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California SB 206 would allow college-level student-athletes in California to market their name, image, and likeness without affecting their amateur status. How may the new law, which is in the final phases of approval, affect international student-athletes?

Foreign students enter the United States on F-1 student visas. The terms of this type of visa drastically restrict the ability of the individual to earn money while studying in the United States as an international student.

The F-1 visa is a non-immigrant student visa that allows foreign-born individuals to pursue academic studies in the United States. International students must meet the following criteria in order to qualify:

  • The student must be enrolled in an “academic educational program”
  • The specific school must be approved by the Student and Exchange Visitors Program, which is administered by Immigration & Customs Enforcement
  • The student must be enrolled as a full-time student at the proposed school
  • The student must be proficient in English or enrolled in courses leading to English proficiency
  • The student must have sufficient funds to be able to support themselves during the entire length of their proposed course of study and stay in the United States.
  • The student must maintain a residence abroad that the student has no intention of abandoning
  • The F-1 student cannot work, except in specific circumstances regulated under federal law

The terms of the F-1 visa restrict the student from working off-campus during their first academic year.

F-1 students may engage only in three types of off-campus employment: Curricular Practical Training, Optional Practical Training, and Science, Technology, Engineering, and Mathematics Optional Practical Training Extension. All off-campus employment for F-1 students must be related to their area of study and authorized by the Designated School Official before starting any work. An F-1 visa does not authorize any other type of work activity and clearly does not authorize international student-athletes to enter into endorsement agreements to secure remuneration for their name, image, and likeness.

In fact, an international student found to have been working illegally while on an F-1 visa is deemed to have committed a serious violation of the regulations and could result in the student being deported.

The proposed California legislation authorizes student-athletes at all 24 California public and private colleges and universities to market their name, image, and likeness and restricts the ability of the NCAA to prevent student-athletes from participating in any such marketing opportunities.

SB 206 fails to address the predicament of the international student-athlete.

How will the hundreds of international student-athletes participating on California colleges and universities teams benefit from the new legislation? Will the California legislature address this apparent loophole that would restrict an international student-athlete from benefiting from the value of their name, image, and likeness before the bill can be signed into law by Governor Gavin Newsom?

Jackson Lewis’ Collegiate and Professional Sports Practice Group is prepared to counsel colleges and universities on any of the issues that may arise if the SB 206 becomes law. The Practice Group will continue to monitor the status of this proposed legislation and similar legislation that has been introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

Six hundred and eighty workers from seven poultry processing plants across Mississippi were arrested by ICE in what was the largest workplace raid in a decade. Raids of this size require complex logistics and months of preparation. This raid has been in the planning stages for a year. “Sources close to the Department of Homeland Security said they recognized that the optics were difficult following the El Paso shooting. But preparation for the operation had been underway, with hundreds of government operatives flown in days ago.”

Beyond the disruptions in the plants, the employers may be subject to civil and criminal fines and penalties if they are found to have knowingly hired undocumented workers. One company’s spokesman stated that the poultry processing industry does everything it can to ensure its workforce is legal, including using E-Verify. Of course, E-Verify is not perfect. Employees can be using others’ identities – including those of dead citizens and even of their own U.S. citizen children. The government does not expect employers to be forensic experts on document fraud.

Losing so many workers will affect production at these plants. The United States consumes more chicken than any other country – 93.5 pounds of broilers per capita in 2018. Mississippi is one of the top five broiler-producing states. One plant employee noted: “[w]ithout [the workers] here, how will you get your chicken?”

The Mississippi raids come on the heels of a surge in I-9 notices of investigation — 3,000 were sent to employers in July 2019. And that was proceeded by a surge in No Match Letters sent to employers during the spring, as well as other large-scale ICE raids around the country.

In this atmosphere, employer preparation is key to minimizing business disruptions. If you have questions or concerns about how to prepare for investigations and raids, please reach out to a Jackson Lewis attorney.

USCIS is on its way to revising and updating the Naturalization Test. It will start with a pilot test involving about 1,400 volunteers this fall, then a second field testing pilot in spring 2020.

Last updated in 2008, the new Naturalization Test is expected to be implemented as soon as late-2020.

Recent issues surrounding the Administration’s attempt to add a citizenship question to the 2020 census and delays in processing naturalization applications have prompted the Acting Director of USCIS, Ken Cuccinelli, to tell the Washington Post that paranoia regarding the reason for these changes is not warranted. People who are paranoid will be “sorely disappointed when [the new test] looks like another version of the [current] exam.” Decennial revisions are proposed to “ensure that the civics education requirements remain a meaningful aspect of the naturalization process.”

The working group revising the test includes staff from across USCIS. The group is “soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.”

Currently, naturalization applicants are asked 10 randomly selected questions from a list of 100 (the list is available on the USCIS website). The questions are on American government, history, and civics and reflect middle school and high school curricula. To pass, 6 of the 10 questions must be answered correctly. There is a 90% pass rate among applicants. A 2018 survey by the Woodrow Wilson National Fellowship Foundation showed the pass rate among U.S. citizens was only 36%. Citizens over the age of 65 had the highest pass rate: 74%.

Test yourself. Answer the following (answers are at the bottom of this post)

  1. Why did the colonists fight the British?
  2. When was the Declaration of Independence adopted?
  3. How many amendments does the Constitution have?

Along with changes to the civics test, the agency also is considering changes to the English language proficiency test. According to the naturalization statute, applicants must read and write “simple words and phrases” and “no extraordinary or unreasonable condition shall be imposed upon the applicant.”

When Francis Cissna, then-Director of USCIS, announced the revision he noted that the new tests would continue to provide “special consideration” to those over 65 who have lived in the U.S. as green card holders for at least 20 years. He also stated that “due consideration” would be given to “applicants’ education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an appraisal of the adequacy of the applicant’s knowledge and understanding.”

Last year, 750,000 applicants were naturalized. In the years preceding presidential elections, the application levels typically increase.

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The answers:

  1. Because of high taxes (taxation without representation), because the British army stayed in their houses (i.e., boarding and quartering), or because they did not have self-government
  2. July 4, 1776
  3. 27

The Trump Administration has been trying to put an end to Temporary Protected Status (TPS) for many countries including: El Salvador, Haiti, Honduras, Nepal and Sudan. Upon legal challenges to TPS termination, the courts have delayed termination at least temporarily. The Secretary of the Department of Homeland Security (DHS) generally has the authority to designate a foreign country for TPS when it is not safe for individuals to return home due to ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. But Congress is taking TPS into its own hands for a “new” group – Venezuelans who are currently living in the United States.

The Venezuela TPS Act of 2019 is co-sponsored by two representatives from Florida – Darren Soto (D) and Mario Diaz-Blart (R). It passed the House by a majority, but not a veto-proof two-thirds majority.

Venezuela’s economy is in a collapse and food shortages are reported. Representative Diaz-Balart stated that TPS would protect those “who have fled the oppressive Maduro dictatorship . . . until it is safe for them to return . . .”  The Congressional Budget Office reports that approximately 200,000 Venezuelans who are seeking refuge in the United States would be eligible for TPS. DHS reports Venezuelan asylum applications have grown exponentially since 2014.

President Donald Trump and Acting Director of USCIS, Ken Cuccinelli, had denied requests to institute TPS for Venezuela through an administrative process despite the Administration’s condemnation of the conditions in Venezuela. The hope is that the bi-partisan support in the House will lead to the Senate taking up and passing the bill. The bill was introduced in the Senate by Senator Robert Menendez (D-N.J.) in February and does have some bi-partisan support, including from Senator Marco Rubio (R-Fla.)

Jackson Lewis will provide updates as they become available.

The Department of Homeland Security Immigration and Customs Enforcement (ICE) has sent an unprecedented number of I-9 audits, called Notices of Inspection (NOIs), in the previous three weeks reportedly to more than 3,000 companies. At least another 3,000 are likely on the way since ICE has requested (and received) an additional $6.5 million to hire new 27 Junior Compliance Officers (JCOs), some of whom will be staffing four new HSI (Homeland Security Investigation) offices in Charlotte/Charleston, Kansas City, Las Vegas, and Nashville/Louisville.

This hiring surge is part of ICE’s mission to “remov[e] the magnet of illegal employment by targeting egregious employer violations and abuses in both critical infrastructure protection (CIP) business sectors and non-CIP business sectors.” In reality, I-9 audits are an inexpensive way for the government to shift the burden of interior enforcement onto businesses, who bear the cost of replacing valuable workers and, sometimes, paying large fines for mistakes on the Forms I-9. A company receiving an NOI has three days to produce the I-9s for active and terminated employees within the retention time frame. Extensions of the three days are rarely granted.

Acting Director of ICE, Matt Albence, said the goal of the agency’s surge “is to pursue criminal prosecution against those businesses [whose] business model is based upon illegal employment.” Criminal charges companies can face range from crimes for the unauthorized hiring of undocumented workers, harboring, tax evasion, and money laundering to wage and hour violations. Large civil penalties can also be assessed for mistakes on the I-9, ranging from $220 to $2,292 per violation. Employers with unauthorized workers who are discovered during these investigations will be given 10 days to terminate their employment, which can have a devastating impact on the business. Additionally, ICE reportedly may do more “surprise” Targeted Enforcement Investigations – also known as ICE “raids” – based upon tips or information gathered in audits.

In 2018, there were 5,981 audits, up from 1,360 in 2017. This year, 3,282 audits were noticed in just three weeks. Targeted industries include hospitality, agriculture, food processing, landscaping, and construction. Since 2017, ICE has been issuing some of the largest penalties in its history. In September 2017, one company was assessed a $95 million penalty. More recently, ICE arrested more than 200 workers in a raid at a technology company in Texas.

When audits occur, companies can lose employees — overnight —and not necessarily to ICE. Upon hearing that an ICE audit is coming, employees concerned about their documentation may simply no longer show up for work.

How Can You Prepare?

  • Update Form I-9 and hiring protocols
  • Proactively conduct a self-audit of I-9 Forms
  • Educate and train local managers and supervisors involved in hiring and employment verification
  • Work with counsel on action plans, processes, and chain of command in case of an audit or a raid

Most important, do not ignore a NOI from ICE. Jackson Lewis attorneys are available to assist you if you receive a NOI and to help proactively strategize and prepare for a possible investigation or raid.

 

USCIS has published its new final rule significantly changing the EB-5 Immigrant Investor Program to address concerns about fraud, abuse, and national security risks. The new regulations will become effective on November 21, 2019.

The EB-5 Investor Visa Program was created almost 30 years ago to incentivize foreign investments and create jobs in the United States, particularly in underserved areas.

Under the EB-5 Program, foreign investors (and their dependents) may apply for permanent residence (“green cards”) — and, eventually, citizenship — if they make the necessary investment in a commercial enterprise in the United States and create or preserve at least 10 permanent full-time jobs for U.S. workers. A certain number of these visas are set aside for individuals who invest in enterprises in designated regional centers — areas identified as having high unemployment. The EB-5 Program has been used effectively by many real estate developers. It was most popular among Chinese investors, but, recently, more investment has been coming from South America.

As a result of the popularity, however, applicants from certain countries that constitute the majority of the EB-5 investors suffer from extensive wait times for immigrant visa number availability. For example, Chinese nationals can wait for up to 15 years for their priority dates to become current, and processing times for the two sets of petitions that must be filed (Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status) can take from two years to four years each. Priority date issues will subside for Chinese nationals if the Fairness for High Skilled Workers Act (or the BELIEVE Act) is passed, but the wait times for entrepreneurs from other countries will grow.

Key changes in the new rule include the following:

  • The standard investment amount will increase from $1 million to $1.8 million.
  • The investment amount for regional centers will increase from $500,000 to $900,000.
  • In order to eliminate gerrymandering, states will no longer be able to designate regional centers; that will be reviewed and determined by DHS.
  • To improve the adjudication process and provide flexibility, certain derivative family members will have to file independently of the principal investor to remove conditions on their permanent residences. To help with priority date issues, in certain circumstances, petitioners will be able to retain priority dates from previously approved EB-5 petitions.

Jackson Lewis attorneys will continue to monitor the implementation of the new EB-5 regulations and are available to answer your questions about them.

 

When Alexander Acosta resigned as Secretary of Labor, his deputy, Patrick Pizzella, took over as Acting Secretary. Rather than keeping Pizzella in place, President Donald Trump announced on July 18, 2019, that he intends to nominate Eugene Scalia, the son of late-Justice Antonin Scalia, as the new Secretary.

President Trump tweeted that Eugene Scalia is “highly respected not only as a lawyer but as a lawyer with great experience working with labor and everyone else.”

Eugene Scalia is well-known, especially in Republican circles. He was Solicitor in the Labor Department during the George W. Bush administration and a special assistant to William Barr when Barr was U.S. Attorney General in that same administration. Scalia also represented Bush in Bush v. Gore before the U.S. Supreme Court.

As a partner at Gibson, Dunn & Crutcher in Washington, D.C., Scalia co-chaired the firm’s labor and employment practice group for 12 years and co-chairs its administrative law and regulatory practice group. He is a management-side attorney and reportedly has a reputation for litigating against federal labor and securities regulations. He faced union opposition in 2002 when he was nominated for the Solicitor position.

Support for the nomination has broken down along party lines. Senator Tom Cotton (R-Ark.) stated, “I’m confident [Scalia will] be a champion for working Americans against red tape and burdensome regulation as Labor Secretary.” Senate Minority Leader Charles Schumer (D-N.Y.) stated that with this nomination President Trump was betraying workers and union members and, instead, “has again chosen someone who has proven to put corporate interests over those of worker rights.”

Scalia is expected to be confirmed by the Senate as Secretary of Labor.

 

The House Judiciary Committee Subcommittee on Immigration and Citizenship called upon Department of Homeland Security (DHS) officials to explain and report on the delays in immigration processing in a hearing on July 16, 2019.

Representative Zoe Lofgren (D-Cal.), who chaired the hearing, wanted an explanation for the 2.4 million application/petition backlog (the largest since the processing delays following the terrorist attacks on the U.S. on September 11, 2001). She specifically noted that she hears from:

  • Victims of domestic violence who cannot receive needed immigration benefits;
  • Start-up companies that have had to abandon vital projects because they cannot bring key employees to the United States; and
  • Families suffering from prolonged separations due to increased vetting.

Lofgren focused on the administration’s new policies and procedures that are creating more red tape, burdens on petitioners and applicants, denials, and delays, and she asked about the intent behind these new policies.

The officials from U.S. Citizenship and Immigration Services (USCIS) reported on some of the factors that may have created the backlog, including fee increases, the 2016 presidential election, and court actions that have continued DACA. USCIS officials posited that these factors have resulted in demand spikes because: (1) individuals try to apply for benefits before fee increases go into effect; (2) the number of lawful permanent residents wishing to naturalize increases prior to presidential elections to enable them to vote; and (3) DACA beneficiaries are (unexpectedly) applying for extensions during the current court-created window. Michael Hoefer, Office of Performance and Quality at USCIS, noted that the reduction in demand anticipated in 2017 following the increased demand in 2016 did not materialize. The elevated levels continued.

USCIS must rely on forecast models on demand to prepare staffing requests in order to appropriate staff and train new employees, the officials explained. Since the models did not account for the continued elevated demand, staffing is currently inadequate.

As noted by both congressmembers and USCIS officials, the backlog had existed prior to the change in administration in 2017. Other factors leading to the current backlog included:

  • New security requirements and policies such as additional interview requirements and security checks;
  • The need for between 18 months and 36 months for delivery of new facilities to accommodate new hires; and
  • The Service’s focus on “quality,” versus “quantity,” of work product.

To address the backlog, officials reported that the following changes are in process or would be helpful to reducing processing times:

  • Increased hiring;
  • Increase in fees to accommodate increased hiring;
  • Transitioning non-adjudicatory work from officers reviewing the cases to non-adjudicatory workers;
  • Centralizing delivery of informational services with the USCIS Contact Center;
  • Reintroducing performance metrics that focus more on quantity;
  • Leveraging technology, including implementing new electronic tools and automation such as eProcessing (although the Service noted that technological upgrades have initial short-term negative effects); and
  • Shifting staffing and workloads to accommodate demand.

Although Lofgren wanted to gain a better understanding of the correlation between the new administration policies and the delays and denials, this was not specifically addressed. USCIS representatives noted that they were well-aware of the current problems and delays, admitting that, despite their best efforts, the backlog has steadily grown due to “an extraordinary and growing demand.” They also explained:

We do not want to leave you thinking that there are quick and easy fixes—there aren’t. Realizing organizational and procedure efficiencies, staffing to appropriate levels, and providing the physical and technological resources needed to eliminate the backlog will take some time . . . . For our part, we are committed to providing [staff] with the tools and resources they need to get the work done.

Jackson Lewis will provide updates regarding processing delays and backlogs as they become available.

A merger or acquisition in the works means not only needing to determine whether any acquired foreign nationals (including key employees) will be able to transfer seamlessly into the new entity, but also what to do about compliance with the Form I-9 Employment Eligibility Verification.  Please read our full story here.

The Department of State (DOS) has announced a significant retrogression from the July 2019 Visa Bulletin to the August 2019 Visa Bulletin of at least 3 years in many of the employment-based categories.

  • EB-1 retrogresses by almost 2 years for most countries to July 1, 2016, except India, which stays at January 1, 2015;
  • EB-2 retrogresses by almost 2 years from being current to January 1, 2017, for all other countries, while China and India advanced a bit to January 1, 2017, and May 2, 2009 respectively; and
  • EB-3 retrogresses by almost 3 years from being current to July 1, 2016, for all other countries, while India retrogressed by more than 3 years to January 1, 2006, and China advanced by 6 months to July 1, 2016.

USCIS has decided to implement the dates in the August bulletin now.

Individuals with pending adjustment of status applications can expect to continue in the process. Interviews will be scheduled, but cases will not be finally adjudicated until the priority dates become current again.

Charles Oppenheim, Chief of Visa Control and Reporting Division for the Department of State, generally predicted these retrogressions due to continuing increased demand. The hope is that the dates will return to the July 2019 level when the new fiscal year begins in October 2019.

Each month, to make its determinations for the Visa Bulletin, USCIS and DOS compare the number of visas available for the remainder of the fiscal year (ending September 30) with:

  • Documentarily qualified visa applicants reported by DOS;
  • Pending adjustment of status application reported by USCIS; and
  • Historical drop off rate (for example, denials, withdrawals, and abandonments).

DOS also publishes a “Date for Filing Applications” chart each month. The dates on these charts are more beneficial, but are used only if DOS and USCIS predict that the annual allocation of visas will not be used by the end of the fiscal year.  DOS announces each month (about a week after the Visa Bulletin is published) whether the Date for Filing chart can be used.  Although the Date for Filing charts have been used occasionally in the past, given the current circumstances, they likely will not be used before the end of this fiscal year.

If you have questions about how this retrogression affects green card strategies, please reach out to your Jackson Lewis attorney.