DEVELOPING NEWS: March 2, 2017

Newsletter – DEVELOPING NEWS: March 2, 2017

URGENT REMINDER: THERE IS STILL TIME TO FILE FOR YOUR H-1B VISA

As stated in our previous Newsletters, if you’re thinking of filing for a cap-subject H-1B working visa, the time to do so is now! Filing time is shrinking as we head towards the April 2017 lottery week from Monday, April 3rd, 2017 to Friday, April 7, 2017 and demand for H-1B visas this year is expected to be high. With over 30 years experience and having achieved tremendous success, we are ready, willing, and able to provide you with the finest legal representation throughout the entire United States! In fact, in the past few years, Nawlaw has actually exceeded the national rate of approval.

TRUMP WAIVERS ON IMMIGRATION STANCE AS NEW EXECUTIVE ORDER IS EXPECTED TO BE ISSUED SOON

On Tuesday, February 28th, President Trump signaled a potential major shift in policy prior to his address to Congress by telling news anchors that he is open to a broad immigration overhaul that would grant legal status to millions of undocumented immigrants who have not committed serious crimes. As reported in the New York Times, the President told television anchors at the White House that “the time is right for an immigration bill as long as there is compromise on both sides.”

Nevertheless, during his first Congressional address later that evening, Trump merely addressed his continued commitment to building a “great wall along our southern border” and did not bring up immigration again. It is expected that a new Executive Order will soon be issued seeking to conform the Trump administration’s temporary travel ban to proper legal standards instead of electing to appeal to the U.S. Supreme Court.

BRIDGE ACT GIVES DREAMERS HOPE

Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL) have recently introduced the BRIDGE Act, bipartisan legislation whose intent is to allow people who are eligible for or who have received work authorization and temporary relief from deportation through Deferred Action for Childhood Arrivals (DACA) to continue living in the U.S. with permission from the federal government. Nawlaw will continue to track the progress of this bill.

NIGERIAN SOFTWARE IS STOPPED AT JFK AND QUESTIONED ABOUT HIS PROFESSIONAL CREDENTIALS

As recently reported on CNBC and the BBC, a software engineer from Lagos, Nigeria, was recently handed a written test by U.S. CBP at JFK Airport to prove his tech credentials. Mr. Celestine Omin was attempting to enter the U.S. for the first time as a employee of Andela, a startup company that connects the top tech talent in Africa with employers in the United States. While Andela, which is backed by FaceBook founder Mark Zucherberg, accepts less than 1% of applicants into its program, U.S. airport immigration officers were not convinced that Mr. Omin was telling the truth about being a software engineer as stated in his visa. He was given two questions with no context or background that Mr. Omin regarded as ambiguous as they each had multiple acceptable answers. When Mr. Omin, who had not slept in over 24 hours given the extent of his trip, did not provide the answers the U.S. CBP was looking for, he was only allowed to enter the country after U.S. Customs officials called Jeremy Johnson, co-founder and CEO of Andela, and received corroboration regarding Mr. Omin’s credentials. This illustrates the huge amount of discretion now vested in CBP officers at all U.S. ports of entry.

CUSTOMS AGENTS CHECKED IDENTIFICATION DOCUMENTS OF DOMESTIC FLIGHT PASSENGERS AT JFK AIRPORT AMONG THEIR NEW FREEDOM TO DEPORT

As reported on Wednesday, February 24th, Customs and Border Protection (CBP) agents met domestic flight Delta 1583 from San Francisco at John F. Kennedy Airport and checked the IDs of every passenger on board. The incident was atypical for both domestic flights, where no identification is needed to exit the airport, and international flights where identification is checked during customs screening after deplaning. We are aware of previous screenings by CBP at several domestic airports during the Obama administration including Newark, Fort Lauderdale and New Orleans.

There have also been reports in Virginia where Immigration and Customs Enforcement agents waited outside a church shelter where undocumented immigrants had gone to stay warm, as well as in Texas and in Colorado where agents went into courthouses looking for foreigners who had arrived for hearings on other matters. We will keep our readers informed of any future developments.

TWO INDIAN ENGINEERS ARE SHOT IN KANSAS: HATE CRIME IS FEARED!

As widely reported. two immigrants from India, Srinivas Kuchibhotla and Alok Madasani, were shot this past week at Austin’s Bar and Grill in Kansas during after-work hours by an enraged patron who slurred ethnic insults at the two men. The patron, Adam W. Purinton, was thrown out of the bar because of his insults and came back shortly thereafter with a gun and fired at the two men while yelling, “get out of my country,” according to fellow customers. Mr. Kuchibhotla was killed while Mr. Madasani was wounded, as well as the 24-year-old man who tried to apprehend the gunman. The shooter has been charged with premeditated first-degree murder and two counts of attempted premeditated first-degree murder, as both federal and local authorities are investigating the event as a possible hate crime.

According to the New York Times, news of the shootings has sparked tremendous fear in Indian nationals of entering “a country that does not want [them].”

MUHAMMAD ALI’S SON IS DETAINED AT FLORIDA AIRPORT AND QUESTIONED ABOUT HIS RELIGION

As recently reported in the Los Angeles Times, Muhammad Ali Jr., son of the late boxing legend and civil rights hero, is considering legal action after he was recently detained at a Florida airport and questioned about his religion. According to Mr. Ali Jr.’s lawyer, border agents pulled the 44-year-old Ali Jr. aside for secondary questioning as he and his mother returned from a trip to Jamaica. While agents released Mr. Ali Jr.’s mother when she presented a photo of herself with the late Muhammad Ali, Mr. Ali Jr. was questioned for an hour and 45 minutes with agents repeatedly asking, “where were you born?,” “are you Muslim?,” and “where did you get your name from?” Ali Jr., a Muslim, is a U.S. citizen who was born in Philadelphia in 1972.

TRUMP REGARDS DEPORTATIONS AS A ‘MILITARY OPERATION’

As recently reported by CNN, despite what his administration has previously said, Mr. Trump has described his moves to deport undocumented immigrants as a “military operation” during a meeting with business leaders at the White House. Though persistently refuted, there have been reports that the Trump administration was considering mobilizing the National Guard to lead deportations. Sean Spicer, the White house press secretary stated, “everybody who is here illegally is subject to removal at any time . . . that is consistent with every country, not just ours. If you’re in this country in an illegal manner, that obviously there’s a provision that could ensure that you be removed.

MEXICO SAYS NO TO TRUMP’S NEW DEPORTATION RULES

Mexican Foreign Minister Luis Videgaray has vowed that Mexico will vigorously fight U.S. mass deportations of undocumented immigrants back to Mexico and refuse to accept any non-Mexicans expelled across the border. Mr. Videgary states, “I want to make clear, in the most emphatic way, that the government of Mexico and the Mexican people do not have to accept measures that, in a unilateral way, one government wants to impose on another.” This comes as a result of a critical provision from the Department of Homeland Security’s new directives that allow federal immigration agents to send people back to Mexico, even if they are not from that country.

IMMIGRATION AGENTS ARREST OVER 600 PEOPLE ACROSS THE U.S. IN ONE WEEK

As reported in the New York Times, federal immigration officials recently arrested more than 600 people across at least 11 states in February 2017. Those detained include 41 in New York, 161 in California, 190 in Georgia, 51 in Texas, and 235 in six Midwestern states according to an ICE fact sheet. These arrests include workplace and home raids as well as reported apprehensions in the streets, such as in train stations. Roughly only 75% of those arrested were immigrants with a criminal record and others happened to be in the wrong place at the wrong time – even without criminal record. The January 25th Executive Order bolstered the immigration force and vastly expanded the group of immigrants considered priorities for deportation to include those without criminal records. These ICE raids were common during the Obama administration as it was especially active in deporting unauthorized immigrants such as in 2012 when 409,849 people were deported. Additionally, in 2015 ICE announced the arrests of more than 2,000 people nationwide in one week, mainly targeting criminals.

EFFECTS OF TRUMP’S IMMIGRATION BAN ON MUSLIM REFUGEES

During the week when President Trump’s refugee ban was in effect, just 15% of the refugees who were admitted were Muslim, compared with a weekly average of 45% in 2016. Of these, only two refugees were allowed in from the seven Muslim-majority countries affected by President Trump’s travel ban, while about 1,800 refugees from these countries had arrived in the United States every week on average since 2016. Still, even a month after Trump’s executive order barring people from seven majority-Muslim nations from entering the United States caused tumult around the country, the government’s accounting of how many travelers the ban affected remains unclear.

Nevertheless, a leaked draft of an intelligence report from the Department of Homeland Security has found that citizens from the seven countries included in Trump’s immigration ban do not pose likely terrorism threats.

SENATE HAS PROPOSED A BILL TO COMBAT TRUMP’S IMMIGRATION ORDERS

A group of senators has recently introduced legislation that would nullify Donald Trump’s January 25th Executive Order that makes the vast majority of unauthorized individuals priorities for removal and that targets internal immigration enforcement by pulling funds from cities that do not cooperate with the federal government’s enforcement agenda, known as “sanctuary cities.” Senator Cortez Masto, the bill’s sponsor, contends that focusing enforcement efforts on mass deportations of undocumented immigrants could seriously disrupt the U.S. economy and workforce. To this end, another bill has also been introduced by several senators that looks to discontinue a federal program that authorizes State and local law enforcement officers to investigate, apprehend, and detain immigrants.

DREAMER DETAINED BY ICE FILES CONSTITUTIONAL CHALLENGE

A 23-year-old man was recently taken into custody last week by immigration officials despite his status under the Deferred Action for Childhood Arrivals (DACA) program that protects deportation for law-abiding people who came to the United States as children. Mr. Ramirez has since filed a challenge in Washington federal court alleging violations of due process and the Fourth Amendment, as “Daniel’s deferred action status entitles him to constitutional protections, [which] U.S. immigration agents may not arbitrarily deprive,” according to his attorney. President Obama’s DACA Executive Order is still in force, and this is believed to be the first DACA recipient detained by Trump’s administration.

TRAVEL ADVISORY

  • Checking of Travelers’ Phones and Devices: There have been repeated reports of U.S. Customs and Border Protection officers pressuring travelers to unlock their cell phones so the officers could scroll through the contacts, photos, apps, and social media accounts. American border agents have broader legal authority to conduct searches at the U.S. border than a police officer on the street, including searching bags for immigration and security compliance without a judge’s approval, which have been extended to digital devices. While agents are allowed to seize the device for weeks before it is returned, and to copy the data therein, agents are not allowed to force someone to unlock their phone or turn over passwords without the traveler’s consent. Since border agents are known to make the experience rather uncomfortable if the traveler resist to comply with their requests, it is recommended to travel with the least amount of data needed, power down devices before arriving to the airport, and encrypt any data needed.
  • Port of Entry News: An Indian national holding a multiple entry B-1/B-2 visa recently seeking to enter the U.S. at Portland, Oregon encountered a problem when trying to explain to CBP that the purpose of his trip was to complete the acquisition of a motel property for a future L-1A visa. His B-1/B-2 visa was cancelled and he was sent back to India after being held in a local jail until the next available flight.
  • Consular News: Many clients are encountering delays in obtaining H-1B extensions both at U.S. Consulates in India as well in Ottawa, Canada.

We ask our readers to continue to report to us any incidents or problems they encounter at U.S. airports, buses, trains, etc. in order to keep all of our clients informed.

WHAT TO DO IF YOUR IMMIGRATION OFFICERS VISIT YOUR COMPANY

  • According to federal law, while a warrant is needed for federal officers to search your business and workplace, (usually these visits occur because of the firing or termination of an employee who then contacts a state or federal agency such as the Department of Labor who, in turn, contacts USCIS/ ICE) no warrant or subpoena is required to inspect an employer’s completed I-9 forms for its employees. Nevertheless, advance notice of 3 business days is required for an I-9 inspection which can be negotiated for additional time. This is done through a ‘Notice of Inspection’ wherein ICE can also ask for a copy of your payroll, a list of current employees, your Articles of Incorporation, and business licenses (if applicable).
  • Therefore, it is strongly recommended to insist on the required advance notice and not to consent to any government searches by U.S. immigration officers who simply show up at the workplace location. It is also recommended that you arrange to bring your company I-9 records to the local ICE office for them to review and avoid ICE agents coming to your place of business. If, however, ICE insists on an onsite inspection, it is recommended to have the inspection conducted in a meeting or conference room away from the main workforce since ICE inspections can be very intimidating to your staff.
  • Nevertheless, if immigration officers do show up at the place of business with a subpoena or warrant, you are legally obligated to comply with the subpoena or warrant. It is recommended to obtain a copy of the warrant and try to monitor the search to determine if there are any issues with the search that can be contested afterwards. And, it is essential that you contact an experienced immigration attorney, or law firm such as Nawlaw immediately to assist you and intervene in the process on your behalf because financial penalties for defective I-9 forms are extremely high.
  • The best defense to any interaction with an immigration officer in your company is to have as strong a compliance program as possible. This includes reviewing and updating the company’s I-9 policies on an annual basis to make sure that I-9 forms and supporting evidence are obtained both timely and accurately. All employers in the United States are required by law to complete an Employment Eligibility Verification Form I-9 for every employee hired after November 6, 1986, and obtain appropriate documentation that the employee is actually eligible to work in the United States. The United States Citizenship and Immigration Services has recently published a revised Form I-9 that must be used for all new hires starting on January 22, 2017. Employers are required by law to keep this form I-9 for 3 years after employment begins or 1 year after employment ends. While employers are not expected to be “document police,” it is important to check for inadequacies to a reasonable degree in order to ensure that your workforce is in proper compliance with federal regulations. If employers provide convincing, but false documentation, they will typically not be responsible for supporting documents that appear reasonably genuine and bona fide.
  • However, non-compliance on the part of the employer could result in very steep fines for uncorrected technical violations, as well as potential criminal prosecution for employing and concealing undocumented workers. Nevertheless, most immigration inspections do not result in actual criminal prosecution, but rather in a Warning Notice, or in the payment of a negotiated civil fine amount. Civil fines for technical violations or failure to produce the Form I-9 for each employee range from $110 to $1,100 per employee. The penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $16,000 per employee. Therefore, the stakes are very high and you need to be mindful of your rights and potential liabilities.

U.S. CUSTOMS IS REVOKING MUSLIM AMERICAN TRAVELERS’ GLOBAL ENTRY CARDS

Recent reports indicate that several Muslim travelers to the United States, both American citizens and green card holders, have claimed that U.S. Customs and Border Protection has revoked their Global Entry card, a program that provides expedited entry through customs checkpoints at U.S. airports to vetted travelers. Travelers have reported that their Global Entry applications were denied without explanation, despite after being approved following screenings and interviews.

N.Y. JUDGE ORDERS TRUMP TO PROVIDE LIST OF DETAINED REFUGEES

A New York federal judge has recently stated that the federal government must comply with a court order to give up information about people detained in connection with Donald Trump’s January 27th immigration ban. Judge Carol Bagley Amon said that the Trump administration must disclose who was held for questioning and who was processed in connection with the executive order in the few days following the ban’s implementation.

U.S. EMBASSY HAS ANNOUNCES 2,600 EXTRA J-1 VISAS FOR IRISH STUDENTS

The U.S. Embassy has announced an additional 2,600 J-1 work and travel visas for Irish students for the summer of 2017, which brings Ireland’s J-1 Summer Work and Travel visa allocation to 7,000 in total. The J-1 application process currently requires students to secure a job before being allowed to travel to the United States. J-1 students previously had a period of three weeks after arriving in the United States to find a job.

ILLEGAL VOTING GETS TEXAS WOMAN 8 YEARS IN PRISON AND CERTAIN DEPORTATION FLEE

Rosa Maria Ortega, a 37 permanent resident mother of four, was recently sentenced to 8 years in prison, and will almost certainly face deportation charges in Fort Worth, Dallas after she voted illegally in 2012 and 2014 federal elections. Ken Paxton, the Texas attorney general has stated that Mr. Ortega’s sentence “shows how serious Texas is about keeping its elections secure,” while her lawyer called it an egregious overreaction, made to score political points against someone who wrongly believed she was eligible to vote.

TRUMP’S IMMIGRATION REFORM CONCERNS REAL ESTATE DEVELOPERS

As there are signs that the real estate upturn may continue through 2017, developers are concerned about how Trump’s immigration policy will affect the construction labor workforce, according to a real estate-focused partner at KPMG. While Donald Trump has said he wants to deport 2 million to 3 million undocumented immigrants, it is still uncertain exactly how the new immigration policy will look. This has developers concerned that the nation’s construction labor workforce may be stretched thin, which will be particularly concerning if current building levels continue or even pick up in 2017.

TAX NEWS

LLC tax returns are due this year on March 15th, and not April 15th!

CANADA IS WELCOMING ASYLUM SEEKERS

Reports have recently appeared that over two dozen asylum seekers have braved the bone-chilling cold of February to walk across the Canadian border to make an asylum claim there. Among these include Farhan Ahmed, a Somalian national, who hoped to find refuge in the United States after fleeing death threats in Somalia, but fear of a U.S. crackdown on immigration after Donald Trump’s immigration ban sent him on yet another perilous journey. This wave of immigrants to Canada in the wake of Trump’s measures also included a two-year-old boy who reportedly begged his mother to let him die in the snow because he could no longer walk.

RECENT CLIENT QUERIES

  1. US citizen with a nanny from the Philippines who overstayed her B-2 visitor visa asks if it is safe for her to travel with the family to West Palm Beach. Ans. On occasion CBP, even under President Obama, has been known to check certain domestic flights in venues such as Fort Lauderdale, Newark, and New Orleans. Hence, there is always a degree of risk – especially in light of the recent Memo and what recently occured at JFK airport this week. However, at this time we are not aware of any actual vetting being conducted at the West Palm Beach airport although we monitor these situations all the time. Certainly, we suggest flying during non-primetime hours.
  2. TN visa holder from Canada asks when is it feasible to start a green card sponsorship? Ans. Any time after arriving in the U.S. with the TN. No waiting period is required. Also, TN’s can seek a green card.
  3. Pakistani national who has U.S. citizenship and is now seeking Canadian citizenship asks if this is permitted? Ans. Yes, the U.S. does permit not only dual but multiple citizenship.
  4. Naturalized U.S. citizen whose mother is in India asks if, in view of the proposed Senate bill to eliminate the classification of parents of U.S. citizens as “immediate relatives” if she should file for her parent immediately? Ans. We don’t expect immediate Senate action on this proposed bill. However, in view of the speed with which the government is moving it is advisable to consider filing sooner rather than later.
  5. Green card holder from Ireland who is in the process of seeking a green card for her husband who came to the U.S. on ESTA many years ago and overstayed asks, “In light of perceived increased ICE activity, what advice can we give immigrants about being approached in public, on subways, etc.?” Ans. As a result of the recent Memos there are certainly hazards. Of course, what we have learned is that on occasion when ICE is searching for a foreign national with a criminal conviction, and encounters someone who has overstayed their visa or entered illegally they are likely to take them into custody as part of the dragnet. ESTA beneficiaries are subject to immediate removal from the U.S. without any hearing or relief since they have previously agreed to waive their rights.
  6. Naturalized U.S. citizen born in Iran who runs a successful law firm asks, “I am planning a short trip to Dubai and am concerned that I will experience a problem on my return?” Ans. As a naturalized citizen you should not encounter any problems upon returning at the U.S. port of entry.
  7. Naturalized U.S. citizen born in Nepal is planning to travel with her employer to the Dominican Republic and asks if she will experience difficulties? Ans. No. We don’t foresee a problem.
  8. Green card holder from China asks, “With unsettling immigration news coming from the Trump administration nonstop, do you think Chinese citizens are in danger of being revoked of their Green Cards or barred from entering the US?” Ans. No.
  9. Green card holder from Latin America asks, “Now, with all this immigration craziness going on, what do I do in my case? Should I carry my Green Card with me? What should I do if an officer stops me on the street? Or if I am contacted by immigration in any way?” Ans. Federal regulations do require you to carry an original green card with you. If you are 18 or older, you do have to carry your green card with you. Section 264(e) of the Immigration and Nationality Act (I.N.A.) requires all lawful permanent residents (LPRs) to have “at all times” official evidence of LPR status. Failing to have your green card with you is a misdemeanor and if you are found guilty you can be fined up to $100 and put in jail for up to 30 days. (I.N.A. Section 264(e).) A copy is not good enough, because the law does not use the word “copy” or refer to “other evidence” of LPR status.
  10. Green card holder from Ireland asks, “I have since received my green card via employment (in March 2014) and we got married in December 2014, to an ESTA visa holder from Ireland. We were planning on a trip to Florida next week but with all the recent immigration focus we wanted to get your guidance. Previously you had advised my husband to carry his marriage certificate with him and a copy of my green card. Not sure that would make a difference under the new regime. (we are booked to travel on Friday March 3rd , booked first class as security moves easier on that line)?” Ans. In light of the recent Memo as well as what recently happened at JFK airport, there is certainly a risk and ESTA visa holders are particularly at risk since, under ESTA, you waive all your rights and there are no defenses to removal.

SAMPLING OF RECENT NAWLAW ACCOMPLISHMENTS

  • O-1B approval for a French national as a Curator for leading internet art platform
  • B-2 extension approved for Canadian national in just 4 months
  • EB-1 extraordinary ability green card (self-petition) approval for a Romanian national as a Public Relations Expert
  • EB-1 extraordinary ability green card (self-petition) approval for a Brazilian national as a Latin American Finance Expert
  • EB-2 approval for an Indian national working as a Systems Analyst for an IT consulting and software solutions company
  • EB-2 approval for a Brazilian national working as a Portfolio Manager for an investment advisory firm
  • EB-3 approval for an Indian national working as an Assistant Vice President for an investment bank
  • EB-3 approval for a Canadian national working as a Director of Sales for a fashion design company
  • H-1B approval for a Turkish national working as a Business Development Specialist for a leading freight forwarding and logistics company
  • H-1B approval for a Costa Rican national working as an Associate in Finance and Corporate Development for an oil and gas exploration and development company
  • H-1B approval for a Canadian national working as a Vice President for an investment bank
  • TN-1 approval for a Canadian national working as a Vocational Counselor for a major university
  • TN-1 approval for a Canadian national working as a Management Consultant for a leading swimwear and clothing design company