Immigration News and Updates for Mid-January 2020

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Wow! For years there has been no waiting line for individuals seeking to immigrate through employment,who were not from India, China, and the Philippines. Now these 192 countries, commonly called the “Rest of the World” or “ROW,” will be subject to longer waiting lines than just the processing times for Labor Certifications (PERMS) and Immigrant Visa Petitions (I-140s). And, this is without any change in the law, including a proposal currently in the Senate that will extend wait times for the ROW to 10-15 years.

If you have an approved Labor Certifications currently, it is essential that you file your I-140 petition by premium processing today, and concurrently file your Adjustment of Status Applications (I-485) if you are in the United States. Otherwise, you will begin at least a year long wait (if not a “years” long wait) to complete the immigration process. This ROW backlog points out the increasing demand for labor from every aspect of our economy, and the failure of our legal immigration system to keep up with the modern economic era. Unfortunately, neither the President nor Congress are living in the real world when it comes to immigration and the economy, so do not expect any real fixes this year. At the most, we will get leaky band-aids placed on open wounds. Nothing will fix this problem until, like adults, both parties sit down in open hearings and debate where we want to be as a country in two generations and, then, we will have a rational and fact-based fix to our immigration laws.

We will keep you alerted to all of the breaking news here through our newsletter. At Kuck Baxter Immigration, we are dedicated to providing you up to the minute information through our Twitter feed, Facebook, Linkedin, our blog, and our podcast. Don’t forget to check these out, and don’t hesitate to send your questions or comments. Information and knowledge are power.

Upcoming Events and Kuck Baxter Immigration Media

We are actively engaged in our immigrant community both locally and national. Last week we gave three different community presentations on a variety of immigration topics to employers, community activists and foreign students.

We regularly speak at community events, continuing legal education seminars, Human Resource conference, and at universities and colleges around the US. If you would like us to speak to your group for free, let us know! Also, check out our website and come on out to an event! We also do a Facebook live every week, in both English and Spanish, every Friday at 2 pm. Follow us on our Facebook page and catch the action! You can also follow us on our YouTube page, which has hundreds of videos encompassing every immigration topic.

Have You Checked Out Our Blog and our Podcast?

Our Blog is updated each week with information, breaking news, and answers to questions you need to know!

You can also listen to our Top 50 rated podcast, “The Immigration Hour” podcast, that we post each Tuesday. The last episode talked in detail about S386, what is means for immigrant visa applicants through employers, and its chances for passage with the newest amendments. Download it and listen at your leisure. If you have comments on the podcast, or topics you would like us to talk about on The Immigration Hour, let us know!

Here is the Immigration News You NEED to Know Now

IMMIGRATION NEWS IN BRIEF:

Iranian-Americans Stopped, Questioned When Returning From Canada – More than 60 Iranian-Americans reportedly were held for questioning when returning from Canada recently via Washington State.

USCIS Publishes Notice ‘Formally Announcing’ Implementation of Electronic H-1B Registration Process and Timeframe – USCIS will open an initial registration period from March 1 through March 20, 2020, for the FY 2021 H-1B numerical allocations.

Trump Administration Considering Expanding Travel Ban to More Countries, Insiders Say – People familiar with the draft plan said information could be released publicly, as part of election-year efforts, around the third anniversary of President Trump’s first travel ban announced on January 27, 2017.

Immigration Provisions Included in Newly Enacted Defense Act – On December 20, 2019, President Trump signed the National Defense Authorization Act, which includes several immigration-related provisions.

Investigation Finds Fake Companies Exploiting F-1 Student Visa Program –NBC found that 14 “suspicious” companies employed more than 5,500 foreign students through the Optional Practical Training program.

Trump Signs Legislation Extending EB-5 Regional Center Program and Others – In addition to preventing a government shutdown, highlights include an extension of the EB-5 regional center program sunset date to September 30, 2020.

EADs Extended to January 4, 2021, for Six TPS Countries– DHS has extended the validity of employment authorization documents issued under TPS designations through January 4, 2021, as specified in the notice, for certain TPS beneficiaries from El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal.

USCIS Begins Accepting Applications From Liberians Under New Law – On December 26, 2019, USCIS announced that it would begin accepting applications from certain Liberian nationals to adjust status to lawful permanent residence under a new law.

DHS, DOJ Propose Rule Expanding Bars to Asylum – A new joint proposed rule by the Departments of Homeland Security (U.S. Citizenship and Immigration Services) and Justice (Executive Office for Immigration Review) would provide seven additional mandatory bars to eligibility for asylum.

January Visa Bulletin Includes Projections in Employment-Based Categories – The Department of State’s Visa Bulletin for January 2020 includes information on potential monthly movement in the employment-based categories, and on programs set to expire.

USCIS Updates Guidance on Travel by TPS Beneficiaries in Removal Proceedings – In particular, this update covers beneficiaries who have final removal orders, and who depart the United States and return with an advance parole travel document.

ICE Steps Up Deportations of DREAMers – According to reports, all DACA recipients whose deportation cases were administratively closed are being reopened.

Justice Dept. Settles Immigration-Related Discrimination Claim Against Large Staffing Company – The Department of Justice reached a settlement agreement with Adecco USA Inc., one of the largest staffing companies in the United States.

House Passes Bill to Address Labor Shortage in Agriculture; Senate Prospects Unclear – Among other things, the bill would provide a path to legal status for agricultural laborers, allowing additional green cards, and making it easier to hire H-2A workers.

USCIS Announces Implementation of H-1B Electronic Registration for FY 2021 Cap Season – USCIS will open an initial registration period from March 1 through March 20, 2020.

USCIS Expands Guidance on ‘Good Moral Character’ Determinations – Among other things, the updates to the agency’s Policy Manual provide additional examples of unlawful acts and instructions for USCIS adjudicators, and further identify unlawful acts that may affect good moral character determinations based on judicial precedent.

Two Courts Grant Trump Administration’s Motions on Public Charge Inadmissibility Determinations Rule Challenge – Related litigation continues in other courts.

U.S. Grounds Hundreds of Saudi Aviation Students After Pensacola Attack – According to reports, the “pause” affects more than 800 students nationwide, although they are permitted to continue attending classroom training.

 

USCIS Proposes Fee Increases – USCIS has proposed dramatic increases in fees for family, business, and naturalization filings. The window for commenting was very short; comments were due by December 30, 2019.

Regulatory Agendas are not Just Wish Lists Any Longer – The Trump administration’s recently published regulatory agenda will re-define the term “specialty occupation,” significantly narrowing the types of occupations which qualify for H-1B, eliminate the H-4 EAD, drastically increase the compliance burden and re-define the parameters for the L-1 visa, narrow the scope of post-degree optional practical training for foreign students, and increase oversight of the EB-5 program.

Just When You Though It Was Safe to Get Back on Twitter – The Knight First Amendment Institute at Columbia University and the Brennan Center for Justice at New York University School of Law filed a lawsuit on behalf of two documentary film organizations, asserting how dangerous it is to force individuals from repressive countries to reveal pseudonymous activities related to political or other censored conduct within their home countries.

9th Circuit Grants Government’s Motion on Public Charge Rule – The 9th Circuit Court of Appeals voted 2 to 1 to grant the government’s motion for an administrative stay of the public charge rule injunction pending appeal.

Client Alert for Premium Processing Cases – Effective December 2, 2019, the fee for Premium Processing has increased from $1410 to $1440. USCIS has also proposed a new rule (published in the Federal Register on November 14, 2019) to extend the Premium Processing adjudication time

Health Insurance Proclamation Injunction Granted – An Oregon-based federal judge, and now the 9th Circuit, have blocked the October Presidential Proclamation which would have required immigrants entering the United States to prove that they either have health insurance or access to it within 30 days of entering the country.

ABIL Global: Australia – The Australian government has made a concerted effort to encourage migrants to settle in regional areas rather than cities.

ABIL Global: United Kingdom – After an exhausting years-long process, Brexit is all but inevitable.

Here are the Details from the Headlines:

Iranian-Americans Stopped, Questioned When Returning From Canada

Following closely on the heels of heightened tensions between the United States and Iran, reports have surfaced of more than 60 Iranian-Americans being held for questioning when returning from Canada via Washington State. The questions reportedly included political opinions in some cases. Most were released, some after up to 10 hours of questioning. Others were denied entry, at least temporarily.

A spokesperson for U.S. Customs and Border Protection (CBP) said, “Social media posts that CBP is detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin are false.” Meanwhile, Washington’s Lt. Governor Cyrus Habib said that he personally received worrisome messages from friends that they or their family members were stopped and questioned at the Peace Arch border crossing at Blaine, Washington.

Details: News articles, https://www.nytimes.com/2020/01/05/us/politics/iranian-americans-border.html; https://www.newsweek.com/iranian-american-lt-governor-cbp-detained-iranian-americans-1481525

The Council on American-Islamic Relations (CAIR) has published “know your rights” materials in many languages, including “Know Your Rights While Traveling.” The material is available at https://www.cair.com/KnowYourRights.

USCIS Publishes Notice ‘Formally Announcing’ Implementation of Electronic H-1B Registration Process and Timeframe

On January 9, 2020, U.S. Citizenship and Immigration Services (USCIS) published a Federal Register notice formally announcing implementation of the H-1B registration process for fiscal year 2021 H-1B cap-subject petitions.

USCIS will open an initial registration period from March 1, 2020, through March 20, 2020, for the FY 2021 H-1B numerical allocations. The agency released the following details:

·         During this timeframe, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition must first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.

·         Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each person for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.

·         As described in the H-1B registration final rule, if more than a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the FY 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.

·         Prospective petitioners with selected registrations will be eligible to file a FY 2021 cap-subject petition only for the person named in the registration and within the filing period indicated on the eligibility notice.

·         Employers will be notified by USCIS of the exact amount of time allowed for filing the

·         H-1B petition, which will in all cases be at least 90 days but may be longer at the discretion of USCIS. Employers will have the ability to file their petitions as soon as eligible (i.e., by April 1) to allow the beneficiary to obtain cap-gap, if required.

·         USCIS may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

 

Kuck Baxter Immigration recommends a thorough evaluation of any potential H-1B petition even before submitting the registration. For example, there ought to be preliminary discussions on education credentials, occupational classifications, wage levels, job descriptions, proving the specialty occupation, and establishing the nexus between the petitioner and third-party sites all before submitting a registration. It would be most unfortunate for an employer to be notified of a selection only to be later advised that their H-1B petition would likely be denied due to a degree or specialty occupation issue.

Details: USCIS announcement, https://www.uscis.gov/news/alerts/uscis-formally-announces-implementation-electronic-h-1b-registration-process-and-registration-timeframe; Federal Register notice, https://www.federalregister.gov/documents/2020/01/09/2020-00182/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

Trump Administration Considering Expanding Travel Ban to More Countries, Insiders Say

According to reports, the Trump administration is considering a substantial expansion of its travel ban to more countries, possibly seven. The plan has not yet been finalized, and a draft being circulated does not indicate which countries may be included. People familiar with the draft plan said information could be released publicly, as part of election-year efforts, around the third anniversary of President Trump’s first travel ban announced on January 27, 2017.

Details: News article, https://www.nbcnews.com/politics/donald-trump/white-house-considering-dramatic-expansion-travel-ban-n1113871

Immigration Provisions Included in Newly Enacted Defense Act

On December 20, 2019, President Donald Trump signed the National Defense Authorization Act for Fiscal Year 2020 (S. 1790). Immigration-related provisions include:

 

·        The ability for certain Liberians who have been in the United States since November 20, 2014, to adjust status. The new law is expected to include more than 4,000 Liberians and their spouses, children, and unmarried adult children. U.S. Citizenship and Immigration Services said it will accept such applications until December 20, 2020, under the new “Liberian Refugee Immigration Fairness (LRIF)” program.

·        Parole-in-place for service members and their families on a case-by-case basis.

·        The addition of 4,000 more visas under the Special Immigrant Visa Program for Afghan interpreters who worked with the U.S. military.

·        Protection for temporary protected status (TPS) and Deferred Action for Childhood Arrivals (DACA) recipients from being separated involuntarily from the U.S. Armed Forces.

·        $1.38 billion toward President Trump’s border wall.

Details: Bill text, https://www.congress.gov/bill/116th-congress/senate-bill/1790/text; USCIS LRIF announcement, https://www.uscis.gov/news/alerts/uscis-begins-accepting-green-card-applications-under-liberian-refugee-immigration-fairness; USCIS LRIF page, https://www.uscis.gov/green-card/other-ways-get-green-card/liberian-refugee-immigration-fairness

Investigation Finds Fake Companies Exploiting F-1 Student Visa Program

A new investigation by NBC News/NBC Bay Area found that fake companies providing false employment verifications have been exploiting the F-1 student visa program, which allows students to stay in the United States after they graduate to obtain practical work experience. One defendant reportedly admitted to providing false employment records for nearly 2,700 students, for example.

NBC said its efforts to contact officers at 14 “suspicious” companies “were met with a series of dead-end business addresses and disconnected phone numbers. Emails, phone calls, and social media messages went unanswered by all but two companies. In those two instances, an officer reached by phone verified their identity but declined to discuss their company.” NBC noted that U.S. Immigration and Customs Enforcement records showed that those 14 companies employed more than 5,500 foreign students through the Optional Practical Training (OPT) program in 2017.

Kuck Baxter Immigration cautions that F-1 foreign students should seek employment with legitimate companies that provide employment directly related to a student’s major area of study. Obtaining false employment verification will have a serious impact on the student’s ability to maintain F-1 status and will also adversely impact the student’s eligibility for future immigration benefits.

Details: NBC Bay Area report, https://www.nbcbayarea.com/news/local/thousands-of-foreign-students-may-have-overstayed-visas-through-employment-at-shell-companies/2178507/; news article, https://www.nbcnews.com/politics/immigration/thousands-foreign-students-u-s-student-visas-may-have-worked-n1109286

 

Trump Signs Legislation Extending EB-5 Regional Center Program and Others

President Donald Trump has signed legislation for fiscal year 2020 that includes several immigration-related provisions. In addition to preventing a government shutdown, highlights include:

·        Sunset date extended to September 30, 2020, for four immigration programs: the EB-5 regional center program for certain immigrant investors, the Conrad state 30 program for certain foreign doctors in J-1 status, E-Verify, and certain foreign religious workers

·        A new ombudsman to investigate Department of Homeland Security personnel misconduct and violations of the rights of migrants in detention

·        Provision for unannounced inspections of detention facilities and allowing lawmakers to visit them

·        Information posted publicly on numbers and categories of people in U.S. Immigration and Customs Enforcement custody

·        $1.38 billion toward President Trump’s border wall

 

Details: Bill text, https://docs.house.gov/billsthisweek/20191216/BILLS-116HR1865SA-RCP116-44.PDF; News articles, https://bit.ly/2My6sxahttps://bit.ly/377F01k

EADS Extended to January 4, 2021, for Six TPS Countries

The Department of Homeland Security has extended the validity of employment authorization documents (EADs) issued under TPS designations through January 4, 2021, from the current expiration dates of January 2, 2020 (for El Salvador, Haiti, Nicaragua, and Sudan); January 5, 2020 (for Honduras); and March 24, 2020 (for Nepal).

Details: Federal Register notice, https://www.govinfo.gov/content/pkg/FR-2019-11-04/pdf/2019-24047.pdf; USCIS TPS alert, https://www.uscis.gov/humanitarian/temporary-protected-status

USCIS Begins Accepting Applications From Liberians Under New Law

On December 26, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it would begin accepting applications from certain Liberian nationals to adjust status to lawful permanent residence under Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Liberian Refugee Immigration Fairness (LRIF), signed into law on December 20, 2019.

To be eligible for permanent resident (green card) status under LRIF, a Liberian national must have been continuously physically present in the United States from November 20, 2014, to the date they properly file an application for adjustment of status. USCIS will accept such applications until December 20, 2020. Spouses, unmarried children under 21, and unmarried sons and daughters 21 or older of eligible Liberian nationals are also eligible for green cards.

Details: USCIS announcement, https://www.uscis.gov/news/alerts/uscis-begins-accepting-green-card-applications-under-liberian-refugee-immigration-fairness; USCIS LRIF page, https://www.uscis.gov/green-card/other-ways-get-green-card/liberian-refugee-immigration-fairness

DHS, DOJ Propose Rule Expanding Bars to Asylum

A new joint proposed rule by the Departments of Homeland Security (U.S. Citizenship and Immigration Services) and Justice (Executive Office for Immigration Review) would provide seven additional mandatory bars to eligibility for asylum. The rule, which emphasizes that asylum is discretionary in the sense that “Congress did not consider it obligatory to grant asylum to every refugee who qualifies,” would amend the regulations governing bars to asylum eligibility, clarify the effect of criminal convictions on asylum claims, and remove regulations governing the automatic reconsideration of discretionary denials of asylum applications.

 

Among other things, the Departments propose to bar from asylum “all those who are convicted of a crime involving criminal street gangs, regardless of whether that crime qualifies as a felony or as a misdemeanor.” The Attorney General and the Secretary are considering excluding “individuals convicted of federal, state, tribal, or local crimes committed in support, promotion, or furtherance of a criminal street gang.” Specifically, the proposed rule would cover such individuals “in cases in which the adjudicator knows or has reason to believe the crime was committed in furtherance of criminal street gang activity.” The Departments believe that those who enter the United States and “proceed to be convicted of crimes involving criminal street gang-related activity should be deemed to have committed particularly serious crimes that render them ineligible for asylum.”

 

The Departments also propose that “aliens should be ineligible for asylum if they are convicted…of a second or subsequent offense of driving while intoxicated or impaired, or for a single such offense resulting in death or serious bodily injury.” Ineligibility for asylum would also be applied to those convicted in the United States of domestic assault or battery, stalking, or child abuse in the domestic context, and those who engaged in acts of battery and extreme cruelty in a domestic context regardless of whether such conduct resulted in a criminal conviction.

 

Details: Proposed rule, which includes other provisions, https://www.federalregister.gov/documents/2019/12/19/2019-27055/procedures-for-asylum-and-bars-to-asylum-eligibility; related DOJ press release, https://www.justice.gov/opa/pr/department-justice-and-department-homeland-security-publish-joint-notice-proposed-rulemaking

 

January Visa Bulletin Includes Projections in Employment-Based Categories

The Department of State’s Visa Bulletin for January 2020 includes information on potential monthly movement in the employment-based categories. The bulletin also explains procedures for various programs set to expire, if not extended by Congress, including the EB-4 non-minister special immigrant religious worker program, the EB-5 regional center immigrant investor pilot program, the Conrad 30 waiver program for foreign medical graduates working in underserved areas, and E-Verify.

Details: Visa Bulletin for January 2020, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-january-2020.html

USCIS Updates Guidance on Travel by TPS Beneficiaries in Removal Proceedings

U.S. Citizenship and Immigration Services (USCIS) has updated the USCIS Policy Manual to clarify the effect of travel outside the United States by temporary protected status (TPS) beneficiaries who are subject to removal proceedings.

In particular, USCIS noted, this update covers beneficiaries who have final removal orders, and who depart the United States and return with an advance parole travel document. TPS beneficiaries in removal proceedings who travel abroad temporarily with the authorization of the Department of Homeland Security (DHS) remain subject to those removal proceedings. If they are under a final order of removal, the travel does not execute or fulfill the order, USCIS said. The person in question remains subject to the removal order.

Details: USCIS policy alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20191220-TPSTravel.pdf; USCIS announcement, https://www.uscis.gov/news/alerts/update-travel-temporary-protected-status-beneficiaries-removal-proceedings, Application for Travel Document (advance parole), https://www.uscis.gov/i-131

ICE Steps Up Deportations of DREAMers

According to reports, U.S. Immigration and Customs Enforcement (ICE) has escalated reopening of deportation cases that were administratively closed, in some instances long ago, against “DREAMers” under the Deferred Action for Childhood Arrivals (DACA) program. ICE told CNN that all DACA recipients whose deportation cases were administratively closed are being reopened. ICE said that “re-calendaring of administratively closed cases is occurring nationwide and not isolated to a particular state or region.”

Details: News report, https://www.cnn.com/2019/12/21/us/ice-reopening-dreamer-deportation-cases-invs/index.html

Justice Dept. Settles Immigration-Related Discrimination Claim Against Large Staffing Company

The Department of Justice announced on December 20, 2019, that it reached a settlement agreement with Adecco USA Inc. (Adecco), one of the largest staffing companies in the United States. The settlement resolves a claim that Adecco’s Gardena, California, office violated the antidiscrimination provision of the Immigration and Nationality Act (INA) by discriminating against a lawful permanent resident and other work-authorized non-U.S. citizens when verifying their work authorization. The settlement also resolves allegations that when using employment eligibility verification software, the company requested unnecessary work authorization documents from non-U.S. citizens because of their citizenship status.

Under the settlement, Adecco will pay $67,778 in civil penalties, ensure that its Form I-9 software complies with all relevant rules and regulations, and submit to monitoring and reporting requirements. Additionally, Adecco will ensure that relevant employees attend a training the Civil Rights Division approves and take a knowledge assessment to demonstrate their understanding of relevant rules.

“Employers must ensure that their onboarding software is compliant with relevant laws, and cannot make unnecessary demands for work authorization documents because of someone’s citizenship status,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division.

Details: Settlement agreement, https://www.justice.gov/opa/press-release/file/1228461/download; press release, https://www.justice.gov/opa/pr/justice-department-settles-immigration-related-discrimination-claim-against-staffing-compan-2

House Passes Bill to Address Labor Shortage in Agriculture; Senate Prospects Unclear

By a bipartisan vote of 260-165, the U.S. House of Representatives passed legislation intended to ease the agricultural labor shortage by providing a path to legal status for agricultural laborers, allowing additional green cards, and making it easier to hire H-2A workers. The bill would also make E-Verify mandatory nationwide for farm employers and cap workers’ wages, among other things.

The bill establishes a “certified agricultural worker (CAW)” status. The bill states that the Department of Homeland Security (DHS) may grant CAW status to an applicant who (1) performed at least 1,035 hours of agricultural labor during the two-year period before October 30, 2019, (2) was inadmissible or deportable on that date, and (3) has been continuously present in the United States from that date until receiving CAW status. The bill would impose additional crime-related inadmissibility grounds on CAW applicants and make some other grounds inapplicable. CAW status would be valid for 5.5 years and could be extended, and DHS could grant dependent status to the spouse or children of a principal alien.

The bill makes various changes to the H-2A program, such as (1) modifying the method for calculating and making adjustments to the H-2A worker minimum wage, (2) specifying how an employer may satisfy requirements that it attempted to recruit U.S. workers, (3) requiring H-2A employers to guarantee certain minimum work hours, and (4) making the program available for year-round agricultural work and reserving a visa allocation for the dairy industry.

The bill also calls for DHS to establish a pilot program allowing certain H-2A workers to apply for “portable” status, which gives the worker 60 days after leaving a position to secure new employment with a registered H-2A employer.

Prospects in the Senate are unclear. Reportedly, some Republicans object to the legislation’s wage calculation formula and provision of “amnesty” to undocumented farmworkers, and a lack of inclusion of the meat and poultry sectors.

Details: Text of H.R. 5038, https://www.congress.gov/bill/116th-congress/house-bill/5038; related news article, https://www.cnn.com/2019/12/11/politics/immigration-agriculture-bill/index.html

USCIS Expands Guidance on ‘Good Moral Character’ Determinations

U.S. Citizenship and Immigration Services (USCIS) recently expanded its policy guidance on good moral character (GMC) determinations.

On December 13, 2019, USCIS expanded its policy guidance regarding unlawful acts that may prevent an applicant from meeting the GMC requirement for naturalization. USCIS said this update to its Policy Manual provides additional examples of unlawful acts and instructions for USCIS adjudicators, and further identifies unlawful acts that may affect GMC determinations based on judicial precedent. USCIS said this update does not change the impact of an unlawful act on the agency’s analysis of whether an applicant can demonstrate GMC. Adjudicators “are not limited by the examples listed in the Policy Manual,” USCIS noted.

On December 10, 2019, USCIS issued separate policy guidance in the USCIS Policy Manual about how two or more convictions for driving under the influence (DUI) or post-sentencing changes to criminal sentencing might affect GMC determinations. USCIS said it was implementing two decisions from the attorney general, Matter of Castillo-Perez and Matter of Thomas and Thompson.

Based on those two decisions, USCIS noted that “[w]hen applying for an immigration benefit for which GMC is required, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses.” Also, USCIS said, “[p]ost-sentencing orders that change a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.”

Details:

·        USCIS’s December 13 guidance is at https://www.uscis.gov/sites/default/files/policymanual/updates/20191213-GMCUnlawfulActs.pdf. The related announcement is at https://www.uscis.gov/news/news-releases/uscis-expands-guidance-related-naturalization-requirement-good-moral-character.

·        USCIS’s December 10 guidance is at https://www.uscis.gov/sites/default/files/policymanual/updates/20191210-AGOnDUIAndSentencing.pdf. The related announcement is at https://www.uscis.gov/news/news-releases/uscis-implements-two-decisions-attorney-general-good-moral-character-determinations.

USCIS Proposes Fee Increases

U.S. Citizenship and Immigration Services (USCIS) has proposed dramatic increases in fees for family, business, and naturalization filings. Comments were due initially by December 16, 2019. The comment period was extended later to December 30, 2019. Make no mistake, fees are going up!

Details: Notice of proposed rulemaking, https://bit.ly/2QN0cEC; extension of comment period, https://bit.ly/381YcxJ.

Regulatory Agendas Are Not Just Wish Lists Any Longer

The Trump administration recently published its regulatory agenda, and it is far-reaching and comprehensive. Of interest for employers, the proposals would redefine the term “specialty occupation” to dramatically narrow the types of occupations that qualify for H-1B;eliminate the H-4 employment authorization document, dramatically increase the compliance burden and redefine the parameters of the L-1 visa; narrow the scope of post-degree optional practical training for foreign students, and increase oversight of the EB-5 program.

Many of these proposals will likely be challenged in court. Employers and their counsel should be ready to challenge these rules as appropriate.

Details: Department of Homeland Security semiannual regulatory agenda, https://www.govinfo.gov/content/pkg/FR-2018-11-16/pdf/2018-24158.pdf; news article, https://bit.ly/388zrjR

Just When You Though It Was Safe to Get Back on Twitter

When the Trump administration announced in 2018 that it would be screening applicants’ social media postings (both randomly and via consent given on application forms) for all identifiers used in the past five years, many lawyers and advocates immediately expressed concerns about privacy and security.

Two organizations have sued to prevent these intrusions into applicants’ private lives without reasonable suspicion of wrongdoing or some other legitimate interest. The Knight First Amendment Institute at Columbia University and the Brennan Center for Justice at New York University School of Law filed suit on behalf of two documentary film organizations. The lawsuit raises concerns about the dangers of forcing persons from repressive countries to reveal pseudonymous activities related to political or other censored conduct within their home country.

Details: News article, https://www.nytimes.com/2019/12/05/us/politics/visa-applications-social-media.html?smid=nytcore-ios-share

9th Circuit Grants Government’s Motion on Public Charge Rule

Client Alert for Premium Processing Cases

Effective December 2, 2019, the fee for Premium Processing has increased from $1,410 to $1,440. In related news, U.S. Citizenship and Immigration Services (USCIS) has also proposed a new rule (published in the Federal Register on November 14, 2019) to extend the Premium Processing adjudication time so USCIS has 15 business days to process petitions/applications, as opposed to the current timeframe of 15 calendar days.

Comments on the proposed rule were due by December 16, 2019.

Details: News article, https://www.natlawreview.com/article/premium-processing-fee-to-increase-december-2-2019http://www.visalaw.com/wp-content/uploads/USCIS-Announces-Increase-in-Premium-Processing-Fee.pdf.

Health Insurance Proclamation Injunction Granted

A federal judge in Oregon has blocked a Presidential Proclamation issued in October 2019 that would have required immigrants to the United States to either prove they have private, unsubsidized health insurance within 30 days of entering the country or prove they have the funds to cover unanticipated medical costs once in the United States.

Judge Michael Simon ruled that “the President’s Proclamation requiring legal immigrants to show proof of health insurance before being issued a visa by the State Department is inconsistent” with the Immigration and Nationality Act. The injunction is nationwide pending resolution of the case. The underlying lawsuit alleged that the proclamation would effectively separate families when the intending immigrant is the beneficiary of a petition designed to encourage and support family unity. While the President justified the proclamation by saying “immigrants who enter this country should not further saddle our healthcare system, and subsequently American taxpayers, with higher costs,” according to the Kaiser Family Foundation, in 2017 three-quarters of the 27.4 million uninsured people in the United States under age 65 were U.S. citizens.

Details: https://www.cbsnews.com/news/us-immigration-donald-trump-rule-requiring-immigrants-prove-health-insurance-blocked-federal-judge-2019-11-27/.

Global: Australia

The Australian government has made a concerted effort to encourage migrants to settle in regional areas rather than cities.

The Australian government recently introduced two new Provisional Regional Visas:

  • Skilled Work Regional (Provisional) Visa, SC491 (subclass 491)
  • Skilled Employer Sponsored Regional (Provisional) Visa, SC494 (subclass 494)

In November, a permanent visa was introduced—the Permanent Resident (Skilled Regional) Visa, SC191—to dovetail with the new Provisional Visa. At the same time, the current Regional Sponsored Migration Scheme Visa (SC187) and the Skilled Regional (Provisional) Visa (SC489) were phased out.

The Skilled Provisional Visa is intended to provide an easier pathway for skilled migrants and dependent family members who are prepared to live and work in regional Australia, to obtain a Provisional Visa and ultimately Permanent Residence.

The SC494 Skilled Employer Sponsored Regional (Provisional) Visa will provide an Australian business, located in regional Australia, to nominate employees in a substantially greater range of occupations than are currently available.

The Skilled Work Regional (Provisional) Visa will provide an opportunity for skilled applicants who are nominated by a State or Territory Government, or sponsored by an eligible family member, to live and work in regional Australia.

An essential condition of both of these visas is that the visa holders must live and work in regional Australia for at least 3 years to become eligible for the Permanent SC 191 Visa. This condition also applies to family members, which means dependent children must attend school or university in a regional area. Visa holders who leave a regional area run the risk of either visa cancellation or becoming ineligible to apply for a permanent visa.

Regional Provisional Visa holders will not be precluded from applying for certain permanent visas.

What is meant by regional Australia? The new legislation effectively defines regional Australia as being all of Australia except for the cities of Sydney, Melbourne, and Brisbane.

The list of skilled occupations available for the SC494 visa is a combination of the current Medium and Long-Term Strategic Skills List (MLTSSL) and the Regional Occupation List (ROL), which effectively makes a total of 650 occupations available for the SC494.

For more on the Skilled Migration Lists review, see https://docs.employment.gov.au/documents/skilled-migration-lists-review-traffic-light-bulletin-consultation-december-2019-february.

SC494—Skilled Employer Sponsored Regional (Provisional) Visa

The process for the Skilled Employer Sponsored Regional (Provisional) Visa is substantially similar to that for the former SC457 Visa and the current SC482 Visa.

Visa applicants must be sponsored by an employer that has been duly approved as a Sponsor and must be the subject of a valid nomination. The visa applicant must:

  • Have an occupation on the relevant Skilled Occupation List;
  • Be duly skilled and experienced in the occupation;
  • Provide evidence of at least 3 years of full-time experience in the nominated occupation;
  • Be under 45 years of age;
  • Have good English language skills; and
  • Meet the relevant health and character requirements.

This new visa category has been very favorably received by mining companies and others that operate in the regional areas because a far broader range of occupations than in the past is available from which staff shortages may be filled.

The introduction of the SC494 does not affect the current SC 482 Temporary Skills Shortage Visa or the SC 186 (Permanent) Employer Nomination Visa.

SC491—Skilled Work Regional (Provisional) Visa

Applicants for the Skilled Work Regional (Provisional) Visa must meet certain eligibility criteria:

  • Receive an invitation to apply for the lodgment of an Expression of Interest
  • Be duly nominated by a State or Territory or sponsored by a family member residing in the regional area of Australia
  • Have an occupation on the relevant Skilled Occupation List
  • Be under 45 years of age
  • Have good English skills
  • Meet the Points Test mark (65 points) and meet the health and character requirements
  • Family members who may sponsor a visa applicant and who live in regional Australia include:
  • Parent
  • Child or stepchild
  • Brother, sister, adopted brother, adopted sister, stepbrother, stepsister
  • Uncle, aunt, adopted aunt, adopted uncle, step aunt, or step uncle
  • Nephew, niece, adopted nephew, adopted niece, step nephew, or step niece
  • Grandparent
  • First cousin

The sponsoring family member must be 18 years or older, an Australian citizen, permanent resident or eligible New Zealand citizen and, as previously stated, be usually resident in a regional area.

As noted above, the pass mark for the Points Test is 65 points. Some additional points have been added as an incentive to apply for this visa relating to sponsorship by a state or family member living in a regional area, advanced study at a university in a regional area, and partner skill qualifications.

Priority Processing

It has been stated that applicants for the Regional Provisional Visa will receive priority processing. What this means in practice remains to be seen.

Global: United Kingdom

After an exhausting years-long process, Brexit is all but inevitable.

An exhausting 1,267 days have passed since the United Kingdom (UK) voted by referendum to leave the European Union. Remarkably, and contributing to an overall sense of fatigue, this relatively short period saw multiple failed attempts at passing a Brexit deal, two general elections, and three Prime Ministers. Now, however, with the Conservative Party’s recent sweeping general election victory and the reinstatement of Boris Johnson as leader, Brexit is all but inevitable.

So, what’s next for UK immigration?

The House of Commons passed the latest Withdrawal Agreement on December 20, 2019, but it must pass the House of Lords and receive Royal Assent to be ratified by the UK. Under the terms, European Economic Area (EEA) and Swiss nationals’ rights will remain much the same through December 31, 2020. Assuming the agreement is ratified, those wishing to remain longer will need to apply for permission under the European Union Settlement Scheme (EUSS) by 30 June 2021. Successful applicants will be granted either “settled” status (for those who can demonstrate 5 years of continuous residence), or “pre-settled” status (for those with fewer than 5 years), which will allow them to remain in the UK, access benefits, and eventually apply for citizenship, should they choose.

EEA and Swiss citizens arriving after December 31, 2020, will need to seek permission under what the government is referring to as a “firmer and fairer Australian-style points-based immigration system,” set to take force in January 2021.

While this new system was featured in the 2019 Conservative and Unionist Party Manifesto, no specific details have yet been released other than well-worn political slogans such as “attracting the best and the brightest” and “integration and openness.” However, if indeed analogous to Australia’s system, prospective migrants would be subject to a points-based evaluation that would consider attributes such as age, occupational qualifications, work experience, English language skill, and educational level.

It is imperative that the government outline details for the new system soon to allow businesses and individuals to prepare for the quickly approaching road ahead.

New Publications and Items of Interest

S. 2603 Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act. Proposed by Sens. Dick Durbin (D-IL) and Patrick Leahy (D-VT), S. 2603 seeks to eliminate the family and employment green card backlog by increasing the number of green cards. Furthermore, the RELIEF Act would classify children and spouses of lawful permanent residents (LPRs) as immediate relatives and exempt derivative beneficiaries of employment-based petitions from annual green card limits. Specifically, S. 2603 would

 

·        Eliminate the family and employment green card backlog over five years in the order in which applications were filed;

·        Keep American families together by classifying spouses and children of LPRs as immediate relatives and exempting derivative beneficiaries of employment-based petitions from annual green card limits;

·        Protect “aging out” children who qualify for LPR status based on a parent’s immigration petition;

·        Lift country caps; and

·        Extend the “hold harmless” clause from H.R. 1044 that exempts immigrant visa petitions approved prior to enactment from the lifting of country caps to petitions approved for five years after enactment.

 

The full text of the bill is at http://www.visalaw.com/wp-

content/uploads/S.-2603-RELIEF-Act-bill.pdf.

 

H-1B outlook for 2020. “Expect More Lawsuits and Restrictions on H-1B Visas in 2020,” published by Forbes, says 2020 is unlikely to be an improvement over 2019 for companies that hire foreign-born scientists and engineers on H-1B visas, and that companies should expect 2020 to bring more restrictions.

 

The article is at https://www.forbes.com/sites/stuartanderson/2019/12/16/expect-more-lawsuits-and-restrictions-on-h-1b-visas-in-2020/#48a7906667c8.

 

 

How to prepare for immigration raids. Cornell University’s immigration technology clinic has developed an automated online interview to help people prepare if they or others are worried about being detained or deported. It can help people prepare their family, manage their property, close out their bank accounts, and perform other emergency preparations. The online interview is available in English and Spanish at https://www.immi.org/en/Home/make_a_plan.

 

Responding to large-scale immigration raids. The Immigration Justice Campaign and the American Immigration Lawyers Association have released information on what to do in the event of large-scale interior enforcement actions. See https://www.immigrationjustice.us/volunteeropportunities/raids-preparation-teams and https://www.aila.org/advo-media/issues/all/featured-issue-2019-large-scale-enforcement.

CBP accountability. This website documents litigation across the United States in an effort to establish U.S. Customs and Border Protection (CBP) accountability and transparency. The website, which also directs readers to additional resources, is a joint project of the American Civil Liberties Union of San Diego and Imperial Counties, the American Immigration Council, the National Immigration Project of the National Lawyers Guild, and the Northwest Immigrant Rights Project. See https://holdcbpaccountable.org/.

Immigrant and Employee Rights Webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars to the public. The webinars are for workers, employers, and advocates. For more information or to register, see https://www.justice.gov/crt/webinars.

How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, https://www.nytimes.com/2017/03/21/technology/personaltech/crossing-the-border-heres-how-to-safeguard-your-data-from-searches.html and https://www.aclu.org/blog/free-future/can-border-agents-search-your-electronic-devices-its-complicated.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

Visa application wait times for any post: https://travel.state.gov/content/visas/en/general/wait-times.html/

Kuck Baxter Immigration — In The News

Kuck Baxter Immigration LLC published its US legal guide for Corporate Immigration. It can be found at https://iclg.com/practice-areas/corporate-immigration-laws-and-regulations/usa

Member/Firm News

Charles Kuck released the latest edition of his podcast, the Immigration Hour. The January 14th edition examines the proposed changes to Senate Bill 386, tries to figure out what President Trump’s H-1B Tweet was about, and taks about the detrimental effects of lower immigration rates in 2019 on our economy. elimination of “per country limits” for employment based immigration visas, and the prospects of that litigation. The podcast is at https://www.stitcher.com/podcast/kuck-baxter-immigration-llc-2/the-immigration-hour

 

Kuck Baxter Immigration LLC has opened a new office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 6,000 detained immigrants. The new office is managed by our Senior Counsel Elizabeth Matherne, the former Director for the Southern Poverty Law Center’s Irwin Detention Project.

 

We have changed the location of our podcast–The Immigration Hour— to Stitcher. We are entering our 12th year of continuous broadcasts. Listen here each week for our latest take on immigration and immigration law!

 

You can follow us on Twitter @KuckBaxter or @CKuck

 

You can also get constantly updated news on our Facebook page.

 

Feel free to reach out with any questions or for help in your immigration case at 404-816-8611 or immigration@immigration.net.

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Kuck Baxter Immigration

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