Category: Immigration

DHS Publishes Final Rule for H-1B Lottery

On Nov. 30, 2018, the Department of Homeland Security issued the notice of proposed rulemaking to amend its H-1B cap-subject lottery process. On Jan. 31, 2019, USCIS will publish the final rule after a 30-day comment period. The final rule encompasses a pre-registration process and a modified selection process. The registration process will be suspended for FY 2020 cap season to finish testing the H-1B registration system. Below is what employers, attorneys, and employees alike need to know:

How to Register: The USCIS will house the H-1B cap registration process through ICAM, a portal that will allow accounts to submit H-1B cap registrations. A petitioner must submit a separate registration for each beneficiary, and the beneficiary must be named. A petitioner may submit one registration per beneficiary, and as with previous years, if multiple requests for the same beneficiary and same petitioner are found, the registration for that beneficiary will be considered invalid.

Timing: The registration period will last at least 14 calendar days, and will start at least 14 calendar days before the earliest date the H-1B petition can be filed. USCIS will announce the start of the registration period at least 30 days before the first date of open registration. As with previous filings, the start date on the petition may only begin on the first day of the fiscal year, Oct. 1. If for any reason the registration period is open longer than anticipated by USCIS, then the start date may begin later.

Selection Process: USCIS will conduct a random lottery of the registrations it receives. If the cap has not been reached at the end of the period, USCIS will notify all those that are selected and keep the registration period open until the slots have been filled, which will determine the “final registration date.” If the cap is reached at the end of the registration period, USCIS will notify the public of the “final registration period” and will then randomly select via computer the registrations that will move on to the next stage.

Most notably, the order of selection will change for the petitions filed for FY 2020, though the registration process will take effect FY 2021 due to testing of the proposed system. Instead of the U.S. Master’s degree registrations being selected first for the 20,000 spots, the general pool will go first, where 65,000 regular cap registrations are selected. This means there will be more U.S. Master’s degree registrations mixed within the regular pool. USCIS will announce the “final registration date” after all U.S. Master’s degree registrations have been selected.

USCIS will maintain a reserve pool of registrations in case it needs to increase the number of registrations to meet the H-1B cap (both regular and advanced degree exemption).

Notification: Petitioners will receive an electronic notification that their registration has been selected, and can therefore move forward with filing the H-1B petition, only for the beneficiary named on the registration notice. The H-1B petition must be filed within the filing period indicated on the notice, which will be at least 90 days. If this window is missed, USCIS will deny or reject the H-1B petition.

Fine Text: USCIS makes it very clear that even if the registration process is suspended, the order and manner in which the cap subject petitions are selected will remain in effect.

Implications: The registration process will not go into effect this coming H-1B cap season, but the system will be tested throughout the year for implementation next year. The manner of selecting cap cases will change, with the regular cap going first, then the U.S. Master’s cap. As such, there will be a greater chance for those with U.S. Master’s degrees to be selected in the process.

 

©2019 Greenberg Traurig, LLP. All rights reserved.
This post was written by Kristen W. Ng of Greenberg Traurig, LLP.

The E-2 Visa: A Potentially Useful Tool in Cross-Border M&As

Changes to corporate structure, including mergers and acquisitions, can have enormous implications for the U.S. immigration status of key workers and potential new hires. When a U.S. company is acquired or formed because of a merger, and is majority-owned by a foreign entity or foreign national from an E-2 country, the E-2 Investor Visa may be available. In addition, the E-2 visa provides protections to cross-border investment between the two countries and the option to resolve investment disputes through international arbitration.

Who Can Use the E-2 Visa?

Typically, the E-2 visa is available to the principal investor as well as managerial, executive, or essential-skilled employees with the same nationality as the E-2 country, and the nationality of the majority owners of the E-2 company. To qualify, E-2 applicants must show they are actively investing or have invested a substantial amount of capital in a bona fide enterprise. An E-2 visa, issued for five years at the U.S. consulate overseas, allows an E-2 spouse to work and any E-2 children under 21 to study in the United States.

What Must the E-2 Visa Applicant Show?

The E-2 applicant, who submits the application directly to the E-2 visa offices at the pertinent U.S. consulate overseas, must include evidence of: 1) ownership; 2) nationality; 3) the substantial investment at risk explaining the path of the E-2 investment funds; 4) the corporate documentation of the E-2 company — in the cross border M&A transaction, this includes the purchase of the acquisition or the formation of the newly-merged company, evidencing 50 percent or more ownership by treaty national or nationals; 5) the applicant’s qualifications to direct and operate the E-2 company; 6) a detailed and complete business plan if the newly-formed U.S. company has existed for less than a year; and any other evidence the U.S. consulate requires.

How Does the U.S. Government Determine an Investment Is ‘At Risk’?

General E-2 visa processing considerations for founders, principal investors, or employees (those to be transferred from overseas or new hires) are to ensure that the substantial investment be one that is “at risk.” This means the capital must be subject to partial or total loss if investment fortunes reverse. Further, the E-2 applicant must show irrevocable commitment of funds to the U.S. E-2 company. The U.S. immigration rules allow the placement of funds in escrow pending approval of the E-2 visa with a legal mechanism that irrevocably commits funds but also protects investors if the E-2 application is denied. Commercial investments must be active (not passive), entrepreneurial, and cannot be made in nonprofit institutions.

What Constitutes a ‘Substantial’ Investment?

To establish that an investment is substantial, the U.S. Department of State uses a relative proportionality test that considers the amount of qualifying capital invested weighed against the total cost of purchasing or creating the E-2 company; the amount of capital normally considered sufficient to ensure the investor’s financial commitment to the success of the E-2 company; and the magnitude of investment to support the likelihood that the investor will successfully develop and/or direct the E-2 company. Thus, the lower the cost of the E-2 company, the higher, proportionally, the investment must be to be considered “substantial.” The E-2 investment cannot be marginal to only support the E-2 principal. The January 2017 Buy American, Hire American executive order is now an oft-cited requirement in E-2 investment applications. The E-2 investment must show the potential for hiring Americans and inducing economic growth in the area of the E-2 investment.

Conclusion

The U.S. government is more closely vetting immigration applications, and work visas like the E-2 in particular. To determine whether the E-2 visa may be the right option in light of a cross-border M&A, it is critical that foreign nationals consult with their immigration counsel.

©2011-2018 Carlton Fields Jorden Burt, P.A.

EB-5 Processing During the Government Shutdown

The U.S. federal government shut down at the end of the day on Dec. 21, 2018, and the president did not sign into law the extension of the EB-5 program passed by the Senate. Until the shutdown ends, and the Regional Center EB-5 program extension is signed into law, no new I-526 petitions can be filed. To clarify, while EB-5 petitions may continue to be prepared, petitions cannot be mailed to USCIS until the conclusion of the shutdown and extension of the program. Please note, however, that investors must continue to file timely responses to USCIS Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). In addition, investors may continue to prepare and file I-829 petitions.

With respect to the immigrant visa process, the State Department will cease to schedule new immigrant visa interviews until extension of the program is signed into law and the government resumes operations. If the interview was previously scheduled, and the Consular Post has not reached out to cancel said interview, the investor and family should still plan to attend. However, the immigrant visas will not be issued until the government resumes operations. The State Department will experience a significant slowdown and even cessation of all visa-issuing services during the period of the government shutdown. Furthermore, investors will be unable to file new DS-260 applications and supporting documents until the program is officially extended and the Visa Bulletin is updated.

With respect to the adjustment of status process, investors will be unable to file any new adjustment of status applications based on the I-526 petitions until the program is officially extended and the Visa Bulletin is updated. However, investors can continue to file renewals of employment authorization and advance parole, and should continue responding in a timely manner to USCIS’s RFEs relating to pending adjustment of status (I-485) applications. USCIS is unlikely to schedule any adjustment of status interviews until the conclusion of the shutdown and extension of the program.

 

©2018 Greenberg Traurig, LLP. All rights reserved.
This post was written by Jennifer Hermansky of Greenberg Traurig, LLP
More immigration news on the National Law Review Immigration Page.

More Employers Were “ICED” in Fiscal Year 2018

The U.S. Immigration and Customs Enforcement agency (ICE) recently released statistics on its worksite enforcement activities for the federal fiscal year ending on September 30, 2018. It should surprise no one that worksite enforcement designed to crack down on the employment of undocumented aliens has skyrocketed.

In FY 2018, 6,848 worksite investigations were initiated, representing a fourfold increase from the prior fiscal year. Similarly, ICE conducted 5,981 audits of employers’ Form I-9s, which is five times the number from the prior year. Criminal and worksite arrests were also way up and readers will recall that immigration law violations are one of the few areas of employment law which can result in direct criminal prosecution.

As stated by ICE, “[our] worksite enforcement strategy continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance.”

What does this flurry of activity mean for employers? Under the Immigration Reform and Control Act of 1986, all employers must verify the identity and work eligibility of all individuals hired by completing a Form I-9 within three days of starting work. While appearing to be fairly simple on its face, many employers fail to pay attention to the details and fail to properly complete and certify that they have carefully verified the identity and work authorization of each hire. This can be especially true when hiring is done in remote locations where there are no trained management personnel to supervise the completion of the I-9.

When an employer receives a Notice of Inspection from ICE, it has three business days after which ICE will physically inspect the I-9s. Noncompliance could result in civil fines or even criminal prosecution. ICE worksite investigations are also designed to look for evidence of mistreatment of workers, human trafficking, and document fraud.

Given the reality that immigration enforcement activities are not likely to update anytime soon, employers are well-advised to take the following steps now:

  • Conduct a self-audit of all of your I-9s and if mistakes are identified take the appropriate steps to correct them. Consult the Handbook for Employers to know how the form must be completed.

  • Review and, where necessary, retrain all employees who are responsible for reviewing the documents presented by the new hire and certifying the accuracy of the form I-9.

  • Be sure you know the right way to fix errors that are identified.

  • Audit the records of any employees who are working under temporary visas. Oftentimes, employers verify work authorization at the time of hire but then fail to track expirations and renewals. What may have been legal at the time of hire may not be the case years later.

© 2018 Foley & Lardner LLP
This post was written by Mark J. Neuberger of Foley & Lardner LLP.
More immigration news at the National Law Review’s Immigration Page.

Federal Court Allows Challenge to Government Policy of Using Detained Immigrant Children as Bait to Arrest Families

A November 15th ruling in the District Court for the Eastern District of Virginia could have a major effect on the Trump Administration’s policy, which unnecessarily detains 1000’s of immigrant children for extended periods of time and which in effect traps certain sponsor’s of the detained immigrant children who try to claim them. The Government’s motion to dismiss a lawsuit brought on behalf of detained immigrant children was denied by the court on five of the six counts of the amended complaint allowing the lawsuit to move forward. Judge Leonie Brinkema’s decision also has implications for immigration battles to come, not only in Virginia but throughout the United States. (see J.E.C.M., a minor, by and through his next friend JOSE JIMENEZ SARAVIA, et al. v. SCOTT LLOYD, Director, Office of Refugee Resettlement, et al. Case No.1:18-CV-903-LMB ).

Legal Aid Justice Center (LAJC), together with the Washington, D.C. intellectual property law firm of Sterne, Kessler, Goldstein, and Fox(Sterne Kessler), brought this first-of-its-kind class action lawsuit on behalf of four minor immigrants challenging the Trump Administration’s recent policy of sharing the sponsor information of immigration children and information about the sponsors’ household members with U.S. Immigration and Customs Enforcement (ICE). This policy has resulted in the arrest of people who come forward to help undocumented migrant children including family and friends that came forward to bring their children home.

In April 2018, the Department of Health and Human Services (DHS) and the Department Health and Human Service (HHS) entered into an agreement, which went into effect May 13, 2018, for the Office of Refugee Resettlement (ORR), the branch of HHS that is in charge of housing immigrant children, to transfer fingerprints and other information on immigrant children’s sponsors and other adult members of the sponsor’s household to ICE.

As reported by the Guardian in September:  ICE’s acting deputy director, Matthew Albence, said at a Senate committee hearing:

We’ve arrested 41 individuals thus far.  Our data that we’ve received thus far indicates close to 80% of the individuals that are either sponsors or household members of sponsors are here in the country illegally, and a large chunk of those are criminal aliens. So we will continue to pursue those individuals.

The November 15th ruling stems from a case where four children were detained and held in custody for a five-month period by the ORR in Virginia, while their relatives attempted to bring them home.

The children involved in the lawsuit claimed they were fleeing violence and neglect in their home countries of Honduras and Guatemala. Honduras, El Salvador, and Guatemala, consistently rank among the most violent countries in the world. Together these countries form a region known as the Northern Triangle, whose extreme violence stems from civil wars in the 1980s, which left a legacy of violence and fragile governmental institutions. The region remains menaced by corruption, drug trafficking, and gang violence despite tough police and judicial reforms according to the Council on Foreign Relations.

In this case, three of the four detained children were reunited with their families weeks before the court’s ruling. One of the children was reunited only one week before the court’s decision. For the three children who were released from custody first, their cases were dismissed by the court. The court allowed the case to go forward for the fourth child, who remained in custody for a six-month period and was held apart from his sister for the duration of the proceedings.

Groups including the Center for Human Rights & Constitutional Law and the LAJC’s lead attorney on the case, Becky Wolozin, say the lawsuit highlights how:

The Trump administration has been carrying out a backdoor family separation agenda, keeping immigrant children apart from their families and using children as bait to break up the very families they have traveled so far and risked so much to join.

Working alongside Sterne Kessler, Wolozin and the LAJC challenged the ICE Policy for unaccompanied children entering the country and other related issues, which has resulted in arrests of families and friends trying to bring their children home. With more than 13,000 children being held by the ORR, this case’s outcome will possibly impact all families covered under the Administration’s current detainment policies. 

Wolozin goes onto highlight the importance of this decision as being “An important victory and decision for immigrant families and children who are being detained.” Per Wolosim, Judge Brinkema acknowledged Constitutional violations in this case and the violation of the Administrative Procedure Act (APA) in administering her decision.

Stern Kessler Director, Salvador Bezos, head of the firm’s immigration pro bono practice, says, “For years, ORR has neglected its obligations under the Administrative Procedure Act.” Bezos further noted, “The APA provides essential protections against this kind of agency overreach. I am proud of my colleagues’ and LAJC’s efforts to force the government to meet its obligations to the children in its custody.”

LAJC’s Legal Director of the Immigration Advocacy Program, Simon Sandoval-Moshenberg, also weighed in on the decision, saying “ORR is supposed to protect vulnerable immigrant children. Instead, it is placing them in harm’s way under the guise of child welfare.” “[These] policies and their enforcement undermine successfully placing children with their families and the vast surveillance actions are destabilizing immigrant communities.”

Wolozin, further details the importance of the decision. She states:

The exponential increase in the number of immigrant children in government custody has not been caused by more children crossing the border, but instead by ORR’s own policies dramatically increasing the amount of time ORR holds children in its custody. In denying the motion to dismiss, Judge Brinkema recognized the failure of due process for these children and their families, the disregard for the requirements of the Administrative Procedure Act, and importantly, the tantamount importance of protecting all people’s constitutional right to family unity, even when not between a parent and a child.

The Virginia case will move forward as LAJC works to certify the class and the parties work to complete discovery.

Monday another setback for the Trump Administration was issued by Judge Jon S. Tigar of the United States District Court in San Francisco, which may at least temporarily, stall the administration’s attempt to clamp down on the rights of immigrants seeking asylum in response to the wave of Central Americans crossing the border. Judge Tigar ordered the Trump administration to resume accepting asylum claims from migrants no matter where or how they entered the United States. “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Judge Tigar wrote in his order and issued a temporary restraining order that blocks the government from carrying out a new rule issued this month that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally.

 

Copyright ©2018 National Law Forum, LLC
This post was written by Jennifer Schaller and Alessandra de Faria of the National Law Review.

USCIS Will Begin Accepting Cap-Subject H-1B Petitions for Fiscal Year 2020 on April 1, 2019

U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B petitions subject to the annual quota for fiscal year 2020 (FY 2020) starting April 1, 2019. Employers should identify any current or future employees who may require new H-1B visas to work in the United States. Individuals currently holding F-1 student visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside the United States likely will require cap-subject H-1B petitions to be filed on their behalf.

Overview of the H-1B Visa Program

The H-1B visa program permits U.S. companies to employ foreign nationals in specialty occupations. A “specialty occupation” is a position that requires the theoretical or practical application of a body of highly specialized knowledge, such as that of an engineer, economist, or scientist. The specialty occupation must require a bachelor’s degree or higher (or its foreign equivalent) in a specific field.

The number of new H-1B visas available on an annual basis is subject to limitations for each fiscal year. Currently, the annual limit is 65,000 visa numbers per year with an additional 20,000 available to H-1B applicants who possess advanced degrees from U.S. academic institutions. Of the 65,000 available H-1B visas, 6,800 are reserved for citizens of Chile and Singapore. Due to the cap, employers will want to plan far in advance and file their cap-subject petitions as early as possible to help ensure they have the best chance to secure H-1B status for the next fiscal year.

When USCIS receives more cap-subject H-1B petitions than the annual fiscal year limitation, USCIS conducts a computer-generated random lottery selection process. The first lottery is limited to individuals who possess advanced degrees from U.S. academic institutions. If a qualifying advanced degree holder is not selected in this first lottery, his or her petition will be rolled into a second lottery for the regular H-1B cap.

Cap-subject petitions that have not been selected in the lottery will be returned with the U.S. government filing fees. Once the number of available H-1B visas has been fulfilled, USCIS will not accept or approve any additional cap-subject H-1B petitions until the filing period for the next fiscal year opens.

Cap-Exempt Petitions

Some H-1B petitions are exempt from the annual fiscal year limitation, including (1) H-1B petitions that are filed to extend or amend H-1B employment for foreign workers who are already in H-1B status and (2) petitions filed on behalf of new workers to be employed in H-1B status by institutions of higher education or related nonprofit entities, nonprofit research organizations, or government research organizations.

How to Prepare for the FY 2020 H-1B Cap

The annual fiscal year cap for H-1B visas is typically reached within the first week of filing. Because the number of cap-subject H-1B petitions that will be filed by employers for FY 2020 is uncertain, employers will want to mail all cap-subject H-1B petitions early within the filing window. The first day to mail FY 2020 cap-subject petitions will be March 29, 2019, for delivery to USCIS on April 1, 2019, which is the first day of the filing period. Employers should immediately begin identifying individuals for whom H-1B sponsorship will be needed to allow sufficient time for H-1B petition preparation.

In preparing FY 2020 H-1B petitions, employers should keep in mind the time required to file and receive certification of a Labor Condition Application (LCA). The LCA is a prerequisite to a properly filed H-1B petition. As part of the LCA, employers must attest that they will pay the H-1B worker the higher of the prevailing wage or actual wage for the position in the geographic area of intended employment. The LCA is then submitted to the U.S. Department of Labor, which can take up to 10 days to certify the application. Employers should keep this processing time in mind to ensure timely approval of an LCA. Timely filing and approval of an LCA will help ensure that an employer is best positioned to mail the H-1B cap-subject petition on March 29, 2019, for delivery to USCIS on April 1, 2019.

Employers can take action now to initiate cap-subject H-1B petitions.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Proposed Immigration Rule – Inadmissibility on Public Charge Grounds

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

 

©2018 Greenberg Traurig, LLP. All rights reserved.
This post was written by Anita E. J. Ninan of Greenberg Traurig, LLP.

Employment-Based Petitions Exempt (at Least for Now) Under New NTA Policy

Beginning October 1, 2018, U.S. Citizenship and Immigration Service (USCIS) will begin a staggered rollout of a new notice to appear (NTA) policy. The first phase of the rollout does not include employment-based petitions.

The NTA policy authorizes immigration officers to issue NTAs and thus initiate the first step in removal (deportation) proceedings for those deemed to be removable from the United States after the denial of an immigration benefit. USCIS deployed the NTA policy in July 2018 but then later put it on hold while it developed additional guidance for the policy’s application.

In a recent announcement and during a September 27, 2018, stakeholder teleconference, USCIS offered additional details about the policy’s implementation and highlighted the following information:

  • The initial focus is on applications (as opposed to petitions) and the policy affects adjustments of status (Form I-485), applications for naturalization (Form N-400), and applications to extend or change nonimmigrant status (Form I-539), among others.
  • Employment-based petitions (including those based on Forms I-129 and I-140) are not included in the initial rollout, nor are humanitarian applications and petitions.
  • Generally speaking, USCIS will not immediately issue an NTA upon the denial of an immigration benefit. It will wait for the expiration of the motion or appeal period before issuing an NTA—though it is worth noting that USCIS reserves the right to issue an NTA at any point during the adjudication period, where appropriate.
  • The NTA policy does not affect motions to reconsider or reopen, or appeals. If USCIS ultimately approves an application after an NTA has been issued, it will coordinate with U.S. Immigration and Customs Enforcement (ICE) to make sure that ICE is aware of the favorable outcome. USCIS cannot cancel or withdraw an NTA that it has issued.
  • The NTA policy does not include initial requests for deferred action for arrivals (DACA), renewals, or requests for DACA-related benefits.
  • USCIS may, in its discretion, issue an NTA at the request of a removable foreign national so that he or she may seek lawful status or other relief during removal proceedings.
  • As USCIS begins implementing the NTA policy, it will create a public-facing web page that will provide additional guidance on the policy and examples of scenarios that may trigger the issuance of NTAs.

USCIS has not provided a timeline for any additional implementation measures.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Read more on Immigration on the National Law Review’s Immigration Type of law page.

Recent Developments In Case Law And Policy Applicable To Immigrants And Their Employees

In these turbulent times for immigrants, we would like to signal a few recent developments in case law and policy that apply to immigrants and/or their employers.

1. Deportation and Removal

In the case of Pereira v. Sessions decided on June 21, 2018, the U.S. Supreme Court ruled that individuals with prior deportation orders may now apply to reconsider/ reopen their cases if they were served with a written notice to appear in removal proceedings that did not specify the “time and place at which the removal proceedings will be held”. It is worth noting that most notices to appear served before June 2018 DID NOT SPECIFY the required time and place for the removal proceedings, hence many individuals would be eligible to reopen their removal orders under the Pereira case. The Pereira case would benefit in particular those who have been continuously present in the U.S. for 10 years or longer and have a spouse, child(ren) or parent(s) who are U.S. citizens or permanent residents. To take advantage of the path to legalization that this case offers, it is imperative that you contact our office no later than September 21, 2018, which is the deadline for filing motions to reconsider/ reopen under the Pereira case.

2. Employment-Based Immigration

USCIS announced that it is extending the temporary suspension of premium processing for April 2018 cap-based H-1B petitions and, beginning September 11, 2018, will be expanding this suspension to include ALL H-1B petitions filed at Vermont and California Service Centers (and CT falls under the jurisdiction of the Vermont Service Center) except H-1B petitions for extension of status to continue on with the same employer and certain cap-exempt filings. The suspension is expected to last until February 19, 2019. The practical effects on employers will be felt in the areas of April 2018 cap-subject petitions and H-1B transfers which will now take several months to adjudicate. H-1B employees may be impacted in their ability to travel abroad while the H-1B is still pending and we highly recommend consulting us before any international travel. We advise employers looking to petition for H-1B transfers to use premium processing, if desired, no later than September 10, 2018.

In other employment-based immigration categories we are seeing increased processing times for work permits (EADs) from 3 to 6 months, a much higher incidence of Requests for Evidence (RFEs) on most work visa and green card categories, a higher incidence of fraud investigations on a wide range of cases, and as a consequence a spike in the need for highly skilled immigration counsel to ensure strict compliance with applicable laws and policies.

3. Family-Based and Naturalization

Processing times have increased – in some cases dramatically – for most family-based categories and naturalization cases. For example, in CT the I-751 removal of the condition application now takes 18 months instead of 11-13 months and naturalization cases are currently projected at 8.5 to 19 months instead of the 4-6 months previously.

4. DACA Applications and Advance Parole

Ongoing federal litigation in DACA continues to create confusion with regards to DACA applications, and pending litigation means there will likely be changes to the process in upcoming months. At present, USCIS is not considering first-time filings based on DACA, or requests for Advance Parole based on an approved DACA application. It is, however, processing renewals for those who currently have DACA status, as well as accepting initial DACA applications for those who had DACA status in the past. DACA renewal applications should be filed six months before the expiration of current DACA status so as to minimize the likelihood of having a gap in employment authorization.

In conclusion, we invite you to contact us to discuss and carefully plan the impact that these ever-changing immigration policies may have on your status, international travel, or your ability to hire and retain foreign labor. Please note the above-mentioned deadlines by which to act on your applications/petitions.

© Copyright 2018 Murtha Cullina
This post was written by Dana R. Bucin of Murtha Cullina.

Hiring US Citizens Only for ITAR Compliance Can Violate the Immigration and Nationality Act

The Department of Justice (DOJ), Civil Rights Division, announced on August 29, 2018, its civil settlement with the international law firm, Clifford Chance US LLP, for violations of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b, attributable to Clifford Chance’s overly restrictive interpretation of who can work on projects involving data controlled by the International Traffic in Arms Regulations (ITAR).

Clifford Chance, for purposes of conducting a large scale document review involving ITAR controlled data, restricted the project to U.S. Citizens only, based on its good faith belief that only U.S. Citizens could work on ITAR projects. But the ITAR generally allows U.S. Persons to have access to ITAR controlled data, and defines a (natural) “U.S. Person” as “a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)” or “a protected individual as defined by 8 U.S.C. 1324b(a)(3).” See 22 C.F.R. 120.15. Thus the ITAR does not restrict access to U.S. citizens only, but also generally allows access by non-U.S. citizens who fall within the following classes, among others:

  • Nationals of the U.S. (i.e., those born in the “outlaying” possessions of the U.S. meeting specified requirements, or individuals born of a parent who meet specified requirements);
  • Aliens lawfully admitted for permanent residence (i.e., “green card” holders);
  • Certain refugees; and
  • Certain asylum seekers.

According to DOJ, Clifford Chance unlawfully discriminated against persons based on their citizenship by excluding eligible non-U.S. citizens from its ITAR project. DOJ rejected Clifford Chance’s argument that it should be absolved of liability because it acted in good faith (there’s no good faith exception to the prohibition against discrimination under 1324b), and Clifford Chance agreed to pay a $132,000 civil penalty, implement various corrective actions, and allow DOJ oversight for a two-year period.

What does that mean for you? If you hire or contract with U.S. Citizens only for purposes of fulfilling your ITAR obligations, you may be violating the INA. You should review your hiring and contracting processes to make sure that you do not limit hiring or outsourcing to U.S. Citizens only, when ITAR compliance is your justification for denying job opportunities based on citizenship or national origin.

 

© 1998-2018 Wiggin and Dana LLP
This post was written by David A. Ring and Najia S. Khalid of Wiggin and Dana LLP.