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As part of the Trump Administration’s “Buy American, Hire American” Executive Order, the State Department’s Bureau of Consular Affairs (BCA) is joining with the Department of Justice’s Civil Rights Division to combat both visa fraud and potential discrimination against U.S. workers. The partnership between the two agencies is based upon a Memorandum of Understanding (MOU) that focuses on information-sharing.

The Employee Rights Section (IER) of the Civil Rights Division enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) on citizenship or national origin discrimination in the hiring, firing, or recruiting of employees. Traditionally, this agency focused on discrimination against foreign-born workers, but the Trump Administration has shifted the focus to the impact of visas on the U.S. worker. The BCA, among other things, strengthens U.S. border security by reviewing and adjudicating immigrant and non-immigrant visa applications abroad.

Under the MOU, the agencies “will share information about employers that may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.” The MOU also says that, although injured parties can file complaints with the Civil Rights Division (the IER), the IER may initiate independent investigations “if there is reason to believe unlawful discrimination has occurred.” This agreement is part of the Department of Justice’s Protecting U.S. Workers’ Initiative, launched in February 2017, to defend U.S. workers from discrimination by employers who favor foreign visa workers.

This recent collaboration between the DOJ and BCA is another part of the Trump Administration’s efforts to scrutinize H visa applications. In August 2017, the Foreign Affairs Manual was changed to encourage Consular Officers to consider whether there might be some aspect of fraud being committed as they adjudicate H-1B and other visa applications. With the new agreement in place between the BCA and the IER, any information gathered through personal interviews of visa applicants at the Consulates can be transmitted easily not only back to the USCIS for possible revocation of a petition, but also to the IER for possible investigation.

If you have any questions about visa interviews abroad and their possible ramifications, please contact your Jackson Lewis attorney.

 

The Department of State has quietly revised guidance to Consular Officers on the “30/60 Day Rule” regarding adjustment of status applications.

The Rule sets standards for determining whether an alien would be inadmissible for inconsistent conduct. It provides:

  • If an alien engaged in inconsistent conduct within 30 days of an entry, a willful misrepresentation could be presumed.
  • If the conduct occurred after 30 days, but within 60 days of an entry, there was no presumption of misrepresentation and the alien would be given the opportunity to present countervailing evidence.
  • After 60 days, the inconsistent conduct alone would not constitute a basis of inadmissibility.

The Rule provided aliens flexibility to postpone filings to avoid the presumption of misrepresentation. A foreign national making a willful misrepresentation to gain entry into the U.S. can be barred for life from entering the U.S.

Willful misrepresentations are not just false statements. Conduct inconsistent with representations made in order to procure an immigration benefit also are considered willful misrepresentations.

Inconsistent conduct (also known as “pre-conceived intent”) includes conduct that violates or is otherwise inconsistent with an alien’s non-immigrant status, such as:

  • Engaging in unauthorized employment
  • Enrolling in a course of academic study, if such study is not authorized for that non-immigrant classification (e.g., B status)
  • Being in B or F status, or any other status prohibiting immigrant intent, and marrying a U.S. citizen or lawful permanent resident and taking up residence in the U.S.
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment

The Department of State eliminated the Rule as of September 1, and substituted a stricter one. The “90 Day Rule” applies to all visa applicants (immigrant and non-immigrant). Under the revised FAM, if an alien engages in conduct inconsistent with the alien’s non-immigrant status within 90 days of an entry, a willful misrepresentation can be presumed and the burden of proof shifts to the alien to establish that “his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

While the FAM guidelines are applicable directly to consular officials adjudicating visa applications abroad, the prior “30/60 Day Rule” was generally followed by USCIS in adjudicating applications to adjust status in the United States. The full effect of this change to the FAM is not yet known. However, as USCIS has announced mandatory in-person interviews for employment-based adjustment of status recently, individuals and practitioners can expect additional scrutiny of prior entries. Please reach out to your Jackson Lewis attorney with any questions about inconsistent conduct and strategies to consider in light of recent developments.

The U.S. Embassy and Consulates in Russia announced that “[a]s a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017.”

This is the most recent volley in the diplomatic back-and-forth that started with the reports of possible Russian involvement in U.S. elections. Following U.S.-imposed sanctions, Russia ordered the withdrawal of 755 U.S. diplomatic personnel from Russia.

Generally, the announcement means:

  • The U.S. Mission has begun cancelling current nonimmigrant visa appointments countrywide.
  • As of September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.
  • NIV applicants whose appointments are cancelled can reschedule for a later date in Moscow.
  • Some immigrant visa interviews also will be affected.
  • The Embassy in Moscow and the Consulate in St. Petersburg will no longer accept new visa applications from residents of Belarus, who are encouraged to schedule NIV appointments in Warsaw, Kyiv (Kiev), or Vilnius.
  • The current plan is to offer a block of visa appointments for students in early September.
  • The Embassy in Moscow will continue to process NIV applications without an interview for those who qualify.

The U.S. Embassy in Moscow and the three consulates in St. Petersburg, Yekaterinburg, and Vladivostok will continue to provide emergency and routine services to American citizens, although hours may change.

Please reach out to your Jackson Lewis attorney for any questions regarding the suspension.

Over the years, the government has intensified its enforcement of employment verification procedures including increased fines and penalties, as well as potential criminal charges and charges of discrimination against U.S. citizens. The federal government introduced E-Verify in 1997 as a pilot program. E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Now, the use of E-Verify is voluntary, unless you are a federal contractor or it is required by state law. Many employers are trying to decide whether they should use E-Verify.

Below are some of the factors to consider.

The main benefit of using E-Verify is that your employees in student status who have STEM degrees would be eligible for employment authorization for up to three years without having to obtain an H-1B visa. Other benefits include:

  • Your company would be entitled to a “rebuttable presumption” that it did not hire any unauthorized workers and you cannot be charged with a “knowing” violation of the employment verification laws – which may lead to more “peace of mind” about the process
  • You find out quickly if an employee’s information does not match government databases
  • If you are audited, you may receive favorable discretionary treatment for voluntarily choosing to use E-Verify
  • By using the system, you become aware of and may be able to fix mistakes or errors precipitously
  • It is possible that E-Verify will become mandatory and you may decide that if you start using the program now, you will avoid what may be an inconvenient rush at a later date

There are, however, some down sides, including:

  • You will have to spend time (and therefore incur additional expenses) training employees to use the system
  • You must sign a Memorandum of Understanding (MOU) with the government
  • The MOU allows the SSA and DHS to perform periodic audits at your worksite and conduct employee interviews
  • The E-Verify Monitoring and Compliance Branch regularly monitors usage
  • The government has easy access to all of your company’s employment verification data, which may mean possible increased liability
  • The government can more easily mine and scrutinize your data and compare your data to other companies’
  • E-Verify staff may refer cases of suspected misuse to other enforcement agencies
  • There are additional Form I-9 process requirements, including some more stringent rules about acceptable documentation

Before you determine whether E-Verify is best for you company, please reach out to your Jackson Lewis attorney.

This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients.

Posted at 12:20 pm

“Protecting the Nation from Terrorist Attacks by Foreign Nationals” is expected to be the next Executive Order on immigration from the Trump Administration. This Order is intended to “protect the American people from terrorist attacks” and “ensure that those admitted into our country do not bear hostile attitudes toward our country and its founding principles.”

The Order likely will:

  • Block Syrian refugees from entering the United States for an indefinite period until the President lifts the ban while creating safe zones in Syria to house those awaiting resettlement.
  • Bar other refugees for at least 120 days while the U.S. Refugee Admissions Program for 2017 is reviewed and new vetting procedures are in place.
  • Prioritize claims of religious minorities suffering from persecution (essentially prioritizing claims by non-Muslims).
  • Reduce the overall number of refugees admitted in 2017 to 50,000 (below that proposed by the Obama Administration).
  • Suspend entries and the issuance of visas for at least 30 days from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen while the government reviews its screening processes.
  • Suspend the Visa Interview Waiver Program that allows returning nonimmigrants to extend their visas without appearing for in-person interviews at Consulates abroad.
  • Expedite the completion of a biometric entry-exit tracking system to enable better tracking of foreign nationals in the United States and prevent overstays.
  • Collect and make public information on the number of foreign-born individuals who have been charged with terrorism-related offenses, who have been “radicalized” after entry and engaged in terrorism-related acts, and who have committed gender-based violence against women or “honor killings.”

During the contemplated suspension periods, the Order would direct the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine what information is needed from applicants’ countries of origin to ascertain whether those foreign nationals would pose a threat to the United States. Further, the Order would direct that foreign nationals from countries that refuse to comply would be prohibited from entry until their country of origin does comply.

We will update with any changes once the final version of the Order is released.

 

 

 

 

The U.S. State Department has announced that the Bureau of Consular Affairs is experiencing technical problems with its visa systems, causing delays in printing visas and threatening to require rescheduling some visa interviews. The issue is not country-specific and, therefore, has affected visa applicants worldwide. The State Department expects the systems to be fully operational “soon.”

The State Department said a June 9 hardware failure halted the flow of biometric clearance requests to the Consular Consolidated Database (CCD). The legal requirements necessary to screen visa applicants before visas are issued compel it to wait until the problems are resolved before individuals who submitted online applications or were interviewed for visas on or after June 9 will receive their visas, the State Department said.

Meanwhile, the State Department is working to assist visa applicants with urgent humanitarian need for travel and those awaiting overseas adoption related visas.

Guidance to Visa Applicants

Applicants who were interviewed on or after June 9, 2015, expect a delay in visa issuance and a possible delay in travel plans to the U.S. Visa applicants who have been interviewed and are awaiting visa issuance can request that their passport be returned, but they will need to return to the consulate for visa issuance once the technical issue is resolved. If you have been affected by this technical issue and have an urgent need to travel, please contact your Jackson Lewis immigration attorney for assistance.

Our Immigration team will continue to monitor this situation closely and provide additional updates.

U.S. Citizenship and Immigration Services (USCIS) is requiring customers to verify their identities at USCIS field offices to obtain   interviews or “to receive evidence of an immigration benefit.”  Customers must submit biometric data in the form of fingerprints and photographs at USCIS offices.

When customers arrive at a USCIS field office, they must clear security before being called to the counter.  Once they are at the counter, USCIS requires that customers electronically scan two fingerprints and take a picture to verify their identity.  After USCIS verifies the customers’ identity, they can attend their interviews or receive their documents.
Individuals who are going to a USCIS field office for InfoPass appointments or simply to accompanying a customer are not subject to the identity verification process.  Also, the new initiative does not change current USCIS practices, such as the requirement that applicants and petitioners who are requesting immigration or naturalization benefits provide biometric data and a government-issued document at USCIS’s Application Support Centers.