a lapse in congressional authorization to continue the program. All regional center applications and individual petitions are affected. USCIS will not accept new Forms
  I-924, Application for Regional Center Designation Under the Immigrant Investor Program, as of December 21, 2018. Any pending Forms I-924 as of that date will be put on hold until further notice. Regional centers should continue to submit Form I-924A, Annual Certification of Regional Center, for fiscal year 2018. USCIS said it will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status. USCIS has put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time. All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date will not be affected by the expiration of the program. USCIS said it will provide further guidance if legislation is enacted to reauthorize, extend, or amend the regional center program.

The announcement about the EB-5 program, in English with a link to a PDF in simplified Chinese.

• E-Verify. Services are unavailable due to the shutdown, USCIS said. Employers’ E-Verify accounts are also unavailable, so employers will not be able to enroll in E-Verify; create an E-Verify case; view or take action on any case; add, delete, or edit any user account; reset a password; edit company information; terminate an account; or run reports. Also, employees will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs). E-Verify said that the agency understands that E-Verify’s unavailability may have a “significant impact on employer operations.” To minimize the burden on both employers and employees, the agency has implemented the following policies:

• • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving a TNC.
  • USCIS said it will provide additional guidance regarding the “three-day rule” and time period to resolve TNC deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should ask their contracting officer about extending federal contractor deadlines.
  • MyE-Verify accounts are unavailable and employees will not be able to access their accounts to use self-check, self-lock, case history, or case tracker.
  • Upcoming webinars are canceled.
  • Telephone and email support for Form I-9, E-Verify, and MyE-Verify is unavailable.

The E-Verify announcement

• Conrad 30 waiver for J-1 doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the United States; it is not a shutdown of the Conrad 30 program entirely.

More information about the Conrad 30 waiver program

• Non-minister special immigrant religious workers. This category allows non-ministers in religious vocations and occupations to immigrate or adjust status in the United States to perform religious work in a full-time, compensated position. The EB-4 non-minister special immigrant religious worker program expired due to a lapse in congressional authorization to continue the program. USCIS will reject any Form I-360 Special Immigrant petitions for Non-Minister Religious Workers received on or after December 22, 2018. Petitions received by USCIS before that date but not issued a final decision before December 22, 2018, will be placed on hold in case the program is reauthorized.

More information about the special immigrant religious workers program and expiration

The USCIS announcement

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3. USCIS Discontinues Case-Specific Assistance Via Service Center Email

U.S. Citizenship and Immigration Services (USCIS) announced that it is discontinuing use of USCIS service center emailboxes for case-specific questions as of January 21, 2019. Instead, USCIS is directing people to its online self-help tools and the USCIS Contact Center.

The service center email addresses being discontinued are:

• California Service Center: [email protected]
• Vermont Service Center: [email protected]
• Nebraska Service Center: [email protected]
• Potomac Service Center: [email protected]
• Texas Service Center: [email protected]

The announcement, which includes information about USCIS’s online tools

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4. USCIS Closes Havana Field Office

U.S. Citizenship and Immigration Services (USCIS) permanently closed its field office in Havana, Cuba, as of December 10, 2018. The USCIS field office in Mexico City, Mexico, will assume the Havana field office’s jurisdiction over U.S. immigration matters for individuals who are in Cuba. The U.S. Department of State in Havana “will also assume responsibility for certain services previously handled by USCIS,” the agency said.

USCIS noted that U.S. embassy visa services in Havana have been almost entirely suspended since November 2017 due to a drawdown in staffing as a result of attacks affecting the health of U.S. embassy employees there. The Department of State and USCIS “continue to explore options to resume consular and other immigration services in alternate locations,” USCIS said.

The announcement, which includes details on filing instructions for individuals who live in Cuba or who petition for residents in Cuba

Information on the USCIS Mexico City field office

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5. ABIL Global: Update on Brexit vs. Freedom of Movement (for Workers)

This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

It has now been over two and a half years since the United Kingdom (UK) resolved in a referendum held on June 23, 2016, by a slim majority (51.9% to 48.1%), to leave the European Union (EU). Following submission of the written Withdrawal Declaration to the European Council on March 29, 2017, effective after two years, negotiations on the terms and conditions of the withdrawal were initiated with some delay. An initial breakthrough in the negotiations was achieved about a year ago, and the first draft of the UK-EU Withdrawal Agreement was presented in the spring. The debate nevertheless continued to be highly controversial. Finally, in November 2018, despite all the adversity, a decisive breakthrough was achieved. On November 14, 2018, the EU and the UK reached an agreement on the revised version of the Withdrawal Agreement, which includes a transitional arrangement until December 31, 2020, which may be extended once by mutual agreement for a period that has not been specified.

However, this arrangement can only enter into force once it has been ratified by both the UK and the EU. Unless the Council agrees otherwise with the withdrawing Member State, Article 50, para. 3, TEU, states that European contracts will no longer apply after two years from the date of the formal application, i.e., after March 28, 2019, unless all Member States mutually agree on an extension. This is commonly referred to as “hard BREXIT” or “no deal” and would be accompanied by significant trade barriers between the UK and mainland Europe, with huge economic ramifications.

All of this is reason enough to take a closer look at the effects of the withdrawal from a residency law perspective and to appraise the (probable) future legal situation.

What is the law now and what will it be in the future? “The deal”

With regard to the freedom of movement (for workers), it is first necessary to bear in mind the regulations that will continue to apply until at least March 29, 2019, under the current legal situation and what would (probably) change in the future under the Withdrawal Agreement.

Legal Situation Before the Withdrawal

UK citizens continue to be (even after the Withdrawal Declaration on March 29, 2017) EU citizens or, more precisely, citizens of the Union. Article 17 of the Treaty on the Functioning of the European Union (TFEU) states that any person who is a citizen of a Member State is also a citizen of the Union. This is the situation until two years after the declaration of withdrawal, i.e., until March 28, 2019. At present, this means that the privileges granted to UK citizens with regard to the right to free movement and residence (for workers) continue to apply. This includes the right of workers:

• to apply for jobs offered on the market
• to move unrestrictedly within the territory of the Member States for that purpose
• to reside in a Member State in order to pursue employment there in accordance with the laws, regulations, and administrative provisions applicable to employees in that State
• to remain within the territory of a Member State after having been employed there under conditions laid down by the Commission by means of regulations

However, these privileges with regard to the right to free movement and residence of workers will continue to apply without restriction for a period of two years (subject to a mutually agreed extension of this period) after the UK submitted its declaration of withdrawal.

Anticipated Legal Situation After the Withdrawal

The Withdrawal Agreement includes transition provisions (“Implementation Period”) until December 31, 2020, to mitigate the effects of the withdrawal on Union citizens and British citizens and contains the following detailed regulations:

Free Movement of Workers

EU citizens residing legally, temporarily, or permanently in the UK at the time of the EU withdrawal may continue to live, work (or become unemployed with no fault of their own, self-employed, study or seek employment within the meaning of Article 7(3) of the Free Movement Directive), or study in the UK. The same applies to British citizens who live in an EU member state.

Persons living temporarily or permanently in the United Kingdom at the time of the withdrawal or the date of the Withdrawal Agreement may also remain in the country. The same applies analogously to British citizens who are legally residing in an EU member state, including persons living with them in non-marital relationships. EU negotiators rejected a request by negotiators from the United Kingdom that a regulation be provided for with regard to British citizens who move to an EU member state after the date of record, stating that they had no mandate to provide for such regulation and that such matters would be provided for in a later agreement.

EU and UK citizens must be legal residents in the host Member State at the end of the transitional period in accordance with EU law on the free movement of persons. However, the Withdrawal Agreement does not require a personal presence in the host country at the end of the transitional period—temporary absences do not affect the right of residence, and longer absences that do not restrict the right of permanent residence are permitted.

According to the Withdrawal Agreement, the above rights will not expire after the transitional period. This means that Union citizens retain their right of residence essentially under the same substantive conditions as under the EU right of free movement, but must apply to the UK authorities for a new UK residence status. After five years of legal residence in the UK, the UK residence status will be upgraded to a permanent status with more rights and enhanced protection.

The same applies to British citizens who continue to legally reside in an EU Member State after a period of five years.

Family Members

EU citizens who are already legal residents in the UK either temporarily or permanently, at the time of the country’s withdrawal from the EU, have a right to family unification, including with family members who do not live with them yet. In addition to spouses (or persons with equivalent status), this also concerns parents and children (including children born after the date of record). The applicable regulations under national law will apply to any other family members.

Social Security

EU citizens who are already living in the United Kingdom at the time of the country’s withdrawal from the EU, as well as British citizens who live in an EU Member State, will retain their entitlements from health and pension insurance plans, as well as other social security benefits, or these entitlements are mutually taken into account.

Administrative Procedures

The United Kingdom promises its resident EU citizens a special residential status that secures their rights and can be applied for easily and at a low cost. EU citizens living permanently or temporarily in the United Kingdom can have their status clarified by the responsible administrative authorities until two years after the date of record. Decisions are to be made exclusively on the basis of the Withdrawal Agreement, without any further discretionary powers. The procedure is proposed to be quick, simple, convenient, and free of charge.

Case Law

Under the Withdrawal Agreement, the European Court of Justice (ECJ) retains jurisdiction for pending cases and questions referred by British courts until the end of the transitional period. EU citizens can only litigate their rights before British courts; these courts, however, will give consideration to the case law of the ECJ for a transitional period of eight years after the expiration of the transitional period, and may also continue to submit questions to the ECJ.

Right to Permanent Residency

The right of EU citizens to permanent residency after they have been in the UK for five years will be retained, with regulations under European law continuing to be authoritative for the eligibility requirements. Time spent in the country before the withdrawal will be taken into account, and periods of temporary absence (of up to six months within a period of 12 months) from the United Kingdom for important reasons will not count toward this period. EU citizens living outside of the UK will only lose their right of permanent residency after a period of five years. Existing permanent residency permits are proposed to be converted free of charge, subject to an identity check, a criminal background and security check, and the assurance and confirmation of ongoing residency.

The State of Play

The road to the possible conclusion and entry into force of the Withdrawal Agreement remains rocky and almost impassable. To make things worse, all of this is playing out in a political minefield. Now that the EU has adopted the Withdrawal Agreement, it is the UK’s turn. The Parliament’s decision on the adoption of the Withdrawal Agreement was initially scheduled for December 11, 2018. In the meantime, however, British Prime Minister Theresa May held a crisis meeting and announced that she was postponing the vote until an unspecified later point in time. This is probably because recent surveys indicated that the Withdrawal Agreement would fail to attract a majority. According to press reports, the vote is proposed to take place by January 21, 2019.

Meanwhile, the EU has reiterated that the bloc will not be available for renegotiations on the Withdrawal Agreement. In the meantime, Ms. May held talks with German Chancellor Angela Merkel in Berlin and with leaders of other EU member states in Amsterdam, Holland, and Brussels, Belgium. So far, these talks have been without success. It is more than symbolic that Ms. May was unable to disembark upon arrival in Berlin due to a technical defect that prevented her car’s door from being opened. The times in which a “handbag” moment (this refers to former UK Prime Minister Margaret Thatcher, who “forced” a decision in a brash appearance in Brussels) is enough to persuade the EU to give in seem to be over. There is unanimous consent on the EU side that renegotiations are categorically excluded. Meanwhile, growing reports point to an imminent motion of censure in the British Parliament. The political pressure on Ms. May’s shoulders is therefore as heavy as it could possibly be despite of having survived the vote of no confidence on December 12, 2018.

A further possible way out of this dilemma that has now been suggested by the ECJ did not come as a surprise, given the opinion of the Advocate General published recently. In its judgment handed down on December 10, 2018, the ECJ, on the basis of a referral made at the request of Scotland’s highest civil court in the matter of Wightman et al. vs. Secretary of State for Exiting the European Union (C-621/18), ruled that it is possible under certain conditions for the UK to unilaterally revoke the Withdrawal Declaration issued to the EU on March 29, 2017. It would be possible for as long as there is no binding withdrawal agreement and the period of two years stipulated in Article 50(3) TFEU has not expired, for as long as the revocation is made by a unilateral, unequivocal, and unconditional written declaration to the European Council after the concerned Member State has enacted the revocation decision in accordance with its constitutional requirements. Irrespective of this fundamental possibility established in this judgment, it is questionable whether this would happen before March 29, 2019, as the decision to issue such a revocation would also be subject to a majority in the British Parliament and, in all likelihood, could not ever be validly declared without the consent of the majority of Parliament.

Given all of these circumstances, both sides (but more on the UK side than on the EU side) continue to find themselves under massive pressure. This is all the more true as the Withdrawal Agreement still needs to be ratified by the Member States. Any extension of the two-year negotiation window, which would only be possible by mutual agreement, seems highly unlikely and would always entail the risk of a Member State “throwing a wrench into things” or demanding significant concessions in other areas before agreeing to such an extension. In this context, the possibility of a unilateral revocation of the Withdrawal Declaration could gain significance.

Assessment—”The Complete Mess”

The current situation seems hopeless from the point of view of the UK. The ratification of the Withdrawal Agreement seems such a remote possibility that the British Prime Minister is apparently too afraid of even putting it to a vote. The negotiating partners at the EU are not willing to make any further concessions. The alternative of withdrawing from the EU without a transitional arrangement appears to entail unpredictable economic disadvantages for the UK. On the other hand, the outcome of a second referendum, once again conceivable after the ECJ ruling on the possibility of unilaterally revoking the Withdrawal Declaration, is not as clear-cut as may be suggested in some newspapers. Calling all of this a “complete mess” would probably be a fair assessment.

The history of the EU tells us that the negotiations likely will eventually come to an end with a compromise that is bearable for both sides, even though we cannot predict the details. There might even be a chance that the United Kingdom will in the end remain in the EU. Stay tuned.

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6. New Publications and Items of Interest

Refugee/asylee flyer. The Department of Justice’s Immigrant and Employee Rights Section (IER) recently updated an informational flyer providing refugees and asylees with information on the Form I-9 work authorization verification process and how to get help from IER for possible related discrimination. The flyer is available in Amharic, Arabic, Armenian, Burmese, English, Farsi, French, Karen, Kayah, Nepali, Russian, Simplified Chinese, Somali, Spanish, Swahili, Tigrinya, Ukrainian, and Urdu. See the DOJ website for more information. Under “IER Publications,” scroll down to “Information for Refugees and Asylees About the Form I-9” for links to the flyer in various languages. The English flyer is available here.

E-Verify webinars. Free E-Verify webinars are available by registering here. Upcoming topics include an E-Verify overview, E-Verify for existing users, Form I-9, myE-Verify, and information for federal contractors.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division is presenting webinars for employers and employees. The next webinar is on employers/HR representatives (November 23, 2018). More information here.

Alliance of Business Immigration Lawyers:

• The latest immigration news is at https://www.abil.com/news.cfm.
• The latest published media releases include:
  • ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs
  • New Data Show Increase in H-1B Denials and RFEs
  • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
  • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
  • ABIL Members Note Immigration Threats for Employers in 2018
• ABIL is available on Twitter: @ABILImmigration.
• Recent ABIL member blogs are at http://www.abilblog.com/.

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

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

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

• • : (new episode: )
  • Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants‘?
  • Hidden Brain: The Huddled Masses and the Myth of America

E-Verify free webinar listings are here.

Advisories and tips:

• Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory 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

A new Forbes article, “U.S. Policies Harming Labor Mobility of H-1B Professionals,” quotes Dagmar Butte, Vic Goel, and William Stock. The article discusses how the combination of denials, long wait times, and suspension of premium processing is making it more difficult for H-1B professionals to change jobs. It concludes that the administration’s policies have made employers, H-1B professionals, and U.S. workers all worse off.

Robert Loughran and Matthew Myers, both of Foster LLP, provided an overview on December 4, 2018, of employment-based immigration strategies in the United States for small businesses and entrepreneurs from Latin America at the offices of Velocity Texas’ Global Accelerator Program, an initiative to incubate and accelerate competitively selected international companies in San Antonio, Texas.

Cyrus Mehta has authored several new blog entries: “Top 10 Most Viewed Posts Published on the Insightful Immigration Blog in 2018,” and “.”

Stephen Yale-Loehr was quoted in the South China Morning Post in “U.S. Investor Visa Programme Backlog Puts Chinese Capital at Risk” regarding the EB-5 immigrant investor green card program. Mr. Yale-Loehr said, “It’s a guessing game. Everybody is trying to figure out what to do and it’s a huge problem.” He noted that “the industry and investors need clarity, but nobody is holding their breath. They desperately need Congress to act on increasing the quota to alleviate the backlog, but that’s not anywhere on the horizon either. Unfortunately, I don’t see the light at the end of the tunnel.”

Mr. Yale-Loehr was quoted in two articles about a new federal court ruling blocking the Trump administration’s efforts to restrict asylum for people fleeing domestic violence and gangs. Both contain the same quote: “Although the government will almost certainly appeal, in the meantime … the federal court ruling ensures that people fleeing domestic violence or gang violence will have a fair shot.”

• Los Angeles Times
• Voice of America

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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

Headlines

1. State Dept. Announces Oversubscription of September Employment-Based Second and Third Preference Categories -The Department of State’s Visa Bulletin for September 2018 announced oversubscription of employment-based visa numbers in several categories.

2. USCIS Extends, Expands Suspension of Premium Processing for Certain H-1B Petitions; Increases Premium Processing Fee -USCIS announced that it is extending the temporary suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, 2018, will expand this temporary suspension to include certain additional H-1B petitions. USCIS said it estimates that these suspensions will last until February 19, 2019. USCIS is also raising the fee for premium processing.

3. USCIS Automatically Extends EAD Validity for Certain Haiti and Yemen TPS Beneficiaries; Reminders Issued for Hondurans, Syrians, Nepalese -USCIS is automatically extending the validity of employment authorization documents for certain temporary protected status beneficiaries from Haiti and Yemen. Reminders were also issued for other countries.

4. USCIS Updates Guidance, Accepts Comments on Regional Center Geographic Area – USCIS is updating guidance and accepting comments regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests affect the filing of Form I-526 petitions.

5. Burbank Man Who Allegedly Led Prescription Drug Ring Arrested on New Charges of Fraudulently Procuring U.S. Citizenship – A Burbank, California, man who operated a string of allegedly sham medical clinics was arrested on new charges that he unlawfully procured U.S. citizenship. The man already faces federal charges of using the clinics to orchestrate a massive narcotics scheme.

6. ABIL Global: Canada – On July 31, 2018, amendments to Canada’s Immigration and Refugee Protection Regulations providing for the expansion of biometric information collection for foreign nationals seeking to enter or remain in Canada entered into force.

7. New Publications and Items of Interest – New Publications and Items of Interest8. Member News -Member News

9. Government Agency Links – Government Agency Links

Read more

Headlines:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9. ABIL Global: United Kingdom –

What now for the Windrush Generation?

10. New Publications and Items of Interest –

New Publications and Items of Interest

11. Member News –

Member News

12. Government Agency Links –

Government Agency Links

Details:

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

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

OVERSUBSCRIPTION OF AUGUST EMPLOYMENT-BASED PREFERENCE CATEGORIES

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

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

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

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

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

The bulletin for August 2018

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2. USCIS Postpones Implementation of Memorandum on Notices to Appear

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

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

The announcement

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

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

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

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

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

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

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

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

The USCIS notice

The new law

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

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

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

The CBP announcement

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5. DHS Extends TPS Designation for Somalia for 18 Months

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

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

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

The announcement

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

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

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

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

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

The announcement and list

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

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

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

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

ICE’s New York announcement

ICE’s Boston announcement

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

On July 29, 2018, President Donald Trump tweeted:

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

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

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

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9. ABIL Global: United Kingdom

What now for the Windrush Generation?

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

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

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

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

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

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10. New Publications and Items of Interest

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

Alliance of Business Immigration Lawyers:

• The latest immigration news
• The latest published media releases include:
  • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
  • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
  • ABIL Members Note Immigration Threats for Employers in 2018
• ABIL is available on Twitter: @ABILImmigration.
• Recent ABIL member blogs are at http://www.abilblog.com/.

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

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

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

• : New episode,
• Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
• Hidden Brain: The Huddled Masses and the Myth of America

E-Verify free webinar listings are available here.

Advisories and tips:

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

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11. Member News

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

Seth Dalfen (Gomberg Dalfen)

Helene Dang (Foster LLP)

Addie Hogan (Pearl Law Group)

Jan Pederson (Maggio Kattar Nahajzer & Alexander, PC)

Jay Strimel (Seyfarth Shaw LLP)

Cyrus Mehta has authored a new blog entry, “.”

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry, “.”

Mr. Mehta and Ms. Genovese have co-authored a new blog entry, “.”

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

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

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

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

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

On family reunification:

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

On the EB-5 program:

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

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

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

On ICE tactics:

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

On U.S. asylum:

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

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12. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Recalls 800 Incorrectly Printed Employment Authorization Documents –

USCIS said the cards contain a production error that transposed the first and last names of the individuals receiving the EADs.

2. ICE/SEVP Warns Students About Volunteer Positions –

SEVP warned that reporting non-qualifying volunteer opportunities as OPT employment will be deemed a violation of reporting requirements and subject the student to removal from the United States.

3. USCIS Releases Data on DACA Requestors With ‘Criminal Arrest Record’ –

USCIS said the report includes those whose applications were approved and denied, criminal and immigration-related civil offenses, and arrests and “apprehensions.” The report notes that the data include those who have not been convicted of any crimes.

4. USCIS Completes Lottery for Temporary Increase in FY 2018 H-2B Cap –

USCIS has completed a lottery for H-2B temporary nonagricultural petitions under a temporary final rule that increased the numerical limit, or cap, on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of FY 2018.

5. ICE Arrests 146 on Immigration Violations at Ohio Meat-Processing Company –

ICE said the enforcement action is part of a year-long, ongoing investigation based on evidence that Fresh Mark may have knowingly hired undocumented workers at its meat processing and packaging facility, and that many of these workers are using fraudulent identification belonging to U.S. citizens.

6. Labor Dept. Adds Time Received to Receipt Date for Review of H-2B Temporary Labor Certification Applications; Related News –

OFLC released information on how H-2B applications for temporary employment certification filed by employers on or after July 3, 2018, will be assigned to staff for review.

7. USCIS Sends Letter on B-1/B-2 Upcoming Proposed Regulation –

Proposed regulatory revisions will clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States.

8. Expect Retrogression of Mexico E-4 and SR Final Action Dates in July, State Dept. Says –

There continues to be high demand in the Mexico E-4 and SR categories, which is expected to result in the Mexico E-4 per-country limit being reached during June.

9. 132 Members of Congress Urge DHS to Continue Allowing H-4 Spouses of H-1B Nonimmigrants to Work –

The letter notes that providing work authorization for accompanying spouses helps U.S. employers recruit and retain highly qualified employees.

10. USCIS Announces Launch of Online FOIA Request Processing System –

USCIS is commencing digital delivery of this service in phases. Initially, requestors who have an immigration court date pending and file a request for documents can create an account within myUSCIS to receive documents digitally.

11. SAVE Goes Paperless –

Benefit-granting agencies using USCIS’ Systematic Alien Verification for Entitlements program, used to verify a benefit applicant’s immigration status, can no longer submit paper versions of verification requests.

12. ABIL Global: Australia –

Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

13. New Publications and Items of Interest –

New Publications and Items of Interest

14. Member News –

Member News

15. Government Agency Links –

Government Agency Links

Details:

1. USCIS Recalls 800 Incorrectly Printed Employment Authorization Documents

On June 21, 2018, U.S. Citizenship and Immigration Services (USCIS) began recalling approximately 800 employment authorization documents (EADs) that were issued in conjunction with Form I-589, Application for Asylum and for Withholding of Removal, which were granted by USCIS asylum officers. USCIS said the cards contain a production error that transposed the first and last names of the individuals receiving the EADs. USCIS mailed these cards to recipients in April and May 2018.

USCIS said it is sending notices to individuals who received the incorrect EADs, as well as to their attorneys or accredited representatives, if a G-28 was submitted with the corresponding Form I-589. The agency said the affected individuals should return their incorrect EADs to USCIS in the provided pre-paid envelope within 20 days of receiving the notice. Recipients may also return their EADs to a USCIS field office. Replacement EADs will be sent within 15 days of receiving the incorrect card, USCIS said.

USCIS noted that the recall does not affect these individuals’ employment authorization because they are authorized for employment without needing an EAD. Affected recipients’ Forms I-94 showing that they were granted asylum is also evidence that they are authorized to be employed. USCIS said that any affected individuals who need proof of their employment authorization can notify the USCIS Contact Center.

The USCIS notice

More information about the USCIS Contact Center, including the telephone numbers to call

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2. ICE/SEVP Warns Students About Volunteer Positions

U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program office broadcast the following on May 18, 2018, to students on optional practical training (OPT):

Volunteer positions that are not directly related to your course of study do not qualify as [OPT] and must not be listed as OPT employment. Reporting non-qualifying volunteer opportunities as OPT employment will be deemed a violation of your reporting requirements and subject you to removal from the United States.

In addition, non-qualifying volunteer positions do not stop the accrual of unemployment which is limited to a total of 90 days during OPT. Accordingly, if you have been unemployed for more than 90 days, you must leave the United States or be subject to removal even if you have volunteered while unemployed.

Note: A volunteer position does not meet the conditions of a science, technology, engineering and mathematics OPT extension.

The alert

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3. USCIS Releases Data on DACA Requestors With ‘Criminal Arrest Record’

U.S. Citizenship and Immigration Services (USCIS) recently released data on Deferred Action for Childhood Arrivals (DACA) requestors who have a “criminal arrest record.” USCIS said the report includes those whose DACA applications were approved and denied, criminal and immigration-related civil offenses, and arrests and “apprehensions.” The report notes that the data include those who have not been convicted of any crimes.

The report notes that since 2012, about 1% of approved DACA requestors have an arrest in any given year. “An arrest indicates the individual was arrested or apprehended only and does not mean the individual was convicted of a crime. Further, individuals may not have been charged with a crime resulting from the arrest, may have had their charges reduced or dismissed entirely, or may have been acquitted of any charges. Errors may result from the mining of complex text files.”

A breakdown on approved DACA requestors with a prior arrest, by type of offense, shows that the vast majority were for driving-related offenses (20,926), which include driving without a valid license, moving and non-moving violations, and speeding, but exclude driving under the influence. The next-largest category of offense was immigration-related, including visa overstays, immigration holds, and removal and deportation proceedings.

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4. USCIS Completes Lottery for Temporary Increase in FY 2018 H-2B Cap

U.S. Citizenship and Immigration Services (USCIS) has completed a lottery for H-2B temporary nonagricultural petitions it began receiving on May 31, 2018, under a temporary final rule that increased the numerical limit, or cap, on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2018. In the first five business days of filing, USCIS received petitions for more beneficiaries than the number of H-2B visas available under the FY 2018 supplemental cap. USCIS used a computer-generated selection process to randomly select enough petitions to meet, but not exceed, the increased H-2B cap for FY 2018. USCIS ran this lottery on June 7, 2018, and on June 11, 2018, began issuing notifications to the selected petitioners.

USCIS said it is rejecting and returning unselected petitions with their filing fees, as well as any cap-subject petitions received after June 6, 2018. Petitions accepted for processing will have a receipt date of June 11, 2018. Premium processing service for these petitions begins on that receipt date. Only employers whose petitions were accepted will receive receipt notices.

USCIS noted that a petition may be denied if USCIS discovers, after a petition has been filed, that an original approved temporary labor certification (TLC) was not submitted with the petition in accordance with the Form I-129 instructions, or if a petitioner requests more workers than were certified on the TLC. USCIS will not refund fees for a petition that has been denied.

USCIS continues to accept H-2B petitions that are exempt from, or not counted toward, the cap. These include petitions for:

• Current H-2B workers in the United States seeking to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians, or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam, until December 31, 2019.

USCIS noted that Congress set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 through September 30). The 15,000 additional visas for FY 2018 are available only to U.S. businesses which, among other requirements, attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petitions.

The USCIS notice

Information on premium processing

More information on the cap count for H-2B nonimmigrants

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5. ICE Arrests 146 on Immigration Violations at Ohio Meat-Processing Company

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit executed a criminal search warrant at Fresh Mark in Salem, Ohio, on June 19, 2018, and federal document search warrants at three other Fresh Mark locations in northern Ohio. During the search warrant execution, authorities identified 146 Fresh Mark employees working at the Salem meat processor who were subject to arrest for immigration violations.

ICE said the enforcement action is part of a year-long, ongoing HSI investigation based on evidence that Fresh Mark may have knowingly hired undocumented workers at its meat processing and packaging facility, and that many of these workers are using fraudulent identification belonging to U.S. citizens.

The action was coordinated with HIS’s federal, state, and local counterparts, including the Northern District of Ohio’s U.S. Attorney’s Office; U.S. Border Patrol, ICE Enforcement and Removal Operations; U.S. Customs and Border Protection Air and Marine Operations; HSI Detroit and Chicago Special Response Teams; the Salem Police Department; and the Columbiana County Sheriff’s Office.

ICE said that in the context of any enforcement action, “ICE utilizes prosecutorial discretion on cases involving humanitarian concerns, such as health or family considerations.” Accordingly, during the June 19 action, “several individuals were processed and released from custody the same day as a result of humanitarian considerations,” ICE said. Aliens who are being detained will be transported to a nearby processing facility and placed in removal proceedings. Aliens will be detained in facilities in Michigan and Ohio while awaiting removal proceedings.

A 24-hour toll-free detainee locator hotline is available for family members of those arrested in the operation to field questions about detention status and the removal process. The hotline operates in English and Spanish; the phone number is 1-888-351-4024.

The ICE notice

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6. Labor Dept. Adds Time Received to Receipt Date for Review of H-2B Temporary Labor Certification Applications; Related News

On June 1, 2018, the Department of Labor’s Office of Foreign Labor Certification (OFLC) released information on how H-2B applications for temporary employment certification filed by employers on or after July 3, 2018, will be assigned to staff for review. Applications filed on or after that date will be sequentially assigned to analysts based on both the calendar date and time (eastern time zone) on which the applications are received. The receipt time will be measured to the millisecond.

OFLC explained that it continues to experience significant increases in the number of H-2B applications requesting temporary labor certification. Those submissions are generally received on the earliest day employers seeking to obtain visas for their workers under the semi-annual allotments are permitted by regulation to file (i.e., 75 to 90 days before the start date of work), OFLC noted. For example, in the past several second-half semi-annual filing cycles, the overwhelming majority of H-2B applications were received on January 1, which is the earliest date on which an H-2B application may be filed for a period of need beginning on April 1. Because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory time frames for filing a request for temporary labor certification, stakeholders have also raised questions regarding the earliest time of day on which an application can be submitted to OFLC. To process the significant surge of applications that OFLC expects to receive in a short period of time during the semi-annual visa allotment periods in a more equitable manner and to clarify the time at which an application is received, OFLC will be implementing the new procedures.

The announcement, which includes examples (scroll to June 1, 2018).

In other news, the Labor Condition Application for Nonimmigrant Workers (Form ETA-9035/9035E) has been extended through June 30, 2018. OFLC said its request for a three-year extension is under review with the Office of Management and Budget (OMB), and that OFLC will continue to extend the form in one-month increments until approved by OMB.

Also, OFLC has published an attestation form (ETA Form 9142-B-CAA-2) and accompanying instructions in support of the temporary rule issued jointly on May 31, 2018, by the Departments of Homeland Security and Labor, “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program.” That rule increased the H-2B cap for FY 2018 by up to 15,000 additional visas for U.S. businesses that are likely to suffer irreparable harm (i.e., permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petitions before the end of FY 2018. Affected employers must submit the new attestation to USCIS along with Form I-129 in support of an H-2B application subject to the H-2B cap before the end of FY 2018.

The attestation form

The announcement (scroll to May 31, 2018).

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7. USCIS Sends Letter on B-1/B-2 Upcoming Proposed Regulation

On May 30, 2018, L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), sent a letter to Rep. Paul Mitchell (R-Mich.), who had hosted a May 16, 2018, roundtable on B-1 visa issues. The letter notes that USCIS is reviewing existing regulations, policies, and programs and developing a combination of rulemaking, policy memoranda, and operational changes to implement President Trump’s “Buy American and Hire American” executive order. Among other things, the letter states:

One area of focus is the B visa program. As noted in the Spring 2018 Unified Agenda, the Department of Homeland Security (DHS) is working on a proposed regulation pertaining to nonimmigrants admitted to the United States as temporary visitors for business (B-1) or pleasure (B-2). The proposed regulatory revisions will clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States. As stated in the Unified Agenda, “Such clarification is necessary to ensure fair and consistent adjudication and enforcement, as well as to make the criteria more transparent.”

The letter states that this rulemaking is a “priority” and that USCIS is “taking a lead role in drafting the proposed regulation,” which will include an opportunity for public comment.

The letter also references discussion of “B-1 in lieu of H” issues during the roundtable:

As explained, USCIS adjudicates applications from individuals who are already here and wish to extend a stay in B status or change to another nonimmigrant status (that is, change either to or from B status). USCIS also adjudicates employer petitions in H nonimmigrant visa classifications. As part of the above-described regulatory process, we are, in coordination with the Department of State and other immigration components within DHS, reviewing existing policy with respect to “B-1 in lieu of H-1,” as well as “B-1 in lieu of H-3.”

Director Cissna’s letter, copied to six Republicans and two Democrats, refers to a meeting “in the near future” with Rep. Mitchell to “discuss our efforts to improve the B visa program, as well as our other regulatory initiatives and statutory suggestions.”

The letter

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8. Expect Retrogression of Mexico E-4 and SR Final Action Dates in July, State Dept. Says

The Department of State’s Visa Bulletin for the month of June 2018 notes that there continues to be high demand in the Mexico employment-based fourth preference (E-4) and special religious (SR) categories, which is expected to result in the Mexico E-4 per-country limit being reached during June. This means that retrogression of the July E-4 and SR Final Action Dates for Mexico is expected, the bulletin states. “This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits,” the bulletin notes.

The Visa Bulletin for June 2018

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9. 132 Members of Congress Urge DHS to Continue Allowing H-4 Spouses of H-1B Nonimmigrants to Work

One hundred and thirty-two members of Congress sent a letter on May 16, 2018, to Kirstjen Nielsen, Secretary of Homeland Security, urging maintenance of the current regulation granting work authorization to certain H-4 dependent spouses of H-1B nonimmigrant workers. The letter states that the opportunity for H-4 visa holders to work “has made our economy stronger, while providing relief and economic support to thousands of spouses—mostly women—who have resided in the United States for years.” The letter notes that many are on the path to permanent residence and would already be permanent residents if not for decades-long employment backlogs. “Rescinding the rule will hurt the competitiveness of U.S. employers and the U.S. economy, as well as H-4 accompanying spouses and their families,” the letter states.

The letter notes that providing work authorization for accompanying spouses helps U.S. employers recruit and retain highly qualified employees, “putting U.S. policy on par with other countries—such as Canada and Australia—competing to attract foreign nationals.” The letter notes additional reasons for allowing H-4 spouses to continue to work in the United States.

U.S. Citizenship and Immigration Services Director L. Francis Cissna responded on May 24, 2018, on Secretary Nielsen’s behalf. He stated that the Department of Homeland Security is committed to growing the U.S. economy and creating jobs for U.S. workers, and that the public will be given the opportunity to provide feedback during a notice-and-comment period “on any revisions to regulations that DHS determines appropriate, including revisions relating to the rule providing employment authorization to certain H-4 nonimmigrants.”

The letter and Director Cissna’s response

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10. USCIS Announces Launch of Online FOIA Request Processing System

U.S. Citizenship and Immigration Services (USCIS) recently announced the launch of its “Freedom of Information Act (FOIA) Immigration Records SysTem (FIRST),” which the agency said “will eventually allow users to submit, manage, and receive FOIA requests entirely online.” Before this change, USCIS only accepted FOIA requests by mail, fax, and email, and requestors typically received their documents on a CD by mail.

USCIS is rolling out FIRST’s digital delivery of services in phases. Initially, requestors who have an immigration court date pending and file a request for documents can create an account within myUSCIS to receive documents digitally. Through their accounts, requestors can track the status of their FOIA cases and will receive an email notification when USCIS has uploaded their records. In the coming months, USCIS said, this digital delivery option will be expanded to all FOIA and Privacy Act (PA) requestors. When FIRST is fully operational, requestors will be able to use a completely digital FOIA/PA system, from online submission to retrieving and downloading responsive documents. USCIS will notify the public as additional services become available.

USCIS said that FIRST is part of the agency’s “ongoing effort to move the nation’s legal immigration system away from paper-based services to digital transactions.”

The announcement

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11. SAVE Goes Paperless

As of June 1, 2018, benefit-granting agencies using U.S. Citizenship and Immigration Services’ (USCIS) Systematic Alien Verification for Entitlements (SAVE) program, used to verify a benefit applicant’s immigration status, can no longer submit paper versions of Form G-845, Verification Request. Previously, agencies submitted paper forms to request immigration status verification and for additional verification requests. Now all agencies must submit their requests and institute additional verification electronically, which USCIS said would “drastically” reduce case processing time.

“Without the use of paper during the verification process, SAVE will improve its efficiencies by reducing mailroom workloads and the time spent receiving and reviewing paper documents,” said Tammy Meckley, associate director of the Immigration Records and Identity Services Directorate (IRIS) at USCIS. “As a result, we will see a faster resolution of cases for both the requesting agency and the intended benefit recipient.”

The SAVE paperless initiative is part of a larger effort by USCIS to eliminate paper-based forms, as the agency transitions to online submission of benefit requests. The agency said the SAVE Paperless Initiative “will eliminate 170,000 paper form submissions and returned responses annually, reducing resource costs and postal fees. Additionally, the transition to a paperless environment will reduce case completion time from 20 days to less than five days.”

The USCIS announcement

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12. ABIL Global: Australia

Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

While certain transitional arrangements remain, the old Subclass 457 Visa in Australia has now been replaced by the Temporary Skills Shortage (TSS) Visa (Subclass 482).

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

Central to the nomination application has been the establishment of two separate lists of approved occupations: the Short-Term Skills Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL). Visas granted relating to nominations of occupations on the STSOL will only be granted for a two-year period. After the two years, a further and final period of two years may be sought. Where International Trade Obligations apply, a four-year visa may be granted. Visa applications granted relating to nominations for occupations on the MLTSSL may be approved for a four-year period.

Only the holders of TSS visas relating to MLTSSL occupations are entitled to be nominated for an Employer Nomination Subclass 186 Permanent Visa. This provision has caused substantial angst. After criticism, certain revisions of the lists have already taken place and occupations previously on the STSOL have been removed and inserted on the MLTSSL.

Nomination

For a nomination to be approved, the following criteria must be met:

• It must be made by an approved sponsor;
• It must relate to an occupation appearing on one of the two lists;
• There must be no adverse information relating to the business of the sponsor;
• The position must be genuine and full-time;
• The sponsor must establish that the salary is a market rate salary; and
• There must be evidence of labor market testing.

As mentioned above, labor market testing is now required for all 482 visas subject to certain exemptions relating to international trade obligations. At present, under the regulations, the relevant position must have been advertised twice within the last six months for at least 21 days on two separate occasions. Amendments to this provision specifying a one-month period of advertising within the last four months have been passed by the Upper House but not yet implemented.

A further change, not yet effective, that has passed the Senate is the introduction of the Skilling Australians Fund. Under the previous 457 Program, an employer had to demonstrate that it met certain training benchmarks by providing evidence that it had spent the equivalent of 1% of its payroll in training Australian employees. Alternatively, if the employer was unable to establish the 1% requirement, it could pay an amount equivalent to 2% of its payroll to a registered training body to meet this benchmark.

The Skilling Australians Fund legislation will replace the training benchmark provisions with the requirement that, at time of nomination, an employer having a turnover of greater than $10 million pay to Fund the sum of $1,800 for each year of the TSS visa. For sponsors having a turnover of less than $10 million, the amount is $1,200. The approved amendments also provide for a cap on the contributions payable by a sponsor.

The current training benchmarks remain in force until the new amendments come into effect.

Visa Application

The following are now the requirements for a TSS visa:

• The visa applicant must be the subject of an approved nomination;
• In certain circumstances, the visa applicant must have completed a skills assessment;
• The visa applicant must meet the English language requirement, unless exempted; and
• The visa applicant must meet health and character requirements.

English language requirement. Applicants who are not subject to an exemption must meet the English language requirement. Note that the English language scores required for those visa applicants applying for occupations appearing on the MLTSSL are higher than those appearing on the STSOL.

Health criteria. The TSS regulations now require medical examinations for all TSS visa applicants.

Character requirements. The TSS regulations now require all TSS visa applicants to provide police clearances. However, visa applicants sponsored by an accredited sponsor are not required to obtain these certificates.

Prior work experience. Both the STSOL and MLTSSL require evidence that the visa applicant has worked in the nominated occupation or a related field for at least two years before filing the application. This provision effectively excludes recent graduates from being sponsored for a TSS visa.

The visa applicant who applies for a STSOL occupation must demonstrate that the application is genuine.

EMPLOYER NOMINATION—SUBCLASS 186 VISA

Below is a brief summary of the requirements for the Subclass 186, Employer Nomination Visa. Certain transitional provisions apply to holders of either a TSS or 457 Visa granted prior to April 2017.

The structure of the Subclass 186 visa is unaffected and still consists of three streams: the Temporary Residence Transition (TRT) Stream; the Direct Entry (DE) Stream, and the Labour Agreements Stream. This brief overview does not discuss the latter.

TRT Stream

The following are the current requirements:

• The applicant must hold a TSS as a nominee for an occupation appearing on the MLTSSL. Transitional arrangements continue to apply to those visa applicants who were granted visas prior to April 2017.
• The applicant must have worked for the employer for at least three of the previous four years in the same position for which he or she has been nominated.

Eligibility for All Streams

The applicant must:

• Have been nominated by an Australian employer within the six months prior to application;
• Be under 45 years at the date of application;
• Have the required skills and qualifications at the time of application;
• Have at the time of application the required English language skills;
• Meet health and character requirements; and
• Generally be less than 45 years old at the time of application. However, certain exemptions apply for those applicants applying for an ENS through the Temporary Residence Transition Stream who have been working for the nominating employer as the holder of a TSS or 457 visa for at least three years and who, in each of those years, have received a salary over $142,000.

English language requirements. Applicants, unless exempted, must prove that they have “competent English”. This means that IELTS Level 6 is required in all 4 categories. Other English language tests have been approved.

Skills requirements. All applicants must demonstrate at least three years of relevant work experience and, in the case of the Direct Entry Stream, a valid Skills Assessment in the nominated position.

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13. New Publications and Items of Interest

PERM appeals presentation. “PERM Appeals: Submission and Practice Tips,” a webinar presentation hosted on June 13, 2018, is posted in PDF format under the PERM Webinars link on the Office of Foreign Labor Certification’s Permanent Labor Certification Program web page.

150-year wait for Indian immigrants with advanced degrees. A new blog entry by the Cato Institute notes that as of April 20, 2018, U.S. Citizenship and Immigration Services (USCIS) reported that there were 632,219 Indian immigrants and their spouses and minor children waiting for green cards (U.S. permanent residence). The shortest wait is for the highest skilled category for EB-1 immigrants with “extraordinary ability.” The blog states that extraordinary immigrants from India will have to wait “only” six years. EB-3 immigrants—those with bachelor’s degrees—will have to wait about 17 years. The biggest backlog, the blog notes, is for EB-2 workers who have advanced degrees. At current rates of visa issuances, the blog estimates that they will have to wait 151 years for a green card. “Obviously, unless the law changes, they will have died or left by that point,” the blog notes.

Cato Institute Blog

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

Alliance of Business Immigration Lawyers press releases. The latest published releases include:

• ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
• ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
• ABIL Members Note Immigration Threats for Employers in 2018

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

• Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants’?
• Hidden Brain: The Huddled Masses and the Myth of America

E-Verify free webinar listings are available.

Advisories and tips:

Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory

How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, nytimes.com and aclu.org.

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

LexisNexis has released the latest edition of the Global Business Immigration Practice Guide. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is on Twitter: @ABILImmigration. Recent ABIL member blogs are at http://www.abilblog.com/.

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14. Member News

Dagmar Butte received the 2018 Susan D. Quarles Service Excellence Award from the American Immigration Lawyers Association (AILA) for her outstanding service in advancing the mission, development, and values of AILA. She received the award during AILA’s Annual Conference in San Francisco.

B.J. Caruso was quoted in The Star in “Canada clamps down on ‘flagpoling’ with immigration restrictions at some border crossings” and “Immigrants and visitors to Canada working for free a common occurrence, lawyers say“.

Klasko Immigration Law Partners, LLP, presented a webinar, “A Prescription for Success: EB-1 for Doctors,” for physicians on the latest immigration news, visa options, and tips on what makes a successful EB-1 petition. The webinar was held on Wednesday, July 11, 2018, from 12:30 to 1:30 p.m. More information.

Robert Loughran was a contributing writer to “Viewpoint: New Immigration Policy Likely to Hurt Foreign Students and Their Would-Be Employers,” published by Bizjournals.com.

Mr. Loughran was interviewed by National Public Radio on its Austin, Texas, edition of “All Things Considered” regarding the recent proposal to change the interpretation of the “unlawful presence” policy language as it relates to foreign nationals in the United States as F-1 and M-1 students, as well as J-1 exchange visitors. The interview also covered how these policy changes could affect the U.S. doctor shortage and potentially restrict academic talent in the United States.

Cyrus Mehta co-authored a new blog entry with Sophia Genovese, “. He also authored a new blog entry, “”

Mr. Mehta received the 2018 Edith Lowenstein Memorial Award from the American Immigration Lawyers Association (AILA) for excellence in advancing the practice of immigration law. He received the award during AILA’s Annual Conference in San Francisco, California.

Mr. Mehta was quoted in “USCIS Change Could Bar Many International Students,” published by Forbes. “There has always been a strict distinction between violating status and being unlawfully present in the United States. One can be in violation of status without being unlawfully present. Even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence. This is because an F, M and J nonimmigrant is usually admitted for a Duration of Status (D/S) rather than up to a certain date.” .

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

Mr. Yale-Loehr was quoted by Raw Story in two recent articles:

• “Separating 3-year-olds from their parents at the border is not the way to stop the MS-13 gang. The real problem is these countries in Central America are suffering such horrendous violence that people are forced to flee.” The story.
• “I think the administration is trying to scare families from coming to the United States by claiming they’ll be separated from their children if they try. But there has not been any evidence deterrence is successful, in some ways because it’s too early to tell since it takes a month or more to travel from central America. Also, the administration may be underestimating the fear of gangs in their home countries. If someone is really desperate, they’re not going to pick up a US newspaper and worry about what might happen at the border. For many people it truly is a life or death situation to need to flee the gangs in those countries. Separating kids from their families after they’ve made the long, dangerous trek to the border is “cruel and inhumane.” The story.

Mr. Yale-Loehr was quoted in the following articles:

• “Trump’s Immigration Executive Order Puts Flores in Spotlight,” Law360. Mr. Yale-Loehr said it is unlikely the court will grant President Trump’s request to amend the Flores settlement. He pointed out that the Obama administration had unsuccessfully tried to amend the settlement when over 120,000 migrants were apprehended at the U.S.-Mexico border in 2014, requesting almost identical modifications. Available by subscription.
• “What Trump’s Family Separations Executive Order Does,” CNN. “This [executive order] is narrower than I anticipated. Politically, this allows the administration to assert that it wants to detain families indefinitely—but a court won’t let them do it.”
• “Trump Administration Asks Court to Lengthen Detention Time Allowed for Immigrant Kids,” San Francisco Chronicle. “This is an updated rehash of the arguments the government unsuccessfully made in 2015.”
• “Trump’s Plan for Immigrant Families Likely Doomed in Court,” Bloomberg News. “Assuming Judge Gee bars the Trump administration from modifying the Flores settlement, the administration can either cave, and blame the judge for illegal immigration, or defy the court, which will lead to more litigation.”
• “Analysis—Despite Trump Order, Border Child Separations Could Go On: Legal Experts,” Reuters. “I predict a lot more litigation on this issue because the executive order does not settle anything once and for all.”
• “There Are Effective Alternatives to Family Detention. The Trump Administration Already Ended One,” Time.
• “SU Law Professor Says the Future for Immigrant Families Remains Uncertain,” WAER.

Mr. Yale-Loehr recently co-presented a live-streamed program from Cornell Law School, “Immigration Law and Policy: What’s Changed, What Hasn’t and What Might in the Trump Administration.” Video recording of the presentation.

Mr. Yale-Loehr was quoted by USA Today in “House GOP Releases Compromise Immigration Legislation That Would Protect DREAMers, Fund Wall.” Mr. Yale-Loehr noted, “Trump should be pretty happy with this bill because it’s pretty close to what he put forth in his four pillars. It’s really not a compromise. There’s not a lot here that will help immigrants, other than putting DACA recipients on a slow path to a green card.” The article.

Mr. Yale-Loehr was quoted by the Real Deal in “South Florida is Coming Off Its EB-5 Addiction: Developers Now Less Reliant on Cash-for-Visa Program to Fill Capital Stack.” Mr. Yale-Loehr noted, “In 2008 or 2009, developers could not find other access to capital.” He also said that interest from Chinese investors in the program is waning due to a growing backlog of visa seekers, which is adding significantly to the waiting period for a green card. “They don’t want to wait over a decade to get an EB-5 green card.” He added that all EB-5 investors “need to be careful about what project they are investing in and the negative publicity makes it more difficult to find EB-5 investors.” The article.

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15. 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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