Immigration Law Update July 2016

Split Supreme Court Decision Blocks DAPA

In a one-sentence 4-4 split decision on June 24, 2016, U.S. v. Texas, the U.S. Supreme Court let stand lower court rulings that block the Obama administration's plan, known as Deferred Action for Parents of Americans (DAPA), to allow approximately 4 million parents of U.S. citizen children to remain in the United States and obtain work authorization.

President Barack Obama called the decision "heartbreaking" for those affected by the ruling "who made their lives here, who've raised families here, who hope for the opportunity to work, pay taxes, serve in our military, and fully contribute to the country we all love in an open way." Hillary Clinton, presumptive Democratic presidential nominee, said the ruling threw "millions of families across our country into a state of uncertainty." She pledged to "introduce comprehensive immigration reform with a path to citizenship within my first 100 days."

The decision was not expected to lead to any immediate removals due to the Obama administration's enforcement priorities. Secretary of Homeland Security Jeh Johnson said on June 23, 2016, that he was "disappointed" by the Supreme Court's ruling. He noted:

It is important to emphasize that this ruling does not affect the existing DACA [Deferred Action for Childhood Arrivals] policy, which was not challenged. Eligible individuals may continue to come forward and request initial grants or renewals of DACA, pursuant to the guidelines established in 2012.

We are also moving forward on the other executive actions the President and I announced in November 2014 to reform our immigration system. This includes our changes to the Department's immigration enforcement priorities. Through these priorities, we are more sharply focused on the removal of convicted criminals; and threats to public safety and national security, and border security. We have ended the controversial Secure Communities program. We are expanding policies designed to help family members of U.S. citizens and permanent residents stay together when removal would result in extreme hardship. And we are taking several actions to make it easier for international students, entrepreneurs, and high-skilled immigrants to contribute to the U.S. economy.

On the other side, Donald Trump, presumptive Republican presidential nominee, said the decision "blocked one of the most unconstitutional actions ever undertaken by a president." Ken Paxton, Texas' Republican Attorney General, said it was "a major setback to President Obama's attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law."

The Supreme Court's decision is available here. President Obama's statements are available here and also here. Secretary Johnson's statement can be found here. Ms. Clinton's statement can be found here. Mr. Trump's statement can be found here.

House Holds Hearing on H-2B Temporary Foreign Worker Program

The U.S. House of Representatives held a hearing on June 8, 2016, entitled "The H-2B Temporary Foreign Worker Program: Examining the Effects on Americans' Job Opportunities and Wages." Testifying were Michael Cunningham, Executive Director and Secretary/Treasurer, Texas State Building and Construction Trade Council; Meredith Stewart, Staff Attorney, Southern Poverty Law Center; Daniel Costa, Director of Immigration Law and Policy Research, Economic Policy Institute; Stephen G. Bronaers, Partner, Edgeworth Economics; and Steven A. Camarota, Director of Research, Center for Immigration Studies. Presiding was Sen. Chuck Grassley (R-Iowa).

Sen. Grassley noted, among other things, that according to statistics from U.S. Citizenship and Immigration Services (USCIS), as of June 2, 2016, the agency had already approved petitions for 12,727 returning H-2B workers, "with 1,171 potential additional returning workers in the pipeline." That's a potential total, so far, of 13,898 returning workers this fiscal year, he noted. "That number exceeds by almost 75% the Congressional Budget office's estimate of only 8,000 H-2B returning workers this fiscal year," Sen. Grassley said.

The American Immigration Lawyers Association (AILA) released a related statement. AILA President Victor Nieblas Pradis noted, "The H-2B visa program is capped at 66,000 visas per year, and that numerical cap has not once been changed since the visa category was established in 1990, despite changing market demands. Small and seasonal businesses seek qualified American workers to fill seasonal or temporary short-term positions, but when those positions remain unfilled, U.S. employers need the H-2B program to meet their business demands. I very much hope that the hearing today gives a fair shake to this vital program." He added, "Ultimately, however, what would best meet the needs of the U.S. economy is a real essential worker visa, one that would allow a sufficient number of these workers to come to the U.S. and would include an opportunity to apply for permanent status if they so desired. We hope that today's hearing will bring Congress closer to understanding the critical need for a workable essential worker visa."

Sen. Grassley's statement and witness testimony are available here. AILA's statement is available here.

State Dept. Releases DV-2017 Results

The Department of State's Visa Bulletin for July 2016 includes the diversity visa lottery 2017 (DV-2017) results.

The bulletin notes that the Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2017 diversity lottery. Approximately 83,910 applicants have been registered and notified and may now apply for an immigrant visa. Because it is likely that some of the first 50,000 persons registered will not pursue their cases to visa issuance, the State Department noted, this larger figure should ensure that all DV-2017 numbers will be used during fiscal year 2017 (October 1, 2016, until September 30, 2017).

The bulletin explains that applicants registered for the DV-2017 program were selected at random from 12,437,190 qualified entries (19,344,586 with derivatives) received during the application period that ran from October 1, 2015, until November 3, 2015. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly, the bulletin notes. Applicants should follow the instructions in their notification letters.

Registrants living legally in the United States who wish to apply for adjustment of status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the visa numbers have been used, the program for fiscal year 2017 will end. Selected applicants who do not receive visas by September 30, 2017, will derive no further benefit from their DV-2017 registration. Similarly, spouses and children accompanying or following to join DV-2017 principal applicants are only entitled to derivative diversity visa status until September 30, 2017.

Dates for the DV-2018 program registration period will be widely publicized in the coming months. Those interested in entering the DV-2018 program should check the Department of State's Visas webpage here.

The Visa Bulletin for July 2016 includes a chart showing the statistical breakdown by foreign-state chargeability of those registered for the DV-2017 program. It can be found here.

EB-4 Visa Limits Reached for Special Immigrants From Mexico

The Department of State's Visa Bulletin for July 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from Mexico. This means that starting on July 1, 2016, applicants from Mexico who filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, on or after January 1, 2010, cannot obtain an immigrant visa or adjust status until new visas become available.

Mexico has reached its EB-4 visa limit as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 will appear in the Department of State's October Visa Bulletin, which will be published this September.

EB-4 visas are for special immigrants. These are individuals who may be eligible for lawful permanent resident status based on specific classifications, including Special Immigrant Juvenile (SIJ).

The following are details on what this action means to EB-4 applicants from Mexico:

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Petitioners from any country, including Mexico, may continue to file an I-360. There is no annual limit on the number of I 360 petitions USCIS may approve.

Form I-485, Application to Register Permanent Residence or Adjust Status. The final action date is January 1, 2010. This final action date will became effective July 1. USCIS will accept all properly filed I-485 submissions under the EB-4 classification until June 30, 2016, and will continue to adjudicate applications while visas remain available.

For those who file Form I-485 under the EB-4 classification on or after July 1, 2016:

* USCIS will process and make a decision on the I-485 only if the applicant filed his or her I-360 petition before January 1, 2010, and the I-360 is ultimately approved.

* USCIS will reject and return other I-485 applications but will continue to process I-360 petitions (even if submitted together with an I-485 that gets rejected).

For EB-4 applicants from other countries, as of July 1, 2016, there is a final action date of January 1, 2010, for special immigrant applicants for adjustment of status from El Salvador, Guatemala, and Honduras. Applicants from El Salvador, Guatemala, and Honduras should refer to Employment-Based Fourth Preference (EB-4) Visa Limits Reached for Special Immigrants from El Salvador, Guatemala, and Honduras. It can be found here.

The announcement is available here. The Visa Bulletin is available here.

USCIS Celebrates SAVE's 30th Anniversary, Launches Redesigned Website

On June 23, 2016, U.S. Citizenship and Immigration Services (USCIS) celebrated the 30th anniversary of the Systematic Alien Verification for Entitlements (SAVE) program by redesigning its website, among other things. USCIS noted that SAVE has 1,138 registered agencies with more than 75,000 users.

USCIS said SAVE's redesigned website includes enhanced graphics, an improved navigation menu, and new search features. The redesign "makes it easier for benefit-granting agencies, prospective agencies and benefit-seeking applicants to learn about the immigration status verification process and services," USCIS noted. A new "History & Milestones" page outlines SAVE's enhancements over the years.

The USCIS announcement is available here. A related announcement is available here. The new "History & Milestones" page is available here. USCIS Director Leon Rodriguez released a new video on YouTube about the SAVE program, which can be found here.

Justice Dept. Settles Immigration-Related Discrimination Claims Against 121 Residency Programs and AACPM

The Department of Justice (DOJ) announced on June 20, 2016, that it reached agreements with 121 podiatry residency programs and the American Association of Colleges of Podiatric Medicine (AACPM) to resolve claims that they discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act.

DOJ's investigations found that between 2013 and 2015, the programs and AACPM created and published discriminatory postings for podiatry residents through AACPM's online podiatry residency application and matching service. Specifically, DOJ said hundreds of job postings limited podiatry residency positions to U.S. citizens. Several work-authorized non-U.S. citizens stated that they were discouraged or deterred from applying to residency programs because of the citizenship requirements, and the agency concluded that two lawful permanent residents were denied consideration for positions because of unlawful citizenship requirements.

Under the settlement agreements, the programs must remove citizenship requirements from podiatry residency postings except where required by law, train staff involved in the advertising and hiring of podiatric residents, and ensure that future residency postings are reviewed by staff trained in equal employment opportunity laws or by legal counsel. Some of the settlements also require the programs to pay civil penalties from the programs totaling $141,500.

The settlement with AACPM requires it to pay $65,000 in civil penalties, train its staff on the anti-discrimination provision of the INA, and ensure that all participating programs receive such training before they may use AACPM's online system to advertise residency positions. The settlement also requires AACPM to refund the fees that the charging party paid to use AACPM's residency application and matching system.

The agency began its investigations of the programs and AACPM in 2015 after receiving a charge against AACPM from a podiatry medical student with lawful permanent residence. The charge alleged that AACPM published a series of podiatry residency job announcements that unlawfully restricted positions to U.S. citizens through AACPM's online application service. The charge further claimed that AACPM used its online service to collect citizenship status information from residency applicants and share that information with residency programs.

DOJ noted that unless a legal exception applies, jobs may not be advertised as available only to U.S. citizens because doing so excludes other work-authorized individuals, such as U.S. nationals, lawful permanent residents (green card holders), asylees, and refugees.

The announcement is available here.

ABIL Global: Canada

Several developments have been announced.

Many are being caught unprepared by new primary inspection tools. Beginning in November 2015, the Canada Border Services Agency (CBSA) updated its frontline systems so that CBSA officers working the Primary Inspection Line (PIL) at border crossings now have immediate access to the Canadian Police Information Centre (CPIC) database. Previously, these frontline officers only had access to an immigration-related database, and an individual seeking to enter Canada would need to be referred to secondary inspection for an Officer to run his or her information through CPIC.

The introduction of this change has affected the information available to PIL CBSA officers, and has the potential to affect any foreign national who has ever been arrested, charged, or convicted of a crime inside or outside of Canada. In the first month of operation, this procedural change flagged 1,800 cases where travelers were identified as having outstanding warrants against them.

All foreign nationals seeking to enter Canada who have been subject to an arrest, charge, or conviction in or outside of Canada need to proactively consider if they are inadmissible to Canada and be prepared to address any issues, including disclosing their past history. Of importance is the fact that the CPIC information is not always up-to-date, so even if the matter was resolved without a conviction (i.e., dismissed or finding of not guilty), the onus is on the foreign national to satisfy the CBSA officer that he or she is admissible. Depending on the nature of the charge or conviction, these foreign nationals might find that prior incidents render them inadmissible to Canada. Failure to disclose the information on entry can result in a finding of misrepresentation, and could lead to a five-year ban on entering Canada, or refusals of future immigration applications. Even without the CPIC system, it is imperative that a foreign national disclose any past infractions, from driving while impaired to issues of criminality.

There are ways to overcome inadmissibility based on a past criminal activity. These include a discretionary application known as a Temporary Resident Permit or a finding of "deemed rehabilitation," which can be executed directly at the port of entry, or a more involved application for rehabilitation that typically needs to be filed at a Canadian embassy or consular office outside Canada before entry.

Administrative monetary penalties are introduced for employers failing to comply with rules for foreign workers. Canada has introduced a new system of financial penalties and other consequences for employers found to be non-compliant with the conditions of the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). New regulations introducing fines known as Administrative Monetary Penalties (AMPs), and bans on hiring foreign workers for whom work permits are required, came into force on December 1, 2015.

The new system takes various factors into consideration, including the nature and severity of the violation, the employer's compliance history, and the size of the employer. A points system is used to determine the amount of any applicable fines and the length of any applicable bans. In the spirit of encouraging compliance with program conditions, employers are encouraged to voluntarily disclose non-compliance and may receive reduced consequences for doing so, depending on the circumstances.

Therefore, it is particularly important that employers ensure their employees' working conditions (such as name of employer, work location, occupation, and wage) remain the same as those outlined in the Labour Market Impact Assessment (LMIA) approval letter or, in the case of an LMIA-exempt position, that the name of the employer, work location, and occupation match those outlined in the offer of employment provided to Immigration, Refugees and Citizenship Canada (IRCC), formerly Citizenship and Immigration Canada. Note, however, that IRCC may see a significant change in wages as an indication that the occupation has changed, and additional information establishing that this is not the case could be required.

The potential consequences for employers are significant: up to $1,000,000 in fines and a permanent ban on hiring foreign workers for whom work permits are required. Consequences may be reduced if employers voluntarily disclose non-compliance and provide justification, especially if employers are able to demonstrate that they were proactive in reporting or addressing the discrepancy or violation. Employers are encouraged to take the following steps:

1. Identify all foreign workers in the organization with Canadian work permits.

2. For each foreign worker with an LMIA-based work permit, compare his or her current occupation (job title and duties), wages (including benefits and other compensation), and work location with what was indicated on the LMIA approval letter. Identify any discrepancies and consult with immigration counsel on whether to report these discrepancies to Service Canada as not substantially the same terms as those initially approved.

3. Review each other Canadian employer-specific work permit to determine if the employer, occupation (job title and duties), and work location are consistent with what is listed on the work permit and with what was submitted to IRCC at the time the work permit application was made. Identify any discrepancies and consult with immigration counsel on whether an application to vary and change the work permit should be made.

4. Set up a flag in employment records for all employees holding employer-specific Canadian work permits as a reminder to the human resources team that any changes in wage, occupation, or work location should be reviewed with immigration counsel.

5. Educate human resources personnel and employees with Canadian work permits on the potential implications of changing wages, location of work, or job duties.

6. Consider implementing a workplace harassment policy, harassment awareness training, and a mechanism for employees to report concerns.

7. Take steps to review and ensure compliance with provincial and federal legislation regulating employment and the recruitment of employees.

8. Develop an immigration strategy to transition foreign workers to Canadian permanent residence.

9. Take steps to ensure that payroll and recruiting records for workers holding Canadian work permits are maintained for 6 years.

As of October 26, 2015, employers offering employment to LMIA-exempt foreign nationals must submit compliance information through the new IRCC Employer Portal. The IMM 5802 form (Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA)) that was in place since February 21, 2015, is no longer accepted. For a foreign worker employed by a non-Canadian company, it is unclear whether the Canadian company receiving the benefit of the work or the foreign worker's non-Canadian employer is responsible for filing the compliance form and ultimately liable if there is a finding of non-compliance. Recently, IRCC stated that the Canadian company receiving the benefit of the work performed by the foreign worker is responsible for filing the compliance form. Accordingly, the Canadian company will be held liable if there is a finding of non-compliance.

Many Canadian companies are reluctant to assume responsibility for filing the compliance form for their foreign vendors or foreign vendors' employees. Those that are prepared to file may seek an indemnification from the foreign vendor to mitigate against the foreign vendor's not keeping payroll records or failing to pay the foreign worker the wage offered at the time the work permit was issued. In other instances, the foreign vendor may be unwilling to provide the Canadian company with details of wages paid to their employees, which are necessary for the Canadian company to file the compliance form. Vendors typically want to avoid the Canadian company's knowing the foreign vendor's profit margins. Consequently, this new compliance scheme may have a chilling effect on trade relationships between Canadian and foreign vendors providing services. The foreign national cannot proceed with a work permit application at a port of entry or through a visa office without this compliance requirement first having been completed online.

Given the potential severity of these new penalties, it is imperative that employers provide accurate and complete information on all LMIA and LMIA-exempt applications.

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