Immigration Law Update February 2016

DHS Revises Regs on H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants

In a final rule effective February 16, 2016, the Department of Homeland Security (DHS) is amending its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1), and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, the final rule amends DHS regulations to:

* Include H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that
H-1B1 and principal E-3 nonimmigrants can work for a sponsoring employer without having to apply separately for employment authorization;

* Authorize continued employment with the same employer for up to 240 days for an H-1B1 or principal E-3 nonimmigrant whose status has expired while his or her employer's timely filed extension of stay request remains pending;

* Provide this same continued employment authorization for a CW-1 nonimmigrant whose status has expired while his or her employer's timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending;

* Include principal E-3 and H-1B1 nonimmigrant classifications in existing regulations on the filing procedures for extensions of stay and change of status requests; and

* Allow employers petitioning for EB-1 outstanding professors and researchers to submit initial evidence comparable to the other forms of evidence already listed in 8 CFR § 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

DHS said the final rule does not impose any additional costs on employers, workers, or any governmental entity. Further, DHS noted, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants "makes them consistent with other similarly situated nonimmigrant worker classifications." Additionally, this rule "minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3, and CW-1 nonimmigrant workers." Finally, DHS expects that this change "will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions."

The DHS announcement is available here. The final rule is available here.

Court Delays STEM OPT Ruling, Preserving Current STEM OPT Program

The U.S. District Court for the District of Columbia has accepted the Department of Homeland Security's (DHS) request to modify the court's stay of its ruling that the agency invalidly issued its 2008 rule on STEM OPT (optional practical training for students in science, technology, engineering, and mathematics). The court modified the stay to give DHS an additional 90 days, until May 10, 2016, to re-issue the STEM OPT rule using valid notice-and-comment procedures.

DHS issued a proposed rule on October 19, 2015, and received more than 50,000 comments. The agency persuaded the court that it was working diligently to evaluate those comments and promulgate a final rule, but was unable to do so in time for a new rule to be effective by the February 12, 2016, deadline. The court modified its order to leave the current STEM OPT rule in effect until the new May 10, 2016, deadline.

DHS argued that it needed only the 90-day extension and that it would be able to publish the final rule in time to meet that deadline. The court said it would grant no further extensions.

The plaintiff, Washington Alliance of Technology Workers, said it planned to appeal the extension. The D.C. court's opinion from January 23, 2016, is available here. Its opinion from August 12, 2015 is available here.

OSC Responds to Query on Steps to Follow After Internal I-9 Audit

The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to an attorney who asked how to advise her client following an internal audit of the client's I-9 employment authorization verification forms. The attorney asked specifically what steps the client should take with respect to permanent resident cards (Forms I-551) that the attorney found doubtful, and whether the attorney was obligated to train the client on what to look for in a valid green card or whether such training would be outside the scope of what the employer should be trained to do, since that could take the employer beyond the "reasonable person" standard.

OSC noted that it cannot give an advisory opinion on any particular set of facts, only general guidelines. OSC said that to prevent discrimination, an employer or representative conducting an internal I-9 audit should conduct it in a consistent manner, treating similarly situated employees in a similar manner. Employees should not be treated differently based on citizenship, immigration status, or national origin. For example, an employer should apply the same level of scrutiny to all employees' I-9 documentation and not single out for review the I-9 forms of employees from a particular country or immigration status.

In response to the attorney's specific question about doubtful green cards, OSC referred to joint guidance recently issued by OSC and U.S. Immigration and Customs Enforcement (ICE), which reminds employers that they are required to accept original I-9 documentation that "reasonably appears to be genuine and to relate to the individual presenting the documentation." If an employer conducting an internal I-9 audit concludes, based on a photocopy, that the document does not appear genuine or reasonably related to the employee, the employer should address its concern with the employee and provide the employee an opportunity to choose a different document to present from the I-9's Lists of Acceptable Documents. However, OSC noted, the employee can also give the employer the originally presented document and, if the employer determines that it appears genuine and reasonably related to the employee, the employer must accept that document and not request additional documents. If the employer, on the other hand, determines that the original document does not appear genuine or reasonably related to the employee, "the employer should provide the employee with an opportunity to choose a different document to present from the Lists of Acceptable Documents."

Regarding whether the attorney's firm must train her client on "what to look for in a valid green card," OSC directed her to ICE guidance.

The OSC's response is available here. The joint OC-ICE guidance referenced in the response, "Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits," is available here.

House Holds Oversight Hearings on USCIS, EOIR

The U.S. House of Representatives' Judiciary Committee held oversight hearings in December 2015 on U.S. Citizenship and Immigration Services (USCIS) and on the Executive Office for Immigration Review (EOIR). Leon Rodriguez, USCIS Director, testified at the USCIS hearing. Juan Osuna, EOIR Director, testified at the EOIR hearing.

At the USCIS oversight hearing, Mr. Rodriguez noted that his agency's priorities include, in addition to safety and security issues, implementing the executive actions on immigration announced in November 2014. Those include reducing unauthorized immigration at the border; prioritizing removal of the most dangerous; improving the legal immigration system for families, employers, students, entrepreneurs and workers; and, on a case-by-case basis, considering for deferred action certain undocumented immigrants under two initiatives-Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and expanding the population of individuals eligible for Deferred Action for Childhood Arrivals (DACA). Mr. Rodriguez noted that while DAPA and expanded DACA are on hold pursuant to a court injunction, USCIS and its partners in the Department of Homeland Security (DHS) and other departments have been working to implement the other parts of the executive actions. Mr. Rodriguez said that other top priorities were effective management of the Refugee Admissions Program, continuing modernization of USCIS business and applicant interaction processes and service, anti-fraud and national security screening, and other efforts.

At the EOIR oversight hearing, Mr. Osuna noted that previous budget cuts led to backlogs of more than 457,000 immigration cases across the United States as of the end of fiscal year (FY) 2015, which was exacerbated by the 2014 influx of border-crossers. Mr. Osuna said a number of new immigration judges are being hired to deal with the backlogs, as a result of new appropriations. Among other things, he also mentioned the installation of new video equipment that allows immigration judges to hear some cases remotely.

Mr. Osuna said that after taking into account attrition through the end of FY 2015, EOIR has increased the total number of immigration judges for the first time since FY 2011, and aggressive hiring efforts continue. He noted that a total of 23 new immigration judges have entered on duty since November 2014, and that as of November 15, 2015, the Attorney General had selected another 25 new judges, who are now going through the required background and security checks before they can start hearing cases. Another two dozen immigration judge candidates, he noted, are going through the final stages of the hiring process. Mr. Osuna said that all of these new judges "will greatly assist in reducing the pending caseload when they arrive in immigration courts over the coming months."

Mr. Rodriguez's testimony from the USCIS hearing. A video of the full hearing, including questions and answers, is available here. Mr. Osuna's testimony video of the full hearing, including questions and answers.

Visa Bulletin Notes Statistics on Applicants in Limited Immigrant Categories for Consular Processing

The Department of State's Visa Bulletin for February 2016 notes that the National Visa Center (NVC) has provided totals of applicants registered in the various numerically limited immigrant categories for processing at consular posts as of November 1, 2015.

In October, the Department of State asked the NVC at Portsmouth, New Hampshire, to report the totals of applicants on waiting lists in the various numerically limited immigrant categories. Applications for adjustment of status under INA § 245 pending at U.S. Citizenship and Immigration Services (USCIS) offices are not included in the tabulation of this immigrant waiting list data. As such, these figures only reflect petitions the Department of State has received, and do not include the significant number of applications held at USCIS offices.

The Visa Bulletin for February 2016 is available here. The report is available here.

USCIS Issues Reminder About Immigration Relief Measures for Victims of Severe Weather

USCIS issued a reminder on December 31, 2015, about immigration relief measures "that may help people affected by unforeseen circumstances, such as the recent severe weather and flooding in areas of the Southern and Midwestern United States."

USCIS said these measures may be available upon request:

* Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired
* 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 waivers due to an inability to pay
* Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence, or respond in a timely manner
* Replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card)
* Rescheduling of a biometrics appointment

USCIS said that when making a request, the affected individual should explain how the severe weather created a need for the requested relief.

For more information, click here.

USCIS Updates Request for Premium Processing Service Form

U.S. Citizenship and Immigration Services (USCIS) has posted an update to Form I-907, Request for Premium Processing Service. The new edition is dated 12/11/15. The 01/29/15 version will also still be accepted.

Employers may use the I-907 to request faster processing of certain employment-based petitions and applications. Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Worker, have been designated for premium processing service, for example. Not all designated classifications within these forms are eligible, however, and the R-1 classification is only eligible after a successful onsite inspection at the place of employment.

The form is available here. USCIS's Forms Updates page is available here. For more information on categories eligible for premium processing, click here.

DHS Secretary Releases Statement on Southwest Border Security in Light of Removals

Department of Homeland Security (DHS) Secretary Jeh Johnson released a statement on January 4, 2016, on southwest border security, in light of stepped-up removal operations underway.

Secretary Johnson noted that in the spring and summer of 2014, a significant spike occurred in families and unaccompanied children from Central America attempting to cross the U.S. southern border without authorization. In response, he noted, DHS took a number of actions in collaboration with the governments of Mexico, Guatemala, Honduras, and El Salvador, and the numbers declined dramatically. In FY 2015, he said, the number of apprehensions by U.S. Border Patrol of those attempting to cross the southern border without authorization decreased to 331,333. With the exception of one year, this was the lowest number of apprehensions on the southern border since 1972, he noted. In recent months, however, the rate of apprehensions on the southern border has begun to climb again, he said.

Secretary Johnson noted that the focus of the "operations" were adults and their children who (i) were apprehended after May 1, 2014, crossing the southern border illegally, (ii) have been issued final orders of removal by an immigration court, and (iii) have exhausted appropriate legal remedies, and have no outstanding appeal or claim for asylum or other humanitarian relief under U.S. laws. As part of these operations, he said, 121 individuals were taken into custody, primarily from Georgia, Texas, and North Carolina, and they are now in the process of being removed from the United States and repatriated. Most of these families are first being transported to one of ICE's family residential centers for temporary processing before being issued travel documents and boarding a return flight to their home countries.

He said a number of precautions were taken as part of these operations. Among other things, ICE "exercised prosecutorial discretion in a number of cases for health or other personal reasons," he noted.

Various individuals and groups have criticized the controversial removal operations, including the Congressional Hispanic Caucus. Chairwoman Linda Sanchez (D-Cal.) said, "Our federal government should not be separating parents from their children. As the mother of a young son, it's easy for me to imagine how traumatizing having ICE agents storm someone's home and tearing families apart can be for a young child. Invading homes is inhumane and adds to the trauma of these families fleeing violence and oppression." And Rep. Luis Gutierrez (D-Ill.) said, "We hear that children are not going to school and parents are not going to work out of fear. Not even a week into the New Year and 2016 has turned into one of fear and hiding. But let us be very clear. Deporting families will not resolve the violence and corruption that push people from El Salvador, Guatemala, and Honduras to risk assault, rape, and murder to seek refuge in the United States."

Presidential candidate Hillary Clinton said she "believes we should not be conducting large-scale raids and roundups that sow fear and division in our communities." On the Republican side, however, candidate Donald Trump took credit for the Obama administration's decision to conduct the raids.

On January 15, 2016, protesters came to the White House. A group of Central American organizations posted a statement against the "inhumane" raids here. The Guatemalan Foreign Relations Ministry released a list of steps in Spanish for migrants in the United States who encounter U.S. immigration officials, found here,

and the Guatemalan and Salvadoran governments released statements against the raids. The Honduran government, however, reportedly did not join in the protests.

There have been business ramifications too, as people across the country stay inside due to fears and perceptions of random targeting. According to news reports, for example, shop owners in Wheaton, Maryland, have complained that it has become difficult to cover rent and other bills because many fewer Latinos are out shopping. One owner of a popular Mexican-Salvadoran restaurant said that normally she sees around 300 customers per day but now she is only getting about 20. "Customers were telling me that the rumor was, 'Don't come to Wheaton. ICE is in the neighborhood," she said. Another shop owner said that his business income dropped by 50 to 60 percent since the beginning of 2016.

Montgomery County, Maryland, which includes Wheaton, said that local police will not cooperate with the raids. Montgomery County Executive Isiah Leggett called the raids "ill-founded and counter-productive." County leaders expressed concerns that people are staying home from work and school, and are afraid to call the police when a crime is committed. On the other side, Corey Stewart, the board chair of Prince William County, Virginia, who is the leader of Mr. Trump's campaign in Virginia, said, "I'm going to do the very best that I can to encourage illegal aliens who want to commit crimes to leave Prince William County, in fact to leave Virginia all together, [and] go up to Maryland, because you're welcome up there."

Secretary Johnson's statement is available here.

DHS Extends and Redesignates TPS for South Sudan

The Department of Homeland Security (DHS) announced on January 25, 2016, that it is extending the designation of South Sudan for temporary protected status (TPS) for 18 months, from May 3, 2016, through November 2, 2017, and redesignating South Sudan for TPS for 18 months, effective May 3, 2016, through November 2, 2017.

DHS said it determined that an extension of the current designation and a redesignation of South Sudan for TPS are warranted because the ongoing armed conflict and extraordinary and temporary conditions that prompted the 2014 TPS redesignation have persisted, and in some cases deteriorated, and would pose a serious threat to the personal safety of South Sudanese nationals if they were required to return to their country. Although the parties to the conflict signed a peace agreement in August 2015, violence persists in many parts of the country, and the implementation of the peace agreement is halting to date, DHS noted.

The notice, from U.S. Citizenship and Immigration Services (USCIS), states that the extension allows currently eligible TPS beneficiaries to retain TPS through November 2, 2017, so long as they otherwise continue to meet the eligibility requirements for TPS. The redesignation of South Sudan allows additional individuals who have been continuously residing in the United States since January 25, 2016, to obtain TPS if otherwise eligible.

DHS also set forth procedures necessary for eligible nationals of South Sudan (or individuals having no nationality who last habitually resided in South Sudan) either to: (1) re-register under the extension if they already have TPS and to apply for renewal of their employment authorization documents (EADs) with USCIS; or (2) submit an initial registration application under the redesignation and apply for an EAD.

For individuals who have already been granted TPS, the 60-day re-registration period runs from January 25, 2016, through March 25, 2016. USCIS will issue new EADs with a November 2, 2017, expiration date to eligible South Sudan TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time frames involved with processing TPS re-registration applications, DHS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on May 2, 2016. Accordingly, DHS is automatically extending the validity of EADs issued under the TPS designation of South Sudan for 6 months, through November 2, 2016. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the employment eligibility verification (Form I-9) and E-Verify processes.

Under the redesignation, individuals who currently do not have TPS (or an initial TPS application pending) may submit an initial application during the 180-day initial registration period that runs from January 25, 2016, through July 25, 2016. In addition to demonstrating continuous residence in the United States since January 25, 2016, and meeting other eligibility criteria, initial applicants for TPS under the redesignation must demonstrate that they have been continuously physically present in the United States since May 3, 2016, the effective date of the redesignation of South Sudan.

Initial TPS applications that were filed under South Sudan's 2011 designation or the 2013 or 2014 redesignations and remained pending on January 25, 2016, will be treated as initial applications under this redesignation. Individuals who have a pending initial South Sudan TPS application do not need to file a new Application for TPS (Form I-821). DHS provided additional instructions in the notice for individuals whose TPS applications remain pending and who would like to obtain an EAD valid through November 2, 2017.

The notice is available here.

New York Immigration Attorney Arrested for Immigration Fraud, Aggravated Identity Theft

U.S. Citizenship and Immigration Services (USCIS) announced on January 15, 2016, that it played a "critical role" in an investigation leading to the arrest of New York attorney Gnoleba Seri for immigration fraud and aggravated identity theft. Homeland Security Investigations arrested Mr. Seri the same day in New York.

According to the complaint against Mr. Seri, between October 2012 and April 2015, he allegedly engaged in a scheme to use personal information contained in legitimate immigration documents for fraudulent purposes. In his role as a licensed immigration attorney, the complaint alleges, Mr. Seri submitted falsified and forged I-864 forms (affidavits of support for those seeking immigrant visas) in support of his clients' applications for immigration visas and legal permanent resident status. Specifically, USCIS said, Mr. Seri received legitimate I-864 forms, tax information, pay stubs, and W-2 forms from individuals sponsoring his clients, then fraudulently submitted those documents with applications for other clients. USCIS said he submitted I-864 forms that listed individuals as financial sponsors who had never met the people they purportedly had agreed to sponsor. Those I-864 forms included the sponsors' real names, identifying information, financial information, and forged signatures. The fraudulent and forged forms all listed Mr. Seri as the preparer and many were notarized by him.

Mr. Seri was charged with one count of visa fraud, which carries a maximum sentence of 10 years in prison; one count of aggravated identity theft, which carries a mandatory consecutive minimum sentence of two years in prison; and one count of mail fraud, which carries a maximum sentence of 20 years in prison.

The USCIS announcement is available here.

Supreme Court Agrees to Hear DAPA Case

The U.S. Supreme Court has agreed to rule on a challenge to President Obama's "Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)" program, in U.S. v. Texas, No. 15-674. Most recently, in November 2015, the U.S. Court of Appeals for the Fifth Circuit upheld an injunction based on insufficient notice and opportunity for public comment, preventing the program from proceeding until the legal matter could be addressed. The appeals court also said that President Obama had exceeded his statutory authority.

In an unusual move, the Court has asked the parties to the case whether President Obama violated his constitutional obligations to enforce U.S. laws-a question that goes to the heart of the scope of presidential power. Also at issue is whether the complaining states have standing to sue the federal government. The states argue that they would suffer direct and concrete injury in millions of additional dollars expended if DAPA goes forward; for example, Texas would have to provide driver's licenses to program beneficiaries.

According to reports, the case is expected to be argued in April and decided in June.

A brief submitted on behalf of the Obama administration is available here. The states' brief is available here. The Fifth Circuit's opinion is available here. The opinion granting a preliminary injunction, by the U.S District Court for the Southern District of Texas, Brownsville Division can be found here.

ABIL Global: China

Companies filing for work permits in Beijing must receive preapproval

As of January 4, 2016, companies sponsoring work permit applications and Expert Certificates in Beijing must receive preapproval through online certification with the Beijing Labor Bureau. This includes applications for short-term work authorization, employment licenses, work permits (including permits for Hong Kong, Taiwan, and Macao nationals), and expert certificates.

Sponsoring companies must apply for and activate a digital certificate with the Labor Bureau online. The Labor Bureau will review the application and schedule an interview for the sponsor to submit the required documents in person.

This is expected to increase the application time for a work permit in Beijing. It is recommended that sponsoring companies register with the Labor Bureau as soon as possible to avoid delays in the work permit process.

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