Agreement Delays Termination of Temporary Protected Status for Honduras and Nepal

By Forrest G. Read IV on

Hondurans and Nepalis in the U.S. in Temporary Protected Status (TPS) just got a break.

TPS for beneficiaries from Nepal was set to terminate on June 24, 2019. TPS for beneficiaries from Honduras was set to terminate on January 5, 2020. On March 12, 2019, the Administration entered into an agreement with the plaintiffs challenging the termination of TPS from those two countries. The parties agreed to stay the case and not enforce the decision to terminate TPS for Nepal and Honduras until after a final decision in the Ramos case in California.

In Ramos, a preliminary injunction was issued stopping the government from terminating TPS for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan. In response, DHS automatically extended TPS for beneficiaries from those countries until January 2, 2020.

The government has agreed to take the following “equivalent” steps for TPS beneficiaries from Honduras and Nepal:

  • TPS designations will remain in effect until there is a final decision in Ramos;
  • Notices will be periodically posted in the Federal Register extending TPS designation;
  • Late re-registration notices from TPS holders from Nepal and Honduras will be adjudicated; and
  • If the Ramos injunction is lifted, the government will hold off terminating TPS for those from Honduras and Nepal for at least 120 days from the order or 180 days from when the stay is vacated.

We will provide updates as formal notices become available.

USCIS Resumes H-1B Premium Processing

By Forrest G. Read IV on

Without warning, USCIS announced that as of March 12, 2019, it is resuming premium processing for all H-1B petitions. This means that for an additional fee of $1,410, USCIS will guarantee a 15-calendar day processing time. By the close of the 15th day, USCIS will issue an approval, a denial, or a Request for Evidence (RFE). If the 15-day guarantee is not met, USCIS will refund the $1,410 fee.

Requests for premium processing can be made with the initial filing, as an interfiling, or with an RFE response. USCIS has cautioned that if the original case was transferred, the request for premium processing must be sent to the USCIS Service Center currently handling the case.

Although this announcement appears to include all of the cap cases that are scheduled to be received by USCIS on April 1, 2019, it is possible that USCIS will change its policy and once again temporarily suspend premium processing for those cases, as it did last year. In the past, USCIS has given little advance notice of such a suspension.

If you have any questions about premium processing of H-1B petitions, please reach out to your Jackson Lewis attorney.

DHS and Other Agencies Announce Contest for Solutions to Detect Opioid in the Mail

By Forrest G. Read IV on

There has been ongoing debate about how to stop the opioid crisis in the United States. To stem the flow of illegal drugs through the mail, DHS Science and Technology Directorate, in collaboration with CBP, the Office of National Drug Control Policy, and the U.S. Postal Inspection Service, has launched the Opioid Detection Challenge, a $1.55-million challenge to find new solutions to detect opioids.

The challenge calls upon innovators in many fields (including forensic science, industrial quality assurance, and artificial intelligence) “to submit novel plans for rapid, nonintrusive detection tools that will find illicit opioids in international mail” without disrupting mail flow. Plans must be submitted by April 24, 2019.

The solutions will have to be highly innovative as they must meet the following requirements:

  • Solutions cannot physically penetrate the parcels;
  • Solutions cannot involve pretreating parcels;
  • Solutions cannot rely on external data such as information about the sender or recipient that cannot be gleaned directly from the parcel;
  • Solutions must be moderate in size; and
  • Solutions must be able to process parcels up to 27” x 17” x 17”.

Up to eight finalists will participate in a 14-week prototyping accelerator leading to a mandatory live test event.

President Donald Trump has championed the border wall as part of the solution to the opioid problem, while others, including the Drug Enforcement Administration (DEA), have noted that although illegal drugs do come into the United States over the Mexican border, most come through “legal ports of entry, followed by tractor-trailer, where the heroin is co-mingled with legal goods.” In addition, DEA is apparently not certain that the Mexican border is the “main front,” indicating that “[f]entanyl can be ordered through the mail from China, and it is typically much purer, and thus more potent and deadly, than Mexican-sourced fentanyl.” According to CBP, “large-scale drug trafficking can occur via small packages sent in the mail.”

In 2018, Congress passed and President Trump signed the Synthetics Trafficking and Overdose Prevention (STOP) Act in part to plug a loophole in the USPS system that may have been making it easier to traffic in illicit drugs by mail. According to Senator Rob Portman (R-Ohio), one of the bill’s sponsors, the STOP Act requires the “U.S. Postal Service [to meet] the same screening standard as private mail carriers.” That is, the USPS will have to screen for fentanyl from overseas. Private carriers had been screening packages abroad and providing “advanced electronic data” (AED) regarding the contents of these shipments, which allowed CBP to then more-efficiently target questionable packages. The USPS had not been providing any AED.

The results of the Opioid Detection Challenge may be a boon to the USPS, as well as private carriers and CBP, making the detection of illicit drugs sent through the mail much more effective.

Temporary Protected Status Extended to 2020 for El Salvador, Haiti, Nicaragua, Sudan

By Michael H. Neifach on

TPS employment authorization has been extended automatically until January 2, 2020, for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan.

In October 2018, a preliminary injunction was issued in Ramos v. Nielsen, preventing implementation of the Administration’s decision to terminate TPS for the four countries.  At that time, DHS announced that if the injunction were still pending in March 2019, it would extend all TPS-related documents until January 2020 – and that is exactly what it did. Detailed information about the automatic extension is published in the Federal Register.

The TPS extension does not apply to Nepal or Honduras because neither country was included in the Ramos lawsuit. However, in February 2019, TPS beneficiaries from those two countries filed a class action similar to Ramos in the federal court for the Northern District of California.  That case is pending.

If you have questions about how these developments affect your employees, please reach out to your Jackson Lewis attorney.  We have also updated our TPS tool which may provide relevant information.

EB-5 and Its European Counterpart Subject to Expected Changes, Oversight

By Minnie Fu on

In June 2018, Congress held a hearing on “Citizenship for Sale: Oversight of the EB-5 Investor Visa Program.”  The current EB-5 program allows wealthy individuals to apply for and obtain green cards by investing anywhere from $500,000 to $1,000,000 in U.S. enterprises.  Like any other green card holders, after five years, the beneficiaries can apply for citizenship.  The title of the hearing reflected Congress’ concerns about EB-5 program: fraud, abuse, and national security risks related to the program.  At that hearing, L. Francis Cissna, Director of USCIS, explained that legislative reform was necessary, but in the meantime USCIS was taking steps to improve the integrity of the program:

  • Using the Fraud Detection and National Security Directorate (FDNS) to visit project sites;
  • Expanding security checks;
  • Partnering with the SEC, FBI and ICE;
  • Publishing revised forms to improve vetting;
  • Creating a Compliance Division to review annual certifications of regional centers; and
  • Publishing regional center termination notices.

On the other side of the Atlantic, the European Commission has expressed similar concerns about lack of oversight.  It is planning to establish a team to review the risks associated with “citizenship-by-investment” plans throughout the EU.  Similar to the EB-5 program, these programs actually provide European passports to wealthy individuals from anywhere in the world in exchange for hefty investments.  Having these passports can provide individuals with free movement and work authorization throughout much of Europe as well as visa waiver travel to the United States.  The identified problem is that these “golden visa” programs are regulated inconsistently at the country level and, like the EB-5, can become vehicles for fraud such as money laundering and tax evasion.

A year before Director Cissna’s testimony, USCIS published a Notice of Proposed Rulemaking regarding the EB-5 program.  The rule languished awaiting assessment by the Trump Administration, but on February 22, 2019 a final regulation was sent to the Office of Management and Budget (OMB) and is now pending review.  That means that the rule might become effective within the next three to four months.  Subject to the publication of the final rule, the expected changes include:

  • Raising minimum investment amounts from $1 million to $1.8 million for standard direct investment and from $500,000 to $1 million for targeted employment areas;
  • Allowing certain EB-5 petitioners to retain older EB-5 priority dates; and
  • Changing the designation process for targeted employment areas.

The increase of investment amount and the silence on the reduction of current processing times and the extremely long visa number availability backlogs appear to discourage investment.  Meanwhile, the European Commission expects to publish a report by the end of 2019 with the hope of developing more consistency among the member states so that “[t]here should be no weak link in the EU, where people could shop around for the most lenient.”

For information about strategies to deal with the changing EB-5 landscape, please reach out to your Jackson Lewis attorney.  We will continue to provide updates on the EB-5 regulations and the progress of the European Commission.

Crackdown on Birth Tourism Industry in U.S. Continues with First-Ever Arrests of Operators

By Jessica Lang on

Traveling to the U.S. to give birth to a U.S.-citizen child, or birth tourism, is not a new industry. In January 2018, DHS raided 20 “maternity hotels” in Los Angeles suspected of housing “birth tourism” operations. A neighbor who lived near one of the apartment buildings reported that “a forklift delivered an excessive quantity of diapers to the building, but [she] did not realize the extent of the scheme.” Authorities are most interested in identifying and charging the owners of the so-called travel agencies, i.e., organizations set up in the U.S. to provide services to women who want to give birth to a U.S. citizen. These agencies charge as much as $100,000 for their services and allegedly engage in various criminal schemes to overcome U.S. immigration laws. In January 2019, for the first time ever, law enforcement officials made arrests and charged birth tourism operators with conspiracies to commit immigration fraud and money laundering.

Currently, no immigration restrictions explicitly forbid a woman from traveling to the U.S. to give birth to a U.S.-citizen child, as long as she can prove she has the assets to pay for medical care and housing. Nevertheless, believing consular officers or officers at a U.S. port of entry would use their discretion to bar near-term pregnant women from entering the U.S., the travel agencies reportedly coach the women on how to gain entry to the U.S., including making misrepresentations about their job opportunities, familial situation, and educational background. They also encourage the women to enter the U.S. prior to their third trimester in order to conceal the pregnancy, and even go so far as to suggest that the women make their initial entry into Hawaii, posing among other tourists, before traveling to the mainland U.S.

Birthright citizenship was introduced into the U.S. Constitution in 1868, when the 14th Amendment was passed at last, granting citizenship to former slaves who were born in the U.S. but denied citizenship.

Birthright citizenship is not unique to the U.S., but it exists only in a minority of countries.

A former Assistant Attorney General in the Clinton Administration, Walter Dellinger, explained:

We believe in a clean slate principle. . . . Whatever questions there are about the legitimacy of parents or grandparents, in our country you get a clean slate. Every new child who is born here is simply and indisputably an American. And that is part of our almost unique national identity.

The topic of birthright citizenship has become more controversial since President Donald Trump raised the notion of eliminating it with an executive order. Others have suggested that the President need not challenge the current interpretation of the 14th Amendment.  Instead, legislation, for example, could make it illegal to come to the U.S. for the sole purpose of giving birth, and highlighting to potential “birth tourists” the downsides to obtaining U.S. citizenship, such as taxation and possible conscription into the U.S. armed services, could depress the incentive to come to the U.S.

The stance against birth tourism will affect thousands of people, primarily from China, Taiwan, Russia, and Turkey, who want to be able to give birth to children who will be eligible immediately for U.S. passports and the attendant longer term benefits, even if they have no current intention of permanently residing in the U.S.

DHS Moves to Rescind H-4 EAD Rule for Spouses of H-1B Workers

By Meredith K. Stewart on

DHS has made the first move to rescind the H-4 EAD Rule: sending the proposed rule to the Office of Management and Budget (OMB) for review.

The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the green card process.

OMB review is the first step before publication in the Federal Register for public Notice and Comment. OMB has up to 90 days to conduct its review, but the Administration is seeking expedited review because the change is “economically significant.” Once the OMB review is complete, the Notice and Comment period itself is generally 30-60 days. After that, DHS must review and respond to the comments and publish the final rule. Given the time frames, the final rule may go into effect as early as May 10, 2019, or as late as January 15, 2020.

The details of the proposed rule have not been published, but the expectation is DHS will continue to accept and adjudicate H-4 EAD applications until the final rule goes into effect. Among the things DHS has yet to reveal include:

  • What the effective date of the rule will be; and
  • Whether those who have H-4 EADs will be in some way grandfathered in.

Due to the continued uncertainty, foreign nationals:

  • In H-4 status should consider whether there are any other types of work authorization available to them and apply, if possible;
  • If eligible for H-4 EADs but have not applied, should consider applying now; and
  • With H-4 EADs should apply to renew as soon as their renewal window opens (180 days prior to expiration).

Anticipated since President Donald Trump took office, DHS action on rescinding the H-4 EAD Rule has been slow – leaving more than 100,000 current beneficiaries in limbo. A long-pending case challenging the validity of the H-4 EAD Rule, Save Jobs USA v. United States Department of Homeland Security, had been held in abeyance for close to year because DHS said it would be rescinding the rule, which would make the case moot. The judge in the Save Jobs case went along with DHS’s requests until December 17, 2018, when the Court removed the case from abeyance. DHS’s reply brief was scheduled to be submitted by mid-March 2019. The looming deadline may have prompted DHS to act.

We will continue to monitor this situation and provide an update as soon as more information is available. In the meantime, especially with the H-1B cap deadline approaching, if you would like to strategize about options for maintaining H-4 EAD workers, please reach out to your Jackson Lewis attorney.

Slow Immigration Processing Times Draw Criticism and Questions

By Maggie Murphy on

Immigration case processing times have dramatically increased in the last few years, impacting U.S. businesses and immigrant families, often causing gaps in work authorization and even loss of employment. In a January 2019 Policy Brief, AILA (American Immigration Lawyers Association) opined, on the basis of USCIS data, that the Agency’s processing delays had reached “crisis levels under the Trump Administration,” noting that:

[t]hese ballooning delays leave families—including families with U.S. citizen spouses and children—in financial distress, expose protection-seekers to potential harm by bad actors, and threaten the viability of American companies facing workforce gaps.

The 2018 Homeland Security Report stated that at the end of FY 2017 (including President Trump’s first 9 months in office), there was a net backlog of 2.3 million cases – double the figure from FY 2016.

And Congress is taking notice. More than 80 Democratic members of the House of Representatives, in their oversight capacity, sent a letter to USCIS Director L. Francis Cissna expressing their “grave concerns” about the delays. Indeed, the Congressmen are suggesting that the delays themselves seem to be a policy goal, stating:

Clearly, policy changes implemented by the administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission. Rather than continuing to seek ways to simplify and streamline its benefit-delivery system, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications.

The Representatives want the backlogs to be reduced and have asked Director Cissna to answer a number of questions, including:

  • How are “extreme vetting,” in-person interviews for employment-based green cards, and the USCIS reversal of the deference policy regarding nonimmigrant visa extensions contributing to the backlog?
  • Why, when USCIS clearly needs more adjudicators, is the Agency requesting the transfer of $200 million of its own fee revenue over to ICE enforcement?
  • Why have processing times increased while case volume appears to be receding?

The backlog may be yet another reflection of Director Cissna’s new mission statement, issued in February 2018, echoing President Trump’s emphasis on enforcement. In that statement, the Director removed the emphasis on customer satisfaction (i.e., the satisfaction of petitioners and beneficiaries) and instead focused on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm . . . .”

In line with that mission, USCIS is planning on introducing a new Tip Form. The purpose of the new form is to facilitate the collection of information from the public regarding credible and relevant claims of immigration benefit fraud impacting both open adjudications, as well as previously approved benefit requests where the benefit remains valid. Once implemented, this form will create more work for an already overburdened agency and will likely lead to an increase in employer worksite investigations.

Premium Processing Resumes for H-1B Petitions Filed Prior to December 21, 2018

By Forrest G. Read IV on

USCIS announced on Friday, February 15,, 2019, that it will resume premium processing on Tuesday, February 19, 2019 for H-1B petitions filed prior to December 21, 2018.  This follows up on the USCIS announcement at the end of January that it would resume premium processing for cap-subject petitions that were filed on or about April 1, 2018.

This means that premium processing can now be requested for petitions filed before December 21, 2018 seeking:

  • H-1B transfer (change of employer);
  • H-1B amendment; and
  • H-1B change of status.

USCIS will resume premium processing for cases filed after December 21, 2018 “as agency workloads permit.”

H-1B extensions for “continuation of previously approved employment without a change with the same employer” filed exclusively at the Nebraska Service Center and petitions filed for beneficiaries who will be employed at a qualifying cap-exempt institution filed exclusively at the California Service Center have not been subject to the temporary suspension.

If you have questions about this, please reach out to your Jackson Lewis attorney.

No-Deal Brexit – Impact on EU Citizens Living and Working in the UK

By Forrest G. Read IV on

The deadline for Brexit is quickly approaching – March 29, 2019.  If the UK leaves the European Union without a Brexit deal, what will that mean for EU citizens working in the UK?  According to Leigh Turner, the UK Permanent Representative to the United Nations, EU citizens living in the UK will be protected.  Their specific rights are set out in the Brexit withdrawal agreement.  But since that has not yet been ratified, the UK Government published a policy paper in December 2018 on citizens’ rights in the event of a no-deal Brexit.  That publication “represents a unilateral commitment on the part of the UK that EU citizens resident in the UK by 29 March 2019 will be able to live, work and study, and to access in-country benefits and services such as education and healthcare on broadly the same terms as they do now.”  Some EU member states are starting to set out reciprocal plans in the event of a no-deal Brexit.

For more information regarding Brexit, please see our L&E Global Partner’s Brexit hub at https://www.clydeco.com/blog/brexit.

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