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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

Adjudications Begin for DACA
(Deferred Action for "Childhood Arrivals")

It has been almost two months since eligible individuals brought to the U.S. as young children began requesting "deferred action for childhood arrivals" (DACA) relief. To date, USCIS reports that almost 180,000 cases have been accepted for processing and about 4,600 approved. As many as 1.76 million undocumented immigrants are estimated to qualify. (Of the first 80,000-plus cases filed, more than half were from Mexican nationals, 4,000 from El Salvador, and 2,800 from South Korea.)

DHS has been proactive in reaching out to the community to provide guidance on the program and documentary requirements, and has issued a number of FAQs to address the various questions that have arisen since the program started, another round of FAQs is expected shortly. One particularly vexing issue is whether a well-intentioned employer who gains knowledge about an employee's lack of work authorization through the employee's request for DACA documentation will become liable for employer sanctions penalties. While recent FAQs from DHS state that employers may provide individuals requesting DACA with documentation that verifies employment and that this information will not be shared with ICE for civil immigration enforcement purposes unless there is evidence of egregious violations or widespread abuses, greater assurances are needed — especially since FAQs do not have the force of law or regulation and can be withdrawn at any time. We hope these and other kinds of issues will be addressed squarely.

In addition to FAQs, DHS announced that it expects to process the initial group of DACA deferred action requests within four to six months of filing; biometrics appointments will be scheduled about one month from filing. USCIS also advises that it will first issue grants of DACA relief, then will process employment authorization applications. Where requests are not approved on the initial submission, USCIS intends to send either a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Outright denials will occur only where the individual is clearly ineligible, such as when the individual was born in 1972 or later.

As the program picks up, we hope too that DHS can provide leadership and guidance to federal and state agencies about what DACA means. For example, will a state's document requirements for a driver's license be satisfied with a grant of deferred action, documents obtainable through a grant of deferred action, and other documents that DACA beneficiaries are likely to have? Arizona Governor Jan Brewer has already issued an executive order barring those individuals eligible for DACA from obtaining driver's licenses or other state benefits. We hope other states do not follow suit.

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3-Year Extension of EB-5, E-Verify, Religious Worker,
and Conrad State 30 J-1 Visa Waiver Programs

On September 28, President Obama signed into law a bill that extended several immigration provisions for three years. They are: (1) the EB-5 Regional Center program, which permits immigrant investors to invest $500,000 in certain regional programs and obtain, if approved, conditional residency; (2) E-Verify, the Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA), which allows participating employers to electronically verify the employment eligibility of their newly hired employees; (3) the Religious Worker program, a immigrant "green card" visa category for nonminister special immigrant religious workers; and (4) the Conrad State 30 J-1 Waiver program, which authorizes each state to request waivers of the two-year home residency requirement to certain foreign medical graduates in change for providing primary patient care for three years in medically underserved areas. While a more ideal outcome for all programs would have been making them permanent, the three-year extension gives important peace of mind to those in process and involved with these programs.

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CBP Plans to Discontinue I-94s,
No Longer Stamping I-20 / DS-2019 Documents

U.S. Customs and Border Protection (CBP) is in the process of automating traveler arrival/departure records and will be eliminating at international airports and seaports the paper version of Form I-94, the white card placed in most foreign nationals' passports that denotes the date of their admission as well as their status and authorized period of stay. Instead, the traveler will receive a stamp in their passport with a handwritten code of admission (such as H-1B or O-1) and period of admission. Under the plan, nonimmigrants arriving at land borders, and certain classes of arriving foreign travelers, such as refugees, will continue to be issued a paper Form I-94.

The reasons for eliminating the I-94 paper form are two-fold: (1) CBP already has access to the information gathered on the I-94 through the foreign national's application for a nonimmigrant visa and the Web-based Advance Passenger Information System (APIS); and (2) eliminating Form I-94 will save the agency money and resources.

Since first announcing its plans to implement a paperless I-94, CBP has received concerns from federal and state agencies about the impact on their programs that use the document for an identifier. For example, what will state DMVs require? And, what will the Social Security Administration require for SSNs? CBP also has not yet fine-tuned an online systems query capability that must be in place before the paper record is eliminated. While implementation of the paperless I-94 is still some months away, it is clearly on the horizon.

Meanwhile, CBP has already implemented another change for certain arriving nonimmigrant visa holders. CBP officials are no longer stamping prospective or returning foreign students' Form I-20s and exchange visitors' DS-2019s at ports of entry. Instead, CBP is using an electronic system to adjudicate the individual's status notation. The stamping of the Form I-20 / DS-2019 had been a longstanding USCIS procedure, and thus USCIS is apparently reaching out to other agencies to inform them of the change, since many agencies require these stamps prior to granting benefits.

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Reentry Permit Applicants Under Age 14 or Over 79
Need Not Appear for Biometrics Appointment

When a lawful permanent resident (LPR) plans to depart the U.S. temporarily and does not expect to return to the United States for a year, often he or she is advised to obtain (before departing the U.S.) a Reentry Permit. A Reentry Permit is a travel document that helps to protect an individual from inadvertently abandoning permanent resident status. To obtain the Reentry Permit travel document, the individual must apply while in the U.S. and obtain biometrics (fingerprints and a digital photograph) prior to departing the U.S. Once the biometrics have been taken, the individual can leave the U.S. and the travel document can be mailed to him or her abroad.

The rules regarding fingerprints and photographs have been confusing for those under age 14 or over 79 because these individuals are not required to pay a biometrics fee or have their fingerprints taken. They are, however, being notified by USCIS that they are to appear at application support centers for biometrics. But just recently, USCIS has advised that such individuals are not required to attend a biometrics appointment. Instead, applicants under the age of 14 or over 79 can submit two passport-style photographs when applying for the Reentry Permit (in addition to all other required documentation), and USCIS will issue the travel document without requiring the applicant to attend an appointment.

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Obtaining Expedited Advance Parole Documents

Adjustment of status and other applicants often require "advance parole" travel documents in order to depart the United States and re-enter without abandoning their underlying application. Travel documents are normally issued within 90 days of filing. When the foreign national has an emergency and cannot wait for issuance of the travel document, he or she can request an emergency expedite. While there are several ways to make such a request, USCIS clarifies that for emergency advance parole, the individual will need to visit a USCIS district or field office. While clients report that field offices often advise them that they cannot issue the requested travel document and refer the foreign national to the National Customer Service Center to make a service request, USCIS confirms, in fact, that all field offices are equipped to adjudicate and issue advance parole documents. If you encounter problems, please contact our office.

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ICE Issues Guidelines on Applicability of
Prosecutorial Discretion to Same-Sex Partners

In the summer of 2011, U.S. Immigration and Customs Enforcement (ICE) issued guidelines on exercising prosecutorial discretion designed to focus its enforcement priorities on individuals who pose a threat to public safety, are recent border crossers, or repeatedly violate immigration laws. In a recent memo, ICE provides guidance to the field, clarifying how the existing guidelines relate to family relationships involving long-term, same-sex partners. Specifically, ICE has reminded its officers that one of the factors relevant to an assessment to decline to prosecute a case is the person's ties and contributions to the community, including family relationships. And "family relationships," it clarified, include two adults who are in a committed, long-term, same-sex relationship — specifically, it said, relationships in which the individuals:

  • are each other's sole domestic partner and intend to remain so indefinitely;
  • are not in a marital or other domestic relationship with anyone else; and
  • typically maintain a common residence and share financial obligations and assets.

While family relationships is only one of many factors that will be considered, this guidance is welcome news. Apparently, the guidance was prompted by a letter from 54 members of Congress requesting that DHS Secretary Napolitano issue written field guidance explicitly stating the policy that same-sex family ties are a positive factor to be considered for the exercise of prosecutorial discretion.

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New Report

Immigrant Entrepreneurship
Stalled for First Time in Decades

For almost two decades, immigrant-founded start-up companies — especially high-tech firms in Silicon Valley — have represented slightly more than a quarter of all such entrepreneurships in the United States and have been an important source of economic growth in our country. However, a new study from the Kauffman Foundation reports that immigrant-founded companies nationwide have slipped for the first time in decades, and its authors believe that the United States' unwelcoming immigration system has created a "reverse brain drain."

The report, The Immigrant Exodus: Why America Is Losing the Global Race to Capture Entrepreneurial Talent, evaluated the rate of immigrant entrepreneurship from 2006 to 2012 and updated findings from the period between 1995 and 2005. Immigrant founders, who are most likely to start companies in the innovation/manufacturing-related services (45 percent) and software (22 percent) industries, employed about 560,000 workers and generated an estimated $63 billion in sales from 2006 to 2012, underscoring the continuing importance of high-skilled immigrants to U.S. The report provides detailed statistical data on immigrant start-ups by region, nationality, and sector.

While the downward trend is still slight nationwide, the report confirms that the U.S. must embrace immigrant entrepreneurs to maintain a dynamic economy:

"The U.S. risks losing a key growth engine just when the economy needs job creators more than ever." Yet, "[t]he U.S. can reverse these trends with changes in policies and opportunities, if it acts swiftly. It is imperative that we create a startup visa for these entrepreneurs and expand the number of green cards for skilled foreigners to work in these startups. Many immigrants would gladly remain in the United States to start and grow companies that will lead to jobs."

We couldn't agree more.

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Three-Year Multiple Entry Visas for
Russian B-1 & B-2 Visitors Now the Norm

As of early September, Russian and American travelers for business or tourism will be eligible to receive three-year multiple entry visas under a new bilateral agreement between U.S and Russia. This is the new standard for U.S. citizens visiting Russia and Russian citizens visiting the United States. Also, no formal invitation will be required to apply for a business or tourism visa, although applicants seeking Russian tourist visas must continue to hold advance lodging reservations and arrangements with a tour operator. The agreement also simplifies and eases visa processing time for travelers from both countries, including a commitment to keep standard visa processing times under 15 days. In addition, the United States has reducing the fee charged to Russians for business or tourist visas to $20. (The $160 DS-160 nonimmigrant visa application fee still applies, and validity and fees for other visa types do not change.) For U.S. travelers, the agreement lifts the previous restriction limiting stays in Russia to 90 days within any given 180-day period. In addition, "exit visas" will no longer be necessary in the case of U.S. citizens who lose their passports while in Russia. U.S. citizens with current Russian visas are reminded that they are still subject to the terms and dates of the visas already in their possession. For more details, see http://moscow.usembassy.gov/russian-visas.html and http://www.ustraveldocs.com/ru/.

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IRS Now Requiring Original Documentation for ITINs,
Certain Nonresident Foreign Nationals Exempted

From now until the end of the year, the IRS will no longer accept notarized or other copies of documentation (such as passports and birth certificates) for issuing individual tax identification numbers (ITINs) in an effort to "to strengthen and protect the integrity of the ITIN process while minimizing the impact on taxpayers." During this interim period, people who need ITINs can do so by submitting original documentation (or certified copies by the issuing agency) by mail or at IRS walk-in sites. The IRS specifically states that apostille documents will not be accepted. The new rules specifically exempt military personnel and their families, as well as "nonresident aliens" who are applying for ITINs for the purpose of claiming tax treaty benefits or who are subject to third-party withholding for various income (such as certain gaming winnings or pension income, or otherwise need an ITIN for information reporting purposes). The IRS advises that while existing documentation standards will be maintained for these applicants, scrutiny of the documents will be heightened. ITIN applications by nonresident aliens that are accompanied by a U.S. tax return will, however, be subject to these new interim document standards. The IRS advises that it will return original documents within 60 days.

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NEWS IN BRIEF

Worldwide EB-2 Becomes Current in November: The worldwide employment-based second preference category (advanced degree/exceptional ability) becomes current again in November, as announced in the Visa Bulletin. The category became oversubscribed in July.

TSP Extended for Haitians: DHS has extended the designation of Haiti for temporary protected status (TPS) for 18 months from January 23, 2013 through July 22, 2014. The 60-day re-registration period begins October 1, 2012, and will remain in effect until November 30, 2012. DHS also announced the extension of the suspension of regulatory requirements so certain Haitian F-1 students experiencing severe economic hardship may obtain employment authorization.

Taiwan Designated for Visa Waiver Program (VWP): Effective November 1, 2012, eligible Taiwan passport holders will be able to use the streamlined Visa Waiver program. Taiwan joins 36 participants in the VWP, which permits visa-free travel to the United States for ESTA-approved travelers visiting the U.S. for 90 day or less for business or tourism.

Recent Consulate Re-openings/Closings: The Consular Section at the U.S. Embassy in Khartoum, Sudan, was recently closed indefinitely, and consular services in Cairo, Egypt, and Tripoli, Libya, also have been suspended. The Consular Section at Tunis, Tunisia, was reopened on October 9, 2012. For more information on nonimmigrant and immigrant visa processing for nationals under the jurisdiction of these posts, see the individual websites.

Employee Rights Toolbox: USCIS has released an online resource page on its website to increase awareness about employee rights during the employment eligibility process, containing a variety of educational materials.

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