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VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE
. . . DECEMBER 2018 EDITION

USCIS Proposes H-1B
Pre-Filing Registration Process

In early December, the Department of Homeland Security (DHS) published a proposed rule to implement a pre-filing registration system for U.S. employers seeking to file cap-subject H-1B petitions. The new system would require that employers electronically pre-register their intent to petition for an H-1B beneficiary during a two-week registration period. There would be no fee for pre-registration, but the employer would need to provide basic information about the employer, the intended position, and the beneficiary. If the application is selected for the H-1B lottery, the employer could then file an H-1B petition.

The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced-degree exemption. Currently, in years when the H-1B cap and the advanced-degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced-degree exemption beneficiaries are selected before the H-1B cap beneficiaries. The proposed rule would reverse the selection order and count all applicants toward the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants toward the advanced-degree exemption. USCIS projects that this change in the process would result in a 16 percent increase in the number of selected beneficiaries with a master's degree or higher from a U.S. institution of higher education.

The proposed new system would cut down on the expensive and time-consuming work performed by employers and their immigration attorneys on cases that are ultimately not selected for the lottery. On the other hand, because of the relative ease by which an employer can register a potential H-1B worker, employers may be incentivized to register many positions that might not ultimately qualify for an H-1B, or that might be abandoned.

While the government would like to implement the rule in time for the upcoming H-1B filing season, the likelihood of that happening is slim, given the tight timeframe by which the agency must complete the regulatory process. Comments are due January 2, 2019.

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USCIS Expedite Process for H-1B Filings

Given the suspension of premium processing for many H-1B filings, employers who have an urgent need that demands prompt adjudication of their H-1B petitions can request an expedite. USCIS, however, will only expedite a petition if it meets one or more of the following expedite criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (these particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government);
  • USCIS error; or
  • Compelling interest of USCIS.

An expedite can be requested with the initial filing or after the petition has been filed. This is a workaround that employers should consider in the right circumstance.

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USCIS to Eliminate Self-Scheduling
InfoPass Appointments by End of September

USCIS wants to eliminate the way in which customers can use InfoPass. Currently, in most jurisdictions, an individual who wants to discuss his or her case with an immigration representative can make an appointment online through the InfoPass system, assuming an appointment is available. But appointments have become harder and harder to obtain and often are unavailable for weeks on end. To solve this problem, USCIS instituted its Information Services Modernization Program, which involves the elimination of self-scheduling InfoPass appointments and requires individuals to first contact the USCIS Contact Center. Under the Information Services Modernization Program, if it is determined that an applicant needs in-person assistance, personnel at the USCIS Contact Center will help schedule an appointment without the individual having to search for available timeslots. Based on surveys and other data, USCIS determined that most people who made in-person information service appointments through InfoPass could have received the same information by calling the USCIS Contact Center or checking the USCIS website.

After piloting the Information Services Modernization Program in March, USCIS expanded the new system to the Detroit Field Office and five offices in the Los Angeles District, and will continue expansion to field offices in Newark, the Great Lakes, and the San Francisco districts. USCIS anticipates expanding the program to all remaining field offices by the end of FY2019 (i.e., 9/30/2019) to completely remove self-scheduled InfoPass appointments.

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Employers Beware

ICE Workforce Investigations
Surge in Fiscal Year 2018

Are you compliant? The law requires employers to review documents from each worker they hire to verify that the worker is legally present in the United States and authorized to be employed. This is done on Form I-9, Employment Eligibility Verification. While the Obama Administration had made worksite enforcement a major priority by conducting a record number of I-9 audits, the Trump Administration has made those previous efforts pale in comparison.

Criminal investigations, business audits, and arrests by U.S. Immigration and Customs Enforcement (ICE) surged in FY18 compared to the previous fiscal year, following a commitment made by ICE in late 2017 to step up its worksite enforcement efforts across the country. Specifically, ICE's Homeland Security Investigations (HSI) opened 6,848 worksite investigations in FY18 compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively. All of these categories surged by 300 to 750 percent over the previous fiscal year.

While perhaps hiring foreign nationals without proper work authorization was once considered a cost of doing business, especially in the restaurant and hospitality and construction industries, owners and managers should rethink the practice and know their risks.

In the current environment, even employers who have not been accused of knowingly employing undocumented workers can expect site visits and can be held liable for clerical violations, subjecting them to steep civil fines. Well-intentioned employers often find inadvertent paperwork errors or technical violations during their internal audits; some seemingly harmless errors and omissions are actually considered substantive violations that carry significant fines. For example, the failure of an employer to ensure that an individual employee checks the Form I-9's box for "citizen," "lawful permanent resident," or "authorized to work until a specified date" is a substantive violation. An employer's failure to provide the date of hire in the attestation portion of the I-9, while a technical violation, is still actionable even if other parts of the form are dated.

While failure to check documents can have its consequences, so can over-documentation. By law, an employer should only accept either a List A document or a combination of List B and List C documents, but not both. Over-documentation occurs when an employer records a List A document and any combination of Lists B and C documents on the I-9 form. Over-documentation most often results in two different scenarios:

  • The employee provides multiple documents, such as a U.S. passport (List A document), a state driver's license (List B document) and a Social Security card (List C document). Rather than informing the employee that he or she must select the appropriate document(s) for verification, the HR or hiring professional simply records all of the documents on the I-9 form. This would constitute over-documentation.
  • The employee appropriately presents either a List A document or List B and C documents, but for whatever reasons, the HR or hiring professional requests that the employee provide List A, B, and C documents. (It is important to note that Scenario 1 or 2 can occur during the re-verification of documents in Section 3, which can also lead to over-documentation.)

What's the big deal? Once too many documents have been recorded on the I-9 form, over-documentation has occurred. Unless discovered and corrected immediately, over-documentation constitutes a permanent error and the employer can be held liable for immigration-related unfair employment practices — in other words, unlawful discrimination.

To avoid these problems, an employer should:

  • Conduct an Internal I-9 Audit: Human resource personnel and others involved in the I-9 process should consider auditing their actual I-9 files as well as their compliance procedures. Updating and/or appropriately correcting technical violations on previously completed I-9 forms may be necessary. Re-verifying certain employees also may be required. While such remedial actions may not shield an employer from liability and fines, the amount of such fines will be mitigated by a number of factors, including the employer's good faith, the seriousness of the violation, and the employer's previous violations.
  • Develop a Compliance Plan: Employers also may want to consider developing an immigration compliance plan that sets forth procedures for implementing and monitoring the verification of an employee's authorization to work in the United States. Such a plan should include appropriate employee training, reporting obligations, as well as safeguards to ensure that whatever plan is implemented, it does not run afoul of U.S. anti-discrimination laws. A good practice is to limit the number of individuals responsible for I-9 compliance to one individual and make sure he or she is well trained. Another good practice is to keep I-9s separate from an individual's personnel file, to safeguard personal information in case of an ICE audit.

This area of immigration compliance can be confusing and complex, and can have unintended legal consequences. Employers are wise to take preventive measures and to consult with an attorney before embarking upon this alone.

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Marijuana Use Is
No Laughing Matter to CBP

The legal landscape regarding the use and cultivation of marijuana is changing in the United States, Canada, and many other countries. Many questions are arising as to the impact of marijuana-related activities on one's admissibility to the United States. As a matter of U.S. federal law, marijuana is still a controlled substance. However, as of the end of 2018, the use of marijuana for medicinal purposes has been legalized in 29 U.S. states and the District of Columbia, and recreational use has been legalized in nine U.S. states. In addition, as of October 17, 2018, Canada has legalized recreational marijuana use. Other countries, such as Uruguay, have also made the move to legalize recreational use while countries such as the Netherlands "tolerates" the sale of marijuana, subject to strict conditions. As the number of legal marijuana users increases on both sides of the border, it is important to consider how U.S. Customs and Border Protection (CBP) might focus its questioning or change enforcement tactics when determining admissibility of individuals who lawfully use or cultivate marijuana.

As there is no right to counsel at ports of entry, advising foreign nationals regarding issues that may arise in advance of travel is vital, as it is clear that the trend toward legalization, both inside and outside the United States, has increased the risks associated with travel to the United States. Conviction for possession of even a miniscule amount of marijuana renders a foreign national inadmissible. The only available waiver requires a showing of extreme hardship to a U.S. citizen or permanent resident parent, spouse, or child. Worst of all is that CBP can deny entry on medical-related grounds to someone who admits marijuana use.

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Trump's Limitations
on Asylum Put on Hold

On November 9, 2018, President Trump issued a proclamation barring anyone who entered between ports of entry from seeking asylum. This proclamation was to be valid for 90 days or until the creation of a "safe third country" agreement with Mexico, whichever occurred first. Of course, such an agreement would only be helpful if many of the same factors that migrants fleeing Central America were not present in Mexico itself. Unfortunately, this is not the case. Moreover, this proclamation is in direct contradiction with our current immigration laws and international law. As a result, it was quickly put on hold on November 19 by a federal judge. The judge wrote, "Whatever the scope of the President's authority he may not rewrite the asylum laws to impose a condition that Congress has expressly forbidden." This latest proclamation is intended to further demonize asylum seekers and to obstruct them from accessing their rights. Even though it is currently on hold, the message is clear, and fear has spread amongst those seeking safety at our southern border.

In addition, a D.C. federal judge on December 19 struck down a recent Trump Administration policy largely barring victims of domestic and gang violence from obtaining asylum, finding that it violated both the Administrative Procedure Act and the Immigration and Nationality Act as arbitrary and capricious and contrary to law. The court enjoined the government from continuing to apply the unlawful policies and from removing plaintiffs who are currently in the United States without first providing "credible fear determinations" consistent with immigration laws. The court also ordered the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with new credible fear determinations.

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More on Employment-based
Immigrant Visa Numbers

With only modest movement in the employment-based preference categories for the first quarter of the fiscal year (October to December), the Visa Office had hoped that more dramatic forward movement in some of these categories would start in January. Unfortunately, the Visa Office does not have sufficient data to evaluate visa demand, and thus it will not make predictions on final-action dates in the near term. Fortunately, USCIS has decided to accept adjustment of status applications based on the "Dates for Filing" in January. The following is an overview of the immigrant visa process and how backlogs work.

Overview of the Immigrant Visa Process: Most prospective immigrant visa applicants qualify for status under the law on the basis of family relationships or employer sponsorship. Entitlement to visa processing in these classes is normally established through approval by USCIS of a petition filed on the applicant's behalf. Applicants whose petitions will be processed at an overseas post are forwarded by USCIS to the Department of State; applicants in categories subject to numerical limits are registered on the visa waiting list. Each case is assigned a priority date based on the petition's filing date. Visa issuance within each numerically limited category is possible only if the applicant's priority date is within the applicable "final action" dates, which are published each month by the Department of State in the Visa Bulletin. Family- and employment-preference applicants compete for visa numbers within their respective categories on a worldwide basis according to priority date; a statutory per-country limit on such preference immigrants places a maximum on the number of visas that may be issued in a single year to applicants from any one country. This means that many categories become backlogged and people have to wait. On the family side, more than 3.6 million people wait for immigrant visas, the vast majority of which — 2.2 million — represent siblings of U.S. citizens. On the employment side, there are 140,000 visas issued annually. In those categories, the waits are much shorter, with some notable exceptions.

Recently, the Department of State asked the National Visa Center (NVC) to report the totals of applicants on the waiting list in the various immigrant categories. Because applications for adjustment of status are adjudicated and pend at USCIS offices and the NVC does not have information on them, those numbers are not included. This is significant because the majority of employment-based green cards are processed by USCIS and not by the NVC. Nevertheless, according to the NVC, the following provides a snapshot of some of the employment-based visa waits as of November 1, 2018 and as compared to November 1, 2017:

 

Category

As of
Nov. 1, 2017

As of
Nov. 1, 2018

Employment First

5,527

9,266

Employment Second

16,725

20,501

Employment Third Total
    Skilled Workers
    Other Workers

59,087
53,194
5,893

50,966
43,385
7,581

Employment Fourth Total

591

797

Employment Fifth Total

30,259

39,001

Total

112,189

120,531

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Holiday Travel:
Review Your Documents Now

Now is a good time for foreign nationals who will be departing the United States for travel abroad over the holidays to review their travel documents to ensure that their reentry into the U.S. is as seamless as possible. Depending on an individual's current status and whether he or she is "in process" for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And, yet for others, changed circumstances (such as change in work, change in relationship, arrests, and criminal matters) may have immigration consequences. Travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied and a visa becomes required for reentry, sufficient time will be necessary for that individual to make an application. Foreign nationals planning to travel outside the United States within the next couple of weeks and who have questions about their documents are encouraged to contact our office.

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CBP Reminds Travelers to
Allow 72 Hours for ESTA Authorization

With the holidays rapidly approaching, international travelers using the Electronic System for Travel Authorization (ESTA) for travel to the United States are reminded to apply as soon as possible but not less than 72 hours before their international flight is scheduled to depart. Due to changes in the ESTA application processing, real-time approvals will no longer be available. Travelers who participate in the Visa Waiver Program (VWP) traveling to the U.S. are strongly encouraged to apply for ESTA authorization at the time of booking their trip and no later than 72 hours prior to departure. Applicants who apply on the same day of their flight's departure risk not having an approved ESTA prior to their scheduled departure and being denied boarding their flight. ESTA authorization, which is available online, is valid for two years and costs $14 to apply.

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Members of Congress Also Weigh In

Lawsuit Challenges Legality of USCIS
Unlawful Presence Policy for Fs, Js, and Ms

Guilford College filed a lawsuit challenging the legality of an 8/9/18 USCIS policy memorandum, "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," as contrary to the statutory unlawful presence provisions, and violative of the Administrative Procedure Act and the Due Process Clause of the U.S. Constitution. Guilford asks the court to vacate the memorandum, declare it unlawful, and enjoin DHS from applying it. Meanwhile, a group of 18 Senate Democrats urged USCIS Director L. Francis Cissna to rescind the August 9 policy because it results in international students being removed or barred from reentry who inadvertently violate the terms of their visa.

The policy provides that individuals on F-1 student visas (and J and M visa holders as well) would immediately begin accruing unlawful presence in the United States if they left school or worked without authorization, even if they were never notified of the violation by USCIS or an immigration judge. Under this new policy, international students would become subject to removal and barred from reentry for up to 10 years before they even know that they have violated the terms of their visa.

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Change to Consular Officers' "Public Charge" Evaluation Challenged by Baltimore City

The city of Baltimore filed a lawsuit challenging President Trump's efforts to curtail legal immigration by penalizing people who use public benefits, alleging that the Administration's expanded definition of "public charges" has had a chilling effect on the city's immigrant community, which Baltimore officials see as key to its revival. The lawsuit, filed in U.S. District Court for the District of Maryland, challenges a change to the State Department's Foreign Affairs Manual that took effect in January. The change instructs consular officers evaluating immigrant visa applications abroad to consider whether applicants, their families, or their sponsors have used a public benefit in the United States or might in the future. The lawsuit alleges that legal immigrants have stopped using school programs, food subsidies, housing vouchers, and health clinics — for which they are eligible — as a result, which in turn is hurting the city's mission to welcome immigrants. Previous versions of the U.S. government's "public charge" policy, which denies entry to people who are likely to rely on government assistance, explicitly excluded programs such as health care and food subsidies from consideration. A somewhat similar but separate change recently proposed by DHS would affect certain adjustment of status applications filed in the United States and has received tremendous press attention. While public comments were due December 10, the DHS rules remain pending.

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NEWS IN BRIEF

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

Marriage to U.S. Citizen and Naturalization: Naturalization applicants filing on the basis of marriage to a U.S. citizen — filed after three years of obtaining permanent residency — must continue to be married from the time of filing for naturalization until the applicant takes the Oath of Allegiance for naturalization. However, the statutory provisions that require the applicant spouse to be living with his or her U.S. citizen spouse for at least three years is only required until the time of filing.

New Jersey Prohibits Law Enforcement Cooperation with ICE: The state of New Jersey released new rules restricting state and local law enforcement's cooperation with U.S. Immigration and Customs Enforcement, including preventing state officers from inquiring about an individual's immigration status and limiting when officers may comply with immigration detainers.

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