Headlines:

1. Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision –

A lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief; NAACP celebrates another DACA decision.

2. USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants –

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence.

3. DOJ, USCIS Announce Agreement on Protecting U.S. Workers –

A Memorandum of Understanding will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws.

4. DOJ Settles Immigration-Related Claim Against University of California, San Diego –

The Department’s investigation concluded that the university unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

5. TPS for Hondurans to End in January 2020 –

Honduran citizens with current TPS registrations will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of Honduras’ TPS designation becomes effective January 5, 2020.

6. IT Company to Pay 12 Employees for Violations of H-1B Program –

IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division.

7. Trump Says Guest Workers Will Be Allowed into United States –

“The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

8. New Publications and Items of Interest –

New Publications and Items of Interest

9. Member News –

Member News

10. Government Agency Links –

Government Agency Links

Details:

1. Seven States Sue to End DACA; NAACP Declares Victory in Another DACA Decision

Seven states—Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia—filed a complaint in the U.S. District Court for the Southern District of Texas, Brownsville Division, to stop the Deferred Action for Childhood Arrivals (DACA) program. The lawsuit claims that the 2012 executive action creating DACA was unlawful, and seeks declaratory and injunctive relief.

Plaintiffs note that the court “has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” but states that plaintiffs “are amenable to a remedy that enjoins Defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.”

In another DACA case, the National Association for the Advancement of Colored People (NAACP) celebrated a “huge victory for DACA recipients around the nation.” A federal court in Washington, DC, found legally insufficient a memorandum issued by the Department of Homeland Security (DHS) terminating the DACA program and struck down the memorandum unless DHS can offer a stronger basis for ending the program, the NAACP noted.

Federal Judge John Bates said the decision by the Trump administration to rescind DACA was “virtually unexplained” and as such “unlawful.” He gave DHS 90 days to provide a legally sufficient explanation. If DHS fails to provide an explanation that meets legal muster, the NAACP noted, “DACA will be vacated in its entirety and DHS will be required to maintain the program for current enrollees and to accept and process applications from new enrollees who meet the program’s eligibility rules.”

With the morass of DACA-related cases filed, some decided in favor of DACA recipients, and amid potentially disparate results, the issue could end up before the U.S. Supreme Court.

THE SEVEN-STATE COMPLAINT

THE OPINION IN THE NAACP CASE

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2. USCIS Issues New Policy on Accrual of Unlawful Presence for F, J, M Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo provides guidance to USCIS officers and “assists USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States.” The memo also revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance takes effect August 9, 2018.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible, USCIS said.

USCIS said this new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, duration of status started accruing unlawful presence only after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or only after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

THE MEMO

RELATED USCIS STATEMENT

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3. DOJ, USCIS Announce Agreement on Protecting U.S. Workers

U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice announced on May 11, 2018, a Memorandum of Understanding (MOU) that “expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” This new effort “improves the way the agencies share information, collaborate on cases, and train each other’s investigators,” USCIS said.

The MOU will increase the ability of the agencies to share information and identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination. The new MOU “expands upon the two agencies’ existing partnership,” USCIS said.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against U.S. workers by favoring foreign visa workers,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against U.S. workers based on their citizenship status.”

“Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS,” said USCIS Director L. Francis Cissna. “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level.”

THE MOU

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4. DOJ Settles Immigration-Related Claim Against University of California, San Diego

The Department of Justice announced on May 10, 2018, that it has reached a settlement agreement with the University of California, San Diego. The settlement resolves the Department’s investigation into whether the university’s Resource Management and Planning Vice Chancellor Area (RMP) discriminated against workers in violation of the Immigration and Nationality Act (INA) when verifying their continued authorization to work.

The Department’s investigation concluded that the RMP unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.

Under the settlement, the university will pay a penalty to the United States, train its RMP human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

THE ANNOUNCEMENT

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5. TPS for Hondurans to End in January 2020

On May 4, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced her decision to terminate the temporary protected status (TPS) designation for Honduras with a “delayed effective date of 18 months to allow for an orderly transition before the designation terminates” on January 5, 2020.

The USCIS Web page asks users not to pay for or submit any form until USCIS updates the official re-registration information. Honduran citizens with current TPS registrations will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of Honduras’ TPS designation takes effect on January 5, 2020. Further details about this termination for TPS, including the re-registration period, will appear in a Federal Register notice, USCIS said. Honduran TPS beneficiaries “should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.”

ADDITIONAL DETAILS

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6. IT Company to Pay 12 Employees for Violations of H-1B Program

IT employer Cloudwick Technologies Inc., based in Newark, California, will pay $173,044 to 12 employees for violations of the federal H-1B foreign labor certification program, after an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD). According to the Department, Cloudwick Technologies provides “data solution services” to major corporations nationwide, including American Express, Bank of America, Apple, Cisco, Comcast, Intuit, Safeway, Verizon, Visa, and many others.

WHD investigators found that the company paid affected employees well below the wage levels required under the H-1B program based on job skill level, and also made illegal deductions from workers’ salaries. As a result, some of the H-1B employees that Cloudwick brought from India with promised salaries of up to $8,300 per month instead received as little as $800 net per month.

“The intent of the H-1B foreign labor certification program is to help American companies find the highly skilled talent they need when they can prove that a shortage of U.S. workers exists,” said Susana Blanco, Wage and Hour Division District Director in San Francisco. “The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed.”

In addition to the recovery of back wages, the IT employer has also signed an enhanced compliance agreement requiring it to hire an independent third-party monitor to help ensure future compliance.

THE DEPARTMENT’S ANNOUNCEMENT

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7. Trump Says Guest Workers Will Be Allowed into United States

At a Make America Great Again Rally in Washington, Michigan, on April 28, 2018, President Donald Trump was quoted as saying, “For the farmers, OK, it’s going to get good. And we’re going to have strong borders, but we have to have your workers come in.” That appeared to contradict other Trump administration efforts to reduce migration to the United States generally.

According to reports, President Trump added, “The unemployment picture is so good, it’s so strong, that we have to let people come in. They’re going to be guest workers. They’re going to come in, they’re going to work on your farms, we’re going to have the H-2Bs come in, we’re going to have a lot of things happening but then they have to go out.”

There was no immediate indication of specifics, such as when, how, or how many guest workers will be able to enter the United States, and how many will be agricultural or nonagricultural. In the omnibus spending bill, the Department of Homeland Security was authorized to expand the H-2B visa program. President Trump’s Mar-a-Lago resort and other businesses use hundreds of guest worker visas, news reports have noted. During his campaign, then-candidate Trump told CNN, “You cannot get help during the season. The season goes from, like, October to March. It’s almost impossible to get help. And part of the reason you can’t get American people is they want full-time jobs.”

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8. New Publications and Items of Interest

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

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

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 and ACLU.
• Listings and links to cases challenging executive orders, and related available pleadings, are available at LAWFARE BLOG.

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.

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9. Member News

Klasko Immigration Law Partners, LLP‘s EB-1 Team Editor, Steve Miller, chats with associates Lisa Felix and Feige Grundman in a new podcast about current trends for EB-1, EB-2 and NIW petitions, including increased scrutiny across the board. They offer tips on how to use expert opinions to explain what is special about your case within your field

Charles Kuck was quoted by WABE in “Ga. Supreme Court Refuses to Hear DACA In-State Tuition Case.” Mr. Kuck, who represented the students in the case, said, “We’re quite disappointed, but we’re not surprised. But our fight will continue. It might not continue in the courts but will continue in the legislature, and it will continue at the Board of Regents itself, which has the ultimate authority to fix this injustice.” THE ARTICLE

Kuck Baxter Immigration, LLC, was nominated for an Emmy for its January 2018 commercial, “¡Estamos contigo!,” meaning, “We are with you.” The commercial is a production of PA Media Marketing Group, LLC. The commercial, in Spanish, emphasizes the firm’s commitment to stand beside its clients and to defend their rights no matter their nationality. THE VIDEO

Cyrus Mehta has authored a new blog entry. “USCIS Blurs Distinction Between Violation of Status and Unlawful Presence for F-1, J and M Nonimmigrants” is .

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry. “Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas Will Eviscerate Due Process” is .

Cora-Ann Pestaina, of Mr. Mehta‘s office, has authored a new blog entry. “Guidance to the Perplexed After USCIS Sneaks In Ban on Third-Party Placement of STEM OPT Workers” is .

Robert Loughran was quoted in Human Resource Executive magazine regarding the workforce disruption that would occur if various forms of protected status come to an end. “If you get rid of millions of people, how do you staff the positions they’re currently filling? How do our buildings get cleaned or built and how does our food get farmed or made? No one has seen a true ‘day without an immigrant’ because these millions of people are woven into the fabric of our society.” THE ARTICLE

Stephen Yale-Loehr was quoted in an Associated Press story about the likelihood that the U.S. Supreme Court will take up the Deferred Action for Childhood Arrivals (DACA) case. THE ARTICLE

Mr. Yale-Loehr was quoted by Forbes in “Would the Justice Department Have Prosecuted Anne Frank’s Father?”

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

• French Morning, re the diversity green card program
• CNN, re Texas DACA lawsuit
• Bloomberg News, re Texas DACA lawsuit
• Yahoo News, re detention of asylum seekers
• Univision, re Texas DACA lawsuit
• Syracuse Post Standard, re Border Patrol officers stopping people on trains and buses
• Dallas Morning News (Spanish edition), re Texas DACA lawsuit

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or 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. Attorney General Orders ‘Zero Tolerance’ Policy for Improper Entries at Southwest Border; President Issues Memo on ‘Catch and Release’ –

Attorney General Jeff Sessions directed federal prosecutors along the southwest border of the United States to adopt immediately a “zero-tolerance policy.” Later the same day, President Donald Trump issued a memorandum on “catch and release” at the border and other enforcement actions.

2. USCIS Completes H-1B Cap Random Selection Process for FY 2019 –

USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption.

3. USCIS Launches E-Verify Website –

The new website provides information about E-Verify and employment eligibility verification, including employee rights and employer responsibilities in the employment verification process.

4. EOIR Announces Controversial Metrics for Immigration Judge Performance –

The new metrics, to be measured annually, include a goal of 700 case completions per year per IJ with a remand rate of less than 15 percent.

5. ICE Raids Meat-Packing Plant in Tennessee in Largest Single Workplace Raid in a Decade –

Federal authorities arrested 97 people at a Tennessee meat-processing plant on immigration and other charges.

6. National Guard Troops Deploy to Southern U.S. Border –

U.S. Defense Secretary James N. Mattis announced the authorization of up to 4,000 National Guard troops to deploy to the U.S. border with Mexico “to support the Department of Homeland Security border security mission there.”

7. SPLC Sues DHS for Unconstitutionally Blocking Detained Migrants’ Access to Lawyers –

SPLC has filed a federal lawsuit alleging that DHS is violating the Constitution by blocking detained migrants from accessing lawyers. SPLC says the suit is the first of its kind to “highlight decades-long, widespread DHS violations of detained immigrants’ rightful access to counsel in civil immigration prisons in multiple facilities in the Southeast.”

8. Reminder: SAVE Goes Paperless –

As of May 1, 2018, organizations must submit all verification requests electronically.

9. New Publications and Items of Interest –

New Publications and Items of Interest

10. Member News –

Member News

11. Government Agency Links –

Government Agency Links

Details:

1. Attorney General Orders ‘Zero Tolerance’ Policy for Improper Entries at Southwest Border; President Issues Memo on ‘Catch and Release’

Attorney General Jeff Sessions issued a memorandum on April 6, 2018, directing federal prosecutors along the southwest border of the United States to adopt immediately a “zero-tolerance policy for all offenses referred for prosecution under [8 U.S.C.] section 1325(a).” Later the same day, President Donald Trump issued a memorandum on “catch and release” at the border and other enforcement actions.

Mr. Sessions said the new zero-tolerance policy supersedes any existing policies, and that it should be applied “to the extent practicable, and in consultation with [the Department of Homeland Security.” If adopting such a policy requires additional resources, Mr. Sessions directs each office to identify and request those resources.

“You are on the front lines of this battle,” the memo states. “I respect you and your team.” He reminded federal prosecutors that “our goal is not simply more cases. It is to end the illegality in our immigration system.”

8 U.S.C. § 1325(a) states:

(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

The Trump memo directs the Secretaries of Homeland Security, Defense, and Health and Human Services, along with the Attorney General, to submit reports detailing all measures that their departments “have pursued or are pursuing to expeditiously end ‘catch and release’ practices.” Among other things, the reports must include measures taken to “allocate all legally available resources” to ensure the detention of people for violations of immigration law at or near the U.S. borders, and must provide a “detailed list of all existing facilities, including military facilities, that could be used, modified, or repurposed to detain aliens for violations of immigration law at or near the borders of the United States.” The reports must also include the number of credible fear and reasonable fear claims received, granted, and denied, in each year since the beginning of fiscal year 2009, “broken down by the purported protected ground upon which a credible fear or reasonable fear claim was made.”

The Sessions memo is . The Trump memo is .

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2. USCIS Completes H-1B Cap Random Selection Process for FY 2019

On April 11, 2018, USCIS announced that it had used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6 that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap, USCIS said.

The agency said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, also will not be counted toward the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:

1. Extend the amount of time a current H-1B worker may remain in the United States;
2. Change the terms of employment for current H-1B workers;
3. Allow current H-1B workers to change employers; and
4. Allow current H-1B workers to work concurrently in a second H-1B position.

The announcement is HERE.

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3. USCIS Launches E-Verify Website

U.S. Citizenship and Immigration Services (USCIS) recently launched a new website, E-Verify.gov. USCIS called it “the authoritative source for information on electronic employment eligibility verification.” The website is intended for employers, employees, and the general public.

The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. The site “allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov,” USCIS said.

Employers can access E-Verify from a Web browser. Nearly all employees are confirmed as work-authorized “instantly or within 24 hours,” the agency said. The system, which has nearly 800,000 enrolled employers, compares information from an employee’s I-9 to records available to the Department of Homeland Security and the Social Security Administration to verify authorization to work in the United States.

USCIS said it “encourages all U.S. employers to verify all new hires through E-Verify.” The announcement is .

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4. EOIR Announces Controversial Metrics for Immigration Judge Performance

In a move that provoked immediate controversy, James McHenry, Director of the Department of Justice’s Executive Office for Immigration Review (EOIR), sent a memorandum on March 30, 2018, to all Immigration Judges (IJs) announcing the establishment of new performance metrics effective October 1, 2018. The memo notes that the “impact and implementation” of the metrics are subject to bargaining with the National Association of Immigration Judges (NAIJ).

The new metrics, to be measured annually, include a goal of 700 case completions per year per IJ with a remand rate of less than 15 percent. “Needs improvement” is defined as completing more than 560 but fewer than 700 cases per year and a remand rate of between 15 and 20 percent. Benchmarks for satisfactory performance include, among other things, cases completed on the initial hearing date for 100 percent of credible fear and reasonable fear reviews unless the Department of Homeland Security “does not produce the alien on the hearing date.”

Lawrence O. Burman, secretary of NAIJ, predicted that “[i]t’s going to be a disaster and it’s going to slow down the adjudications.” The president of NAIJ, Judge A. Ashley Tabaddor, said, “Clearly this is not justice,” and predicted the plan will “undermine the very integrity of the court.” Paul Schmidt, former chairman of the Board of Immigration Appeals, echoed those concerns, noting that when cases were rushed in the past, not only were mistakes made that resulted in returns from the federal Courts of Appeals, thus increasing the backlog, but some of the “botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases.” Judge Tabaddor also said in an email to Mr. Schmidt:

Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.

Mr. McHenry’s cover memo is HERE. Relevant portions of the EOIR performance plan, which include performance standards and goals, are HERE. Comments from Mr. Burman, Judge Tabaddor, and Mr. Schmidt are HERE.

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5. ICE Raids Meat-Packing Plant in Tennessee in Largest Single Workplace Raid in a Decade

In the largest single workplace raid in a decade, federal authorities arrested 97 people at a Tennessee meat-processing plant on immigration and other charges. Of those, 86 were reportedly arrested on civil immigration charges; 32 were released without explanation and 54 were detained. In addition to the immigration charges, company owners are being investigated for alleged tax evasion and hiring undocumented workers.

The operation was conducted jointly with U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the Internal Revenue Service, and the Tennessee Highway Patrol.

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6. National Guard Troops Deploy to Southern U.S. Border

U.S. Defense Secretary James N. Mattis announced on April 6, 2018, the authorization of up to 4,000 National Guard troops to deploy to the U.S. border with Mexico “to support the Department of Homeland Security border security mission there.” National Guard troops began deploying after the announcement.

In a joint statement, Mr. Mattis and Department of Homeland Security (DHS) Secretary Kirstjen M. Nielsen said DHS worked closely with border-state governors and identified security vulnerabilities the National Guard could address.

President Donald J. Trump authorized the National Guard, with the affected governors’ approval, to enhance its support to U.S. Customs and Border Protection along the southern U.S. border. The troops “will not perform law enforcement activities or interact with migrants or other individuals detained by DHS without approval from Mattis,” according to the Department of Defense. “Arming will be limited to circumstances that might require self-defense,” the National Guard announcement noted.

The National Guard’s efforts will include “aviation, engineering, surveillance, communications, vehicle maintenance and logistical support,” chief Pentagon spokesperson Dana W. White said in a news briefing on April 5, 2018.

The National Guard’s statement is HERE.

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7. SPLC Sues DHS for Unconstitutionally Blocking Detained Migrants’ Access to Lawyers

The Southern Poverty Law Center (SPLC) has filed a federal lawsuit in the U.S. District Court for the District of Columbia alleging that the Department of Homeland Security (DHS) is violating the Constitution by blocking detained migrants from accessing lawyers. SPLC says the suit is the first of its kind to “highlight decades-long, widespread DHS violations of detained immigrants’ rightful access to counsel in civil immigration prisons in multiple facilities in the Southeast.” The suit names DHS, U.S. Immigration and Customs Enforcement, and federal officials as defendants.

SPLC said that in 2017 it launched the “Southeast Immigrant Freedom Initiative” to enlist and train volunteer lawyers to provide free legal representation to detained migrants in removal proceedings in the southeast United States. “About 250 volunteers, including attorneys, law students and interpreters, have come to the South to offer free assistance, only to have client meetings delayed or denied, or they have been unable to communicate with clients due to limits on electronics that can facilitate interpretation,” SPLC said. “DHS intentionally selects private companies who operate immigration prisons as cash cows in remote, rural areas of the Southeast that are beyond the reach of most lawyers,” said Lisa Graybill, deputy legal director for the SPLC. “Their profit model is to simply warehouse as many people as they can for as long as they can, and they resist having to accommodate legal visits while remaining immune from any scrutiny or oversight. With this lawsuit, we are demanding that DHS be held accountable for the choices it makes.”

The complaint is HERE. The SPLC announcement is HERE. An SLPC fact sheet on detained migrants that includes statistics is HERE.

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8. Reminder: SAVE Goes Paperless

The Systematic Alien Verification for Entitlements (SAVE) program issued a reminder that SAVE will become a fully electronic process. As of May 1, 2018, organizations must submit all verification requests electronically. SAVE will no longer process mailed submissions of Forms G-845, Documentation Verification Request, and Form G-845, 3^rd Step Document Verification Request. Any paper forms received after that date will be returned without a response.

Questions may be emailed to [email protected]. For more information about SAVE, click HERE.

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9. New Publications and Items of Interest

Immigration threats for employers. A recent Alliance of Business Immigration Lawyers press release, “ABIL Members Note Immigration Threats for Employers in 2018,” is available HERE.

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

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

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, HERE.
• Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.

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 HERE.

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 HERE.

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10. Member News

Who’s Who Legal has announced Thought Leaders and Other Leading Individuals in Corporate Immigration (HERE), including the following members and partners of the Alliance of Business Immigration Lawyers (ABIL) and their firms:

ABIL Members or Partners:

Enrique Arellano

Sophie Barrett-Brown

Maria Celebi

Eugene Chow

Laura Devine

Kehrela Hodkinson

H. Ronald Klasko

Jelle Kroes

Charles Kuck

Gunther Mävers

Marco Mazzeschi

Cyrus Mehta

Bettina Offer

Angelo Paparelli

Nicolas Rollason

Gregory Siskind

William Stock

Karl Waheed

Bernard Wolfsdorf

Stephen Yale-Loehr

Firms:

Clark Lau

Cyrus D. Mehta & Partners PLLC

Enrique Arellano Rincón Abogados SC

Foster

Fredrikson & Byron

Joseph Law Firm

Karl Waheed Avocats

Kingsley Napley LLP

Klasko Immigration Law Partners, LLP

Kroes Advocaten Immigration Lawyers

Kuck Immigration Partners LLC

Laura Devine Solicitors

Mazzeschi—Corporate Immigration and Citizenship Law

Miller Mayer LLP

Offer Mastmann

Seyfarth Shaw LLP

Siskind Susser

Wolfsdorf Rosenthal LLP

For more information and analysis from Who’s Who, see .

Jeff Joseph, of the Joseph Law Firm, P.C., is lead counsel for a lawsuit filed in late 2016 by the Guam Contractors Association and 11 other plaintiffs against U.S. Citizenship and Immigration Services over USCIS’s blanket denial of H-2B visas for skilled foreign workers. The District Court of Guam recently granted class action status to the lawsuit. For more on the case, see .

Feige Grundman and Alexander Magalli, of Klasko Immigration Law Partners, LLP, co-authored several new blog entries. “EB-1 for Entrepreneurs, Financiers, and Executives: A Wealth of Options” is . It is the final installment of Klasko’s “EB-1: Not Just for Einsteins” blog series, . “EB-1 for Artists: A Creative’s Approach” is .

Mr. Kuck recently served as an expert witness in a case resulting in a nearly $2 million verdict against Ogletree Deakins Nash Smoak & Stewart PC over a junior associate’s forgery of visa document signatures. He noted, “In employee-based immigration, there is always the dual nature of the representation, so you have to be especially on top of associates, and when a conflict does arise, you have to withdraw immediately. Every immigration lawyer with any experience knows about the conflict issues, and I’d say you’d have to be almost willfully ignorant to miss it.” For more on this case, see Law360, .

Mr. Kuck was quoted in the following publications:

• San Francisco Chronicle, HERE
• 13WMAZ, HERE
• Fox 5 Atlanta, HERE
• Ledger-Enquirer, HERE

Robert Loughran accompanied a State of Texas Trade delegation as an immigration advisor to meet with Japanese government officials and business leaders in Osaka, Kyoto, Nagoya, and Tokyo, Japan, on March 23-30, 2018.

Mr. Mehta has published a new blog entry. “Analyzing the Definition of a Specialty Occupation Under INA 214(i) to Challenge H-1B Visa Denials” is HERE.

Mr. Mehta and Mr. Yale-Loehr were quoted in “Indian H-1B Filings Set to Drop by 50% This Year,” published by Times of India HERE.

Julie Pearl has been ranked as one of the top two Eminent Practitioners in the country by Chambers and Partners. She was recognized as “technically very advanced” and “very well respected.”

Wolfsdorf Rosenthal LLP has published a new blog entry. “An Era of Exclusion: Ongoing U.S. Immigration Policy Changes Under the Trump Administration” is HERE.

Robert Blanco of Wolfsdorf Rosenthal LLP was quoted by the Los Angeles Times in “The Surest Path to a Green Card May Be an Investor Visa – At Least for Anybody With $500,000 to Spare.” He said, “We’re seeing a lot more Indian applicants because there are a lot of Indians here on H-1Bs who are looking at a 10-year wait to get a green card through employee sponsorship. EB-5 is a faster way compared to that.” The article is HERE.

Mr. Yale-Loehr co-authored an op-ed, “Trump is Repelling International College Students From America. Big Mistake,” published by the New York Daily News HERE.

Mr. Yale-Loehr was quoted by LegalTech News in “Cornell Law students and the Immigration Advocates Network Have Developed a Contingency Planning Tool for Immigrants Who Fear They May Be Deported.” He explained how Cornell Law students helped develop an immigration app following conversations with the Immigration Advocates Network about what kinds of technology would best help support their client base. “It makes it easy for immigrants to know how to prepare if they are concerned about possible deportation. Like any emergency plan, you hope you don’t have to actually use it, but you do want to be prepared,” he said. He added that the app, called “Make A Plan,” is not just a hypothetical software application; “it’s something that immigrants are using every day.” The article is HERE.

Mr. Yale-Loehr was quoted by the Dallas Morning News about new case quotas that Attorney General Jeff Sessions is imposing on immigration judges. Mr. Yale-Loehr called the move an attack on judicial independence that may violate due process rights of noncitizens. “You can imagine if we had a backlog in our criminal courts and the Texas Attorney General said every judge had to settle a certain number of cases per week. There would be a huge uproar,” he said. The article is HERE.

Mr. Yale-Loehr was interviewed by WAER, the Syracuse, New York, public radio station, about a draft rule that would restrict public benefits for immigrants. A summary of the interview, along with a link to the full interview, is HERE.

Mr. Yale-Loehr was quoted in “Thousands of Indian Women Find Their Immigration Dreams in Jeopardy,” published by the New York Times. Mr. Yale-Loehr said, “No one should be stuck waiting more than 10 years for a green card. It hurts employers and employees and their families. Indians are being held hostage by our broken immigration system.” The article is HERE.

Mr. Yale-Loehr was quoted in “H-1B Visas: The Evolving Landscape for HR Professionals,” published by Bloomberg BNA. He said the H-1B visa is “the work horse” category for people wishing to work temporarily in the United States. He also noted that for the past several years, more employers have filed petitions than the number of slots available. Mr. Yale-Loehr said that employers are experiencing increased scrutiny from USCIS on H-1B petitions accepted in the most recent lottery. He cited data that USCIS issued 85,000 requests for additional evidence in H-1B petitions, a 45 percent increase from the prior year. USCIS is “much more aggressive” these days about questioning whether a position really requires a bachelor’s degree and whether an individual is being paid an appropriate wage, he said. Mr. Yale-Loehr recommended that employers hire experienced immigration counsel and summarized alternative visa categories in the event that the H-1B petition is unsuccessful.

Mr. Yale-Loehr was quoted in the publication below about the Department of State’s new proposed requirement for visa applicants to disclose their social media usage for the last five years:

Tuoi Tre (Vietnamese), HERE

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11. 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: HERE

Department of State Visa Bulletin: HERE

Visa application wait times for any post: HERE

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Headlines:

1. California, Sued by Dept. of Justice for ‘Sanctuary’ Laws, Continues to Resist –

DOJ filed a lawsuit against the state of California, its governor, and its attorney general over several “sanctuary” laws passed by the state. State officials remained defiant.

2. Lost in the Weed: Practitioners Warn About Potential Immigration Consequences of Marijuana Use –

Immigration practitioners are warning clients that CBP and USCIS officials are increasingly asking people about past marijuana usage.

3. DHS Extends TPS for Syria –

DHS has extended the temporary protected status designation for Syria for 18 months, through September 30, 2019.

4. SAVE Moves From Paper To Electronic Verification Request Submissions –

USCIS said that “updates have only been made to the Additional Verification process at this time, and the Initial Verification process will be updated later this year.”

5. ABIL Global: Belgium –

This article discusses the types of permits used for corporate immigration in Belgium, the probable implementation of a single permit in 2018, and salary thresholds.

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

7. Member News -Member News

8. Government Agency Links -Government Agency Links

Details:

1. California, Sued by Dept. of Justice for ‘Sanctuary’ Laws, Continues to Resist

The Department of Justice (DOJ) filed a lawsuit on March 6, 2018, against the state of California, Governor Jerry Brown, and the state’s attorney general, Xavier Becerra, over several “sanctuary” laws passed by the state. DOJ argues in its complaint that these laws “have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California. The Supremacy Clause does not allow California to obstruct the United States’ ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution. Accordingly, the provisions at issue here are invalid.”

The three laws at issue are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration law compliance; the California Values Act, which limits communication from state and local law enforcement with federal immigration officials and prevents them from investigating people for immigration enforcement purposes; and A.B. 103, which subjects local detention facilities to twice-yearly inspections by the California Attorney General’s office.

It appeared that the Trump administration’s pushback against California and other states enacting such laws is not confined to lawsuits or ICE raids. Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), reportedly said after one of the laws was enacted that “[w]e’ve got to start charging some of these politicians with crimes.” And Homeland Security Secretary Kirstjen Nielsen said the Department of Justice was looking into “what avenues might be available” for potentially charging state and local officials. On March 6, in a speech in California, U.S. Attorney General Jeff Sessions invoked the Civil War, stating, “There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg or to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled.”

California officials remained defiant in the face of the lawsuit and other threats. Mr. Becerra responded to the lawsuit and related threats that California will not do the federal government’s “bidding on immigration enforcement and deportation.” He said state and federal teams “work together to go after drug dealers and go after gang violence,” but that the state would not “change from being focused on public safety” rather than on deportation.

On January 17, 2018, U.S. Senators Dianne Feinstein (D-Cal.) and Kamala Harris (D-Cal.) sent a letter to Mr. Homan asking for a full accounting of how ICE raids are being prioritized and conducted, quoting a television interview where Mr. Homan had said “California better hold on tight.” Sens. Feinstein and Harris said they were deeply concerned that ICE was not prioritizing violent criminals. “We firmly believe that law enforcement must prioritize dangerous criminals and not undocumented immigrants who do not pose a threat to public safety. Diverting resources in an effort to punish California and score political points is an abhorrent abuse of power, not to mention a terrible misuse of scarce resources.” Oakland Mayor Libby Schaaf recently publicly warned that ICE agents were about to conduct a large operation in her area. “I know that Oakland is a city of law-abiding immigrants and families who deserve to live free from the constant threat of arrest and deportation. I believe it is my duty and moral obligation as mayor to give those families fair warning when that threat appears imminent,” she said. Mr. Homan said that as a result, federal agents subsequently were able to arrest only about 200 people instead of a higher percentage of the 1,000 they had targeted. President Trump threatened to pull all ICE agents out of California.

Subsequently, James Schwab, ICE’s spokesperson in San Francisco, quit his position, stating, “I quit because I didn’t want to perpetuate misleading facts. I asked them to change the information. I told them that the information was wrong, they asked me to deflect, and I didn’t agree with that. Then I took some time and I quit.” He said he “didn’t feel like fabricating the truth to defend ourselves against [Mayor Schaaf’s] actions was the way to go about it. We were never going to pick up that many people. To say that 100 percent are dangerous criminals on the street, or that those people weren’t picked up because of the misguided actions of the mayor, is just wrong.”

The lawsuit against California is at . The Feinstein-Harris letter is .

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2. Lost in the Weed: Practitioners Warn About Potential Immigration Consequences of Marijuana Use

More and more states are legalizing marijuana for both medical and recreational use. But federal law still makes most marijuana use criminally prosecutable and a ground of inadmissibility for people wishing to come to the United States. Immigration practitioners are warning clients that U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services officials are increasingly asking people about past marijuana usage.

According to the Immigrant Legal Resource Center (ILRC), as of January 2018, 28 states and the District of Columbia had legalized medical marijuana, and 8 states plus the District of Columbia had legalized recreational marijuana for adults. ILRC warns that if a noncitizen admits to an immigration official that he or she has ever possessed marijuana, the person “can face very serious immigration problems.” This is true “even if the person never was convicted of a crime, just used marijuana at home, and it was permitted under state law.” ILRC recommends avoiding marijuana until a person is a U.S. citizen; getting legal counsel in the event of a real medical need; never leaving the house carrying marijuana, a medical marijuana card, or related paraphernalia or accessories; and not posting photos or information about use of marijuana on phones or social media. ILRC also recommends never discussing marijuana use or possession with any immigration or border official. If an official asks about marijuana, “say that you don’t want to talk to them and you want to speak to a lawyer. You have the right to remain silent. …once you admit it, you can’t take it back. If you did admit this to a federal officer, get legal help quickly.”

About a year ago, CBP issued a travel advisory in Minnesota for medical marijuana prescription holders, reminding travelers planning trips “across the border into Minnesota or North Dakota to leave their medicinal marijuana at home.” Although medical marijuana is legal in many U.S. states and Canada, the travel advisory notes that “the sale, possession, production and distribution of marijuana all remain illegal under U.S. federal law. Consequently, crossing with a valid medical marijuana prescription is prohibited and could potentially result in fines, apprehension, or both.”

The CBP travel advisory is at HERE. The ILC warning is HERE.

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3. DHS Extends TPS for Syria

The Department of Homeland Security announced on March 5, 2018, that it is extending the temporary protected status (TPS) designation for Syria for 18 months, from April 1, 2018, through September 30, 2019. The extension allows currently eligible TPS beneficiaries to retain TPS through September 30, 2019, as long as they otherwise continue to meet the eligibility requirements.

DHS said new employment authorization documents (EADs) will be issued to eligible Syrian TPS beneficiaries who timely re-register and apply for EADs under this extension. If an employee has an EAD (Form I-766) with an original expiration date of March 31, 2018, and containing the category code “A-12” or “C-19,” this EAD is automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the 180-day automatic extension period, September 27, 2018.

The notice, which sets forth procedures for nationals of Syria (or those having no nationality who last habitually resided in Syria) to re-register for TPS and apply for EADs, is HERE. Additional information is .

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4. SAVE Moves From Paper To Electronic Verification Request Submissions

U.S. Citizenship and Immigration Services (USCIS) announced that on May 1, 2018, the Systematic Alien Verification for Entitlements (SAVE) Program will no longer accept the paper G-845, Documentation Verification Request, or the paper G-845, 3rd Step Document Verification Request. As of that date, all verification requests must be submitted electronically.

In a separate email alert, USCIS said that “updates have only been made to the Additional Verification process at this time, and the Initial Verification process will be updated later this year.”

USCIS said questions may be emailed HERE. The announcement is HERE.

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5. ABIL Global: Belgium

This article discusses the types of permits used for corporate immigration in Belgium, the probable implementation of a single permit in 2018, and salary thresholds.

With the exception of the Blue Card, Belgium currently has a dual permit system with separate documents for each type of permit. Employment authorizations and work permits, which allow a foreigner to work in Belgium, are processed by the Belgian Regions (Flanders, Brussels, and Wallonia). Visa and residence permits, which relate to the right to enter and reside in Belgium, are issued by the Belgian federal authorities.

All this may change soon, when the single permit will probably be implemented. An important step toward the implementation of the single permit is a cooperation agreement between the Belgian Regions signed on February 2, 2018. The agreement aims, among other things, to define criteria for the territorial competence (jurisdiction) for applications; to confirm the principle, within some limits, of mutual recognition of permits issued by another Region; and to determine the competence for audits. A draft bill to approve this cooperation agreement was filed with the Belgian federal Chamber of Representatives on February 8, 2018, and was adopted by the Committee for Interior and Public Affairs within the Chamber on March 9, 2018. A plenary discussion and vote will be the next step. A preliminary draft bill to implement the single permit was approved by the federal Council of Ministers on February 9, 2018.

One of the requirements for some Belgian fast-track work permits B, as well as for the Blue Card, is a salary threshold: the annual gross remuneration must meet the threshold amount, which is adjusted on a yearly basis.

The new salary thresholds effective January 1, 2018, are:

• For highly skilled work permits: € 40,972 (€ 40,124 for 2017);
• For executive-level work permits: € 68,356 (€ 66,942 for 2017);
• For Blue Cards: € 52,978 (€ 51,882 for 2017).

The Ministries will only issue a fast track work permit B or Blue Card if it is clear that the employee’s salary will meet the threshold amount. The Ministries will only take into account amounts that will definitely be paid. Discretionary bonuses, COLA (Cost of Living Allowances), and most other allowances cannot be taken into account when processing the work permit application.

The correct salary payment, as well as correct use of a work permit, will be crucial for a renewal after one year: partial/limited use of a work permit (e.g., a work permit valid for one year that has only been used for six months) may result in a refusal to renew.

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6. New Publications and Items of Interest

Immigration threats for employers. A recent Alliance of Business Immigration Lawyers press release, “ABIL Members Note Immigration Threats for Employers in 2018,” is HERE.

Podcasts on H-1B. In the final part of a three-part H-1B series by Klasko Immigration Law Partners, LLP, Devang Patel speaks with Bill Stock and Michele Madera about common concerns of employees who already have or are hoping to obtain an H-1B visa. Part two of this series deals with concerns for employers of H-1B workers as the 2018 cap season begins. The final part of the series will cover FAQs for employees. These podcasts and others in the “Statutes of Liberty” immigration podcast series are .

Support for DREAM Act by legal practitioners and scholars. A group of legal practitioners and scholars with experience in the field of immigration have published a statement in support of passing a “clean” DREAM Act. The statement is HERE.

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

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

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, HERE.
• Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. 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 HERE.

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 HERE.

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7. Member News

Dagmar Butte and Vic Goel were interviewed by Stuart Anderson for Forbes.com in “Trump Team Wraps Immigrants and Their Employers in Red Tape.” The article is .

Robert Loughran presented on “Immigration Restrictions Without Legislation” and “Preparing for H-1B and L-1 Site Visits” on March 1, 2018, at the Foster Immigration Update seminar in Austin, Texas.

Cyrus Mehta has authored several new blog entries. “California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found To Be Unconstitutional” is . “The Draconian Documentation Regime for Third-Party Arrangements in H-1B Visa Petitions” is .

Mr. Mehta‘s blog was quoted extensively by Gadgets Now in “U.S. Immigration Expert Says New H-1B Rules Anti-India.” Regarding a new USCIS policy memorandum on H-1B visas issued on February 22, 2018, Mr. Mehta speculated about possible anti-India bias, noting, “While most would not want to openly admit it, one wonders whether this business model would be so maligned and attacked if it was developed in a Scandinavian country rather than India. Indian H-1B workers have been unfairly disparaged even in the media for displacing American workers as we saw in the Disney episode without any regard to the benefits these H-1B workers ultimately bring to the American economy.” The article is HERE. The USCIS memo is HERE.

Mr. Mehta was quoted by the Times of India in “U.S. Tightens H-1B Visa Rules, Indians To Be Hit.” “The new policy suggests…that additional evidence may also be needed, such as more details in the work orders or in letters from the end client regarding the beneficiaries’ work assignment. While all these issues in the new USCIS policy are already asked for in challenges to the H-1B petition known as Requests for Evidence, it provides more incentive for USCIS to ask for more evidence regarding the specific nature of the H-1B worker’s work.” The article is HERE.

Wolfsdorf Rosenthal LLP has published several new blog entries. 10 Things to Know About the New EB-5 Reform Act” is HERE. “5 Practical Tips for Form I-9” is HERE. “USCIS’ Independent Investigation on Source of Funds of EB-5 Investors” is HERE.

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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: HERE

Department of State Visa Bulletin: HERE

Visa application wait times for any post: HERE

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Headlines:

1. Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission –

Four immigration bills failed in the U.S. Senate, and a House bill appears doomed. Also, a second court enjoined DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The decision included certain limitations.

2. President Trump Calls for Establishment of National Vetting Center -President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”

3. Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule -A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”

4. Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces -Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, USCIS announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018, and will take a “flexible” approach.

5. Alleged P-3 Entertainer Visa Fraud Scheme Busted -The P-3 visa allows entertainers to visit the United States to perform in culturally unique events and deepen U.S. understanding of different cultures. An indictment alleged that defendants choreographed a widespread P-3 visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers.

6. USCIS To Process Recently Filed Asylum Applications Over Older Ones -USCIS will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog.

7. USCIS, DOS Tighten Screening Procedures for Refugees and Family Members -USCIS and DOS implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-tojoin refugees.”

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

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

10. Government Agency Links -Government Agency Links

Details:

1. Immigration Bills Fail in Senate, Including DACA; House Bill’s Prospects Appear Dim; Second Court Enjoins DACA Rescission

A bipartisan deal on immigration, the so-called “Common Sense Plan,” failed on February 15, 2018, in the U.S. Senate, 54-45. The legislation would have provided a pathway to legalization for Deferred Action for Childhood Arrivals (DACA) “Dreamers” and provided $25 billion for border security measures, among other things. Reportedly, the Trump administration opposed the deal and had threatened to veto it despite substantial bipartisan support. A White House-supported bill also failed in the Senate, 39-60. The latter bill would have cut family immigration, ended the diversity visa (DV) program, and increased federal removal powers. Two other immigration proposals also failed on February 15.

Sen. John Thune was quoted as saying, “Well, we’ll go back to the drawing board.” Sen. Susan Collins (R-Maine) said she was “very disappointed” and added that “we’ve got real problems that we need to solve.”

Meanwhile, the U.S. House of Representatives is hard at work on a tough bill—the “Securing America’s Future Act,” also dubbed the “Goodlatte bill” after its main author, Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee—that appears not to have sufficient support in either the House or the Senate. Among other things, the bill would provide temporary, renewable legal status to DACA recipients rather than citizenship. It would authorize border wall funding, end family-based immigration, end the DV program, and require employers to use the E-Verify program, among other measures.

Also, on February 13, 2018, the U.S. District Court for the Eastern District of New York became the second court to enjoin DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The court ordered the Trump administration to maintain the DACA program on the same terms and conditions that existed before promulgation of the DACA Rescission Memo, subject to several limitations: the administration need not consider new applications by individuals who have never before obtained DACA benefits; need not continue granting advance parole to DACA beneficiaries; and may adjudicate DACA renewal requests on a case-by-case basis.

COURT DECISION

DEPARTMENT OF HOMELAND SECURITY PRESS RELEASE issued before the Senate voted on the “Common Sense Plan”

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2. President Trump Calls for Establishment of National Vetting Center

On February 6, 2018, President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center (NVC) “to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety.”

A statement issued by the White House said the NVC, to be led by the Department of Homeland Security, “will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.”

The statement says:

The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfil that obligation.

The statement may be viewed here.

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3. Coalition of Business Leaders Tells Trump: We Support International Entrepreneur Rule

A coalition of business leaders, investors, and organizations sent a letter on February 8, 2018, to President Donald Trump in support of the International Entrepreneur Rule (IER), which is in effect following a court order. The Trump administration has signaled that the IER is likely on the chopping block. The letter says that killing the IER “would upend the ability of talented immigrant entrepreneurs to launch new enterprises and employ American workers in communities across the United States.”

Among other things, the letter notes that “Rescission of the International Entrepreneur Rule” has been pending review with the Office of Management and Budget since November 17, 2017. “This potential new rule places a dark cloud over IER, as immigrant entrepreneurs are uncertain of how long IER will be in place,” the letter notes:

The rescission rule stifles investment into new companies with foreign-born founders, which ultimately costs the U.S. economy. It also exacerbates an alarming trend of elite entrepreneurs launching successful startups outside the United States. Twenty years ago our country’s share of global venture investment was 90%, but that number has dropped precipitously to 81% in 2006 and to 53% in 2017. In 2016, China was home to six of the ten largest venture capital investments in the world. If we continue to push entrepreneurs overseas, our share of global investment will continue to decrease.

As background, on January 17, 2017, the Department of Homeland Security (DHS) published the International Entrepreneur final rule with an original effective date of July 17, 2017. On July 11, 2017, DHS published a final rule delaying the effective date until March 14, 2018, to allow for a full review of the rule. The Trump administration proposed in late 2017 to rescind the final rule. In December 2017, a federal court ruled in National Venture Capital Association v. Duke that the rule should go into effect because the government had not provided sufficient notice-and-comment for the delay rule under the Administrative Procedure Act.

The full text of the coalition letter may be viewed HERE.

TechNet, with 77 member companies, sent a similar letter to U.S. Citizenship and Immigration Services, available HERE.

The court’s decision is available HERE.

View the USCIS statement following the court order HERE.

Information on how to submit an international entrepreneur application is HERE.

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4. Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces

Following the Department of Labor’s recent announcement that it will not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, U.S. Citizenship and Immigration Services (USCIS) announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018.

USCIS said it is “maintaining a flexible approach to this issue,” which may include randomly selecting petitions received on the final receipt date “to ensure that we allocate H-2B visas fairly and do not exceed the cap.” USCIS said more information would be forthcoming.

View the USCIS announcement is HERE.

Information on the cap count for H-2B nonimmigrants is HERE.

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5. Alleged P-3 Entertainer Visa Fraud Scheme Busted

A 15-count indictment was unsealed on February 8, 2018, in federal court in Brooklyn, New York, charging Stella Boyadjian, Hrachya Atoyan, and Diana Grigoryan, also known as “Dina Akopovna,” for their roles in a multi-year visa fraud scheme that brought Armenian citizens into the United States for profit. The defendants are charged with multiple counts of visa fraud and with conspiring to defraud the United States, commit visa fraud, and illegally bring undocumented persons into the United States. Boyadjian and Grigoryan are also charged with related money laundering, and Boyadjian is charged with aggravated identity theft.

As alleged in the indictment, the defendants choreographed their widespread visa fraud scheme by dressing visa applicants in traditional dance costumes and creating fake concert flyers to deceive a government program that allows foreign nationals to temporarily enter the United States as artistic performers in the P-3 visa category. That category allows entertainers to visit the U.S. to perform in culturally unique events and to deepen U.S. understanding of different cultures.

Boyadjian allegedly ran a nonprofit organization called Big Apple Music Awards Foundation Inc. (BAMA), based in Rego Park, New York, which she and her co-conspirators used to further their visa fraud scheme. As part of the alleged scheme, the defendants and their co-conspirators solicited undocumented persons and charged them fees ranging from $3,000 to $15,000 per applicant to fraudulently obtain P-3 visas by submitting false Forms I-129 and supporting documents to U.S. Citizenship and Immigration Services. Upon approval of the I-129 petitions, the defendants and their co-conspirators acquired fraudulent dance certificates and organized staged photo sessions where foreign nationals wore Armenian dance costumes to make it appear as though they were traditional Armenian musicians, singers, and performers. After being trained how to falsely answer questions during visa interviews, the P-3 visa applicants presented these fake certificates and photos during their P-3 visa interviews. Once in the United States, some beneficiaries of the P-3 visas paid the defendants an additional fee to be included in applications for extensions of their fraudulently obtained visas. The defendants furthered their visa fraud scheme by creating flyers and other documents purporting to hold BAMA-sponsored concerts and events in the United States.

USCIS’ announcement is HERE.

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6. USCIS To Process Recently Filed Asylum Applications Over Older Ones

U.S. Citizenship and Immigration Services (USCIS) announced recently that the agency will schedule asylum interviews for recent applications ahead of older filings, in an attempt to stem the growth of the agency’s asylum backlog. The agency said it faces a “crisis-level backlog” of 311,000 pending asylum cases as of January 21, 2018, making the asylum system “increasingly vulnerable to fraud and abuse. This backlog has grown by more than 1750 percent over the last five years, and the rate of new asylum applications has more than tripled.”

To address this issue, USCIS said it will follow these priorities when scheduling affirmative asylum interviews:

Applications that were scheduled for an interview but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;

Applications pending 21 days or fewer since filing; and

All other pending applications, starting with newer filings and working back toward older filings.

Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.

USCIS said this priority approach was used for 20 years until 2014, and “seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization.” Returning to a “last in, first out” interview schedule will allow USCIS “to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings,” USCIS said.

The USCIS announcement is HERE.

Information on affirmative asylum interview scheduling is HERE.

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7. USCIS, DOS Tighten Screening Procedures for Refugees and Family Members

On February 1, 2018, U.S. Citizenship and Immigration Services (USCIS) and the Department of State implemented new procedures “to ensure that all individuals admitted as refugees receive similar, thorough vetting—whether they are principal refugees, accompanying family members, or following-to-join refugees.” A following-to-join refugee is the spouse or child of a principal refugee who lives abroad and wishes to join the principal refugee in the United States.

These measures were implemented following a 120-day review mandated by Executive Order 13780, which directed the Department of Homeland Security to determine what additional procedures should be implemented to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.

According to USCIS, new measures that apply to following-to-join refugees processed overseas include:

Ensuring that following-to-join refugees receive the full baseline interagency screening and vetting checks that other refugees receive.

Requesting that the following-to-join refugee submit his or her Form I-590, Registration for Classification as Refugee, in support of the principal refugee’s Form I-730, Refugee/Asylee Relative Petition, earlier in the adjudication process. USCIS or the Department of State will contact petitioners directly to request this information.

Vetting certain nationals or stateless persons against classified databases.

The USCIS notice is HERE.

A related Department of State memorandum is HERE.

A report required by Executive Order 13780 is HERE.

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8. New Publications and Items of Interest

Trump’s first year. The Migration Policy Institute has released a new report, “Trump’s First Year on Immigration Policy: Rhetoric vs. Reality.”

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.
• 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 HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. 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 HERE.

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9. ABIL Member / Firm News

Dagmar Butte spoke on “I-140 Adjudications Post Kazarian and Matter of Dhanasar” at the American Immigration Lawyers Association’s Mid-Year Conference in Cancun, Mexico, on February 2, 2018, and on “Challenging RFE Issues” at the New York Chapter Symposium on December 15, 2017.

H. Ronald Klasko recently presented at the 11^th Global Residence and Citizenship Conference in Hong Kong. He presented on the E-2 (Treaty Investor) visa. When paired with the Grenada Citizenship by Investment program, the E-2 visa could be a solution for Chinese investors to avoid the 10-year EB-5 backlog. The conference was hosted by Henley & Partners. The event has become the world’s largest and most significant investment migration conference, with nearly 500 international delegates from more than 40 countries. Attendees included presidents, prime ministers, senior government officials, leading academics, industry professionals, and financial and business media. More information HERE.

Mr. Klasko and Daniel B. Lundy have been named to the list of the top 25 EB-5 lawyers in the country by EB5 Investors Magazine. According to the magazine, “Candidates were evaluated based on their experience in the EB-5 industry, their track record and their reputation within the field.”

Vincent Lau will speak on various topics at the following upcoming conferences:

Advanced PERM Issues, American Immigration Lawyers Association Midwinter CLE Conference, February 2018, Cancun, Mexico

Sangre y Arena: The BAHA Effect Across Agencies, American Immigration Lawyers Association Rome District Chapter Conference, February 2018, Madrid, Spain

PERM Under the Trump Administration, American Immigration Lawyers Association New England Immigration Law Conference, March 2018, Boston, Massachusetts

2018 Top PERM and LCA Issues, American Immigration Lawyers Association Midwest Regional Conference, March 2018, Chicago, Illinois

Inside the Beltway with the DOL Liaison Committee, American Immigration Lawyers Association 2018 Spring CLE Conference, April 2018, Washington, DC

PERM BALCA and FAQ Review, American Immigration Lawyers Association Annual Conference on Immigration Law, June 2018, San Francisco, California

U.S. Department of Labor Open Forum, American Immigration Lawyers Association Annual Conference on Immigration Law, June 2018, San Francisco, California

Mr. Lau spoke at Permanent Labor Certification Program (PERM)—Current Adjudication Trends and Anticipated Changes, Practising Law Institute, December 2017, New York City.

Robert Loughran, in his role as a member of the Texas State Bar Committee on Laws Relating to Immigration and Nationality, met with consular supervisors at the largest visa issuing post in the world in Ciudad Juarez, Mexico, on February 8, 2018, to review the latest procedures.

Cyrus Mehta has authored or co-authored several new blog entries. “The Evolving Rights of Deportable Immigrants As Seen in the Case of Ravi Ragbir” is . “The AAO Finds That Entry-Level Wages Do Not Automatically Preclude H-1B Visa Classification” is .

Mr. Mehta moderated “Lessons Across Borders: What the U.S. and Canada Can Teach One Another About Establishing a Successful Immigration and Asylum Policy” at the American Bar Association’s (ABA) 2018 Midyear Meeting in Vancouver, Canada, on February 3, 2018. More information is HERE. Video highlights are HERE. A related ABA article is HERE.

Mr. Mehta announced the following recent speaking engagements:

Program Chair and Speaker, “Basic Immigration Law 2018,” Practising Law Institute, New York City and via webcast, February 8, 2018

Program Chair, “Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Related Relief,” Practising Law Institute, New York City and via webcast, February 9, 2018

Moderator, “Lessons Across Borders: What the U.S. and Canada Can Teach One Another About Establishing a Successful Immigration and Asylum Policy,” American Bar Association 2018 Midyear Meeting, Vancouver, Canada, February 3, 2018

Guest Speaker, “How To Help Clients Even While President Trump Is Restricting Immigration,” AILA Philadelphia Chapter Meeting, Philadelphia, Pennsylvania, January 18, 2018

Wolfsdorf Rosenthal LLP has published several new blog entries. “10 Things Every Departing Alien Needs to Know About IRS ‘Sailing’ Permits” is . “Ten Things To Know About Communist Party Membership Inadmissibility” is . “New Streamlined E-1 & E-2 Investor Visa Processing at the U.S. Consulate in Toronto, Canada” is .

Stephen Yale-Loehr co-authored “Trump and Obama Immigration Enforcement: A Tale of the Tape So Far,” published by New York Daily News on February 5, 2018. The article is HERE.

Mr. Yale-Loehr moderated a panel discussion in Palo Alto, California, on how the Trump administration’s immigration changes are affecting the tech industry. The panelists included Julie Pearl. The discussion is available as a podcast edited by Cornell Law School HERE (scroll down to “Faculty Podcasts: Immigration and the Tech Sector: What’s Changed, What Hasn’t, and What Might in the Trump Administration.”

Mr. Yale-Loehr will speak at the 16th Washington International Education Conference, an event offering independent objective information to the international education community, to be held at the University of California, Washington DC Center, on February 14-15, 2018. For further information, see HERE.

Mr. Yale-Loehr will give three talks in Sarasota and Venice, Florida, on March 6 and 7, 2018. On March 6, he will speak at 10:30 am at the First United Methodist Church, 104 S. Pineapple Ave., Sarasota, and at 2:30 pm at the Venice Community Center, 326 Nokomis Ave. South, Venice, about Green Card Stories. This book, featuring many ABIL members’ clients, puts a human face on immigration, moving the debate beyond divisive politics and into the landscape of everyday America. The individuals profiled in the book illustrate how immigrants are contributing to our nation today. On March 7, Mr. Yale-Loehr will talk about our broken immigration system and how to fix it at 10:30 am at the First United Methodist Church, 104 S. Pineapple Ave., Sarasota. All three talks are through the Sarasota Institute of Lifetime Learning. Details are HERE.

Mr. Yale-Loehr was quoted in Inside Higher Education in “A Year of Travel Bans,” about a decline in student and B visas issued in certain countries. He said the percentage changes were “higher than I would have anticipated. For example, a 53 percent decline in the number of F visas issued to people from Iraq, that’s very significant. Even if the numbers are small, the percentage change is very significant, and it shows that the State Department is implementing the travel ban more aggressively than many people may have thought.” He added, “The fact that despite the exception that theoretically allows students from Iran to come to the United States we still see a 24 percent decrease in the number of F-1 visas granted from Iran, shows that there is a de facto travel ban in place for many students from Iran even though legally they are allowed to apply to come under the same conditions as before.” The article is .

Mr. Yale-Loehr was quoted in PolitiFact in “Donald Trump’s Misleading Claim About Chain Migration, Unlimited Sponsorship of Distant Relatives,” rebutting President Trump’s false claim that “a single immigrant can bring in unlimited numbers of distant relatives.” Mr. Yale-Loehr noted, “As a practical matter, because of these long backlogs there is not as much chain migration as President Trump claims.” The article is .

Mr. Yale-Loehr was quoted in Deutsche Welle News Service in “Why Donald Trump’s Immigration Deal is a Hard Sell.” Responding to President Trump’s false claim that countries send their “worst people” under the diversity visa program, Mr. Yale-Loehr cited a 2011 Congressional Research Service report, noting that “a higher percentage of immigrants who entered the United States through the diversity visa program had managerial and professional occupations than green card holders overall.” With respect to “chain migration,” Mr. Yale-Loehr noted, “Chain migration is President Trump’s derogatory way of labeling family reunification immigration.” He also said, “President Trump is wrong to claim that distant relatives can easily and quickly immigrate to the United States,” pointing out that U.S. citizens can only petition for close relatives like siblings, children, and parents—not aunts, uncles, or other, more distant relatives. Mr. Yale-Loehr noted that even under the current system, for a U.S. citizen to try to bring a relative to the country is no small feat and takes a long time: “If I am a U.S. citizen and petition for my brother, the wait would be almost 14 years for most countries. And if my brother is from the Philippines, the wait would be over 23 years.” With respect to a recent immigration deal proposed by President Trump, Mr. Yale-Loehr said the chances of passage in Congress were not good. The article is HERE.

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10. Government Agency Links

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Headlines:

1. Former DHS Secretaries Urge Congress To Act on DACA Now; Administration Begins Accepting DACA Renewal Applications -Former DHS Secretaries Michael Chertoff, Jeh Johnson, and Janet Napolitano sent a letter to Republican and Democratic congressional leaders urging swift passage of legislation to allow the 690,000 “Dreamers” under the Deferred Action for Childhood Arrivals program to continue to live and work in the United States. Also, USCIS resumed accepting renewal applications for DACA based on a federal court order.

2. DHS To Terminate TPS for El Salvador in September 2019, Suggests ‘Legislative Solution’ -Temporary protected status TPS designation for El Salvador will be terminated on September 9, 2019. DHS suggested the possibility of a legislative solution in the meantime.

3. New I-94 Feature Reminds VWP Travelers of Number of Remaining Days -A new feature added to the I-94 website allows Visa Waiver Program (VWP) travelers to check the status of their admission to the United States. This check informs travelers of the number of days remaining in their lawful period of admission or the number of days they have remained past that period. In addition, CBP said it will now send email notifications to VWP travelers who are still in the United States 10 days before the expiration of their lawful admission period.

4. OFLC Alerts Employers, Stakeholders Re High Volume of H-2B Temporary Labor Certification Requests -OFLC alerted employers and stakeholders about the high volume of applications received requesting temporary labor certification under the H-2B visa program.

5. CBP Updates Directive on Border Searches of Electronic Devices -The new directive supersedes the previous directive released in August 2009.

6. USCIS Clarifies Proxy Vote Use for Certain Intracompany Transferee Visa Petitions -USCIS issued updated policy guidance clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.

7. DOJ Clarifies Policy on EADs for TPS Hondurans and Nicaraguans -DOJ recently clarified policy with respect to employment authorization documents based on USCIS’s automatic extension of their validity for individuals with temporary protected status from Honduras and Nicaragua.

8. DOJ Settles U.S. Worker Discrimination Claims Against Colorado Agricultural Company -Among other things, the complaint alleged that although U.S. citizens had to complete a background check and a drug test before starting work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them.

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

10. ABIL Member/Firm News -ABIL Member/Firm News

11. Government Agency Links -Government Agency Links

Details:

1. Former DHS Secretaries Urge Congress To Act on DACA Now; Administration Begins Accepting DACA Renewal Applications

On January 3, 2018, former Department of Homeland Security Secretaries Michael Chertoff, Jeh Johnson, and Janet Napolitano sent a letter to Republican and Democratic congressional leaders urging swift passage of legislation to allow the 690,000 “Dreamers” under the Deferred Action for Childhood Arrivals (DACA) program to continue to live and work in the United States.

Specifically, the DHS secretaries urged passage of a DACA bill by January 19, 2018, as a “best-case deadline.” They noted that this would provide enough time for U.S. Citizenship and Immigration Services (USCIS) to process applications “before tens of thousands of DACA recipients are negatively impacted by the loss of their work authorization or removal from the United States.” They warned that by the Trump administration’s March 5 deadline, the number of DACA recipients losing status “skyrockets to an average of 1,200 a day.”

The DHS secretaries further warned that if DACA recipients lose their work authorization, this would create uncertainty and negatively affect the business community that has hired 90 percent of them. “Congressional delay past the next few weeks will force the employers of hundreds of thousands of DACA recipients into a state of instability” in which they must plan to lose employees, the letter said.

On January 13, 2018, USCIS resumed accepting renewal applications for DACA based on a federal court order: “Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.” The notice states:

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

The court’s preliminary injunction noted, among other things:

For the reasons DACA was instituted, and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below). Beginning March 5, absent an injunction, one thousand individuals per day, on average, will lose their DACA protection. The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status. This would tear authorized workers from our nation’s economy and would prejudice their being able to support themselves and their families, not to mention paying taxes to support our nation. Too, authorized workers will lose the benefit of their employer-provided healthcare plans and thus place a greater burden on emergency healthcare services.

On provisional relief motions, district judges must also weigh the balance of hardships flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be repeated. The only hardship raised by defendants is interference with the agency’s judgment on how best to allocate its resources in keeping our homeland secure, as well as its judgment in phasing out DACA. Significantly, however, the agency’s judgment here was not based on a policy change. It was based on a mistake of law. If the instant order is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary injunction will set that right without imposing any policy unwanted by the Executive Branch.

DHS SECRETARIES’ LETTER

USCIS’ ANNOUNCEMENT about resumption of acceptance of renewal applications, which states that “[a]dditional information will be forthcoming.”

PRELIMINARY INJUNCTION

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2. DHS To Terminate TPS for El Salvador in September 2019, Suggests ‘Legislative Solution’

On January 8, 2018, Secretary of Homeland Security Kirstjen Nielsen announced that the temporary protected status (TPS) designation for El Salvador will be terminated on September 9, 2019. The Department of Homeland Security (DHS) said that the “substantial disruption of living conditions caused by [a 2001] earthquake no longer exist.”

DHS said that to allow for an orderly transition for the estimated 200,000 affected people, the effective date of the termination of TPS for El Salvador will be delayed 18 months, to September 9, 2019, “to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible.”

DHS said that the 18 months “will also provide time for El Salvador to prepare for the return and reintegration of its citizens.” During this time frame, DHS plans to work with the Department of State and the government of El Salvador “to help educate relevant stakeholders and facilitate an orderly transition.” In addition to posting materials online, DHS components will participate in teleconferences, town halls, and roundtables “to ensure that affected populations have a full and accurate understanding of their rights and obligations,” DHS said.

DHS also noted, “Only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years. The 18-month delayed termination will allow Congress time to craft a potential legislative solution.”

Salvadorans with TPS will be required to re-register for TPS and apply for employment authorization documents to legally work in the United States until the termination of El Salvador’s TPS designation becomes effective September 9, 2019. DHS said that further details, including the re-registration period, will appear in a Federal Register notice. Salvadoran TPS beneficiaries should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.

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3. New I-94 Feature Reminds VWP Travelers of Number of Remaining Days

U.S. Customs and Border Protection (CBP) recently launched two new “traveler compliance initiatives” on January 5, 2018. A new feature added to the I-94 website, under the “View Compliance” tab, allows Visa Waiver Program (VWP) travelers to check the status of their admission to the United States. This check informs travelers of the number of days remaining in their lawful period of admission or the number of days they have remained past that period. In addition, CBP said it will now send email notifications to VWP travelers who are still in the United States 10 days before the expiration of their lawful admission period.

CBP noted that the Arrival-Departure Record (Form I-94) provides nonimmigrant visitors with evidence that they have been lawfully admitted to the United States, which is necessary to verify alien registration, immigration status, and employment authorization. To use the online system to check days remaining or overstayed, travelers enter their biographic and passport information. Days remaining and days overstayed are calculated using the authorized period of admission date designated by a CBP officer when a traveler arrived in the country.

All emails regarding traveler compliance checks will be sent from [email protected]. CBP warned that if a notification email did not come from this address, “it may be a phishing scam or other fraudulent email.:

CBP said it encourages travelers to plan ahead to ensure a smooth and efficient processing experience. The announcement about the new feature. Additional information on the I-94 and traveler compliance checks.

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4. OFLC Alerts Employers, Stakeholders Re High Volume of H-2B Temporary Labor Certification Requests

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) made a “public service announcement” on January 3, 2018, to alert employers and other interested stakeholders about the high volume of applications received requesting temporary labor certification under the H-2B visa program.

On January 1, 2018, the earliest date on which an employer seeking an employment start date of April 1 may file an H-2B application requesting temporary labor certification, OFLC received approximately 4,500 applications covering more than 81,600 worker positions. Except where a statutory exemption applies, the Department of Homeland Security (DHS) may only issue up to 33,000 H-2B visas for employers seeking to hire H-2B workers during the second half of FY 2018 (April 1 to September 30).

The OFLC said it “takes each request for temporary labor certification seriously and administers the labor certification program in a manner that protects the wages and working conditions of both H-2B and U.S. workers who support the seasonal workforce needs of U.S. small businesses, consumers, and communities.” The agency said it is “working as expeditiously as possible to issue first case actions, review responses to Notices of Deficiency (NODs), and issue Notices of Acceptance where possible. First case actions are taken on a first filed basis and responses to NODs are evaluated in the order in which they are received.”

ANNOUNCEMENT

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5. CBP Updates Directive on Border Searches of Electronic Devices

On January 4, 2018, U.S. Customs and Border Protection issued an update to the agency’s directive governing border searches of electronic devices. The new directive supersedes the previous directive released in August 2009.

John Wagner, CBP Deputy Executive Assistant Commissioner for Field Operations, noted that the updated directive “includes provisions above and beyond prevailing constitutional and legal requirements. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”

Among other things, the directive states that “[a]s a constitutional matter, border search authority is premised in part on a reduced expectation of privacy associated with international travel.” The directive states that border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. Officers may not intentionally use the device to access information that is solely stored remotely. An advanced search may be conducted if activity violating laws enforced by CBP, or a national security concern, is suspected. The directive includes information on handling assertions of attorney-client privilege, attorney work product, work-related information carried by journalists, medical records, business confidential information, passwords, or other sensitive material.

CBP explained that in FY 2017, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices. Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched (more than 29,200). In FY 2016, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).

CBP said its border searches of electronic devices “have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.”

NEW DIRECTIVE

RELATED ANNOUNCEMENT

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6. USCIS Clarifies Proxy Vote Use for Certain Intracompany Transferee Visa Petitions

U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on January 3, 2018, clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.

USCIS explained that a U.S. or foreign employer may file an L-1 visa petition to temporarily transfer a foreign employee to the United States from one of its operations outside the country. The employer must prove that a qualifying relationship exists between the foreign employer and the U.S. company when the petition is filed by showing that either the two companies are the same employer or the companies are related as a parent, subsidiary, or affiliate company.

To determine if a qualifying relationship exists, USCIS officers examine ownership and control of the entities. In some cases, a petitioner may seek to establish control based on the use of proxy votes, USCIS noted. Proxy votes are obtained when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company or companies in question.

The new policy memorandum clarifies that when proxy votes are a determining factor in establishing control, the petitioner must now show that the proxy votes are irrevocable from the time of filing through the time USCIS adjudicates the petition, along with evidence the relationship will continue during the approval period requested. Previous guidance did not address whether proxy votes must be irrevocable to establish control, USCIS said.

The agency noted that this policy update “does not change the requirement for petitioners to file an amended petition when the ownership or control of the organization changes after its original L-1 petition was approved. Amended petitions must also comply with the clarified guidance regarding irrevocable proxy votes.”

USCIS ANNOUNCEMENT, which includes a link to the updated policy guidance

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7. DOJ Clarifies Policy on EADs for TPS Hondurans and Nicaraguans

The Immigrant & Employee Rights Section of the Department of Justice’s (DOJ) Civil Rights Division recently clarified policy with respect to employment authorization documents (EADs) based on U.S. Citizenship and Immigration Services’ (USCIS) automatic extension of their validity for individuals with temporary protected status from Honduras and Nicaragua. An email to the related DOJ listserv sent January 5, 2018, stated:

If your employee has an Employment Authorization Document (Form I-766, often referred to as an “EAD”) with an original expiration date of January 5, 2018 and containing the category code “A-12” or “C-19,” this EAD is automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the automatic extension period. TPS Honduras EADs have been automatically extended for six months, through July 4, 2018. TPS Nicaragua EADs have been automatically extended for 60 days, through March 6, 2018.

The email notes that in addition, some EAD holders, including those with TPS who already applied to renew an EAD, may choose to show their existing EADs with a qualifying I-797C receipt notice. For both TPS Honduras and TPS Nicaragua, this combination of documents allows the employee to work through July 4, 2018 (instead of until March 6 for a TPS Nicaragua employee who chooses to show their automatically-extended EAD only), DOJ said.

For employers that have an existing employee who presented an EAD that has now been automatically extended, the employee’s Form I-9 should be updated to reflect the extension:

1. For Section 1, the employee may:

1. Draw a line through the expiration date.
2. Write the new expiration date above the previous date.

– TPS Honduras employees as well as TPS Nicaragua employees who choose to show their EAD and qualifying receipt notice should write, “July 4, 2018.”

– TPS Nicaragua employees who choose to show only their automatically-extended EAD should write, “March 6, 2018.”

c. Initial and date the correction in the margin of Section 1.

2. For Section 2, employers should:

1. Draw a line through the expiration date written in Section 2.
2. Write the new expiration date above the previous date.

– “July 4, 2018” for all TPS Honduras employees as well as TPS Nicaragua employees who show their EAD and qualifying receipt notice.

– “March 6, 2018” for TPS Nicaragua employees who choose to show only their automatically extended EAD.

c. Initial and date the correction in the margin of Section 2.

The new announcement referenced additional information on when an employee can choose to show their EAD and I-797C, in a USCIS fact sheet issued last year.

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8. DOJ Settles U.S. Worker Discrimination Claims Against Colorado Agricultural Company

The Department of Justice (DOJ) recently announced that it has reached a settlement agreement with Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado. The settlement resolves a lawsuit the DOJ filed against the company on September 28, 2017, alleging that the company discriminated against U.S. citizens because of a preference for foreign workers, in violation of the Immigration and Nationality Act (INA).

The Department’s lawsuit alleged that in 2016, Crop Production discriminated against at least three U.S. citizens by refusing to employ them as seasonal technicians at its El Campo, Texas, location because the company preferred to employ temporary foreign workers under the H-2A visa program. According to the DOJ complaint, Crop Production imposed more burdensome requirements on U.S. citizens than it did on H-2A visa workers to discourage U.S. citizens from working at the facility. For example, the complaint alleged that although U.S. citizens had to complete a background check and a drug test before starting work, H-2A visa workers were allowed to begin working without completing them and, in some cases, never completed them. The complaint also alleged that Crop Production refused to consider a limited-English-proficient U.S. citizen for employment yet hired H-2A visa workers with limited-English proficiency. Ultimately, all of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A visa workers instead of U.S. workers.

The settlement agreement requires Crop Production to pay civil penalties of $10,500 to the United States, undergo DOJ-provided training on the antidiscrimination provision of the INA, and comply with departmental monitoring and reporting requirements. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Crop Production agreed to pay $18,738.75 in lost wages to affected U.S. workers.

The settlement is part of the Division’s Protecting U.S. Workers Initiative, an initiative aimed at targeting, investigating, and bringing enforcement actions against companies that discriminate against U.S. workers in favor of foreign workers.

SETTLEMENT AGREEMENT

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9. New Publications and Items of Interest

EOIR agency guide. The Department of Justice’s Executive Office for Immigration Review recently released a fact sheet providing an overview of the agency and descriptions of types of relief from removal and hearings/reviews, among other things.

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.
• 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 HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. 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 HERE.

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10. ABIL Member/Firm News

Laura Danielson recently authored “Looking Back, Looking Ahead: An Immigration Lawyer’s Perspective,” which was published in the January-February 2018 edition of Hennepin Lawyer.

H. Ronald Klasko, Daniel B. Lundy, and Anu Nair of Klasko Immigration Law Partners, LLP, recently participated in the 2017 American Immigration Lawyers Association’s (AILA) EB-5 Investors Summit. Mr. Klasko was a discussion leader for the panel entitled “Representing Clients in Failed or Fraudulent Projects.” Mr. Lundy served as discussion leader for “Regional Center Investments: Understanding the Deal and the Capital Stack.” Ms. Nair participated on the panel entitled “Advanced Source of Funds and Path of Funds Issues.”

Charles Kuck recently presented at a press conference on the DREAM Act. His part starts at 19:10.

Mr. Kuck gave a press conference after a successful day in court defending DREAMer Jessica Colotl.

Mr. Kuck also presented a Facebook Live video on DACA issues, on Mundo Hispánico.

Mr. Kuck was recently quoted by Mother Jones on the recent DACA federal court decision. He said that he believes the court decision is likely to be blocked if and when it’s appealed; the Supreme Court has already struck down the court’s effort to force the administration to turn over documents about how it decided to end DACA. He considers the recent federal court decision a “great victory,” but cautioned that “no applicant should send money or documents to USCIS until we have an official word to do so.”

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

Miller Mayer, LLP, posts updates on executive orders and related news.

Angelo Paparelli authored a blog entry, “Revanchist Immigration: The Aftermath of ‘Buy American, Hire American.'”

Wolfsdorf Rosenthal LLP has published several new blog entries. ” (English and Spanish).” “.” “.” “” “S.” “.” “.”

Stephen Yale-Loehr will present at “Starting Up and Staying Here: Immigrant Entrepreneurship,” a business networking event highlighting immigrant entrepreneurship to be held at Cornell University in Ithaca, New York, on February 7, 2018. Mr. Yale-Loehr will discuss the legal aspects that investors and entrepreneurs need to consider when immigration is a factor. For more information or to register.

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

• Time.com, about TPS termination for El Salvador. He noted that that presidents have typically maintained TPS status because ending it could pose a political challenge. “Individuals from those countries settle here, they have roots, they marry U.S. citizens, they have U.S. citizen children. So if you take it away then you’re dividing families and sending some people back to their home country.”
• Deutsche Welle, in “Is a U.S. Government Shutdown Looming After Donald Trump’s DACA Meddling?” He said, “I don’t think President Trump and the U.S. Congress will be able to finalize the government funding and immigration issues by January 19. They are too complicated to resolve in just 10 days. Instead, I predict that Congress will simply extend current government funding levels without any changes for a few more weeks to give themselves more time to negotiate everything. The real deadline for DACA is March 5, not this month.”
• Reuters, in “Fewer Family Visas Approved as Trump Toughens Vetting of Immigrants: Reuters Review.” Noting that efforts by the administration to restrict the entry of family members of migrants was shortsighted, Mr. Yale-Loehr said they “bring drive and entrepreneurial spirit to the United States.”
• Times of India, in “Move on H-1B Harmful for U.S. Too: Nasscom.” The article discusses a Trump administration proposal not to extend the H-1B visas of those waiting for permanent residence, which would have major ramifications for Indian IT professionals in the United States and U.S. competitiveness. Mr. Yale-Loehr said that if the administration goes forward with the changes, companies and H-1B workers could sue to stop them. Among other things, they could argue that only the U.S. Congress can make such a change, and that it is unfair to change the rules midstream while H-1B workers have been waiting patiently in line for years. “If the administration goes forward, they would first need to publish the proposed changes” in the Federal Register, he noted. “Then they would need to wait a month or longer to accept comments from the public about the proposed change. Then they would need to read and evaluate the comments before they could publish a final rule.”
• Houston Chronicle, in “Diversity Visa Lottery Offers Success for Immigrants, But Politicians Say It’s a Gamble.” Mr. Yale-Loehr noted that despite President Trump’s claims, no government or even individual can game the system since the diversity visa program is a true lottery. Until recently Mr. Yale-Loehr was a critic of the program. But in December, he published an op-ed in the New York Daily News arguing that recipients of the diversity visa are, in fact, not less skilled than other immigrants. Citing a 2011 report from the Congressional Research Service, he noted that a higher percentage of immigrants who entered the United States through the diversity visa program had managerial and professional occupations in 2009 than green card holders overall, about one-quarter compared to 10 percent. They also had a lower unemployment rate—3 percent—relative to the 8 percent of all recipients that year. Also, recent Department of Homeland Security data shows that about a third of those who came to the United States through the diversity visa program in 2015 were employed in managerial or professional occupations, compared to the 12 percent who received their green cards through relatives. “Philosophically, you would think you could do a better job of picking people to come to the United States through important criteria, like people who have a unique talent, or are very smart, rather than just through a lottery,” Yale-Loehr said. “But after I looked at these statistics, and I saw that diversity visa lottery people are pretty much gainfully employed with a very low unemployment rate, I am now having second thoughts.”
• CBS News, in “Trump Says Visa Lottery Rewards the ‘Worst’ Immigrants. That’s Inaccurate.” The article quotes an op-ed Mr. Yale-Loehr wrote in December dispelling false claims about the diversity visa lottery: “There is no way a foreign government can game the lottery to offload the worst of their citizenry. Applicants who commit fraud, say by applying more than once each year to increase their chances of winning, are barred from the program. The State Department has issued specific warnings against fraud in the diversity visa program. So even if a government tried to game the lottery, it should be caught.”

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11. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or 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 Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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