Immigration Newsletter Spring 2018

Immigration Newsletter Spring 2018

We are now seeing compelling immigration news stories on a daily basis and most are very disturbing, particularly the recent US Supreme Court…

decision in Rodriguez permitting indefinite detention of green card holders with criminal issues as well as illegals by ICE. Also quite disturbing was the recent decision by Attorney General Sessions to override a favorable decision by the Board of Immigration Appeals – this is something that is very rarely done.

And, the recent decision by USCIS to no longer state that we are a nation of immigrants!

Congress has filed to cure DACA and the federal courts have, fortunately, intervened to permit extensions. We’ve also seen the outright attack by ICE against the State of California because of its “sanctuary” policies and ICE has been going wild in New York criminal courthouses, apprehending both illegal immigrants and those with pending green card applications. Never before have I experienced a greater state of uncertainty for illegal immigrants in our country and a lack of respect for legal immigration.

Regrettably, many Americans still seem to consider them as one. Yet, when you view the state of uncertainty throughout the entire world including right-wing movements in many countries, the US still remains the country of choice for those seeking a better way of life for themselves and their children.

I am confident this cloud will eventually pass and normalcy will return to this country as well as appreciation for the invaluable role that immigrants have played throughout our great nation’s history – we only hope this happens very soon!”

– Neil A. Weinrib, Founder & Managing Director

ALERTS & ANNOUNCEMENTS

Beware of Pre-Flight Clearance

As many of our readers know, CBP offers pre-flight clearance at various airports around the world including Shannon and Dublin Ireland, Pearson/Toronto, as well as Abu Dhabi. We often caution our clients to be extremely careful during their encounters in these ports of entry. For example, a client from Pakistan, former green card holder, experienced a major issue during pre-flight inspection by US CBP authorities in Abu Dhabi.

Although he had been outside the US for under 6 months and was in the process of obtaining a re-entry permit he and his family members were denied admission as green card holders and compelled into relinquishing their green cards! He was forced to sign a statement by the authorities which was factually incorrect regarding the circumstances!

In the past, we have cautioned our clients to beware of pre-flight clearance in Abu Dhabi since the CBP officers can be very strict! Green card holder from Italy (who hasglobal entry) seeking to re-enter at Miami Intl’ Airport and who was out of the US for only 4 months because of surgery abroad (had explanatory letter with him) was asked by the CBP officer: “What do you need the green card for?” Client explained that he has a house and company in Florida, pays taxes, etc. This is the “new normal.”

ICE Formalizes Policy for Deportation Arrests in Courthouses

ICE has recently formalized a policy which allows ICE agents to make arrests at courthouses. The agency has said that the arrests will only target threats including felons, gang members, public safety threats, and previously deported immigrants. ICE states that the directive was formalized due to the lack of cooperation of known sanctuary states and cities which “necessitated additional at-large arrests.”

CBP Now Inspecting Buses

A Jamaican woman who overstayed her tourist visa was removed from a Greyhound bus in Florida by CBP agents who asked all bus riders to provide proof of citizenship. The removal was decried by immigration advocates who question whether the action was legally valid.

CBP Officials released a statement on Twitter noting that immigration officers may “within a reasonable distance from any external boundary of the US… board and search for aliens in any vessel, rail car, aircraft, conveyance, or vehicle” without a warrant.

DACA Participants Can Apply For Renewal

In a recently released statement, USCIS has said that “until further notice…” the DACA program “…will be operated on the terms in place before it was rescinded” in September by President Trump. The statement was released after a federal judge issued an injunction ordering the Trump Administration to resume the Obama-era program. USCIS states that people who were granted deferred action under the DACA program can request a renewal if it had expired on or after Sept. 5, 2016.

DACA enrollees whose deferred actions have expired before Sept. 5, 2016, cannot renew, however, may instead file a new request. The same instructions were given to anyone whose deferred action was terminated. Officials have stated that they are not accepting requests from individuals who have never been granted deferred action under DACA.

SUPREME COURT DECISIONS

Supreme Court Preserves DACA

The U.S. Supreme Court recently denied the Trump Administration’s request to immediately review a California federal court order which temporarily froze a move that would end the DACA program.

The decision would mean that DACA for recipients will remain in effect past the March 5th deadline set by the current administration. Previously two separate federal court judges issued injunctions against the removal of the DACA program.

Supreme Court Rules Against Bond Hearings for Immigrants

The U.S. Supreme Court has ruled that individuals facing deportation held by the government are not entitled to a bond hearing despite being detained for months even years. The case had previously been deadlocked until Justice Neil Gorsuch was added to the court.

U.S. Supreme Court to Review Trump’s Latest Ban

The U.S. Supreme Court has agreed to review Trump’s third iteration of the travel ban to determine whether the ban on travel affecting mostly nationals of Muslim-majority countries is unconstitutional and violates federal immigration law. The Court will assess the ban which imposes travel restrictions on nationals from Chad, Iran, Libya, Syria, Yemen, Somalia, along with North Korea and Venezuela.

IMMIGRATION IN POLITICS

Family-based Immigration Under Threat by Trump Administration

Foreign parents, siblings, and children of legal residents and U.S. citizens are now the latest target of the Trump administration as Congress continues to debate immigration. Trump offered citizenship opportunities for DACA enrollees in exchange for large cuts to visas typically reserved for siblings, parents, and children of citizens and permanent residents.

Details on the Trump Administration’s proposal to cut family-based immigration have not been drafted but if the proposal were to succeed, U.S. citizens will not be able to bring family members to America anymore. Approximately 750,000 green cards are issued for family-based immigration per year. Currently, the law allows U.S. citizens to sponsor green cards for their spouses, minor children, and parents and there is no limit to the number USCIS may grant.

ICE Able to Track License Plates in America

ICE has recently entered into a contract with security database company Vigilant Solutions giving enforcement agents the ability to access information of more than 2 billion license plates. ICE can now search the database to find every location a license plate has been seen in the last 5 years. ICE can also monitor sightings of specific license plates via phone or email alerts.

The ACLU and legal analysts have recently voiced privacy concerns as the database does not limit its reach to just license plates associated with undocumented immigrants.

Proposed H-1B Visa Bill to Seek Higher Annual Quota

Republican Senators Orrin Hatch and Jeff Flake recently introduced a bill proposal that seeks to increase annual H-1B visa quota from 65,000 to 85,000. The H-1B is a work visa granted to highly-skilled foreign professionals who seek to work at companies in the United States. The H-1B visa is valid for 3 years and visa holders can renew their status for another three years.

The proposed bill would also extend the quota to provide work authorization for spouses and children of H-1B visa holders. The bill may see opposition as the Trump administration had said in December that it is seeking to remove work authorization for H-1B visa spouses and children.Furthermore President Trump has voiced concerns that alleged abusers of the program would use it to replace American workers.

Sanctuary Cities Under Threat by the DOJ

The Department of Justice is now actively threatening 23 sanctuary cities including Chicago, New York, and Los Angeles with subpoenas if they fail to cooperate by providing documents to show whether state and local law enforcement officers are sharing information on undocumented immigrants with federal immigration authorities.

The demand by Attorney General Jeff Sessions shows the Trump Administration’s policy to punish local jurisdictions for failing to comply with immigration enforcement efforts. Local officials from the sanctuary cities reacted withprotest against the DOJ for issuing such threats. New York Mayor Bill de Blasio called the DOJ’s actions a “racist assault on our immigrant communities.”

Tourism to U.S. in Decline Under Trump Administration

Since President Trump has taken office, U.S. tourism has been in decline and data from the Department of Commerce shows that the decline has cost the U.S. economy $4.6 billion and 40,000 jobs. The data shows a 3.3% drop in travel spending and a 4% drop in incoming travel.

Experts state that Trump’s travel bans, anti-immigration rhetoric, and increased security have had a negative influence on U.S. tourism. The negative media attention on the U.S. government has created a sense of antipathy towards the U.S. by foreign travelers affecting their travel behavior.

New Report States Trump Administration is Violating Treaty Obligations

A new report released by the international human rights organization, Human Rights First, revealed that the Trump administration is targeting refugees who are legally seeking asylum in the United States. The report stated that rather than sending refugees to plea their cases in front of an immigration judge, the Administration is sending the refugee cases to criminal prosecution and deportation disregarding the violent dangers these refugees may encounter in their home countries. Human Rights First notes that these actions are a clear violation of US treaty obligations and “place asylum seekers at a heighten risk of returns to countries where they may face persecution.”

The report details cases of border officials separating parents from their children and plea agreements that force seekers of asylum to renounce their claims of refugee status. The report is based on 10 months of investigation beginning in April 2017.

Trump Administration to Bar Haitians From Seasonal Worker Visas

The Trump administration is currently moving to ban Haitians from applying for visas for seasonal and agricultural workers. The Department of Homeland Security was given notice that it plans to prohibit Haitians, in addition to nationals of Belize and Samoa, from applying for the H-2A and H-2B temporary visas. The notice by the Department of Homeland Security was publicly posted online. The notice stated that Haitians who have previously been granted the visas “have demonstrated high levels of fraud and abuse and a high rate of overstaying their terms of their H-2 admission.”

Legal analysts have stated that the ban has eliminated the only U.S. work visas that most Haitians can apply to receive. Analysts have also stated that barring Haitians from the temporary visas will negatively affect the U.S. economy which is already struggling with the recent reductions to granted seasonal worker visas.

RECENT USCIS ADJUDICATIONS

We have been reviewing the latest decisions and appeals rendered by USCIS and have observed the following:

  1. Recent decisions involving Accountants for non-accounting firms are being attacked as not being H-1B eligible.
  2. In regard to Level 1 wage cases, most successful responses to Requests for Further Evidence reflect that petitioners are utilizing the 2009 USCIS Policy Memorandum regarding Level 1 wage determinations.
  3. H-1B petitions filed by related companies for the same H-1B beneficiary are now being tracked, connected, attacked and denied.
  4. Expert Opinion Letters are frequently being attacked in connection with H-1B Requests for Further Evidence.
  5. Regarding L-1 intracompany transfers, USCIS is attacking small companies seeking to transfer executives or managers, especially from India.
  6. In regard to H-1B petitions, the Service is now saying that the well known Residential Finance case (involving a Market Research Analyst) was filed directly with the US District Court in lieu of appealing to the Administrative Appeals Office and, therefore, carries less weight!

U.S. District Court Judge William Orrick has recently issued a permanent injunction blocking Trump’s executive order seeking to strip “sanctuary cities” of federal funding. The ruling nullifies Trump’s January executive order on the matter, and bars the administration from setting new conditions on spending approved by Congress.

CLIENT QUERIES

Q: F-1 student from Sweden who was previously on OPT but had not worked traveled abroad prior to the end of her OPT and asks if she is permitted to return to the US?
A: If you have a valid F-1 but have not worked pursuant to OPT you are not entitled to the 60 day grace period that is customarily accorded.

Q: Relative of a 93-year-old woman born in India who is disabled and unable to appear for a bio-metrics appointment for green card renewal asks: Is this required or is there an exemption available?
A; Yes, there is an exemption available.

Q: Green card holder from Bulgaria who has petitioned for his wife’s green card (she was previously on an F-1 student visa) asks: We have now filed for my wife’s adjustment of status to green card. Can my wife start a small business before obtaining the work permit (EAD)?
A: Yes, even visitors are permitted to set up U.S. corporations and own interests in companies. This is not a violation of federal regulations.

Q: Green card holder from Sweden asks: How many years do I need to be married to apply for citizenship? Also, is it ok for me to have the mail changed since we have 4 homes?
A: Since the green card, in this case, was based on having been married for over 2 years federal regulations provide that the waiting period for US citizenship is reduced to 3 years – however, you can apply 3 months early. As for multiple residences, that does not present a problem although federal regulations provide that you are required to notify the authorities through form AR-11 (on-line) of any change of residence – in this case I would select the primary residence for registration purposes.

Q: Green card applicant from Ireland asks: “I am poised tostartat a new company here in New York on February 12th. I had a quick query around travel. I am looking into a trip back home to Dublin from Thursday 1st Feb – Thursday 8th February. I plan to hand my notice in to my current employer tomorrow(Friday 12th Jan) and terminate my employment with them on the 31st of January. For travel back to Ireland, my L1B is still valid although it may be voided when I am re-entering the States since I will not be with the company anymore. Can I re-enter the States using the Employment Authorization card or do I need other documentation?”
A: Upon issuance of the Employment Authorization/Advance Parole Travel document from USCIS you are free to cease your current employment and engage in self-employment. You also are no longer bound by the L-1B visa with respect to travel outside the US. That is, you can return to the US after traveling abroad using the Advance Parole.

Q: Established architectural firm in New York asks: “We are looking to hire a young graduate. She just graduated from Columbia Univ. Columbia GSAPP’s Master of Architecture (M.Arch) is now designated as a STEM program in Architectural and Building Sciences/Technology (CIP code 04.0902).However her international office said that the employer has to be e-verified. I looked at the E-verification website and it looks like we are not registered on it. If we go and register ourselves, do you see any pitfalls in our current open visa cases? Also once we get e-verified, does this have implications on all our hires irrespective of whether they need a visa or not to work?”
A: If you register for E-Verify you will need to maintain compliance for all future hires.

Q: H-1B beneficiary and holder of a J-1 visa from Ireland asks: “Will it be a problem if I decide not to return to Ireland to pick up my H-1B and seek a change of status from J-1 to H-1B?”
A:. The US Department of State (DOS) advises the sponsoring organizations (HTP, AIESEC, etc.) that if the J-1 Beneficiary changes their intent (files for H-1B) or chooses not to return home, they should (but don’t necessarily have to) ‘terminate the record’ of the J-1 program. A ‘termination’ goes into the DOS record and can have highly negative implications for future change of status (COS) or adjustment of status to green card (AOS) for the Beneficiary.

Basically, it’s at the discretion of the J-1 Sponsor whether to ‘terminate’ (highly negative repercussions) or just ‘cancel’ the program (no real negative repercussions) for any issue that arises, particularly for H-1B issues. Some J-1 sponsors will routinely ‘terminate’ if a COS is filed or if any other suspicious circumstances arise. Others will only terminate in egregious case – i.e. DUI, AWOL, Intent to violate insurance clause. Most J-1 sponsors monitor H-1B filings for J-1 Trainees. If the sponsor sees that an H-1B was filed, they will either ‘terminate’ immediately or contact the Beneficiary and see if the Beneficiary can provide a plausible explanation for the filing. The DOS themselves doesn’t terminate but if the Sponsoring organization terminated the J-1 record this will show up at CBP or DOS and they will then cancel the J-1 visa on the spot when the Beneficiary tries to re-enter the U.S. Also, if someone applies for a COS to H-1B during the J-1 status and the COS is approved, the DOS records will then show that the J-1 is ‘inactive’ and the H-1B is ‘active’. This will present its own problems re: intent and problems returning on the J-1 visa.

Israeli national currently working for the Embassy who is married to a US citizen and applying for a green card asks: “Before filing it is important that we know whether the work permit, travel permit and filing of documents in ANY way will affect Amit’s current status as an A1 visa holder before the interview? We cannot do anything that will compromise his ability to work in his current position before having the interview, which includes filing a waiver of Immunity or Inter-agency Record of Request.”
A: Please bear in mind that he is applying for lawful permanent resident of the US – not US citizenship – hence, he is not relinquishing his Israeli citizenship in any way during this entire process and thereafter. In fact, when he is later eligible to apply for US citizenship he will still be able to retain his Israeli citizenship since dual (and multiple) citizenship is recognized by the US.

Q: Brazilian national holding a green card asks if his wife and children can legally remain in the US until such time as he becomes a naturalized citizen?
A: Because of the current Second Preference processing delays involving green card petitions for the spouse and children of lawful permanent residents (green card holders) and assuming that Congress does not seek to end this aspect of “chain” immigration –the current estimate is at least two (2) years, we highly recommend that they maintain legal status-especially in view of the Trump administration enforcement policies provide that any foreign national who is out of status is now subject to deportation and removal.

Q: Former E-2 visa manager now married to a US citizen asks: “We are now applying for the green card but I am no longer employed with the E-2 company. We were advised to file taxes as a couple as it would help the visa process. What should we do?
A: Although you have not yet been granted employment authorization/work permission by USCIS in conjunction with your application for adjustment of status to green card, you can still reference the previously issued social since it was issued in your name and will continue to be available when you are granted work permission by USCIS. In other words, you will most likely be issued the same social security number.