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ABIL Global Update • April 2024

April 01, 2024/in Global Immigration Update /by ABIL

Headlines:

1. RED FLAGS IN TAXATION RELATED TO IMMIGRATION: AN OVERVIEW – This article provides an update on red flags in taxation related to immigration in several countries.

2. ITALY – Italy’s digital nomad visa: finally a dream come true? This article also discusses quotas and application times under Decreto Flussi 2024.

3. RUSSIA – The Ministry of Internal Affairs has commented on the salary for highly qualified specialists.

4. UNITED KINGDOM – New Immigration Rules have been published that include salary increases for Skilled Workers, with fast-approaching deadlines for assigning Certificates of Sponsorship and submitting applications before the rule changes. Also, the Migration Advisory Committee will review the Graduate Visa Route and expects to publish a report in May.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

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ABIL Global Immigration Update – April 2024

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1. RED FLAGS IN TAXATION RELATED TO IMMIGRATION: AN OVERVIEW

This article provides an update on red flags in taxation related to immigration in several countries.

Italy

Individuals living in Italy who are registered as residents with the municipality (residenti), spend at least 183 consecutive days over a 12-month period in the country, or whose main interests are centered there are considered tax residents and must pay taxes on their worldwide income.

Italy has agreements in place with 40 countries, including members of the European Union, Canada, and the United States. This allows foreign national employees from these countries to remain under their own social security systems for up to five years. Foreign employers and employees from those countries with which Italy does not have an agreement must pay social security taxes under the Italian tax system, which in the aggregate is approximately 39% of the employee’s salary.

Spain

An International Mobility Process legal strategy should be determined with a holistic approach, i.e., taking into account the various legal areas concerned: immigration, labor, social security, and taxation. This approach will allow for a consistent and efficient solution. In support of a holistic approach, the relationships and differences among tax and migration rules should be noted.

Residency in Spain differs for tax and migration purposes. In the case of a foreign national, a resident from a migration point of view is the holder of a residence permit/visa, whereas a tax resident is, in principle and except if otherwise established in the applicable International Tax Agreement, a person who spends more than 183 days in Spain in a calendar year. This means that a foreign national can be a tax resident in Spain without having a residence visa/permit, and even if the foreign national has such visa/permit, he or she might not be considered a resident for tax purposes.

It is important to bear in mind that certain visas, such as those for digital nomadic employment and entrepreneurship, can facilitate access to certain beneficial tax regimes, such as the “Beckham Law,” a special tax regime whereby a foreign national, despite being a tax resident, is taxed as a nonresident at a fixed rate of 24% for the first €600,000 received from the employment source.

It is also important to analyze the tax impact from a business point of view of having a worker providing services in Spain. Despite not having a company in the country, this could create a permanent establishment.

In short, although the concept of residence is not the same from a tax and an immigration point of view, immigration status could influence the tax treatment.

Türkiye

Türkiye’s immigration procedures, like most countries, are affected by local tax requirements. Issues related to tax, social security law, and employment law must all be considered by the Turkish employer sponsoring the work permit. This article focuses on tax-related matters.

The salary of a work permit holder may be paid in Türkiye or abroad—under certain conditions—assuming all social security requirements are complied with. If the Turkish employer is paying a salary for the foreigner in Türkiye, the sponsor must withhold income tax due from the employee’s pay at the source and pass the sums withheld to the tax authorities.

Under the Income Tax Law, employment income or wages are defined as the sum of all benefits (monetary and benefits-in-kind) paid by an employer to an employee. Note that this is not the same definition as employment income for work permit purposes, which does not include benefits, bonuses, etc.

Employees are taxed on their employment income, minus social security and unemployment insurance contributions (see below), at progressive rates, which stand in 2024 at:

15% of annual income up to TRY 110,000;
20% of annual income from above TRY 110,000 to TRY 230,000;
27% of annual income from above TRY 230,000 to TRY 870,000;
35% of annual income from above TRY 870,000 to TRY 3,000,000; and
40% of annual income above TRY 3,000,000.

Employees’ tax liability is reduced by the net minimum wage (TRY 17,002.12 for the year 2024) through an income tax exemption. Employees earning employment income over TRY 3,000,000 for the year 2024 should submit an annual tax return. This must be submitted in March 2025 for fiscal year 2024. In addition to income tax, employees must pay a “stamp tax” of 0.759% of gross wages, which their employer must deduct from pay at the source and remit to the tax authorities.

Assuming the foreign employee is paid by the sponsor in Türkiye, both employer and employee must pay contributions to the public social security system administered by the Social Security Institution (Sosyal Güvenlik Kurumu [SGK]). Employers must generally register employees with the SGK at least one day before their employment starts. In newly registered companies, employees can be registered within one month of commencing employment. Note that these deadlines are different from the employment commencement notification that must be sent to the Ministry of Labor for certain work permit holders.

Note also that Türkiye has a significant double tax treaty network, assigning taxation rights to signatory countries for defined income types. Apart from a U.S. treaty, all double tax treaties signed by Türkiye are modeled according to Organisation for Economic Co-operation and Development regulations. The double tax treaties define employment income under “Article 15—Dependent personal services.” This article under certain conditions may not assign a right to tax employment income to Türkiye but to the other signatory country. The conditions may vary depending on the individual treaty, but the criteria for taxing rights usually depend on the person’s length of stay, the payment jurisdiction, and existence of a permanent establishment. Therefore, if there is an applicable double tax treaty, it is important to evaluate each person’s tax position on a standalone basis.

In conclusion, compliance with tax and social security regulations is extremely important for sponsors of work permits. As the work permit is adjudicated by a directorate under the Ministry of Labor (MoL), any noncompliance perceived in the context of the filing/renewal of a work permit, or observed in an MoL inspection, can and will be forwarded to the appropriate directorate(s) within the MoL, such as the Social Security Institute, Employee Health and Safety, or National Health Care. Therefore, a violation of tax requirements can lead to compliance penalties in other areas (e.g., monetary fines, increased risk of audit, prohibition to benefit from social security incentives) for employers of work permit holders.

2. ITALY

Italy’s digital nomad visa: finally a dream come true? This article also discusses quotas and application times under Decreto Flussi 2024.

Digital Nomad Visa

From information received from unofficial sources, it appears that the Ministries of the Interior, Foreign Affairs, Tourism, and Labor have finally signed the implementing decree for the digital nomad visa.

A “digital nomad” is defined as a non-European Union (EU) citizen who performs highly skilled remote work in Italy, either as a freelancer or as an employee/collaborator of a company, which can also be based outside Italy. The visa is exempt from “quota” limits, and it is not necessary to apply for a work permit (nulla osta) for entry as a digital nomad (professional or freelancer) or as a remote worker (employee or collaborator of a company).

The main requirements include:

An annual income not less than three times the minimum level required for exemption from health care participation expenses (around €28,000).
Health insurance for medical care and hospitalization valid throughout Italy and for the entire period of stay.
Proof of having secured accommodation in Italy.
At least 6 months of work experience as a digital nomad or remote worker.

The visa applicant must submit a declaration signed by the employer and a self-certification in which the worker must attest to the absence of criminal convictions.

Once the visa is issued, the holder can travel to Italy and must apply for a residence permit within eight working days of entry. The worker will be issued a permit as a “digital nomad—remote worker” valid for one year, renewable each year if the conditions and requirements are met. Digital nomad/remote workers can bring core family members (spouse and children under 18, parents under certain conditions).

Social security coverage: Where bilateral agreements on social security exist between Italy and the country of origin, these agreements will apply. In the absence of such agreements, Italian social security and insurance coverage regulations will apply.

Digital nomads and remote workers will be provided with a tax code upon residence permit issuance. Digital nomads can request a value-added tax (VAT) number from the Revenue Agency, which is informed about the visa issuance by police authorities.

Refusal of the visa: The visa may be refused/revoked if the employer or contractor has been convicted in the last five years. A residence permit that has already been issued may be revoked if the worker or the company fails to comply with tax and contributory obligations.

Decreto Flussi 2024: Quotas and Application Timelines

As of February 29, 2024, it is possible to fill out applications on the Ministry of the Interior’s Portal to hire non-EU workers from abroad and to convert residence permits, within the framework of the 151,000 quotas provided for by the “quota decree” for the year 2024.

Applications can be submitted starting at 9 a.m. on the “click days” set by Decree January 19, 2024, namely:

From 9 a.m. on March 18, applications for non-seasonal subordinate workers who are citizens of countries that have cooperation agreements with Italy;
From 9 a.m. on March 21, applications for other non-seasonal subordinate workers (including domestic workers);
from 9 a.m. on March 25, applications for seasonal workers.

Applications can be submitted until December 31, 2024.

Quota Categories

The 151,000 quotas are to be allocated among the following categories:

89,050 quotas for seasonal work in the sector of agriculture; hospitality and tourism industry quotas are reserved for certain nationalities

61,450 quotas (of which 61,250 are for subordinate work—work as an employee—and 200 are for self-employment)

In the sectors of freight transportation on behalf of third parties, building, hospitality and tourism, mechanics, telecommunications, food, shipbuilding, transportation of passengers by bus, fishing, hairdressing, electricians, plumbers:

2,500 quotas for citizens of countries that promote media campaigns regarding the risks resulting from involvement in irregular migration
25,000 quotas for the following nationalities: Albania, Algeria, Bangladesh, Bosnia-Herzegovina, South Korea, Ivory Coast, Egypt, El Salvador, Ethiopia, Philippines, Gambia, Georgia, Ghana, Jordan, Japan, Guatemala, India, Kyrgyzstan, Kosovo, Mali, Morocco, Mauritius, Moldova, Montenegro, Niger, Nigeria, Pakistan, Peru, Republic of North Macedonia, Senegal, Serbia, Sri Lanka, Sudan, Tunisia, Ukraine
20,000 quotas for citizens of countries with which Italy will have cooperation agreements (4,000 will be reserved to workers from Tunisia)
100 quotas for employed or self-employed work reserved for foreign nationals who have Italian ancestry and reside in Venezuela
200 quotas for employed or self-employed work reserved for stateless persons and refugees

In the sector of family care and support services (domestic work):

9,500 quotas

Permit conversion for non-EU nationals already in Italy/EU:

4,000 quotas for conversion from a seasonal work permit to a standard, non-seasonal work permit (as an employee)
150 quotas for conversion from an EU long-term permit issued by another EU country to an Italian work permit (employed/self-employed)

500 quotas for self-employment for:

Entrepreneurs intending to implement an investment plan of interest for the Italian economy, involving an investment of at least €500,000 and creating at least three new jobs in Italy
Freelancers/independent contractors who intend to practice regulated or controlled professions (i.e., individuals belonging to a professional association or enrolled with an official/public register) or professions that are not non-regulated but are considered representative at the national level and are included in the lists edited by the Public Administration
Holders of corporate offices or administrative/controlling positions (any of the following: Chairman, CEO, Member of Board of Directors, Auditor) in an Italian company, active for at least three years (requirements set in Visa Decree May 11, 2011 n.850)
Foreign citizens who intend to set up innovative start-up companies under certain conditions and who will have a self-employment relationship with the start-up
Internationally well-known and highest-repute artists, artists of recognized high professional qualification, or artists who are hired by well-known Italian theaters, important public institutions, public television, or well-known national private television (requirements set in Visa Decree May 11, 2011 n.850)

3. RUSSIA

The Ministry of Internal Affairs has commented on the salary for highly qualified specialists.

On March 1, 2024, the version of paragraph 3, part 1 of article 13.2 of Federal Law No. 115-FZ dated 07/25/2002, “On the Legal Status of Foreign Citizens in the Russian Federation,” came into force. According to that edition, the salary of a highly qualified specialist (HQS) (for the category of other foreign citizens) must be at least 750,000 rubles per quarter. Thus, to comply with this requirement, the monthly salary must be at least 250,000 rubles.

The situation is uncertain if an HQS had started working before March 1, 2024, and his or her salary in the first quarter of 2024 was less than 750,000 rubles. The question is whether the employer would be required to pay for March the amount necessary to reach 750,000 rubles for the quarter, or whether 250,000 rubles for March would be enough.

An appeal on this issue was submitted to the General Migration Department of the Ministry of Internal Affairs of Russia. The ruling was that the salary in the first quarter of 2024 should correspond to the amount determined by law. In the case of a violation, the employer cannot recruit foreign citizens to work in the Russian Federation as HQS for two years.

To avoid that risk, it would be prudent for an employer to pay the minimum of 750,000 rubles in the first quarter of 2024. For example, if the salary for January is 167,000 rubles and for February 167,000 rubles, then the salary for March should be at least 416,000 rubles.

4. UNITED KINGDOM

New Immigration Rules have been published that include salary increases for Skilled Workers, with fast-approaching deadlines for assigning Certificates of Sponsorship (CoS) and submitting applications before the rule changes. Also, the Migration Advisory Committee will review the Graduate Visa Route and expects to publish a report in May.

On March 14, 2024, new Immigration Rules were published. For employers, the key date is April 4, 2024. This is when the new salary rules for Skilled Worker visas will come into force. The deadline for assigning a CoS under the current rules is 7 p.m. on Tuesday, April 2, 2024. For details, see below under Submission of applications before the rule changes.

A summary of the newly published Skilled Worker rules is set out below.

Skilled Worker Salary Increases

Currently, Skilled Workers must be paid the higher of the general salary threshold, the going rate for the role, or an overall minimum hourly rate (£10.75).

Changes for new hires on or after April 4, 2024:

General salary threshold. The general salary threshold is increasing from £26,200 to £38,700.

A lower salary threshold will remain for “new entrants” (including students switching to Skilled Worker status; those under 26 years old; and those working toward registration/becoming chartered, such as architects, accountants, and solicitors). The general salary threshold for new entrants will be £30,960, up from £20,960. New entrants can be sponsored for up to four years on the lower salary threshold.

Going rates. The going rates are also increasing and will be set at the 50^th percentile (median) of the salary range for the role, rather than the 25^th percentile as has been the case to date. A recent blog explains how the going rates will be calculated and what the new amounts will be.

As is the case under the current rules, new entrants can still be paid 70% of the full going rate.

The new higher going rates for all jobs are shown in Table 1 of the new rules from page 80 here (Option A is for standard applications and Option E is for new entrants). The overall minimum hourly rate is increasing from £10.75 to £15.88, but it will no longer be a separate requirement. Instead it is to be incorporated into the new going rates.

Changes for existing (pre-April 4, 2024) Skilled Workers:

Where someone has been sponsored as a Skilled Worker under the rules before April 4, 2024, to extend their stay, change employer/sponsor, or apply for settlement (indefinite leave to remain), the following rules will apply:

General salary threshold. The general salary threshold will increase from £26,200 to £29,000.

The lower general salary threshold for new entrants will be £23,200, up from £20,960.

Going rates. As expected, the going rates will increase but not by as much as for new hires. Existing Skilled Workers must meet the updated (higher) going rates but only at the same 25^th percentile, not the median. Again, the recent blog mentioned above has more details. The new higher going rates for all jobs for pre-April 4, 2024, Skilled Workers are shown in Table 2 of the new rules from page 124 here (Option F is for standard applications and Option J is for new entrants).

Shortage occupation changes as of April 4, 2024:

Under the current rules, where a job is on the current shortage occupation list, this has meant the UK Visas and Immigration application fee is slightly lower and the salary threshold is slightly reduced because it needs to be the higher of £20,960, 80% of the going rate for the role, or £10.75 per hour.

Following the Migration Advisory Committee’s (MAC) report last month on the shortage occupation list, the following changes will come into force on April 4, 2024:

Change of name. The shortage occupation list will be renamed the Immigration Salary List.
Jobs on the list. Due to the significant increase in the Skilled Worker salary requirements, there will now only be 23 jobs on the Immigration Salary List (see the full list in the table from page 230 here). The MAC will carry out a full review of the Immigration Salary List before the end of this year.
General salary threshold. The lower general salary threshold for jobs on the list will increase from £20,960 to £30,960.
Going rates. The current 20% discount on going rates will be removed. The new higher going rates for all jobs are shown in Table 1 of the new rules from page 80 here. (Option D is for Immigration Salary List jobs. However, the rates shown appear to be incorrect as they still refer to a 20% discount, so presumably the going rates shown in Option A will apply. It is hoped that this error will be corrected.)
Existing Skilled Workers. Pre-April 4, 2024, Skilled Workers sponsored in a shortage occupation list role will need to meet a slightly higher general salary threshold of £23,200 and a slightly increased going rate (see Table 2 from page 124 here—Option I).

Other sponsored worker changes as of April 4, 2024:

Senior or Specialist Worker. For Senior or Specialist Workers (previously known as Intra-Company Transferees (ICT) where an employee of a group company outside the UK is transferring to the UK group company), the general salary threshold will be updated from £45,800 to £48,500, and going rates will be increased.
Graduate Trainee. For Graduate Trainees (applying to transfer from an overseas group company to work at a UK group company as part of a structured graduate program), the general salary threshold will be updated from £24,220 to £25,410, and going rates will remain based on 70% of the 25^th percentile.

Submission of applications before the rule changes:

Given the rule changes summarized above, employers may wish to submit Skilled Worker visa applications before the rule changes to avoid the salary increases.

For Skilled Worker applications, it’s important to bear in mind the timescales to receive a CoS, explained here. The key date is when the CoS is assigned, not when the application is submitted. If the CoS is assigned before April 4, 2024, the pre-April 4 rules will apply even if the application is submitted on or after April 4. See the 2024 business immigration changes timeline.

An update to the Home Office guidance gives important information on the deadline for assigning the CoS so that the application can proceed under the current rules (with the lower salary thresholds): the deadline for assigning a CoS under the current rules is 7 p.m. on Tuesday, April 2, 2024.

This is because the online sponsor management system (SMS) will be unavailable between the hours of 7 p.m. on Tuesday, April 2 to 9 a.m. on Thursday, April 4. During that period, you will not be able to assign any CoS, apply for any defined CoS for applications to be submitted outside the UK, or ask for any additional CoS for applications to be submitted inside the UK.

So if you are considering any last-minute applications before the rule changes, you must assign the CoS before 7 p.m. on Tuesday, April 2. Given the long Easter bank holiday weekend from Friday, March 29 to Monday, April 1, there is less time to assign any CoS before the deadline.

Review of the Graduate visa route:

Overseas students who complete a degree course in the UK can apply for the Graduate visa route for a two-year visa, or three years if they are studying for a Ph.D.

On March 11, 2024, the Home Secretary asked the Migration Advisory Committee (MAC) to review the Graduate route to “prevent abuse, protect the integrity and quality of UK higher education and ensure it works in the best interests of the UK.” The MAC is due to publish its report by May 14, 2024.

5. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

ABIL is available on X (formerly Twitter): @ABILImmigration
Recent ABIL member blogs are at http://www.abilblog.com/

ABIL Member / Firm News

Seth Dalfen, Avi Gomberg, Genevieve Hénault, and Lisa Middlemiss, of Gomberg Dalfen, S.E.N.C., were included in the 2024 Canadian Legal Lexpert® Directory. They were ranked based on the Lexpert® peer survey.

Klasko Immigration Law Partners, LLP, welcomed Nick Lowrey to the firm. Mr. Lowrey has worked in immigration law for seven years and represents clients across industries. His practice primarily focuses on business immigration and worksite compliance. He has in-depth experience advising employers across a range of employment-based temporary and permanent visa categories. Mr. Lowrey leads clients through large-scale I-9 audits, provides strategic policy consulting, and offers compliance trainings to ensure clients are meeting their obligations. He consults with clients on unique I-9 issues, including suspect document assessments, immigration-related fraud, and anti-discrimination policies.

Charles Kuck appeared on Atlanta News First to comment on criticisms raised by Georgia lawmakers about the undocumented status of the University of Georgia murder suspect.

Mr. Kuck was quoted by 285 South in It’s About to Get More Expensive to File Immigration Paperwork. Regarding increases in immigration-related fees, he said, “It’s a massive money grab with no justification.” The article notes that he acknowledged that the fee increase was less than what was first proposed, but, he said, “it’s still very bad.” He also wasn’t optimistic that an increase in fees would lead to faster processing times. “[They] can’t justify doubling the cost for [a green card through] marriage.… No way [is it] related to the actual cost of doing the application.” Commenting on the fact that immigration lawyers and advocacy organizations are urging people to get their applications in before April 1 before the new fees kick in, Mr. Kuck said, “They should take advantage of the benefits that are available [at] current pricing.”

Mr. Kuck was quoted by Marianne in In the United States, the Immigration Debate is Undermined by the Biden-Trump Duel (by subscription; in French with English translation available). He noted that under current law, all people who arrive in the United States, whether at a legal port of entry or illegally, have the right to apply for asylum. However, he explained that the wait for those with legitimate asylum claims is long. For example, he said, “I have clients who applied for asylum in 2014 and still have not had a hearing before a judge.” If the proposed Senate border deal had been enacted, “there would be 4,000 new officials to handle asylum applications, and those cases would be adjudicated within six months. As many applications would be rejected more quickly, there would be fewer applicants, as many would be deported relatively quickly. This message then [would spread] to the countries of origin and fewer people [would] try their luck.”

Mr. Kuck has authored a new book, In Pursuit of a Better Future: What You Need to Know to Achieve Your American Dream.

Mr. Kuck and Cyrus Mehta were quoted by Law360 in High Court SEC Case May Bear on DOJ’s Immigration Probes (registration required). Mr. Mehta said, “In the SpaceX case, there’s a unique statute that doesn’t allow one to go and ask for attorney general review of the decision. You have to go directly to the court of appeals.” He suggested that that feature of the case could mean it’s destined for a stop at the Fifth Circuit and perhaps ultimately the U.S. Supreme Court, the article noted. Commenting on authority issues in a case the Supreme Court justices are reviewing, Mr. Kuck said, “Does that mean immigration courts are going away? Nobody’s filed that challenge yet. It’s not out there. But I can assure you that if the Supreme Court strikes down the SEC’s right and authority to do these cases, that challenge is not far behind.”

Mr. Mehta and Kaitlyn Box have co-authored a new blog post: The Application for Prevailing Wage Determination and the Application for Permanent Labor Certification: Siblings or Twins?

Mr. Mehta has authored several new blog posts: As Texas Has Been Smacked Down Thrice for Lack of Standing in Challenges to Federal Immigration Policy, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions and How Corner Post Along with the Demise of Chevron Deference Can Open Up Immigration Regulations to Challenges.

Mr. Mehta and Kaitlyn Box have co-authored several new blog posts: The Potential Impact of SEC v. Jarkesy on Immigration Law and EB-5 Lawyers and Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government.

WR Immigration has published several new blog posts: 5 Takeaways on EB-5 Visas From State Department’s FY 2023 Annual Report, USCIS Immigration Filing Fees Increase Effective April 1, and Client Alert: USCIS Final Rule for FY 2025 H-1B Cap Registration.

Stephen Yale-Loehr was quoted by the Chronicle of Higher Education in A Law That Could Restrict Graduate Students From China, Iran is Challenged in Court (registration required). The article discusses a lawsuit filed by two doctoral students and a professor to block a new Florida law “that restricts public colleges in the state from hiring graduate assistants or visiting scholars from ‘countries of concern,’ including China, Iran, and Russia.” Mr. Yale-Loehr said, “The U.S. Constitution provides due process and equal protection to everyone in the U.S., not just citizens. This Florida law clearly violates those rights by barring certain international students and professors from conducting academic research.” He noted that a federal appeals court recently blocked another Florida law that banned Chinese citizens, including graduate students and professors, from buying property in the state because it would violate federal law. “I am confident that a federal court will void this Florida law on the same grounds,” he said.

Mr. Yale-Loehr was quoted by Verify This in No, Biden’s Executive Order Doesn’t Allow Ineligible People to Vote. He said, “Nothing in the executive order allows noncitizens to vote.… The executive order clearly states that [it] only protects the right to vote ‘for all Americans who are legally entitled to participate in elections.’ Noncitizens, even green card holders, are not allowed to vote in national elections.” He noted that “[o]nly Congress can change the law to allow noncitizens to vote in federal elections, and even that would probably require a constitutional amendment, as it did to allow women to vote.”

Mr. Yale-Loehr was quoted by Verify This in No, the President Can’t Completely Close the Border by Executive Order. The article notes that some people, including House Speaker Mike Johnson, have cited section 212(f) of the Immigration and Nationality Act “when claiming Biden has the authority to shut down the border via executive action.” Mr. Yale-Loehr said that federal law does give the president broad powers to suspend the entry of certain noncitizens who are “detrimental to the interests of the United States,” but that “doesn’t mean [the President] can just shut the border.”

Mr. Yale-Loehr was quoted by Time in How a Dead Border Deal Led to a Trump-Biden Border Duel. He said, “Presidents have a lot of authority when it comes to immigration, because immigration touches on sovereignty and foreign relations. However, any president’s authority is not unlimited.”

Mr. Yale-Loehr co-authored an op-ed in Law360, NY Must Address Urgent Need For Immigration Legal Aid.

Mr. Yale-Loehr was quoted by CNN in Biden Considering New Executive Action to Restrict Asylum at the Border, Sources Say. He said, “President Biden has broad powers under the immigration statute, but they are not unlimited. Section 212(f) of the Immigration and Nationality Act allows a president to suspend the entry of noncitizens who are ‘detrimental to the interests of the United States,’ but that doesn’t mean he can just shut the border to everyone.”

Several Alliance of Business Immigration Lawyers members were listed in Chambers Global Guide 2024:

GLOBAL IMMIGRATION LEGAL NETWORK

Alliance of Business Immigration Lawyers – Band 1

FIRMS

GLOBAL: MULTI-JURISDICTIONAL

Kingsley Napley LLP – Band 2

CANADA

Corporate Immigration Law Firm – Band 2

Gomberg Dalfen – Band 2

UNITED STATES

Klasko Immigration Law Partners, LLP (Immigration: Business – USA – Band 2)

Wolfsdorf Rosenthal LLP (Immigration: Business – USA – Band 3)

Foster LLP (Immigration: Business – USA – Band 4)

Sidley Austin LLP (Immigration: Business – USA – Band 4)

Kurzban, Kurzban, Tetzeli & Pratt (Immigration: Business – USA – Band 4)

INDIVIDUALS

Immigration – Canada

Barbara Jo Caruso – Band 1

Seth Dalfen – Band 2

Avi Gomberg – Band 2

Immigration: Business – USA

Dagmar Butte – Band 2

Ronald Klasko – Band 1

Charles Kuck – Band 1

Ira Kurzban – Star Individual

Vince Lau – Band 2

Marketa Lindt – Band 1

Robert Loughran – Band 4

Cyrus D. Mehta – Band 1

Angelo Paparelli – Band 1

John Pratt – Band 2

Gregory Siskind – Band 1

William Stock – Band 1

Stephen Yale-Loehr – Band 1

ABIL Immigration Insider • February 4, 2024

February 04, 2024/in Immigration Insider /by ABIL

In this issue:

1. USCIS Announces Registration Period, Instructions, and Updates for FY 2025 H-1B Cap Season – U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024.

2. USCIS Issues Final Rule With New Filing Fees – U.S. Citizenship and Immigration Services published a final rule, effective April 1, 2024, to adjust certain immigration and naturalization benefit request fees. The final rule includes fee increases for various categories.

3. USCIS Releases Additional Details About Organizational Accounts – U.S. Citizenship and Immigration Services unveiled additional details about its launch of organizational accounts in February 2024, in time for the fiscal year 2025 H-1B cap season.

4. USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’ – U.S. Citizenship and Immigration Services updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

5. DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights – Noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” The Department of Homeland Security explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.”

6. DHS Extends and Redesignates Syria for TPS, Announces Student Relief – The Department of Homeland Security is extending and redesignating Syria for Temporary Protected Status. DHS also announced Special Student Relief for F-1 nonimmigrant students whose country of citizenship is Syria.

7. USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely – U.S. Citizenship and Immigration Services announced a new process for most applicants, petitioners, and requestors, and their attorneys and accredited representatives, to pay for certain benefit request forms by mail or remotely instead of in person at a field office.

8. DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants – The Department of State has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first.

9. CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program – A new U.S. Customs and Border Protection interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program.

10. DOL Seeks OMB Approval, Comments on O*NET Data Collection Program – The Department of Labor has submitted the O*NET Data Collection Program to the Office of Management and Budget for review and approval. DOL seeks comments on O*NET by February 16, 2024.

11. U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks – Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico.

12. USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations – U.S. Citizenship and Immigration Services plans to launch organizational accounts for non-cap filings and the fiscal year 2025 H-1B cap season.

13. Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2024 with start dates on or before March 31, 2024.

14. February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category – The Department of State’s Visa Bulletin for February 2024 noted that absent legislative action, the non-minister special immigrant program was set to expire on February 2, 2024.

15. USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities – According to a newly released report, U.S. Citizenship and Immigration Services data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver EB-2 petition approvals for individuals engaged in STEM activities.

16. CBP Updates Website, Provides Trusted Traveler Processing Times – In an effort to reduce unscheduled visits to Trusted Traveler Program Enrollment Centers, U.S. Customs and Border Protection has expanded the TTP-related topics on its public website portal.

17. DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations – Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations.

18. ABIL Global: The Netherlands – This article discusses the principle of single nationality in Dutch law and the proportionality test, and how they work in practice.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – February 2024

1. USCIS Announces Registration Period, Instructions, and Updates for FY 2025 H-1B Cap Season

U.S. Citizenship and Immigration Services (USCIS) has announced that the initial registration period for the fiscal year 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. During that period, prospective petitioners and their representatives, if applicable, must use a USCIS online account to register each beneficiary electronically and pay the associated registration fee.

The final rule makes several changes. For example:

Instead of selecting by registration, USCIS will select registrations by unique beneficiary. Each unique beneficiary who has a registration submitted on their behalf will be entered into the selection process once, regardless of how many registrations are submitted on their behalf.
Start date flexibility will be provided for certain H-1B cap-subject petitions. Filing will be permitted with requested start dates that are after October 1 of the relevant fiscal year.
Registrations must include the beneficiary’s valid passport information or valid travel document information, and a beneficiary is prohibited from being registered under more than one passport or travel document. USCIS said the modification to allow for a valid travel document “is intended to narrowly accommodate stateless individuals, refugees, and others who are unable to obtain valid passports, and is directly in response to public comments.”

Details:

USCIS final rule, 89 Fed. Reg. 7456 (Feb. 2, 2024).

2. USCIS Issues Final Rule With New Filing Fees

U.S. Citizenship and Immigration Services (USCIS) published a final rule, effective April 1, 2024, to adjust certain immigration and naturalization benefit request fees. The final rule includes fee increases for various categories, such as:

I-129 H-1B (named beneficiaries), from $460 to $1,080
I-129 H-1B (named beneficiaries, small employers and nonprofits), from $460 to $540
I-129 L Nonimmigrant Workers, from $460 to $1,385
I-129 L Nonimmigrant Workers (small employers and nonprofits), from $460 to $695
I-526/526E Immigrant Petition by Standalone Regional Center, from $3,675 to $11,160

Among other things, the final rule also:

Imposes a new Asylum Program Fee to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or Form I-140, Immigrant Petition for Alien Worker. The fee will be $0 for nonprofits; $300 for small employers (defined as firms or individuals having 25 or fewer full-time employees); and $600 for all other filers of Forms I-129 and I-140.
Allows for half-price Employment Authorization Document applications for adjustment of status applicants and a reduced fee for adjustment of status applicants under the age of 14 in certain situations; and
Implements a standard $50 discount for most online filers. The discount does not apply “in limited circumstances, such as when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee.”

Details:

USCIS final rule, 89 Fed. Reg. 6194 (Jan. 31, 2024).
USCIS FAQ on fee rule (Jan. 31, 2024). The FAQ includes a full list of the revised forms effective April 1, 2024, along with the new fees. USCIS said it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024. During the grace period, USCIS will accept both previous and new editions of certain forms, filed with the correct fee.

3. USCIS Releases Additional Details About Organizational Accounts

During a public engagement session, U.S. Citizenship and Immigration Services (USCIS) unveiled additional details about its launch of organizational accounts in February 2024, in time for non-cap filings and the fiscal year 2025 H-1B cap season. USCIS noted:

A company can designate representatives who will have the authority to review, sign on behalf of the company, and pay (if necessary) the filing fees associated with submissions. Those designated individuals will be deemed as the “Administrators” for the company and will need to either create their own USCIS accounts or leverage their existing ones if they have served as company representatives for H-1B cap registration purposes.
For companies, Administrators will have a wide range of account management capabilities, from creating working Groups, inviting other Administrators, Legal Representative Teams, or regular working Group Members to collaborate on projects within the created corporate Group. Administrators are also the only account holders authorized to review, sign, and submit filings on behalf of the organization.

The Alliance of Business Immigration Lawyers (ABIL) recommends that companies contact their ABIL attorney for advice and help with the new platform.

Details:

USCIS news release (Jan. 12, 2024).

4. USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’

On January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

USCIS said that extraordinary circumstances may include, for example, work slowdowns or stoppages involving a strike, lockout, or other labor dispute, or the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.

Details:

USCIS alert (Jan. 24, 2024).

5. DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights

On January 13, 2024, the Department of Homeland Security (DHS) announced that noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” DHS explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from … exploitive employers.”

DHS said that in addition to providing new guidance to labor agencies regarding processes to seek deferred action for certain workers, DHS will also provide for a single intake point for deferred action requests from noncitizen workers that are supported by labor enforcement agencies. In addition to satisfying individual criteria to facilitate case-by-case determinations, DHS said, requests for deferred action submitted through this centralized process “must include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction.”

Discretionary grants of deferred action under this process will typically last for two years, DHS said. Those granted deferred action may be eligible for work authorization if they can demonstrate an economic necessity for employment. They may also be eligible for subsequent grants of deferred action “if a labor agency has a continuing investigative or enforcement interest in the matter identified in their original letter supporting DHS use of prosecutorial discretion,” DHS said.

Details:

DHS Support of the Enforcement of Labor and Employment Laws (Jan. 17, 2024).
DHS press release (Jan. 13, 2024).

6. DHS Extends and Redesignates Syria for TPS, Announces Student Relief

The Department of Homeland Security (DHS) is extending and redesignating Syria for Temporary Protected Status (TPS).

DHS also announced Special Student Relief for F-1 nonimmigrant students from Syria. DHS said this will enable eligible students to request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain F-1 status through the TPS designation period.

Below are highlights of the extension and redesignation.

Extension. TPS will be extended for Syria for 18 months, beginning on April 1, 2024, and ending on September 30, 2025. DHS said this extension allows existing TPS beneficiaries to retain TPS through September 30, 2025, if they otherwise continue to meet the eligibility requirements for TPS. Existing TPS beneficiaries who wish to extend their status through September 30, 2025, must re-register during the 60-day re-registration period, which will begin on the date the notice is published in the Federal Register (expected to be January 29, 2024), and run for 60 days.

Redesignation. DHS is also redesignating Syria for TPS. The agency explained that the redesignation allows additional Syrian nationals (and individuals having no nationality who last habitually resided in Syria) who have been continuously residing in the United States since January 25, 2024, to apply for TPS for the first time during the initial registration period, which will begin on the date the notice is published in the Federal Register (expected to be January 29, 2024), and will remain in effect through September 30, 2025. In addition to demonstrating continuous residence in the United States since January 25, 2024, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since April 1, 2024.

DHS said, “It is important for re-registrants to timely re-register during the re-registration period and not to wait until their Employment Authorization Documents (EADs) expire, as delaying reregistration could result in gaps in their employment authorization documentation.”

Details:

DHS notice (Syrian TPS) (advance copy).
USCIS news release (Syrian TPS) (Jan. 26, 2024).
ICE notice (Special Student Relief for Syrians) (advance copy).

7. USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely

On January 26, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a new process for most applicants, petitioners, requestors, and their attorneys and accredited representatives to pay for certain benefit request forms by mail or remotely instead of in person at a field office. Under the new process, applicants may mail either a check or Form G-1450, Authorization for Credit Card Transactions, to the field office with their benefit request.

In addition, USCIS said, attorneys and accredited representatives now can process payments for EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer, through a link in the email they receive or via text from the USCIS Contact Center. Once such a payment has been processed, attorneys and accredited representatives must mail their client’s EOIR-29; their EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals; and their Pay.gov receipt to the field office.

An exception to the new process is emergency advance parole (EAP) requests, USCIS said. Applicants submitting Form I-131, Application for Travel Document, with an EAP request must still make an appointment with the USCIS Contact Center, apply in person with their package (completed form and supporting documentation), and pay the application fee (if applicable) by credit card with Form G-1450 or check at the field office.

Details:

USCIS alert (Jan. 26, 2024).

8. DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants

The Department of State (DOS) has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first.

DOS said it will make available a maximum of 20,000 application slots during this pilot program. Approximately 2,000 per week will be for applicants whose most recent H-1B visa was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023, and approximately 2,000 per week will be for applicants whose most recent H-1B visa was issued by U.S. Mission India with an issuance date of February 1, 2021, through September 30, 2021.

Participation in the pilot program is voluntary. DOS said that individuals who do not meet the requirements for participation in the pilot program, or those who choose not to participate in the pilot program, may continue to apply for visa renewal at a U.S. embassy or consulate overseas.

Details:

DOS guidance/FAQs.

9. CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program

A new U.S. Customs and Border Protection (CBP) interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program (G-CNMI VWP) to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program (EVS-TAP) as a restricted sub-program of the G-CNMI VWP.

CBP said that the CNMI EVS-TAP is being established based on consultations between the United States and the CNMI under the Covenant to Establish the Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Once implemented, EVS-TAP will allow prescreened nationals of the People’s Republic of China to travel to the CNMI without a visa under specified conditions.

Comments must be received by March 18, 2024, using the method set forth in the interim final rule.

Details:

CBP interim final rule, 89 Fed. Reg. 3299 (Jan. 18, 2024).

10. DOL Seeks OMB Approval, Comments on O*NET Data Collection Program

The Department of Labor (DOL) has submitted the O*NET Data Collection Program to the Office of Management and Budget (OMB) for review and approval.

DOL said that O*NET is “an ongoing effort to collect and maintain current information on the detailed characteristics of occupations and skills for more than 900 occupations. The resulting database provides the most comprehensive standardized source of occupational and skills information in the nation.”

OMB will consider all written comments that the agency receives by February 16, 2024.

Details:

DOL O*NET OMB notice, 89 Fed. Reg. 2985 (Jan. 17, 2024).

11. U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks

Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico, which has fallen since the start of 2024, due in part to Mexico’s resumption of enforcement efforts that had been paused. According to reports, the discussion included a variety of topics, and no major announcements resulted.

After a visit by U.S. officials to Mexico in late December, the two countries issued a joint communique reaffirming their mutual commitment to “orderly, humane and regular migration.” Topics discussed included addressing the root causes of migration; initiatives for Cubans, Haitians, Nicaraguans, and Venezuelans; enhanced efforts to disrupt human smuggling and trafficking; and promoting legal migration pathways. Also discussed were bilateral trade and the benefit of regularizing the situation of long-term undocumented Hispanic migrants and Deferred Action for Childhood Arrivals recipients. The new meeting in January was a continuation of those discussions.

Details:

Top U.S., Mexican Officials in Washington for Migration Talks, Voice of America (Jan. 19, 2024).
Briefing, Department of State (Jan. 18, 2024).
Mexico-U.S. Joint Communique (Dec. 28, 2023).

12. USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations

U.S. Citizenship and Immigration Services (USCIS) plans to launch organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. Organizational accounts “will allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations, Form I-129, Petition for a Nonimmigrant Worker, and associated Form I-907, Request for Premium Processing Service,” USCIS said. The agency also plans to introduce online filing for I-129 H-1B petitions and H-1B I-907 premium processing service.

USCIS expects to launch the organizational accounts in February 2024, with online filing of Forms I-129 and I-907 following shortly thereafter. USCIS will transition the paper filing location for Forms I-129 and I-907 from service centers to the USCIS lockbox.

Details:

USCIS news release (Jan. 12, 2024).

13. Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024

On January 12, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2024 with start dates on or before March 31, 2024, under the
H-2B supplemental cap temporary final rule. USCIS said January 9, 2024, was the final receipt date for petitions requesting supplemental H-2B visas under the FY 2024 first half returning worker allocation.

USCIS said it is still accepting petitions for H-2B nonimmigrant workers with start dates on or before March 31, 2024, for the additional 20,000 visas allotted for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation), as well as those who are exempt from the congressionally mandated cap.

USCIS encouraged petitioners with start dates on or before March 31, 2024, whose workers were not accepted for the 20,716 returning worker allocation, to file under the country-specific allocation while visas remain available. As of January 12, 2024, USCIS said it has received petitions requesting 4,500 workers under the 20,000 visas set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

Details:

USCIS alert (Jan. 12, 2024).

14. February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category

The Department of State’s Visa Bulletin for February 2024 noted that absent legislative action, the non-minister special immigrant program was set to expire on February 2, 2024. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight February 1, 2024. Visas issued before that date were valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must have been admitted into the United States no later than midnight February 1, 2024, the bulletin said.

The bulletin noted that if there were no legislative action extending the category beyond February 2, 2023, “the category will immediately become ‘Unavailable’ as of February 2, 2023. In the event there is legislative action extending the category beyond February 2, the published dates will continue to be in effect for the remainder of February.”

Details:

Visa Bulletin, Dept. of State (Feb. 2024).

15. USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities

According to a newly released report, U.S. Citizenship and Immigration Services (USCIS) data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver (NIW) EB-2 petition approvals for individuals engaged in STEM activities, compared to fiscal year 2021, before USCIS issued new policy guidance in January 2022. USCIS noted:

From FY 2021 to FY 2022, total receipts of Form I-140, Immigrant Petition for Alien Workers, with and without waivers (combined) increased by 20 percent, from 70,600 to 84,470. Receipts continued to increase by another 10 percent from FY 2022 to FY 2023. Approvals increased by 60 percent from 57,810 in FY 2021 to 92,280 in FY 2022, but decreased about 12 percent from 92,280 in FY 2022 to 81,380 in FY 2023. The approval rate remained at 90 percent or above throughout FY 2018-FY 2023. Total EB-2 receipts in STEM job categories decreased by almost 13 percent, from 61,790 in FY 2022 to 53,960 in FY 2023. Receipts in non-STEM job categories increased by 28 percent during that time.
An increasing number of EB-2 petitioners are requesting NIWs, USCIS said. The number of petitions with NIW requests almost doubled, from 21,990 in FY 2022 to 39,810 in FY 2023; the number of petitions without NIW requests dropped from 62,490 to 53,200.
From FY 2021 to FY 2022, total receipts of Form I-129 for O-1A petitioners increased 29 percent, from 7,710 to 9,970. They continued to increase slightly from 9,970 in FY 2022 to 10,010 in FY 2023 (see Figure 4). Approvals followed a similar trend by increasing by 25 percent from FY 2021 to FY 2022, from 7,320 to 9,120. They continued to increase slightly from 9,120 in FY 2022 to 9,490 in FY 2023. The approval rate remained stable at 90 percent or above throughout FY 2018-FY 2023.
From FY 2021 to FY 2022, total approvals of STEM-related O-1A Form I-129 petitions increased 29 percent, from 3,550 to 4,570. From FY 2022 to FY 2023, approvals remained almost the same, from 4,570 to 4,560. Approvals of non-STEM-related petitions followed a similar trend increasing 21 percent, from 3,410 in FY 2021 to 4,140 in FY 2022. Approvals increased slightly from 4,140 in FY 2022 to 4,380 in FY 2023.

The January 2022 policy guidance clarified how certain professionals in STEM fields can demonstrate eligibility for (a) the NIW in employment-based immigrant status (EB-2), along with the significance of letters from governmental and quasi-governmental entities, and (b) nonimmigrant status for individuals of extraordinary ability (O-1A).

Details:

STEM-Related Petition Trends: EB-2 and O-1A Categories FY 2018-FY 2023, USCIS (N.D.).
USCIS Policy Alert, PA-2022-03 (Jan. 21, 2022).

16. CBP Updates Website, Provides Trusted Traveler Processing Times

In an effort to reduce unscheduled visits to Trusted Traveler Program (TTP) Enrollment Centers, U.S. Customs and Border Protection (CBP) has expanded the TTP-related topics on its public website portal to include the ability to select the option “update documents in my account.”

CBP also noted that processing times vary by applicant, but on average applicants can expect these timeframes:

Global Entry: 4-6 months
NEXUS: 12-14 months
SENTRI: 10-12 months
FAST: 1-2 weeks

CBP said applicants should check the Trusted Traveler Program website periodically for updates or the status of their applications. Additionally, CBP noted that those who submit renewal applications before their membership expires can continue to use the benefits after the membership expiration date.

17. DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations

Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations.

To compute the 2024 annual adjustment, DOL multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.03241, and rounded to the nearest dollar.

Details:

DOL final rule, 89 Fed. Reg. 1810 (Jan. 11, 2024).

18. ABIL Global: The Netherlands

This article discusses the principle of single nationality in Dutch law and the proportionality test, and how they work in practice.

One solid principle of Dutch nationality law is that dual nationality must be avoided. As a result of the Tjebbes ruling by the European Union (EU) Court of Justice, this principle is mitigated by a proportionality test for cases of automatic loss of Dutch nationality. A provision to this effect was introduced in the Netherlands Nationality Act (NNA) on April 1, 2022.

The most frequent cases of automatic loss of Dutch citizenship result from:

Voluntary acquisition of another nationality; or
Prolonged stay abroad in the possession of two (or more) nationalities.

There are exemptions. For example, acquiring a second nationality does not lead to loss of Dutch nationality if one is married to a person of the new nationality. Nevertheless, these cases occur frequently, and for many of the affected individuals, it is not so much the fact of losing Dutch nationality but rather the automatic character of the loss that strikes the most. It happens by act of law; a decision by a Dutch authority to revoke the nationality is not necessary. The victim often only finds out that they are not Dutch anymore when they try to renew their Dutch passport.

The Tjebbes Ruling

As of April 1, 2022, a new provision was included in the NNA following the Tjebbes ruling by the EU Court of Justice of March 12, 2019. Through a new subcategory of the “option procedure,” this group of persons can request to regain their Dutch citizenship. The option procedure is, next to naturalization, a way to request Dutch nationality, in particular for persons of Dutch descent and former Dutch nationals. By submitting an option request based on the new provision, a proportionality test can be requested. The test examines whether the loss of Dutch citizenship was in effect disproportionate.

This criterion was applied in the Tjebbes ruling, in which the EU Court mentioned several circumstances that may be weighed in the proportionality test, mainly related to the person’s rights of free movement and residence in the EU territory and whether these have been lost due to the loss of nationality.

Nationality law is increasingly influenced by EU law. This has softened somewhat the strictness of the Dutch law in avoiding dual nationality. Former Dutch nationals now have a formal remedy against disproportionality of the loss of their nationality.

In practice, the standard to meet is high. Case law will determine how effective this proportionality test will turn out to be.

New Publications and Items of Interest

DHS session on fee changes. The Department of Homeland Security will hold a virtual public engagement session on changes to immigration benefit fees made by a final rule. The session will be held at 2 p.m. ET on February 22, 2024. To register, input your email address at https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_1081.

USCIS webinar on H-1B electronic registration process. U.S. Citizenship and Immigration Services will present a webinar on the fiscal year 2025 H-1B electronic registration process on Wednesday, February 21, 2024, from 2 to 3:30 p.m. ET. The webinar will include updates on changes to the process, a step-by-step overview of how to submit an H-1B registration, and a Q&A session.

Immigration agency X (formerly Twitter) accounts:

EOIR: @DOJ_EOIR
ICE: @ICEgov
Study in the States: @StudyinStates
USCIS: @USCIS

E-Verify webinar schedule: E-Verify released its calendar of webinars.

Alliance of Business Immigration Lawyers:

ABIL is available on X (formerly Twitter): @ABILImmigration

ABIL Member / Firm News

Charles Foster, of Foster LLP, recently discussed federal and state immigration policies at the U.S. southern border on C-SPAN’s Washington Journal broadcast.

Fredrikson’s Immigration Group will host a discussion, New Developments and Trends in Immigration Law and Preparing for the Upcoming H-1B Lottery Season, on Thursday, February 15, 2024, at 12 p.m. CT on preparing for the upcoming H-1B lottery season and new developments and trends in business immigration. Presenters will discuss FY 2025 H-1B cap season preparation, the status of proposed immigration legislation and regulations, and agency processing and adjudication updates.

Klasko Immigration Law Partners, LLP, has published a new blog post: USCIS to Launch Organizational Accounts Mid-February.

Cyrus Mehta has authored a new blog post: CSPA Disharmony: USCIS Allows Child’s Age To Be Protected Under the Date for Filing While DOS Allows Child’s Age To Be Protected Under the Final Action Date.

Mr. Mehta and Kaitlyn Box have authored several new blog posts: Musings on Brand X As a Force for Good Ahead of the Supreme Court Ruling on Chevron Deference and USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour.

Angelo Paparelli has authored a new blog post: Worrisome Waiting: How Will USCIS “Modernize” the
H-1B Visa Program?

Siskind Susser, P.C., announced that “Gen,” a generative artificial intelligence project on which colleagues at the firm have been working, is launching on January 16, 2024. A collaboration between Visalaw.ai and the American Immigration Lawyers Association, Gen is powered by OpenAI’s GPT4 large language model. According to Siskind Susser, it has 100,000+ pages of immigration law documents, treatises, and data sets and can answer most immigration law questions, and provide citations and links to the documents it uses to create the answers. Unlike ChatGPT, the answers are derived only from Siskind Susser’s law library, and lawyers can check the original source material to ensure the accuracy of the answers provided. Gen also allows lawyers to upload their own documents. Aside from answering questions, Gen will draft petition letters, memos, RFE responses, checklists, questionnaire forms, and many other kinds of documents. It also can summarize and translate documents. To join the waiting list for Gen, go to www.visalaw.ai .

Siskind Susser, P.C., announced that Jason Susser was promoted to Partner. Siskind Susser said that Mr. Susser is a leader in managing immigration matters for founders of technology startup companies. He authored the book, “Immigration for Startups: A Guide for Founders,” and is an immigration advisor to several of the country’s top business schools and startup accelerators. He has become a “go-to immigration lawyer for entrepreneurs in Silicon Valley.” Mr. Susser is also an entrepreneur and is a founder of Visalaw Ventures, a technology company spun off from Siskind Susser.

Stephen Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: Can Joe Biden ‘Shut Down the Border’ on His Own? “Closing the border arguably would violate” domestic and international asylum laws,” he said.

Mr. Yale-Loehr was quoted by the Los Angeles Times in A Decade-Old Scalia Dissent Is Now Driving the Texas-Biden Dispute Over Illegal Immigration. Referring to new Texas law SB4, which the article notes “would authorize Texas police and state judges to arrest, detain and deport migrants who are suspected of crossing the border illegally,” Mr. Yale-Loehr said, “This is a frontal assault on the federal primacy in immigration enforcement, and it’s definitely going to the Supreme Court.”

Mr. Yale-Loehr was quoted by the Chicago Tribune in No Help: The Federal Immigration Deal Won’t Fix the Migrant Crisis in Chicago—and It’s Unlikely to Pass Congress Anyway. “When migrants enter the United States at the border, they have ‘credible fear interviews’ lasting up to 10 to 20 minutes with immigration authorities,” he said. Mr. Yale-Loehr also noted that proposed legislation recommends raising the bar for asylum eligibility, which means there could be more expedited removals after migrants’ credible fear interviews. “That may reduce the number of asylum-seekers in Chicago because they’re deemed not even to be eligible to apply for asylum at the border.”. He also noted that migrants don’t often understand nuanced changes in immigration policy: “People who are fleeing likely don’t read the New York Times. They are going to come no matter what the law is or how Congress changes.”

Mr. Yale-Loehr was quoted by the Economist in America’s Immigration Policies Are Failing: A New Surge of Migration is Straining a Broken System and Might Cost Joe Biden the Election (available by subscription). The article notes that the immense wait for a court hearing, low chance of detention, and the prospect of work in the United States encourage migrants with a weak claim to cross the border and claim asylum. Prioritizing the most recent arrivals’ cases would reduce this incentive, Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by the Boston Globe in Biden Has Been Giving Millions of Migrants False Hope; Desperate People Have Been Allowed Into the Country While They Apply for the Right to Stay, But Such Permission is Very Difficult to Obtain. He said that many migrants may “lose [their case for] asylum, either because they don’t have an attorney to represent them or they don’t have a strong case on the merits.” Coming from countries with difficult political circumstances isn’t enough to support an asylum claim, the article notes—asylum is granted based on persecution due to race, religion, nationality, membership in a particular social group, or political opinion. “It’s very hard to show that the persecution is well-founded based on one of those five characteristics,” he explained. In the meantime, the article suggests, a large number of migrants live in uncertainty. “That’s bad for our legal system, it’s bad for our economy, and it’s also bad for the migrants themselves,” Mr. Yale-Loehr said. The article also quotes from a recent paper Mr. Yale-Loehr co-authored that calls for expanding other legal pathways to the United States for migrants beyond asylum. “We cannot cut off all avenues to asylum, but we also cannot continue to accept applications from all who arrive, especially those with highly unlikely claims,” the paper says. Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now.

Mr. Yale-Loehr was quoted by the Chronicle of Higher Education in Why a Court Challenge to an Obscure Fisheries Regulation Could Upend Student Visa Policy (available by registration). The article discusses a pending Supreme Court case that may have implications for international students and institutions of higher education. He said, “Colleges and universities may think cases involving fisheries regulation have nothing to do with them, but what the Court decides will affect them one way or another.” He said the Supreme Court’s decision could have an impact on international-student policy in several ways: it could put any current legal challenges on hold until the fisheries cases are decided; it could change the federal government’s approach to rulemaking in progress, such as updates to the skilled worker visa program that affect both international students and foreign workers hired by colleges and universities; and if a new standard were applied retroactively, that would allow past policy disputes, like those affecting optional practical training, to be revisited in the courts.

Mr. Yale-Loehr was quoted by the New York Times in Lawyer and Son Ensnared Hundreds of Immigrants in Fraud Scheme (available by subscription). The article discusses a case in which, according to prosecutors, a lawyer and his son advised clients seeking green cards to sign petitions under the Violence Against Women Act (VAWA), which enables undocumented immigrants who are victims of abuse to gain lawful permanent residence in the United States. Mr. Yale-Loehr said he had never heard of someone using VAWA to conduct immigration fraud, but such fraud can be hard to root out. “If it sounds too good to be true, it probably is. If someone says, ‘I can guarantee you a green card if you just sign here,’ that’s a sure sign that something is funny.”

Mr. Yale-Loehr was quoted by CBS News in Biden Administration Has Admitted More Than 1 Million Migrants Into U.S. Under Parole Policy Congress is Considering Restricting. If Congress restricts parole, it would curtail a key presidential power, he said. “Every administration, Republican and Democratic, has used parole because in an emergency, like the Mariel boatlift or the Hungarian Revolution, you want to have something that allows you to bring in large groups of people to get them out of harm’s way. Every administration wants to have maximum flexibility and anything that the Republicans do to require restrictions on parole will hamper any future administration.”

Mr. Yale-Loehr was quoted by the Daily Caller in Biden And Abbott Have Set the Stage for One of the Biggest State-Versus-Feds Immigration Fights in More Than a Decade. The article discusses Texas’s challenge to the role historically played by the federal government in immigration law enforcement and a related complaint filed by the Biden administration in the Supreme Court accusing Texas of overstepping its authority with anti-immigration measures. The Supreme Court previously ruled in favor of the federal government in an Arizona case, but it’s not clear whether the same will be true in the Texas case. “The question is now that we’ve got three different justices on the Supreme Court than were on the court on the Arizona case, will the current Supreme Court rule the same way? I suspect that Texas is hoping that with more conservative justices on the Supreme Court now, they might be able to come out with a different result than Arizona,” Mr. Yale-Loehr said.

Mr. Yale-Loehr announced a webinar, Immigration Slavery in America: A True Story of Forced Labor and Liberation, to be held Tuesday, February 6, 2024, at 2 p.m. ET. Mr. Yale-Loehr will moderate a discussion with author Saket Soni and panelists about Mr. Soni’s book, The Great Escape. The book tells the story of a group of immigrants trapped in the largest human trafficking scheme in modern U.S. history. The webinar is co-sponsored by the Cornell Migrations Initiative and Cornell Law School’s Migration and Human Rights Program.

Mr. Yale-Loehr co-authored Is Chevron Dead? Thoughts After Oral Arguments in Relentless, Inc. and Loper Bright Enterprises, published by Think Immigration.

Mr. Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: What Branch of Government is ‘Really’ Responsible for the crisis at the border? He said, “Each of the three branches of government has a role to play in immigration law and policy, and each has failed. The result: a quagmire, where nothing gets resolved and matters get worse every day. Every branch of government is to blame.” For example, the courts have ruled both with and against the executive branch under both Republican and Democratic administrations, Mr. Yale-Loehr said. “Thus, people don’t know how courts will rule, which reduces predictability. Moreover, litigation takes time, and is not a good way to manage immigration law and policy.” https://www.politifact.com/article/2024/jan/17/ask-politifact-what-branch-of-government-is-really/

Government Agency Links

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

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

ABIL Global Update • April 2023

April 01, 2023/in Global Immigration Update /by ABIL

In this issue:

1. SELF-EMPLOYMENT VISAS: AN OVERVIEW – This article provides an overview of self-employment visas in several countries.

2. AUSTRALIA – Australia is granting thousands of refugees permanent visas after a decade of uncertainty.

3. CANADA – The government of Canada has announced forthcoming new Post-Graduation Work Permit measures.

4. ITALY – The Italian government has approved a new immigration law decree.

5. MEXICO – This article provides a summary of the non-lucrative Temporary Resident Visa.

6. SCHENGEN AREA – This article answers frequently asked questions about the Schengen visa-free system.

7. UNITED KINGDOM – New immigration rules are being implemented. Also, some updates from sponsors are now automated.

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

9. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – April 2023

1. SELF-EMPLOYMENT VISAS: AN OVERVIEW

This article provides an overview of self-employment visas in several countries.

Canada

Interested in working as a self-employed person in Canada? The visa options might be more narrow than you think. As of April 1, 2021, the Ministry of Immigration, Refugees and Citizenship Canada (IRCC) removed the Owner/Operator category from the Temporary Foreign Worker Program (TFWP). The Owner/Operator program enabled applicants to apply for a work permit in Canada without having to comply with the job advertisement regulatory requirements listed under the Labour Market Impact Assessment (LMIA). Unlike a regular high-wage/low-wage LMIA, the Owner/Operator LMIA was an opportunity for entrepreneurs to work in and immigrate to Canada while simultaneously receiving 200 Comprehensive Ranking System (CRS) points for Express Entry—essentially guaranteeing the opportunity to apply for permanent resident status in the future. The end of the owner/operator LMIA means those perks are off the table and the immigration landscape for self-employed persons in Canada has shifted. So, with the Owner/Operator program gone for almost two years, what has filled that void?

Currently, the closest alternative to the Owner/Operator LMIA is the Self-Employed Persons Program, which allows a person to immigrate to Canada permanently as self-employed. The catch? To immigrate as a self-employed person, you must have relevant experience in cultural activities or athletics—a criterion that many do not happen to meet. In this context, relevant experience refers to a minimum of two one-year periods being self-employed or participating at a world-class level in cultural activities or athletics. The two years of relevant experience must be completed during the period starting five years before the day you apply and ending on the day the IRCC makes a decision on your application. While there is no net worth requirement for the program, applicants must satisfy a visa officer that they have enough money to settle in Canada with their dependents and finance the cultural or athletic work on which their selection was based.

For those who have dual intent to immigrate to Canada as a temporary worker and then eventually as a permanent resident, the C11 Entrepreneur Work Permit, under the International Mobility Program (IMP), is a good alternative. The C11 work permit is suitable for three groups of people: (1) self-employed individuals who would like to start a business in Canada; (2) entrepreneurs who would like to buy a business or franchise in Canada; and (3) individuals who were selected under any of the Entrepreneur streams of the Provincial Nominee Program. In each case, all applicants are required to own a minimum of 50% of the company. Under section 183 of the Immigration and Refugee Protection Regulations (IRPR), applicants must satisfy the officer that they have the ability and willingness to leave Canada once their temporary work permit expires. Self-employed applicants who are solely seeking temporary residence have the additional burden of proving that their business would generate significant economic, social, or cultural benefits, or opportunities for Canadian citizens. Significant benefits refer to significant economic stimulus, as well as advancement of the Canadian industry in which the person works, both of which may be hard to prove to visa officers.

On the other hand, applicants seeking eventual permanent residence under the C11 work permit, not including Québec, may apply for a work permit under the actual or potential provincial nominees undertaking business activities portal. A key eligibility requirement under this stream is that the foreign national must have a letter of support from the respective province or territory of which they are seeking residency that indicates the significant economic, social, or cultural benefit that the person will bring to Canada. With that being said, all work permits issued under IMP C11 can only be issued for a maximum period of two years. Once this period has elapsed, an extension can only be granted if an application for permanent residence is being processed or in exceptional circumstances, i.e., for significant investment projects or applicants for whom a provincial nomination certificate is still pending. If the latter is true, the applicant also requires an additional letter of continued support from the province or territory where they reside. However, extension approvals are hard to come by.

Ultimately, there are no great visa options for self-employed persons wishing to immigrate to Canada. Since the cessation of the Owner/Operator LMIA, the Self-Employed Persons Program, and the C11 Entrepreneur Work Permit have sought to act as the recommended pathways for self-employed persons to obtain a work permit in Canada. However, despite the aforementioned visa options, it’s clear that there are many gaps in the system—leaving many skilled self-employed persons, working in various industries, behind.

Going forward, the IRCC needs to create a streamlined pathway for self-employed persons to be able to work in Canada. Self-employed workers shouldn’t need to jump through a multitude of hoops to bring business to Canada; they deserve better.

Italy

The type and number of self-employment (Lavoro Autonomo) authorizations available to non-European Union (EU) nationals are set by the quota decree (decreto-flussi). Not all self-employment categories are available each year. The most common categories available each year are:

Entrepreneurs intending to implement an investment plan of interest for the Italian economy, involving an investment of at least €500.000 and creating at least three new jobs in Italy. https://www.mazzeschi.it/self-employment-visa-for-entrepreneurs-intending-to-implement-an-investment-plan-in-italy/
Freelancers/independent contractors who intend to practice regulated or controlled professions (i.e., individuals belonging to a professional association or enrolled with an official/public register) or professions that are not non-regulated but are considered representative at the national level and are included in the lists edited by the Public Administration.
Holders of corporate office or administrative/controlling positions (e.g., Chairman, CEO, member of board of directors, auditor) in an Italian company, active for at least three years (requirements set in Visa Decree May 11, 2011 n. 850).
Foreign citizens who intend to set up innovative start-up companies, under certain conditions, who will have a self-employment relationship with the start-up. https://www.mazzeschi.it/italy-startup-visa/ https://medium.com/agileinsider/italys-start-up-visa-6a442a9fdbd1
Internationally well-known and highest-repute artists, artists of recognized highly professional qualification, or artists who are hired by well-known Italian theaters, important public institutions, public television, or well-known national private television (requirements set in Visa Decree May 11, 2011 n. 850).

General eligibility requirements include:

Suitable accommodation in Italy;
Financial resources exceeding the minimum level set by law for exemption from the healthcare contribution (€8,500);
Police Clearance (Nulla Osta) in Italy; and
Certificates, documents, or attestations as required for the type of self-employment activity to be performed (applicants must meet the legal requirements for the performance of the activity in question, including, when required, the prerequisites for entering into professional registers).

Some categories of self-employment visas are issued outside the quota decree (e.g., translators and interpreters, university professors, lecturers, managers in an intra company framework).

Details:

“Italy Self-Employment Visa,” Mazzeschi S.r.l. https://www.mazzeschi.it/italy-self-employment-visa/

“Italy’s Freelance Visa: Not as Easy as it Sounds!,” Mazzeschi S.r.l. https://www.mazzeschi.it/italys-freelance-visa-not-as-easy-as-it-sounds/

“Can You Work Remotely While on Holiday in Italy? How Much ‘Remote Work’ Is Allowed If You Do Not Have a Work Visa?,” Mazzeschi S.r.l. https://mm-63015.medium.com/can-you-work-remotely-while-on-holiday-in-italy-3d5ce4eeabd

Mexico

In general terms, Mexico does not allow a visa based on self-employment. The government believes that if the self-employment visa were an option for foreigners to enter Mexico, a considerable number of foreigners would be coming to Mexico to live and work by themselves.

However, there are some exceptions to authorize this type of activity, for example, for economic dependents provided that their main activity continues to be economic dependence on the principal; self-employed work can be authorized as a secondary activity. If an economic dependent decides to be self-employed, he or she must request a work permit from the National Immigration Institute.

For permanent residents, self-employment is allowed. In fact, permanent residents may carry out any legal activity in Mexico. Mexican immigration law establishes an obligation to notify authorities about new activities within a 90-day period after the new work begins.

A foreigner may incorporate a company in Mexico—a small enterprise, for example—then register the company before the immigration authorities and request a work permit.

Netherlands

Dutch immigration rules for independent entrepreneurs are based on the concept of added value for the Dutch economy. This translates into a points-based system (PBS). U.S. and Japanese nationals are exempt from the PBS. Also exempt previously were high net worth individuals investing at least €1.25 million, but this scheme was discontinued in 2022 for lack of interest.

Entrepreneurs (e.g., self-employed, business owners, contractors) are those who own 25% or more of the stake in a company, run entrepreneurial risk, and can influence the level of their own salary. They are not eligible for employee permit categories, which are generally more straightforward than the PBS, which in some cases is a high threshold to meet.

The allocation of points is administered by RVO (Rijksdienst voor ondernemend Nederland), an agency of the Ministry of Economic Affairs. The processing time is around three to six months. Applicants receive a residence permit for two years, renewable as long as the business is kept active and generates an income equal to at least the national statutory minimum wage. Points can be earned for personal experience, business plan, and added value. In each of these categories, 30 points (out of a potential 100 per category) must be obtained, or, alternatively, 45 points in categories 1 and 2. A detailed business plan and accountant-verified financial forecasts are essential for a successful application.

As noted above, U.S. nationals and Japan are exempt from the PBS. The 1956 Treaty of Friendship and Trade allows U.S. entrepreneurs to obtain a residence permit, provided that “substantial” capital is invested in the business. The policy guidelines explicitly quote €4,500 as a substantial amount. Comparable criteria apply to Japanese entrepreneurs, based on the 1913 bilateral Trade and Seafaring Treaty. This makes the entrepreneur scheme a particularly attractive scheme for these nationalities.

2. AUSTRALIA

Australia is granting thousands of refugees permanent visas after a decade of uncertainty.

On February 12, 2023, the Australian government announced that refugees who arrived in Australia before 2013 can now transition to a permanent Resolution of Status (RoS) visa. Approximately 19,000 refugees who have essentially lived in indefinite limbo over the past decade will now be able to build their lives in Australia with certainty.

The RoS visa allows for immediate Social Security payments, and access to the national disability insurance scheme and higher education loans. Once the residence requirements have been met, these refugees also can apply for Australian citizenship. Being granted a permanent visa also means that applications can be submitted for separated family members to come to Australia.

3. CANADA

The government of Canada has announced forthcoming new Post-Graduation Work Permit measures

On March 17, 2023, the Honourable Sean Fraser, Minister of Immigration, Refugees, and Citizenship, announced that the government of Canada will be passing special measures that will allow eligible former international students who hold a Post-Graduation Work Permit (PGWP) to apply for an extension or renewal of their permit of up to 18 months.

Beginning April 6, 2023, former international students whose PGWP expired or is expiring in 2023 can apply for an extension to their PGWP of up to 18 months. Former international students who applied for an extension to their PGWP under the 20 22 special measures can apply for an additional PGWP extension of up to 18 months under the new 2023 measures. Furthermore, eligible former international students whose PGWPs already expired and who need restoration of status can apply to restore their status even if they are beyond the 90-day restoration period, and can apply for a new work permit and receive interim work authorization during the processing of their new PGWP application.

Below is a summary of these developments:

No extension to PGWPs before COVID-19

Before the COVID-19 pandemic, PGWPs could not be extended. As such, former international students who had obtained a PGWP at the completion of their studies usually had to apply for either permanent residence or another type of work permit if they wished to continue working and remaining in Canada after the expiration of their PGWP.

Special measures for PGWPs following COVID-19

Since COVID-19, the Government of Canada passed a set of measures to address labor shortages in Canada, and to help employers find and retain talented and qualified foreign workers.

Among the measures implemented during the COVID-19 pandemic were those allowing former international students with PGWPs expiring between September 20, 2021, and December 31, 2022, to apply for an extension to their PGWP of up to 18 months. The measures also included the option to apply for interim work authorization for all holders of a PGWP expiring between September 20, 2021, and December 31, 2022, and an authorization for those who needed to restore their status to do so even if they were beyond the 90-day restoration period.

Additional special measures for PGWPs

As stated in the announcement of the Honourable Sean Fraser of March 17, 2023, the government of Canada will be implementing additional special measures as of approximately April 6, 2023, that will allow certain former international students who hold a PGWP that expired or is expiring in 2023, and who meet the eligibility criteria, to apply for an extension or renewal of their work permit of up to 18 months. Moreover, certain eligible former international students who held a PGWP will benefit from a special authorization allowing them to apply for a new work permit, receive interim work authorization during the processing of their application, and restore their status even if they are beyond the 90-day restoration period.

The government of Canada stated that PGWP holders who are eligible to apply under the new 2023 PGWP special measures will receive a communication in their Immigration, Refugees and Citizenship Canada (IRCC) Secure Account informing them of their eligibility.

More detailed instructions and information are to follow in the coming weeks.

Closing remarks

The Government of Canada announcement of March 17, 2023 represents another important step to address Canada’s labour shortage and help Canadian employers in their efforts to find and retain qualified workers and talent. The 2023 PGWP special measures are also in line with recent initiatives led by IRCC such as the recent temporary pilot project to lift the 20-hour off campus work cap for certain qualifying international students. As we have throughout the years, the Gomberg Dalfen team will continue to keep you updated about recent and new developments in Canadian immigration law.

Details:

Post-Graduation Work Permit Program—[R205(c)-C43]—International Mobility Program, Government of Canada. https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program.html

4. ITALY

The Italian government has approved a new immigration law decree.

On March 9, 2023, the Italian government approved a new immigration law decree that includes interesting updates to Italian immigration law. The decree will be converted into law by the parliament within 60 days after its publication in the official gazette (March 10, 2023).

The points indicated below are not yet confirmed, as the parliament may modify the decree before converting it into law.

Major changes include:

Residence permits for work and family reasons can be renewed for three years instead of two years.
It will be possible to convert study residence permits into work permits without being subject to the quota limitations, also for those students not graduating in Italy.
The “quota” will be issued every 3 years (Decreto Flussi will be published every three years instead of every year).
Foreign nationals may engage in work-related activities while waiting for the contract of stay to be signed.
There are restrictions to the rules for special protection permits.
Tougher punishments are being introduced for traffickers who contribute to the bodily harm or death of people being transported illegally.

5. MEXICO

This article provides a summary of the non-lucrative Temporary Resident Visa.

The COVID-19 pandemic has had a significant impact on the way people work, with many companies and employees shifting to remote work to comply with social distancing guidelines and stay-at-home orders. Overall, the pandemic has accelerated the trend toward remote work, and it is likely that remote work will continue to be a more common and accepted way of working in the future.

From an immigration perspective, many countries are exploring the possibility of offering a “nomad” visa, and some others have already updated their laws and now offer a nomad visa. Mexico is not offering a specific “nomad visa” or program, but it does offer a Temporary Resident Visa that can be obtained for a variety of purposes, including studying, working, or retirement.

While the Temporary Resident Visa’s non-lucrative activities are not specifically designed for digital nomads, the visa can be a viable option for those who wish to live and work in Mexico for an extended period and continue working remotely. The Temporary Resident Visa for non-lucrative activities, in general terms, will be the appropriate immigration visa for foreigners coming to Mexico to work remotely, provided that they continue to receive their salaries or income from abroad.

Moreover, the non-lucrative visa is a type of visa that allows individuals to live in Mexico for an extended period without engaging in any paid work or remunerative activities. This type of visa is typically intended for individuals who have sufficient financial resources to support themselves while living in the host country and who wish to spend an extended period of time there for leisure or other non-work-related purposes.

To obtain a non-lucrative visa to work remotely and live in Mexico, foreigners must meet certain requirements, such as proof of economic solvency, demonstrating that they have a steady source of income or savings to support themselves during their stay in Mexico, explaining the activities to be carried out, and identifying the city where they plan to live, among others.

This type of visa is requested directly at the Consulate General of Mexico of the foreigner’s choice as the first step of the process. The second and final stage of the process is to convert the consular visa to the temporary resident card for non-lucrative activities.

6. SCHENGEN AREA

This article answers frequently asked questions about the Schengen visa-free system.

In which countries does the visa waiver apply?

The visa-free regime applies to stays in the territories of the European Union (EU) Member States, except for the United Kingdom and Ireland. The EU Member States covered by the visa waiver are:

The EU Member States that are part of the Schengen area: Austria, Belgium, the Czech Republic, Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, and Sweden;
The EU Member States that do not yet fully apply the Schengen acquis (those who are not yet part of the Schengen area without internal borders): Bulgaria, Cyprus, and Romania. Stays in these states are not calculated in the overall period of stay for the Schengen area. Instead, the 90-day limit is calculated individually for each of these states. For example, after a 90-day stay in the Schengen area, a person can immediately travel to Bulgaria and stay for another 90 days there;

The visa waiver, in principle, also applies to the associated Schengen states: Iceland, Liechtenstein, Norway, and Switzerland.

Does the visa waiver include the French and Netherlands overseas territories?

Regarding France and the Netherlands, visa-free travel applies only to the European territory of these Member States. The visa regime between the overseas territories of these Member States and the six countries remains subject to bilateral arrangements between the countries concerned or to national legislation.

The overseas territories of France are Guadeloupe, Martinique, French Guiana, Réunion, French Polynesia, New Caledonia, Mayotte, Saint Pierre and Miquelon, Wallis and Futuna, Saint Barthélemy, Saint Martin, Clipperton Island, and the French Southern and Antarctic Lands.

The overseas territories of the Netherlands are Aruba and the Netherlands Antilles (consisting of Bonaire, Curaçao, Saba, Saint Eustatius, and Saint Martin).

How long can I stay without a visa in the Schengen area?

The date of entry is considered as the first day of stay in the Schengen territory.
The date of exit is considered as the last day of stay in the Schengen territory.
The 180-day reference period is not fixed. It is a moving window, based on the approach of looking backward at each day of the stay (be it at the moment of entry or at the day of an actual check, such as inland police control or border check upon departure).
Absence for an uninterrupted period of 90 days allows for a new stay of up to 90 days.

Periods of the previous stay authorized under a residence permit or a long-stay visa are not taken into account in the calculation of the duration of visa-free stay. Residence permits and long-stay visas are subject to different rules, and the above explanations and calculations do not apply to them.

Can I enter the Schengen area more than one time during that period?

Yes, you can. However, you must carefully calculate your days of stay; the overall period of stay must not exceed the overall total of 90 days of stay within any 180-day period (see above).

What travel documents are needed to enjoy visa-free travel to the Schengen area?

You will need a passport issued within the previous 10 years and valid for at least three months after the intended date of departure from the Schengen area.

Does the visa waiver include the right to enter the territory of the Schengen States?

The visa waiver does not give an unconditional right of entry and stay. The Member States have the right to refuse entry and stay in their territories if one or more of the entry conditions are not met.

For stays not exceeding 90 days in any 180-day period, the entry conditions for third-country nationals include:

Possession of a valid travel document (see question 4, above) or documents authorizing them to cross the border;
Justification for the purpose and conditions of the intended stay, and having sufficient means of subsistence, both for the duration of the intended stay and for the return;
Not being a person for whom an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry; and
Not being considered to be a threat to public policy, internal security, public health, or international relations with any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purposes of refusing entry on the same grounds.

What documents do I need to show to the immigration officer at the port of entry?

You need to show your passport. In addition, you might be asked to show documents proving your purpose and conditions of stay (for example, tickets for further journeys and return tickets; reservations for accommodation; an invitation letter in case of visits, conferences or events; a school enrollment certificate in case of study) as well as evidence of sufficient means of subsistence (see below).

How much money do I need to have with me to travel to the Schengen area?

According to Article 5(3) of the Schengen Border Code, “means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed.” To assess the means of subsistence, the reference amounts set by each Schengen State must be taken into account.

The verification of sufficient means of subsistence may be based on cash, travelers’ checks, and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national legislation and letters of guarantee/invitation from hosts, as defined by national legislation, in the event that the third-country national is staying with a host, may also constitute evidence of sufficient means of subsistence.

A credit card’s validity may be verified by contacting the issuing company or by using other facilities available at the border crossing point (e.g., exchange offices). An invitation from hosts may be verified by contacting the host directly or by verifying the host’s good faith through national contact points of the Member States in which the host resides.

Is travel medical insurance always necessary for travel in the Schengen area?

Travel medical insurance is not mandatory for visa-free third country nationals. However, it is recommended for travel to the Schengen countries.

For what purposes can I travel without a visa to the Schengen area?

You can come as a tourist, to visit friends or family, to attend cultural or sports events or exchanges, for business meetings, for journalistic or media purposes, for medical treatment, for short-term studies or training, and for any similar activities. The visa waiver does not apply to persons traveling for the purpose of carrying out a paid activity in the Member States, i.e., for those who are coming to work in the EU (see question below).

Do I need a visa to work in the Schengen area for less than 90 days?

Yes, most of the Member States require a visa and a work permit if you intend to work there, even if it is for less than 90 days. Contact the embassy/consulate of the Member State where you intend to work to ask whether a special type of visa and work permit are needed.

If I plan to visit a friend or relative living in the Schengen area, will I need to provide any specific information about this person at the border?

You may be asked to provide information on this person. It is recommended to have at least the address and contact number.

Will I need to apply for a visa and/or study permit if I plan to travel to the Schengen area for short-term studies?

You will need to apply for a study permit only if you intend to undertake studies exceeding 90 days of stay in the Schengen area within a period of 180 days. For longer studies, you must apply for a study permit, and the rules vary from country to country. It is recommended to consult the embassy/consulate of the country in which you intend to study.

Once the visa-free travel applies, can I travel from one Schengen country into another country?

There are no border controls between countries in the Schengen area. Border controls are carried out between the Schengen countries and Bulgaria, Cyprus, and Romania (the EU Member States that do not yet fully apply the Schengen acquis). Controls are also carried out between Schengen countries and Ireland (which does not belong to the Schengen Area).

Non-EU citizens must fulfill all entry conditions (see question 5) and might need to demonstrate that at possible ad hoc controls in the Schengen area.

If I stay beyond 90 days (without a residence permit or a long-term visa) or work in the Schengen area (without a working permit), what could happen?

A non-EU national who stays in the Schengen area beyond 90 days (without a residence permit or long-stay visa) is illegally present, which can result in a re-entry ban to the Schengen area. Working in the Schengen area without a work permit is also illegal (even if less than 90 days) and can likewise result in a re-entry ban to the Schengen area. Depending on the Member State, administrative penalties may also apply.

Details:

Italian Immigration & Citizenship, Mazzeschi S.r.l., Mar. 2023. https://www.mazzeschi.it/mazzeschi-asiadesk/wp-content/uploads/2023/02/Mazzeschi-Italian-Immigration-and-Citizenship-magazine-March-2023_compressed.pdf

7. UNITED KINGDOM

New immigration rules are being implemented. Also, some updates from sponsors are now automated.

New Immigration Rules

New Immigration rules were set forth recently by the United Kingdom (UK). The main changes and implementation dates are below, including important updates for sponsors.

Sponsored Worker Salary Thresholds and Related Changes

The minimum salary requirements to sponsor staff under the Skilled Worker and Senior or Specialist Worker (previously known as Intra-Company Transfer [ICT]) categories will change for all applications where the Certificate of Sponsorship (CoS) is assigned on or after April 12, 2023:

Skilled Worker. For most applications, sponsors must pay the higher of the general salary threshold, the going rate for the role, or the hourly rate:

General salary threshold: up from £25,600 to £26,200. A lower general threshold may apply if, for example, the applicant is a new entrant (such as a student or someone under 26 years old) or the role is in a shortage occupation. The lower general threshold is increasing from £20,480 to £20,960.
Going rates. The going rate for each type of job (occupation code) is changing. The new rates are shown starting on page 39 of the statement of changes. Going rates are currently prorated based on a 39-hour work week. Starting on April 12, this will change to a 37.5-hour work week.
Hourly rate: up from £10.10 to £10.75.

Senior or Specialist Worker. The general threshold is increasing from £42,400 to £45,800 (and Graduate Trainee applications from £23,100 to £24,220). The going rates for a Skilled Worker are also changing.
Irregular working patterns. In a new development, the rules will account for those being sponsored to work a pattern where their regular hours are not the same each week, resulting in uneven pay.
Absence from work. Normally, if a sponsored worker is absent from work without pay for more than four weeks during a calendar year, their sponsorship must end. Under the new rules, jury service and attending court as a witness are added to the list of permitted reasons for absences that will not count toward the four-week period.

Given that some minimum salary thresholds are increasing, sponsors may wish to assign any CoS for upcoming applications by April 11, 2023.

Other Changes

Electronic Travel Authorisation (ETA) scheme. The UK is implementing a U.S.-style electronic pre-travel authorization system of its own. The ETA will require non-visa nationals (those who do not require a visa before traveling to the UK as a visitor, and therefore are not on the visa national list) to apply for electronic pre-travel authorization. If the authorization is refused due to a criminal conviction, for example, the traveler will need to apply for a visitor’s visa. The ETA will start in November 2023 for Qatari nationals before extending to nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia, and the United Arab Emirates in February 2024 and thereafter will be extended to all other non-visa nationals (including U.S., Australian, and Canadian nationals).
Youth Mobility Scheme. As of April 12, 2023, New Zealanders applying for the Youth Mobility Scheme will be eligible if they are ages 18-35 (it is normally 18-30) and will receive a three-year visa instead of the normal two years.
Innovator Founder replaces Start-Up. As of April 13, 2023, applicants seeking to establish an innovative business in the UK can apply for the new Innovator Founder route. The new route has no minimum investment funds requirement (currently £50,000). Unlike under the Start-Up route, Innovator Founders will be permitted to undertake employment in skilled roles (RQF Level 3 or above), outside the running of their business.
Long residence settlement (indefinite leave to remain) applications. It is possible to apply for settlement after 10 years of continuous lawful residence in the UK. In a change starting on April 13, 2023, prospective applicants should be aware that time spent in the UK as a visitor or short-term student, or on the seasonal worker routes, will not count toward long residence. Applicants who have spent time as a visitor (or on other temporary permission) who are later granted permission on another basis will still be able to qualify for long residence settlement, but they will need to wait longer to do so.

UKVI Automates Some Updates From Sponsors

In other news, UK Visas and Immigration (UKVI) recently notified sponsors that they no longer need to wait many weeks or pay a priority service fee to replace their Authorising Officer or Key Contact, or to add a level 1 user. This type of update now takes effect as soon as the request has been made in the Sponsor Management System (SMS), provided that the postcode of the person to be added matches the postcode of the sponsor or their representative as shown in the SMS. A signed submission sheet still must be sent to UKVI for a change of Authorising Officer.

Also, annual allocation renewals for most types of Certificates of Sponsorship (CoS) will be automated as of June 24, 2023. Sponsors will be granted the number of CoS they assigned during the previous year. Sponsors whose annual allocation expires before June 24 will need to submit a renewal request through the SMS unless they have had automatic renewals in previous years.

8. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: https://www.abil.com/

ABIL is also available on Twitter: https://twitter.com/abilimmigration

9. ABIL Member / Firm News

Several Gomberg Dalfen, S.E.N.C. lawyers were named in the 2023 edition of the Canadian Legal Lexpert Directory, including Seth Dalfen, Avi Gomberg (bio: https://www.abil.com/abil-lawyers/avi-gomberg/), Genevieve Hénault, and Lisa Middlemiss. They are ranked lawyers based on the Lexpert® peer Survey. This year, the overall national response rate from law firm practitioners to the survey was 76 percent.

IMMpact Immigration Litigation (Joseph & Hall, PC, Kuck Baxter, Siskind Susser PC, and Bless Litigation LLC) announced a call for plaintiffs in prevailing wage determination litigation. IMMpact will represent individuals who filed Forms ETA 9141, Application for a Prevailing Wage Determination (PWD), before October 1, 2022. IMMPact plans to sue the Office of Foreign Labor Certifications (OFLC) and the Department of Labor because “the OFLC is failing to work on these applications in a timely manner.” IMMpact notes that OFLC is currently processing Forms ETA-9141 that were filed in January 2022. “The failure to adjudicate these applications in a timely manner adversely impacts employers’ ability to hire needed employees, threatens those in H-1B classification with losing their status, and adversely affects the ability of institutions of higher education to meaningfully take advantage of the special handling procedures implemented to ensure the most qualified professors are hired,” IMMpact said. https://www.immpactlitigation.com/prevailing-wage-determination-litigation-plaintiff-onboarding/

Klasko Immigration Law Partners, LLP, has launched a new website that is responsive to mobile and tablet devices. https://klaskolaw.com/

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was included on the Top 100 list of Georgia Super Lawyers, as the only immigration lawyer on the list.

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) presented “Nonimmigrant Options for Singaporeans,” hosted by Enterprise Singapore on March 13, 2023, during SxSW Interactive in Austin, Texas. The presentation reviewed U.S. immigration classifications, options, timeframes, red flags, and trends available to a delegation of companies and startups from Singapore.

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by the Times of India in “USCIS New Guidelines on Employer’s Ability to Pay May Help Startups Retain Talent.” Mr. Mehta said, “The new ‘Ability to Pay’ (ATP) guidance may help employers who may not have sufficient net income or be able to show that the difference between the net current assets exceed[s] the next current liabilities in their tax returns. The guidance allows for an analysis of ‘other factors’ to demonstrate the employer’s ability to pay especially when companies operate at a loss for a period to improve their business position in the long run.” Mr. Mehta added that the new guidance “might thus help startups to demonstrate their ability to pay by submitting other evidence including bank statements, personnel records, credit lines, gross sales and revenues as well as media accounts about the company and its overall reputation.”

Mr. Mehta authored a new blog post: “The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced to Allow Many More Backlogged Immigrants to File Adjustment of Status Applications.”

Mr. Mehta and Kaitlyn Box co-authored several new blog postings:

“Khedkar v. USCIS Affirms That Employee Also Has an Interest in an I-140 Petition Filed by Employer,” http://blog.cyrusmehta.com/2023/02/khedkar-v-uscis-affirms-that-employee-also-has-interest-in-an-i-140-petiiton-filed-by-employer.html
“Making Sense of USCIS’s Twitter Posts on Applying for Jobs or Attending Interviews While in Visitor Visa Status,” http://blog.cyrusmehta.com/2023/04/making-sense-of-usciss-twitter-posts-on-applying-for-jobs-or-attending-interviews-while-in-visitor-visa-status.html
“Second Circuit Upholds Trump Era Interpretation on Administrative Closure Even Though Biden Has Changed It. Does This Leave Open Possibility that Biden Era Interpretation May Also Be Upheld if Future Administration Changes It?”
“Dealing with Section H.10-B Labor Certification Denials,” http://blog.cyrusmehta.com/2023/03/dealing-with-section-h-10-b-labor-certification-denials.html

Mr. Mehta and Jessica Paszko co-authored several new blog postings: “Pathways for H-1B Workers Who Want to Become Entrepreneurs,” http://blog.cyrusmehta.com/2023/03/pathways-for-terminated-h-1b-workers-who-want-to-become-entrepreneurs.html; and “National Interest Waiver for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization.” http://blog.cyrusmehta.com/2023/02/national-interest-waiver-changes-for-stem-graduates-and-entrepreneurs-along-with-premium-processing-will-benefit-h-4-spouses-seeking-work-authorization.html

Mr. Mehta and Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) were quoted by the Times of India in “Laid-Off H-1B Workers to Get 6-Month Reprieve.” The article discusses a recommendation by a presidential advisory panel to extend the grace period for laid-off H-1B workers from 60 to 180 days. In the past six months, the article notes, many laid-off H-1B employees have highlighted on social media their plight of trying to find another job within the 60-day grace period after a layoff. Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services (USCIS) “is not required to follow that recommendation.” Moreover, he said, even if USCIS were to extend the grace period, the agency “might have to go through the normal rulemaking process to do that. That could take months.” Also, he noted, if USCIS extends the grace period, “expect a lawsuit by U.S. workers challenging the change as beyond the immigration agency’s authority. Finally, a grace period extension wouldn’t apply retroactively to help H-1B workers already laid off. In sum, laid-off H-1B workers should not get their hopes up yet.” Mr. Mehta called the recommendation “good news” and said the extended period would not take effect immediately. “The actual regulation at 8 CFR (Code of Federal Regulations) needs to be amended, which is a process, since the administration must allow for notice and comment to the public before changing a rule,” he said. https://timesofindia.indiatimes.com/business/international-business/laid-off-h-1b-workers-may-get-6-month-reprieve/articleshow/98679904.cms?from=mdr

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) discussed immigration history, law, politics, and related issues in “Episode 34: Immigration Law: Outspoken Changemaker in a Convoluted Maze,” part of the “Fill to Capacity” podcast series. https://www.nationofimmigrators.com/2023/01/outspoken-changemaker-in-a-convoluted-maze/

Greg Siskind, of Siskind Susser, PC, spoke on an American Bar Association (ABA) Techshow panel recently and was quoted by the ABA Journal on artificial intelligence (AI) tools and platforms for lawyers: “There are lower tech, low-code or no-code platforms available to build automation tools. When we’re talking about AI for lawyers, we’re basically talking about automating tasks in your practice.” He said his firm uses Afterpattern, which allows firms, legal aid organizations and courts to create document and workflow automations. The article notes that Mr. Siskind has used the platform to build an app that screens Ukrainians for Temporary Protected Status eligibility. He has also used it as a drafting tool, which the article says enables him to onboard hundreds of plaintiffs in mass immigration litigation in a short amount of time. “The whole thing happens in a matter of minutes. Before, we put tons and tons of labor into getting that information and drafting the declarations. Now, we can start onboarding for a case and file it two weeks later,” he said. Mr. Siskind added that he has used Afterpattern for Form I-9 digitization and auditing and for generating retainers. In the past few months, he also began to use Casetext’s CoCounsel to conduct research for his mass immigration litigation, the article notes. “Everything that I hate about ChatGPT is like, ‘It’s nice it said that, but what is that based on?’ ” Siskind said. “But this tool basically produced a 20-page memo that had all the cases that discussed a particular issue, links to those cases and summaries under each citation telling us what that particular case was about. It was wonderful for the amount of time it saved.” https://www.abajournal.com/web/article/how-can-lawyers-use-ai-to-improve-their-practice

Mr. Siskind appeared on an MSNBC “Morning Joe” segment with the co-founders of Casetext. https://www.msnbc.com/morning-joe/watch/first-ever-a-i-legal-assistant-makes-its-debut-164266565592

WR Immigration, a nationally ranked Tier 1 law firm, was named a 2023 Legal Technology Trailblazer by the National Law Journal. The annual list recognizes companies pioneering in the legal industry by developing technology that improves how legal professionals and law firms operate. WR Immigration was recognized for its proprietary Immigration Management System, WRapid™—a centralized, cloud-based platform and Enterprise Resource Planning solutions software for business immigration. https://wolfsdorf.com/wrapid-recognized-as-legal-technology-trailblazer-by-the-national-law-journal-for-best-immigration-software/

WR Immigration will present a webinar on the Department of Homeland Security’s (DHS) announcement of a new process to protect undocumented whistleblowers, on Thursday, May 11, 2023, at 11 a.m. PT. WR Immigration and Hirschfeld Kraemer LLP will discuss what employers need to know. Attorneys will share their insights on what employers can expect in the months ahead, including likely claims and how employers can prepare in light of the new DHS policy. https://wolfsdorf.com/us-department-of-homeland-security-announces-new-process-to-protect-undocumented-whistleblowers/ (article); https://us02web.zoom.us/webinar/register/5916790874887/WN_Ko4qkNdRQAyCpRpYWxfbow (webinar)

WR Immigration published “USCIS Issues Policy Alert on Evidence for Employers’ Ability to Pay Proffered Wage.” https://wolfsdorf.com/uscis-issues-policy-alert-on-evidence-for-employers-ability-to-pay-proffered-wage/

WR Immigration published “Celebrating Black History Month: WR Recognizes Two Important Figures.” WR showcased two prominent figures in the black immigrant community in the United States “who have made an amazing impact through their civil advocations and humanitarian efforts: Miriam Makeba and Dikembe Mutombo.” https://wolfsdorf.com/celebrating-black-history-month-wr-recognizes-two-important-figures/

In the latest edition of “Chatting with Charlie” on the May Visa Bulletin outlook, WR Immigration Director of Visa Consulting Charlie Oppenheim, Partner Charina Garcia, and Senior Associate Laura Bloniarz update HR professionals with the latest employment-based green card processing information from the April and May Visa Bulletins. https://wolfsdorf.com/chatting-with-charlie-webinar-unpacking-the-april-and-may-visa-bulletins/

WR Immigration recently presented a webinar, “Alternatives to the H-1B Lottery.” Ms. Garcia and Audrey Lustgarten discussed what to do when considering global alternatives, including alternative U.S. options, a review of immigration options to confirm eligibility, non-immigration factors, and more. https://wolfsdorf.com/webinar-alternatives-to-the-h-1b-lottery/

Mr. Yale-Loehr co-authored “DACA, Public Health, and Immigrant Restrictions on Healthcare in the United States,” which was published in the May 2023 edition of the Lancet Regional Health-Americas, a leading medical journal. The article discusses the consequences of court developments for Deferred Action for Childhood Arrivals (DACA) and broader efforts to expand access to healthcare for immigrant populations in the United States. https://www.sciencedirect.com/science/article/pii/S2667193X23000674?via%3Dihub

On February 24, 2023, Cornell Law School sponsored “Immigration Reform: Lessons Learned and A Path Forward,” a conference held at the National Press Club in Washington, DC. Both in-person and over Zoom, about 220 people attended the conference, which explored targeted legislation and other policy changes that could be enacted in 2023. Panels focused on three topics: work visa changes to help alleviate high-skilled and low skilled-labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers, and others. “Major reforms require the convergence of a widely recognized problem, policy solutions, and sufficient political will, ” said Mr. Yale-Loehr, conference co-organizer and moderator. “Our conference brought together expert scholars, analysts, and advocates to probe ways to clarify key problems, identify achievable policies, and build the political will needed to enact them. We hope to build on the conference discussions to develop constructive proposals that have a realistic chance of enactment this year.” https://www.lawschool.cornell.edu/news/law-school-sponsors-conference-on-immigration-reform-at-national-press-club/

Mr. Yale-Loehr was quoted by the New York Times in “In Rare Victory, Immigrants Prevail in Suit Over Meat Plant Raid.” The article reports on a case involving nearly 100 immigrants who were rounded up during a 2018 raid at a meat processing plant in Tennessee and have reached a $1.17 million settlement against the U.S. government and federal agents, who they said used racial profiling and excessive force during the operation. The article notes that the settlement agreement, approved February 27, 2023, in the U.S. District Court for the Eastern District of Tennessee, is likely the first class settlement over an immigration enforcement operation at a work site, according to immigration experts. In the past, only individual immigrants have reached settlements related to immigration raids, the article says, adding that legal experts have called it a rare victory for undocumented immigrants. Mr. Yale-Loehr said, “It is very hard to win a settlement from the U.S. government and agents in immigration enforcement cases. The outcome is particularly important because federal agents were held accountable for overreaching and racial profiling.” https://www.nytimes.com/2023/02/27/us/meat-plant-raid-immigrants-tennessee.html (subscription required)

Mr. Yale-Loehr was quoted by Univision in ” ‘Cruel,’ ‘Illegal,’ ‘Immoral,’ ‘Disappointment’ … Rain of Criticism Regarding Biden’s New Asylum Immigration Policy at the Border.” Mr. Yale-Loehr said, “The Biden administration is between a rock and a hard place. Congress has failed to reform our broken immigration system, and more and more people are trying to enter the United States for a variety of reasons, including persecution, gang violence, and climate change. The Biden administration hopes its proposed rule will survive a court challenge. I doubt it.”

Mr. Yale-Loehr was quoted by Cornell Law School News in “Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary.” Mr. Yale-Loehr said, “Because of the complexity of immigration law, it is very hard to win asylum for someone. We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.” He also said, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.” Over 20 years, the article notes, about 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated 66 percent of its cases, the article says. https://www.lawschool.cornell.edu/news/clinic_20th_anniversary/

Mr. Yale-Loehr was quoted by Marketplace in “As Summer Approaches, Labor Shortages Make Summer Hiring Tough.” He said that consumers will notice labor shortages “in terms of increased prices. When you go to a restaurant, because there’s not enough workers, you’re going to see it in terms of reduced hours” at restaurants and at the community recreation center, for example. https://www.marketplace.org/2023/04/14/labor-shortages-make-seasonal-hiring-tough-summer/

ABIL Global Update • April 2022

April 01, 2022/in Global Immigration Update /by ABIL

In this issue:

1. OPTIONS FOR UKRAINIANS: AN OVERVIEW – This article provides an overview of options for Ukrainians in several European Union countries following the invasion of Ukraine by Russia and massive migrant outflows.

2. ITALY – There is good news from the Italian government for people who seek to convert their permit of stay to a work permit.

3. RUSSIA – The Russian government has issued guidance for employers of foreign citizens with highly qualified specialist work permits who leave the Russian Federation for an indefinite period. Russia has lifted restrictions on the entry of persons from several countries. Also, there is a new list of professions that employers can use to hire foreign nationals from visa countries without having to apply for a quota for foreign labor first. In another development, citizens of the EAEU are no longer required to submit a negative PCR test result to enter the Russian Federation through land borders.

4. TURKEY – Turkey released information on vaccination requirements for entry.

5. UNITED KINGDOM – The adjusted right-to-work check process has been extended until September 30, 2022.

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

7. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – April 2022

1. OPTIONS FOR UKRAINIANS: AN OVERVIEW

This article provides an overview of options for Ukrainians in several European Union countries following the invasion of Ukraine by Russia and massive migrant outflows.

European Union

European Union (EU) Member States have decided to apply Council Directive 2001/55/EC of 20 July 2001 (on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof), thus introducing temporary protection for Ukrainian and Ukrainian residents fleeing from war.

Temporary protection quickly allows displaced persons to enjoy harmonized rights across the EU, including a residence permit; the possibility to engage in employed or self-employed activities; access to accommodation, social welfare assistance, and medical or other assistance; and means of subsistence. Temporary protection also benefits affected Member States because it limits the need for these displaced persons to immediately seek international protection and overwhelm the asylum systems of the Member States by reducing formalities to a minimum because of the urgency of the situation. The measures included in the Temporary Protection Directive and implementing national measures therefore allow the Member States to manage the influx of displaced persons in a controlled and effective way with full respect for fundamental rights and international obligations.

Also, according to the decision, Ukrainian nationals will have the right to obtain a residence permit immediately, valid for one year and extendable up to three years. Non-Ukrainian nationals residing in Ukraine on short term permits will be helped to leave the country but will then be repatriated. Those living in Ukraine for long-term periods with a permanent permit will be treated differently according to the Member State of relocation.

From a practical point of view, there could be some difficulties. For example, because this is an EU Directive, all Member States are required to implement it within their national law systems, which means that each Member State has discretion regarding how to implement it. Also, this Directive has never been applied before, which means that it is difficult to know, at least immediately, whether the Member States are correctly incorporating and implementing it.

Belgium

Relevant information for Belgians in Ukraine and Russia, and Ukrainians in Belgium, is at https://info-ukraine.be/en.

The Belgian federal immigration office confirmed that they “will examine the residence applications…with great care. Therefore, Ukrainians in Belgium should not worry if their residence permit expires in the next few weeks.” (https://dofi.ibz.be/en/themes/ukraine).

The most recent guidelines/regulations are briefly summarized below.

Temporary Protection Status

The European Directive discussed above has been transposed into Belgian law to provide for minimum standards for granting temporary protection in the event of a mass influx of displaced persons into EU territory.

Ukrainian nationals residing in Ukraine and their family members, as well as third-country nationals or stateless persons enjoying temporary protection in Ukraine and their family members, are eligible for temporary protection in Belgium, provided they resided in Ukraine on or before February 24, 2022.

Ukrainian nationals can present themselves every day (Saturdays and Sundays included) between 8.30 am and 5.30 pm at a registration center in Brussels (current address as of March 14, 2022, is Brussels Expo Hall, Palais/Hall 8 – Heysel, Verregat) with their Ukrainian identity documents to apply for temporary protection. Due to the increasing number of registrations, the authorities ask those who already have a place to stay to wait to register in order to allow prioritization for those in need of housing. Those who registered between March 7 and 13, 2022, at the first-used registration center do not have to come back to the current registration center in Palais 8 (Heysel).

After the registration is completed, a temporary protection certificate will be issued if the conditions for granting temporary protection are met.

The municipal administration of the place of residence can afterwards issue a residence permit type A valid until March 4, 2023 (potentially renewable). Before issuance of the residence permit type A, a temporary residence document “annex 15” can be issued while awaiting the residence permit type A.

Under Belgian law, third-country nationals with temporary protection status have unlimited access to the labor market as employees as soon as they hold the document “annex 15” and later the residence permit type A. This applies to Ukrainian nationals: they can work without the need to obtain a specific permit (work or single permit).

Temporary protection status does not allow self-employed work in Belgium: a specific permit (professional card) is required to legally work in Belgium as a self-employed person.

Short Stay in Belgium (< 90 days)

Ukrainian biometric passport holders are exempt from visa requirements for short stays (maximum 90 days) in Belgium. If the situation in Ukraine does not allow for safe return at the end of the 90 days, this period can be extended up to a maximum of 180 days. This extension is also possible for those who do not hold a biometric passport but who have received a visa to enter Belgium.

The federal immigration office reassures “Ukrainian citizens who are, or have arrived, legally in Belgium and who, due to the situation in their country, stay longer than the authorized stay,” but they “are advised to go immediately to the municipal administration of their place of residence to declare their arrival and/or to request the authorization to extend their stay in Belgium.”

Short-stay status does not allow work in Belgium.

Long Stay in Belgium (> 90 days)

The guidelines for long stay, e.g., for work or for family reunification, include:

For Ukrainian citizens who are still in Ukraine, in principle those who wish to come to Belgium should normally obtain a visa D (national long-stay visa) before traveling. It is now possible to apply for this visa at the Belgian Consulate General in Warsaw, Poland, since the Belgian Embassy’s offices in Kiev are currently closed.
For Ukrainian citizens who have left Ukraine and are already in the Schengen area, it is possible for them to apply for a residence permit directly at the municipal administration of their residence in Belgium. The conditions for granting this residence permit (study, work, family reunification) are maintained, but if the applicant cannot present the usual official documents, the immigration office will look for alternatives.
Ukrainian citizens who have left Ukraine and are in a country that is not part of the Schengen area can contact the Belgian embassy or consulate responsible for that country.
Ukrainian citizens who are legally residing in Belgium for a limited period of time and no longer meet the requirements for renewal of their residence card type A can obtain an extension of their authorized stay (end date of stay + 90 days). It is possible to extend this period up to a maximum of 180 days.

Flanders: Ukrainian Seasonal Workers

Specifically for Flanders, Ukrainian seasonal workers who are currently living and working in Belgium with a work permit valid for a maximum of 90 days can extend this work permit up to a maximum of five months overall, even when they will stay in Flanders for longer than 90 days in total.

Canada

Canada has committed to opening two new streams of immigration for Ukrainians.

First, a Canada-Ukraine Authorization for Emergency Travel (CUAET) allows Ukrainian nationals to apply for a visa without most of the usual requirements (free of charge, exempt from completing an immigration medical exam overseas, option to apply for a free open work permit, exempt from Canada’s Covid-19 vaccination requirements) excepting biometrics and ArriveCAN. No limit on the number of applications will be imposed, and pending a background check and security screening, the stay in Canada can be for up to three years. Canada intends to process a standard CUAET application within two weeks of receipt of the application. The steps to apply for this stream are at https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/ukraine-measures/cuaet.html

Second, Canada will implement a Special Family Reunification Sponsorship pathway for immediate and extended family members of Canadian citizens and permanent residents who are in Ukraine. For this pathway, details should follow in the coming weeks.

Ukrainians who will be coming to Canada through these two streams will be eligible to apply for an open work permit. Canada has also committed to issue open work permits to Ukrainian visitors, workers, and students who are currently in Canada and cannot go back due to the unsafe conditions. The Canadian government continues to encourage Ukrainians to apply through all available programs, as their applications will be prioritized.

Canadian immigration measures for people affected by the situation in Ukraine are at https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/ukraine-measures.html

Italy

Below is a summary of possible options applicable to Ukrainian citizens migrating to Italy now. This information was prepared based on the measures available at the moment; no official specifications had been issued yet.

Option 1: Special temporal permit of stay for “calamity”

This solution applies when the country of origin of a foreigner (applicant) is in a proven situation of a “situation of serious calamity,” which makes that person unable to return to their country due to safety concerns. This type of permit has a duration of 6 months and is valid only within the Italian territory. It allows foreigners to work in Italy and can be converted into a work permit.

However, it should be noted that this type of permit is for cases of “natural calamity,” but the applicable law does not specify cases regarding wars and similar conflicts.

Option 2: Asylum

Ukrainian citizens can apply for asylum in Italy. According to Italian law, there is no formal timeframe for making an asylum application. However, asylum seekers should file their applications as soon as possible. Immigration legislation prescribes, as a general rule, a deadline of 8 days from arrival in Italy for migrants to present themselves to the authorities.

An asylum application can be submitted either at the border police office or within the territory at the provincial Immigration Office (Ufficio immigrazione) of the Police (Questura), where fingerprinting and photographing (fotosegnalamento) are carried out. If the asylum application is submitted at the border, the Border Police invites asylum seekers to present themselves at the Questura for formal registration.

After the filing (verbalizzazione) of the application, the Questura sends the formal registration form and the documentation to the Territorial Commissions or sub-Commissions for International Protection located throughout the national territory, the only authorities competent to conduct the substantive asylum interview. The Questura then notifies the asylum seeker of the interview date to appear before the Territorial Commission.

Applicants can check for their local Questura office at https://questure.poliziadistato.it/localcity. A receipt, including a photo and the tax code of the applicant, is issued for the applicant to access health services.

Details:

For more information, see https://www.mazzeschi.it/temporary-protection-for-ukrainian-citizens-in-italy/

Ukrainian citizens who need to request temporary protection in Italy can also check the following links:

For further information, see https://www.interno.gov.it/it/info-utili-lingresso-dei-profughi-ucraini-italia

2. ITALY

There is good news from the Italian government for people who seek to convert their permit of stay to a work permit.

The deadline for sending applications to convert residence permits issued for other reasons into work permits has been extended from March 17 to September 30, 2022.

3. RUSSIA

The Russian government has issued guidance for employers of foreign citizens with highly qualified specialist work permits who leave the Russian Federation for an indefinite period. Russia has lifted restrictions on the entry of persons from several countries. Also, there is a new list of professions that employers can use to hire foreign nationals from visa countries without having to apply for a quota for foreign labor first. In another development, citizens of the EAEU are no longer required to submit a negative PCR test result to enter the Russian Federation through land borders.

Update on Highly Qualified Specialist Work Permits

Due to the current situation, many foreign citizens engaged in labor activity in the territory of the Russian Federation on the basis of work permits for highly qualified specialists may decide to leave the territory of the Russian Federation for an indefinite period.

Employers of such foreign citizens are reminded:

To maintain the employee’s status of highly qualified specialist, the employer must pay the minimum wage per month: 167,000 rubles gross. If it is impossible to pay wages (for example, if the employee took leave at his own expense), the minimum amount of wages within one quarter should be paid in the amount of 501,000 rubles before taxes.
The period of stay of a foreign citizen abroad should not exceed six months. If this period is exceeded, the work permit of the highly qualified specialist will be canceled. A similar rule applies to highly qualified specialists who have residence permits in the Russian Federation issued based on HQS work permits.
If a decision is made to terminate an employment contract with a foreign citizen, the employer should consult a lawyer as early as possible to receive advice on the specific case.

Restrictions on Entry Lifted for Several Countries

Starting March 30, 2022, restrictions have been lifted on the entry of citizens of Kazakhstan to the Russian Federation and on the exit of Russian citizens to Kazakhstan through the land section of the Russian-Kazakh border, as well as foreign citizens and stateless persons to Russia and Russian citizens to Mongolia through the land section of the Russian-Mongolian border. Previously it was only possible to travel to Russia from these countries by air.

Starting March 17, 2022, citizens of the Republic of Belarus can enter the Russian Federation, crossing the Russian-Belarus state border without any previously set restrictions, by car (previously entry was possible only by train and plane), and without the need to undergo sanitary-quarantine control.

Also, starting March 10, 2022, restrictions on entry into the Russian Federation of Russian citizens and foreign citizens from the following countries have been lifted:

Hong Kong Special Administrative Region

Botswana

Eswatini

Kenya

Lesotho

Madagascar

Mozambique

Namibia

Tanzania

South Africa

Zimbabwe

For the entry of foreign citizens from these countries (with the exception of certain cases as specified in paragraph 2 of the Order of the Government of the Russian Federation from 16.03.2020 No 635-r, “On temporary restriction of entry into the Russian Federation of foreign citizens and stateless persons and temporary suspension of issuance of visas and invitations,” for example, the residence permit owners or those who have relatives who are citizens of the Russian Federation), they must be included in the entry list compiled by the Federal Security Service of the Russian Federation and the Ministry of Internal Affairs of the Russian Federation. The Ministry of Internal Affairs has begun accepting documents for work permits and invitations for citizens of these countries, but submission is possible only after they are included in the lists of the Federal Security Service and the Ministry of Internal Affairs for entry.

New List of Professions for Employers Hiring Foreign Nationals

Also, starting March 29, 2022, a new order from the Ministry of Labour and Social Development introduces a renewed list of professions that employers can use to hire foreign nationals from visa countries without having to apply for a quota for foreign labor first.

Citizens of EAEU No Longer Required to Submit PCR Test Results to Enter Russia

EAEU citizens (Republics of Armenia, Belarus, and Kazakhstan, and the Kyrgyz Republic) entering the Russian Federation through land borders no longer need to submit a negative PCR test result.

Details:

Entry to Russia: Restrictions on Entry from Kazakhstan and Mongolia Lifted, Vista Immigration, https://vista-immigration.ru/entry-to-russia-restrictions-on-entry-from-kazakhstan-and-mongolia-lifted/
Entry to Russia: News (Belarus), Vista Immigration, https://vista-immigration.ru/entry-to-russia-news/
Entry to Russia: African Countries and Hong Kong, Vista Immigration, https://vista-immigration.ru/entry-to-russia-african-countries-and-hong-kong/
Quota-Free Standard Work Permit: New List of Professions, Vista Immigration, https://vista-immigration.ru/quota-free-standard-work-permit-new-list-of-professions/

Entry to Russia: The EAEU Citizens Are No Longer Required to Submit PCR, https://vista-immigration.ru/entry-to-russia-the-eaeu-citizens-are-no-longer-required-to-submit-pcr-to-enter-russia/

4. TURKEY

Turkey released information on vaccination requirements for entry.

Turkey has access to both the Pfizer/BioNTech and Sinovac vaccines. Citizens or lawful residents are eligible for free vaccination (three total), which is then immediately recorded in the Ministry of Health’s online system. The Ministry has a public mobile phone app (called E-nabuz) that verifies the date/type of vaccine the individual was given and produces an online certificate with a QR code to evidence vaccination status. The Ministry of Health can also produce a European Union (EU)-compliant vaccination certificate through the E-nabuz system for mobility within the EU.

Full vaccination at least two weeks prior to entry is required with a Ministry of Turkey-approved (or WHO-approved) vaccine OR a negative PCR test or proof of recovery from COVID-19.

Details:

For further information, see “Türkiye Travel Rules,” Turkish Airlines, https://www.turkishairlines.com/en-tr/announcements/coronavirus-outbreak/turkey-travel-rules/

5. UNITED KINGDOM

The adjusted right-to-work check process has been extended until September 30, 2022.

The COVID-19 pandemic-related video call temporary adjusted right-to-work check process was scheduled to end on April 5, 2022. However, in a welcome development, it has been extended until September 30, 2022. This means that employers can continue to use the adjusted process to check copies of right-to-work documents over a video call.

The extension is mainly to give employers more time to become comfortable with the new digital Identification Document Validation Technology (IDVT) checking process for British and Irish citizens due to launch on April 6, 2022. This means that employers who do not wish to start using the new IDVT process now will benefit longer from the adjusted process for checking British and Irish citizen employees. Beginning October 1, 2022, if they wish, employers will still be able to check original documents from British and Irish citizens without using the IDVT.

Beginning April 6, 2022, employers must perform an online check if the person has a biometric residence permit. It will not be possible to carry out an original document (manual) check or an adjusted check (over video) if the person has a biometric residence permit.

Details:

Right-to-Work Checks: What Employers Need to Know, Kingsley-Napley, https://www.kingsleynapley.co.uk/services/department/immigration/slp/right-to-work-checks

Right-to-Work Checks: An Employer’s Guide, UK Home Office, https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

7. ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by Forbes in “Immigration Policies at USCIS Lead to Denials of L-1B Petitions.” She said, “Some at USCIS have never understood the L-1 standard even though they have good guidance in the Adjudicator’s Field Manual. To properly apply it, each case must be evaluated individually—you cannot template an adjudication.” She also said she believes that a number of adjudicators “do not understand what preponderance of the evidence means” and are not comfortable approving cases where something is “more likely than not,” even though that is the legal standard. https://www.forbes.com/sites/stuartanderson/2022/02/16/immigration-policies-at-uscis-lead-to-denials-of-l-1b-petitions/?sh=60419abe1301

Ms. Butte was quoted by Forbes in “USCIS Issues Immigration Rule to Expand Premium Processing.” She said, “While the stakeholder community is grateful for the relatively quick expansion of premium processing to additional I-140 categories, the delayed implementation for Forms I-539 and I-765 is disappointing. Since, generally speaking, I-140 filers already have status and work permission while they wait for their applications to be adjudicated, the individuals most impacted by the continued delays are those who cannot work until the I-539 (application to change/extend status) and I-765 (application for employment authorization) are adjudicated.” https://www.forbes.com/sites/stuartanderson/2022/03/30/uscis-issues-immigration-rule-to-expand-premium-processing/

Vic Goel (bio: https://www.abil.com/lawyers/lawyers-goel.cfm?c=US) was quoted by Forbes in “Immigration Policies at USCIS Lead to Denials of L-1B Petitions.” He said, “Given that most clients and attorneys understand the requirements and aren’t interested in wasting significant time or money in filing speculative cases that aren’t approvable, it’s odd that denial rates for L-1B cases are substantially higher than for other business immigration cases. USCIS policy sets a very high bar for approval of cases involving specialized knowledge workers, requiring firms to document how a given worker’s knowledge of a company’s product, processes, research, or other interests is special or advanced relative to other employees. While the standard is not insurmountable, USCIS applies it in a way that favors documentary evidence while discounting the company’s own assessments of the worker’s importance and knowledge, notwithstanding that company officials are typically in the best position to determine whether an employee’s knowledge is truly special.” https://www.forbes.com/sites/stuartanderson/2022/02/16/immigration-policies-at-uscis-lead-to-denials-of-l-1b-petitions/?sh=60419abe1301

Charles Foster, of Foster LLP, addressed the state of immigration during his presentation, “The Need for U.S. Immigration Reform,” in a meeting for the Kiwanis Club of Houston, Texas, on February 17, 2022.

Mr. Foster was interviewed by KPRC in “Galveston County Law Enforcement Continues Sending Resources to the Border.” He said, “Congress has to solve this.” Regarding the impact on immigration courts of increased incidents along the border, Mr. Foster said, “We have taken a bad situation and it’s getting worse daily. We need more immigration judges, trial attorneys and asylum officers.”

Mr. Foster was a featured speaker at the 2022 kickoff meeting for ITServe Alliance Houston, the Houston, Texas, branch of a large network of Indian American IT and related companies.

Mr. Foster spoke at the grand opening of the Blossom Hotel on February 8, 2022, along with Bob Harvey, Chairman of the Greater Houston Partnership, and Houston Mayor Sylvester Turner. The Blossom Hotel is near the Texas Medical Center’s planned “TMC3” project, the “world’s largest life sciences campus,” which will bring together a large number of tech companies involving health-related technologies from across the United States. https://www.tmc.edu/news/2021/08/texas-medical-center-launches-worlds-largest-life-science-campus/

Mr. Foster was a keynote speaker at a sculpture dedication honoring Lyndon Baines Johnson. The event was held at the Holocaust Museum of Houston, Texas, on February 21, 2022.

Klasko Immigration Law Partners, LLP, published a new blog post: “FAQs for Temporary Protected Status (TPS) for Ukraine.”

Karuna Chandani Simbeck was promoted to partner at Klasko Immigration Law Partners, LLP. As part of the EB-5 team, Ms. Simbeck has assisted hundreds of immigrant investors. With years of experience in EB-5, she has prepared hundreds of I-526 petitions for clients from countries such as India, South Africa, the Philippines, Singapore, Vietnam, Turkey, the United Kingdom, and China. Ms. Simbeck is often called on to review petitions, Requests for Evidence (RFEs), and Notices of Intent to Deny (NOIDs) for other law firms, among her other activities. https://www.klaskolaw.com/wp-content/uploads/2022.01-Press-Release-Karuna-Chandani-Simbeck-Promoted-to-Partner.pdf

Andrew Zeltner was promoted to partner at Klasko Immigration Law Partners, LLP. He is an experienced employment-based immigration attorney and has been assisting clients for 20 years. He handles a wide array of corporate immigration matters and also assists individual clients. He has particular experience with hospitals and organizations in the medical field, artists and performers, universities, and innovative startups. He has significant experience providing employment-based U.S. immigration services. He has provided extensive advice to human resources professionals and corporate counsel regarding immigration compliance matters including I-9 and LCA compliance issues. https://www.klaskolaw.com/news/press-release-andrew-j-zeltner-elected-to-partnership-at-klasko-immigration-law-partners/

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) wrote a letter published by the Atlanta Journal-Constitution, “These Pro-Immigration Bills Would Help Dreamers and All Georgians.” Among other things, he said, “While Dreamers, and all Georgia immigrants, contribute upwards of $10 billion in taxes annually, they are limited in their contributions to society because of senseless policies.” https://www.ajc.com/opinion/readers-write/3DGVQRNRBJFP3G44S2EIRDC6RY/

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) announced:

Foster partners Avalyn Langemeier, Layla Panjwani, and Sandra Dorsthorst, and guest speaker Cindy Ellis, program specialist at the Texas Primary Care Office, presented for a Foster webinar, “Immigration Options for J-1s, Physicians & Researchers,” on March 23, 2022. The webinar covered how J-1 exchange visitors and foreign national residents, physicians, and researchers can navigate the various immigration options available to them. https://attendee.gotowebinar.com/register/8568147091005058827
Charles Foster spoke on a panel, “Locally and Nationally: Where We Have Been, Where Are We Today?,” at the Moving Forward: Challenging Racism Conference at the Holocaust Museum Houston on February 26, 2022.
Foster gave opening remarks as Honorary Chair of the 2022 Born Global Summit at the University of Houston-Downtown Auditorium and online at the Tech Rodeo platform on March 4, 2022.
Foster spoke on immigration policy at a luncheon for the Bay Area Rotary Club on March 7, 2022.
Foster partner Oxana Bowman and attorney Diana Dominguez discussed immigration strategies and planning for online businesses in a webinar, “Immigration Planning and Strategies with Foster,” hosted by the Texas French American Chamber of Commerce on March 9, 2022.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US), Kaitlyn Box, and Jessica Paszko authored a new blog post: “USCIS Contact Center is More a Source of Frustration Than Assistance.” http://blog.cyrusmehta.com/2022/03/uscis-contact-center-is-more-a-source-of-frustration-than-assistance.html

Mr. Mehta authored several new blog posts: “Immigration Relief for Ukrainian Refugees: What the United States Is Currently Offering,” “Using U.S. Immigration Law to Undermine Putin,” “Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status,” “USCIS Contact Center is More a Source of Frustration Than Assistance,” “In Addition to Granting TPS to Ukrainians, the U.S. Must Do More to Help Ukrainians and Others Outside the U.S. Who Are in Trouble,” “Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?,” “Maintenance of H-1B Status After Travelling Back on Advance Parole: Executive Legerdemain under the Cronin Memo.” http://blog.cyrusmehta.com/

Mr. Mehta was an invited speaker at the American Immigration Lawyers Association’s New England Chapter meeting on February 24, 2022, where he spoke on strategies in the face of visa retrogression in employment-based categories, including multiple filings for the same employee in different categories. Magaly R. Cheng was the other invited speaker. She is a partner in Clark Lau LLC.

Mr. Mehta was Program Chair of the Practising Law Institute’s “Basic Immigration Law 2022: Business, Family, Naturalization and Related Areas” on February 3, 2022. The webcast of this program is at https://www.pli.edu/programs/B/basic-immigration-law

Mr. Mehta was Program Chair of the Practising Law Institute’s “Asylum, Special Immigrant Juvenile Status, Crime Victim and Other Immigration Relief 2022” on February 4, 2022. The webcast of this program is at https://www.pli.edu/programs/asylum-special-immigrant-juvenile-status-crime-victim-and-other-immigration-relief

Mr. Mehta was a speaker at the American Immigration Lawyers Association’s Washington Chapter Ethics CLE on February 10, 2022.

Mr. Mehta and Jessica Paszko co-authored a new blog post: “Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria.”

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog post: “Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status.”

Greg Siskind, of Siskind Susser PC, was quoted by Time in “Tens of Thousands of Afghans Who Fled the Taliban Are Now Marooned in America’s Broken Immigration Bureaucracy.” The article notes that Afghans left behind after the U.S. evacuation were caught in a Catch-22: to be approved for humanitarian parole, they were told they must go to a U.S. embassy for vetting and biometrics screenings, but the U.S. embassy in Afghanistan suspended operations. Mr. Siskind said that when Afghans fled to nearby countries and reported to a U.S. Embassy there, USCIS’s response was, “if you’re out of the country, you’re not in danger anymore, and therefore you’re not eligible for humanitarian parole. His law firm has taken on pro bono cases for Afghans abroad applying for humanitarian parole. Mr. Siskind received his first denial notice from USCIS recently for an Afghan woman who fled to Pakistan with her three teenage children. The woman is a single mother who fears being a target of the Taliban because she worked with the World Bank, he said. USCIS didn’t explain why the woman was rejected; a line from the USCIS notice said simply that the agency “determined that parole is not warranted. Therefore we have denied your request for parole,” Mr. Siskind said. https://time.com/6141516/afghans-humanitarian-parole/

Siskind Susser, Kuck Baxter, and Joseph & Hall have partnered to file a lawsuit challenging U.S. Citizenship and Immigration Services’ and the U.S. Department of State’s refusal to process EB-5 regional center cases. They are working with the Galati Law Firm on this case. The deadline for plaintiffs to join the case is March 5, 2022. https://www.immpactlitigation.com/eb-5-regional-center-litigation-2022/

Wolfsdorf Rosenthal LLP has published several new blog posts: “My Immigration Story With Partner Vivian Zhu: Courageous Moves,” “WR Immigration Expands Its Global and Southern California Practices, Announces WRapid Global,” “April 2022 Visa Bulletin Update,” Afghanistan: Tips and Resources for HR Professionals, Employees and Others,” “Ukraine: Ways You Can Help,” “Ukraine: News Updates,” “Ukrainian Resource Page,” “Short Video Series: H-1B Process Videos,” “DHS Announces National Interest Exception for ‘Noncitizen Nonimmigrants’ Traveling From Ukraine With a U.S. Citizen or Lawful Permanent Resident,” “March 2022 Visa Bulletin Update,” “2022 Immigration Outlook: Countries Compete for Talent—Will the U.S. Be Left Behind?,” “EB-5 Regional Center Program Update – Another Short-Term Extension Without Regional Center Reauthorization Possible,” “H-1B Cap Webinar: Critical Registration Process Updates and H-1B Cap FAQs From HR Professionals,” “A Video Guide to Navigating H-1B Cap Season,” “State Dept. Announces F/M/J Nonimmigrant Visa Processing Posts Outside of Moscow for Applicants Resident in Russia,” and “Biden Administration Implements New Actions to Increase Opportunities for STEM Students, Professionals, Others.” https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by the Wall Street Journal in “Muslim U.S. Citizens Questioned About Faith at Border, ACLU Lawsuit Alleges.” The question of whether a person is still fully protected by the First Amendment at the U.S. border has rarely been addressed by courts, he noted: “U.S. citizens have constitutional rights when they enter the United States. But the government also has an interest in protecting the country from terrorists. Courts need to weigh these competing interests.” https://www.wsj.com/articles/muslim-u-s-citizens-questioned-about-faith-at-border-aclu-lawsuit-alleges-11648130400?mod=business_minor_pos4

Mr. Yale-Loehr was quoted by Univision in “Government Issues a New Asylum Rule for Foreigners Subject to Accelerated Deportation.” He said, “The new rule is likely to be challenged in court. The Department of Homeland Security is about to publish a final rule that revises the nation’s asylum procedures. In general, it would allow USCIS asylum officers to initially hear asylum claims instead of people appearing before an immigration judge. The goal is to have a more streamlined asylum system so that people get a decision in months instead of years in our backlogged immigration courts.” However, he noted, “conservative states, like Texas, are likely to challenge the new rule in court for encouraging more asylum claims. So the new rule may not come into effect for some time. But if implemented, it would help alleviate immigration court backlogs and could provide a fairer and faster system for asylum seekers.” https://www.univision.com/noticias/inmigracion/nueva-regla-asilo-deportacion-acelerada [Spanish, with English translation available]

Mr. Yale-Loehr was quoted by the Los Angeles Times in “Hollywood Hotels Scrutinized for Financing Under Visa Program: ‘Not Fair,’ Say Critics.” He noted that the program has sparked controversy because some developers have fraudulently taken the foreign investments and failed to develop the projects and the jobs that were promised. It is also a complicated program that “is somewhat opaque to the average person because they don’t see any direct jobs created,” he added. https://www.latimes.com/business/story/2022-03-14/eb5-hollywood-hotels-unite-here-local-relevant-group-financing-dispute

Mr. Yale-Loehr was quoted by Forbes in “Investor Immigrants Greet Imminent Revival of the EB-5 Program.” The article discusses the March 15, 2022, revival of the EB-5 regional center program under the omnibus bill passed by Congress. The article includes a summary of the bill co-authored by Mr. Yale-Loehr, Kristal Ozmun, and Nick Hinrichsen (Miller Mayer, LLP). https://www.forbes.com/sites/andyjsemotiuk/2022/03/09/investor-immigrants-greet-imminent-revival-of-the-eb-5-program/?sh=7223bbff7436
(see also https://millermayer.com/2022/breaking-congress-reauthorizes-eb-5-regional-center-program-through-2027/)

Mr. Yale-Loehr moderated a free public webinar on March 9, 2022, “After the Fall: The Future of Afghan Allies Fleeing the Taliban.” Speakers included Joel Kelsey, chief of staff to U.S. Senator Richard Blumenthal; Chis Purdy, director of Veterans for American Ideals and Outreach at Human Rights First; Nell Cady-Kruse from the Evacuate Our Allies Coalition; Camille Mackler, executive director of Immigrant ARC; and Katie Rahmlow, a Cornell law student who has worked on several Afghan cases. https://ecornell.cornell.edu/keynotes/overview/K030922a/

Mr. Yale-Loehr was quoted by the Cornell Chronicle in “Experts: Ukraine War Puts World in ‘Uncharted Territory.’ ” Mr. Yale-Loehr served on a panel on March 4, 2022, to discuss the humanitarian crisis just beginning after the Russian invasion of Ukraine. Mr. Yale-Loehr noted that, as high as the numbers are of Ukrainians fleeing their country, we shouldn’t forget other hot spots like Syria and Afghanistan that have contributed to the highest levels of displacement on record, with an estimated 84 million people displaced worldwide by persecution, conflict, violence, and human rights violations. “Our international refugee system is reeling from all these crises and wars. The war in Ukraine is simply the most recent.” Mr. Yale-Loehr advised those wondering how to help to donate to organizations such as the International Rescue Committee or International Refugee Assistance Project and ask members of Congress to spend more on refugee assistance and increase the number of refugees admitted by the United States. “This shows how interconnected we all are,” he said. https://news.cornell.edu/stories/2022/03/experts-ukraine-war-puts-world-uncharted-territory (recording of livestream: https://ecornell.cornell.edu/keynotes/view/K030422/)

Mr. Yale-Loehr was interviewed by Al Jazeera as part of a show about Afghans at risk. Mr. Yale-Loehr’s segment starts at about 19:00 in the show. https://www.youtube.com/watch?v=pvkfo_xjFiQ

Mr. Yale-Loehr was quoted by the New York Times in “Afghans Who Bet on Fast Path to the U.S. Are Facing a Closed Door.” He said, “The refugee resettlement program is overwhelmed and lacks resources because of all the cuts the prior administration made.” https://www.nytimes.com/2022/02/16/us/afghan-refugees-humanitarian-parole.html (available by subscription)

Mr. Yale-Loehr was quoted by Law360 in “83,000 Afghans Made It to the U.S. Now They Need Lawyers.” Mr. Yale-Loehr, who runs an immigration clinic at Cornell University Law School, noted that law school clinics can only take a handful of cases each year. “It’s better than nothing. Clinics can only do so much.” https://www.law360.com/immigration/articles/1462197/83-000-afghans-made-it-to-the-us-now-they-need-lawyers

Mr. Yale-Loehr was quoted by Law360 in “Pandemic Order Speeding Migrant Removals to End in May.” The article notes that opposition to the Biden administration’s ending of the two-year-old “Title 42” policy allowing the quick expulsion of migrants at U.S. land borders for pandemic-related reasons could lead to lawsuits. “If the lawsuits are successful, Title 42 may continue for some time,” Mr. Yale-Loehr said. https://www.law360.com/health/articles/1480088/pandemic-order-speeding-migrant-removals-to-end-in-may (registration required)

Mr. Yale-Loehr moderated a continuing legal education webinar, “Navigating Trauma: Tips for Attorneys and Their Clients,” on Mar. 30, 2022. The presenters, two Cornell medical school professors (JoAnn Difede and Michelle Pelcovitz) discussed how to deal with trauma in sensitive cases like asylum, domestic violence, and those involving violent crimes. They also discussed how to deal with traumatized clients and attorneys’ own vicarious trauma. The webinar was sponsored by the New York State Bar Association. https://nysba.org/events/navigating-trauma-tips-for-attorneys-and-their-clients/

Mr. Yale-Loehr was quoted by the New York Times in “Facing Demand for Labor, U.S. to Provide 35,000 More Seasonal Worker Visas.” He said, “Even with these additional visas, there’s not nearly enough visas for all of the types of workers that employers want to hire on the H-2B program. But in the short term, at least, this is something the administration can do to help immediately.” https://www.nytimes.com/2022/03/31/us/politics/us-seasonal-worker-visas.html

Mr. Yale-Loehr was quoted by Bloomberg Law in “Narrow Immigration Fixes Sought by Employers, Religious Groups.” He cautioned that passing any immigration bill will likely be a long fight, even with commitments to work across the aisle: “Congress will enact immigration reform only through bipartisan efforts. In that regard, the Alliance for a New Immigration Consensus is a good first step. However, I fear that nothing will happen in Congress this year, both because of the midterm elections and the general controversy about immigration in America.” https://news.bloomberglaw.com/daily-labor-report/narrow-immigration-fixes-sought-by-employers-religious-groups

Mr. Yale-Loehr was quoted by the Cornell Chronicle in “Migrations Project Helps Refugees Claim Health Care Rights.” Commenting on refugees in the United States, he said, “Many of them believe—wrongly—that if they take any public benefits they will become deportable or not be able to get a green card. They lack clear and accurate information about what public benefits they are entitled to in the United States.” https://news.cornell.edu/stories/2022/03/migrations-project-helps-refugees-claim-health-care-rights

ABIL Immigration Insider • February 6, 2022

February 06, 2022/in Immigration Insider /by ABIL

In this issue:

1. International Entrepreneur Update: National Advocacy Groups Recommend Streamlining Parole Program; House Passes Bill To Create New Visa – There have been several recent developments of interest to international entrepreneurs.

2. USCIS Releases Form I-9 Guidance for H-2B Workers Seeking to Change Employers – The guidance is related to a joint temporary final rule issued January 28, 2022, by the Departments of Homeland Security and Labor.

3. FY 2023 H-1B Cap Initial Registration Period Opens March 1 – The initial registration period for the fiscal year 2023 H-1B cap will open at noon ET on March 1, 2022, and run through noon ET on March 18, 2022.

4. DHS, DOL Announce Availability of Additional H-2B Visas for First Half of Fiscal Year – The Departments of Homeland Security and Labor announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. The visas are for “U.S. employers that are facing irreparable harm without additional workers and [are] seeking to employ additional workers on or before March 31, 2022.” The additional H-2B visas became available to employers on January 28, 2022.

5. USCIS Updates Guidance on Expedite Requests – U.S. Citizenship and Immigration Services updated its Policy Manual to reflect new guidance, effective immediately, on how the agency determines whether a case warrants expedited treatment.

6. CBP Announces New COVID-19 Vaccine Requirement for Non-U.S. Travelers Entering Via Land and Ferry From Canada, Mexico – The new restriction applies to non-U.S. individuals who are traveling for both essential and non-essential reasons. It does not apply to U.S. citizens, lawful permanent residents, or U.S. nationals.

7. CBP Expands ‘Simplified Arrival’ at International Airports in the South – Simplified Arrival uses facial biometrics to automate the manual document checks that are required for admission into the United States.

8. USCIS Clarifies Guidance on O-1 Nonimmigrants in Arts vs. Motion Pictures and Television – USCIS clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

9. February Visa Bulletin Warns of High Demand in Employment Fourth Category, Notes Upcoming Expiration of SR Religious Workers Category – High demand in the employment fourth preference category may necessitate the establishment of a worldwide final action date in the coming months. Also, no SR visas may be issued overseas, or final action taken on adjustment of status cases, after February 17, 2022, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. by February 17, 2022.

10. USCIS Issues Reminder re Immigration Help Available for Natural Disasters, ‘Other Unforeseen Circumstances’ – USCIS reminded the public that the agency offers immigration services “that may help people affected by unforeseen circumstances such as natural disasters,” including the Marshall fire in Colorado.

11. Justice Dept. Settles Immigration-Related Discrimination Claims With Frozen Food Company – The settlement resolves claims that the company discriminated against non-U.S. citizens based on their citizenship status when checking their permission to work in the United States.

12. USCIS To Hold Listening Session on L Petition Adjudications – The listening session is for stakeholders to provide feedback on modernizing and simplifying the regulations governing L petition adjudications.

13. DHS OIG Finds That Manual Processing Slowed USCIS Benefits Delivery During Pandemic – In a new report, the Department of Homeland Security’s Office of Inspector General found that continued reliance on manual processing slowed U.S. Citizenship and Immigration Services’ benefits delivery during the COVID-19 pandemic. USCIS concurred with OIG’s recommendations.

14. OFLC Completes Random Assignments of H-2B Applications Submitted for Work Starting April 1, 2022 – OFLC has completed randomly assigning all H-2B applications submitted during the initial filing window, January 1-3, 2022, requesting an April 1, 2022, work start date for the second half of the FY 2022 H-2B statutory visa cap.

15. EOIR Mandates E-Filing as of February 11, 2022 – Effective February 11, 2022, the Executive Office for Immigration Review is requiring electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.

16. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul and Baghdad – Those who are DV selectees for the 2022 DV program year with a case assigned to the U.S. embassy in Kabul, Afghanistan, or Baghdad, Iraq, should request reassignment of their DV cases to another embassy or consulate that processes immigrant visa applications.

17. USCIS Plans E-Verify Records Disposal for April 1, 2022 – E-Verify employers have until March 31, 2022, to download case information from the Historic Records Report.

18. ABIL Global: United Kingdom – The United Kingdom’s (UK) new Global Business Mobility (GBM) route launch is fast approaching.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – February 2022

1. International Entrepreneur Update: National Advocacy Groups Recommend Streamlining Parole Program; House Passes Bill To Create New Visa

There have been several recent developments of interest to international entrepreneurs:

National Advocacy Group Recommendations

The Coalition for International Entrepreneurship, which consists of three dozen immigration and startup advocacy organizations and individuals, sent a letter on February 1, 2022, asking Department of Homeland Security (DHS) Secretary Alejandro Mayorkas to streamline the International Entrepreneur Parole (IEP) program. Signers included the American Immigration Lawyers Association, Carnegie Mellon University Graduate Student Assembly, the National Immigration Forum, and others.

As background, last year, the Biden administration rescinded a Trump-era rule that would have ended the IEP program. The program uses DHS’s authority to grant parole to foreign nationals whose admission would be a public benefit. However, according to reports, obstacles remain, and the IEP remains a crucial program, especially in the absence of a U.S. start-up visa.

The coalition’s letter makes five key recommendations:

Immediately establish premium processing for IEP applications so qualified entrepreneurs can rapidly launch their businesses in the United States.
Incorporate the use of the Validation Instrument for Business Enterprises (VIBE) program to streamline the qualification process for investors. The letter noted that this program is already being used to validate information about companies petitioning to employ nonimmigrant and immigrant workers through Forms I-129 (for the H-1B, for example), I-140, I-360, and I-485.
Modify U.S. Citizenship and Immigration Services (USCIS) guidance on the term “qualified investor” to ensure that investors with passive foreign limited partners are not unnecessarily excluded.
Restart the USCIS Entrepreneur in Residence initiative to develop routine feedback loops with stakeholders and consider a hybrid model with both virtual and in-person activities to improve entrepreneurs’ ability to participate and decrease the agency’s administrative and badging burdens.
Establish regular interaction with stakeholders in the academic, entrepreneur, legal, and investment communities to further refine the program. The letter suggested that increased interaction could include more events hosted by the Public Engagement Division, or the creation of an entrepreneurship subcommittee for the Homeland Security Academic Advisory Council (HSAAC).

America COMPETES Act Passes in House

Also, on February 4, 2022, the House of Representatives passed the America COMPETES Act of 2022 (H.R. 4521). The bill would exempt international science, technology, engineering, and mathematics (STEM) PhD graduates from the green card numerical cap, create a new visa category for entrepreneurs, and provide temporary protected status for Hong Kong residents. A conference committee is expected to address significant differences between the House bill and the Senate’s U.S. Innovation and Competition Act (S. 2012), according to NAFSA: Association of International Educators.

In addition, the Biden administration introduced measures on January 21, 2022, to attract and retain STEM international talent.

Details:

Letter to Alejandro Mayorkas from the Coalition for International Entrepreneurship, Feb. 1, 2022, https://progress.institute/wp-content/uploads/2022/02/CIE-Open-Letter.pdf
“Establishing a National Strategy for International Education,” NAFSA: Association of International Educators, https://www.nafsa.org/establishing-national-strategy-international-education
“Fact Sheet: Biden-Harris Administration Actions to Attract STEM Talent and Strengthen Our Economy and Competitiveness,” White House, Jan. 21, 2022,

2. USCIS Releases Form I-9 Guidance for H-2B Workers Seeking to Change Employers

On February 4, 2022, U.S. Citizenship and Immigration Services released guidance on Form
I-9, Employment Eligibility Verification, for H-2B workers seeking to change employers.

The guidance is related to a joint temporary final rule issued January 28, 2022, by the Departments of Homeland Security and Labor to increase the numerical limits on fiscal year 2022 H-2B nonimmigrant visas and temporarily provide portability flexibility for H-2B workers already in the U.S. to begin work immediately with a new employer after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS and before it is approved.

Details:

“Form I-9 Guidance for H-2B Workers Seeking to Change Employers,” USCIS, Feb. 4, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/form-i-9-guidance-for-h-2b-workers-seeking-to-change-employers-0
Joint temporary final rule, DHS/DOL, 87 Fed. Reg. 4722 (Jan. 28, 2022), https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01866.pdf

3. FY 2023 H-1B Cap Initial Registration Period Opens March 1

The initial registration period for the fiscal year (FY) 2023 H-1B cap will open at noon ET on March 1, 2022, and run through noon ET on March 18, 2022, U.S. Citizenship and Immigration Services (USCIS) announced. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using the USCIS online H-1B registration system, for foreign workers with an October 1, 2022, start date.

USCIS will assign a confirmation number to each registration submitted for the FY 2023 H-1B cap. USCIS said that this number is used solely to track registrations and cannot be used to track case status in Case Status Online.

USCIS said prospective H-1B cap-subject petitioners or their representatives must use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (“registrants”—U.S. employers and U.S. agents) will use a “registrant” account. Registrants will be able to create new accounts beginning at noon ET on February 21, 2022, but must wait until March 1 to enter beneficiary information and submit the registration with fee.

If USCIS receives enough registrations by March 18, it will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. The agency said it will notify selected account holders by March 31.

USCIS noted that an H-1B cap-subject petition, including a petition for a beneficiary who is eligible for the advanced degree exemption, may only be filed by a petitioner whose registration for the beneficiary named in the H-1B petition was selected in the H-1B registration process.

Details:

USCIS alert, Jan. 28, 2022, https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-initial-registration-period-opens-on-march-1

4. DHS, DOL Announce Availability of Additional H-2B Visas for First Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. The visas are for “U.S. employers that are facing irreparable harm without additional workers and [are] seeking to employ additional workers on or before March 31, 2022.” The additional H-2B visas became available to employers on January 28, 2022.

DHS said that this supplemental cap increase “marks the first time that DHS is making additional H-2B visas available in the first half of the fiscal year.”

The supplemental H-2B visa allocation includes 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras.

In support of the rule, DOL’s Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-5 and accompanying instructions. The temporary rule requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. The employer must submit the attestation to USCIS along with Form I-129, in support of an H-2B application subject to the H-2B cap before March 31, 2022.

Details:

Joint temporary final rule, DHS, DOL, 87 Fed. Reg. 4722 (Jan. 28, 2022), https://www.govinfo.gov/content/pkg/FR-2022-01-28/pdf/2022-01866.pdf
DHS release, Jan. 27, 2022, https://www.dhs.gov/news/01/27/dhs-announces-availability-additional-h-2b-visas-first-half-fiscal-year
OFLC announcement, Jan. 28, 2022, https://www.dol.gov/agencies/eta/foreign-labor
New Form ETA-9142-B-CAA-5 () and General Instructions ()
Cap Count for H-2B Nonimmigrants, USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-for-h-2b-nonimmigrants

5. USCIS Updates Guidance on Expedite Requests

U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual to reflect new guidance, effective immediately, on how the agency determines whether a case warrants expedited treatment. The update:

Clarifies the criteria and circumstances under which USCIS generally considers expedite requests from nonprofit organizations as determined by the Internal Revenue Service;
Provides additional examples of when USCIS may consider expedite requests made by federal, state, or local agencies, including labor and employment agencies;
Adds examples to further illustrate how the expedite criteria relate to emergencies and urgent humanitarian reasons; and
Explains that some circumstances may affect or delay the agency’s ability to expedite an application or petition.

Details:

USCIS alert, Jan. 25, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-expedite-requests
How to Make an Expedite Request, USCIS, https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request

6. CBP Announces New COVID-19 Vaccine Requirement for Non-U.S. Travelers Entering Via Land and Ferry From Canada, Mexico

As of January 22, 2022, the Department of Homeland Security (DHS) is requiring non-U.S. individuals seeking to enter the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated for COVID-19 and provide related proof of vaccination. DHS said this was necessary as COVID-19 cases continue to rise nationwide.

The new restriction applies to non-U.S. individuals who are traveling for both essential and non-essential reasons. It does not apply to U.S. citizens, lawful permanent residents, or U.S. nationals.

The Biden administration previously ordered that noncitizen nonimmigrants be vaccinated against COVID-19 before entering the United States by air, except in limited circumstances.

Details:

“Fact Sheet: Guidance for Travelers to Enter the U.S. at Land Ports of Entry and Ferry Terminals,” DHS, updated Jan. 20, 2022, https://www.dhs.gov/news/2021/10/29/fact-sheet-guidance-travelers-enter-us-land-ports-entry-and-ferry-terminals
CBPOne Mobile Application (single portal to a variety of CBP services), https://www.cbp.gov/about/mobile-apps-directory/cbpone

7. CBP Expands ‘Simplified Arrival’ at International Airports in the South

U.S. Customs and Border Protection (CBP) announced the implementation of Simplified Arrival at six airports in the states of Arkansas, Louisiana, Mississippi, Alabama, and Tennessee: Rogers Municipal Carter Field Airport, Lakefront Airport, Alexandria (Louisiana) International Airport, Gulfport Biloxi International Airport, Birmingham-Shuttlesworth International Airport, and Memphis International Airport.

Simplified Arrival uses facial biometrics to automate the manual document checks that are required for admission into the United States. Facial biometrics fulfill a longstanding congressional mandate to biometrically record the entry and exit of non-U.S. citizens, CBP said. To date, according to CBP, more than 130 million travelers have participated in the biometric facial comparison process at air, land, and sea ports of entry.

The Simplified Arrival process includes comparing a new photo taken on arrival at the primary inspection point to images the traveler has already provided to the government, such as passport and visa photos. Those who have previously traveled to the United States “may no longer need to provide fingerprints as their identity will be confirmed through the touchless facial comparison process,” CBP said. Travelers who opt out of the Simplified Arrival process must present a valid travel document for inspection by a CBP officer.

Details:

CBP release, Jan. 24, 2022, https://www.cbp.gov/newsroom/local-media-release/cbp-expands-simplified-arrival-international-airports-south

8. USCIS Clarifies Guidance on O-1 Nonimmigrants in Arts vs. Motion Pictures and Television

U.S. Citizenship and Immigration Services (USCIS) clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

USCIS explained that individuals of extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry may be eligible for O-1B classification. The updated guidance “will help officers and petitioners determine whether a beneficiary falls into the arts category or the motion picture and television category” and “will help with cases that have elements of both classifications, such as actors, directors, composers, or set designers who work in both motion pictures and television and live theater. It will also help officers and petitioners understand where streaming internet productions fall in these categories,” USCIS said.

Among other things, the guidance notes that analysis of whether a production is within the motion picture or television industry (MPTV) is not limited to whether it will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. “While static web materials and self-produced video blogs and social media content generally do not fall into the MPTV category, USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview,” USCIS said. Accordingly, USCIS “may properly consider work on such productions to fall under the O-1B (MPTV) classification.”

Details:

USCIS alert, Jan. 13, 2022, https://www.uscis.gov/newsroom/alerts/uscis-provides-clarifying-guidance-on-o-1-nonimmigrants-in-arts-vs-motion-picture-and-television
“Policy Alert: Determining the Appropriate O-1B Classification for Persons of Extraordinary Ability in the Arts or Extraordinary Achievement in the Motion Picture or Television Industry,” USCIS, Jan. 13, 2022, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220113-ExtraordinaryAbility.pdf
USCIS Policy Manual, Chapter 4, O-1 Beneficiaries, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4

9. February Visa Bulletin Warns of High Demand in Employment Fourth Category, Notes Upcoming Expiration of SR Religious Workers Category

The Department of State’s Visa Bulletin for February 2022 notes that high demand in the employment fourth preference category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the fiscal year 2022 annual limit. DOS said the situation will be continually monitored and any necessary adjustments will be made.

The bulletin notes that for El Salvador, Guatemala, and Honduras, the rate of demand increased primarily for adjustment of status cases “and will require corrective action as early as March to hold number use within allowable limits. Also, for Mexico, the bulletin says that “corrective action may be necessary in the coming months.”

The bulletin also notes the upcoming expiration of the employment fourth preference Certain Religious Workers (SR) category as of February 18, 2022: “No SR visas may be issued overseas, or final action taken on adjustment of status cases,” after February 17, 2022, and “all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S.” by February 17, 2022.

Details:

Visa Bulletin for February 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-february-2022.html

10. USCIS Issues Reminder re Immigration Help Available for Natural Disasters, ‘Other Unforeseen Circumstances’

U.S. Citizenship and Immigration Services (USCIS) issued a notice on January 12, 2022, reminding the public that the agency offers immigration services “that may help people affected by unforeseen circumstances such as natural disasters,” including the Marshall fire in Colorado.

USCIS said following measures may be available on a case-by-case basis upon request:

Changing nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. “Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control,” USCIS said;
Re-parole of individuals previously granted parole by USCIS;

Expedited processing of advance parole requests;
Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
Expedited adjudication of employment authorization applications, where appropriate;
Consideration of fee waiver requests due to an inability to pay;
Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;

Flexibility if you were unable to appear for a scheduled interview with USCIS;
Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Documents, and Arrival/Departure Record (Form I-94); and
Rescheduling a biometric services appointment.

Details:

USCIS alert, Jan. 12, 2022, https://www.uscis.gov/newsroom/alerts/immigration-help-available-to-those-affected-by-natural-disasters-and-other-unforeseen-circumstances-0

11. Justice Dept. Settles Immigration-Related Discrimination Claims With Frozen Food Company

The Department of Justice (DOJ) reached a settlement agreement with Buddy’s Kitchen Inc., a Minnesota-based company that produces and distributes frozen foods. The settlement resolves claims that the company discriminated against non-U.S. citizens based on their citizenship status when checking their permission to work in the United States.

DOJ said its investigation revealed that the company routinely discriminated by asking non-U.S. citizens, primarily lawful permanent residents, to present specific Department of Homeland Security-issued documents to prove their authorization to work in the United States, while making no such request of U.S. citizens. Under the settlement, Buddy’s Kitchen will pay $40,000 in civil penalties, change its employment policies to comply with the anti-discrimination provision of the Immigration and Nationality Act, and train its employees who are responsible for verifying workers’ permission to work in the United States.

In a statement released on January 14, 2022, DOJ said, “All employees have the right to choose the valid documentation they wish to present when demonstrating that they have permission to work in the United States.”

Details:

Media release, Dept. of Justice, Jan. 10, 2022,

12. USCIS To Hold Listening Session on L Petition Adjudications

U.S. Citizenship and Immigration Services (USCIS) held a listening session on January 25, 2022, for stakeholders to provide feedback on modernizing and simplifying the regulations governing L petition adjudications. USCIS is seeking input on all aspects of L adjudications, including L-1A managers and executives, L-1B specialized knowledge workers, new office petitions, blanket petitions, and evidentiary issues. USCIS said this is part of a series of listening sessions that USCIS will host in the coming months to seek input on business and foreign worker-related policy considerations.

Details:

See https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_530. Send any questions to [email protected] or see https://www.uscis.gov/outreach/contact-public-engagement

13. DHS OIG Finds That Manual Processing Slowed USCIS Benefits Delivery During Pandemic

The Department of Homeland Security’s Office of Inspector General (OIG) released a report on December 28, 2021, finding that continued reliance on manual processing slowed U.S. Citizenship and Immigration Services’ benefits delivery during the COVID-19 pandemic.

OIG found that USCIS had limited capability to electronically process more than 80 types of benefits, which still required some manual workflows and paper files to complete cases. Recurring technology performance issues and equipment limitations further constrained USCIS employees’ productivity, OIG said, attributing the challenges to “funding cuts and lost fee revenue that limited spending during this time.” OIG noted that these challenges “further increased processing times and resulted in a backlog of 3.8 million cases as of May 2021.”

The report includes two recommendations aimed at improving USCIS’s electronic processing of benefits, with which USCIS concurred:

Recommendation 1: Update the USCIS pandemic plan to incorporate additional technology guidance and lessons learned during the COVID-19 pandemic. The estimated completion date is December 30, 2022. OIG considers this recommendation to be “open and resolved.” OIG said a formal closeout letter to be submitted should be accompanied by “evidence of completion of agreed-upon corrective actions and of the disposition of any monetary amounts.”

Recommendation 2: Develop an updated strategy for digitizing all benefits work and tracking the outcome of improving case processing times, including a detailed funding plan, in accordance with the Emergency Stopgap USCIS Stabilization Act. OIG considers this recommendation to be “resolved and closed.”

Details:

“Continued Reliance on Manual Processing Slowed USCIS’ Benefits Delivery During the COVID-19 Pandemic,” DHS/OIG, Dec. 28, 2021, https://www.oig.dhs.gov/sites/default/files/assets/2022-01/OIG-22-12-Dec21.pdf

14. OFLC Completes Random Assignments of H-2B Applications Submitted for Work Starting April 1, 2022

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has completed randomly assigning all H-2B applications submitted during the initial filing window, January 1-3, 2022, requesting an April 1, 2022, work start date for the second half of the fiscal year 2022
H-2B statutory visa cap.

OFLC reported receiving 7,875 H-2B applications requesting 136,555 worker positions during the filing period. OFLC said it will notify employers (and authorized attorneys or agents) of their H-2B Assignment Group. The agency published a list of the H-2B applications assigned to each group on January 7, 2022.

Details:

OFLC notices, Jan. 7, 2022, and Jan. 4, 2022, https://www.dol.gov/agencies/eta/foreign-labor
Assignment Group list, OFLC, Jan. 7, 2022, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2B%20Randomization%20List%20January%202022.pdf
Randomization procedures, Employment and Training Administration, 84 Fed. Reg. 7399 (Mar. 4, 2019), https://www.govinfo.gov/content/pkg/FR-2019-03-04/pdf/2019-03809.pdf

15. EOIR Mandates E-Filing as of February 11, 2022

Effective February 11, 2022, the Executive Office for Immigration Review (EOIR) will require electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.

Users can view training materials on EOIR’s website, including infographics and videos on how to upload and download documents on its Courts & Appeals System.

Details:

EOIR final rule, 86 Fed. Reg. 70708 (Dec. 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-13/pdf/2021-26853.pdf
ECAS User Manual and other how-to information, https://www.justice.gov/eoir/ecas/attorney-and-ar-resources

16. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul and Baghdad

The Department of State announced on January 5, 2022, that those who are Diversity Visa (DV) selectees for the 2022 DV program year with a case assigned to the U.S. embassy in Kabul, Afghanistan, or Baghdad, Iraq, should request reassignment of their DV cases to another embassy or consulate that processes immigrant visa applications. Such persons must be physically present in the consular district where the embassy or consulate is located at the time of interview and have permission to remain in the country by the host government for a period sufficient to complete processing.

Reassignment of a case to another embassy or consulate does not mean that it will be automatically scheduled for an immigrant visa interview. The interview will be scheduled after the DS-260 immigrant visa application has been fully processed, when the case number is current according to the Visa Bulletin, and when the reassigned embassy or consulate has an interview appointment available.

Details:

“Diversity Visa Reassignment Procedures for Kabul and Baghdad,” Jan. 5, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-reassignment-procedures-for-kabul-and-baghdad.html

17. USCIS Plans E-Verify Records Disposal for April 1, 2022

U.S. Citizenship and Immigration Services (USCIS) plans to dispose of E-Verify records that are more than 10 years old on April 1, 2022. (USCIS defined “more than 10 years old” as “those dated on or before Dec. 31, 2011.) E-Verify employers have until March 31, 2022, to download case information from the Historic Records Report if they want to retain information about these E-Verify cases, USCIS said.

USCIS noted that employers must record the E-Verify case verification number on the corresponding Form I-9, Employment Eligibility Verification, or attach a copy of the case details page to the I-9 form. Employers should retain the Historic Records Report with the I-9 forms.

Details:

“E-Verify Records Disposal,” USCIS, Jan. 6, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/e-verify-records-disposal
“Fact Sheet: E-Verify Records Retention and Disposal,” USCIS, Jan. 20, 2021, https://www.e-verify.gov/sites/default/files/everify/factsheets/E-VerifyNARAFactSheet.pdf
“Instructions to Download Historic Records Reports in E-Verify,” USCIS, Jan. 20, 2021, https://www.e-verify.gov/sites/default/files/everify/infosheets/DownloadNARAReportsinE-Verify.pdf

18. ABIL Global: United Kingdom

The United Kingdom’s (UK) new Global Business Mobility (GBM) route launch is fast approaching.

What can we expect from the UK’s new GBM visa?

The intended launch of the GBM route is fast approaching. The Home Office promised a “cohesive system” for overseas businesses to assign employees to the UK for a range of business purposes by spring 2022. The new visa route will consolidate and expand on an array of existing immigration routes and introduce new opportunities for businesses both with and without a UK presence.

The GBM route will consist of five categories:

Senior or specialist worker—for individuals whose skills are required in the UK for a specific business purpose;
Graduate trainee—for individuals who are on a UK placement as part of a structured training program;
UK expansion worker—for individuals who are on an assignment as part of a UK expansion of the business;
Secondment worker—for business-specific secondments; and
Service supplier—for individuals travelling to the UK to deliver a service in line with a UK trade commitment.

The requirements for the GBM visa will be based predominantly on those of the Intra-Company Transfer (ICT) route. This means that the UK business receiving the workers will require a sponsor license. The workers will need to satisfy salary and skill thresholds and should have completed a minimum period of employment overseas before applying. There will be no English language requirement. Although assignments on the GBM route will be temporary, there will be flexibility to switch to other permanent routes, such as the Skilled Worker route.

The Home Office said that the exact requirements for the route will be subject to the Migration Advisory Committee’s (MAC) review and may depend on the GBM subcategory in question. In its review of the ICT route in October 2021, the MAC made a series of recommendations, including increasing the minimum salary threshold and allowing time spent on the ICT route to count toward settlement. It will be interesting to see if these recommendations are incorporated within the GBM provisions under the Immigration Rules.

While some of the subcategories of the GBM visa mirror existing routes (the Graduate trainee, for example, is similar to the Intra-Company Graduate Trainee), others provide a new route for overseas businesses to send employees to the UK. The UK expansion worker, for example, is set to supplement the Representative of an Overseas Business route, allowing overseas businesses to send more than one worker and access the Sponsor Management System to manage assigned employees. However, unlike the Representative of an Overseas Business route, the UK expansion worker, and all the subcategories of the GBM visa, will be a sponsored route. This raises additional challenges—in terms of both logistics and costs—for employers and the Home Office, with the latter having to monitor the compliance of sponsor license holders located outside the UK.

In the coming weeks, further clarification is expected from the Home Office on how individuals and companies can apply under the GBM route and the permitted activities for a GBM migrant in the UK. It is hoped that the Home Office will also clarify the potential sponsor license system for overseas businesses and how it plans to carry out future compliance checks.

Details:

“Intra-Company Transfer Report: October 2021,” Gov.uk,

New Publications and Items of Interest

Readout and fact sheet on immigration-related executive order progress. U.S. Citizenship and Immigration Services (USCIS) released a readout of USCIS Director Ur M. Jaddou’s virtual briefing with stakeholders to mark the one-year anniversary of immigration-related executive orders and a related fact sheet on progress on those orders. Readout: ; Fact Sheet: https://www.uscis.gov/sites/default/files/document/fact-sheets/FINAL_EO_Anniversary_Progress_FactSheet_2_3.pdf

DACA survey. Results from a survey of Deferred Action for Childhood Arrivals (DACA) recipients conducted by the Center for American Progress, United We Dream, and the National Immigration Law Center were released. This year’s responses showed that “amid the backdrop of continued uncertainty for DACA recipients and the ongoing COVID-19 pandemic, the gains made possible through DACA are vulnerable.” Even with legal challenges threatening its future, DACA “remains a critical lifeline for hundreds of thousands of people. The 2021 survey results make it abundantly clear why Congress must take immediate action to permanently protect DACA recipients—as well as people who have been unable to access the program due to the legal challenges—by providing them a pathway to citizenship,” the Center for American Progress said. https://www.americanprogress.org/article/2021-survey-of-daca-recipients-underscores-the-importance-of-a-pathway-to-citizenship/

USCIS webinar on H-1B electronic registration process. U.S. Citizenship and Immigration Services (USCIS) will hold a webinar, “H-1B Electronic Registration Process,” on Thursday, February 24, 2022, from 2 to 3 p.m. ET. USCIS representatives will updates on the myUSCIS online account features for the FY 2023 H-1B electronic registration process and address questions. USCIS encourages participants to submit questions in advance to [email protected] by February 8, 2022, at noon ET. Enter “H-1B Electronic Registration Process” in the subject line. To register, go to USCIS registration page (); enter your email address; submit; select “Subscriber Preferences”; select the “Questions” tab; provide your location, organization name and type (if applicable); complete the questions; and select “Submit.” USCIS will process your registration and send you a confirmation email with additional details. Email [email protected] with any questions or registration issues.

GAO report on DACA. The U.S. Government Accountability Office (GAO) released a new report, “Immigration: Information on Deferred Action for Childhood Arrivals” (GAO-22-104734). The report notes that in 2012, U.S. Citizenship and Immigration Services published guidance explaining that it would not proactively provide information from denied DACA requests to immigration enforcement agencies unless the requestor posed a potential public safety risk or the request was potentially fraudulent. GAO found that USCIS shared such information with enforcement agencies in rare circumstances between June 2012 and June 2021. Specifically, of the 106,000 DACA requests that USCIS denied, it referred fewer than 900 cases (less than 1 percent) to U.S. Immigration and Customs Enforcement. https://www.gao.gov/products/gao-22-104734

Agency Twitter accounts:

EOIR: @DOJ_EOIR
ICE: @ICEgov
Study in the States: @StudyinStates
USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

ABIL is available on Twitter: @ABILImmigration
Recent ABIL member blogs are at http://www.abilblog.com/

ABIL Member / Firm News

Foster LLP presented a webinar, “Immigration: Are You Ready for 2022?,” on January 26, 2022. Presenters discussed what employers should keep in mind when planning their organization’s immigration needs for 2022 and the importance of immigration policy. Topics included a brief recap of 2021; business needs and developing corporate immigration policy; immigration timelines and compliance, including H-1B, L-1, TN, global sponsorship, permanent residence sponsorship, and I-9 compliance; and hot topics. Speakers included Avalyn Langemeier, Philip Eichorn, and Vi Palacios

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by the Atlanta Journal-Constitution in ” ‘A Huge Burden’: Bail Bonds for Detained Immigrants Higher in Georgia.” Mr. Kuck said, “It disappoints me that Georgia immigration courts seem to be setting higher bonds than other parts of the United States. [But] is there a correlation between a higher bond and an appearance [in court]? I don’t think there is. Anecdotally, from my own experience having represented thousands of people in immigration court, there is no correlation at all.” https://www.ajc.com/news/a-huge-burden-bail-bonds-for-detained-immigrants-higher-in-georgia/QAM6MJ4GQBESVIQEHGQZG3PPME/

Robert Loughran announced:

Avalyn Langemeier spoke on a panel, “What the H?!,” at the Texas Bar’s 20th Annual Course in Advanced Immigration Law on February 3-4, 2022. The panel discussed the failure to advise an employer/employee correctly on immigration matters, ethics, and situations that might arise. https://www.texasbarcle.com/materials/Programs/4303/Brochure.pdf
Oxana Bowman, Cathy Liu, and Andrés Zamberk will discuss in their webinar, “To (H-1)B or Not to (H-1)B—Preparing for the H-1B Cap Season,” the definition and elements of eligibility for the H-1B visa, lottery selection, and relevant timelines for the fiscal year 2023 H-1B cap registration process, and helpful tips when working with H-1B candidates and the H-1B process. The webinar, hosted by Foster LLP, will be held February 9, 2022. https://attendee.gotowebinar.com/register/8082799567985137419

· Avalyn Langemeier, Philip Eichorn, and Vi Palacios discussed in their webinar, “Immigration: Are You Ready for 2022?,” what employers should keep in mind when planning their organization’s immigration needs for 2022 and the importance of an immigration policy. This webinar was held January 26, 2022. https://attendee.gotowebinar.com/register/244362480959499536· Avalyn Langemeier discussed in her presentation, “Is Immigration to the U.S. Good for America?,” the contributions of immigrants and why immigrants are needed in the United States, in the Legalkwik seminar on January 27, 2022, hosted by HR Houston. https://www.hrhouston.org/events/EventDetails.aspx?id=1544444&group=· Oxana Bowman and Sandra Dorsthorst discussed in their webinar, “To (H-1)B or Not to (H-1)B – Cap Season,” strategies for contingency planning for employers whose sponsored employees are not selected in the H-1B cap lottery. This webinar, hosted by HR Houston, was held January 13, 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1578132&group=

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) and Jessica Paszko co-authored a new blog post: “Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria.”

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the U.S. Even If Rejected in the H-1B Lottery,” https://bit.ly/34ftIvM; “Frequently Asked Questions on Transferring the Underlying Basis of an I-485 Application From an I-140 Petition Under India EB-3 to an I-140 Under India EB-2,” https://bit.ly/3fOmG3D

William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US), Michele Madera, and Nigel James of Klasko Immigration Law Partners, LLP, presented on January 19, 2022, lessons learned from the 2021 H-1B cap season to help companies plan for the upcoming 2022 H-1B lottery. They also provided updates on regulations and litigation outcomes. https://us06web.zoom.us/webinar/register/7216413311518/WN_vwfA4iA2QTO95p2dttvdlg

Wolfsdorf Rosenthal LLP has published several new blog posts: “State Dept. Announces F/M/J Nonimmigrant Visa Processing Posts Outside of Moscow for Applicants Resident in Russia”; “Biden Administration Implements New Actions to Increase Opportunities for STEM Students, Professionals, Others”; “Immigration Update”; “February 2022 Visa Bulletin Update”; and “I-9 Form Update: COVID-19 Pandemic-Related Temporary Policies, Employer Tips.” https://wolfsdorf.com/news/ https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Baptist News Global in “America’s Economy Urgently Needs More Immigrant Labor, Experts Explain.” Noting that the fields of science, technology, engineering, and mathematics (STEM) are areas where the United States could use a boost of immigrants, Mr. Yale-Loehr commented that the Biden administration’s shift in federal policy to make it easier for STEM scholars to work in the United States is a good first step, “but we must do more to address existing backlogs. So many workers have to be laid off because their [work] permits have expired.” https://baptistnews.com/article/americas-economy-urgently-needs-more-immigrant-labor-experts-explain/#.YfXCRprMK71

Mr. Yale-Loehr was quoted by Vox in “Biden Is Defending Key Trump Immigration Policies in Court.” For the Biden administration, he said, defending some of the Trump administration’s most controversial immigration policies could be an attempt to preserve tools to manage the border, or they could mark an internal disagreement on righting the wrongs of the Trump era. “Every administration wants to have as much flexibility and discretion as it can on immigration because you never know what conditions will arise in the future,” he said. https://www.vox.com/22893065/biden-family-separations-title-42-border-court

Mr. Yale-Loehr was quoted by Law360 in “Breyer Leaves Legacy of Extending Constitution to Migrants.” The article noted that U.S. Supreme Court Justice Stephen Breyer, who announced his retirement after nearly three decades on the bench, leaves behind a legacy of influential legal opinions and dissents that sought to extend constitutional rights and protections to noncitizens. Mr. Yale-Loehr stated that Justice Breyer “did not always prevail in extending constitutional or statutory rights to noncitizens.” But “whether he won or lost, Justice Breyer showed a commitment to apply the Constitution to noncitizens.” https://www.law360.com/immigration/articles/1459013/breyer-leaves-legacy-of-extending-constitution-to-migrants (registration required)

Mr. Yale-Loehr was quoted by several media outlets regarding recent U.S. policy changes making it easier for STEM international students to work in the United States:

“Biden Admin. Expands Definition Of STEM For Int’l Students,” Law360. Mr. Yale-Loehr said, “Together, these administrative changes provide a small but significant step to help keep U.S. companies competitive in a global economy and to address workforce shortages. Larger actions, such as increasing the number of employment-based green cards, will require Congressional action.” https://www.law360.com/immigration/articles/1457587/biden-admin-expands-definition-of-stem-for-int-l-students (registration required)
“Foreign Students Will Now Have More Job Opportunities After Visa Modification,” Univision. Mr. Yale-Loehr said, “These changes will help keep American businesses competitive. The policy changes will make it easier for international students and professionals in so-called STEM fields to stay and work in the United States for an extended period of time after they complete their studies and graduate. Among other things, the changes add 22 new STEM fields, including bioenergy, cloud computing, and data science, that international students can study to qualify for work in the United States for up to three years after graduation.” https://www.univision.com/noticias/inmigracion/estudiantes-visas-f-1-tendran-mas-oportunidades-para-trabajar-eeuu (in Spanish, with English translation available)

Mr. Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by the Utica NY Observer-Dispatch in ” ‘Not to be there…is killing me’: Professor Aches for Comatose Wife Stuck in Ethiopia.” Mr. Yale-Loehr noted that both the pandemic and the United States’ “broken” immigration system have led to many family separations. “Family separation is a large and continuing problem in all of immigration,” he said. (subscription required)

Mr. Yale-Loehr was quoted by Univision in “Supreme Court Hears Arguments on the Release of Undocumented Persons Detained for More Than 6 Months.” He said, “Two lower courts held that, in certain cases, immigrants have that right [to a bail hearing]. But the conservative majority of the Supreme Court may disagree with those rulings,” he warns. The arguments, presented by immigration defense attorneys and the Justice Department, concern whether foreigners who have been detained for more than six months “have the right to a bail hearing to be released,” he said. In one of the cases, the immigrant Antonio Arteaga-Martínez argues that to avoid a violation of due process, “he and some other immigrants should have the right to a bond hearing after six months in detention. However, last year, the Supreme Court ruled 6-3 that immigrants who return illegally to the United States after being deported must be held without bond while they await a second deportation hearing,” he noted. Mr. Yale-Loehr said that “the cases are important, in part due to the large backlog of cases in immigration court. More than 1.5 million immigrants have cases pending with the [Executive Office for Immigration Review]. It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense.” https://www.univision.com/noticias/inmigracion/corte-suprema-indocumentados-liberacion-detenidos-seis-meses (in Spanish, with English translation available)

Government Agency Links

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

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

ABIL Global Update • April 2021

April 01, 2021/in Global Immigration Update /by ABIL

In this issue:

1. AUSTRALIA – There are new eligibility criteria for the Subclass 408, Temporary Activity visa—Australian Government Endorsed Events stream.

2. BELGIUM – A digital platform, “Working in Belgium,” intended to facilitate the filing and processing of applications, will be launched soon after a test phase. The Brexit Trade and Cooperation Agreement has an impact on UK business visitors: some activities are work permit-exempt. Finally, this article summarizes the main changes to the Flanders work/single permit legislation that took effect March 1, 2021.

3. CANADA – There are new pandemic-related rules for travel across the land border and by air.

4. RUSSIA – This article summarizes highlights of a variety of developments, including a new government portal for checking entry permissions, air travel suspensions and resumptions, multiple entries allowed for highly qualified specialists, foreign nationals allowed entry, new address registration regulations, and renewal/changes in the list of purposes of entry for various visa types.

5. UNITED KINGDOM – Guidance has changed on documentation that should be kept on file following the sponsorship of a Skilled Worker or Temporary Worker.

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

7. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – April 2021

1. AUSTRALIA

There are new eligibility criteria for the Subclass 408, Temporary Activity visa—Australian Government Endorsed Events stream.

As of April 2020, the COVID-19 pandemic was listed as an event that falls within the Subclass 408 visa stream. An individual may be within the specified class of persons in this visa category if they:

(a) Are employed full-time as an essential staff member of an overseas business that (i) is relocating to Australia; and (ii) will assist in Australia’s response to the event; and

(b) Will assist with the establishment of the business’s operation in Australia; and

(d) Have not previously been granted a visa in accordance with this instrument.

2. BELGIUM

A digital platform, “Working in Belgium,” intended to facilitate the filing and processing of applications, will be launched soon after a test phase. The Brexit Trade and Cooperation Agreement has an impact on UK business visitors: some activities are work permit-exempt. Finally, this article summarizes the main changes to the Flanders work/single permit legislation that took effect March 1, 2021.

New Digital Platform: Working in Belgium

Belgium will soon have a new digital/electronic platform to facilitate information gathering and exchange by and between the authorities involved in single-permit processing. These authorities include the three regions (Brussels, Flanders, and Wallonia), the federal immigration office, foreign consular posts, municipalities, and the national social security office.

The practical roll-out of the digital platform, “Working in Belgium,” is planned in three phases:

Phase 1: All single-permit applications (first applications and renewals) processed via the digital platform, “Working in Belgium,” where the applicant can consult his file. This includes a test phase, probably in April 2021, and will become operational after the test phase ends.

Phase 2: Integrated electronic exchange between the platform and the authorities concerned with planning: operational by the end of June 2021.

Phase 3: Extension of the scope of applications via “Working in Belgium” to work permits, professional cards, and single permits for indefinite duration. Anticipated timing: 2022.

Post-Brexit Exemptions for UK Business Visitors

The Trade and Cooperation Agreement between the European Union (EU) and the United Kingdom (UK) dated December 24, 2020, contains several clauses regarding immigration.

The articles SERVIN.4.2. and 4.3. of the Trade and Cooperation Agreement contain favorable provisions for intra-corporate transferees, business visitors for establishment purposes, and short-term business visitors.

All three regions that have jurisdiction over work/single permits (Brussels, Flanders, and Wallonia) confirm on their websites that SERVIN.4.2 and 4.3 of the Trade and Cooperation Agreement are being applied, or will be applied: short-term activities that are not yet covered by existing exemptions under regional legislation are exempt or will also be exempt.

Short-Term Business Visitors

Short-term business visitors cannot be engaged in selling their goods or supplying services to the general public, and they cannot, on their own behalf, receive remuneration from within Belgium. Furthermore, in principle, short-term business visitors cannot be engaged in the supply of a service in the framework of a contract concluded between a legal person that is not established in Belgium and a Belgian consumer. Short-term business visitors can stay in the Schengen area (not only Belgium) for a period of up to 90 days in any six-month period.

For Belgium, allowed activities for short-term business visitors may include meetings and consultations, research and design, market research, training seminars, trade fairs and exhibitions, sales, purchasing, after-sales or after-lease service, commercial transactions, tourism personnel attending conventions or accompanying certain tours, and translation/interpretation supplying services as employees.

New Work/Single Permit Legislation: Flanders

The Flanders work/single permit legislation has been updated recently. The changes took effect March 1, 2021. Below are selected highlights.

Some exemptions were updated. The Van Der Elst exemption was updated to reflect European Court of Justice case law. Temporary agency workers can now also be eligible if all other requirements are met.
The possibility to file single-permit applications in Belgium is limited to specific categories of foreigners. Foreigners who reside in Belgium on the basis of family reunification can no longer file a single permit application/change their status to employee in Belgium.
A work permit can be issued for 90 days in any 180-day period instead of 90 consecutive days. This will allow more flexibility, and will also avoid having to apply for new permits for frequent short time periods.
Assignments to Belgium require that the employer/user has its registered seat or an establishment unit in Flanders. This implies that having an assignee work at home in Flanders will become impossible, with one exception: when employment in Belgium is subject to Belgian social security, which implies that Belgian social security contributions will be paid by the foreign employer who is registered with the Belgian Legal Database for Enterprises.
For assignments, the duration of the work authorization is limited to the duration of the final date of Certificates of Coverage, issued pursuant to social security treaties. This is not new; in practice, the Flanders authorities already used the Certificates of Coverage dates as reference dates. The new legislation confirms this administrative practice.
A hire of a single-permit holder by a new employer is considered a single-permit extension application instead of a first, new single-permit application. The immediate consequence is a decrease of administrative burden because fewer documents must be submitted.
The obligation to inform the Flanders authorities about changes has been updated. The employer must notify the authorities not only about the termination of the employment contract but also about any “significant change” in employment conditions. The Flanders authorities will inform the employer within 15 days if a new work authorization must be applied for.
Frontier workers are now defined in the same manner as in the federal immigration legislation. A frontier worker is defined as an employee who works in Flanders territory, but who has main residence in a neighboring country and who returns to the country of residence in principle daily or at least once a week. The UK is still considered a neighboring country.
Salary thresholds, which are updated on a yearly basis, must be complied with for permits valid for longer than one year. Permits for the highly skilled, executives, and intra-corporate transferees, for example, are subject to a salary threshold and can be valid for up to three years. If the salary threshold is updated in year 2, this salary threshold must automatically be met. This is not new; in practice, the Flanders authorities already applied this principle. The new legislation confirms this administrative practice.
The motives for refusal or withdrawal of work authorization are now divided into two groups: mandatory and potential motives. For potential motives, the law provides that the authorities must take into account the specific circumstances of the file, the interests of the foreign employee, the economic interest of the employer, and the proportionality principle.

3. CANADA

There are new pandemic-related rules for travel across the land border and by air.

New COVID-19 Travel Rules

The federal government announced new COVID-19 pandemic-related travel rules in February:

Travel Across the Land Border

Non-essential travelers (such as returning “snowbirds”) must show proof of a negative COVID-19 test taken no longer than 72 hours earlier. In addition to the pre-departure COVID test, another COVID test will be administered at the land border. The traveler can then continue to the planned place of quarantine and must self-administer another COVID test during the 14-day quarantine. The self-test kit will be provided at the border.

Travel by Air

In addition to the pre-departure COVID test taken 72 hours before boarding a flight to Canada, all individuals, Canadians included, must take a test upon arrival at the first Canadian airport. They must then wait for the test result at a hotel on the official list and cover the cost of up to CA $2,000 for the hotel (prices will vary) and testing. The hotel must be booked before boarding the plane to Canada. Upon receipt of the test result, they may travel to their final quarantine destination for the remaining days (14 days total) and must self-administer another COVID test. The self-test kit will be provided at the airport. The following details also apply:

The hotel must be booked at the first Canadian airport, meaning that a traveler who has a layover in Canada before their final destination must remain at the transit airport hotel until the test comes back negative. Only then can the final leg of the journey be completed.
There is no exemption for vaccinated travelers.
It is expected that the current exemptions (e.g., for medical personnel and essential workers) will remain valid, but this has not yet been confirmed.
Flights on Canadian airlines to and from Mexico and the Caribbean remain suspended until April 30, 2021.

ArriveCAN remains mandatory for airport and land border arrivals. See https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19/arrivecan.html

4. RUSSIA

This article summarizes highlights of a variety of developments, including a new government portal for checking entry permissions, air travel suspensions and resumptions, multiple entries allowed for highly qualified specialists, foreign nationals allowed entry, new address registration regulations, and renewal/changes in the list of purposes of entry for various visa types.

New Portal for Checking Entry Permission

Citizens of countries with which Russia has not yet resumed regular air travel and who still require entry permission from the Federal Security Service of Russia can now check online regarding whether permission is granted on the official government portal, Gosuslugi:

Suspension of Air Travel From United Kingdom to Russia Extended

Due to coronavirus concerns, suspension of air travel from the United Kingdom to Russia has been extended until April 16, 2021. https://tass.ru/ekonomika/10914413

Air Travel Resumes With Certain Countries

Starting April 1, 2021, air travel resumed with Germany, Venezuela, Syria, Tajikistan, Uzbekistan, and Sri Lanka. As of March 29, 2021, air travel was open between Russia and 31 countries. Details: http://government.ru/news/41820/

Multiple Entries Allowed for Highly Qualified Specialists and Family Members

A Government Order allows multiple entries for foreign citizens who perform work activities in Russia as highly qualified specialists and their family members. The entry procedure remains the same: the employer must send a request to the appropriate ministry and receive permission for multiple entry. The maximum period to enter Russia multiple times, which an employer can request, is until December 31, 2021.

For citizens and permanent residents of countries with which Russia has resumed air travel, it is not necessary to obtain permission to enter Russia from the Federal Security Service provided the person has a valid work visa or the entry is visa-free according to an international agreement.

Foreign Nationals Allowed Entry

In general, all categories of foreign nationals who come to Russia to perform work activities can enter Russia. For entry, a foreign national must receive entry permission from the Federal Security Service of Russia. To get entry permission for a foreign worker, the employer must apply to Rostrud.

New Address Registration Regulations

Under new regulations from the Internal Affairs Ministry, there are new application forms for foreign citizens to register their address. If the host party is an organization, an authorized representative of such organization must apply to register the address of a foreign citizen. The authorized representative must be an employee of the host party.

List of Purposes of Entry (Visa Types) Renewed

As of February 8, 2021, a new Order of the Ministry of Foreign Affairs of Russia sets a new list of purposes of entry and visa types. Delays in visa issuances are possible because of updates to computer systems. The main changes are:

There are substantially fewer types of purposes of entry. Many categories have been consolidated for simplicity.
There is no indication of duration of allowed stay for most visa categories.
There is no “commercial” visa type. Previously, this category raised many questions because it was very similar to the “business” visa. The new Order has only a “business” purpose of entry.
There is no “technical service” visa type. Instead, there is a purpose of entry of “installation work” with an analogous description of allowed activities. For this type of purpose, a work visa will be issued. A work permit requirement is not expected. Foreign citizens employed by foreign companies (manufacturers or suppliers) executing installations, providing technical support, performing repairs, and guaranteeing repairs of equipment supplied to the Russian Federation, can enter Russia on the basis of single-entry ordinary work visas for a maximum of 90 calendar days with the purpose of the entry specified as “installation works.”
There are no substantial changes in the work visa.
There are a number of amendments to the purpose of entry for diplomatic, student, tourist, and humanitarian
The “professor” category has been abolished from the list of purposes. In cases where Russian educational institutions invite foreign professors to work in Russia, it is necessary to apply for an invitation letter with the purpose of entry specified as “work activities.” Subsequent extensions of this type of visa in Russia are on the basis of the labor agreement for a term of up to one year, although such extensions can be done an unlimited number of times. For foreign citizens entering the Russian Federation as science and pedagogical staff invited to work on science projects or to perform pedagogical activities, application for a work permit or patent is not required.

5. UNITED KINGDOM

Guidance has changed on documentation that should be kept on file following the sponsorship of a Skilled Worker or Temporary Worker.

For some Tier 2 (General) applications before December 1, 2020, it was necessary to advertise the role for 28 days as part of a resident labour market test (RLMT). When the Skilled Worker category replaced Tier 2 (General) as of that date, the RLMT was abolished. However, the guidance (known as Appendix D) clarifies that certain types of documentation of the recruitment process of sponsored workers still must be kept on file.

The guidance on this point is split into two:

Where the RLMT Applies

If an employer recruited a Tier 2 (General) sponsored worker before December 1, 2020, and an RLMT was required, the employer must continue to keep on file the relevant documents. Some current routes including T5 Religious Worker, T5 Creative or Sporting Worker, and T2 Sportsperson may also require an RLMT to be carried out before the application is submitted.

Sponsors should continue to keep documents such as:

Screenshots of the advertisements on the first day of placement;
Resumes (CVs) of all applicants who were shortlisted for final interview; and
Reasons why each settled worker was unsuitable for the role.

Where the RLMT Does Not Apply

The new guidance clarifies that where a formal RLMT has not been required (such as for a Skilled Worker or Intra-Company Transfer application), sponsors should still retain evidence of any recruitment activity they have undertaken. This is to assist the Home Office in assessing whether the sponsored role is a genuine vacancy.

a) If you have advertised. Importantly, sponsors are not required to advertise the role where a RLMT is not required. However, if you have advertised the role you should retain:

Copy of the advert. Details of any advertisements placed, including a screenshot, printout or photocopy of the advert, or a record of the text of the advert and the website address. A note should also be made of how long the role was advertised. If you did advertise, you are not required to place more than one advert, but if you did, you should retain evidence of all the adverts.

Unlike for an RLMT, the guidance does not stipulate where the advert should be placed, the required contents of the advert, or how long it should be placed.

Number of applicants. A record of the number of people who applied for the job should be kept, as well as the number of people shortlisted for interview or for other stages of the recruitment process.
One other item of evidence. At least one other item of evidence or information that shows the process you used to identify the most suitable candidate, for example:

A copy or summary of the interview notes for the successful candidate;
A list of common interview questions used for all candidates as part of your selection process;
Brief notes on why the successful candidate was selected and why other candidates were rejected;
Information about any scoring or grading process you used to identify the successful candidate; or
Any other relevant information or evidence.

You are not required to retain application forms, CVs, interview notes, or any other personal data relating to unsuccessful candidates.

b) If you have not advertised. Where you have not advertised the role, you must be able to explain and where possible provide evidence of how you determined that the sponsored worker was suitable for the role. Examples could include identifying the sponsored worker from:

Their having already working for you in a different immigration category;
A speculative application; or
A university “milkround” (recruitment of students by businesses).

The guidance does not mention it, but it must also be sufficient that you have identified a candidate by, for example, word-of-mouth, reputation, or from a recruitment agency.

Right to Work Grace Period

Following an update in the Home Office employer’s guide to right to work checks, there are rules on the right to work grace period which exists for EU (and European Economic Area [EEA] and Swiss) citizens until June 30, 2021. Annex B of the updated guidance makes clear that until that date, employers can still rely on checking an EU citizen recruit’s EU passport or national identity card for right to work purposes.

Employers can also check online an EU citizen’s EU Settlement Scheme or other digital immigration status but cannot insist on it. Until July 1, 2021, employers are not required to differentiate between those EU citizens who arrived before January 1, 2021. Any EU citizen arriving for the first time on or after that date must apply for permission to work, such as a Skilled Worker.

As of July 1, 2021, employers are not required to carry out retrospective right to work checks, and further guidance will be issued for checks from that date.

6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

7. ABIL Member / Firm News

Chin & Curtis LLP, based in Boston, Massachusetts, became a partner firm with Wolfsdorf Rosenthal LLP, based in California, effective January 1, 2021. Wolfsdorf Rosenthal said in a press release that the partnership “brings together Chin & Curtis’ high-touch, creative, and specialized business immigration solutions with WR’s technology-focused approach to providing strategic, detail-oriented, client-centered services. Chin & Curtis will retain its brand [and] operational autonomy, and there will be no staffing changes.” https://wolfsdorf.com/news_posts/leading-boston-immigration-law-firm-chin-curtis-llp-joins-wr-immigration/

Rami Fakhoury (bio: https://www.abil.com/lawyers/lawyers-fakhoury.cfm?c=US) and Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) will speak at a webinar, “Global Talent Opportunities: A Legal and Policy Forecast and Update on Hiring Global Talent,” to be held Monday, April 19, 2021, from 2:30 to 4 p.m. ET. https://www.eventbrite.com/e/webinar-global-talent-opportunities-registration-146927575333

Klasko Immigration Law Partners, LLP, released a new podcast in the “Statutes of Liberty” series: “What Happens When a U.S. Green Card Holder Gets Stuck Abroad.”

Klasko Immigration Law Partners, LLP, released the first episode, “Strategies for Resolving EB-5 Problems Series, Part 1: Project Problems,” in a three-part podcast series on the EB-5 immigrant investor program. This episode covers issues related to investment projects

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by Law360 in “State Dept. Updates COVID-19 Travel Exceptions for Europe.” He said, “No one could have imagined a supposedly pro-immigration administration making legal immigration of parents, employees and business investors more difficult, using COVID-19 as an excuse, when alternative methods exist to ensure both the safety of U.S. citizens and protections against new strains, such as with testing and quarantine. It is a certainty that the Biden administration will have to explain to a federal court judge its legal basis for not issuing visas because of this modified proclamation. Every time in the past they have tried to justify this exact action, they have failed. They will fail again.” https://www.law360.com/publicpolicy/articles/1361015/state-dept-updates-covid-19-travel-exceptions-for-europe

Mr. Kuck was quoted by Bloomberg Law in “Their Papers Mired in Pandemic Backlog, Visa Seekers Go to Court.” Mr. Kuck said that delays abroad have prompted EB-5 immigrant investors to join a third class action lawsuit that will be filed imminently. https://news.bloomberglaw.com/daily-labor-report/their-papers-mired-in-pandemic-backlog-visa-seekers-go-to-court

Mr. Kuck was interviewed by Mundo Hispánico on immigration reform and its costs. An English translation of an article summarizing the interview was published by The Canadian at https://thecanadian.news/2021/02/19/lawyer-talks-about-immigration-reform-and-its-prices/.

Mr. Kuck was quoted by Law360 in “Lottery Winners, DOJ Trade Shots in Visa-Expiration Fight.” He emphasized the urgency of getting relief from the court for diversity visa lottery winners who have been unable to enter the United States due to COVID-19 restrictions and are at risk of visa expiration. He told the judge that efforts to reach a resolution with the administration to protect those with visas set to expire in March have been unsuccessful, so his team planned to file a motion for expedited injunctive relief. “There’s probably 300 or 400 people who will lose their visas within the next week,” Kuck said. “Most importantly, this is not something the government was just presented with. That is not accurate. We actually had this conversation two weeks ago … when the administration publicly said it’s considering whether to lift the bans. The reality is it’s now on the court to make this happen. Everybody is going to lose their visas while they consider this,” he said. https://www.law360.com/articles/1354368/lottery-winners-doj-trade-shots-in-visa-expiration-fight

Mr. Kuck was quoted by Axios in “Diversity Visa Winners Losing Chance to Immigrate.” Referring to coronavirus-related restrictions that are keeping out diversity visa lottery winners, Mr. Kuck said, “President Biden should immediately renounce this illegal usurpation of congressional power and restore the status quo by declaring those bans void.” He said at least 6,500 issued visas are at risk of expiring before the ban instituted by former President Trump ends in March, and that at least 1,000 have already expired. “We feel confident we will shortly have a victory in one of these courts before March,” he said. https://www.axios.com/diversity-green-card-visa-lottery-d60cd44d-758f-4339-9ffc-d71d4690e201.html

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) co-authored several new blog postings: “President Biden Must Reject Trump-Era H-1B Lottery Rule and Work Visa Travel Ban,” http://blog.cyrusmehta.com/2021/03/president-biden-must-reject-trump-era-h-1b-lottery-rule-and-work-visa-travel-ban.html, and “Overcoming a Covid Travel Ban Through the National Interest Exception,” http://blog.cyrusmehta.com/2021/02/overcoming-a-covid-travel-ban-through-the-national-interest-exception.html.

Mr. Mehta authored several new blog postings: “CSPA Triumphs in Cuthill v. Blinken: Child of Parent Who Naturalizes Should Not Be Penalized,” http://blog.cyrusmehta.com/2021/03/cspa-triumphs-in-cuthill-v-blinken-child-of-parent-who-naturalizes-should-not-be-penalized.html; “State Department Exempts Certain Travelers From Restrictions: Is There a Better Way So That the Least Number Get Impacted?”

Mr. Mehta was quoted by India West in “To the Relief of H-1B Workers, Biden Lets Trump’s Ban on Foreign Workers Expire.” Mr. Mehta called for an overhaul of the H-1B program in a March 27, 2021, tweet quoted by the article: “The H-1B lottery—a game of chance—is an inappropriate way for U.S. employers to hire skilled foreign workers. Quotas and lotteries have no place in a modern immigration system. Let talent and skills freely come to the U.S.”

Mr. Mehta was quoted by India West in “President Biden Unlikely to Rescind Trump’s H-1B Ban.” He said, “The optics aren’t great. Biden hasn’t taken any actions to rescind it, possibly because of push-back from organized labor and a thrashing from Republicans. Biden needs support to pass a stimulus bill.” https://www.indiawest.com/news/business/president-biden-unlikely-to-rescind-trump-s-h-1b-ban/article_ed7563ea-7fe6-11eb-92fa-6378f2d25fce.html

Mr. Mehta was quoted by American Bazaar in “H-1B Visa Holders Seek Extension of 60-Day Grace Period After Job Loss Due to Pandemic.” He said, “Biden should at least allow the H-1B ban to lapse on March 31 even though he does not rescind it before the date. Although it would be powerful if he affirmatively rejects the ban any time from now till March 31.” https://www.americanbazaaronline.com/2021/03/11/h-1b-visa-holders-seek-extension-of-grace-period-due-to-job-losses-444512/?amp

Mr. Mehta was quoted by the Times of India in “Wait Time in the Green Card Queue for Some is 150 Years!” He noted that the U.S. Citizenship Act of 2021 eliminates country caps for employment-based immigrants, but he pointed out that the big question is whether the bill will be passed by a closely divided Senate. https://timesofindia.indiatimes.com/nri/us-canada-news/wait-time-in-the-green-card-queue-for-some-is-150-years/articleshow/81245570.cms

Mr. Mehta was quoted by the Times of India in “The Wide Sweeping Reforms in the U.S. Citizenship Act Decoded.” He said, “President Joe Biden’s U.S. Citizenship Act is sweeping in its humanity and views immigrants as an asset to America rather than as threats either to security or American workers. It starts by abolishing all references to the term ‘alien’ and instead replaces it with ‘noncitizen.’ ” https://timesofindia.indiatimes.com/world/us/the-wide-sweeping-reforms-in-the-us-citizenship-act-decoded/articleshow/81110569.cms

Mr. Mehta was quoted by the Times of India in “U.S. Immigration Bill to Help Clear Job-Based Green Card Backlog.” He said, “The bill is not perfect, though, and does little to accommodate the demand for scarce H-1B visas each year. Nor does it create a start-up visa for entrepreneurs. One provision authorizes the prioritization of distribution of scarce H-1B visas based on wages offered by their employers and also authorizes similar prioritization based on wages for other nonimmigrant worker categories. However, he added, “Even if the H-1B visa is not reformed, hopefully the ability to get a green card more quickly under the new law may compensate for the imperfect H-1B visa program that may remain in place.” Referring to some provisions in the bill that the article calls “ingenious,” Mr. Mehta said, “The bill authorizes the extension of nonimmigrant stays for certain categories of visa holders. For instance, an F-1 student in practical training who is sponsored for a green card can remain in F-1 status” and “get a green card directly.” https://timesofindia.indiatimes.com/world/us/us-immigration-bill-to-help-clear-job-based-green-card-backlog/articleshow/81114101.cms

Mr. Mehta was quoted by the Times of India in “Immigration Bill Aims to Keep and Unite Families, It Gives a Boost to the ‘V’ Visa.” He said, “The immigration bill increases the per-country limit from 7% to 20%. In addition, spouses and minor children of green card holders will not be subject to the quotas. Under current law, only spouses and minor children of U.S. citizens are exempt from being included in the quota. Further, the unused family visas from fiscal 2025 1992 through 2020 will be added back. These measures will reduce wait times, including for ‘V’ visa applicants.” https://timesofindia.indiatimes.com/world/us/immigration-bill-aims-to-keep-and-unite-families-it-gives-a-boost-to-the-v-visa/articleshow/81113335.cms

Mr. Mehta was quoted by Forbes in “New Bill Has Many Good But Two Bad Measures for Employment Immigrants.” The article notes that people who reach their 6-year limit in H-1B status while waiting in the immigration backlog can have their H-1B status extended while they remain in the United States. The new Biden administration immigration reform bill expands the provision to be used by more individuals in H-1B status, and also F-1 students, L-1 intracompany transferees and O-1 (individuals with extraordinary ability or achievement) visa holders, the article states. Mr. Mehta said he believes that provision holds the potential for an international student to bypass H-1B status and go straight to a green card, if an employer sponsored him or her and the measure became law. https://www.forbes.com/sites/stuartanderson/2021/02/19/new-bill-has-many-good-but-two-bad-measures-for-employment-immigrants/?sh=4bec5be35af9

David Isaacson, of Cyrus D. Mehta & Partners, PLLC, authored a new blog posting: “The Law Does Not Compel the Impossible – Or Does It?: Matter of C-C- and Awuku Asare v. Garland.” http://blog.cyrusmehta.com/2021/03/the-law-does-not-compel-the-impossible-or-does-it-matter-of-c-c-and-awuku-asare-v-garland.html

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners, PLLC, authored a new blog posting: “To Amend, or Not to Amend: That is the Question for Visas Not Associated With a Labor Condition Application.” http://blog.cyrusmehta.com/2021/02/to-amend-or-not-to-amend-that-is-the-question-for-visas-not-associated-with-a-labor-condition-application.html

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) co-authored several blog postings: “Beware the Employer Risks Nesting in President Biden’s Comprehensive Immigration Reform Bill,” ; “Hey, Immigration Lawyer: Get Me a Coronavirus Passport,” https://www.bigimmigrationlawblog.com/2021/02/hey-immigration-lawyer-get-me-a-coronavirus-passport/; “Inclusive Immigration: USCIS Nixes “Alien” Terminology But Much More Must Be Done.” https://www.bigimmigrationlawblog.com/2021/02/inclusive-immigration-uscis-nixes-alien-terminology-but-much-more-must-be-done/

Greg Siskind, of Siskind Susser, P.C., was featured in “Practicing With Twitter: An Immigration Lawyer’s Social Media Journey,” published by the American Bar Association’s Law Practice Magazine. The article discusses Mr. Siskind’s lessons for attorneys looking to use social media as a marketing strategy. https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2021/ma21/gaffney/ (also available at https://dashboard.mazsystems.com/webreader/71975?page=46)

Mr. Siskind posted a summary of the U.S. Citizenship Act

Elissa Taub and Ari Sauer are now partners in the firm Siskind Susser, P.C. According to Lynn Susser (bio: https://www.abil.com/lawyers/lawyers-susser.cfm?c=US), “Elissa has managed and expanded our healthcare practice for many years and Ari is the ‘finder of answers for all things complex.’ We are looking forward to their long-term contributions to the firm as it continues to grow and change.”

William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) was quoted by Forbes in “New Bill Has Many Good But Two Bad Measures for Employment Immigrants.” Mr. Stock said that one section of the new Biden administration immigration reform bill “would allow a future president who did not believe in immigration to direct the Department of Homeland Security and Department of Labor to bar employment-based immigration in large parts of the economy. It would allow those agencies to ban immigration based on broad unemployment trends unrelated to labor market shortages in specific industries or for particular skill sets. For the past four years, we have seen that delegations of authority meant to allow for responses to emergencies, like the travel ban authority, can be misused to bar immigration broadly unless the statute provides strict guidelines as to how that authority should be exercised.” He also said, “The primary reason the new [H-1B] lottery rule is problematic is that it contradicts the current statutory directive for selecting H-1Bs by order of filing. Section 3407 of the bill would provide a valid statutory basis for selecting H-1Bs by wage level, advantaging larger employers and employers in cities with higher average salaries.” https://www.forbes.com/sites/stuartanderson/2021/02/19/new-bill-has-many-good-but-two-bad-measures-for-employment-immigrants/?sh=4bec5be35af9

Wolfsdorf Rosenthal LLP published several new blog postings: “Celebrating Women Empowered,” “E-Verify Update: Watch Your State’s Requirements,” “Weekly Immigration Update,” “DOL Announces 2021 Adverse Effect Wage Rats for Non-Range Occupations,” “H-2B Cap Reached for Second Half of FY 2021,” “FY 2021 H-1B Cap-Subject Nonselection Notices Issued,” “New Asylum Process at Southern Border To Be Phased In Gradually,” “President Biden Reinstates DED for Liberians,” “State Dept. Announces National Interest Exceptions for Certain Travelers & Students,” Alejandro Mayorkas Confirmed to Lead Department of Homeland Security,” “DOL Proposes to Delay Effective Date of H-1B/PERM Wage Rule Until May,” “USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions,” “Good News for H-1B Applicants as Biden Administration Delays Wage-Based Selection Process for H-1Bs,” “Biometrics: Questions and Answers,” and “President Biden Signs Executive Orders Setting a Welcoming Tone for Immigrants.” https://wolfsdorf.com/blog/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in “Are parents criminally responsible for sending their children alone to the southern border of the United States?” The article asks if a parent can be sued who pushes a child to leave his or her country. “The question has to do with tort law, not U.S. immigration law,” Mr. Yale-Loehr noted. “The question is whether parents can be sued for negligence by allowing their children to travel alone from their country of origin to the United States.” In practice, “these trials are very rare, for several reasons. First, the child (or someone who sues on behalf of the child) would have to sue. And it is unlikely that children are aware of the United States civil liability law. And they are probably not willing to sue their parents. Also, even if they wanted to sue, they could not pay a lawyer to represent them.” He also said that “even if a child wins a tort lawsuit, many parents would not have money to pay for the damages.” A second question was whether it is legal to allow a child to travel alone and cross the border alone. “Nothing in U.S. immigration law prevents this. Immigration law says that anyone who has a well-founded fear of persecution can apply for asylum. There is no minimum age requirement to apply for asylum at the border,” Mr. Yale-Loehr explained. https://www.univision.com/noticias/inmigracion/padres-principales-responsables-enviar-solos-hijos-frontera-estados-unidos [Spanish]

Mr. Yale-Loehr co-authored a blog: “Overcoming Polarization: How to Talk with Immigration Opponents.” https://inclusion.americanimmigrationcouncil.org/content/overcoming-polarization-how-talk-immigration-opponents

Mr. Yale-Loehr was quoted by Veja in “Kamala Harris’ First Major Mission: The Problem Is Not Simple: Finding a Solution for the Crowds of Immigrants Who Accumulate at the Border in Search of the American Dream.” He noted that Ms. Harris’s role “highlights the importance of the mission to untie the immigration knot, but it is a difficult task.” He added that it “will take a long time to stabilize Central American economies and create a safer environment from which people don’t feel they have to flee for their lives.” https://veja.abril.com.br/mundo/a-primeira-grande-missao-de-kamala-harris/ [Portuguese]

Mr. Yale-Loehr was quoted by Inside Higher Ed in “Dream Derailed Leads to Lawsuit Against Berkeley.” The article discusses a lawsuit filed by a former international student of law at the University of California, Berkeley, for allegedly misinforming him of a deadline for applying for work authorization and costing him his “dream job” in New York and his right to remain in the United States, an error that ultimately led to his being arrested in shackles and handcuffs by U.S. immigration enforcement agents and escorted to a plane bound for Brazil, his home country. “We’re generally seeing an increase in OPT [Optional Practical Training] denials for a variety of reasons. That is causing consternation for both international students and international offices at universities. I think that international student advisers feel torn because technically it’s the student’s responsibility to make sure that applications are filed on time, and the application is technically filed by the student, not by the school, so the school cannot be making sure that all applications are filed by the students in a timely manner. Schools do their best most of the time to educate students about all aspects of OPT applications, including filing deadlines, but ultimately it is the student’s responsibility to make sure that the application is filed on time,” Mr. Yale-Loehr said. https://www.insidehighered.com/news/2021/03/19/former-international-student-who-lost-dream-job-sues-berkeley-alleging-negligence

Mr. Yale-Loehr was quoted by USA Today in “Immigration was a Scorching Topic at the Supreme Court Last Year. With Trump Gone, That’s Changed.” The article notes that “[p]ending immigration cases stemming from the Obama administration are in part a function of the years it takes for disputes to work their way through the courts. But it also underscores that many of the technical aspects of immigration enforcement don’t change much from president to president—despite the rhetoric from both parties.” Mr. Yale-Loehr said, “People may think, ‘Oh, well, now the government is always going to be trying to find ways to help immigrants’ and that’s not the case. You see that in some of these cases…where the government is still appealing to the Supreme Court on these technical but important issues.” https://www.usatoday.com/story/news/politics/2021/03/12/donald-trump-has-left-supreme-court-immigration-cases-went-him/4633025001/

Mr. Yale-Loehr presented a webinar on how to overcome immigration polarization on March 19, 2021, as part of the Cornell Advocacy Project’s four-part speaker series, “Speak Now.” Mr. Yale-Loehr discussed how issues of immigration have fractured along party lines and how that trend can be reversed. Topics included how and why immigration issues are polarized, how to advocate for those fighting within politically polarized immigration systems, and strategies for engaging in discussion with those who hold opposing views on immigration. https://www.youtube.com/watch?v=VwdCR698NoI (video); https://open.spotify.com/episode/7B6fMLTTcksOmGddaekmyT?si=PcYO44H5QjqEzd0vGYwU_g&nd=1 (podcast)

Mr. Yale-Loehr was quoted by National Public Radio in “Supreme Court Makes It Harder for Undocumented Immigrants to Fight Deportation.” He said the court’s decision “increases the burden of proof on immigrants in deportation proceedings.” https://www.npr.org/2021/03/04/973658292/supreme-court-makes-it-harder-for-undocumented-immigrants-to-fight-deportation

Mr. Yale-Loehr was quoted by Bloomberg Law Daily Labor Report in “U.S. Lawmakers Exploring Regional Visa Programs to Boost Economy.” The U.S. Citizenship Act’s regional economic development visa proposal echoes a similar initiative that was enacted as part of immigration law in 1990—the Labor Market Information program, which directed the Department of Labor to identify industries with a shortage of workers in the United States and industries with a surplus, he said. The plan was to make it easier to select immigrants in the shortage occupations and harder in the surplus occupations. “The proposed regulations were roundly criticized and the whole program died. In concept, this sounds great, but the devil is always in the details,” he said. https://news.bloomberglaw.com/daily-labor-report/u-s-lawmakers-exploring-regional-visa-programs-to-boost-economy

Mr. Yale-Loehr was quoted by Law & Crime in “Despite Biden Admin’s Claims, Southern District of Texas Ruling Does Not Require ICE to Deport.” He said, “Today’s court order does not require ICE to deport everyone who has a final deportation order. ICE still has discretion in deciding who to deport.” https://lawandcrime.com/immigration/despite-biden-admins-claims-southern-district-of-texas-ruling-does-not-require-ice-to-deport/

Mr. Yale-Loehr moderated a webinar, “What to Expect on Immigration from the Biden Administration”:

Mr. Yale-Loehr was quoted by Bloomberg Law in “Lawmakers Revisit Changes to H-1B Lottery in Immigration Plan.” He said that any plan to implement a wage-based H-1B system from Biden administration agency heads is unlikely to “be identical to the Trump H-1B wage rule, but it is similar in concept.” Moreover, “this would only authorize DHS and DOL to consider a wage-based system; it doesn’t require it.” https://news.bloomberglaw.com/daily-labor-report/lawmakers-revisit-changes-to-h-1b-lottery-in-immigration-plan

Mr. Yale-Loehr was quoted by the Philadelphia Inquirer in “ICE ‘Deep State’ is Blocking Biden’s Quest for Justice for Refugees.” Mr. Yale-Loehr said that President Biden faces a long road in undoing former immigration policies. “First, former President Trump emboldened ICE agents to arrest anyone they suspected of being here illegally, even if the person merely overstayed their visa. ICE officials will not want to return to the pre-Trump era, where they were supposed to prioritize deporting immigrants who had serious criminal convictions. That is harder work.” In sum, he said, “changing the ICE bureaucracy is like steering an ocean liner. It takes time to change course. And it is harder when the crew may refuse to comply.” https://www.inquirer.com/opinion/biden-deportations-ice-haiti-cameroon-mexico-20210211.html

Mr. Yale-Loehr was quoted by Mediapart France in “États-Unis: Biden promet une grande réforme de l’immigration” (“United States: Biden promises major immigration reform”). Mr. Yale-Loehr said that two essential questions relate to the content and “timing” of reform, considering that the midterm elections in 2022 could reshuffle the cards in the Senate. For the left, the possibility exists of fragmenting any reform project into first attempting to strengthen measures in Congress that are more “modest” and consensual like the DACA program, he said. Congress is not the only obstacle in the path of the Democrats. A federal judge in Texas, appointed by former President Trump, has effectively temporarily blocked a decision by President Biden to suspend deportations for 100 days, he noted (subscription)

Mr. Yale-Loehr was quoted by the Associated Press in “ICE Nearly Released Sex Abuse Convicts Despite Biden Memo.” He said a conviction for sexual abuse of a minor normally would qualify as an aggravated felony, and that “such individuals remain immigration enforcement priorities.” https://apnews.com/article/joe-biden-us-news-immigration-crime-texas-09f40966250e15b9d54942ddb267df7b

ABIL Immigration Insider • February 7, 2021

February 07, 2021/in Immigration Insider /by ABIL

In this issue:

1. USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions – The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B cap filing season this March.

2. FY 2022 H-1B Visa Registration Period Starts March 9 – The initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021.

3. DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May – The proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”

4. USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions – USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.

5. Alejandro Mayorkas Confirmed To Lead Department of Homeland Security – Mr. Mayorkas has become the first immigrant and first Latino to serve as Secretary of Homeland Security.

6. Biden Signs Immigration-Related Executive Orders – President Biden recently signed several immigration-related executive orders.

7. USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction – USCIS will continue to abide by previous filing fee amounts because of two preliminary injunctions.

8. Judge May Extend Hold on Deportation Moratorium Until February 23 – The Department of Justice may appeal, but it was unclear as of press time whether it would.

9. OFLC To Reissue Certain Prevailing Wage Determinations – In response to a court order, OFLC will reissue certain PWDs issued under an interim final rule in two phases.

10. February Visa Bulletin Announces Green Card Projections for the Coming Months – The Department of State’s Visa Bulletin for February 2021 included information on potential monthly movement for employment-based green card categories through May.

11. Judge Rules STEM OPT Program Lawful – The order means that both the 12-month OPT and STEM OPT extension programs are lawful.

12. USCIS Extends Flexibility for Responding to Agency Requests – USCIS is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.

13. President Biden Names Jean King as New Acting Director of EOIR – Ms. King is a former general counsel for EOIR and most recently served as EOIR’s chief administrative law judge.

14. President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order – The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders.

15. TPS for Syria Extended, Redesignated – DHS announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians, through September 2022.

16. Biden Administration Withdraws Proposed H-4 EAD Rescission Rule From OMB Review – About 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) are affected, along with their employers.

17. ICE Extends I-9 Compliance Flexibility – ICE announced an extension of flexibilities in rules related to employment eligibility verification compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.

18. ICE Cancels Plans for OPT Employment Compliance Unit – The agency determined that the Student and Exchange Visitor Program already addressed many of the same responsibilities.

19. President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info – President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.

20. President Biden Sets in Motion a Flurry of Immigration Actions in First Days – Newly inaugurated President Joseph R. Biden launched a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals.

21. DHS Pauses Certain Removals for 100 Days – The Department of Homeland Security announced that it is pausing for 100 days removals for certain noncitizens ordered deported, with exceptions.

22. DOS Announces Reconsideration of Visa Denials Based on Travel Bans – The Department of State will undertake a review to ensure that those whose immigrant visa applications were denied because of Trump administration proclamations may have their applications reconsidered.

23. President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers – Among other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers.

24. Census Bureau Director Under Trump Resigns Amid Flurry of Accusations re Data on Undocumented Immigrants – The Census Bureau’s former director resigned after whistleblowers complained about the handling of data and reporting on undocumented immigrants, and following implementation of a court order.

25. Trump Grants Last-Minute Deferred Enforced Departure to Certain Venezuelans – On January 19, 2021, former President Trump announced Deferred Enforced Departure (DED) for certain Venezuelans for 18 months who meet requirements.

26. Biden Administration Poised to Introduce Immigration-Related Executive Orders; Democrats Prepare Legislation – The Biden administration has plans to introduce executive orders and push for immigration legislation “immediately” after taking office.

27. Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship – The agencies’ final rules make substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers.

28. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.

29. Labor Dept. Updates Implementation of Final Rule on H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations in Response to Court Order – In response to a court order, the Department of Labor made changes to implementation of its final rule on AEWR methodology for non-range occupations.

30. Labor Dept. Announces Pending H-2A Final Rule – The Department of Labor announced a final rule pending publication that mandates electronic filing of job orders and applications. The agency said this would make it easier to share information with the Department of Homeland Security and other entities.

31. SEVP Announces New OPT Employment Compliance Unit – The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training.

32. U.S. To Require Negative COVID-19 Tests From International Arrivals – Effective January 26, 2021, all airline or other aircraft passengers arriving in the United States from any foreign country, with a few exceptions, must present either a negative pre-departure coronavirus test or documentation of recovery from COVID-19.

33. DHS Extends Canada-U.S.-Mexico Border Restrictions – The Department of Homeland Security extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021.

34. USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities – USCIS announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox.

35. Judges Block Trump Asylum Rule, Refugee Local Placement Order – A U.S. district judge blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.

36. SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA – The Systematic Alien Verification for Entitlements program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals.

37. ABIL Global: United Kingdom – This article provides an update on issues for European Union citizens to consider in light of Brexit.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – February 2021

1. USCIS Delays H-1B Wage-Based Selection Process for Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) is delaying the effective date of a final rule that changed the selection process for cap-subject H-1B petitions. The rule would essentially eliminate the lottery process to give priority to higher wage offerings. The wage-based selection process is delayed to December 31, 2021, meaning that it will not be in effect for the upcoming H-1B filing season this March.

For the upcoming H-1B cap lottery, USCIS will use the current regulations and selection process (random selection) to select registrations submitted during the filing window of March 9 to March 25, 2021. The H-1B lottery process saw significant changes last year, with the implementation of a pre-registration process.

Details:

“DHS Delays Effective Date of H-1B Selection Final Rule,” Feb. 4, 2021, https://www.uscis.gov/news/alerts/dhs-delays-effective-date-of-h-1b-selection-final-rule
“Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date,” USCIS, Feb. 8, 2021, Federal Register, https://www.federalregister.gov/documents/2021/02/08/2021-02665/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions
“USCIS Modifies H-1B Selection Process to Prioritize Wages,” USCIS, Jan. 7, 2021, https://www.uscis.gov/news/news-releases/uscis-modifies-h-1b-selection-process-to-prioritize-wages

2. FY 2022 H-1B Visa Registration Period Starts March 9

U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for FY 2022 H-1B cap-subject petitions opens at noon ET on March 9, 2021, and runs through noon ET on March 25, 2021. Representatives and registrants must wait until March 9 to create and submit H-1B registrations.

USCIS explained that prospective petitioners (registrants) must use a “registrant” account within myUSCIS to submit their registrations. Registrants will not be able to add more information after they select “I am an H-1B registrant” account type until the initial registration period opens. Petitioners submitting their own registrations will enter their company information as part of their first H-1B registration. Petitioners working with a representative will review company information that the representative enters before submitting the registration for each prospective beneficiary.

Representatives can create an account at any time by using the same kind of account already available to representatives. Representatives who already have a representative account may use that account; they do not need to create a new account, USCIS said.

USCIS has released instructions and a video on how to set up an account and register (link below).

Details:

“H-1B Electronic Registration Process,” USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (scroll down to “Step-by-Step Instructions” for video)
“H-1B Visa Registration for 2022 to Begin on Mar. 9, Lottery Results to be Notified by Mar. 31,” Economic Times,

3. DOL Proposes To Delay Effective Date of H-1B/PERM Wage Rule Until May

The Department of Labor’s Employment and Training Administration has proposed to delay the effective date of a Trump administration rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The implementation of the rule published in January will now be delayed until May 14, 2021. The notice states that the proposed delay “will allow agency officials the opportunity to review any questions of fact, law, or policy the rule may raise.”

Comments may be submitted until February 16, 2021.

Details:

“Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States: Proposed Delay of Effective Date,” Federal Register, Feb. 1, 2021,

4. USCIS Rescinds 2017 Policy Memorandum on H-1B Computer-Related Positions

On February 3, 2021, U.S. Citizenship and Immigration Services (USCIS) rescinded PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H-1B computer related positions.’ ” USCIS said its officers should not apply the rescinded memo “to any pending or new requests for H-1B classification, including motions and appeals of revocations and denials of H-1B classification,” and that further guidance is forthcoming.

USCIS explained that on December 16, 2020, the U.S. Court of Appeals for the 9th Circuit issued a decision in Innova Solutions v. Baran, where the court overturned USCIS’s denial of an H-1B nonimmigrant visa petition as arbitrary and capricious. The court’s opinion noted that while USCIS did not explicitly rely on PM-602-0142, the denial followed its logic. To ensure “consistent adjudications across the H-1B program, USCIS is rescinding PM-602-0142,” the new USCIS policy memorandum said.

Details:

“Rescission of 2017 Policy Memorandum PM-602-0142,” USCIS, Feb. 3, 2021, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf

5. Alejandro Mayorkas Confirmed To Lead Department of Homeland Security

The U.S. Senate confirmed Alejandro Mayorkas as Secretary of Homeland Security on February 2, 2021, making Mr. Mayorkas the first immigrant and first Latino to serve in that role.

Mr. Mayorkas comes from a 30-year career as a law enforcement official and a nationally recognized lawyer in the private sector. He served as Deputy Secretary of the Department of Homeland Security (DHS) from 2013 to 2016, and as Director of U.S. Citizenship and Immigration Services from 2009 to 2013. During his tenure at DHS, he led the development and implementation of Deferred Action for Childhood Arrivals, negotiated cybersecurity and homeland security agreements with foreign governments, led the agency’s response to Ebola and Zika, helped build and administer the Blue Campaign to combat human trafficking, and developed an emergency relief program for orphaned youth following the January 2010 earthquake in Haiti. He also created the Fraud Detection and National Security Directorate.

Mr. Mayorkas began his government service in the Department of Justice, where he served as Assistant United States Attorney in the Central District of California, specializing in the prosecution of white-collar crime. After nearly nine years as a federal prosecutor, he became a U.S. Attorney.

Mr. Mayorkas received a bachelor’s degree with distinction from the University of California at Berkeley and a law degree from Loyola Law School.

Details:

“Alejandro Mayorkas,” DHS announcement, Feb. 4, 2021, https://www.dhs.gov/person/alejandro-mayorkas
“Alejandro Mayorkas Nominated To Direct Department of Homeland Security,” Miller Mayer, https://millermayer.com/2020/alejandro-mayorkas-nominated-to-direct-department-of-homeland-security/
Senate Vote Summary—Mayorkas Confirmation, Roll Call Vote 117^th Congress, 1^st Session, Feb. 2, 2021, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=117&session=1&vote=00012

6. Biden Signs Immigration-Related Executive Orders

President Biden recently signed several immigration-related executive orders to:

Develop a strategy to address irregular migration across the southern border and create a humane asylum system. The Biden administration said it will address the underlying causes of migration; collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up asylum seekers’ and migrants’ protection and opportunities closer to home; and ensure that Central American refugees and asylum seekers have access to legal avenues to the United States. The order also directs the Secretary of Homeland Security to review the Migrant Protection Protocols program, and directs a series of actions to restore the U.S. asylum system, “including by rescinding and directing agency review of a host of Trump Administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers.”
Restore the U.S. refugee admissions program. This order launches administrative reform efforts with a goal of increasing refugee admissions to 125,000 in the first full fiscal year of the Biden administration, and proposing a raise in refugee admissions for this fiscal year after consulting with Congress. Among other things, the order will expand refugee adjudication capacity and review the current Special Immigrant Visa program for Iraqis and Syrians.
Elevate the role of the White House in coordinating the federal government’s strategy to promote immigrant integration and inclusion. This order includes re-establishing a Task Force on New Americans, and “ensuring that our legal immigration system operates fairly and efficiently.” The order requires agencies to review “recent regulations, policies, and guidance that have set up barriers to our legal immigration system” and “rescinds President Trump’s memorandum requiring family sponsors to repay the government if relatives receive public benefits, instructs the agencies to review the public charge rule and related policies, and begins a review to streamline the naturalization process.”
Create a task force to reunify families. This task force will work across the U.S. government, with “key stakeholders and representatives of impacted families,” and with “partners across the hemisphere to find parents and children separated by the Trump Administration.” The task force will make recommendations on next steps for reunification, and “to prevent such tragedies from occurring again,” and will report regularly to the President.

Details:

“Fact Sheet: President Biden Outlines Steps to Reform Our Immigration System by Keeping Families Together, Addressing the Root Causes of Irregular Migration, and Streamlining the Legal Immigration System,” White House, Feb. 2, 2021,
“Fact Sheet: President Biden to Sign Executive Actions Restoring America’s Place in the World,” White House, Feb. 4, 2021,
“Biden Signs Immigration Executive Orders and Establishes Task Force to Reunite Separated Families,” CNN, Feb. 2, 2021, https://www.cnn.com/2021/02/02/politics/biden-immigration-executive-orders/index.html

7. USCIS To Abide by Previous Filing Fee Amounts Under Preliminary Injunction

U.S. Citizenship and Immigration Services (USCIS) will continue to abide by previous filing fee amounts because of preliminary injunctions in ILRC v. Wolf and Nw. Immigrant Rts. Project v. USCIS. USCIS said it is complying with the terms of these orders and “is not enforcing the regulatory changes set out in the Final Rule. USCIS will continue to accept the fees that were in place prior to October 2, 2020, and follow the guidance in place prior to October 2, 2020 to adjudicate fee waiver requests.”

Details:

Notification of Preliminary Injunction, USCIS, 86 Fed. Reg. 7493, Jan. 29, 2021, https://www.justice.gov/eoir/page/file/1361621/download

8. Judge May Extend Hold on Deportation Moratorium Until February 23

Judge Drew Tipton of the Southern District of Texas, who recently blocked for 14 days the Biden administration’s 100-day pause on deportations in response to a lawsuit led by Texas Attorney General Ken Paxton, said he is likely to extend the block until February 23, 2021.

The Department of Justice may appeal, but it was unclear as of press time whether it would.

Details:

“Judge Likely to Extend Hold on Biden’s Deportation Pause Until Late February,” CNN, Jan. 29, 2021, https://www.cnn.com/2021/01/29/politics/immigration-biden-deportations-texas/index.html
Texas v. United States, Order Granting Plaintiff’s Emergency Application for a Temporary Restraining Order, Jan. 26, 2021, https://www.courthousenews.com/wp-content/uploads/2021/01/tx-deportation-order.pdf

9. OFLC To Reissue Certain Prevailing Wage Determinations

On January 20, 2021, a U.S. district court issued a modified order governing the manner and schedule in which the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) will reissue certain prevailing wage determinations (PWDs) that were issued from October 8, 2020, through December 4, 2020, under the wage methodology for a related DOL interim rule issued in October, and at the request of employers under the H-1B, H-1B1, and E-3 temporary programs and PERM labor certification program.

OFLC said DOL is taking necessary steps to comply with the modified order issued by the district court. Accordingly, OFLC will reissue certain PWDs issued under the interim final rule in two phases: high priority (within 15 days of receiving the requested list of named plaintiffs from plaintiffs’ counsel) and emergency situations (by March 2, 2021).

Employers that have already submitted a request in response to a December 3, 2020, announcement posted by OFLC have been issued a PWD and do not need to resubmit a second request for reissuance or take other additional action, OFLC said.

Details:

OFLC announcement, Jan. 22, 2021, https://www.dol.gov/agencies/eta/foreign-labor

10. February Visa Bulletin Announces Green Card Projections for the Coming Months

The Department of State’s Visa Bulletin for February 2021 included the following information on final action date projections (potential monthly movement) for employment-based green card categories through May. The bulletin notes that determination of the actual monthly final action dates is subject to fluctuations in applicant demand and other variables affecting processing:

Employment First:
Worldwide: Current
China: Up to six months
India: Up to six months

Employment Second:
Worldwide: Current
China: Up to three weeks
India: Up to two weeks

Employment Third:
Worldwide: Current
China: Up to one month
India: Up to three weeks
Mexico: Current
Philippines: Current

Employment Fourth:
Current for most countries
El Salvador, Guatemala, and Honduras: Up to three months
Mexico: Up to one month

Employment Fifth:
Will remain Current for most countries
China: No forward movement
Vietnam: Up to three weeks

Details:

Visa Bulletin for February 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-february-2021.html

11. Judge Rules STEM OPT Program Lawful

On January 28, 2021, a U.S. district court judge issued a summary judgment order finding that the STEM OPT (Optional Practical Training for science, technology, engineering, and mathematics students) program is a valid exercise of authority under the Immigration and Nationality Act. This means that both the 12-month OPT and STEM OPT extension programs are lawful.

The plaintiff, Washington Alliance of Technology Workers, has appealed.

Details:

Memorandum opinion, Washington Alliance of Technology Workers v. DHS,

12. USCIS Extends Flexibility for Responding to Agency Requests

U.S. Citizenship and Immigration Services (USCIS) announced on January 28, 2021, that it is extending the flexibilities it initially announced on March 30, 2020, to assist applicants, petitioners, and requestors responding to certain agency requests.

Included are Requests for Evidence and Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant. In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 60 calendar days from the issuance of a USCIS decision, and the agency made that decision between March 1, 2020 and March 31, 2021, inclusive.

Details:

USCIS alert, https://www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-3

13. President Biden Names Jean King as New Acting Director of EOIR

According to reports, effective January 31, 2021, Jean King is the new Acting Director of the Executive Office for Immigration Review (EOIR). She is a former general counsel for EOIR and most recently served as EOIR’s chief administrative law judge.

Ms. King replaces James McHenry, who led initiatives to close cases much faster and to limit asylum, among others. Greg Chen, director of government affairs for the American Immigration Lawyers Association, said the organization had “deep concerns” about Mr. McHenry, and other Trump administration appointees leading EOIR, “who have stripped judges of fundamental authorities that make it impossible for them to render fair and consistent decisions.” He said Mr. McHenry was the architect of changes that tarnished the credibility and impartiality of the immigration courts and “converted the courts into conveyor belts for rapid deportation.”

The news of Ms. King’s appointment, signaling a policy shift, came in a memorandum from Acting Deputy Attorney General John Carlin to staff and judges. The memo reportedly stated that Ms. King would provide continuity in EOIR leadership until a new director is selected.

Details:

“Biden Administration Replaces Top Immigration Court Official,” Politico, 27, 2021, https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053
“Biden Admin. Takes ‘Essential Step’ in Altering Trump-Era Immigration Policy,” Newsweek, Jan. 27, 2021, https://www.newsweek.com/biden-admin-takes-essential-step-altering-trump-era-immigration-policy-1564924

14. President Biden Issues Executive Order Revoking Trump “Buy American and Hire American” Executive Order

On January 25, 2021, President Biden issued an executive order, “Ensuring the Future Is Made in All of America by All of America’s Workers.” The order states that the federal government should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” It also revokes several Trump administration orders, including “Buy American and Hire American” (Executive Order 13788, April 18, 2017). U.S. Citizenship and Immigration Services used that executive order as a justification to issue several restrictive immigration policy changes.

Details:

Biden Executive Order #14005, Jan. 25, 2021, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers

15. TPS for Syria Extended, Redesignated

The Department of Homeland Security (DHS) announced an 18-month extension and redesignation of temporary protected status (TPS) for Syrians. This enables more than 6,700 eligible Syrian nationals (and individuals without nationality who last resided in Syria) to retain their TPS through September 2022, and allows approximately 1,800 additional individuals to file initial TPS applications.

Current beneficiaries as well as Syrian nationals who entered the United States after August 1, 2016, and are otherwise eligible may register. DHS plans to publish a notice in the Federal Register with instructions for re-registration and employment authorization. The DHS Secretary will make the next decision to extend or terminate the designation for Syria on or before July 31, 2022.

Details:

“Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” DHS Press Release, Jan. 29, 2021, https://www.dhs.gov/news/2021/01/29/acting-dhs-secretary-pekoske-extends-temporary-protected-status-syria

16. Biden Administration Withdraws Proposed H-4 EAD Rescission Rule From OMB Review

The Biden administration withdrew a proposed rule to rescind the H-4 employment authorization document (EAD) program from review by the Office of Management and Budget. This means that about 100,000 H-4 EAD holders (spouses of H-1B workers who are mostly women from India) and their employers no longer need to worry about losing their work authorization.

Details:

“Proposed H-4 EAD Rule Withdrawn for Review,” National Law Review, https://www.natlawreview.com/article/proposed-h-4-ead-rule-withdrawn-review
“Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization,” Proposed Rule, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202010&RIN=1615-AC15

17. ICE Extends I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibilities in rules related to Form I-9 (Employment Eligibility Verification) compliance due to continued precautions related to the COVID-19 pandemic. The policy is extended until March 31, 2021.

About a year ago, the Department of Homeland Security deferred physical presence requirements associated with the I-9 process. The policy applies only to employers and workplaces operating remotely.

Details:

“ICE Announces Extension to I-9 Compliance Flexibility,” ICE, Jan. 27, 2021, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-2

18. ICE Cancels Plans for OPT Employment Compliance Unit

According to reports, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) canceled plans for a new Optional Practical Training (OPT) Employment Compliance Unit. The agency determined that SEVP already addressed many of the same responsibilities.

Details:

Compliance Whiplash: ICE Establishes, and Then Rescinds, Plan to Create OPT Employment Compliance Unit,” Seyfarth, Jan. 28, 2021, https://www.seyfarth.com/news-insights/compliance-whiplash-ice-establishes-and-then-rescinds-plan-to-create-opt-employment-compliance-unit.html

19. President Biden Signs Proclamation Continuing Suspension of Entry for Certain Travelers, Adding South Africa; DOS Provides Related Info

On January 25, 2021, President Biden signed a proclamation continuing the suspension of entry of certain travelers from the Schengen Area, the United Kingdom, the Republic of Ireland, Brazil, China, and Iran, and expanding restrictions to include travelers from South Africa.

U.S. citizens and lawful permanent residents are not subject to the proclamations. Exceptions also include foreign diplomats traveling to the United States on A or G visas; air and sea crew traveling to the United States on C, D, or C1/D visas; and others. For the full list of exceptions, refer to the proclamations.

The Department of State also released a listing with descriptions of previous COVID-19-related Presidential Proclamations that remain in force.

Details:

“Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease,” Presidential Proclamation, Jan. 25, 2021,
“Presidential Proclamations on Novel Coronavirus,” Department of State, Jan. 26, 2021, https://travel.state.gov/content/travel/en/News/visas-news/presidential-proclamation-coronavirus.html

20. President Biden Sets in Motion a Flurry of Immigration Actions in First Days

Newly inaugurated President Joseph R. Biden wasted no time in his first days in office, launching a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals. Below is a summary:

Executive Orders

“Proclamation on Ending Discriminatory Bans on Entry to the United States.” This order revokes a variety of Trump administration orders and proclamations that prevented certain individuals from the United States, such as those from primarily Muslim countries and from largely African countries, from entering the United States. The new order states that these Trump administration orders and proclamations “are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” The order says that such orders and proclamations also “have undermined our national security,” “jeopardized our global network of alliances and partnerships” and are a “moral blight that has dulled the power of our example the world over,” in addition to separating families and “inflicting pain that will ripple for years to come.” Among other things, the order also states that when visa applicants request “entry to the United States, we will apply a rigorous, individualized vetting system.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/
“Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This order refers to DACA guidance issued in 2012 under the Obama administration that “deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.” The new order directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/
“Reinstating Deferred Enforced Departure for Liberians.” This order defers through June 30, 2022, with some exclusions, “the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of DED [Deferred Enforced Departure] as of January 10, 2021.” The order also provides for employment authorization for such persons through June 30, 2022, and calls for a notice to be published in the Federal Register. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/reinstating-deferred-enforced-departure-for-liberians/
“Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction.” Among other things, this order calls for a pause on construction work and funding for the southern U.S. border wall and an assessment of related legal, administrative, and contractual issues. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-termination-of-emergency-with-respect-to-southern-border-of-united-states-and-redirection-of-funds-diverted-to-border-wall-construction/
“Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities.” This order revokes a Trump administration order issued January 25, 2017 (“Enhancing Public Safety in the Interior of the United States”) and states that the Biden administration will “reset the policies and practices for enforcing civil immigration laws to align enforcement” with certain values and priorities, including protecting national and border security, addressing the humanitarian challenges at the southern border, ensuring public health and safety, and adhering to “due process of law as we safeguard the dignity and well-being of all families and communities.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/

Regulatory Actions

A memorandum to the heads of executive departments and agencies sent by Ronald Klain, President Biden’s chief of staff, states that President Biden is calling for a regulatory freeze pending review of any new or pending rules, with possible exceptions for emergency or urgent situations. The memo states that no rule should be proposed or issued “in any manner,” including by sending a rule to the Office of the Federal Register (OFR), “until a department or agency head appointed or designated by” President Biden reviews and approves the rule. President Biden ordered that rules that have been sent to the OFR but not published in the Federal Register to be immediately withdrawn. For rules that have been published or issued in any manner but have not yet taken effect, President Biden ordered department and agency heads to “consider postponing the rules’ effective dates for 60 days” so they can be reviewed. The memo also calls for consideration of opening a 30-day comment period. The memo calls for the Office of Management and Budget director to implement the regulatory review. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/regulatory-freeze-pending-review/

Legislative Proposals

President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:
Provide worker protections and improvements to the employment verification process.
Clear employment-based visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
Reform family-based immigration.
Increase diversity visas from 55,000 to 80,000.
Promote immigrant and refugee integration and citizenship.
Prioritize border controls that include technology and infrastructure improvements.
Manage the border and provide various resources to protect border communities.
Crack down on criminal organizations.
Address underlying regional causes of migration.
Reform immigration courts.
Support asylum seekers and other vulnerable populations.
Change the word “alien” to “noncitizen” in U.S. immigration laws.

It will be interesting to follow these myriad proposals and actions as they make their way through the agencies, the regulatory and legislative processes, and the courts. Some Republicans have already signaled their resistance to aspects of the legislative proposals. Sen. Lindsey Graham (R-SC), for example, said comprehensive immigration reform “is going to be a tough sell given this environment, but doing DACA, I think, is possible.” Stay tuned.

Details:

“Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize Our Immigration System,” Biden-Harris Transition Press Release, Jan. 20, 2021, https://cdn.vox-cdn.com/uploads/chorus_asset/file/22246670/Fact_Sheet__America_s_Citizenship_Act_of_2021.pdf
“Senate Republicans Throw Cold Water on Biden’s Immigration Proposal,” https://www.nbcnews.com/politics/immigration/senate-republicans-throw-cold-water-biden-s-immigration-proposal-n1255232

21. DHS Pauses Certain Removals for 100 Days

The Department of Homeland Security (DHS) announced on January 20, 2021, that it is pausing for 100 days removals for certain noncitizens ordered deported, with exceptions. DHS said the action is intended “to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety” and to “allow DHS to ensure that its resources are dedicated to responding to the most pressing challenges that the United States faces.” Among those issues, a press release states, are “immediate operational challenges at the southwest border in the midst of the most serious global public health crisis in a century.”

DHS said it will “continue to enforce our immigration laws” throughout “this interim period.” The memo calls for a review of policies and practices related to immigration enforcement.

Meanwhile, Ken Paxton, Texas Attorney General, sued the Biden administration over the new policy to pause removals, stating that the “unlawful reversal” “ignored basic constitutional principles and violated [the government’s] written pledge” made in the last weeks of the Trump administration “to work cooperatively with the State of Texas to address shared immigration enforcement concerns.”

Details:

“Acting Secretary of DHS Directs a Review of Immigration Enforcement Practices and Policies,” DHS press release, Jan. 20, 2021, https://www.dhs.gov/news/2021/01/20/acting-secretary-dhs-directs-review-immigration-enforcement-practices-and-policies
“Memorandum From Acting Secretary Pekoske on Immigration Enforcement Policies,” https://www.dhs.gov/sites/default/files/publications/21_0120_enforcement-memo_signed.pdf
Texas v. United States, https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2021/Press/1%20Complaint_0.pdf
“Texas Sues Biden Administration Over 100-Day Deportation ‘Pause,’ ” Washington Post, https://www.washingtonpost.com/national/texas-biden-lawsuit-ice-deportations/2021/01/22/4548eec2-5cea-11eb-aaad-93988621dd28_story.html (subscription)

22. DOS Announces Reconsideration of Visa Denials Based on Travel Bans

On January 22, 2021, the Department of State (DOS) announced that it will undertake a review “to ensure that individuals whose immigrant visa applications were denied on the basis of the suspension and restriction on entry imposed by P.P. [Presidential Proclamations] 9645 or 9983 may have their applications reconsidered.” In addition to considering whether to reopen such applications, the agency will consider whether to charge an additional fee for processing them and will develop a plan to expedite their consideration. The review is taking place in response to President Biden’s proclamation signed on January 20, 2021, ending travel restrictions under earlier Trump administration proclamations that suspended entry into the United States of certain nationals, based on visa type, from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.

The DOS announcement also noted:

Pending the Department’s review, under current Department regulations Immigrant visa (IV) applicants who were previously refused due to either P.P. 9645 or 9983 and were determined not to qualify for a waiver before January 20, 2020, must submit a new visa application (DS-260) and pay a new visa application processing fee. IV applicants refused due to either P.P. 9645 or 9983 and whose eligibility for a waiver was still being evaluated, or who were determined not to qualify for a waiver within one year of January 20, 2021, and who also request their local embassy or consulate to resume processing on their case within one year of January 20, 2021 may be able to resume processing of their case without submitting a new application or paying a new visa application processing fee. Embassies and consulates will prioritize the adjudication of applications for those individuals who remain in the waiver process.

Nonimmigrant visa applicants who were previously refused due to either P.P. 9645 or 9983 and did not qualify for a waiver will need to submit a new visa application (DS-160) and pay a new visa application processing fee if they wish to reapply for a visa.

The announcement warns that processing may be affected by COVID-19 pandemic-related restrictions at U.S. embassies and consulates on a post-by-post basis.

Details:

“Rescission of Presidential Proclamations 9645 and 9983,” Department of State, Jan. 22, 2021, https://travel.state.gov/content/travel/en/News/visas-news/rescission-of-presidential-proclamations-9645-and-9983.html

23. President Biden Orders COVID-19 Related Public Health Measures for Domestic and International Travelers

On January 21, 2021, President Biden signed an executive order to implement public health measures “consistent with CDC [Centers for Disease Control and Prevention] guidelines on public modes of transportation and at ports of entry to the United States.”

Among other things, the order requires a negative COVID-19 test within 72 hours before boarding a flight to the United States for most travelers. The order calls for an assessment of alternative measures (e.g., testing, self-quarantining) for travelers entering the United States from countries where COVID-19 tests are inaccessible, “particularly where such inaccessibility of tests would affect the ability of United States citizens and lawful permanent residents to return to the United States.”

The order also calls for diplomatic outreach to the governments of Canada and Mexico regarding public health protocols for land ports of entry.

Details:

“Executive Order on Promoting COVID-19 Safety in Domestic and International Travel,” Jan. 21, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-promoting-covid-19-safety-in-domestic-and-international-travel/

24. Census Bureau Director Under Trump Resigns Amid Flurry of Accusations re Data on Undocumented Immigrants

The U.S. Census Bureau announced on January 16, 2021, that it is complying with a court order in a case brought by the National Urban League against former President Trump’s orders to exclude data on undocumented immigrants from the 2020 Census. Specifically, the Bureau instructed its staff not to finalize, report, or publicly disclose any reports, estimates, or data relating to such orders before the change of administration, and to provide detailed notice before releasing any such information that is finalized. This action also followed complaints about how the Bureau’s director was handling data on undocumented immigrants.

According to reports, apportionment data may not be available until March 2021, exceeding the statutory deadline of December 31, 2020. A memo issued January 12, 2021, by the Commerce Department’s Office of Inspector General (OIG), the latest director of the U.S. Census Bureau under the Trump administration, stated that Director Steven Dillingham had been rushing to produce a technical report that would include data on documented and undocumented persons in the United States before the end of the Trump administration. Whistleblowers complained that they had not had “sufficient time to conduct their normal data quality checks” and expressed concern that the data required were “not ready for publication.” The Commerce Department’s memo further stated that Dr. Dillingham “inquired into a financial reward for speed on this directive.” The OIG asked for information on various aspects of the report and the processes and timelines for producing it.

Subsequently, Dr. Dillingham resigned effective January 20, 2021, and Politico pronounced “dead” the Trump administration’s push to exclude the undocumented from the Census.

Details:

“Census Bureau Statement on National Urban League Case 21-Day Stay,” https://www.census.gov/newsroom/press-releases/2021/national-urban-league-21-day-stay.html
National Urban League v. Ross, https://www.census.gov/content/dam/Census/newsroom/press-kits/2021/456-stipulation-and-order-granting-stay.pdf
“Request for Information Pursuant to the Inspector General Act of 1978, as Amended,” Office of Inspector General, U.S. Department of Commerce, Jan. 12, 2021, https://www.oig.doc.gov/OIGPublications/OIG-21-019-M.pdf
“Census Bureau Says Trump’s Push to Exclude Undocumented is Dead,” Politico, https://www.politico.com/news/2021/01/16/census-data-released-biden-trump-undocumented-immigrants-459893
“Director’s Blog: Farewell,” Statement of Dr. Steven Dillingham, Director, U.S. Census Bureau, Jan. 18, 2021, https://www.census.gov/newsroom/blogs/director/2021/01/dillingham-farewell.html

25. Trump Grants Last-Minute Deferred Enforced Departure to Certain Venezuelans

On January 19, 2021, former President Trump announced Deferred Enforced Departure (DED) for certain Venezuelans due to the “deteriorative condition within Venezuela, which presents an ongoing national security threat to the safety and well-being of the American people.” The memo, published in the Federal Register on January 25, 2021, directs the deferral for 18 months of the removal of Venezuelans meeting certain requirements.

Details:

“Deferred Enforced Departure for Certain Venezuelans,” Federal Register, https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01718.pdf
“Trump Grants Venezuelans Temporary Legal Status on His Way Out,” Politico, Jan. 19, 2021, https://www.politico.com/news/2021/01/19/trump-venezuela-temporary-legal-status-460524

26. Biden Administration Poised to Introduce Immigration-Related Executive Orders; Democrats Prepare Legislation

According to reports, the Biden administration plans to introduce executive orders and push for immigration legislation “immediately” after taking office. After a related conference call, commenters called the plans “groundbreaking,” “bold,” and “aggressive.” Congressional Democrats and advocates have been working on a bill. Ideas in the mix include a pathway to U.S. citizenship for an estimated 11 million undocumented people, permanent residence for people with temporary protected status, and an extension of the Deferred Action for Childhood Arrivals (DACA) program and permanent residence for DACA recipients.

President-elect Biden was reported as noting that impeachment proceedings in the Senate may slow progress on legislation, along with the need to pass Covid-19 pandemic relief. Immigration reform legislation has been notoriously difficult to pass. It is unclear whether the legislation will be introduced in one comprehensive sweep or broken down into smaller bills, or some of both. Litigation could also have an impact on the Biden administration’s plans.

Details:

“Democrats Ready Immigration Push for Biden’s Early Days,” Politico, https://www.politico.com/news/2021/01/15/biden-immigration-plans-459766
“Biden Plans Early Legislation to Offer Legal Status to 11 Million Immigrants Without It,” Los Angeles Times, https://lat.ms/3bNnKnM
“Biden Plans ‘Roughly a Dozen’ Day One Executive Actions: Aide,” Reuters, https://reut.rs/2M1tX4g
“Trump’s Executive Orders on Immigration Could Be Tough to Undo,” Daily Labor Report, Bloomberg Law, https://news.bloomberglaw.com/daily-labor-report/trumps-executive-orders-on-immigration-could-be-tough-to-undo
“The Biden Plan for Securing Our Values as a Nation of Immigrants,” https://joebiden.com/immigration/

27. Labor, Homeland Security Dept. Issue Final Rules Changing Prevailing Wage Methodology, Employer-Employee Relationship

The Departments of Labor (DOL) and Homeland Security (DHS) issued final rules making substantive changes to foreign worker programs, notably prevailing wage methodology and the definition of the employer-employee relationship for H-1B workers. Below are selected highlights of the two rules and related guidance.

DOL final rule. On January 14, 2021, DOL published a final rule changing the prevailing wage methodology for several immigrant and nonimmigrant foreign worker programs. The final rule is effective March 15, 2021, but filers will not be required to use the revised prevailing wage methodology until July 1, 2021.

Among other things, the final rule changes the calculation of prevailing wages for jobs requiring certain employment-based immigrant visas or for jobs in the PERM, H-1B, H-1B1, and E-3 visa programs for which employers seek labor certification. The related interim final rule, issued in October 2020, was scuttled by court decisions. DOL said it made changes to the interim rule in response to comments. For example, the agency adjusted the Level I and Level IV wages downward to the 35^th percentile and 90^th percentile, respectively, and is implementing changes to how it uses data in the H-1B and PERM programs “that will further reduce the incidence of inappropriately inflated wages identified by commenters.” DOL also is adopting a “phase-in approach” to give employers and workers time to adapt.

DHS final rule. On January 15, 2021, DHS released a final rule on its website that it has sent for publication in the Federal Register. The rule amends its regulations, for petitions filed on or after the effective date of the regulation, to clarify how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between an H-1B petitioner and a beneficiary for the purposes of qualifying as a “United States employer.” DHS said it is not finalizing other provisions of the related interim final rule published in the Federal Register on October 8, 2020, and that it “plans to pursue future rulemaking for those provisions,” which were vacated by the U.S. District Court for the Northern District of California on December 1, 2020.

The final rule adopts a “common-law test” for determining which entities have an employment relationship with an H-1B worker. Under the common law, DHS explained, “multiple entities can have an employment relationship with a worker simultaneously.” Under a third-party placement arrangement, therefore, it is possible that the third-party entity would also be considered an employer of the H-1B worker and would be required to file a petition for the H-1B worker. DHS said that because adoption of the rule “may require adjustments to business practices on the part of employers, including third-party common-law employers,” the agency determined that it is appropriate for the rule to take effect 180 days from publication.

Related guidance. DOL’s Office of Foreign Labor Certification (OFLC) revised its interpretation of regulations concerning which employers of H-1B workers must file a Labor Condition Application (LCA). Under the interpretation announced on January 15, 2021, all common-law employers of H-1B workers, including any secondary employers meeting the common-law test, must file an LCA.

The OFLC bulletin explained that H-1B employment frequently involves primary employers, such as staffing agencies, that petition to hire H-1B workers, as well as secondary employers, such as staffing agencies’ clients, where the H-1B workers are assigned to work. Secondary employers must now comply with the statutory and regulatory requirements of the H-1B program if they are common-law employers of the H-1B worker, OFLC said.

Also, on January 15, 2021, DOL released a bulletin providing guidance to Wage and Hour Division field staff regarding H-1B program obligations for common-law employers “in light of interpretive changes being made” by DHS and DOL.

Litigation is expected.

Details:

DOL final rule,
DHS final rule (not yet published in the Federal Register), https://www.dhs.gov/sites/default/files/publications/21_0115_uscis_strengthening-final-rule.pdf
“DHS and DOL Team Up on H-1B Visas Against IT Services Companies,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/01/18/dhs-and-dol-team-up-on-h-1b-visas-against-it-services-companies/?sh=417c765547e9
“Labor Department Raises Mandatory Wages for H-1B Workers,” India West,
“U.S. Agency Issues Final Wage Rules for H-1Bs and Green Card Holders, Higher Wages to Apply in a Phased Manner,” Times of India,
“DOL H-1B Visa Wage Rule: Donald Trump’s Bad Parting Gift to Immigrants,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/01/13/dol-h-1b-visa-wage-rule-donald-trumps-bad-parting-gift-to-immigrants/?sh=1a069506774f (available by registration)
“Trump Administration Moves Ahead With H-1B Pay Rule Over Silicon Valley’s Objections,” https://www.sfchronicle.com/business/article/Trump-administration-moves-ahead-with-H-1B-pay-15865554.php
“OFLC Announces Revised Interpretation and Issues New Guidance Clarifying Requirements Under the H-1B Program,” OFLC, Jan. 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
“H-1B Program Obligations for Common-Law Employers,” DOL Field Assistance Bulletin, Jan. 15, 2021, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_1.pdf

28. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the list of countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs in 2021.

For 2021, the Departments agreed to:

Add the Philippines to the H-2B list;
No longer designate Samoa and Tonga as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
No longer designate Mongolia as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program.

Details:

DHS Federal Register notice,
DHS announcement, https://www.uscis.gov/news/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs

29. Labor Dept. Updates Implementation of Final Rule on H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations in Response to Court Order

In response to a court order, the Department of Labor (DOL) made changes to implementation of its final rule on adverse effect wage rate (AEWR) methodology for non-range occupations. On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL, enjoining the agency from implementing its final rule, issued November 5, 2020, on AEWR methodology for the temporary employment of H-2A nonimmigrants in non-range occupations, and ordering DOL to operate under the 2010 rule.

On January 12, 2021, the court issued a supplemental order requiring DOL to publish the AEWRs for 2021 by February 25, 2021, using the methodology set forth in the 2010 rule, and to make those AEWRs effective upon their publication. Additionally, the court ordered DOL to notify all state workforce agencies, employers, and the general public that the AEWRs in effect on December 20, 2020, will remain in effect during the interim period until DOL publishes 2021 AEWRs in the Federal Register.

Additionally, the court reserved decision on whether an award of backpay is warranted based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs. DOL reminded employers to record the names and permanent home addresses of all H-2A workers who may later be entitled to backpay.

Details:

“OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for Non-Range Occupations Final Rule; Compliance with District Court Order,” January 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor

30. Labor Dept. Announces Pending H-2A Final Rule

The Department of Labor (DOL) announced a final rule pending publication that mandates electronic filing of job orders and applications. DOL said the action is “designed to bring the
H-2A application process into the digital era, by harnessing the power of the FLAG electronic filing system to share information with other federal agencies like the Department of Homeland Security while also sharing information with the State Workforce systems and domestic farmworkers.”

Additionally, the final rule will include the ability to stagger the entry of workers into the United States over a 120-day period and will allow agricultural employers to file a single application for different dates of need instead of multiple applications.

The agency said it expects the final rule to be published shortly, with a 30-day delayed effective date from the date of publication.

Details:

“U.S. Department of Labor Announces a Final Rule Which Modernizes and Improves the H-2A Temporary Agricultural Program,” January 15, 2021, https://www.dol.gov/agencies/eta/foreign-labor
Final rule draft submitted to the Federal Register, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A-2020-final-rule-1_8_2021-Clean-with-disclaimer.pdf

31. SEVP Announces New OPT Employment Compliance Unit

The Student and Exchange Visitor Program (SEVP) announced a new “OPT Employment Compliance Unit” that will be dedicated to compliance matters involving wages, hours, and compensation within Optional Practical Training (OPT), the OPT extension, and Curricular Practical Training. The unit will publish a report at least annually on its findings, with the first report to be published on ICE.gov by July 31, 2021.

The unit will be responsible for “recommending investigations of employers and students, as needed, to Homeland Security Investigations (HSI) to ensure that the OPT programs operate in a lawful manner at U.S. worksites.” The unit will also “evaluate whether employers are adhering to the attestations and training plans required under the OPT extension, which will include on-site visitation.”

Details:

“Broadcast Message: New SEVP Unit to Oversee Employment Compliance in the OPT Programs and Report on Impact on U.S. Workers,” U.S. Immigration and Customs Enforcement, Jan. 13, 2021, https://www.ice.gov/doclib/sevis/pdf/bcm2101-02.pdf

32. U.S. To Require Negative COVID-19 Tests From International Arrivals

Effective January 26, 2021, all airline or other aircraft passengers arriving in the United States from any foreign country, with a few exceptions, must present: (1) a negative pre-departure test result for SARS-CoV-2, the virus that causes COVID-19 (Qualifying Test); or (2) written or electronic documentation of recovery from COVID-19 after previous infection in the form of a positive viral test result and a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel (Documentation of Recovery).

Details:

“Requirement for Negative Pre-Departure COVID-19 Test Result or Documentation of Recovery From COVID-19 for All Airline or Other Aircraft Passengers Arriving Into the United States from Any Foreign Country,” CDC, https://www.cdc.gov/quarantine/pdf/global-airline-testing-order_2021-01-2_R3-signed-encrypted-p.pdf
“Test for Current Infection,” Centers for Disease Control and Prevention (CDC), https://www.cdc.gov/coronavirus/2019-ncov/testing/diagnostic-testing.html
“COVID-19: U.S. To Require Negative Virus Tests From International Air Travelers,” New York Times, https://www.nytimes.com/live/2021/01/12/world/covid-19-coronavirus#the-us-will-require-negative-virus-tests-from-international-passengers-arriving-by-air

33. DHS Extends Canada-U.S.-Mexico Border Restrictions

The Department of Homeland Security (DHS) extended temporary travel restrictions among the United States, Canada, and Mexico through February 21, 2021. The restrictions suspend entry via land border, ferry crossing, passenger rail, or coastal ports of entry from Canada and/or Mexico for pleasure boat travel of immigrants and nonimmigrants, including any travel that is not deemed essential. The restrictions do not apply to air, freight rail, or sea travel.

The determination of essential travel is at the discretion of the port of entry and exceptions to the restrictions include U.S. citizens and lawful permanent residents returning to the United States, individuals traveling for medical purposes and to attend educational institutions, individuals traveling to work in the United States, and other reasons.

Details:

“Temporary Travel Restrictions to Land Border and Ferries Between the United States, Canada and Mexico,” U.S. Customs and Border Protection, https://help.cbp.gov/s/article/Article-1694?language=en_US

34. USCIS Announces Delays in Issuing Receipt Notices Filed at Lockbox Facilities

U.S. Citizenship and Immigration Services (USCIS) announced delays of four to six weeks in sending out receipt notices after receiving properly filed applications and petitions with a USCIS lockbox. The agency said a variety of factors were to blame, including “COVID-19 restrictions, an increase in filings, current postal service volume and other external factors.” Among other things, USCIS said there may be “significant delays” in receipt notices for Form I-765, Application for Employment Authorization, based on categories related to F-1 students.

USCIS said its lockbox workforce was working extra hours and redistributing its workload to minimize delays. “We do not anticipate any receipting delays that would result in a payment that is past its validity date,” the agency said. For those who have not yet filed an application, USCIS recommends filing online if possible, creating a USCIS online account to check case status, and completing a Form G-1145, E-Notification of Application/Petition Acceptance to request a text message and/or email when USCIS accepts the form via a lockbox.

Details:

USCIS alert, https://www.uscis.gov/news/alerts/uscis-lockbox-updates

35. Judges Block Trump Asylum Rule, Refugee Local Placement Order

On January 8, 2021, a U.S. judge in the Northern District of California blocked the Trump administration’s rule that would have severely limited asylum in the United States by curtailing eligibility criteria. Judge James Donato blocked the rule on the basis that Chad Wolf, whom President Trump appointed as Acting Secretary of Homeland Security, did not have the authority to impose rules because he was not lawfully appointed. Noting that limiting the decision “would result in a fragmented and disjointed patchwork of immigration policy,” Judge Donato said the temporary restraining order applies nationwide.

Judge Donato said the government “has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”

Asylum at the U.S.-Mexico border is otherwise also limited due to COVID-19 pandemic-related and other reasons. President Trump reportedly withdrew his nomination of Mr. Wolf to serve as Secretary of Homeland Security after Mr. Wolf condemned those who rioted and invaded the U.S. Capitol and said he supported an orderly transition to the Biden administration.

In another ruling on the same day, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled against a Trump executive order requiring consent from state and local entities for refugee placements.

Details:

“Judge Blocks Dramatic Overhaul of U.S. Asylum System From Taking Effect,” Reuters, https://reut.rs/3s40ZBs
S. Judge Blocks Trump Administration’s Sweeping Asylum Rules,” Associated Press, https://apnews.com/article/donald-trump-immigration-courts-local-governments-3d6ab9e79153e67d974cee1bf592862f

36. SAVE Issues Notice on Verifying Applicants’ Extended Deferred Action Under DACA

The Systematic Alien Verification for Entitlements (SAVE) program announced that it can verify when an applicant for a federal, state, or local government benefit or license has received deferred action under Deferred Action for Childhood Arrivals (DACA).

SAVE noted that applicants may present an unexpired Form I-766, Employment Authorization Document (EAD), in combination with an I-797, Extension Notice, issued by USCIS showing that their deferred action has been extended for one year. This unexpired EAD must contain a Category code of C33 and be issued on or after July 28, 2020, SAVE said, adding that SAVE user agencies may need to institute additional verification in these situations.

Details:

USCIS notice, https://www.uscis.gov/save/whats-new/verifying-applicants-extended-deferred-action-under-daca

37. ABIL Global: United Kingdom

This article provides an update on issues for European Union citizens to consider in light of Brexit.

Issues for EU Citizens to Consider

European Union (EU) (and European Economic Area and Swiss) citizens who have already been resident in the United Kingdom (UK) are expecting no major issues after the Brexit transition period ended on December 31, 2020. So long as they were resident by the end of 2020, they can apply to the EU Settlement Scheme before the deadline of June 30, 2021. But there are several issues to be aware of regarding absences from the UK for those with pre-settled status and those relying on permanent residence to naturalize as British citizens.

Absences for those with pre-settled status. EU citizens who have pre-settled status must apply for settled status after 5 years in the UK. Pre-settled status is not extendable, so it is important that the residence requirements be met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker. Those with pre-settled status should not be absent for more than 6 months in any 12-month period. A single period of absence of up to 12 months is permitted for an “important” reason, which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training, or an overseas posting.

Given the circumstances, the obvious question is why absences due to the COVID-19 pandemic have not been included in the EU Settlement Scheme rules and guidance. Elsewhere in the rules, absences due to the pandemic have been covered. For example, travel disruption due to the pandemic because there were no available flights or the visa application centers were closed has been a ground for absences above the usual threshold to be allowable on an exceptional basis where they can be evidenced.

The Home Office has advised that absences over 6 months for those with pre-settled status could be permitted on a discretionary basis if:

The EU citizen, or a person with whom they are living, is suffering from COVID-19 and they are either too ill to travel or forcibly in quarantine for public health reasons; or
There were no available flights to the UK and in essence the individual has been stranded overseas.

A general reluctance to return to the UK is not expected to be sufficient. As a result of this policy, EU citizens with pre-settled status who have had or may shortly have absences of more than 6 months in a 12-month period that are not very clearly for an important reason must consider:

Traveling to the UK before they reach 6 months of absence from the UK; or
Reapplying from outside the UK for pre-settled status before they reach 6 months of absence; or

Relying on permanent residence for naturalization. EU citizens who have been granted a permanent residence document under EU law (not from the EU Settlement Scheme) and who have held permanent residence for 12 months can normally apply to naturalize as a British citizen. Plus, some applicants’ permanent residence will be backdated, meaning they can apply to naturalize right away.

EU citizens should be aware, though, of a rule change as of January 1, 2021. For applications submitted in the new year:

If the applicant only has a permanent residence document and does not have settled status, they can continue to rely on the permanent residence document for a naturalization application. They should ensure that they do not become an overstayer on July 1, 2021, by applying for settled status (from the EU Settlement Scheme) before that date if their naturalization application remains outstanding; and
If, on the other hand, the applicant has both a permanent residence document and settled status, as of January 1, 2021, they cannot rely on the permanent residence document and instead must wait until they have held settled status for 12 months.

Details:

New UK immigration system FAQs, https://www.kingsleynapley.co.uk/services/department/immigration/the-uks-new-immigration-system-what-you-need-to-know

New Publications and Items of Interest

Webinar for refugee and asylee service providers. The Immigrant & Employee Rights Section (IER) of the Department of Justice’s Civil Rights Division announced a webinar, “Refugees’ and Asylees’ Right to Work,” to be held February 11 (register at https://adobe.ly/3qSpv7r) and 17 (register at https://adobe.ly/3sQwWO7). The two presentations are identical. The free webinar will educate refugees, asylees and the professionals working with them about workers’ rights under the antidiscrimination provision of the Immigration and Nationality Act, and special issues facing refugees and asylees related to this law. IER representatives will describe how this office assists refugees and asylees when employers discriminate against them based on their national origin or citizenship status. Attendees also will learn how to identify possible discrimination in the process of verifying a worker’s authorization to work in the United States. IER representatives will discuss free resources relating to this law, including for individuals with limited English proficiency, such as the IER’s worker hotline. In addition to providing the public information on the law that IER enforces, IER’s hotline may be able to assist when an employer: rejects a refugee’s I-94 as a valid Form I-9 document, does not allow a refugee to start work without a Social Security number, rejects an asylee’s or refugee’s driver’s license and Social Security card as valid I-9 documentation, or rejects an Asylee I-94 as a valid List C document for I-9 verification.

Brookings Institution on ways the Biden administration can improve the employment-based immigration system without Congress. In a broad review of immigration policy proposals, a new report from the Brookings Institution identifies four areas for improvement for the Biden administration: removing impediments to immigration, improving the predictability of the immigration system, resuming the use of discretion by immigration officers, and expanding customer service. The new report and proposal guide offer a map to immigration policy proposals from numerous organizations. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/ Client flyer on Biden’s immigration actions. The American Immigration Lawyers Association has released a flyer suitable for distribution to clients, “The Biden Immigration Policy.” The flyer summarizes key immigration orders President Biden has issued since taking office on January 20, 2021, and the outlook for immigration legislation and other promised actions. https://www.aila.org/File/Related/flyer-biden-FINAL2.pdf H-1B denial rates for FY 2020 and impact of court decisions. The National Foundation for American Policy has released a policy brief, “H-1B Denial Rates for FY 2020 and the Impact of Court Decisions.” Among other things, the policy brief states that the Trump administration “managed to carry out what judges determined to be unlawful policies for nearly four years. Those policies resulted in high denial rates for H-1B petitions for initial employment of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020, compared to 6% in FY 2015. The FY 2020 denial rate would have been much higher without the recent court rulings.” https://nfap.com/wp-content/uploads/2021/01/H-1B-Denial-Rates-For-FY-2020-and-the-Impact-of-Court-Decisions.NFAP-Policy-Brief.January-2021-2.pdf EOIR interactive Policy Manual. The Executive Office for Immigration Review (EOIR) announced on January 13, 2021, the release of its first interactive Policy Manual, “the culmination of a multi-year project that represents the agency’s first comprehensive review of its policies.” EOIR said the effort involved the “dedication of many employees to identify redundancies, clarify ambiguities, eliminate surplusage, and update policies to reflect current law and practice.” It also includes the first Office of the Chief Administrative Hearing Officer Practice Manual, all agency policy memoranda, and the Immigration Court and Board of Immigration Appeals Practice Manuals. https://www.justice.gov/eoir/eoir-policy-manual COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information

American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

USCIS: USCIS.gov/coronavirus
ICE:

Overview and FAQs: https://www.ice.gov/coronavirus
Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
pdf

CBP:

Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

Office of Foreign Labor Certification:

OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
COVID-19 FAQs:
- Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
- Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
- Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

State Department: https://www.state.gov/coronavirus/

Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

Agency Twitter Accounts

EOIR: @DOJ_EOIR
ICE: @ICEgov
Study in the States: @StudyinStates
USCIS: @USCIS

ABIL is available on Twitter: @ABILImmigration
Recent ABIL member blogs are at http://www.abilblog.com/

ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) and Vic Goel (bio: https://www.abil.com/lawyers/lawyers-goel.cfm?c=US) were quoted by Forbes in “Ending Unlawful Trump H-1B Visa Policies Caused Denials to Plummet.” Mr. Goel said the lower H-1B denial rates seen in the fourth quarter of FY 2020 have continued into the first quarter of FY 2021. “Following the decision and settlement in the ITServe Alliance case that caused the rescission of the [USCIS] 2010 and 2018 memos, H-1B approval rates improved substantially,” he said. Ms. Butte noted that she observed a much lower rate of denials and fewer Requests for Evidence in late FY 2020. https://www.forbes.com/sites/stuartanderson/2021/01/28/ending-unlawful-trump-h-1b-visa-policies-caused-denials-to-plummet/?sh=69ff467f6211 (subscription)

Ms. Butte was quoted by Forbes in “Pardons May Have Revealed Insincerity of Trump Immigration Policies.” Mr. Goel and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) also contributed to the article. Ms. Butte said, “The Trump administration failed to show that employment-based immigration programs had statistically significant levels of fraud. From the data presently available it does not appear the levels are any higher than they were when the Bush administration created the Fraud Detection and National Security Directorate for employment-based immigration. The Trump changes in policy increased costs for employers who needed the talent and desperately wanted to follow the rules to get it. It also created anxiety and harmed the workers who wanted to earn a living and contribute to the U.S. economy. Trump administration policies didn’t prevent fraud but discouraged employers and workers from participating in these immigration categories, given the barriers to entry and continued participation. That seems to have been the real purpose of these initiatives.” https://www.forbes.com/sites/stuartanderson/2021/01/25/pardons-may-have-revealed-insincerity-of-trump-immigration-policies/?sh=6eb00cd550d1 (subscription)

Klasko Immigration Law Partners, LLP, published a blog posting: “How to Work in the U.S.: A Brief Guide to Employment Based Immigration.” https://www.klaskolaw.com/h-1b-employment/how-to-work-in-the-u-s-a-brief-guide-to-u-s-employment-based-immigration/

Klasko Immigration Law Partners, LLP, has released a new podcast episode, “EB-5 Visa Program During COVID-19,” in its “Statutes of Liberty” series.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was interviewed by China Global TV about President Biden’s immigration executive orders (video)

Mr. Kuck is co-counsel for a putative class of U.S. visa holders and applicants, including high-skilled and extraordinary ability, who asked a California federal judge to order U.S. government officials to resume employment-based visa processing. Mr. Kuck said that by sustaining former President Trump’s proclamation to halt visa processing for many immigrants, “you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States.” Characterizing the Trump administration’s efforts as “king-like enforcement of a royal decree,” Mr. Kuck said Mr. Trump “used a health crisis to carry out an illegitimate, nativist agenda.” https://www.law360.com/immigration/articles/1347823/visa-seekers-ask-judge-to-halt-trump-s-nativist-agenda-

Mr. Kuck was quoted by Law360 in “Visa Seekers Ask Judge To Halt Trump’s ‘Nativist Agenda.’ ” Mr. Kuck, co-counsel for a putative class of U.S. visa holders and applicants, told a U.S. district judge during a preliminary injunction hearing that “[b]y sustaining this proclamation further, you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States. The ex-president used a health crisis to carry out an illegitimate, nativist agenda.” https://www.law360.com/immigration/articles/1347823/visa-seekers-ask-judge-to-halt-trump-s-nativist-agenda- (registration required)

Mr. Kuck and Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) were quoted by the Times of India in “U.S. Agency Issues Final Wage Rules for H-1Bs and Green Card Holders, Higher Wages to Apply in a Phased Manner.” Mr. Kuck said, “We will be amending our lawsuit to seek to enjoin this lame attempt to fix its prior illegal regulation. We remain confident that this regulation will never see the light of day as written.” Mr. Mehta said, “The new rule acknowledges that an abrupt transition to the new wage levels could be disruptive to the economy and detrimental to U.S. employers, so the DOL will gradually introduce the new wages over a period of a year and a half, with the first increase set to take place on July 1, 2021. In addition, for H-1B workers who were the beneficiaries of approved I-140 applications (for green cards) as of October 8, 2021 and are caught in the backlogs, the phase-in period for the increased wages is extended over a three and a half year period.” He also said, “Despite the phase-in, the increased wages will be artificial and will not be consistent with market wages, and the new rule is a continuation of the nonsensical wage rule that was previously blocked by the courts. I expect this rule to be challenged too as there is no basis in [immigration law] to calculate prevailing wages to such high levels as the DOL has done. Prevailing wages must reflect the market wages that are ordinarily paid to U.S. workers in the same occupation.”

Mr. Mehta was quoted by the Tennessee Tribune in “Biden Starts to Unwind Trump Rules and Advocates Are Happy.” Mr. Mehta said, “For example, if somebody has been sponsored on an H-1B visa and the employer files for a green card on behalf of a person born in India, it would take several decades before that person gets a green card.” He said that in the family categories, it could take 10 to 20 years for family members of U.S. citizens to immigrate. “It’s ridiculous. That’s not the way Congress intended it to be when the last reform with immigration numbers happened in the 1990 Act. They were thinking that 2- to 3-year waits would be too long but now we have waits that stretch into several decades.” https://tntribune.com/biden-starts-to-unwind-trump-rules-and-advocates-are-happy/

Mr. Mehta chaired several recent events:

“Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas,” Practising Law Institute, Feb. 4, 2021 (webcast), https://www.pli.edu/programs/basic-immigration-law
“Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021,” Practising Law Institute, Feb. 5, 2021 (webcast), https://www.pli.edu/programs/asylum-juvenile-immigration-relief

Mr. Mehta was featured and quoted by India West in “Immigration Advocates Cheer as President Biden Launches Bold Initiatives for Immigration Reform.” Mr. Mehta said, “The numbers of green cards allotted each year are woefully inadequate.” He added that the wait could be lessened by eliminating the per-country cap that currently allots only 7 percent of all employment-based visas per year. India, for example, “gets less than 10,000 green cards per year, while 800,000 wait in the queue,” he said. https://bit.ly/3tymlYw

Mr. Mehta spoke at “President Biden’s Bold Immigration Plan: What Can Immigrants Expect?” The briefing was sponsored by Ethnic Media Services. Link to broadcast (video): https://drive.google.com/file/d/1ZZAbwMtXL4ZGQS0-8x8gwE1gP9fgZWzV/view

Mr. Mehta spoke at an American Immigration Lawyers Association seminar, “Preparing for
H-1B Cap Season 2021,” on January 26, 2021. https://agora.aila.org/Conference/Detail/1848

Mr. Mehta has authored a new blog posting: “The Rescission of Trump’s Buy American Hire American Will Benefit Immigrants and America.” http://blog.cyrusmehta.com/2021/01/the-rescission-of-trumps-buy-american-hire-american-will-benefit-immigrants-and-america.html

Mr. Mehta‘s blog, “President Biden Ushers in New Hope on Immigration After Trump’s Destructive and Xenophobic Four Years,” was included in LexBlog’s Top 10 in Law Blogs. Top 10 list: https://www.lexblog.com/2021/01/29/top-10-in-law-blogs-tesla-law-suit-climate-change-inaction-investor-fraud/. Mr. Mehta’s blog, co-authored with Kaitlyn Box: https://www.lexblog.com/2021/01/25/president-biden-ushers-in-new-hope-on-immigration-after-trumps-destructive-and-xenophobic-four-years/

Mr. Mehta was quoted by the Times of India in “White House Freezes Recent Draconian Immigration Rules. Mr. Mehta said, “As the H-1B rule that sought to replace the lottery system with one based on wages will be frozen for 60 days, it probably will not impact the upcoming H-1B lottery process.” https://timesofindia.indiatimes.com/world/us/white-house-freezes-recent-draconian-immigration-rules/articleshow/80387530.cms

Mr. Mehta was quoted by the Economic Times in “U.S. Pulls H-1B Rule Tweak That Vexed Technology Cos” on whether the midnight rules promulgated under the Trump administration will survive as well as how proposed immigration legislation proposed by the Biden administration will affect Indians. Referring to a ban on issuing new H-1B visas that is still in place, Mr. Mehta said, “During that 60-day pause, the administration can issue a new rule to rescind the old rule or such a pause would give more time to challenge those rules in court if the Biden administration decides to go along with them. I can see the Biden administration being sympathetic towards the Department of Labor wage rule that increases the wage requirement to be paid to H-1B workers.”

Mr. Mehta was quoted by Bloomberg Law in “Trump’s Executive Orders on Immigration Could Be Tough to Undo.” Those who support President Trump’s policies could argue that potential harm could ensue from President-elect Biden’s future executive actions, such as to U.S. workers, Mr. Mehta noted. He also commented on a recent Ninth Circuit decision that he noted could give the President more latitude to overturn previous actions. https://news.bloomberglaw.com/daily-labor-report/trumps-executive-orders-on-immigration-could-be-tough-to-undo

Mr. Mehta’s views on the DOL wage rule are reflected in an India West article, “Labor Department Raises Mandatory Wages for H-1B Workers.” He said, “They [DOL] have skewed prevailing wages and artificially inflated them so that employers will have to pay higher than market wages.” As an example, Mr. Mehta said the pay hike for entry-level workers was “an unjustified entry-level wage.” https://bit.ly/2LXflD9

Mr. Mehta was quoted by the Times of India in “Trump Admin Fires Again: Customers of IT Service Companies to Meet H-1B Filing & Other Obligations Under New Rule.” He said, “This Trump rule, issued in the waning days of a failed presidency, has been designed to kill the India heritage IT industry. However, it will also hurt corporate America that relies on this IT industry to keep humming away and remain competitive in the global economy. The change will also do significant harm to other sectors as well that involve third-party placements, including nursing, consulting, audit, [and] engineering services, among many others.” https://bit.ly/3iymypH

Mr. Mehta co-authored a new blog posting: “Trump’s Final Attacks on H-1B Visas and Legal Immigration: Reintroduction of the Wage Rule and Rule Requiring Client Companies to File H-1B Petitions.” https://bit.ly/3nSN4uP

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) co-authored a new blog posting: “Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump.” http://blog.cyrusmehta.com/2021/01/extending-the-immigrant-and-nonimmigrant-visa-bans-the-last-gasps-of-212f-jurisprudence-under-trump.html

Mr. Mehta and Greg Siskind, of Siskind Susser, P.C., were quoted by the Economic Times in “Joe Biden Revokes Buy American, Hire American Order, Eases Path to H-1B.” Mr. Mehta said, “The BAHA policy gave justification to immigration officers to deny H-1B and L-1A petitions in the name of protecting American workers. Since the BAHA policy came from the President, officers felt incentivized to find ways to deny these petitions even when they were otherwise meritorious.” Mr. Siskind said, “I think the revocation of that memo will have an impact, though it’s not easy to quantify. BAHA essentially was a mandate to change the culture of welcoming immigrants to treating them as a threat to the U.S. Ending BAHA will hopefully be the beginning of restoring that. Another cultural change at the agency was changing USCIS’ mission statement by removing ‘welcoming immigrants’ language. Hopefully, as soon as we have Biden’s appointed USCIS Director confirmed, that will also change.” https://economictimes.indiatimes.com/nri/work/biden-revokes-buy-american-hire-american-order/articleshow/80653866.cms?from=mdr

Mr. Mehta and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) were quoted by Forbes in “DHS and DOL Team Up on H-1B Visas Against IT Services Companies.” Mr. Mehta said he believes both the DOL memo and the DHS rule could be legally vulnerable due to the Supreme Court’s opinion in Kisor v. Wilkie. “While the need for a ‘secondary employer’ to file an H-1B petition was suggested in the preamble to the DHS rule, it is not stated in the actual rule, which essentially defines the employer but does not include any definition of ‘secondary employer’ and the need to file an H-1B petition. DOL’s interpretation of its rule can also be similarly challenged under Kisor. Agencies no longer have unbridled discretion to interpret their own regulations under Auer v. Robbins. If the new interpretation of the ambiguous rule has never been the authoritative position of the DHS and DOL, and it has taken stakeholders by unfair surprise, it should be held to be an unreasonable interpretation under Kisor.” Mr. Mehta said the regulation is also vulnerable “because this is not a de minimis change at all. Through sleight of hand, both DHS and DOL have used the expanded definition, which they term innocuous, to deem client companies as employers and force them to file LCAs and H-1B petitions when they do not pay the wages or have no direct knowledge of the wages paid or other details required under the LCA. This would also interfere in contractual relations and force the vendor to divulge confidential data.” Mr. Stock called it “astounding chutzpah” for DHS to claim a “good cause” exception to the normal rulemaking process and to argue its rule won’t be of any consequence. “It is likely the rule will be struck on both grounds,” he said, adding that it was a “stretch” for DHS to argue that it can accept comments on an invalidly promulgated interim rule from October 2020 and go directly to a final rule, particularly because Chad Wolf’s appointment to serve as acting DHS secretary was ruled unlawful by several courts. https://www.forbes.com/sites/stuartanderson/2021/01/18/dhs-and-dol-team-up-on-h-1b-visas-against-it-services-companies/?sh=417c765547e9

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) co-authored a blog posting: “Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration.” https://www.nationofimmigrators.com/

Mr. Stock, Elise Fialkowski, and Michele Madera of Klasko Immigration Law Partners, LLP, presented the 2021 H-1B cap season essentials and latest developments for U.S. employers and their sponsored employees on January 27, 2021, in “2021 H-1B Lottery: Preparing for a New Administration.” (recording, available by registration)

Mr. Stock was quoted by Forbes in “The Biden Administration and What Happens to Trump’s H-1B Visa rules.” Mr. Stock said, “Because the DOL wage rule has a phased-in process that leaves the current wages in place until July 1 in any event, even if DOL publishes a 60-day delay, it won’t change when that rule really takes effect. It is likely that current lawsuits which successfully rolled back the interim rule will be amended to challenge the final rule on substantive grounds.” https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=320649d3726b

Mr. Stock was quoted by Forbes in “DHS Publishes Final Rule To End H-1B Visa Lottery.” He said, “Under the Administrative Procedure Act, an agency must meaningfully address comments raised by the public in response to the proposed rulemaking. DHS needed to address a significant number of comments regarding whether the rule was lawfully promulgated, and did little more than repeat legal arguments that have been rejected by numerous federal courts about the lawfulness of the DHS secretary’s appointment.” https://www.forbes.com/sites/stuartanderson/2021/01/08/dhs-publishes-final-rule-to-end-h-1b-visa-lottery/?sh=fb098724af04

Wolfsdorf Rosenthal LLP has published several new blog postings: “Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” “Biden Reinstates Travel Restrictions on U.S. Noncitizen Travelers from European Schengen Countries, U.K., Ireland and Brazil; South Africa Added,” “President Biden Moves Forward with Ambitious Immigration Agenda,” “Mandamus Litigation—The Solution for Unreasonably Delayed Employment and Travel Authorization Cards,” “Trump Administration Lifts Regional Covid-19 Bans for Europe and Brazil Starting Jan. 26—Biden Team to Reverse,” “WR Immigration Litigation Success Story—Successfully Challenging the USCIS Denial of an Extraordinary Ability Immigrant Visa in Federal District Court,” “Naturalization Application Denials for Lack of Old Employment or Tax Records,” “Expediting Immigration Applications Before USCIS,” “USCIS to Replace Sticker That Extends Validity of Green Cards,” “DOL Announces New Rule That Will Raise Prevailing Wage Levels in July,” U.S. Will Require Negative COVID-19 Tests From International Air Travelers Starting Jan. 26,” “Tools Biden Will Use to Reverse Trump Administration Business Immigration Bans,” “Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years,” : “DHS Issues Final Rule to Modify H-1B Cap Lottery With Selection Process Based on Wage Level; New Administration Likely to Reverse Course,” “President Trump Extends Presidential Proclamation 10052 Impacting Immigrants and Nonimmigrants,” “January Visa Bulletin Report,” “Expansion of Interview Waiver Eligibility,” and “2020 At-A-Glance: Immigration Update.” https://wolfsdorf.com/blog/

Mr. Yale-Loehr was quoted by Law360 in “DHS Will Maintain H-1B Lottery System Through 2021.” Mr. Yale-Loehr said the announcement was good news for employers and potential H-1B workers, particularly junior-level applicants. “It gives them reassurance that the normal H-1B lottery rules apply again this year. It also means that new graduates have an equal shot this year in being selected for the H-1B lottery. By contrast, if the Trump lottery rule had applied, it is likely that no entry-level applicants would have been selected this year,” he said. https://www.law360.com/articles/1352470/dhs-will-maintain-h-1b-lottery-system-through-2021 (registration required)

Mr. Yale-Loehr was quoted by Correio Braziliense in ” ‘Os EUA estão de volta’, diz Biden ao retomar alianças” (” ‘The U.S. Is Back,’ Says Biden As He Resumes Alliances”). Mr. Yale-Loehr said it will take time for the United States to admit up to 125,000 refugees a year, as the Biden administration has called for. “But it sends a symbolic message that the country supports a robust refugee policy. It is also part of Biden’s more friendly tone towards immigrants,” he said. According to Mr. Yale-Loehr, President Biden has already made several important decisions on immigration, such as ending the ban on travel for Muslims and Africans, temporarily suspending deportations, and creating a task force to bring together separated families. “Reforming the failed immigration system will require the help of the United States Congress,” he noted. https://www.correiobraziliense.com.br/mundo/2021/02/4904774-os-eua-estao-de-volta-diz-biden-ao-retomar-aliancas.html (Portuguese)

Mr. Yale-Loehr was quoted by the Haitian Times in “Over 1400 Haitians Scheduled for Removal by U.S. Immigration Authorities.” He noted that the Biden administration has discretion to review Title 42 and determine expulsion based on legitimate national security concerns, as opposed to a blanket policy that assumes all entrants are a COVID-19 threat. Separately, he said a Texas federal judge’s order “does not require everyone to be deported immediately. The Biden administration can take other administrative steps to review deportation orders.” For example, he noted, the administration can direct immigration officials to loosen prosecutorial discretion, allowing for the continuation of legal proceedings concerning deportation. https://haitiantimes.com/2021/02/03/over-1400-haitians-scheduled-for-removal-by-us-immigration-authorities/ (subscription required)

Mr. Yale-Loehr was quoted by the Associated Press in an article about deportations under the Biden administration. “Scheduling deportations is still a matter of discretion for the agency,” Mr. Yale-Loehr said. https://www.latimes.com/world-nation/story/2021-02-02/hundreds-deported-under-biden-witness-walmart-massacre

Mr. Yale-Loehr was quoted by the Arizona Republic in “Thousands of Dreamers Have Applied for DACA Since December as Texas Court Ruling Looms.” Mr. Yale-Loehr noted that a judge expected to rule on the legality of the Deferred Action for Childhood Arrivals (DACA) program “certainly seemed to indicate that the DACA program was illegal.” Mr. Yale-Loehr said he believes the program is lawful because deferred action has been on the books for 50 years and has benefitted many people. Work permits that DACA recipients receive stem from separate regulations that say that anyone granted deferred action from deportation is eligible for a work permit, he noted. https://bit.ly/3cIokUa

Mr. Yale-Loehr co-authored a new report published by the Brookings Institution, “4 Ways the Biden Administration Can Improve the Employment-Based Immigration System Without Congress.” The article focuses on structural changes to help the U.S. economy attract and retain needed international essential workers. The authors reviewed plans from 14 organizations published after the 2020 election to focus the discussion on employment-based/student immigration, and identified four trends: (1) remove impediments to immigration; (2) improve the predictability of the immigration system; (3) resume the use of discretion by immigration officers; and (4) expand customer service. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/

Mr. Yale-Loehr was quoted by Bloomberg Law in “Biden Agenda Draws Same Legal Challenges Used Against Trump.” Commenting on a Texas court ruling temporarily blocking President Biden’s plan to pause deportations, Mr. Yale-Loehr said the ruling “shows the difficulty that the Biden administration will have in trying to change immigration policy. Not only do they have to worry about a deeply divided Congress, they have to worry about federal courts upending their efforts. He noted that the Biden action was “just a short 100-day pause — not a final realignment of their enforcement policy. But that was still enough for a federal court to strike it down,” at least temporarily. https://news.bloomberglaw.com/us-law-week/texas-victory-over-deportation-pause-is-warning-sign-for-biden Mr. Yale-Loehr was quoted by Inside Higher Ed in “Keeping STEM Ph.D.s.” “These people have very specialized qualifications, and the companies need this kind of specialized talent to be able to compete in the global marketplace,” he said. https://www.insidehighered.com/news/2021/01/27/new-research-argues-need-streamline-green-card-process-foreign-stem-phds Mr. Yale-Loehr was quoted by the New York Times in “In First Blow to Biden Administration’s Immigration Agenda, Federal Judge Blocks 100-Day Pause on Deportation.” Mr. Yale-Loehr said, “The court’s order shows the uphill battle President Biden has in trying to reverse the prior administration’s immigration restrictions. A single judge can halt a federal agency’s effort to review and reprioritize its immigration enforcement policies.” https://www.nytimes.com/2021/01/26/us/politics/biden-immigration-deportation.html (subscription)Mr. Yale-Loehr was quoted by the Sinclair Broadcast Group in an article about possible immigration reform that was distributed by many media outlets nationwide. One such article, “Biden to Seek Comprehensive Immigration Reform in Narrowly Divided Congress,” was published by CBS Austin. Mr. Yale-Loehr said, “Given the 50-50 split between Republicans and Democrats in the Senate, it may be difficult to enact a comprehensive immigration reform bill, whenever Congress gets around it. A narrower bill, such as legislation to help so-called Dreamers, may be easier to enact.” https://cbsaustin.com/news/nation-world/biden-moves-to-dismantle-trump-immigration-policies-as-he-eyes-broader-reform Mr. Yale-Loehr was quoted by Univision in “¿Una moratoria a las deportaciones por 100 días? Piden a Biden actuar mientras revisa la política migratoria de Trump.” Mr. Yale-Loehr said the more than 400 changes to immigration law over the past four years “have caused substantial confusion among lawyers and immigrants. The fact that many of these changes have been challenged in court has only exacerbated the misunderstandings. This may be the goal of poorly drafted and complicated executive orders and agency rules: to deter people from immigrating, seeking asylum, or staying in the United States. The Trump administration has used chaos as a deliberate immigration tactic and it has been effective,” he said, noting that “immigrants have faced repeated threats in multiple settings, including repeated travel bans, the danger of ending Deferred Action for Childhood Arrivals (DACA) programs and temporary protected status (TPS), raids by Immigration and Customs Enforcement (ICE) agents and aggressive asylum restrictions.” He further observed that “the courts overturned or delayed some of the Trump administration’s immigration policy changes. But litigation takes time. And, with enough uncertainty generated, these policies have a similar impact as if they were actually implemented. In essence, the impact of these public policy changes extends far beyond the specific legal modifications themselves.” https://www.univision.com/noticias/inmigracion/reforma-migratoria-biden-deportaciones (Spanish)

Mr. Yale-Loehr was quoted by the New York Times in “A Judge Has Blocked Trump’s Sweeping Restrictions on Asylum Applications.” Commenting on a new rule blocked by a federal judge that would have closed the United States to most asylum seekers, Mr. Yale-Loehr said, “The rule would have been the death knell for many asylum seekers. The court’s decision today leaves the door open for people fleeing persecution.” https://nyti.ms/2JZ3TWY

Mr. Yale-Loehr was quoted by Univision in “Corte de California frena la entrada en vigor de la última regla de asilo de Trump [California court slows Trump’s latest asylum rule from taking effect].” “This new final rule will radically restrict the ability of people fleeing persecution to obtain asylum in the United States,” he said, calling the new rule “an asylum hater’s dream.” Mr. Yale-Loehr said the new rule would “gut the United States asylum system and, ultimately, very few people will be able to request and obtain [asylum].” https://www.univision.com/noticias/inmigracion/corte-de-california-frena-la-ultima-regla-de-asilo-de-trump

Mr. Yale-Loehr was quoted by the Houston Chronicle in “Chef at Houston’s Maharaja Bhog Rejected for Visa Renewal Amid Trump’s ‘invisible wall.’ ” He noted that USCIS began interpreting “specialized knowledge” more narrowly and in 2017 rescinded its policy of instructing officers to defer to prior determinations in petitions for extension of nonimmigrant status. “The Trump administration has been unable to build a physical wall along the U.S.-Mexico border but it has effectively built an invisible wall against legal immigration. The endgame is deny, deny, deny or delay, delay, delay.” He said that rejections of visa extensions for specialized-knowledge workers have cropped up dozens of times in federal court. https://www.houstonchronicle.com/news/houston-texas/houston/article/Houston-chef-maharaja-bhog-visa-reject-trump-15853495.phpMr. Yale-Loehr was quoted by Law360 in “Top 5 Immigration Cases to Watch in 2021.” Commenting on a case before the Supreme Court, Agusto Niz-Chavez v. Barr, he said that if the Supreme Court holds that deportation notices must be sent as one document to stop the clock on residency accrual, the ruling “could affect hundreds of thousands of cases” and give immigrants whose immigration court proceedings were initiated with multipart notices a potential new avenue for relief. The decision could also force the federal government to jump through “more procedural hoops” and worsen an already ballooning immigration court backlog if the government has to reissue old notices and correct future ones to be one document, he said. “That will slow down the immigration court process, and we’ve already got a messed up immigration court,” Mr. Yale-Loehr said. https://www.law360.com/immigration/articles/1333366/top-5-immigration-cases-to-watch-in-2021 (registration required)
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Government Agency Links

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

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

ABIL Global Update • April 2020

April 01, 2020/in Global Immigration Update /by ABIL

In this issue:

1. IMMIGRATION AND TRAVEL-RELATED IMPLICATIONS OF THE CORONAVIRUS PANDEMIC: AN OVERVIEW – This article provides an overview of policies and procedures related to the novel coronavirus/COVID-19 outbreak in various countries, as of late March. The situation is rapidly evolving day by day, so readers are advised to check reliable sources frequently for updates.

2. CANADA – The Québec immigration department is closing a month-long consultation period with stakeholders on four questions intended to revamp a fast-track immigration stream leading to permanent residence in Canada for francophone foreigners living in Québec.

3. COLOMBIA – Several updates have been announced with respect to reform of entry permits, investing in Colombia, and a new special permit for Venezuelans.

4. SCHENGEN AREA – A new Schengen code regulation came into force.

5. UNITED KINGDOM – There have been changes in the Immigration Health Surcharge fee and in the minimum Tier 2 salary for Indefinite Leave to Remain applications.

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

7. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – April 2020

1. IMMIGRATION AND TRAVEL-RELATED IMPLICATIONS OF THE CORONAVIRUS PANDEMIC: AN OVERVIEW

This article provides an overview of policies and procedures related to the novel coronavirus/COVID-19 outbreak in various countries, as of late March. The article includes brief updates on European Union Member States and the U.S. borders with Canada and Mexico, followed by country-by-country summaries. The situation is rapidly evolving day by day, and many countries are escalating restrictions on travel, borders, airports, and ports. Before traveling, check with the country of destination and the airline about what measures are being enforced.

European Union Member States

EU Member States have implemented various measures and restrictions for coping with the coronavirus crisis. A link to each country’s website with travel advice and indications, as of March 18, 2020, is at https://www.mazzeschi.it/mazzeschi-asiadesk/wp-content/uploads/2020/03/travel-advice-list.pdf. See also https://ec.europa.eu/transparency/regdoc/rep/1/2020/EN/COM-2020-115-F1-EN-MAIN-PART-1.PDF

U.S. Borders with Canada, Mexico

President Trump and Canadian Prime Minister Justin Trudeau agreed to close the U.S.-Canada border as of March 18, 2020, to “non-essential traffic,” such as recreation and tourism, for an indefinite period. President Trump tweeted that “[t]rade will not be affected,” and workers who live on one side and work on the other are expected to continue traveling across the border for work. Similarly, the United States and Mexico are limiting nonessential travel across the border, with exceptions.

More information:

Washington Post, “Trump, Trudeau Agree to Close U.S.-Canada Border to ‘Nonessential’ Traffic,” https://www.washingtonpost.com/world/the_americas/trump-trudeau-us-canada-border-coronavirus/2020/03/18/90a27da8-6924-11ea-b199-3a9799c54512_story.html
The Guardian, “Trump Announces U.S.-Canada Border Traffic Closed to ‘Nonessential’ Traffic,” https://www.theguardian.com/us-news/2020/mar/18/us-canada-border-closed-non-essential-traffic
Washington Post, “Americans, Canadians Scramble to Get Home Before Border Largely Shuts Down,” https://www.washingtonpost.com/world/the_americas/americans-canadians-scramble-to-get-home-before-border-largely-shuts-down/2020/03/20/bd997a20-6a4e-11ea-b199-3a9799c54512_story.html
S.-Mexico border restriction notice, https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-06253.pdf
Al Jazeera, “U.S. Border Closings,” video news report, https://www.youtube.com/watch?v=qdv8ga_lP48

Country-by-Country Summaries

Canada

The Canadian government, in line with its “speed over perfection” approach, adjusts and revises travel policies on a daily basis. The situation remains fluid. with many moving parts. Note that all individuals returning to Canada must self-isolate for 14 days, regardless of citizenship.

The following is effective as of Friday, March 27, 2020:

It is still unclear at the moment how and if visa-exempt workers, who would normally apply for their work permits directly upon arrival, will be allowed to travel to Canada. The situation for pre-approved individuals and those holding valid documents has been clarified:

Students who have valid study permits or an IRCC pre-approval letter (“letter of introduction”) dated March 18, 2020, or before, may travel to Canada by land or air.
Workers with valid work permits or pre-approval letters from IRCC (“letter of introduction”) may travel to Canada, regardless of industry.
New workers who will be employed in critical industries such as agriculture, food processing, health, transportation and emergency services may also travel to Canada.
Individuals whose permanent residence has been approved and who hold a Confirmation of Permanent Residence (COPR) issued on or before March 18, 2020, may also travel to Canada in order to activate their permanent residence. They must show the COPR upon boarding the plane.
Transit through Canadian airports is still allowed, provided the individual is not seeking to be admitted to Canada.
Canadian citizens with dual or multiple citizenship may exceptionally travel back to Canada on their foreign passports, provided they obtained an email from IRCC granting them special authorization.
Anyone, regardless of citizenship, returning from abroad must self-isolate for 14 days. Canadians being repatriated and landing at one of the four airports receiving international flights (Montreal, Toronto, Calgary and Vancouver) and who need to take a domestic connecting flight will be quarantined at one of the airport hotels for 14 days, before being allowed to embark on a plane to their final Canadian destinations. Accommodation and food will be provided by the government.
Severe penalties such as fines and prison sentences have been established under the Quarantine Act for anyone violating it. Foreign workers, students, and permanent residents could become criminally inadmissible if convicted of one of the more severe offenses under the Quarantine Act.

Immigration-related services in Canada are provided by various provincial and federal administrations, such as Service Canada; Immigration, Refugees and Citizenship Canada (IRCC); and provincial governments such as the Québec Ministry of Immigration. As companies were forced this week to transition to remote work and only “essential” services were allowed to stay open, all government offices have had to adjust quickly to allow their personnel to work remotely. Depending on the administration, some immigration processes still rely heavily on paper-based submissions.

So far, the following adjustments have been announced:

IRCC:

Permanent Residence and Citizenship applications can still be sent in hardcopy to IRCC, as their processing center in Sydney remains open.
Hardcopy submissions for visitor records, study permits, and work permits are discouraged and should be done online.

Service Canada:

Most agents are working remotely.
Service Canada will allow employers increased flexibility in reporting changes to working conditions (e.g., wage fluctuation, temporary layoffs).
Submissions for Labour Market Impact Assessments (LMIA) can now be submitted by email, in addition to fax.
12- and 24-month reviews for Labour Market Benefit Plans are suspended.
On-site compliance inspections are suspended.

Québec Ministry of Immigration (MIFI):

95% of their personnel works remotely.
MIFI is expected to announce measures to streamline their operations regarding paper submissions soon.

Anticipated Developments

Clarification is awaited on the following elements:

Will IRCC emulate France, Australia, and New Zealand’s initiative and automatically extend status documents by 3-6 months?
Will MIFI allow electronic signatures and electronic submission of applications?
Service Canada is discussing labor mobility for in-Canada workers on closed work permits. Will workers be allowed to move and/or change employers more easily?
Will Service Canada ease recruitment requirements for LMIAs?

The following was effective as of Friday, March 20, 2020:

U.S.-Canada Land Border

All “non-essential” travel across the land border is prohibited. This includes, among others not yet defined, travel for tourism and recreation.
Exceptions exist for supply-chain workers to guarantee continued supply of goods, fuel, and medication in Canada and the United States, as well as for travel for essential work.
In the latest announcements, it was confirmed that individuals with valid work permits and study permits may also travel back to Canada.
No “flagpoling” for any visitor, foreign worker, or foreign student already in Canada. They must apply online to extend or modify their status.
This measure does not include or apply to returning Canadian citizens, permanent residents (PR), and First Nations, including their non-Canadian/non-PR/non-First Nations family members. Family members include spouses and common-law partners, as well as dependent children and their dependent children.

Air Travel to Canada

Airlines must deny boarding to certain travelers. The following is a summary:

All symptomatic persons, regardless of citizenship, and any foreign visitor traveling for non-essential purposes, will be denied boarding on airlines.
The following groups of people will be allowed to board, along with their family members (see definition above): Canadian citizens, Canadian permanent residents, First Nations, and Members of the Canadian Forces, provided they are asymptomatic.
Also allowed to travel by plane: flight crew members, diplomats, Canadian forces on official travel, and persons specifically authorized by Canadian consular officers, the Minister of Health, the Minister of Foreign Affairs, the Minister of Citizenship and Immigration, the Minister of Public Safety, and the Chief Public Health Officer.
Valid work and study permit holders are also allowed to board a flight to Canada, subject to whether they are asymptomatic.
It is unclear whether individuals who have not yet activated their work or study permits will be allowed to board. It is likely that airlines will not allow boarding to avoid noncompliance with Canadian regulations and potential fines.
Travel by plane for essential work in Canada is also allowed, but it is recommended to heavily document the necessity to travel, as airlines may be reluctant to allow boarding in practice.

Immigration attorneys recommend that temporary workers and students whose status expires in the next 6 months may wish to submit an application for renewal online, and remain in Canada for the foreseeable future and avoid all travel abroad, as they may face complications when re-entering Canada.

Imminent changes to the border closure policy:

Contrary to what was announced recently, U.S. citizens and individuals who have been residing in the United States in the past 2 weeks will no longer be able to travel to Canada by land or air for tourism or recreational purposes.
It appears that U.S. citizens with work permits to Canada will continue to be allowed into Canada, but will have to abide by the 14-day self-isolation period upon their admission.
Essential travel remains allowed to protect trans-border supply chains.

The following best practices are recommended for Canadian employers and foreign workers:

As noted above, work or study permit holders should remain in Canada. If they exit the country, there is a possibility that they may not be able to re-enter Canada.
Companies should review the expiration dates of all their temporary foreign workers (SIN starting with a 9). Processing times for in-Canada renewals are currently already at 89 days, and will likely increase further due to increased volume of applicants from inside Canada, and lower staffing at Immigration Canada.
Renewals should be initiated well in advance. Submitting a renewal application 6 months before the expiration date is recommended.
Layoffs of foreign workers may affect their immigration status, capacity to remain in Canada and renew their work permits, and companies’ ability to use the Temporary Foreign Worker Program in the future. Companies should attempt to re-hire laid-off personnel, including foreign workers, as soon as they are able to.
Companies that have received Labour Market Impact Assessments (LMIA) usually must ensure that the subsequent work permit based thereon be activated within 6 months. In light of the current economic situation, the Canadian government has announced that companies can delay the arrival of the foreign worker, and the activation of the work permit, up to 9 months after LMIA issuance.
Many service providers who are essential to Canadian immigration applications—for instance, who issue police clearance certificates, provide immigration medical examinations, offer language testing in English and French, and issue educational credential evaluations—have temporarily ceased their operations. Immigration Canada said it will consider deadline extensions on a case-by-case basis. Notably, biometrics can now be completed in 90 days instead of 30, even if the templated biometrics letter states 30 days.

Colombia

Colombia is restricting entry by all passengers who are not Colombian residents or citizens. Colombian citizens and foreign residents who arrive must perform an obligatory 14-day period of self-isolation after arriving in Colombia.

Additional developments include:

Maritime, land, and river borders are closed until May 30, 2020.
Visa applications will not be processed at Colombian consulates.
President Duque has declared a National Emergency. Anyone age 70 or older must self-isolate until May 30, 2020. The order allows senior citizens to leave their homes for essential errands in supermarkets, banks, and pharmacies.
Airports are closed to international traffic. Flights are still leaving Colombia, but disruptions and cancellations are highly likely.
The Colombian government published a further decree putting the entire country on lockdown. The nationwide quarantine aims to “flatten the curve” of the expansion of COVID-19 among the population, especially the most vulnerable.
The Ministry of Foreign Affairs will accept visa applications for processing and electronic approval but will not make visa stamps in the passport.
Migración Colombia will suspend the deadlines for canceling special stay permits (PEP), and the expiry of the authorized stay for holders of entry and stay permits for “other activities” (POA), other than for Shore Pass and maritime or river crew. Likewise, the immigration authority may abstain from initiating administrative action or grant an opportunity for amendment under preventive isolation measures for those cases in which visa registration and the issuance of a foreigner’s ID card (cédula de extranjería) is required.

There have been 608 confirmed cases of the novel coronavirus in Colombia as of March 28, 2020.

France

The Ministry of Interior announced a three-month validity extension of residence permit documents expiring between March 16 and May 15, 2020, including long-stay visas, residence permits, provisional residence permits, asylum application certificates, and receipts for residence permit applications. This measure applies only on national territory. It is recommended that those with expired residence permits not leave France.

The borders of the Schengen Area remain closed during the 30-day period that began March 17, 2020. Non-European nationals will not be able to enter during this time. See https://www.karlwaheed.fr/wp-content/uploads/2020/03/client_alert_26032020_v1.pdf

Hong Kong

As the impact of the COVID-19 outbreak continues to expand across the globe, international immigration lawyers find themselves in various stages of the crisis management lifecycle, having to advise clients and companies with business travel and immigration needs.

This short update summarizes some of the special directives of the Hong Kong government to contain the spread of the virus and the impact on immigration law practitioners.

Hong Kong is requiring compulsory quarantine for 14 days for all persons, regardless of nationality, entering from all jurisdictions except for Macau, Taiwan, and mainland China. After the 14 days of home quarantine, those persons will be subject to another 2 weeks of medical surveillance.

In addition, the government has closed all but three border checkpoints: the airport, the Shenzhen Bay Bridge, and the Hong Kong-Zhuhai-Macau Bridge. Flights from China have been greatly reduced, and cross-border rail connections as well as cross-border ferries have also been suspended.

Impact on Operations of the Hong Kong Immigration Department

The Hong Kong Immigration Department (HKID) is now reopened for all services after a period when all government employees were advised not to go to the office but to work from home, except for staff of departments providing emergency services and essential public services such as urgent extension of visa applications and passport applications and renewals. All other services were suspended, including new applications for employment visas, change of sponsor, non-urgent applications for extension of stay, Hong Kong Identification Card appointments, and collection of approved visas.

While the HKID has reopened, new employment visa applications and applications for change of employment sponsor and non-urgent applications for extension of stay will be delayed because of a backlog of existing applications and a large number of new applications. Employers therefore should be prepared for a delay in their employees’ start of employment.

Certificate of No Criminal Conviction Office

The Hong Kong Police Force’s Certificate of No Criminal Office has implemented the following measures to reduce the number of people gathering at the office.

Applicants are encouraged to make an appointment through the Online Booking System or through the auto-telephone answering system at 2396-5351.
In addition, there will be 60 places for applicants without appointment by the distribution of discs, which are distributed at 8:45 a.m. each day. Those allocated a disc should return to the office for processing of their application at the designated time slot on the same day stated on the disc.
Applicants are advised to wear masks, and their body temperature will be checked before entering the office. Those who have fever or respiratory symptoms will be told to leave.
As a result of reduced personnel during the government policy of not requiring non-essential employees to go to the office, the processing of Hong Kong Police Certificates for those seeking to immigrate will likely be delayed.

High Court Registry Services

Many Citizenship By Investment programs require documents such as birth certificates, marriage certificates, divorce certificates, and affidavits not only to be notarized but also legalized by the Hong Kong High Court Registry through an apostille stamp in accordance with the Hague Convention. These services had been curtailed completely for a period of time as the High Court Registry had temporarily closed for such services.

The High Court Registry Office has now reopened and legalizations of documents are being processed routinely.

U.S. Consulate Operations

As of March 19, 2020, the U.S. Consulate General in Hong Kong and Macau has suspended all routine immigrant and nonimmigrant visa services. The consulate said it will resume routine visa services as soon as possible but is unable to provide a specific date. There is no fee to change an appointment, and visa application fees are valid for one year.

To reschedule an immigrant visa appointment, use the Visa Inquiry Form at https://hk.usconsulate.gov/visas/visa-inquiry-form/

To request an emergency nonimmigrant visa appointment for immediate travel to the United States for medical reasons, funerals, urgent business travel, or urgent exchange visitor (J-1) or student (F-1) travel, use the Visa Inquiry Form at https://hk.usconsulate.gov/visas/visa-inquiry-form/

U.S. Citizen Services, such as applications for passports or registering for a consular report of birth of a U.S. citizen abroad, continue to be available by appointment.

Other Neighboring Regions

Macau

The Macau government has introduced temperature screening at all border checkpoints, including the airport, land crossings, and ferry terminals. All inbound travelers must complete a health declaration form upon arrival. Ferry services between Hong Kong and Macau are suspended.

On February 20, 2020, the Macau government began enforcing medical checks for tourists who have been to areas with a high incidence of the novel coronavirus within a 14-day period. The Macau government has also established processing centers at the Macau Federation of Trade Unions Workers Stadium and the Taipa Ferry Terminal to screen passengers for symptoms of COVID-19.

Tourists whose medical check results meet the requirements of the Health Bureau will be allowed to continue their trip. Those who do not meet the Health Bureau requirements may be subject to compulsory quarantine in addition to criminal prosecution in accordance with local law. Individuals who have been to South Korea are subject to a 14-day observation in quarantine at a designated venue in Macau. The costs of quarantine in designated hotels will be borne by the individuals themselves.

Philippines

On February 2, 2020, President Rodrigo Duterte issued a temporary travel ban on visitors from China, Hong Kong, and Macau to curb the spread of the coronavirus.

Taiwan

Taiwan restricts Hong Kong and Macau travelers from entry until a 14-day home or hotel quarantine passes upon landing in Taiwan.

In addition to an earlier decision to ban Mainland Chinese nationals from entering Taiwan, Taiwan has also imposed restrictions on Hong Kong and Macau citizens traveling to Taiwan and has raised a travel alert for both cities to Level 2, according to the island’s Center for Disease Control (CDC). Foreigners who have been in mainland China over the past 14 days are also banned from entering Taiwan.

Foreign nationals seeking to enter Taiwan for special reasons can apply for an entry visa as long as they have not visited or stayed in mainland areas severely affected by the coronavirus outbreak, including Hubei, Guangdong, and Zhejiang provinces, according to the Foreign Ministry.

These persons must provide documents of their travel history in the past 14 days, a health certificate, and various other paperwork.

Taiwan has also suspended the issuance of entry permits on arrival and online processing of entry permits for Hong Kong and Macau residents.

Italy

Following the recent outbreak of coronavirus cases in the North of Italy, parts of the country have limited access in and out of some areas, as well as particular restrictions on work and public activities. Extraordinary health measures have been implemented in Italy and across Europe.

The validity of all permits, authorizations, certificates, clearances with an expiration date between January 31, 2020, and April 15, 2020, has been extended until June 15, 2020. As a consequence, residence permits (permessi di soggiorno) with an expiration date between January 31, 2020, and April 15, 2020, will be valid until June 15, 2020. Applications for renewal can therefore be applied for until after 60 days from June 15, 2020.

The validity of Italian identification documents (e.g., identity cards, passports) expiring March 17 or later is extended until August 31, 2020.

In addition, all applications pending as of February 23, 2020, or filed after that date are suspended in the period between February 23, 2020, and April 15, 2020. This means that any applications that have been filed during this period will not be processed between February 23, 2020, and April 15, 2020.

Travel To and Within EU Countries

As noted above, EU Member States have implemented various measures and travel restrictions. See the links at the top of this feature article for more information.

30-Day Suspension Permit of Stay Procedures (permesso di soggiorno)

On March 2, 2020, the Italian government published a Law Decree, effective immediately, containing measures to support families, workers, and companies with respect to the COVID-19 outbreak (Law Decree 2 March 2020, n. 9). In the effort to employ as much public staff as possible to control the current health situation, the Italian government suspended the issuance of permits of stay for 30 days (starting March 2) but has also temporarily suspended the terms to file permit applications for a period of 30 days (initial permits must be filed within 8 days from entry; extensions at least 60 days before expiration).

Obligations to file applications within the deadline above are lifted due to the 30-day suspension, and non-EU nationals who may not be able to meet the deadlines due to public offices’ unavailability will not incur any consequences. Strong delays in issuance of permits, and in general in all immigration-related procedures, are expected.

See https://www.mazzeschi.it/news/italy-30-day-suspension-permit-of-stay-procedures-permesso-di-soggiorno/

National Travel Restrictions

Emergency Measures Extended Nationwide

On March 9, 2020, the Italian government published a decree extending restrictive measures to the entire country in an effort to contain the spread of COVID-19 across Italy. New measures implemented in the “Red Zones” (areas most affected) only a day ago are now applied nationwide. Italy is now on lockdown, with the new “I stay at home” Decree, limiting all social activities, with all public events and indoor activities (e.g., concerts, fitness centers, theaters) suspended/closed. Schools and universities will remain closed until April 3. Restaurants and bars can only be open until 6 p.m. and must follow strict health guidelines (e.g., maintaining a safe distance between people) or will be fined.

Individuals who are quarantined or test positive for the virus are forbidden to leave their homes and to travel. Travel is allowed only for documented work, health, or other serious reasons. Those traveling outside their region or city can do so only out of serious necessity. It is mandatory to provide a signed self-certification on the reason for travel. The required self-certification can also be signed before a police officer, who can provide the required form. At the airport, travelers must show not only the travel document but also the signed self-certification. Individuals landing in Italy must declare the reason for travel upon entry.

The government has published some guidelines and FAQS. An English translation is at https://www.mazzeschi.it/2020/03/11/faq-on-the-iorestoacasa-decree-of-9-march/. See also https://www.mazzeschi.it/news/italy-new-decree-introduces-covid-19-related-measure/

Travelers Leaving Italy

For Italian citizens or individuals traveling from Italy, many countries are enforcing a travel ban, and mandatory or voluntary quarantine. The restrictions change day by day. Before traveling, check with the country of destination and the airline about what measures are being enforced.

Travelers Arriving in Italy

As of late March, there was no travel ban or mandatory quarantine on incoming travelers, but:

All incoming travelers (even for internal flights) are subject to temperature checks.
Travelers must submit a declaration confirming the purpose of their visit and the countries they have visited.
On discretion of the authorities, they may be asked to do a 2-week quarantine at their domicile.

Flight Cancellations

Most airlines have suspended or canceled flights to and from Italy for the entire month of March and beginning of April. Those restrictions change day by day; it is advisable to check with the country of destination and the airline regarding what measures are being enforced.

Health Measures

The government has closed down schools and most businesses, including a number of administrative and governmental offices such as local police offices or post offices. Some governmental offices have adopted limited access and working hours to avoid risks and contamination. All schools and universities are closed until April 3 and closure can be extended. All sports events and public gatherings have been banned. Restaurants and bars must stay closed, as well as all businesses and retail stores, with the exception of grocery stores, pharmacies, tobacco shops, and newsstands (keeping the appropriate safe distances)

People can travel between cities only for emergency reasons and can face fines and up to 3 months in jail for breaking quarantine rules. Those who have to leave their region or their city out of serious necessity can do so only if they have self-certification stating that they must cross the borders for compelling business or health reasons, or because they have to return home.

What happens if non-EU nationals overstay their visa, or—for non-visa nationals (like USCs), their 90-day allowances?

There have been reports from non-EU nationals who, due to flight cancellations or the risk of being quarantined upon arrival, cannot return to their countries and will be overstaying their visas or 90-day allowances (for non-visa nationals). Both the Schengen Visa Code, which applies in all Schengen countries (e.g., Germany, France, Spain, Netherlands, Poland), and Italian immigration law have provisions that allow individuals to extend their stay if they cannot leave the country for reasons of force majeure.

With respect to the Schengen Visa Code, according to the Schengen rules, a short-term visa can be issued for a stay of a maximum 90 days in 180 days, allowing the holder to be in the Schengen countries for the period indicated in the visa. Normally the holder must leave the Schengen area when the visa expires, but in some circumstances it is possible to request an extension of an issued visa.

Article 33 of the Schengen Visa Code provides that if someone is unable to leave before his or her visa expires for reasons of force majeure, humanitarian reasons, or serious personal reasons, he or she can request an extension of the Schengen visa.

The request for an extension of the visa is to be addressed, before the visa expires, to the authorities of the Schengen State where the holder is, even if the visa was not issued by that state consulate. In Italy, the request must be addressed to the local police office (Questura). In this case the extension must be mandatorily granted (while if the extension is requested for business reasons, the authority to which it is submitted has discretion).

See https://www.mazzeschi.it/2018/08/09/grounds-for-extension-of-short-term-schengen-visas/

With respect to Italian immigration law, normally it is not possible to convert a short-term stay (for tourism/business) into a permit directly in Italy (an exception being family reasons). However, when the foreigner cannot or does not want to return to the country of provenance for reasons related to an exceptional unsafe situation (for instance, Chinese nationals who did not or could not return to China because of the COVID-19 outbreak), he or she should consider applying for a temporary residence permit for “calamity” reasons (Article 20-bis of Italian immigration law). Such a permit can be issued when the country to which the foreigner should return has a situation of contingent and exceptional calamity that does not allow a safe return and stay. The permit is valid for 6 months, can be renewed for an additional 6 months, and allows the foreigner to work. However, it cannot be converted into a permit for work allowing a longer stay.

See https://www.mazzeschi.it/news/emergency-grounds-for-extending-your-stay-in-italy/

Useful Links:

http://www.viaggiaresicuri.it/home
“Viaggiare Sicuri” is part of the Italian Ministry of Foreign Affairs (also called Farnesina), and functions as its crisis unit, leading operations and communications among all government institutions in Italy and all over the world. It operates in times of emergency to keep Italian citizens informed and protected: http://www.viaggiaresicuri.it/home
http://www.protezionecivile.gov.it/home
Department of Civil Protection, Presidency of the Council of Ministers. In charge of coordinating policies and dealing with safety and protection strategies in case of emergency: http://www.protezionecivile.gov.it/home
Department of the Italian government in charge of public order, safety, and defense. Contains updates on Italian policies regarding coronavirus: https://www.interno.gov.it/it
Italian Department of Health – in charge of national policies and institutions dealing with health. Contains helpful information on COVID-19 and health measures to fight the infection: http://www.salute.gov.it/portale/home.html
World Health Organization (WHO) – useful tips and recommendations for international traffic: https://www.who.int/ith/2019-nCoV_advice_for_international_traffic-rev/en/
WHO – Coronavirus Highlights: https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200301-sitrep-41-covid-19.pdf?sfvrsn=6768306d_2
See also https://www.mazzeschi.it/2020/03/11/faq-on-the-iorestoacasa-decree-of-9-march/; https://www.mazzeschi.it/2020/03/04/covid-19-summary-for-foreigners-and-travelers-in-italy/; https://www.mazzeschi.it/news/italy-new-decree-introduces-covid-19-related-measure/

Peru

Recently, the Supreme Government Administration of Peru enacted some provisions to prevent and control coronavirus spread in the country. A summary of selected highlights is below.

By Ministerial Resolution N° 055-2020-TR, signed by the Minister of Labor, the “Guide for the Prevention of Coronavirus (COVID-19) in the Labor Area” has been approved, with which specific guidelines are provided to employers, so that within the framework of their responsibilities, they comply with the proper containment and care of cases of diagnosed or suspected coronavirus in the workplace.

There is still a lack of clarity in terms of visa applications being submitted around the world and in the United Kingdom (UK).

Attorneys are urging UKVI and the Home Office to update its guidance of February 27, 2020, to provide greater clarity. In the meantime, below are updates.

Visa Application Centers Around the World

Many application centers are still open for those individuals who wish to submit visa applications. As expected, however, there are a number of closures and interruptions to the usual service standards. These include:

Asia Pacific: Due to closure of the Manila regional visa hub, there are currently no priority services for applicants applying in, for example, Australia, New Zealand, South Korea, Singapore, and Hong Kong.
USA: All non-premium biometric application service centers ASCs operated by USCIS in the United States are closed. The Premium Application Centers (PACs) all remain open for the time being, except for the PACs in Seattle and San Francisco, which are currently closed.
Europe: All TLS contact centers are closed for UK visa applicants.
UK: Sopra Steria application centers in the UK remain open for the time being. There have been reports of closures at some locations for certain application types (e.g., local libraries and councils).

Other Issues

Those with visas expiring in the UK: Chinese nationals and those normally resident in China have in some circumstances had their visas automatically extended to March 31, 2020. Extensions may well be required for others who have imminently expiring visas.
Right-to-work (RTW) checks: For new starters who have just arrived in the UK where the office is closed, remote working is in place or, where the person is having to self-isolate, there may be issues with completing RTW checks. Alternatives are available:

Details and more information: https://www.kingsleynapley.co.uk/insights/news/immigration-update-coronavirus

2. CANADA

The Québec immigration department is closing a month-long consultation period with stakeholders on four questions intended to revamp a fast-track immigration stream leading to permanent residence in Canada for francophone foreigners living in Québec.

The topics the Québec government is consulting on are:

Which eligibility criteria should the immigration department apply in their selection of workers and students intending to fast-track their permanent residence?
How can immigrants be encouraged to settle outside the urban centers?
Should the selection criteria prioritize experience gained in Québec, or immigrants whose profile match the labor market needs, or both?
How can “overqualification” be avoided? Should graduates become eligible for fast-track permanent immigration only after 1 year of work experience, and should the work experience have been obtained in their field of study, or at a level that matches their qualification?

The Québec immigration department had been heavily criticized for having attempted to overhaul the fast-track immigration process without public consultations in the fall of 2019, and had been forced to withdraw their bill.

Details:

Consultation sur le Programme de l’expérience québécoise (PEQ), http://www.mifi.gouv.qc.ca/fr/dossiers/consultation-peq.html
Québec government’s Consultation Guide, http://www.mifi.gouv.qc.ca/publications/fr/dossiers/DOC_consultation.pdf

3. COLOMBIA

Several updates have been announced with respect to reform of entry permits, investing in Colombia, and a new special permit for Venezuelans.

Reform of Entry Permits

As of December 1, 2019, Resolution 3167 of 2019 issued by Migración Colombia is effective. This resolution establishes new guidelines for the entry, stay, and departure from the national territory of nationals and foreigners. The new resolution reorganizes the entry and stay permits (PIP) in three categories, which will allow foreigners of unrestricted nationalities to enter the country not intending to establish a domicile or profit, for short periods. The length of stay of PIPs will vary according to each category.

See http://www.tannus.co/en/reform-of-entry-and-residence-permits/

Investing in Colombia

The Colombian government decided to increase the legal monthly minimum wage (SMMLV) by 6% in 2020, which means that it is equivalent to $877,803 Colombian pesos (about $260 USD) per month. Those companies that wish to obtain visas for foreign personnel that require proof of solvency must take into account that the amounts contemplated in the immigration regulations and requested by the authorities are calculated in minimum wages. This is why, in cases where bank statements, certificates of incorporation and representation, among others, must be presented, such documents are expected to reflect the values requested, taking into consideration the corresponding adjustment for 2020, under penalty of receiving requirements or inadmissibility of the visa applications submitted.

See http://www.tannus.co/en/keep-in-mind-when-investing-in-colombia/

New Special Permit for Venezuelans
The Colombian government has continued simplifying the immigration regulations for Venezuelan nationals so they can continue to enter and regularize their immigration status in the country. Among the measures established by the Ministry of Foreign Affairs is the possibility of their entering, transiting, and leaving the national territory, even if the Venezuelan passport has expired.

See http://www.tannus.co/en/new-special-permit-for-venezuelans/

4. SCHENGEN AREA

A new Schengen code regulation (Regulation (EU) 2019/1155 of the European Parliament and of the Council of 20 June 2019 amending Regulation (EC) No 810/2009 establishing a Community Code on Visas) came into force February 2, 2020.

This reviewed regulation applies to all third-country nationals who need a visa for intended stays in the territory of the European Union (EU) Member States not exceeding 90 days in any 180-day period.

The regulation sets forth the procedures and conditions for issuing Schengen visas. The following general principles apply:

The Member States must act in full compliance with EU law and according to its general principles and decisions when applying this regulation.
The Member States must take the decisions under this regulation on an individual basis.
The application procedure should be as easy as possible for applicants.
The relevant Member State to resolve an application must be clearly identifiable.
The Member States must promote electronic processes, including electronic submission, interviews, and signatures when available.
Deadlines should be established for each step of the process to allow applicants to plan ahead.
Frequent or regular travelers (among other categories, business people, artists, and athletes) complying with the regulation might benefit from multiple-entry visas with longer periods of validity.

Benefits

As a result of the new regulation, the Schengen visa application process is expected to be much more flexible, allowing electronic procedures when possible, allowing submission of applications within the 6 months before the visit (instead of within 3 months as established before), and permitting the resolution of the application as a matter of urgency in justified cases, even if it was not submitted at least 15 days before the trip.

Another benefit of the regulation, together with flexibility, is the clarity about authorities in charge of the application (when different countries will be visited) and about processing times.

Finally, certain categories of visitors who need to travel regularly to the Member States can now obtain visas with longer duration, provided they have complied with the applicable regulation.

The increase in the processing fee (up to 80 euros) may be reasonable if the process becomes as flexible and efficient as expected by this modification.

5. UNITED KINGDOM

There have been changes in the Immigration Health Surcharge fee and in the minimum Tier 2 salary for Indefinite Leave to Remain applications.

Immigration Health Surcharge fee increase: The latest budget includes an increase in the Immigration Health Surcharge (IHS) for overseas nationals to use the National Health Service. It was only 2 years ago that the IHS fee doubled to £400 per year of the visa, and now it is set to increase to £624 per year of the visa. The government had announced its intention to increase the IHS fee in November last year. The new fees will apply to non-European Union (EU) citizens starting in October 2020 and to EU citizens starting in January 2021.

As has previously been the case, those with student or Tier 5 (Youth Mobility Scheme) visas will pay a lower charge of £470 per year of the visa. There is a small concession under the new IHS fee arrangements in a lower charge for children under 18 of £470.

Minimum Tier 2 salary for ILR applications: In a number of rule changes announced recently, the Home Office has confirmed a freeze on the increase in minimum salary requirements where sponsored Tier 2 (General) workers are applying for Indefinite Leave to Remain (ILR). The current minimum is either £35,800 or the minimum expected amount for the type of job, whichever is higher. That amount was due to increase to £36,200 on April 6, 2020, but the new announcement confirms the government will be following the advice of the Migration Advisory Committee which, in its report of January 28, 2020, recommended a freeze on this threshold while the policy for ILR applications is considered.

6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

7. ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by Forbes in “Critics Charge Slow Immigration Processing Nets USCIS Billions in Fees.” Ms. Butte noted, “Particularly in change of employer cases or amendments due to a new work location, [premium processing is] a necessity. While under the law, the employee can, in theory, go to a new employer or location upon filing, the rising denial rates mean there is a great deal of risk to the employee if he or she moves prior to an approval.” The article is at .

Leslie Ditrani, of Chin & Curtis LLP, was quoted by Law360 in “Visa Issues Abound as Firms, Consulates Close for COVID-19.” Ms. Ditrani said an attorney at the firm had a client get a visa approved, but the consular office in London closed before they could get the necessary stamp. She said she would advise any client to follow the law and request a new labor condition application when required, such as if an H-1B specialty occupation worker has to move to a new location due to COVID-19 issues. But with the government requesting extra evidence for nearly half of H-1B petitions in the first quarter of fiscal year 2020, subjecting an immigration request to new scrutiny can carry its own risks, she noted. “Someone might be trying to do the right thing by posting because it’s more than 50 miles and then amending, and then find themselves with [a Request for Evidence] or even a denial,” she said. Disruptions in workplace functions could also make it difficult for employers and immigrants to meet filing deadlines and remember administrative requirements. “If someone is concerned about their health and being quarantined, it’s hard to wrap your head around the complex and nuanced rules regarding immigration status,” Ms. Ditrani noted. The article is at https://www.law360.com/articles/1253720/visa-issues-abound-as-firms-consulates-close-for-covid-19.

Klasko Immigration Law Partners, LLP, will host its 16^th annual spring seminar on Wednesday, April 22, 2020. All professionals in the field of employment-based immigration are invited to attend to learn the latest hot topics and trends in employment-based immigration from the industry-leading immigration lawyers at Klasko. For details or to register, see https://www.klaskolaw.com/event/klasko-2020-annual-spring-seminar/.

Klasko Immigration Law Partners, LLP, has published a blog posting, “Coronavirus Considerations for H and L Status Employees.” The coronavirus (COVID-19) has been dominating news stories across the globe. Many employers are making preparations or recommendations to staff members to work from home, particularly those returning from travel. How will these work-from-home directives affect H and L status employees who have specific worksite requirements? The blog is at .

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by Law.com in “Lawyers Push for Change to Immigration Court Amid COVID-19 Concerns.” Mr. Kuck said that he is planning to wear protective gloves and wipe down his chair and table with sanitary wipes the next time he attends a hearing, but “[y]ou need bond hearings to continue.” He said he thinks the government should release to detained immigrants who are not a danger to the community. “You certainly want people to have an opportunity to have their day in court, without waiting the next three to six months for COVID-19 to pass.” The article is at https://www.law.com/texaslawyer/2020/03/18/lawyers-push-for-change-to-immigration-court-amid-covid-19-concerns/.

Mr. Kuck was interviewed by Global Atlanta in “Immigration Limbo: How Trump’s COVID-19 Bans and Border Measures Are Affecting Foreign Travelers, Workers.” The article is at https://www.globalatlanta.com/immigration-limbo-how-trumps-bans-and-border-restrictions-are-affecting-foreign-travelers-and-workers/.

Mr. Kuck has released a podcast in the #ImmigrationHour series. “The S. 386 Lee Betrayal” is at https://soundcloud.com/user-474250731/the-s386-lee-betrayal. Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted by Forbes in “Trump Immigration Official Entered Illegally.” He identified four additional USCIS policy changes that can potentially be challenged in light of Judge Moss’s ruling: (1) changes in residence requirements for transmitting U.S. citizenship to children living overseas, especially children of U.S. government employees overseas; (2) removing means-tested criteria to the fee waiver grounds, especially as they relate to naturalization applicants; (3) closing USCIS international offices; and (4) filing I-407s for abandonment at a designated USCIS office in Vermont rather than at a U.S. consulate. Mr. Mehta said he believes there may be additional policies that can be challenged. The article is at https://www.forbes.com/sites/stuartanderson/2020/03/02/trump-immigration-official-entered-illegally/#c6669951287b. Mr. Mehta has authored several new blog postings. “Immigration Attorneys on the Frontlines in the COVID-19 Crisis” is at http://blog.cyrusmehta.com/2020/03/immigration-attorneys-on-the-frontlines-in-the-covid-19-crisis.html. “How USCIS Can Remain True to Its Mission by Exercising Compassion During the COVID-19 Period” is at http://blog.cyrusmehta.com/2020/03/how-uscis-can-remain-true-to-its-mission-by-exercising-compassion-during-the-covid-19-period.html. “How Interpol Red Notices Allow Abusive Foreign Governments to Manipulate and Undermine the Integrity of Immigration Proceedings in the United States” is at .

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) provided responses in “Expert Q&A: COVID-19 and Immigration,” published by Thomson Reuters Practical Law. The Q&A is at https://content.next.westlaw.com/w-024-5004?isplcus=true&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1.

Mr. Paparelli was quoted by Bloomberg Law’s Daily Labor Report in “Immigration Attorneys Ask Agencies for No-Contact Solutions.” He said, “Our outdated system of immigration law was already as complex as a Rube Goldberg contraption. This is a complete sea change of challenges.” The article is at https://news.bloomberglaw.com/daily-labor-report/immigration-attorneys-ask-agencies-for-no-contact-solutions.

Mr. Paparelli was quoted by Law360 in “Visa Issues Abound as Firms, Consulates Close for COVID-19.” Mr. Paparelli noted that he had a client who managed to pick up an approved visa the day before the local consular office closed. Mr. Paparelli called on the government to postpone deadlines to extend people’s visa status until the agency can process requests, as it did in the wake of September 11, 2001, when the government automatically extended the legal status of people on temporary visas if they were affected by the terrorist attacks. “Strict compliance endangers lives,” he said. The article is at https://www.law360.com/articles/1253720/visa-issues-abound-as-firms-consulates-close-for-covid-19.

Rodrigo Tannus (bio: https://www.abil.com/lawyers/lawyers-tannus.cfm?c=CO) was recognized by Best Lawyers in Colombia in Corporate Immigration Law.

Wolfsdorf Rosenthal LLC has published several new blog postings. “Key Takeaways from USCIS’ Public Engagement on EB-5 Inventory Management” is at https://wolfsdorf.com/blog/2020/03/13/key-takeaways-from-uscis-public-engagement-on-eb-5-inventory-management/. “European Travel Ban” is at https://wolfsdorf.com/blog/2020/03/12/european-travel-ban-client-alert/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by The Real Deal in “Could a Pandemic Bring EB-5 Back to Life?” Commenting on a proposal to scale up the EB-5 program as part of a stimulus package for the U.S. economy. “Desperate times call for innovative solutions. This could be one way to jumpstart the economy,” Mr. Yale-Loehr said. The article is at https://therealdeal.com/2020/03/24/could-a-pandemic-bring-eb-5-back-to-life/.

Mr. Yale-Loehr was quoted by the New York Times in “Appeals Court Allows ‘Remain in Mexico’ Policy to Continue Blocking Migrants at the Border.” He said, “It is very likely that the Supreme Court will grant the administration’s request to halt the Ninth Circuit’s original decision to suspend the policy.” The article is at https://www.nytimes.com/2020/03/04/us/migrants-border-remain-in-mexico-mpp-court.html. Mr. Yale-Loehr was quoted by CNN in “Supreme Court Rules Against an Undocumented Immigrant Fighting State Prosecution.” Mr. Yale-Loehr said, “”What’s sauce for the goose is sauce for the gander,” noted Stephen Yale-Loehr, an immigration professor at Cornell Law School. “If the Supreme Court rules that the federal government no longer has sole responsibility for regulating immigration, lower courts may uphold pro-immigrant or sanctuary or noncooperation policies enacted by states and localities.” The article is at https://www.cnn.com/2020/03/03/politics/supreme-court-immigration-garcia-kansas-decision/index.html. Mr. Yale-Loehr was quoted by CNN in “Supreme Court to Consider Rights of Some Asylum Seekers.” He said the case discussed in the article is important because it “squarely raises constitutional issues. Here the Court must decide whether newly arrived immigrants have the same right to challenge their detention in federal court as U.S. citizens. Mr. Yale-Loehr noted that nearly half of all removals from the United States occur through expedited removal. “If the Court holds that the Constitution applies to arriving immigrants, the number of such deportations will surely decrease,” he said. The article is at https://www.cnn.com/2020/03/02/politics/supreme-court-rights-of-asylum-seekers/index.html.
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ABIL Global Update • April 2019

April 15, 2019/in Global Immigration Update /by ABIL

Headlines

1. DOCUMENT RETENTION POLICIES AND PRACTICES: AN OVERVIEW -This article provides an overview of document retention policies and practices in Canada and Italy.

2. COLOMBIA -This article summarizes several developments in Colombia: All visa procedures must now be completed online; the Migrant Mercosur visa for Chilean nationals has been suspended due to a lack of reciprocity; there has been a breakdown of diplomatic relations between Colombia and Venezuela that has affected migratory processes; and there are new conditions for Venezuelans traveling to Colombia with expired passports.

3. EUROPEAN UNION -As part of “red tape” reduction for European Union (EU) citizens living or working in another Member State, the apostille is no longer required on public documents issued by EU authorities.

4. FRANCE -A government order has established the rights of United Kingdom (UK) nationals continuing to stay in France in case of a “hard Brexit.”

5. ITALY -A new decree outlines measures that will apply if the UK leaves the EU without a deal.

6. UNITED KINGDOM -This article provides updates on the fast-changing Brexit situation. Also, new “e-gates” are now open to U.S. citizens and others.

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

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

Details:

1. DOCUMENT RETENTION POLICIES AND PRACTICES: AN OVERVIEW

This article provides an overview of document retention policies and practices in Canada and Italy.

Canada

In Canada, rules related to law firms retaining client documents and information are governed by provincial and territorial law societies. Accordingly, there are potentially 13 different sets of professional rules of conduct that govern document retention. Generally speaking, the provincial and territorial law societies will not set a firm rule but instead will make a recommendation for a best practice. In Ontario, lawyers are advised to keep client documents for 7 years, except Trust Account documents, which must be kept for 10 years. Trust Accounts are used in Canada to receive client fees in advance of work being completed and can also be used to hold client funds pending the completion of commercial or real estate transactions where the funds are applied to the purchase price. For this reason, lawyers are held to a higher standard of record-keeping for all documentation dealing with the handling of client funds. The Canada Revenue Agency also requires that businesses keep tax records for 7 years.

Recently, there have been a number of government initiatives and changes in legislation related to compliance with respect to immigration applications to support hiring foreign workers in Canada. These include Administrative Monetary Penalties against employers for non-compliance. Businesses that hire foreign workers must keep records related to the hiring and employment of the foreign worker, including copies of work permits, payroll documents, job descriptions, and timesheets for up to 6 years from the date of hire. In light of this requirement, immigration law firms providing legal services to businesses that hire foreign workers should also be keeping records for at least 6 years.

Italy

In Italy, an attorney must collect and store only the data that are necessary (not superfluous) for the achievement of the client’s objectives.

The data can be deleted or returned at the client’s request. There is no mandatory requirement to keep data for a certain time, unless it is necessary for the file’s completion. However, lawyers are subject to malpractice claims for 10 years, and it is therefore advisable to keep the necessary data and documents until the expiration of the statute of limitation for a possible claim.

Regarding immigration-related documents, the law does not set forth a specific term, but considering that immigration compliance is also linked to tax and social security issues, it is advisable to store documents for at least 7 years, the statute of limitation for any tax claims.

2. COLOMBIA

COLOMBIA

This article summarizes several developments in Colombia: All visa procedures must now be completed online; the Migrant Mercosur visa for Chilean nationals has been suspended due to a lack of reciprocity; there has been a breakdown of diplomatic relations between Colombia and Venezuela that has affected migratory processes; and there are new conditions for Venezuelans traveling to Colombia with expired passports.

Changes in the Visa Application Process

The Ministry of Foreign Affairs has announced that all visa procedures must now be completed online. Foreign nationals can only approach the Ministry when they are summoned by the authority or when they have received approval of their visa and they need the visa sticker stamped on the passport.

This change will affect processing times for all visas, Visitor (V), Migrant (M), and Resident (R), taking into consideration that in the past a visa could be obtained in person in a couple of hours. It will now be necessary to obtain approval of the application online, which takes approximately five business days.

Mercosur Visa Temporarily Suspended for Chilean Nationals

The Ministry of Foreign Affairs has suspended the issuance of the Migrant Mercosur visa for Chilean nationals. This decision was made due to the failure to apply the principle of reciprocity, because the Mercosur visa is not being issued for Colombian nationals in Chile.

Chilean nationals who are in the process of obtaining a Mercosur visa and continue to have a need to enter Colombia must reevaluate the existing migratory alternatives and proceed with a request for a different type of visa to enter and remain in the country in regular migratory status.

However, for foreign nationals who still hold a visa in this category, its validity will be respected and they should not make any changes at this time.

Breakdown of Diplomatic Relations Between Colombia and Venezuela and Its Impact on Migratory Processes

Due to the breakdown of diplomatic relations between Colombia and Venezuela, consular services in both countries have stopped and no further requests will be processed until further notice.

To provide an avenue for the migration of Venezuelan nationals to Colombia, the Ministry of Foreign Affairs has enabled its online platform for Venezuelans who wish to apply for a Colombian visa so they can proceed with their request.

On the other hand, Colombian nationals who require a visa or other processes through any Venezuelan consulate in Colombia will need to wait for these offices to resume their normal activities. They may wish to consider searching for an alternative, even if that will mean the process is completed in Venezuela or before a consulate abroad.

New Conditions for Venezuelans Traveling to Colombia with Expired Passports

The Ministry of Foreign Affairs has authorized Venezuelan nationals to enter, transit through, and leave the national territory of Colombia, even when their passports have expired. Passports in this condition may continue to be used for two years from the due date.

Likewise, Venezuelan passport holders under the conditions mentioned above may receive an Entry and Stay Permit granted by Migración Colombia upon entering the country. Exceptionally, those passports with an entry stamp will be valid as identification documents in the national territory of Colombia.

For visa processes, the Ministry has established that Venezuelan nationals who are holders of expired passports may request the issuance of a visa as long as it complies with the other provisions in force for the issuance of the corresponding visa.

3. EUROPEAN UNION

EUROPEAN UNION

As part of “red tape” reduction for European Union (EU) citizens living or working in another Member State, the apostille is no longer required on public documents issued by EU authorities.

As of February 16, 2019, the entry into force of Regulation 2016/1191 simplifies the circulation of certain public documents in the EU. A number of bureaucratic procedures will no longer be necessary when presenting public documents issued in one EU country to the authorities of another EU country.

Remarkably, public documents issued by the authorities of an EU country must now be accepted without the need of an apostille (authenticity stamp). Also, the regulation simplifies the rules concerning translation requirements.

A European Commission press release on this topic is available here.

4. FRANCE

FRANCE

A government order has established the rights of United Kingdom (UK) nationals continuing to stay in France after March 29, 2019, in case of a “hard Brexit.”

The French government published an order determining the right of UK nationals continuing to stay in France after the Brexit date of March 29, 2019, in the most probable event of no exit agreement being reached between the UK and the European Union (EU). Such UK nationals will be allowed three to 12 months to acquire permanent residency if they have been in France for five years or more as of March 30, 2019, or acquire the appropriate permit to stay, if they have been in France as of that date for less than five years. [Update: The EU has given the UK another six months to leave the EU, to October 31, 2019.]

Ordonnance n° 2019-76 of 6 February 2019 was published in the Journal Officiel on February 7. The following are the principal terms affecting the immigration rights of UK nationals.

A transition period of 3 to 12 months. UK nationals continuing their stay and professional activities beyond the Brexit date may do so, as before such date, for a minimum period of three months from the Brexit date. A decree will be published that will set the final end date of the transition, which will be within 12 months of the Brexit date. Beyond this final end date, UK nationals must be in possession of the appropriate permits covering their stay and professional activities in France (Article 1 of the Order).

Presence of less than five years. UK nationals having resided for less than five years as of the Brexit date must apply for the various permits to stay according to their status (e.g., student, employee, temporary worker, posted worker, independent professional, unemployment beneficiary, family member, long-term visitor). Such permits, when allowing work, will not be conditioned on labor market tests (Article 2).

Presence of five years or more. UK nationals having resided for five years or more in France as of the Brexit date will be entitled to the Residency Card, with 10-year validity (Article 3).

UK nationals practicing law in France. UK nationals who exercise the profession of lawyer (avocat) in France, based on their EU rights, may continue to do so for a period of 12 months from the Brexit date. Such lawyers may benefit from the disposition of Article 89 of the law of 31 December 1971 (Article 13).

Article 89 of the law of 31 December 1971 facilitates the registration of foreign lawyers with a French bar association after showing that they “effectively and regularly practiced French law on [French] national territory for a period of at least 3 years.” Such activity must be demonstrated to the French bar association with which the foreign lawyer wishes to register. If over the three-year period the practice of French law was for a shorter period, the bar association will have discretion to determine if the foreign lawyer can practice French law.

Subsidiaries of law firms formed under UK law and registered with a French bar association on the Brexit date may continue to pursue their activities in France beyond that date, even if no lawyer registered under a UK qualification is still practicing within that structure. No new structure under UK law may be created in France after the Brexit date (Article 16).

Reciprocity required. The Order states that the preferential treatment provided for UK nationals can be suspended by a State Council decree, after three months following the Brexit date, if the French government observes that the UK government has not taken equivalent dispositions toward French nationals (Article 19).

Other areas. The 10-page order is quite dense. It touches on many areas (such as recognition of professional qualifications, cross-border service provision, welfare, health coverage, and jobs reserved for French and EU nationals). A decree to implement this order will soon be published.

5. ITALY

ITALY

A new decree outlines measures that will apply if the UK leaves the EU without a deal.

With Decree 25 March 2019, n. 22, the Italian government has outlined the measures that will apply if the United Kingdom (UK) leaves the European Union (EU) without a deal. In particular, article 14 refers to the residency rights of UK nationals and their non-EU family members living in Italy, and article 15 refers to citizenship applications.

UK citizens residing in Italy and their non-EU family members can apply for EU residence permits for long-term residents by December 31, 2020, if upon the date of Brexit they have regularly resided in Italy for at least five years. UK citizens residing in Italy and their non-EU family members can apply for EU residence permits “for residency” (per residenza), valid for five years, if upon the date of Brexit they have regularly resided in Italy for less than five years.

Starting on January 1, 2021, UK citizens and their non-EU family members who do not comply with these provisions will be subject to the same sanctions applicable to all noncompliant non-EU nationals.

UK citizens who are regularly residing in Italy for at least four years upon the date of Brexit can apply for Italian citizenship until December 31, 2020. Applications filed after that date will be processed under the same regulations applicable to all other non-EU nationals.

6. UNITED KINGDOM

UNITED KINGDOM

This article provides updates as of press time on the fast-changing Brexit situation. Also, new “e-gates” are now open to U.S. citizens and others.

Brexit Update: EU Extends Deadline to October 31

In a tumultuous period for British politics, the House of Commons rejected Prime Minister (PM) Theresa May’s Brexit deal for a second time on March 12, 2019, by a wide margin of 149 votes. The following day, in a legally non-binding but politically significant motion, Parliament rejected leaving the EU without a Withdrawal Agreement and a Framework for the Future Relationship.

On March 14, House members rejected a series of amendments to the UK government’s motion to extend Article 50. The first amendment to hold a second referendum was overwhelmingly defeated 334 to 85 (with the Labour party abstaining from the vote). The second, to enable the House to debate on the next steps in Brexit on March 20, was narrowly rejected 314 to 312. And the third amendment, which would have instructed the PM to request additional time from the EU in order to find a majority of support for an alternative approach, also failed to garner enough support in a vote of 318 to 302.

Among other things, following the amendments’ defeat, the House passed the government’s motion to extend Article 50 until June 30, 2019, by a wide margin of 412 in favor to 202 against. Subsequently, the EU extended the Brexit deadline to October 31, 2019, giving the UK another six months. As of press time, there was a range of potential future scenarios and the outcome was far from certain. The UK remains a member of the EU for the time being, but the ongoing uncertainty has created problems for businesses and investors in the UK. Stay tuned.

E-Gates

As of March 11, 2019, nationals of the United States and six other countries (Australia, Canada, Japan, New Zealand, Singapore, and South Korea) can now use electronic passport control gates when they enter the UK. People from these countries who do not already have a visa will automatically be granted entry as a standard visitor for six months, with the usual prohibition on employment and recourse to public funds.

The new system was announced in October 2018, and the legislation enabling it was passed in February 2019.

At the moment, electronic passport control gates—known as e-gates or ePassport gates—can be used by British and EU nationals aged 12 and over.

The following groups of people should not use e-gates:

People who are entering the UK for the first time on a different type of visa, such as a spouse visa. These people must get their visa stamped by an Immigration Officer the first time they enter the UK.
People who do not have a visa and are seeking entry for a different purpose; for example, under the Tier 5 (Temporary Worker) Creative and Sporting category or the Visitor (Permitted Paid Engagements) category. These people must see an Immigration Officer and ask to be stamped in under the appropriate category.
People who have had immigration problems in the UK and are hoping to slip in without being questioned. Passengers using e-gates are checked against Border Force systems. If the person is flagged on these systems, the gate will not open and they will be taken aside for questioning.

The new system will make entry to the UK much quicker for people traveling on business or for tourism.

Business travelers and their employers should bear in mind that the same restrictions apply to people entering as visitors regardless of whether they are stamped in by an Immigration Officer or use an e-gate. Visitors are not allowed to work or study in the UK except in very limited circumstances. They also cannot live in the UK for extended periods. The Home Office already collects entry and exit data from airlines and other carriers taking people to and from the UK. Anyone using e-gates can also expect to have their movements tracked. Visitors who appear to be spending most of their time in the UK will run into trouble, whether or not they use e-gates.

7. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

The latest immigration news is at https://www.abil.com/news.cfm.
The latest published media releases include:
ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

8. ABIL Member / Firm News

The Alliance of Business Immigration Lawyers (ABIL) was named the top immigration legal network by Chambers Global. Chambers noted, “[ABIL] is an association of legal providers based in over 20 countries, including 24 U.S. cities, providing a single contact point for management of global immigration needs. It assists with processing, filing, invoicing and online client case tracking. Members share information on important legislation, take part in joint training and collaborate on projects to provide a unified service offering. The network also maintains an up-to-date blog collating information on multiple jurisdictions.” In addition, ABIL members and firms were disproportionately top-rated in almost all of their jurisdictions relative to other immigration firms. ABIL encompasses two-thirds of Chambers USA’s top band (ranking tier) in California out of thousands of California immigration law firms.

Below are ABIL firms and individual members and associates who were honored in Chambers Global and Chambers USA:

FIRMS

United States

Cyrus D Mehta & Associates PLLC

Foster, LLP

Fredrikson & Byron

Klasko Rulon Stock & Seltzer

Kuck Baxter

Maggio & Kattar

Miller Mayer

Parker, Butte Lane

Pearl Law Group

Seyfarth Shaw

Siskind Susser, PC

Wolfsdorf Rosenthal LLP

Canada

Corporate Immigration Law Firm

Gomberg Dalfen

Global

Alliance of Business Immigration Lawyers

Laura Devine Solicitors

Bener Law Office (Europe, Global – for Corporate/M&A)

Dorda (Europe, Global, High Net Worth)

Kingsley Napley (UK, US, Global, High Net Worth)

Laura Devine Solicitors (UK, US, Global, High Net Worth)

Sagardoy Abogados (Europe – for Employment)

Raczkowski Paruch (Europe – for Employment)

Tannus & Asociados (Latin America)

INDIVIDUALS

United States

Jim Alexander

Robert Aronson (US and Global)

Dagmar Butte

Charles Foster

David Fullmer

Anna Gallagher

Ronald Klasko (US and Global)

Charles Kuck (US and Global)

Judy Lee

Cyrus Mehta (US and Global)

John Meyer

Christy Nguyen

Angelo Paparelli

Julie Pearl

Jan Pederson

Gregory Siskind (US and Global)

Jennifer Stevens (US and Global)

William Stock

Anastasia Tonello

Bernard Wolfsdorf

Stephen Yale-Loehr (US and Global)

Canada

Jean-Philippe Brunet

Barbara Jo Caruso

Seth Dalfen

Avi Gomberg

Global (see also individual listings above under United States)

Sophie Barrett-Brown

Ilda de Sousa

Laura Devine

Nicolas Rollason

Jennifer Stevens

Rodrigo Tannus

More information on rankings and areas of specialty are available here. Bios of ABIL members are available at https://www.abil.com/.

Robert Aronson and Debra Schneider, of Fredrikson & Byron, P.A., have co-authored “A Bridge Over Troubled Waters: The High-Skilled Worker Rule and Its Impact on Employment-Based Immigration,” published in 44 Mitchell Hamline L. Rev. 935-969 (2018) and available online here.

Dagmar Butte will be speaking at the following events:

AILA Rome Chapter Conference in Berlin, Germany, on April 30, 2019, on the effect of marijuana legalization at the state level on federal immigration law
Federal Bar Association National Conference in Austin, Texas, on May 17, 2019, on “Fundamentals of Business Immigration Law”
American Immigration Lawyers Association Annual Conference in Orlando, Florida, on June 19, 2019, on “Changes to Immigration Law Via Trump Administration Memos”
Chair of Business Track for AILA Annual Conference in Orlando (see above)

Laura Devine Solicitors has won the 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

Robert Loughran, partner at Foster LLP, recently spoke on a panel in Austin, Texas, at the South by Southwest (SXSW) Conference. “How Foreign Entrepreneurs Thrive in Trump’s America: It’s (Not So) Complicated” focused on the immigration, corporate, and financial/tax implications foreign entrepreneurs face when setting up a business in Texas and the United States in light of the Trump administration’s new immigration policies. More information

Mr. Loughran and Matthew Myers presented on U.S. immigration considerations specific to Japanese investors, companies, and employees, to representatives of 19 Japanese companies visiting San Antonio, Texas, as part of an economic development delegation at a dinner hosted by the San Antonio Economic Development Foundation. The event took place March 7, 2019.

Charles Foster and John Meyer, chairman and partner, respectively, at Foster LLP, attended the EB-5 & Uglobal Immigration Expo hosted by EB-5 Investors Magazine on February 11, 2019, in Dubai, United Arab Emirates. Mr. Foster presented an overview of the EB-5 Immigrant Investor Program and its latest developments to representatives of leading EB-5 regional centers, migration agencies, and potential investors. More information

Mr. Foster delivered the keynote address at the immigration seminar, “Struggling With Your Immigration Status: Is Canada a Solution?,” hosted by The Aga Khan Economic Planning Board and Indo-American Chamber of Commerce of Greater Houston on December 15, 2018, in Houston, Texas. Mr. Foster spoke about the EB-5 Investment Program as a possible alternative to the H-1B visa backlog. More information on this event

Mr. Meyer was a guest speaker for “Investing and Doing Business in Texas,” an event hosted by Invierta en USA on January 30, 2019, in Mexico City, Mexico. Mr. Meyer spoke about the EB-5 Immigration Investor Program concerning how to obtain business and investment visas to immigrate to the United States. The audience included Mexican entrepreneurs who want to invest in, establish, and expand businesses in Texas. More information

Klasko Immigration Law Partners, LLP, has released “,” which is Episode 12 of the podcast series, “Statutes of Liberty.”

Anu Nair, of Klasko Immigration Law Partners, LLP, served as a panelist for “U.S. Immigration and IRS Update,” a Business After Hours event sponsored by Gray Robinson Attorneys at Law and hosted by the Indian American Chamber of Commerce on January 15, 2019, in Orlando, Florida. She provided an overview of the EB-5 Immigrant Investor Program and spoke on the latest developments. She included an update on the impending visa backlog for Indian foreign nationals. More information

Charles Kuck is the attorney for Grammy-nominated rapper 21 Savage, whose real name is She’yaa Bin Abraham-Joseph. Mr. Abraham-Joseph, who was born in England in 1992 and has been living in the United States since the age of seven, was detained recently on immigration charges by U.S. Immigration and Customs Enforcement (ICE) in Atlanta, Georgia. Mr. Kuck was quoted by Reuters in “Rapper 21 Savage Being Held Unfairly, Attorneys Claim.” Mr. Kuck noted that “ICE has not charged Mr. Abraham-Joseph with any crime. As a minor, his family overstayed their work visas, and he, like almost two million other children, was left without legal status through no fault of his own.” He said, “This is a civil law violation, and the continued detention of Mr. Abraham-Joseph serves no other purpose than to unnecessarily punish him and try to intimidate him into giving up his right to fight to remain in the United States.” Mr. Kuck also said that ICE was refusing to release his client on bond based on “incorrect information about prior criminal charges.” The article. Additional details of Mr. Abraham-Joseph’s case are at TMZ, NYTimes, The New Yorker, Time, and Rolling Stone.

Cyrus Mehta has authored several new blog entries. “The Best Way for Trump to Offer “Love and Sympathy’ is to Repeal the Muslim Ban“; “Advancing a ‘Social Group Plus’ Claim After Matter of A-B-“; “”; and “Don’t Always Suck Up to Buy American Hire American.”

David Isaacson, of Cyrus Mehta‘s office, has authored a new blog entry. “.”

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

Mr. Paparelli and William Stock spoke at the 2019 American Immigration Lawyers Association’s Spring Federal Court Litigation Conference in Chicago, Illinois, on March 12, 2019. More information

Rodrigo Tannus has authored several new articles published in Diario la Republica:

“Golden Visa“
“Nacionalización colombiana y sus efectos“
“Permiso de ingreso y permanencia de tránsito temporal“

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.”

Mr. 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.”

Mr. Yale-Loehr was quoted by the New York Times in “Ninth Circuit Appeals Court Grants More Protections for Asylum Seekers.” In response to the court’s decision that immigration authorities can no longer swiftly remove asylum seekers who fail an initial screening, Mr. Yale-Loehr said, “This is a historic decision. But the government will surely appeal this to the Supreme Court.” The article

Mr. Yale-Loehr was quoted by CNN in “Meet the Immigrant Who Got a Second Chance from Justice Neil Gorsuch.” The article notes that Justice Gorsuch sided with the Supreme Court’s liberals in invalidating a provision of federal law that requires the mandatory removal of immigrants who have been convicted of some “crimes of violence,” agreeing that the law was unconstitutionally vague. Mr. Yale-Loehr noted that Justice Gorsuch’s vote did not necessarily make him pro-immigrant in every case, as evidenced by some of his other opinions. “But like his predecessor, Justice Scalia, he hates vague laws. This case shows that Congress needs to be more careful when it drafts immigration laws,” Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by Bisnow South Florida in “EB-5 Fund USIF Sued for Racketeering by Representative of Chinese Investors.” The U.S. Immigration Fund bundles foreign money to be loaned to developers for U.S. based projects. The Chicago-based Chinese-American researcher who filed the suit, Xuejun Makhsous, also known as Zoe Ma, alleges that Chinese investors were led to believe that they were backing a five-year loan with a real estate development as collateral, but they were actually purchasing limited partnership interests in a fund not secured by real estate. “It’s an interesting but novel argument. It remains for the court to decide whether it has validity.” The article

Stephen Yale-Loehr was quoted by CNN in “Trump Says Alabama Woman Who Joined ISIS Should Not Return to U.S.” Mr. Yale-Loehr said Hoda Muthana’s situation was “not clear-cut. It would depend on the facts, if the State Department argues that her father’s diplomatic status was still in effect. The family argues it expired. So ultimately, it may be up to a court to sort this out.” Ms. Muthana’s family has filed a lawsuit challenging the U.S. government’s assertion that she is not a U.S. citizen, the article notes. The CNN article. The lawsuit

Mr. Yale-Loehr was quoted by Bisnow South Florida in “Inside the Wild Legal Battle Over EB-5 Fraud, Defamation and a $2.5B Times Square Project.” Mr. Yale-Loehr noted that the EB-5 program was established as a part of a bigger overhaul of legal immigration in the early 1990s, “in part because Australia and Canada had similar programs.” Noting that it was enacted as a pilot program and still needs to be reauthorized periodically, he said redeployment has become contentious as processing times for visas have grown. Contracts can be structured various ways, he said, with all the money from a group being moved together at one time or in tranches. The article

Mr. Yale-Loehr was quoted by the Cornell Daily Sun in “Tompkins County Deputy Called ICE to Report Mexican Man in U.S. Illegally, Drawing Sheriff’s Ire.” Mr. Yale-Loehr said, “I agree that it is a close call, but the county resolution explicitly states that nothing in the resolution bars a sheriff’s officer from sending a statement of a person’s immigration status to federal immigration authorities.”