Immigration Law Update January 2015

January 2015

President Announces Thaw in Relations With Cuba

On December 17, 2014, President Barack Obama announced a thaw in the United States' relations with Cuba. He noted that decades of U.S. isolation of Cuba have failed to accomplish any U.S. goals.

The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law, including: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.

Also announced was raising remittance levels from $500 to $2,000 per quarter for most donations to Cuban nationals, and other measures to facilitate trade and commerce.

The fact sheet is available here.

U.S. District Court Dismisses Sheriff's Challenge to Obama's Executive Order

On December 23, 2014, Judge Beryl Howell of the U.S. District Court for the District of Columbia denied Maricopa County, Arizona, Sheriff Joseph Arpaio's motion for a preliminary injunction against the United States and federal officials. Sheriff Arpaio's suit alleged that certain immigration policies announced by President Barack Obama on November 20, 2014, are unconstitutional, otherwise illegal, and should be stopped from going into effect. The judge granted the U.S. government's motion to dismiss for lack of subject matter jurisdiction.

Judge Howell noted that the suit "raises important questions regarding the nation's immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration." She said that the key question in this case, however, "concerns the appropriate forum for where this national conversation should occur." She raised the issue of standing, which she noted ensures that courts act as judges rather than policymakers. "The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury-not to engage in policymaking better left to the political branches," she said.

Sheriff Arpaio's suit challenged, among other things, the Obama administration's program launched in 2012 known as Deferred Action for Childhood Arrivals (DACA). The suit also challenged President Obama's recent expansion of DACA and creation of a new program for deferred action for parents of U.S. citizens or lawful permanent residents (DAPA). Judge Howell noted that the executive branch has long used "deferred action" to implement enforcement policies and priorities. " Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States," she added, noting that "[f]or almost twenty years, the use of deferred action programs has been a staple of immigration enforcement."

The court's opinion is available here. The full text of a similar lawsuit filed by more than 20 states. That lawsuit, discussed below, is still pending.

The Obama administration's memoranda and a related White House address announcing the actions are available here. Additional memoranda are available here (modernizing and streamlining the U.S. visa system) and here (establishing a White House Task Force on New Americans).

States, Governors File Suit Against President's Executive Actions on Immigration

Various states and four governors filed suit on December 3, 2014, challenging several of President Barack Obama's recent executive actions on immigration, announced on November 20 and detailed in Department of Homeland Security (DHS) memoranda. The lawsuit singles out a DHS directive on expanding deferred action for childhood arrivals (DACA) for certain individuals who came to the United States as children and creating a new deferred action program for certain parents of U.S. citizens or permanent residents. The lawsuit claims that the directive constitutes a "unilateral suspension of the Nation's immigration laws [that] is unlawful."

The lawsuit contains numerous quotations from President Obama stating that he can't change laws himself and needs Congress to pass immigration reform. The suit notes that later, however, he expanded DACA and said, "I just took an action to change the law." White House spokeswoman Brandi Hoffine responded, "The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and we are confident that the president's executive actions are well within his legal authorities."

Shortly after the mid-term elections in November 2014, President Barack Obama initiated various executive actions on immigration. The actions challenged in the lawsuit include:

* Expanding DACA to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. Under President Obama's executive action, DACA eligibility is expanded to cover all undocumented immigrants who entered the United States before the age of 16, not just those born after June 15, 1981. The entry date is adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two. The memo explaining this action is available here.

* Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), includes individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases. The memo explaining this action is available here.

A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama's legal authority to expand the DACA program and to establish the DAPA program. It is available here.

The full text of the states/governors lawsuit is available here.

The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info, are available here. Additional memoranda are available here (modernizing and streamlining the U.S. visa system) and here (establishing a White House Task Force on New Americans).

DOL Elaborates on Procedures Under Comite de Apoyo Decision RE H-2B Prevailing Wages

In response to inquiries, the Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, No. 14-3557 (3d Cir.). That decision invalidated DOL regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B temporary foreign workers. The DOL stated:

Employers with a pending H-2B prevailing wage request: Employers who have a pending prevailing wage determination request that is based on an employer-provided survey may modify that request to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or a wage based on a Collective Bargaining Agreement (CBA). That request will not be treated as a new filing and the request will be processed based on the original filing date. The OFLC reminded employers that the request must specify precisely which SCA or DBA wage determination is being used or provide a copy of the Collective Bargaining Agreement. In the absence of such a request, the National Prevailing Wage Center (NPWC) will issue the prevailing wage determination based on the Occupational Employment Statistics (OES) mean for the occupation.

Employers who have received an H-2B prevailing wage determination: Employers who have already received a prevailing wage determination based on an employer-provided survey but who have not yet filed their application with the Chicago National Processing Center (NPC) may request a redetermination from the NPWC irrespective of the time limits set forth in 20 CFR § 655.10(g). An employer who has received a prevailing wage determination based on an employer-provided survey may use the survey-based wage rate in its recruiting, the OFLC said. Employers who have filed their application with the NPC, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination (SPWD) based on the OES mean for the occupation, along with the certification. The SPWD will provide the opportunity to seek a redetermination under 20 CFR § 655.10(g). If, upon redetermination, the use of an alternative wage source (SCA, DBA, or CBA) is approved, the employer should return the original certification to the NPC and a new certification will be issued.

The OFLC's December 23, 2014, announcement is available here.

USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have added the Czech Republic, Denmark, Madagascar, Portugal, and Sweden to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year. The notice listing the 68 eligible countries was published in the Federal Register on December 16, 2014.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

The list of 68 countries is (announcement) and here (Federal Register notice).

DOL Announces 2015 H-2A Adverse Effect Wage Rates

On December 19, 2014, the Department of Labor's (DOL) Office of Foreign Labor Certification published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) for each state, based on the Farm Labor Survey conducted by the Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL has determined must be offered and paid by employers to H-2A foreign agricultural workers and workers in corresponding employment for a particular agricultural job and area, so that the wages of similarly employed U.S. workers will not be adversely affected.

The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).

The notice is available here.

USCIS Reminds EB-5 Regional Centers of December 29 Deadline to File I-924As

USCIS recently issued a reminder to all approved EB-5 regional centers with designation letters dated on or before September 30, 2014, that they needed to file Form I-924A, Supplement to Form I-924, for fiscal year 2014 by December 29, 2014.

If a regional center failed to file the I-924A, USCIS will issue a notice of intent to terminate participation in the EB-5 Immigrant Investor Program. If a regional center filed an incomplete Form I-924A, USCIS may issue a notice of intent to terminate participation.

The notice is available here. A related Q&A is available here.

ABIL Global: France

New work permit forms are effective January 1, 2015.

For new work permit forms effective January 1, 2015, the employer abroad, the host company in France, and the employee now must provide additional information, summarized below.

Information Required From the Home Company Abroad

a) Registration number or employer ID number of the home company and the name of the registration authority (e.g., the commercial registry and the chamber of commerce).

b) Date of creation of the company.

c) Name of the legal representative of the home company.

d) Main activity of the home company.

e) For intra-company transferees, website or weblink to the Internet page showing the link between the home company and the French host company plus the date of acquisition or date of creation of the French affiliate company.

f) For the international provision of services, the total cost of the services to be provided and the copy of the service agreement between the employer and the client in France.

g) In the absence of a social security bilateral agreement between the home country and France, registration of the foreign employer with the French social security administration for payment of the French social security contribution. Evidence must include proof of registration with Centre National Firmes Etrangères (CNFE, Foreign Firms National Center) and Humanis International in the work permit application. However, these documents may not be available for the very first work permit application and clarification may be needed on what other documents may be provided in lieu of the registration certificates, such as a sworn statement from the employer.

Information Required From the Host Company in France

a) For intra-company transferees, the role of the French entity in the corporate group and the date on which the French entity came under control of the group or was formed.

b) Details of the agent representing the foreign employer in France for the purpose of co-coordinating the work permit application, and the entity responsible for paying the government fees.

c) In case of regulated activity, the identity of the regulating body, and proof and details of certification.

d) The monthly or annual gross salary applicable for an equivalent position in the host company (or in the sector of activity in case of international provision of services), excluding any payment-in-kind.

Information and Documents Required From the Employee

a) Copy of initial employment contract or, if not available, copy of the initial employment offer letter.

b) Copy of employment certificates from previous employers proving adequate professional experience (does not apply to intra-company transfers and secondments).

As noted above, starting January 1, 2015, work permit applications must be made on new forms. Work permits issued by the authorities before this date remain valid.

As some of the requirements may be difficult to fulfill immediately or in a timely manner, adjustments may be made during an interim period. Stay tuned.

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