ABIL Immigration Insider • June 02, 2019

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Headlines:

1. State Dept. Notes Continued Heavy Demand, Retrogressions (Visa Unavailability) in Several Employment-Based Immigrant Visa Categories -The Visa Bulletin for June 2019 notes heavy demand in several employment-based visa categories for India and Vietnam.

2. USCIS Requests Info on EB-5 Immigrant Investor Visa Experience -USCIS wants information from attorneys, accredited representatives, regional center owners, and petitioners about their experiences filing for regional center designations, annual certifications of regional centers, or petitions by alien entrepreneurs.

3. Online Visa, ESTA Applications Include New Social Media Question -The applicant is instructed to provide the names of each social media platform used within the last five years and the “username or handle you have used on that platform.”

4. President Trump Considering Ban on Asylum Claims From Central Americans Traveling Through Mexico, Others -If the rule is implemented, it could block Central Americans traveling through Mexico, among others, from applying for asylum in the United States.

5. State Dept. Introduces New ‘K’ Risk Indicator for Travelers -DOS has announced a new “K” risk indicator added to its travel advisories for U.S. citizens, to communicate “the risks of kidnapping and hostage-taking by criminal and terrorist actors around the world.”

6. ABIL Global: France -The French government has implemented an ordinance that specifies the conditions for issuing residence permits to British nationals to continue their stay in France after the Brexit date, in the event of no exit agreement being reached between the UK and EU.

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

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

9. Government Agency Links -Government Agency Links

Details:

1. State Dept. Notes Continued Heavy Demand, Retrogressions (Visa Unavailability) in Several Employment-Based Immigrant Visa Categories

The Department of State’s (DOS) Visa Bulletin for the month of June 2019 notes heavy demand in several employment-based visa categories:

  • There continues to be an “extremely high rate of demand” for India employment first preference (EB-1) visa numbers, which has resulted in retrogression of the final action date for the month of June to October 1, 2017. This action will be temporary.
  • Continued heavy applicant demand is expected to result in the India employment fifth preference (EB-5) category approaching the per-country annual limit during July. This is likely to result in the imposition of a July final action date in 2017. This action will be temporary, with the EB-5 date for India “most likely” advancing to the summer or fall of 2017 for October.
  • High demand also is expected to result in the Vietnam employment fifth preference (EB-5) category reaching the per-country annual limit in July. This action will be temporary, with the Vietnam EB-5 date “most likely” advancing to the fall or early winter of 2016 for October.

U.S. Citizenship and Immigration Services (USCIS) has also announced that the agency will follow the “Final Action Dates” chart for the month for accepting I-485 Adjustment of Status applications.

Details: DOS Visa Bulletin for June 2019; USCIS announcement

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2. USCIS Requests Info on EB-5 Immigrant Investor Visa Experience

U.S. Citizenship and Immigration Services (USCIS) aims “to understand challenges and pain points of the application or petition process” concerning the EB-5, and has invited attorneys, accredited representatives, regional center owners, and petitioners to provide information about their experiences filing for regional center designations under the Immigrant Investor Program (I-924), annual certifications of regional centers (I-924A), or petitions by alien entrepreneurs (I-526).

USCIS specifically wants feedback from:

  • Representatives who have filed petitions or applications related to the EB-5 program in the last 12 months and work for a law firm with five or more employees;
  • Regional center owners who have filed regional center applications or annual certifications in the last 12 months; and
  • Petitioners who have filed a petition related to the EB-5 program in the last 12 months.

Details: Per USCIS, those with questions or who are interested should email [email protected] and include the emailer’s experience with EB-5 filings and role in the submission process; case-specific information should not be included. Some may be asked to participate in a group discussion.

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3. Online Visa, ESTA Applications Include New Social Media Question

The Department of State’s (DOS) online visa application (Form DS-160) now includes a new question about social media. The applicant is instructed to provide the names of each social media platform used within the last five years and the “username or handle you have used on that platform.”

The Electronic System for Travel Authorization (ESTA) application also has a social media question, although providing this information is optional, reportedly.

The ESTA should not be confused with the DS-160 process. The ESTA is an electronic authorization required of citizens from “visa waiver” countries who are traveling to the U.S. for business and/or leisure. The DS-160 is for foreign nationals who are required to apply for a visa at a U.S. Consulate/Embassy before traveling to the U.S.

Details: DOS online visa application; ESTA application; list of countries participating in the Visa Waiver Program

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4. President Trump Considering Ban on Asylum Claims From Central Americans Traveling Through Mexico, Others

According to reports, President Donald Trump is considering a draft rule to prohibit people who have resided in a third country from filing an asylum claim. If the rule is implemented, it could block Central Americans traveling through Mexico, among others, from applying for asylum in the United States.

Details: News reports: CNN, Politico

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5. State Dept. Introduces New ‘K’ Risk Indicator for Travelers

The Department of State (DOS) has announced a new “K” risk indicator added to its travel advisories for U.S. citizens, to communicate “the risks of kidnapping and hostage-taking by criminal and terrorist actors around the world.”

Travel advisories for 35 countries have been updated to include the “K” indicator: Afghanistan, Algeria, Angola, Bangladesh, Burkina Faso, Cameroon, Central African Republic, Colombia, Democratic Republic of the Congo, Ethiopia, Haiti, Iran, Iraq, Kenya, Lebanon, Libya, Malaysia, Mali, Mexico, Niger, Nigeria, Pakistan, Papua New Guinea, Philippines, Russian Federation, Somalia, South Sudan, Sudan, Syria, Trinidad and Tobago, Turkey, Uganda, Ukraine (in Russian-controlled eastern Ukraine), Venezuela, and Yemen.

Details: DOS announcement; travel advisories

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6. ABIL Global: France

The French government has issued a decree to implement Ordinance No. 2019-76 of 6 February 2019, which specifies the conditions for issuing residence permits to British nationals to continue their stay in France after the Brexit date, in the event of no exit agreement being reached between the United Kingdom (UK) and the European Union.

Decree no. 2019-264 of 2 April 2019 was published in the Journal Officiel on 3 April 2019. The following are the principal conditions of issuance of the residence permits to British nationals and their family members.

Transition period of 12 months. UK nationals and family members continuing their stay and professional activities beyond the Brexit date may do so for a maximum period of 12 months after the Brexit date. During this transition period, they do not need to possess a residence permit.

Residence permit application to be requested within 6 months following the Brexit. UK nationals who wish to remain in France beyond this transition period will have 6 months after the Brexit date to apply for one of the appropriate residence permits.

How to apply for a residence permit. The decree details the documents that UK nationals and their family members will provide in support of their application according to the appropriate residence permit for which they are eligible.

Tax amount. The amount of the tax due for the issuance of a residence permit is reduced to 100 euros for British nationals and their family members instead of 269 euros applicable to third-country nationals.

Details: Client alert

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7. New Publications and Items of Interest

USCIS 2018 Statistical Annual Report. U.S. Citizenship and Immigration Services (USCIS) today released the Fiscal Year 2018 Statistical Annual Report, which provides statistical information on the most popular and widely used benefits and programs administered by the agency. The report also provides insight into the nature and scope of USCIS’ work, which involves adjudicating millions of applications and petitions for immigration benefits annually. More information. The report.

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

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8. ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, announced that the final installment in its blog series, “Strategies for Success Series: Analyzing AAO Decisions,” is available now. The is titled, “.” The second blog in the series was “”. The first blog in the series was ”
”
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9. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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ABIL Immigration Insider • May 26, 2019

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Headlines:

1. Regulatory Agenda Includes Stripping Employment Eligibility From H-4 Spouses of H-1B Visa Holders, Other Actions -The agenda also includes a proposal to revise the definition of “specialty occupation” to “increase focus on obtaining the best and the brightest” foreign nationals via the H-1B program, revise the definition of “employment” and “employer-employee relationship” to “better protect U.S. workers and wages,” and add requirements to “ensure employers pay appropriate wages to H-1B visa holders.”

2. USCIS Accelerates Transition to Digital Immigration Processing, Announces I-539 Online Filing -As a first step, certain visitors for business, visitors for pleasure, and vocational students can now file Form I-539, Application to Extend/Change Nonimmigrant Status, online. Additional visa classifications are coming soon.

3. Texas Service Center to Begin Accepting Certain H-1B Petitions -The Texas Service Center has begun processing certain H-1B cap-exempt petitions requesting a change in previously approved employment or employer, concurrent employment, change of status to H-1B, and others.

4. USCIS Director Cissna Out Effective June 1 -According to reports, Ken Cuccinelli, former Virginia Attorney General, is at the top of the list of possible replacements.

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

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

7. Government Agency Links -Government Agency Links

Details:

1. Regulatory Agenda Includes Stripping Employment Eligibility From H-4 Spouses of H-1B Visa Holders, Other Actions

The Trump administration recently announced its spring 2019 regulatory agenda.

On the list for the Department of Homeland Security are proposals (not final yet), among others, to:

  • Revise the definition of “specialty occupation” to “increase focus on obtaining the best and the brightest” foreign nationals via the H-1B program, revise the definition of “employment” and “employer-employee relationship” to “better protect U.S. workers and wages,” and add requirements to “ensure employers pay appropriate wages to H-1B visa holders”
  • Increase monitoring and oversight of the EB-5 program and encourage investment in rural areas, including soliciting feedback on proposals for redefining components of the job creation requirement and defining conditions for regional center designations and operations
  • Remove employment eligibility for H-4 spouses of H-1B workers
  • Withdraw a regulatory provision stating that U.S. Citizenship and Immigration Services must grant or deny an asylum applicant’s application for employment authorization within 30 days
  • “Promote greater accountability in the application process for requesting employment authorization and…deter the fraudulent filing of asylum applications for the purpose of obtaining Employment Authorization Documents”
  • Raise fees for the Student and Exchange Visitor Program

Details: Announcement; ;

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2. USCIS Accelerates Transition to Digital Immigration Processing, Announces I-539 Online Filing

On May 22, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a new strategy, eProcessing, to accelerate USCIS’s transition to a “digital business model.” USCIS said eProcessing “will be a complete digital experience, from applying for a benefit, to communicating with USCIS, through receiving a decision on a case.”

  • As a first step, certain visitors for business, visitors for pleasure, and vocational students can now file Form I-539, Application to Extend/Change Nonimmigrant Status, online. Additional visa classifications are coming soon, USCIS said.
  • Included are single applicants (without co-applicants or legal/accredited representation) wishing to extend their stay who hold status as B-1 temporary visitors for business, B-2 temporary visitors for pleasure, F-1 academic students with a specific status expiration date, F-2 spouses or children of academic students with a specific expiration date, M-1 vocational students, and M-2 spouses or children of M-1 students.

Details: USCIS announcement re eProcessing; online I-539 filing; USCIS announcement re I-539 online filing

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3. Texas Service Center to Begin Accepting Certain H-1B Petitions

As of May 20, 2019, the Texas Service Center has begun processing certain H-1B cap-exempt petitions requesting a change in employer or previously approved employment, concurrent employment, change of status to H-1B, and others.

USCIS said that this does not include H-1B petitions for cap-exempt entities. The Texas Service Center will share this workload with the California Service Center, Vermont Service Center, and Nebraska Service Center. Starting July 19, 2019, USCIS may reject any of these petitions that are filed at the wrong service center.

Details: USCIS announcement; direct filing address for the I-29

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4. USCIS Director Cissna Out Effective June 1

On May 26, 2019, L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS) since October 2017, submitted his resignation “at the request of the President,” effective June 1, 2019. In an email, Mr. Cissna thanked USCIS staff and said, “As an immigration law and policy professional dedicated to the rule of law like so many of you, I appreciate that this opportunity to serve was a unique experience.”

The move follows the ouster of other Department of Homeland Security (DHS) officials last month, including DHS Secretary Kirstjen Nielsen and Secret Service Director Randolph “Tex” Alles. A replacement for Mr. Cissna has not yet been announced. According to reports, Ken Cuccinelli, former Virginia Attorney General, is at the top of the list, and the move is part of a White House effort to go in a “tougher direction.”

Details: News reports, https://wapo.st/2VUj5Vv; https://www.cnn.com/2019/05/24/politics/l-francis-cissna-citizenship-and-immigration-services/index.html; https://www.vox.com/2019/4/10/18302221/trump-immigration-miller-asylum-dhs-fire-separate

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5. New Publications and Items of Interest

The Migration Policy Institute released several new publications in May 2019:

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

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6. ABIL Member / Firm News

Laura Devine Solicitors won several awards recently:

  • Immigration Law Firm of the Year award by Citywealth Magic Circle Awards. Details
  • Corporate Immigration Lawyer of the Year (Laura Devine) by Who’s Who Legal. Details
  • Commendation for immigration by The Times Best Law Firms

Klasko Immigration Law Partners, LLP, announced that a in its blog series, “Strategies for Success Series: Analyzing AAO Decisions,” is available now. The first blog in the series was ”
O-1 Success“; the third will be “To Extraordinary and Beyond,” available soon.

Cyrus Mehta and Rebekah Kim co-authored a new blog entry, “Questions Arising From Foreign Entity Changes After an L-1 Petition is Approved.”

Rodrigu Tannus has authored several new articles in Diario la Republica:

Stephen Yale-Loehr co-authored a new policy brief, “Noncitizens in the U.S. Military: Navigating National Security Concerns and Recruitment Needs,” published by the Migration Policy Institute (MPI). The report notes, among other things, that close to 8,000 noncitizens were in the active-duty U.S. Army in 2015, representing 1.6 percent of its enlisted force. The number of foreign-born service members is much higher, as it includes many who have gained U.S. citizenship since enlisting. Amid new Defense Department background check rules, thousands of noncitizens have been kept from going to basic training and beginning their military service. The report; An MPI announcement about the report; An MPI article on immigrant veterans in the United States

Mr. Yale-Loehr was quoted by Law360.com in “Trump Proposal Threatens Safeguards for Migrant Kids.” He noted that altering the decades-old Flores settlement agreement is one prong of Trump’s immigration reform proposal that he need not rely on Congress to achieve, and that it could be implemented if the proposed regulation is finalized: “Depending on the language, the final rule could attempt to implement President Trump’s efforts to deport immigrant children more quickly. The final rule will surely be challenged in court, however.” The article is available by registering here.

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7. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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ABIL Immigration Insider • May 19, 2019

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Headlines:

 

  1. Trump Proposes Merit-Based Immigration Plan –

President Donald Trump proposed an immigration plan on May 16, 2019, that shifts the emphasis to a merit-based system to admit highly educated, high-skilled immigrants.

  1. USCIS Completes Data Entry for FY 2020 H-1B Cap-Subject (Lottery) Petitions –

USCIS announced that it has completed data entry for all FY 2020 H-1B lottery petitions selected, including those under the U.S. advanced degree exemption.

  1. Lawsuit Accuses USCIS of ‘Attack’ on IT Consulting –

The lawsuit notes that USCIS recently increased the processing times and percentage of requests for evidence sent on H-1B lottery petitions, and points to a disparity in adjudications and processing times for direct employers versus IT consulting firms.

  1. New Publications and Items of Interest –

New Publications and Items of Interest

  1. ABIL Member / Firm News –

ABIL Member / Firm News

  1. Government Agency Links –

Government Agency Links

 

 

Details:

Trump Proposes Merit-Based Immigration Plan

 

President Donald Trump proposed an immigration plan on May 16, 2019, that shifts the emphasis to a merit-based system to admit highly educated, high-skilled immigrants.

In a speech announcing the proposal on May 16, 2019, President Trump said the biggest change would be to “increase the proportion of highly skilled immigration from 12 percent to 57 percent,” and possibly higher. Immediate family of new U.S. citizens, defined as spouses and children, would go “right to the front of the line.”

President Trump also said the plan makes no change to the number of green cards allocated each year, but will “establish simple, universal criteria for admission to the United States,” to be accomplished by an “easy-to-navigate points-based selection system.” A would-be immigrant “will get more points for being a younger worker, meaning you will contribute more to our social safety net. You will get more points for having a valuable skill, an offer of employment, an advanced education, or a plan to create jobs,” he said.

Reaction to the proposed plan was mixed, according to reports. House Speaker Nancy Pelosi (D-CA) quickly proclaimed the plan “dead on arrival.” Sen. Chuck Schumer (D-NY), minority leader in the Senate, said the White House plan was “a political document that is anti-immigration reform.” Sen. Mitch McConnell (R-KY), majority leader, said he “look[s] forward to reviewing the President’s proposal.”

Details: Video and transcript

 

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USCIS Completes Data Entry for FY 2020 H-1B Cap-Subject (Lottery) Petitions

 

U.S. Citizenship and Immigration Services (USCIS) announced that it has completed data entry for all fiscal year 2020 H-1B lottery petitions, including those under the U.S. advanced degree exemption.

The agency will begin returning all unselected H-1B lottery petitions and will announce when notifications are completed. USCIS did not provide a specific timeframe but said, “We ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition that we have returned.”

Details: USCIS announcement

 

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Lawsuit Accuses USCIS of ‘Attack’ on IT Consulting

 

A new lawsuit, ITServe Alliance v. USCIS, argues that U.S. Citizenship and Immigration Services (USCIS) is “trying to end the information technology consulting…business model.” Among other things, plaintiffs note that until recently, USCIS adjudicated initial H-1B (lottery) petitions in a relatively timely manner to allow for approvals on the requested start date of October 1. But in 2018 and 2019, the time the agency took to adjudicate an H-1B lottery petition grew to 9.5 to 12.5 months, despite the fact that Congress expected the agency to conclude H-1B adjudications within 30 days.

The lawsuit asks whether USCIS is relying on factors Congress had not intended the agency to consider when adjudicating H-1B visas filed by the IT consulting industry, and asserts that the dramatic increase in processing times “is the direct result of [USCIS’s]…attack on the IT Consulting community” through the agency’s informal adjudications and policy memos.

The lawsuit also notes that USCIS recently increased the processing times and percentage of requests for evidence sent on initial petitions, and points to a disparity in adjudications and processing times for direct employers versus IT consulting firms.

Details: Lawsuit

 

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New Publications and Items of Interest

 

CBP Officer’s Reference Tool documents. In response to a Freedom of Information Act request, portions of the U.S. Customs and Border Protection’s Officer’s Reference Tool (replacing the CBP Inspector’s Field Manual) have been released and are being posted on a rolling basis by the American Immigration Lawyers Association.

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

 

Back to Top

ABIL Member / Firm News

 

Klasko Immigration Law Partners, LLP, announced a blog series, “Strategies for Success Series: Analyzing AAO Decisions.” The first blog, available now, is “”; the second is “Sink OR Swim,” available May 22, 2019; and the third is “To Extraordinary and Beyond,” available May 29, 2019.

Angelo Paparelli has authored a new blog entry, “.”

Stephen Yale-Loehr was quoted in various publications regarding President Trump’s legal immigration reform plan:

 

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Government Agency Links

 

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

 

 

ABIL Immigration Insider • May 12, 2019

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Headlines:

1. USCIS Clarifies Period of Authorized Stay for P-1S Essential Support Personnel of Individual Athletes -USCIS emphasizes that the periods of initial authorized stay are different for individual athletes (P-1A visa) and their essential support personnel (P-1S visa).

2. DHS Increases H-2B Cap for FY 2019 by 30,000 Additional Visas -The purpose of the rule is to aid U.S. businesses that are likely to suffer irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petitions before the end of FY 2019.

3. DHS Continues Documentation Validity for Beneficiaries of Nepal, Honduras TPS -DHS will not implement or enforce the decision to terminate temporary protected status for Honduras or Nepal pending resolution of an appeal, and will extend associated EADs.

4. USCIS Names Mark Koumans as New Deputy Director -Mr. Koumans, a career federal employee, has served since September 2015 in a number of executive positions at CBP.

5. President Trump Nominates Mark Morgan To Lead ICE -Mr. Morgan previously was chief of the U.S. Border Patrol in the last months of the Obama administration and a former agent of the Federal Bureau of Investigation.

6. OFLC Approves CW-1 Program Survey From CNMI Governor -OFLC approved the governor’s survey and started issuing CW-1 prevailing wage determinations using the survey wages for occupations covered by the governor’s survey.

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

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

9. Government Agency Links -Government Agency Links

 

Details:

 

1. USCIS Clarifies Period of Authorized Stay for P-1S Essential Support Personnel of Individual Athletes

 

U.S. Citizenship and Immigration Services (USCIS) has updated its Adjudicators Field Manual to emphasize that, under current regulations, the periods of initial authorized stay are different for individual athletes (P-1A visa) and their essential support personnel (P-1S visa).

The P-1S classification is for “Essential Support Personnel” who are an integral part of the performance of a P-1 individual athlete, and who perform support services that cannot be readily performed by a U.S. worker.

  • Under existing DHS regulations, P-1A individual athletes have an initial period of authorized stay of up to 5 years, while their P-1S essential support personnel have an initial authorized stay limited to the period of time necessary to complete the sporting event, but not to exceed 1 year.
  • USCIS also may authorize visa extension petitions for P-1S essential support personnel for a period necessary to complete the event, not to exceed 5 years, for a total period of stay not to exceed 10 years.

Details: USCIS announcement; USCIS policy alert; P-1A Internationally Recognized Athlete page

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2. DHS Increases H-2B Cap for FY 2019 by 30,000 Additional Visas

 

A temporary rule jointly issued by the Departments of Homeland Security (DHS) and Labor (DOL), effective May 8, 2019, increases the H-2B cap for fiscal year (FY) 2019 by 30,000. The H-2B visa permits a foreign worker to fill temporary nonagricultural jobs in the United States. The purpose of the rule is to aid U.S. businesses that are likely to suffer irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petitions before the end of FY 2019.

Among other terms and conditions, the temporary rule requires:

  • For this one-time increase, any H-2B workers falling under this cap increase are limited to returning workers who were “issued an H-2B visa or otherwise granted H-2B status in FY 2016, 2017, or 2018.”
  • If an employer submits a request to DHS for an H-2B visa more than 45 days after the start date of work listed on the temporary labor certification, the employer would be required to conduct a “fresh round of recruitment” for U.S. workers.

Details: DHS/DOL rule; USCIS announcement with links to forms

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3. DHS Continues Documentation Validity for Beneficiaries of Nepal, Honduras TPS

 

The Department of Homeland Security (DHS) announced that it will not implement or enforce the decision to terminate temporary protected status (TPS) for Honduras or Nepal pending resolution of an appeal in Ramos v. Nielsen or other order of the court, and as required by the order in Bhattarai v. Nielsen.

Beneficiaries under these TPS designations will retain their TPS for a temporary period, provided they remain eligible otherwise.

  • Beneficiaries under these TPS designations will retain their TPS for a temporary period, provided they remain eligible otherwise.
  • DHS further announced that it is automatically extending through March 24, 2020, the validity of related employment authorization documents (EADs) and other related documentation for eligible beneficiaries under the TPS designation for Nepal.
  • The TPS designation for Honduras remains in effect through January 5, 2020.

Details: USCIS announcement;

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4. USCIS Names Mark Koumans as New Deputy Director

 

U.S. Citizenship and Immigration Services (USCIS) announced on May 10, 2019, that Mark Koumans is the agency’s new Deputy Director, effective May 13.

Mr. Koumans, a career federal employee, has served since September 2015 in a number of executive positions at U.S. Customs and Border Protection (CBP). He replaces Tracy Renaud, who has served as USCIS Acting Deputy Director since March 2018. Renaud will return to her previous position as the Associate Director of the Management Directorate. Mr. Koumans previously served for eight years as a Deputy Assistant Secretary in the Department of Homeland Security Office of Policy. Before that, he was a member of the U.S. Foreign Service for 17 years.

Details: USCIS announcement

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5. President Trump Nominates Mark Morgan To Lead ICE

 

In a tweet, President Donald Trump named Mark Morgan to head U.S. Immigration and Customs Enforcement (ICE): “I am pleased to inform all of those that believe in a strong, fair and sound Immigration Policy that Mark Morgan will be joining the Trump Administration as the head of our hard working men and women of ICE. Mark is a true believer and American Patriot. He will do a great job!” Mr. Morgan’s appointment must be confirmed by the Senate.

Mr. Morgan previously was chief of the U.S. Border Patrol in the last months of the Obama administration and a former agent of the Federal Bureau of Investigation. He has publicly stated that he backs President Trump’s border wall, among other policies.

Details: Trump tweet announcing Mr. Morgan’s nomination; news articles on Mr. Morgan’s opinions, Washington Post; Epoch Times

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6. OFLC Approves CW-1 Program Survey From CNMI Governor

 

The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently received and approved a CW-1 wage survey from the governor of the Commonwealth of the Northern Mariana Islands (CNMI) covering 84 occupations. OFLC approved the governor’s survey and started issuing CW-1 prevailing wage determinations on May 9, 2019, using the survey wages for occupations covered by the governor’s survey.

Details: OFLC announcement (May 9, 2019); CW-1 program page

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7. New Publications and Items of Interest

 

CBP Officer’s Reference Tool documents. In response to a Freedom of Information Act request, portions of the U.S. Customs and Border Protection’s Officer’s Reference Tool (replacing the CBP Inspector’s Field Manual) have been released and are being posted on a rolling basis by the American Immigration Lawyers Association.

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

Back to Top

 

8. ABIL Member / Firm News

 

Dagmar Butte was quoted by Wired in “Visa Rejections for Tech Workers Spike Under Trump.” Ms. Butte said she began noticing a spike in denials shortly after President Trump took office. In 2017, she said, she filed numerous applications on behalf of one IT client, only to have them all rejected, a first in her nearly three-decade career. “I thought: Did I suddenly get stupid?”, she said. In her experience, the article notes, the H-1B visa holders who have been hardest hit are systems analysts and quality assurance analysts employed through outsourcing firms. These applicants are increasingly being told that their jobs are not considered specialized, although those determinations appear to be applied unevenly, she noted. In one instance, she filed 16 applications for systems analysts; all had the same expertise and educational attainment but two were denied. Ms. Butte noted that it would have been dangerous to challenge the denials on the basis that other similarly skilled applicants were approved. “If I were to point that out, they would not approve the two denied cases; they would just reopen and deny the 14 approved cases,” she noted, adding that this has happened to some of her firm’s clients. “When the denials come, it’s devastating. They leave everything behind.” The article

Ronald Klasko, of Klasko Immigration Law Partners, LLP, has authored a new blog entry on the immigration law ramifications of unlawful presence litigation. A positive development in unlawful presence litigation occurred this week when Judge Loretta C. Biggs rejected the government’s Motion to Dismiss. Her decision also enjoins the implementation of USCIS’s unlawful presence policy issued on August 9, 2018, nationwide because of the “likelihood of success” of the plaintiffs’ challenges. Mr. Klasko, co-counsel and an immigration subject matter expert on this litigation, provides background on the issue, the ramifications of this decision, and what it means for affected institutions and foreign nationals. Additionally, he examines the nationwide impact of this decision and what that means for a litigation strategy on other issues of significant importance

Cyrus Mehta has authored a new blog entry, “”

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “”

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9. Government Agency Links

 

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

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ABIL Immigration Insider • May 05, 2019

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Headlines:

1. SSA Resumes Issuing No-Match Letters -The Social Security Administration has resumed mailing notifications to employers identified as having at least one name and Social Security Number combination submitted on the wage and tax statement (Form W-2) that do not match SSA’s records. A no-match letter is not necessarily an indication that a person is unauthorized to work in the United States.

2. USCIS and CBP Extend I-129 Pilot Program to Canadian L-1 Nonimmigrants -The pilot program allows Canadian citizens to request that USCIS adjudicate their employer’s individual L-1 petition, or petition based on blanket L petition, before their arrival or when they arrive at the Blaine, Washington, port of entry.

3. Enforcement of Unlawful Presence Memo Targeting International Students Temporarily Blocked by Federal Judge -A federal judge issued a nationwide order requiring USCIS to temporarily suspend the enforcement of a policy under which F-1/M-1 students and J-1 exchange visitors would begin to accrue unlawful presence as soon as they violate the terms of their visa status.

4. USCIS Expands Fee Payment Changes to Additional Field Offices -The offices no longer accept payments in the form of a cashier’s check or money order.

5. ABIL Global: Corporate Immigration for U.S. Citizens to Colombia -Colombia has been facilitating migration processes in recent years to encourage individuals from different countries to do business and make investments in Colombia. With the increase of foreigners, Colombia’s Ministry of Foreign Affairs has created immigration statuses to allow them to stay and/or engage in various types of activities.

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

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

8. Government Agency Links -Government Agency Links

 

Details:

 

1. SSA Resumes Issuing No-Match Letters

 

In March 2019, the Social Security Administration (SSA) resumed mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on the wage and tax statement (Form W-2) that do not match SSA’s records. The purpose of the letter is to advise employers that corrections are needed.

A no-match letter is not necessarily an indication that a person is unauthorized to work in the United States. SSA noted that there are a number of reasons why reported names and SSNs may not agree with SSA’s records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.

Details: SSA information for employers; sample response forms

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2. USCIS and CBP Extend I-129 Pilot Program to Canadian L-1 Nonimmigrants

 

U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) announced that they are extending the joint agency pilot program for Canadian citizens seeking L-1 visa status under the North American Free Trade Agreement (NAFTA) through April 30, 2020.

The pilot program allows Canadian citizens to request that USCIS adjudicate their employer’s individual L-1 petition, or petition based on blanket L petition, before their arrival or when they arrive at the Blaine, Washington, port of entry.

Details: USCIS announcement

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3. Enforcement of Unlawful Presence Memo Targeting International Students Temporarily Blocked by Federal Judge

 

On May 3, 2019, a federal judge issued a nationwide order requiring USCIS to temporarily suspend the enforcement of a policy under which F-1/M-1 students and J-1 exchange visitors would begin to accrue unlawful presence as soon as they violate the terms of their visa status.

Students who violate their visa status (and therefore are unlawfully present in the United States) for a certain period of time may trigger a 3- or 10-year entry bar when they leave the country.

For now, this order is encouraging news for affected students because they can rely on the prior USCIS policy of their accruing unlawful presence only after the agency or an immigration judge makes such a finding.

This order stems from a lawsuit brought by a number of universities/colleges, challenging that USCIS’ policy memo is unlawful because, among other reasons, the agency did not go through the proper rulemaking process.

Details: Preliminary injunction issued by Federal District Court;

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4. USCIS Expands Fee Payment Changes to Additional Field Offices

 

In recent months, U.S. Citizenship and Immigration Services (USCIS) has announced an expansion of fee payment changes to additional field offices. Those offices now only accept payments in the form of a personal check, attorney check, business check, debit card, credit card, or reloadable prepaid credit or debit card. The offices no longer accept payments in the form of a cashier’s check or money order. USCIS said the changes are intended to “increase transaction security and reduce processing errors.”

Details: USCIS notices listing the affected field offices: https://www.uscis.gov/forms/uscis-updates-fee-payment-system-used-field-offices, https://www.uscis.gov/news/news-releases/uscis-updates-fee-payment-system-used-field-offices, https://www.uscis.gov/news/alerts/fee-payment-changes-two-uscis-los-angeles-field-offices

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5. ABIL Global: Corporate Immigration for U.S. Citizens to Colombia

 

Colombia has been facilitating migration processes in recent years to encourage individuals from different countries to do business and make investments in Colombia. With the increase of foreigners, Colombia’s Ministry of Foreign Affairs has created immigration statuses to allow them to stay and/or engage in various types of activities.

U.S. nationals may enter Colombia with an entry and stay permit (PIP), which is granted for 90 days and may be extended for another 90 days. This permit is obtained upon entering Colombia and is granted to those foreign individuals who wish to attend conferences or meetings, assist in trainings, participate in job interviews, or provide urgent technical assistance.

When the activities to be performed in Colombia take longer than 180 days or require specific conditions such as concluding a local contract, U.S. nationals may request a visa, which will authorize the person to enter and remain for up to 2 or 3 years in the national territory depending on the type of visa. When a visa is required for a stay of more than 180 days and the activities to be performed are business-related, the foreign national can opt for a business visitor visa. If the foreign national will be working in Colombia, a local contract likely will be required to obtain a migrant work visa. A foreign individual interested in obtaining an investment visa must make a foreign direct investment of 100 to 600 times the Colombian monthly legal minimum wage, which means approximately $26,000 to $174,000 USD.

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6. New Publications and Items of Interest

 

IMAGE forum and training. U.S. Immigration and Customs Enforcement has announced the 2019 IMAGE Forum and Training, a day of free training on the IMAGE (ICE Mutual Agreement between Government and Employers) program, Form I-9, how to establish an immigration compliance program, proper hiring procedures, detecting fraudulent documents, the use of E-Verify, and antidiscrimination procedures. The training will be held on May 1, 2019, in Orlando, Florida. More information or to register

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

Back to Top

 

7. ABIL Member / Firm News

 

In Chambers USA 2019, a guide to leading lawyers in the United States:

  • 25 ABIL lawyers were ranked in the top bands
  • ABIL lawyers represent half of the top-ranked (“Band 1”) attorneys in immigration

This means that an ABIL lawyer is over 15 times more likely to be ranked in the top band than the average immigration attorney.

More information

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8. Government Agency Links

 

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

Back to Top

ABIL Immigration Insider • April 28, 2019

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Headlines:

1. E-2 Investor Visa Program Opens to Israelis May 1 -Effective May 1, 2019, the E-2 investor visa program will open to Israelis under a reciprocal treaty investor agreement signed between the United States and Israel.

2. USCIS Responds to Congressional Letter Asking for Info on Backlog Causes -The letter asked the agency to explain the reasons for backlogged cases and how certain policies such as “extreme vetting” affect processing times and contribute to the backlog.

3. President Issues Memo on Combating Nonimmigrant Overstay Rates -Among other things, the memo states that the Secretary of State will engage with the governments of countries with a total overstay rate greater than 10 percent in the combined B-1 and B-2 nonimmigrant visa category, with a goal of identifying conditions contributing to those overstay rates and methods to address those conditions.

4. USCIS Ending Forms Request Line June 1 -Starting June 1, 2019, U.S. Citizenship and Immigration Services is ending the Forms Request Line service that allows people to order forms by phone.

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

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

7. Government Agency Links -Government Agency Links

Details:

1. E-2 Investor Visa Program Opens to Israelis May 1

Effective May 1, 2019, the E-2 investor visa program will open to Israelis under a reciprocal treaty investor agreement signed between the United States and Israel.

Certain Israeli nationals who are lawfully present in the United States will be able to request a change of status to the E-2 treaty investor classification. Also, the U.S. Embassy in Israel notes that Israeli companies seeking E visas for their owners or employees must apply at the Branch Office in Tel Aviv and establish that the trading enterprise or investment meets the requirements. For both first-time applicants and renewals, the company must submit supporting documents, including the individual application for the employee, by mail.

Details: USCIS announcement; information from U.S. Embassy in Israel; related news article

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2. USCIS Responds to Congressional Letter Asking for Info on Backlog Causes

U.S. Citizenship and Immigration Services (USCIS) responded on April 5, 2019, to a letter sent from 86 members of the U.S. House of Representatives to USCIS Director Francis Cissna. The letter asked the agency to explain the reasons for backlogged cases and how certain policies such as “extreme vetting” affect processing times and contribute to the backlog.

Regarding some of the reasons for the current backlog, USCIS noted:

  • USCIS did not anticipate that filings would remain steady in FY 2017 following the implementation of the new fees in December 2016 and the presidential election in November 2016. For example, after the presidential election, naturalization filings did not decrease. The increase in filings therefore outpaced the agency’s capacity to complete processing applications within the time goals.
  • Additional interview requirements resulting from new programs/policies led to increased workloads, security checks, and overall processing times.
  • It appears that increased processing times may have been the result of USCIS changing its “focus for employee evaluations to the quality of their work product and away from numerical case production metrics.”
  • USCIS experienced hiring constraints due to budget concerns. There was also a lag in productivity concerning newly recruited officers as they needed time to ramp up on training.

USCIS’ historical data confirms that the agency’s new in-person interview requirement has contributed to the backlog for I-485 employment-based green card cases.

The congressional letter also asked for any analyses conducted by USCIS on its reversal of longstanding guidance concerning deference toward prior determinations for employment visa petitions. USCIS responded that it lacked data to perform such analyses.

Details: , (click “Open”).

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3. President Issues Memo on Combating Nonimmigrant Overstay Rates

On April 22, 2019, President Donald Trump issued a memorandum on “Combating High Nonimmigrant Overstay Rates.” Many of the measures mentioned in the memo are not law yet.

Among other things, the memo states:

  • Visa overstay rates are “unacceptably high for nationals of certain countries.”
  • The Secretary of State will “engage with the governments of countries with a total overstay rate greater than 10 percent in the combined B-1 and B-2…visa category,” with a goal of identifying conditions that contribute to “those overstay rates and methods to address those conditions.”
  • Recommended measures to combat visa overstay include:
    • “Suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas;”
    • Imposing “targeted suspension of visa issuance for certain nationals; limits to duration of admission;” and
    • Enforcing “additional documentary requirements.”
  • Measures may be developed for imposing “admission bonds” to improve compliance with the terms/conditions of visas.

Details: Presidential memo

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4. USCIS Ending Forms Request Line June 1

Starting June 1, 2019, U.S. Citizenship and Immigration Services is ending the Forms Request Line service that allows people to order forms by phone. The agency is encouraging applicants to download and print forms for free from the USCIS website.

Mailed forms can still be requested by calling the USCIS Contact Center or through the agency’s “Forms by Mail” online request tool.

Details: USCIS announcement; Forms by Mail; forms site; USCIS Contact Center

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5. New Publications and Items of Interest

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

Back to Top

6. ABIL Member / Firm News

Several members of the Alliance of Business Immigration Lawyers (ABIL) have authored articles for the inaugural AILA Law Journal, a publication of the American Immigration Lawyers Association:

Kehrela Hodkinson, “Renunciation of U.S. Citizenship: Why Would a Client ‘Give It All Up?’ ”

Cyrus Mehta, “The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference”

Angelo Paparelli, “USCIS’s Fraud Detection and National Security Directorate: Less Legitimate Than Inspector Clouseau, But Without the Savoir Faire“All three of the ABIL members listed above are also on the publication’s Board of Editors, along with William Stock, of Klasko Immigration Law Partners, LLP. The publication is available here.

Mr. Mehta has authored a blog entry, “”.

Sophia Genovese, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “”.

Stephen Yale-Loehr was quoted by the Associated Press in “,” which was published in many outlets. “DHS may claim that they can get around this bar [against taking biometric data from children] by getting parental permission, but that interpretation is subject to court challenge. To do this legally, DHS needs to go through the rulemaking process to change the regulation.”

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7. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

Back to Top

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 4D • April 21, 2019

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Headlines:

1. Visa Bulletin Shows Slight Forward Progress in Some Backlogged Preference Categories -Regarding EB-1 for China and India, the bulletin notes a continued “extremely high rate of demand” that may require temporary retrogression until October.

2. New USCIS Policy Guidance Clarifies Marijuana-Related Activities Bar on Naturalization -Certain marijuana-related activities generally bar naturalization even if they are decriminalized under applicable state laws.

3. State Dept. to Issue Final Rule on “Discontinuing” Granting Visas When Country is Sanctioned -The Department will publish a final rule, effective April 22, 2019, modifying current regulations to reflect that consular offices are to discontinue granting visas to individuals from certain sanctioned countries.

4. Acting Secretary of Homeland Security Announces New Office for Targeted Violence and Terrorism Prevention, New CBP Commissioner -Kevin McAleenan has replaced Kirstjen Nielsen, who was forced to resign recently.

5. Attorney General’s Decision Opens Door to Indefinite Detention of Asylum Seekers -A person who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond.

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

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

8. Government Agency Links -Government Agency Links

Details:

1. Visa Bulletin Shows Slight Forward Progress in Some Backlogged Preference Categories

The Department of State’s Visa Bulletin for May 2019 shows slight forward progress for EB-1 for all chargeability areas except China and India, EB-2 for China and India, EB-3 and Other Workers China, India, and the Philippines, and EB-5 China and Vietnam. The remainder of the priority dates remain current with per-country quotas not reached.

Regarding EB-1 for China and India, the bulletin notes a continued “extremely high rate of demand” that may require temporary retrogression until October.

U.S. Citizenship and Immigration Services (USCIS) has announced that the agency will follow the “Final Action Dates” chart for the month for accepting I-485 Adjustment of Status applications.

Details: ;

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2. New USCIS Policy Guidance Clarifies Marijuana-Related Activities Bar on Naturalization

U.S. Citizenship and Immigration Services (USCIS) recently issued policy guidance to clarify that certain marijuana-related activities generally bar naturalization even if they are decriminalized under applicable state laws. Such an applicant may be deemed to lack good moral character if found to have violated federal law, the guidance states.

Federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences. Some practitioners are advising clients not to work for or invest in marijuana-related companies. Reportedly, U.S. Customs and Border Protection is also checking social media accounts.

Details: Announcement; policy manual update; video warning immigrants co-produced by Servicios De La Raza and the Marijuana Industry Group

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3. State Dept. to Issue Final Rule on “Discontinuing” Granting Visas When Country is Sanctioned

The Department of State will publish a final rule, effective April 22, 2019, modifying current regulations to reflect that consular officers are to discontinue granting visas to individuals from certain sanctioned countries.

Under the current regulation, consular officers either grant or deny every visa application. The final rule creates a third and different action, requiring consular officers to discontinue granting visas when a country has been sanctioned for “denying or delaying accepting one or more of its nationals subject to a final order of removal from the United States.”

Details: Final rule

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4. Acting Secretary of Homeland Security Announces New Office for Targeted Violence and Terrorism Prevention, New CBP Commissioner

Kevin McAleenan, formerly head of U.S. Customs and Border Protection (CBP) and the new Acting Homeland Security Secretary, has replaced Kirstjen Nielsen, who was forced to resign recently amid President Trump’s declarations that he wanted a “tougher direction” for immigration. One of his first acts was announcing the establishment of a new Office for Targeted Violence and Terrorism Prevention within the Department of Homeland Security (DHS) on April 19, 2019. Acting Secretary McAleenan also designated John P. Sanders, CBP Chief Operating Officer, as the senior official performing the functions and duties of the CBP Commissioner.

Details: Statement from Secretary McAleenan; announcement of new office; announcement of Mr. Sanders as head of CBP; notes on Secretary McAleenan’s recent trip to the U.S.-Mexico border; McAleenan bio

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5. Attorney General’s Decision Opens Door to Indefinite Detention of Asylum Seekers

A new decision by Attorney General William Barr holds that a person who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such a person “must be detained until his removal proceedings conclude, unless he is granted parole,” the decision states.

Details: Matter of M-S-

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6. New Publications and Items of Interest

IMAGE forum and training. U.S. Immigration and Customs Enforcement has announced the 2019 IMAGE Forum and Training, a day of free training on the IMAGE (ICE Mutual Agreement between Government and Employers) program, Form I-9, how to establish an immigration compliance program, proper hiring procedures, detecting fraudulent documents, the use of E-Verify, and antidiscrimination procedures. The training will be held on May 1, 2019, in Orlando, Florida. More information or to register

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. More information or to register

Alliance of Business Immigration Lawyers:

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

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

Advisories and tips:

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

Back to Top

7. ABIL Member / Firm News

Dagmar Butte was quoted by Recode in “New Immigration Rules Could Prevent Our Next Elon Musk.” The article notes that although Silicon Valley is focused more on experience and entrepreneurship than on advanced degrees, USCIS is actively increasing the percentage of master’s degree candidates selected for the H-1B program. Ms. Butte noted that “[t]ech companies spend a lot of time looking at skill sets which may or may not be tied to a degree. Usually they are experiential as opposed to being part of an advanced degree.”

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

Back to Top

8. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

Back to Top

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 4C • April 14, 2019

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Headlines:

1. DHS Secretary Forced Out; Others May Leave in Trump Purge -Secretary of Homeland Security Kirstjen Nielsen has been forced to resign, according to reports. Officials told media organizations that other departures may follow.

2. USCIS Completes H-1B Cap Random Selection Process for FY 2020, Reaches Advanced Degree Exemption Cap -On April 10, 2019, USCIS used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated regular cap and the U.S. advanced degree exemption for FY 2020.

3. Some POEs Refusing Canadian L-1 Renewal/Extension Petitions Under NAFTA -Various U.S. POEs and preclearance locations have begun to refuse to process L-1 renewal and extension petitions from Canadians pursuant to NAFTA.

4. DHS Increases Greece’s ESTA Validity Period to Two Years -DHS determined that Greece has satisfied the requirements for normalizing Greece’s ESTA validity period to two years again, following a reduction to one year in 2016.

Details:

1. DHS Secretary Forced Out; Others May Leave in Trump Purge

Secretary of Homeland Security Kirstjen Nielsen has been forced to resign, according to reports. Officials told media organizations that other departures may follow, including L. Francis Cissna, head of U.S. Citizenship and Immigration Services; Kathy Nuebel Kovarik, his deputy; and John Mitnick, USCIS general counsel and a member of Ms. Nielsen’s senior leadership team. The latter departures haven’t happened yet, however, and some reports suggest that they may not.

Meanwhile, President Trump withdrew Ron Vitiello’s nomination for director of U.S. Immigration and Customs Enforcement (ICE). President Trump said he wanted a “tougher direction,” echoing his immigration adviser Stephen Miller. Mr. Vitiello, who had been serving as acting director of ICE, subsequently announced that he was leaving the agency.

Details: Vox report; CNN video; NPR report; NBC News report

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2. USCIS Completes H-1B Cap Random Selection Process for FY 2020, Reaches Advanced Degree Exemption Cap

On April 10, 2019, USCIS used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2020.

USCIS received 201,011 H-1B petitions during the filing period, which began April 1, 2019, including petitions filed for the advanced degree exemption.

Details: USCIS announcement; Foster LLP blogs, one and two

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3. Some POEs Refusing Canadian L-1 Renewal/Extension Petitions Under NAFTA

According to reports, contrary to previous practice, various U.S. Customs and Border Protection (CBP) ports of entry (POEs) and preclearance locations have begun to refuse to process L-1 renewal and extension petitions from Canadians pursuant to the North American Free Trade Agreement. Anecdotally, the affected POEs include Toronto, Winnipeg, Vancouver, Calgary, Montreal, Pearson, Edmonton, Seattle, Pembina, Warroad, Pt. Roberts and Sumas.

Some practitioners have sent their Canadian L’s to consular posts instead to file their I-129S (Nonimmigrant Petition Based on Blanket L Petition).

Details: Fredrikson & Byron, P.A. (report prepared with the assistance of the Alliance of Business Immigration Lawyers)

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4. DHS Increases Greece’s ESTA Validity Period to Two Years

The Department of Homeland Security (DHS) has increased Greece’s Electronic System for Travel Authorization (ESTA) travel authorization validity period for travel by nationals of Greece under the Visa Waiver Program (VWP) to two years, following a reduction in 2016 from two years to one year due to identified shortcomings in meeting VWP requirements. In November 2018, DHS determined that Greece has satisfied the requirements for normalizing Greece’s ESTA validity period to two years again.

Details: Federal Register notice

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 4B • April 08, 2019

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Headlines:

1. USCIS Reaches FY 2020 H-1B Regular Cap -USCIS has received a sufficient number of petitions to reach the 65,000 H-1B visa regular cap for fiscal year 2020.

2. New Study Shows Companies Pay Billions in Job Training, Scholarships for U.S. Students Through H-1B Fees -The study by the National Foundation for American Policy also details how expensive it has become to petition for an H-1B professional.

3. USCIS Launches Data Hub on H-1B Employers -The data hub allows the public to search for H-1B petitioners by fiscal year, NAICS code, employer name, city, state, or zip code.

4. Justice Department Settles Immigration-Related Discrimination Claim Against Housing Authority in Texas -The Housing Authority improperly demanded that the worker present more documents than necessary and rejected the documentation he presented, then terminated him based on his lack of U.S. citizenship.

5. Brazil to Allow Visa-Exempt Travel for Australian, Canadian, Japanese, and U.S. Citizens -Effective June 17, 2019, nationals of Australia, Canada, Japan, and the United States will be able to travel to Brazil without a visa for stays of up to 90 days as a visitor.

6. USCIS Proposes to Revise Fee Waiver Requirements -USCIS is allowing an additional 30 days for public comments on a proposed revision that would no longer require proof of whether an individual receives a means-tested benefit.

7. USCIS Publishes Notices on Extension of Liberian DED ‘Wind-Down’ Period, EADs -USCIS has published related notices in the Federal Register.

8. USCIS Outlines Changes in InfoPass Appointment Process, Reducing In-Person Support -A goal is to limit in-person support to those who truly need assistance that can be provided only in person, the agency said.

9. Foreign Nationals Serving in U.S. Military Challenge Trump Administration -Several foreign-national soldiers have sued the government, challenging the lawfulness of Trump administration policies adversely affecting their naturalization based on military service.

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

11. ABIL Member / Firm News -ABIL Member / Firm News12. Government Agency Links -Government Agency Links

Details:

1. USCIS Reaches FY 2020 H-1B Regular Cap

U.S. Citizenship and Immigration Services (USCIS) has received a sufficient number of petitions projected as needed to reach the 65,000 H-1B visa regular cap for fiscal year 2020. USCIS said it will next determine if the agency has received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Details: USCIS news alert

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2. New Study Shows Companies Pay Billions in Job Training, Scholarships for U.S. Students Through H-1B Fees

New research shows H-1B fees paid by companies have funded approximately $5 billion since 1999 in training and scholarships for U.S. students and teachers to enter science fields and have funded nearly 90,000 college scholarships in tech fields for U.S. students, as well as about $2.5 billion in job training through the Department of Labor. The study by the National Foundation for American Policy also details how expensive it has become to petition for an
H-1B professional.Although critics have argued H-1B visa holders represent “cheap labor,” employers pay government-imposed fees and attorney costs of up to $16,560 for an initial H-1B petition and $28,620 for the combined cost of an initial H-1B petition and an extension.

Details: Study

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3. USCIS Launches Data Hub on H-1B Employers

U.S. Citizenship and Immigration Services (USCIS) has launched an H-1B Employer Data Hub to provide information on employers petitioning for H-1B workers. The data hub will allow the public to search for H-1B petitioners by fiscal year (back to FY 2009), NAICS code, employer name, city, state, or zip code.

The new hub gives the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program.

Details: USCIS news alert; H-1B Employer Data Hub; data broken down by fiscal year; summary and description

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4. Justice Department Settles Immigration-Related Discrimination Claim Against Housing Authority in Texas

The Department of Justice reached a settlement agreement with the Housing Authority of Victoria, Texas, resolving a complaint that the latter discriminated against a lawful permanent resident when it rejected his valid employment documents and fired him. The Housing Authority improperly demanded that the worker present more documents than necessary and rejected the documentation he presented, then terminated him based on his lack of U.S. citizenship.

“Employers should not reject valid employment documents because of a lawful permanent resident’s citizenship status,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division.

Details: Settlement agreement; DOJ media release

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5. Brazil to Allow Visa-Exempt Travel for Australian, Canadian, Japanese, and U.S. Citizens

Effective June 17, 2019, nationals of Australia, Canada, Japan, and the United States will be able to travel to Brazil without a visa for stays of up to 90 days as a visitor.

Such visitors to Brazil with valid passports may engage in certain business activities, transit through Brazil, vacation, and participate in artistic or sports activities, among other things. They can apply to extend their stay for an additional 90 days but may not stay in Brazil for longer than 180 days in any 12-month period.

Details: Statement from Consulate General of Brazil; related alert

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6. USCIS Proposes to Revise Fee Waiver Requirements

U.S. Citizenship and Immigration Services is allowing an additional 30 days for public comments on a proposed revision that would reduce the evidence required for a fee waiver to only a person’s household income and no longer require proof of whether an individual receives a means-tested benefit. The waiver requirements will retain the poverty-guideline threshold and financial hardship criteria.

Details: Federal Register notice

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7. USCIS Publishes Notices on Extension of Liberian DED ‘Wind-Down’ Period, EADs

Following announcements that Deferred Enforced Departure (DED) is extended for certain eligible Liberians through March 30, 2020, and that those Liberians’ employment authorization documents (EADs) are extended through September 27, 2019, with an option to obtain EADs for the remainder of the DED wind-down period, U.S. Citizenship and Immigration Services has published related notices in the Federal Register.

Details: Notice on continuation of employment authorization and automatic extension of existing EADs for eligible Liberians before DED ends; notice reproducing text of memorandum on the extension of DED for Liberians

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8. USCIS Outlines Changes in InfoPass Appointment Process, Reducing In-Person Support

U.S. Citizenship and Immigration Services (USCIS) recently explained changes in the way it provides support services to applicants under an initiative called the “Information Services Modernization Program” (InfoMod). A goal is to limit in-person support to those who truly need assistance that can be provided only in person, such as issuing emergency documents, providing ADIT stamps, and conducting in-person interviews, the agency said.

InfoMod will enable USCIS to shift applicant support services from self-scheduled InfoPass appointments toward support services provided online or through USCIS Contact Centers. The agency encouraged users to visit myUSCIS, an online public portal.

Details: USCIS teleconference summary

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9. Foreign Nationals Serving in U.S. Military Challenge Trump Administration

Service members who enlisted through the Military Accessions Vital to the National Interest (MAVNI) program and who have not yet become naturalized U.S. citizens may be affected by litigation in the United States District Court for the District of Columbia and elsewhere. Several MAVNI soldiers brought two lawsuits (Kirwa and Nio) against the Department of Defense, the Department of Homeland Security, U.S. Citizenship and Immigration Services, and certain government officials challenging the lawfulness of Trump administration policies affecting their naturalization based on military service.

The MAVNI program, authorized in 2008, brought individuals considered assets to the U.S. military, including those with needed medical and language skills, into the U.S. Armed Forces in exchange for expedited U.S. citizenship. The Trump administration froze the program in 2016, and in 2018, the U.S. Army began discharging MAVNI soldiers. Lawsuits have followed. The Army also reportedly accidentally leaked sensitive information on 4,200 immigrant recruits between 2017 and 2018, many from China and Russia, risking interception by their autocratic governments.

Separately, the Pentagon has ordered the armed services to send green card-holding troops to recruit training, following a preliminary injunction in California.

Details: Federal class action litigation updates; summary; Army Times article on data leaks; Stars and Stripes article on training resuming for green card holders

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10. New Publications and Items of Interest

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. For more information or to register, see https://www.justice.gov/crt/webinars.

E-Verify webinars. E-Verify recently made the following announcement: “E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service.” Information is available here. The March 2019 E-Verify webinar calendar is also available. For more on E-Verify, see https://www.e-verify.gov/.

Alliance of Business Immigration Lawyers:

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

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

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

Advisories and tips:

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

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11. ABIL Member / Firm News

Laura Devine Solicitors has won the UK LexisNexis 2019 Award for Wellbeing. The award recognizes the law firm or other legal organization that “has demonstrated the strongest commitment to providing or promoting a working environment that supports the mental and physical health of its staff, members or colleagues and enables them to maintain a healthy balance between their work pressures and home life.” Details

Stephen Yale-Loehr was quoted in several publications regarding President Trump’s threat to close the U.S. border with Mexico:

  • CNN: Mr. Yale-Loehr noted that the President would run into problems if he closed the entire border to green card holders and U.S. citizens: “They could argue that doing so violates their First Amendment rights to freedom of association and travel.”
  • Univision (Spanish): “Las amenazas de Trump en la frontera y el corte de la ayuda a los países centroamericanos (como castigo por no detener las oleadas de inmigrantes en busca de asilo) pueden ser ilegales y, desde luego, una tontería.”
  • Sinclair Broadcast Group, many newspapers: “Any effort to close the U.S.-Mexico border or cut off aid is doomed to failure. It is like stopping funding for cancer research on the theory that fewer cancers will occur. We need more foreign aid, not less, to attack the root conditions of poverty and violence in Central America so fewer people in those countries will flee to the United States.”
  • Law360: Mr. Yale-Loehr noted that the first version of President Trump’s travel ban raised similar concerns. If the President issued a narrower proclamation closing the border only for asylum-seekers, they could argue that this violates INA 208(a)(1), which provides that any migrant physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival, can apply for asylum. Available by registering or subscribing.
  • USA Today: “We’d be shooting ourselves in the foot by closing the border. It’s like stopping funding for cancer research on the theory that we’ll get fewer cancers.”
  • Business Insider: “The legal challenges to a border declaration will depend on what President Trump does. If President Trump closed the border to green card holders and U.S. citizens, they could argue that doing so violates their First Amendment rights to freedom of association and travel.”

Mr. Yale-Loehr was quoted by WENY regarding a failed EB-5 project in upstate New York.

Mr. Yale-Loehr was quoted by Bloomberg Law regarding a 10 percent immigration surcharge proposal in the Trump administration’s budget request to Congress. It “seems minimal,” he noted, but “would have a real detrimental impact on many people who can ill afford these increased filing fees.” He said the surcharge is likely “dead on arrival,” noting that even the Trump administration thinks “that such a change will only occur with congressional approval” and “the Democrats would never agree to this.” Further, he noted, “Some employers already are balking at the high filing fees for needed employees. Adding a 10 percent surcharge will make it even more financially onerous. We may see fewer H-1B petitions being filed as a result.” Available by registering or subscribing.

Mr. Yale-Loehr was quoted by Voice of San Diego in an article about a California county’s asylum policy lawsuit. Mr. Yale-Loehr agreed that the federal government’s failure to follow rulemaking procedures was the county lawsuit’s most potent argument. “I think it’s a good lawsuit and they raise serious allegations. We’ll just have to wait to see which judge they get.”

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12. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

News from the Alliance of Business Immigration Lawyers Vol. 15, No. 4A • April 01, 2019

/in /by

Headlines:

1. USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes -USCIS announced the start of the FY 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub, while reminding petitioners of its new H-1B cap selection process.

2. DOL Issues Bulletin on Compliance With H-1B Posting Requirements When Using Electronic Means -A new Field Assistance Bulletin reiterates an H-1B petitioner’s obligations when using electronic means to make the required notice to all affected employees.

3. April Visa Bulletin Notes Movement in Many Employment-Based Categories -The Department of State’s Visa Bulletin for April 2019 notes that Final Action Date movement in many employment-based preference categories continues to be greater than might ordinarily be expected. This is anticipated to continue for at least the next few months.

4. USCIS Updates Filing Addresses for Nonimmigrant Worker Petitions -USCIS has updated the addresses for filing Form I-129, Petition for a Nonimmigrant Worker.

5. DOL Updates H-2A, H-2B Allowable Charges and Reimbursements -DOL announced an annual update to: (1) the allowable charges that employers seeking H-2A workers in occupations other than herding or production of livestock on the range may charge their workers when the employer provides three meals per day; and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim under the H-2A and H-2B programs.

6. Self Check Now Requires myE-Verify Account -Self Check, a feature that allows employees to verify their employment eligibility, now requires a myE-Verify account.

7. Trump Administration Announces Extension of Liberian DED ‘Wind-Down’ Period, EADs -President Trump has extended the wind-down period for Deferred Enforced Departure (DED) for certain eligible Liberians for an additional 12 months, through March 30, 2020.

8. Five Arrested in Chinese Student Visa Scheme -Federal authorities arrested five people linked to a scheme that allegedly helped Chinese nationals obtain student visas by hiring individuals who used fake Chinese passports to take English proficiency tests for the foreign students.

9. Trump Administration Announces ‘Trexit’ -The Trump administration announced on April 1, 2019, that it has decided to remove the United States from the rest of the world, period.

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

11. ABIL Member / Firm News -ABIL Member / Firm News

12. Government Agency Links -Government Agency Links

Details:

1. USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes

On March 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced the start of the fiscal year (FY) 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub, while reminding petitioners of its new H-1B cap selection process. Below are highlights of the changes.

Start of FY 2020 cap season. USCIS will begin accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019, and will reject any FY 2020 cap-subject H-1B petitions filed before April 1. Form M-735, Optional Checklist for Form I-129 H-1B Filings (PDF, 262 KB), provides detailed information on how to complete and submit a FY 2020 H-1B petition.

Premium processing for FY 2020 cap-subject petitions. Premium processing will be offered in a two-phased approach during the FY 2020 cap season “so USCIS can best manage premium processing requests without fully suspending it as in previous years,” the agency said. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status. The second phase will include all other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS said it will begin premium processing for these petitions by May 20, 2019, and will notify the public before premium processing begins for these petitions. If a petitioner does not file Form I-907 concurrently with a FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907, USCIS said.

Premium processing for all other FY 2020 cap-subject H-1B petitions will not start until at least June 2019, the agency noted. Cap-subject petitioners not requesting a change of status may not submit their premium processing requests concurrently with their H-1B petitions. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS said it will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available, USCIS said.

Note: Reaction to the guidance has been mixed. Some say they are not filing for premium processing before lottery selection. Given the costs of applying for premium processing ($1,410 as of this writing), their suggestion is that cases only be premium processed once they have been selected in the lottery. By this reasoning, even if you are filing a change of status H-1B petition, filing for premium processing concurrently with a petition that might not even be selected for adjudication risks rejection not only of the premium processing request but of the entire petition (and loss of the cap number) if there are any problems with the premium processing check. On the other hand, some would like to file for premium processing before lottery selection. Their human resources representatives feel that it’s easier to try premium processing rather than go back to the hiring managers later to seek additional funds.

New H-1B data hub. USCIS also announced a new “H-1B Employer Data Hub” that will be available on uscis.gov on April 1, 2019. The data hub is part of USCIS’s “continued effort to increase the transparency of the H-1B program by allowing the public to search for H-1B petitioners by fiscal year, North American Industry Classification System (NAICS) industry code, company name, city, state, or zip code. This will give the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program,” USCIS said.

New H-1B cap selection process. In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This change “increases the chances that more of these visas will be granted to those with an advanced degree from a U.S. institution of higher education,” USCIS said.

More details are available

NAICS information and codes

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2. DOL Issues Bulletin on Compliance With H-1B Posting Requirements When Using Electronic Means

The Department of Labor’s Wage & Hour Division (WHD) said it has seen a rise in the use of electronic notifications as workplaces increasingly provide their employees with documents by electronic means. Among other things, WHD noted, an H-1B petitioner must notify affected U.S. workers of its intent to hire H-1B nonimmigrant workers. This notification requirement, commonly referred to as the notice or posting requirement, informs U.S. workers of the terms of employment of nonimmigrant workers, the right of U.S. workers to examine certain documents, and the ability of U.S. workers to file complaints if they believe that violations have occurred.

A new Field Assistance Bulletin (FAB) reiterates an H-1B petitioner’s obligations when using electronic means to make the required notice to all affected employees. This includes those who are employed by a third-party employer.

The bulletin

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3. April Visa Bulletin Notes Movement in Many Employment-Based Categories

The Department of State’s Visa Bulletin for April 2019 notes that Final Action Date movement in many employment-based preference categories continues to be greater than might ordinarily be expected. This is anticipated to continue for at least the next few months.

The Department explained that this movement is a direct result of fewer applicants proceeding to final action on their cases at consular posts abroad and at U.S. Citizenship and Immigration Services offices. Once large numbers of applicants begin to have their cases brought to final action, final action date movements will necessarily slow or stop, the bulletin says. Moreover, in some categories, final action date retrogression is a possibility if demand levels are excessive. Therefore, the recent rates of final action date advances will not continue indefinitely, but the bulletin notes that “it is not possible to say at present when they will end.”

The April 2019 Visa Bulletin

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4. USCIS Updates Filing Addresses for Nonimmigrant Worker Petitions

U.S. Citizenship and Immigration Services has updated the addresses for filing Form I-129, Petition for a Nonimmigrant Worker.

The new addresses are at https://www.uscis.gov/i-129-addresses. Practitioners advise checking addresses shortly before filing because they can change without notice.

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5. DOL Updates H-2A, H-2B Allowable Charges and Reimbursements

The Department of Labor (DOL) recently announced an annual update to: (1) the allowable charges that employers seeking H-2A workers in occupations other than herding or production of livestock on the range may charge their workers when the employer provides three meals per day; and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim under the H-2A and H-2B programs. The notice also reminds employers of their obligations concerning overnight lodging costs as part of required subsistence.

The notice was published in the March 22, 2019, Federal Register.

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6. Self Check Now Requires myE-Verify Account

Self Check, a feature that allows employees to verify their employment eligibility, now requires a myE-Verify account, U.S. Citizenship and Immigration Services (USCIS) announced. Employees will be prompted to create or log in to myE-Verify accounts, where they can perform multiple Self Check queries and lock their Social Security numbers to prevent others from using them in E-Verify. “The streamlined account creation process continues to protect employee information while eliminating the need for repeated identity-proofing,” USCIS said.

Those with questions should contact myE-Verify Customer Support at [email protected], the agency said.

More on E-Verify

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7. Trump Administration Announces Extension of Liberian DED ‘Wind-Down’ Period, EADs

On March 28, 2019, President Trump issued a memorandum extending the wind-down period for Deferred Enforced Departure (DED) for certain eligible Liberians for an additional 12 months, through March 30, 2020. During this time, such individuals may remain in the United States. President Trump also directed the Department of Homeland Security to provide for continued work authorization for Liberian DED beneficiaries.

The Trump administration also announced that U.S. Citizenship and Immigration Services (USCIS) will publish a notice in the Federal Register with information on the six-month automatic extension, through September 27, 2019, of employment authorization documents (EADs) currently held by eligible Liberians under DED and instructions on how they can obtain EADs for the remainder of the DED wind-down period.

More information

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8. Five Arrested in Chinese Student Visa Scheme

Federal authorities arrested five people linked to a scheme that allegedly helped Chinese nationals obtain student visas by hiring individuals who used fake Chinese passports to take English proficiency tests for the foreign students.

The arrests were made pursuant to a 26-count indictment returned by a federal grand jury. The indictment charges the defendants with conspiring to use false passports, using false passports, and aggravated identity theft as part of the scheme to impersonate Chinese nationals who were required to take the Test of English as a Foreign Language (TOEFL) to obtain a student visa.

A sixth defendant in the case is believed to be currently residing in Taiwan.

When a foreign national goes to a TOEFL testing location, the test-taker must present an original, non-expired, government-issued identification document recognized by their home country. According to the indictment, all six defendants used counterfeit People’s Republic of China passports to impersonate 19 different Chinese nationals at various TOEFL testing locations in and around Los Angeles, California.

The indictment further alleges that one defendant paid for and registered 14 Chinese nationals for TOEFL exams over a one-year period in 2015 and 2016. Following the tests, the defendant allegedly paid three co-defendants approximately $400 per test.

The conspiracy count in the indictment carries a maximum penalty of five years in federal prison. The charge of using a false passport carries a maximum sentence of 10 years. Aggravated identity theft carries a mandatory consecutive two-year sentence.

This case was investigated by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the State Department’s Diplomatic Security Service, and U.S. Citizenship and Immigration Service’s Fraud Detection National Security Section. The Educational Testing Service, which administers the TOEFL exam, provided assistance during the investigation.

More details

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9. Trump Administration Announces ‘Trexit’

The Trump administration announced on April 1, 2019, that it has decided to remove the United States from the rest of the world, period. A Presidential tweet noted that “we’ve been canceling our disgraceful, weak, Loser Treaties one by one—a bad way to do Business, folks! Sad! We’ve been played for chumps!! We’re now making a great deal by canceling all of them, all at once, and dumping all of our allies. We’re doing a Beautiful Removal, the best Removal you’ve ever seen. Your head will spin. We’re now friends with the best people— Vlad Putin (I call him Vlad), Kim Jong Un, Muhammad bin Salman. We’ve got plenty of people and businesses right here. Allies, schmallies! No need to answer to anyone else, folks! We don’t need ’em! MAGA!!” It was unclear as of press time whether the “total, bigly removal” was limited to treaties or included other things like a geographical relocation. When asked about this, Mr. Trump would only say, “Well, if you dropped the United States right on top of Russia, it’d probably fit inside those squiggly lines except for a few little pieces, which could be snipped off.”

The next day, he added one more tweet: “Happy April Fool’s Day!”

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10. New Publications and Items of Interest

Immigrant and Employee Rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public in April. The webinars are for workers, employers, and advocates. For more information or to register, see https://www.justice.gov/crt/webinars.

E-Verify webinars. E-Verify recently made the following announcement: “E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service.” Information is available here. The March 2019 E-Verify webinar calendar is also available. For more on E-Verify, see https://www.e-verify.gov/.

Alliance of Business Immigration Lawyers:

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

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

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

Advisories and tips:

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

Back to Top

11. ABIL Member / Firm News

Cyrus Mehta has authored a new blog entry, “The Nuts and Bolts of Complying with the H-1B Notice Requirements.”

Stephen Yale-Loehr was quoted by CNN in “Supreme Court Will Take Up Immigration-Related Case Next Term.” The case, Kansas v. Garcia, concerns Kansas’ prosecution of three immigrants for using stolen Social Security numbers for employment. The Kansas Supreme Court overturned their convictions, ruling that federal immigration law preempts a state from prosecuting undocumented immigrants when the claim is based on information culled from federal immigration forms. If the Supreme Court takes up the case and overturns the Kansas court’s decision, he noted, “all states could prosecute noncitizens for identity theft more easily. The Supreme Court largely struck down Arizona’s similar efforts in 2012. Given the change in Supreme Court members since then, it will be interesting to see how the court revisits the issue.”

The CNN article

Details about the case

Mr. Yale-Loehr was quoted by the Houston Chronicle in “Flight Attendant With DACA Released After Month in Detention for Mexico Flight.” “This shows how broken our immigration system is. Immigration law is very complicated and [U.S. Customs and Border Protection] has incredible power at the border, and this administration is exercising it to detain more people, rather than extending their discretion favorably.”

The Houston Chronicle article

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12. Government Agency Links

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

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post