USCIS Requests for Evidence to Petitioners Before Application Denials to Become Discretionary

As of September 11, 2018, immigration officers will have more discretion to issue petition and application denials without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs).

This is yet another of the new policies in the wake of the Buy American, Hire American Executive Order (BAHA) that are making it harder to obtain immigration benefits.

USCIS Director L. Francis Cissna noted that this change in policy was “long overdue,” that predicts it will “discourage frivolous filings and skeletal applications that are used to game the system” and ultimately improve USCIS efficiency.

Previously, the policy on “initial” denials was that they should not be issued unless there was “no possibility” of approval. Under the new policy, officers have “full discretion” to issue denials when they deem it appropriate. If the officer believes that all initial evidence has not been submitted, a denial may be issued without giving the petitioner or applicant an opportunity to explain or submit additional documentation. A denial could be issued even in cases where USCIS itself has simply missed or misplaced some of the submitted documentation. This, in combination with the USCIS’ new policy of issuing NTAs with denials when the foreign national has no other underlying status, is not only harsh, but punitive.

Whether these new policy guidances will survive expected legal challenges is yet to be seen. Jackson Lewis will continue to provide updates as more information becomes available.

 

New USCIS Policy Guidance Emphasizes Initiating Removal, Deportation Cases

USCIS may be issuing Notices to Appear (NTAs) in business immigration cases due to a new policy guidance. NTAs are the initial charging documents in a removal or deportation case.

USCIS grants and denies immigration benefits, but it will be more directly involved in enforcement now. NTAs are served on immigrants or their attorneys. They generally set out the charges and may include the date, time, and location where the immigrant must appear for what is usually a Master Calendar hearing. At that hearing, the Immigration Judge (IJ) often will take the charged party’s plea and schedule the case.

According to the new policy guidance, USCIS will issue NTAs where:

  • Fraud or misrepresentation is substantiated;
  • An applicant is convicted of, charged with, or has committed acts chargeable as criminal offenses;
  • Naturalization cases (N-400 applications) are denied on “good moral character” grounds because of a criminal offense; and
  • An application or petition is denied leaving the applicant unlawfully present in the U.S.

This last ground is the one most likely to arise in business immigration cases. It would cover, for instance, employees who have long-pending extensions of stay denied after their underlying status expires. It also would cover employees who have I-140s and their concurrent I-485s denied if their underlying nonimmigrant status has elapsed.

In the past, in these situations, the employees were advised by the USCIS that they had to leave the U.S., but deportation proceedings through the issuance of an NTA was not immediately initiated. Beyond the fact that issuing more NTAs will lead to even greater backlogs in the already crammed dockets of U.S. immigration courts, once an NTA is issued, there will be severe consequences.

The foreign national must remain in the U.S. (probably without work authorization) until the hearing, to avoid becoming subject to a 5-year bar on re-entry. During this waiting period, however, the foreign national will be accumulating unlawful presence and, depending upon the length of the wait, could become subject to a 3- or 10-year bar on re-entry based on this accrual. The foreign national might be able to obtain a waiver of the 5-year bar and, if the case is ultimately dismissed, any unlawful presence would be wiped out, but the risks are there.

USCIS Director L. Francis Cissna explained the new policy:

“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it.”

Means of dealing with this latest assault on business immigration may include early extension and green card applications, appeals and litigation, as well as more consistent use of premium processing. Jackson Lewis attorneys are monitoring this policy change as it is implemented and are available to assist you in developing appropriate strategies and options.

Healthcare Implications of Supreme Court’s Decision on President’s Travel Ban

Now that the U.S. Supreme Court has upheld President Donald Trump’s Travel Ban in Trump v. Hawaii, it is important to think about some of the consequences the ban will have on various industries that rely on employing individuals from the affected countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Healthcare is one of those.

The U.S. is already facing shortages of doctors, nurses, and home health aides – especially in more rural areas of the country. The Migration Policy Institute has reported that 30% of all physicians and surgeons are immigrants. Syria and Iran rank 6th and 10th, respectively, of the top 10 countries that “supply” these doctors.

The Association of American Medical Colleges (AAMC), joined by more than 30 other organizations, filed an amicus brief in Trump v. Hawaii supporting their shared view that “[i]nternational health professionals provide essential care in teaching hospitals and their communities, particularly for rural and underserved populations,” and that excluding them “compromises the health security of the nation.” Certain specialties are more heavily populated by foreign-born physicians: geriatric medicine (50%), nephrology (almost 50%), internal medicine (close to 40%), and psychiatry (30%). There is some agreement among those in the industry that these specialties are less attractive to U.S.-born medical students because these fields are less financially lucrative, particularly when the jobs are outside of urban centers. There has been recent particular focus on this trend in psychiatry.

Although the Travel Ban has waiver provisions that theoretically would allow qualified physicians with job offers to apply for and receive visas and enter the U.S., as pointed out by Justice Stephen Breyer in his dissent in Trump v. Hawaii, the waivers are hard to come by and issued unpredictably. Beyond that, Travel Ban 3.0 and its previous iterations have had a chilling effect. Physicians from the affected countries who want to come to the U.S. to pursue their clinical medical training and remain after completion of that training are concerned about whether they can really hope to have a future in the U.S. Questions include:

  • Will they be able to enter and then travel freely?
  • Will their families be able to join them?
  • Will they be separated for long periods of time?

Related, hospitals and clinics are concerned about offering positions to these physicians for similar reasons. The National Resident Matching Program (the “Match”) is the national mechanism through which medical school graduates, whether from U.S. or foreign medical schools, who aspire to do their training in the U.S. rank their chosen graduate medical education programs at which to train. Through that process, medical school graduates ultimately match with training programs, which also rank their chosen or preferred candidates, and prepare to enroll as trainees in those programs. Employers are thus concerned that they could go through the annual Match, plan for the hiring of foreign medical graduates in their training programs, only to later be faced with a situation where those graduates cannot enter the U.S. to start working in their programs.

Of course, at any time, the Administration can remove countries from the Travel Ban list or add countries to that list, thus creating further uncertainty for employers and prospective immigrants.

Please reach out to your Jackson Lewis attorney if you have questions about how the Travel Ban may affect your workforce and the exemptions and waivers that may be available.

Pressure Mounting in Canada to End Canada-U.S. ‘First Safe Country’ Refugee Agreement

There is currently a debate in Canada regarding the pros and cons of the bilateral Safe Third Country Agreement (STCA). When the number of individuals leaving the U.S. to seek asylum in Canada increased in September 2017, questions about the agreement’s sustainability arose.

STCA was established in 2004 between the U.S. and Canada proving that refugees must seek asylum in the first “safe country” in which they arrive. This means that Canada may turn back those seeking asylum who arrive at land ports of entry from the U.S. and vice versa. There are some exceptions; for example, this agreement does not apply to individuals who arrive between ports of entry. In order to discourage individuals from making dangerous crossings between ports of entry, and to limit the number of asylum seekers, Canada has considered amending the STCA so that it would apply to anyone crossing the border. Since 2017, approximately 26,000 people have crossed the land border into Canada illegally – avoiding the strictures of the STCA.

In April 2018, the Canadian government renewed discussions with the U.S. Department of Homeland Security about amending the STCA. Since then, the STCA has become more controversial in Canada. Conservatives still want to limit the number of asylum seekers, but other, more liberal critics are concerned about sending refugees back to the U.S.

The Canadian Immigration and Refugee Protection Act requires a continual review of countries designated as safe third countries to ensure that those countries continue to meet certain humanitarian standards. The Canadian government website states: “Only countries that respect human rights and offer a high degree of protection to asylum seekers may be designated as safe third countries.” In response to the separation of children from their parents at the U.S. southern border, former-Canadian Foreign Minister and now-Chair of the World Refugee Council at Canada’s Center for International Governance Innovation, Lloyd Axworthy, has stated: “Trump policies that separated children from their families at the Mexican border has added to the real sense of unease and opposition to the agreement . . . .” The new U.S. policy of no longer providing asylum in cases of domestic abuse and gang violence also has increased opposition because it is incomparable to Canadian law.

The Canadian Immigration Minister, Ahmed Hussen, reported that the government is monitoring the situation and that Canada “will continue to be a country that is open to refugees and protected persons.” Some observers believe that the ongoing NAFTA discussions and the current tensions between the U.S. and Canada make this an inauspicious moment to reconsider the STCA.

Justice Department Seeks Injunctions Against California’s ‘Sanctuary Laws’

The Department of Justice filed suit in March challenging California’s so-called sanctuary laws. DOJ asserts that the state laws are preempted by federal law and requests injunctions to halt their enforcement.

On June 20, 2018, during a hearing on the injunction request, the parties were questioned by U.S. District Court Judge John Mendez, a George W. Bush appointee, for more than six hours.

The suit challenges three laws: AB 103 implements monitoring of immigration detention facilities; SB 54 prevents California law enforcement officials from providing release dates of prisoners; and AB 450 imposes restrictions and obligations on employers regarding worksite inspections by immigration enforcement agents.

Under AB 450, employers are prohibited from:

  • Voluntarily allowing ICE or other federal agencies from entering non-public areas, except when presented with a judicial warrant; and
  • Voluntarily allowing access to review employee records without a subpoena or warrant, other than the employer’s I-9s or other records required under federal regulations.

In addition, under AB 450, employers must notify the workforce of an audit of employee records and notify affected employees that their employment records had been identified as suspect.

Observers said Judge Mendez appeared skeptical of the government’s arguments, but he told the lawyers that he often plays devil’s advocate. In other words, they should not read too much into his questioning.

California Governor Jerry Brown, commenting on the suit, said that the Administration was declaring war on California. California and its Attorney General, Xavier Becerra, have been at the epicenter of opposition to Trump Administration policies. The state has filed a number of suits regarding Trump’s immigration laws, and California has been a target of ICE investigations and raids.

However Judge Mendez rules, this case is likely to find its way to the Ninth Circuit Court of Appeals.

Is Israel B-5 Investor Visa for U.S. Citizens Equivalent to E-2 Visa? U.S. to Determine

In 2012, then-President Barack Obama signed legislation allowing nationals of Israel to apply for E-2 treaty investor status, but benefit would not be available until Israel provided similar status to U.S. nationals. In March 2014, the Israeli government passed such a bill creating B-5 status for American investors. Further enabling regulations were necessary, however, because Israel had no path for granting work permits to foreign nationals based on investment alone. On June 21, 2018, the Interior Committee of the Knesset enacted the necessary regulations. Now, it is up to the U.S. Department of State to determine if the Israeli legislation meets the “similarity of status” requirement, i.e., is it reciprocal?

According to USCIS, to qualify for E-2 treaty investor status the investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation;
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States;
  • Be seeking to enter the United States solely to develop and direct the investment enterprise by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device;
  • The investment must be at risk; and
  • The funds invested must not have been obtained directly or indirectly from criminal activity.

E-2 treaty investor status is distinct from E-1 treaty trader status. Israel has been eligible for E-1 treaty trader status since 1949, but that status requires the company already to be carrying on substantial trade. It also requires such trade to be principally between the U.S. and the treaty country which qualifies the treaty trader for E-1 status. These requirements would not cover start-ups or entrepreneurs who wish to create businesses or subsidiaries in the United States.

Jackson Lewis will continue to follow the progress of E-2 treaty investor status for Israel and provide updates as soon as they are available.

Supreme Court Upholds Travel Ban 3.0

The U.S. Supreme Court in a 5-4 decision has held that President Donald Trump’s Proclamation No. 9645, known as “Travel Ban 3.0,” can stand. Trump, et al. v. Hawaii, et al., No. 17-965 (June 26, 2018). Certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will continue to be subject to the ban.

We have published a full analysis, prepared by Michael Neifach and Amy Peck in collaboration with our colleague Collin O’Connor Udell, on our main firm website here.

Latest ICE Aggressive Enforcement Targets Northern Ohio Meat Processing Plants

On June 19, 2018, unannounced ICE raids resulted in the arrest of more than 140 workers at four meat processing plants in Ohio. ICE calls this its largest workplace raid in recent history.

According to Fresh Mark, it is a member of ICE’s voluntary IMAGE (ICE Mutual Agreement between Government and Employers) Program. Fresh Mark reportedly has been under investigation for a year.

The number of arrests made at the Fresh Mark locations tops the number made across the country at 7-Eleven locations in January 2018, the 97 arrests made in April 2018 at another meatpacking plant in Tennessee, and the 114 arrests made in early June at a flower and garden center, also in Ohio.

Search warrants for documents were executed at two of the Fresh Mark locations. Most of those arrested were sent to processing facilities to begin removal proceedings for entering the country illegally and for using fake identity documents.

According to the company, it was one of the first companies in Ohio to become a member of ICE’s voluntary IMAGE Program. As a member of the program, employers agree to:

  • Complete the IMAGE Self-Assessment Questionnaire/Application
  • Enroll in E-Verify within 60 days
  • Establish a written hiring and employment eligibility policy, including an annual internal I-9 audit
  • Submit to a Form I-9 inspection
  • Review and sign the official IMAGE partnership agreement with ICE

For IMAGE members, ICE and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, and use of the E-Verify employment eligibility verification program. Membership does not protect against enforcement actions.

Fresh Mark supplies bacon, ham, and hot dogs to businesses and sports complexes in Ohio. Their Sugardale Hot Dog gained fame at “Sugardale Dollar Dog” days at the Cleveland Indians baseball team’s Progressive Field.

 

 

Texas Anzalduas Port of Entry May Test Face Recognition Technology

Starting in August, the U.S. Customs and Border Protection (CBP) reportedly will begin a pilot program at the Anzalduas port of entry in Texas using face recognition technology to capture facial images of occupants in moving vehicles as they travel to and from Mexico. Facial recognition technology is already being tested at a number of international airports, including Washington Dulles, New York J.F.K., Miami, and Los Angeles.

CBP has been working to develop more technically advanced, efficient strategies for recording information on individuals entering and exiting the U.S. since 2012.

After 9-11, Congress passed legislation to use biometric technology to screen non-U.S. citizens entering and exiting the country. Entry programs, particularly at airports, posed little difficulty as all entering passengers are funneled through CBP. Exit programs were much more difficult, because individuals depart airports from multiple gates – providing no central location for collecting biometrics and any proposed system would have caused immense delays in airport processes.

By 2015, CBP’s Field Operations, in conjunction with the DHS Science and Technology Directorate, had tested facial recognition software and, in 2016, conducted a pilot program at the Atlanta airport. With a small camera, CBP photographed every passenger, not just non-U.S. citizens, during the plane boarding process. Those photos were then matched in real time against a gallery of photos collected for each individual at the time of check-in.

By 2017, some airlines in partnership with CBP were working toward boarding passengers with just facial recognition technology – without boarding passes. In the future, CBP hopes to be using biometric technology nationwide.

Privacy groups and two U.S. Senators have questions about the legality of these biometrics programs. Because those being screened and photographed include U.S. citizens, Senators Edward Markey (D-Mass.) and Mike Lee (R- Utah), in a letter to DHS Secretary Kirstjen Nielsen, noted various objections. They pointed out that Congress never authorized the use of biometric screening for any purpose on U.S. citizens, that the DHS had no authority to collect and store (even for just 14 days) the data of U.S. citizens, and that there was a four-percent error rate (meaning, one in 25 individuals might be misidentified). Studies, they noted, indicated that error rates varied depending upon gender and race. Although the letter was delivered in December 2017 and questioned the way biometrics were being captured at U.S. international airports, the same objections undoubtedly would apply to the pilot program at the Mexican border.

Jackson Lewis will continue to monitor and provide updates on this and other legal developments.

Labor Department To Demand More Information in H-1B Labor Condition Application

The U.S. Department of Labor (DOL) has released proposed changes to ETA Form-9035, Labor Condition Application for Nonimmigrant Workers (LCA), that would require more details about the end-user clients and potential worksites specific to the placement of H-1B workers.

Current practice requires employers to list the addresses for all intended worksites. The proposed change would require U.S. employers to provide the legal business name of the end-user client at whose worksite the H-1B intends to work. This new requirement directly targets U.S. employers who place foreign national workers at third-party worksites. The proposal further increases employers’ reporting requirements by asking for identification of not only known worksites but those at which there is a “reasonable expectation” of placement.

As part of the explanation for this change, DOL stated, “[E]mployers must identify those worksites at which the employer knows or reasonably expects to place H-1B workers based on existing contracts, business plans, or its own expertise.” DOL asserts that these changes are being “made to improve transparency about the number of H-1B workers being sent to worksites . . . and the entities with which the workers will be placed.”

The LCA would allow additional pages for up to 10 worksites. DOL estimates the time needed to complete the LCA will increase more than threefold, given that considerable additional employment (and estimated employment) information would be required.

This is not the first change to the H-1B program this year. U.S. Citizenship and Immigration Services (USCIS) had updated its policies to make it more difficult to place foreign students at third-party worksites during their STEM Option Practical Training (OPT). Further, in April, USCIS issued a policy memorandum requiring employers to provide detailed itineraries for the entire duration of H-1B petitions involving off-site employment.

The proposed regulation creates additional burdens for U.S. employers that hire and place foreign workers with H-1B visas at third-party worksites. There are also a number of concerns regarding the proposed rule’s language. For example, DOL uses the term “secondary employer” to describe the end-user clients. This could imply the existence of an employer-employee relationship, which may or may not exist.

If you have questions about the proposed rule, please reach out to your Jackson Lewis attorney.

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