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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

 

The Top 10 List

Top Ten Threats to Immigrants,
Their Employers, and Their Families in 2018

Below is our top 10 list of changes that the current administration has put into place, without legislation or regulations, that drastically change the immigration landscape for employers, immigrants, and their families:

10. USCIS increases site visits to employers who hire H-1B and L-1 nonimmigrant workers.

9. Consular officers re-adjudicate approved employment-based petitions to ensure the foreign national is eligible for the benefit even though USCIS already approved that petition.

8. Administration re-examines the current policy of granting work authorization documents to H-4 spouses.

7. USCIS no longer affords deference to nonimmigrant visa extensions but instead will treat those cases as completely new filings.

6. The Justice Department plans to accelerate immigration case proceedings and implement judicial quotas, threatening due process.

5. Supreme Court lifts stay on travel ban for eight countries even where the foreign national has a close family relationship to a U.S. citizen.

4. CBP and consular officers undertake extreme vetting of foreign nationals at ports of entry and at consulates in the name of "Buy American and Hire American."

3. TPS ends for several countries whose nationals have lived and worked in the United States for many years and whose children were born here.

2. DACA recipients remain in limbo, with an average of 120 recipients' protection expiring daily and no congressional action in sight.

And, the number one threat to immigrants, their employers, and their families for 2018:

1. The government does not seem to want foreign nationals to become or remain legal.

(Why? Because the government has enacted policies aimed at reducing legal immigration and obstructing those who have the ability to become or remain legal, to include the targeting of visa-violators despite having available remedies under the law.)

(See related stories below.)

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Supreme Court Allows Travel Ban to
Take Effect While Litigation Continues

On December 4, 2017, the U.S. Supreme Court issued two orders staying the preliminary injunctions issued against President Trump's September 24, 2017, Presidential Proclamation, or "Travel Ban," pending disposition of appeals still pending in the courts. The ban restricts nationals of Chad, North Korea, Iran, Libya, Venezuela, Syria, Yemen, and Somalia from entering the United States. Nationals of these eight countries are subject to the various restrictions contained in the table below, unless eligible for an exemption or waiver.

COUNTRY
NONIMMIGRANT VISAS
IMMIGRANT/DV
Chad
No B-1, B-2, and B-1/B-2 visas
No immigrant or diversity visas
Iran
No nonimmigrant visas except F, M, and J visas
No immigrant or diversity visas
Libya
No B-1, B-2, and B-1/B-2 visas
No immigrant or diversity visas
North Korea
No nonimmigrant visas
No immigrant or diversity visas
Somalia
No immigrant or diversity visas
Syria
No nonimmigrant visas
No immigrant or diversity visas
Venezuela
No B-1, B-2, or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; Administrative Service of Identification, Migration, and Immigration; Corps of Scientific Investigations, Judicial and Criminal; Bolivarian Intelligence Service; and People's Power Ministry of Foreign Affairs, and their immediate family.
Yemen
No B-1, B-2, and B-1/B-2 visas
No immigrant or diversity visas


Additionally, nationals of Iraq will be subject to extra screening measures. Major exemptions to the ban include permanent residents, those who were already in the U.S. or in possession of a valid visa on December 4, dual nationals (when traveling on the alternate passport), A, G, NATO, and C-2 visas, or those already granted asylee or refugee status. The travel ban will remain in effect pending the disposition of the Administration's appeals of district court rulings to the U.S. Court of the Appeals for the Ninth Circuit and Fourth Circuit, and any subsequent review by the Supreme Court.

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Kirstjen M. Nielsen

Senate Confirms New
Secretary of Homeland

On December 5, the Senate confirmed Kirstjen M. Nielsen as the new Department of Homeland Security (DHS) Secretary with a 62-37 vote. She was sworn in the following day. While Secretary Nielsen is the first former DHS employee to hold the position, many senators who voted against confirmation noted that she lacks sufficient management experience.

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Updates on TPS and
Deferred Enforced Departure

The following is an update and roundup of the current status of temporary protected status (TPS) for some 10 countries. As of August 2017, an estimated 325,000 TPS beneficiaries live in the United States. More than 90 percent of individuals with TPS are nationals of El Salvador (195,000), Honduras (57,000), or Haiti (50,000). The remaining beneficiaries come from six other countries and certain Liberians are beneficiaries of "deferred enforced departure." Recently, the Administration terminated TPS designation for Haiti, Nicaragua, and Sudan. (Bold font indicates the country's designation will be terminated in 2018 and 2019):

  • El Salvador: DHS has not yet determined the fate for TPS for El Salvador; TPS is currently in effect though 3/9/18.
  • Haiti: DHS announced the termination of Haiti's TPS but delayed the effective date for 18 months; its TPS designation terminates on 7/22/19.
  • Honduras: DHS determined that additional information was necessary regarding the TPS designation for Honduras, but extended TPS for six months until 7/5/18.
  • Liberia: Deferred Enforced Departure for certain Liberians through 3/31/18.
  • Nicaragua: DHS announced the termination of Nicaragua's designation for TPS effective 1/5/2019.
  • Nepal: DHS extended TPS for Nepal through 6/24/2018.
  • Sudan: DHS announced the termination of Sudan's designation for TPS, effective 11/2/2018.
  • South Sudan: DHS extended South Sudan's designation for TPS for 18 months, effective through 5/2/2019.
  • Syria: DHS extended and re-designated Syria for TPS through 3/31/18.
  • Yemen: TPS for Yemen was extended and re-designated through 9/3/2018.

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DOJ Plans Further Reforms
to Immigration Court Proceedings

Attorney General (AG) Jeff Sessions has expressed his frustration with the pace of case processing before the Executive Office of Immigration Review (EOIR), and its immigration court. The agency is facing a caseload of 650,000, which has far outstripped the agency's resources to hear cases in a timely manner. The initial response was to hire more immigration judges (IJs) and place them on the Southern border to process contemporaneous arrivals. Taking the next step, AG Sessions has outlined a few initiatives to reduce the massive backlog.

First, the agency will continue to hire more IJs, including retired judges, and implement a video conferencing system that allows IJs to hear cases remotely. The AG expects to have every immigration court operating five days a week. Next, EOIR will seek to strengthen its communication with ICE attorneys to encourage a more efficient court calendar.

Finally, the AG will attempt to transform EOIR's institutional culture and infrastructure. One positive aspect of this initiative is to rely more on electronic filings, which, if implemented properly, will make the agency more efficient. However, the effort also will "realign the agency toward completing cases," which will reduce discretion to administratively close cases. Guidance will be issued about the timely adjudication of cases and supervisory IJs will be placed to enforce new standards, possibly imposing quotas.

The fundamental concern with attempting to accelerate cases in this fashion is that it removes the necessary autonomy and discretion of an impartial immigration court. The EOIR is a trial court setting where both law and justice are necessary, and IJs need the independence to ensure that that is accomplished. While the backlogs are problematic, expediting removal proceedings without appropriate due process seriously threatens the fairness and credibility of the immigration courts. The guidance on timely adjudication is yet to be issued and the forthcoming standards are unknown, but pushback from the IJ union may have a tampering effect.

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Increased Worksite Enforcement and
Audits of H-1B (and L-1) Petitions

The Office of Inspector General (OIG) conducted an audit of the H-1B program and determined that USCIS employer site visits were being conducted in a sparse and inefficient manner. The purpose of these visits is to determine if the foreign national is working at the jobsite indicated in the petition, if the salary stated in the petition is being paid, and if the job duties are accurately stated. The OIG made several recommendations to USCIS to improve their policing efforts. As a result, USCIS is likely to request more funds from Congress to increase its capacity to ensure the integrity of the H-1B program through targeted site visits.

The report acknowledged that USCIS approves about 330,000 H-1B petitions per year, with roughly 680,000 H-1B holders present in the country in a given year. While USCIS conducts targeted and random site visits to the employers of these beneficiaries, the OIG reported that employer site visits were both limited in their application (7,200 visits per year) and shallow in their individual thoroughness. USCIS does not always take action after negative site visits, and 81 percent of revocations are based on the easiest reason: the qualifying relationship does not exist between the H-1B employer and the beneficiary. Furthermore, the agency does not properly train its officers and cannot retain the good ones, nor does it track its costs, success, or efficiency. The OIG concluded that USCIS permits noncompliance — including fraud — to perpetuate the H-1B program.

The OIG recommended that USCIS develop a process to accurately track the visits, procedures, costs, and results of its compliance effort, and use the data to establish performance measures. USCIS also should reevaluate how it can better allocate its resources to site visits, and develop a comprehensive strategy to prioritize fraudulent offenders. USCIS concurred with these recommendations, and is hoping to revamp H-1B enforcement measures by the end of 2018.

Employers should be prepared for increased site visits. Random site visits will likely entail a confirmation of the employer's location, the actual presence of the beneficiary, the job duties performed, and the salary provided. For that reason, the job duties on the petition should not only be as accurate as possible, but well known by both the employer and the beneficiary. Targeted visits also may be aimed at instances where the employer's basic business information cannot be verified through USCIS's private contractor as well as those employers with very high ratios of H-1B workers and on staffing or consulting companies that place workers at other companies in order to supplement that company's workforce or to provide consulting services. Employers who outsource their workers to third party worksites should make especially sure they have properly documented the beneficiary's schedule in the submitted itinerary, and that the employer-employee relationship is strong. Of course, all employers should ensure their I-9 records are in order at all times.

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USCIS No Longer Affording
Deference to I-129-based NIV Extensions

For over 10 years, USCIS has taken the approach that, when adjudicating extension petitions involving the same employer, the same beneficiary, and the same underlying facts, its adjudicators would defer to prior approval determinations. USCIS has now reversed this policy, interpreting it as placing an extra burden on the agency to find and compare an old petition to an extension and shifting the burden of proof to USCIS when that burden lies with the petitioner. Moving forward, USCIS officers will be treating all extensions as independent and new filings, even though promulgated regulations do not require supporting documents in many kinds of nonimmigrant extension cases. In its announcement, USCIS also stated that it does not want its adjudicators to rely on previous determinations at all, as it may have the unintended consequences of missing material defects in prior petitions.

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Senate Appropriations Bill and Immigration

In November, the Senate published its proposed budget for FY2018 Department of Homeland Security funding. Some $53 billion is doled out over 12 major components and agencies that make up one of the largest departments in the U.S. government. While the bill is still pending and will be amended, it captures the mood of the Senate Republicans who supported the effort.

The bill proposes the largest-ever single capital investment for securing U.S. borders. CBP's $13 billion includes granting the requested funding for physical barriers on the border, as well as more Border Patrol agents, border security technology, mobile surveillance, tunnel threat identification aircraft repair, satellite technology, and improvements to Brown Field Border Patrol Station in San Diego. CBP funding is an enormous element of the DHS budget, and over $1.5 billion has been dedicated to physical impediments, which could include "a wall" on the borders.

Meanwhile, the ICE budget is about $6.5 billion, split between Homeland Security Investigations and Enforcement & Removal Operations. Despite much more interior activity since the new year, ICE is actually taking about a 20 percent budget cut. The bill appropriates $10 million to improve visa overstay tracking. USCIS gets a slight increase in funding, proposed at $130 million. Of that, $22 million is set aside to improve the E-Verify system.

A troubling aspect of the appropriations bill is that it cuts funding by 27 percent for the Office of the Inspector General, which provides oversight for DHS. Unfortunately, certain elements of ICE and CBP routinely get tangled up in accusations of abuse and mistreatment in bungled raids and detentions, and oversight of those component agencies in particular is sorely needed.

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News in Brief

The following additional items may be of interest to our readers:

DACA Update: In November, a myriad of advocates took to the phones, Facebook, and Twitter to contact members of Congress in support of DACA. Scheduled to expire in March, the legislative branch has not yet come up with a solution for recipients and does not seem in a rush to do so. While there is real bipartisan support for equitable relief, politics complicate things. A (still pending) lawsuit was filed in California attempting to prevent the cancellation of the program. Meanwhile, some 34 Republicans urged Speaker Paul Ryan (R-WI) to put a permanent solution for DACA on the floor of the U.S. House of Representatives before the end of 2017.

Entrepreneur Parole Provisions Moving Forward: Late in President Obama's term, a USCIS final rule was published permitting "parole" for certain entrepreneurs who displayed a strong financial backing. This meant that qualifying individuals and their dependents could remain in the United States past their period of authorized stay if they qualified or could be "paroled" in. The current Administration delayed implementation of the rule, prompting a lawsuit. On December 1, the U.S. District Court for the District of Columbia found the Administration violated the Administrative Procedure Act and ordered the parole program to move forward.

Report Questions Seriousness of Border Wall Plan: The ranking member on the U.S. Senate Homeland Security & Governmental Affairs Committee, Claire McCaskill (D-MO), issued a report evaluating DHS's progress in taking "all appropriate steps to immediately plan, design, and construct a physical wall along the southern border." Namely, the report sought to evaluate how the Administration would use eminent domain to secure the private land running against the border and how much that would add to an estimated $70 billion price tag. The report looked at previous fencing projects on the border invoking eminent domain, most recently in 2009 where the government paid $78 million to purchase selected borderlands, and will likely end up paying an additional $21 million to settle cases that are still ongoing almost a decade later. However, DHS could offer no estimates by way of land parcels identified or costs associated with the current directive, which indicates that the Administration has not genuinely considered challenges inherent in the very first step in constructing a wall on the Southern border.

Limited Visa Service Resumes in Turkey: The U.S. Embassy in Ankara announced that it had received high-level assurances from Turkish officials that no employees of the U.S. mission in Turkey were under investigation and would not be detained or harassed. As a result, the mission has resumed limited visa services in Turkey.

CW-1 Visas Being Phased Out: The temporary program that allows for special visas to be issued to those working in the Commonwealth of the Northern Mariana Islands (CNMI), a U.S. territory in the Pacific used for military and research purposes, will end on December 31, 2019. Annual numbers of CW-1 visas issued are being steadily reduced to zero.

First-Time Illegal Border Crossers Face Criminal Charges: CBP is presenting undocumented border crossers to the U.S. Attorney's office for criminal prosecution of first-time illegal border crossers apprehended in Nogales, Arizona. In October 2017, more than 200 people arrested in the Nogales corridor were found to be subject to prosecution.

Immigrants' Rights Groups Demand Investigation into ICE Raids that Targeted Sponsors of Unaccompanied Children: Eight immigrant rights organizations filed a complaint with the DHS Office of Civil Rights and Civil Liberties and Office of Inspector General on behalf of some 400 people swept up this summer in an ICE operation that used unaccompanied immigrant children who were trying to reunite with their families to identify and target their relatives who live in the United States.

Lawsuit filed by Passengers Made to Present ID to CPB to Exit Plane: Several passengers who were aboard a domestic flight in February 2017 where CBP made all passengers present identification before exiting the plane filed a lawsuit challenging the government's action as an illegal search and seizure.

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