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KURZBAN KURZBAN WEINGER TETZELI AND PRATT -- IMMIGRATION LAW UPDATE

 

Newest E.O. Targets H-1B Program

Update on H-1B Visas

On April 18, President Trump signed yet another Executive Order, "Buy American and Hire American," in which he directs various agencies to review the current laws governing the H-1B program. President Trump also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.

Even before the Executive Order was announced, several agencies marked the beginning of the current H-1B filing period by announcing that they would investigate and prosecute vigorously companies that don't comply with the regulations. First and most significantly, USCIS issued a statement detailing its increased efforts to ferret out fraud in the visa program with additional site visits to H-1B dependent employers, contractors, and small companies that have limited business. It also released a memo that said "computer programmers" would no longer be considered automatically an H-1B "specialty occupation" absent additional information. And the Department of Justice (DOJ) Immigrant and Employee Rights Section warned employers petitioning for H-1B visas to not discriminate against U.S. workers.

While the Executive Order will have no immediate impact on H-1Bs because significant change to the program would require legislative action or rulemaking, it is another pronouncement from the White House that creates extreme uncertainty for noncitizens and for U.S. employers who hire foreign nationals. The H-1B program, enacted in its current form in 1990, certainly needs review and an update but the visa program generally does not act as a mechanism to replace American workers or depress wages. And, the system is not riddled with abuse. On the contrary, U.S. businesses use the H-1B to gain access to the sought-after skills of foreign professionals to complement the U.S. workforce, paying fees and costs that are significant. Studies show that foreign professional personnel greatly benefit U.S. businesses, U.S. workers, and the economy.

Meanwhile, on April 17, USCIS announced that it received 199,000 H-1B petitions during the filing period, a decrease of more than 15 percent from the 236,000 petitions received last year. In this atmosphere of uncertainty, it is not surprising that employers are reluctant to file cases on behalf of needed employees for fear that their cases will be denied or that later they will face penalties from an aggressive agency looking to find abuse. Those employers who filed H-1B cases this year can expect to start to receive receipt notices for cases randomly selected in the lottery. Rejected cases will be returned later in the spring.

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H-4 Work Authorization Under Scrutiny;
Delayed Processing Anticipated for H-4 Extensions

In 2015, the DHS promulgated rules that permitted spouses of certain H-1B visa holders to receive work authorization. Under the current rules, an H-4 spouse could may apply for work authorization if his or her H-1B spouse had an approved I-140 but was still awaiting visa availability.

In the wake of the new rule, a lawsuit was filed in federal district court against DHS by tech-industry workers charging that H-4 work authorization unfairly added additional competition in the workforce against U.S. citizens and residents. The district court disagreed with the workers and upheld the rule, but the case is now on appeal with the D.C. Circuit. DHS recently requested time from the court to consider changes to the rule. While any change, or even revocation of the H-4 work authorization rule by DHS would have to undergo public notice and comment, the recent agency request makes clear that DHS is re-thinking the rule and H-4 spouses need to be prepared that their work authorization may come to an end. The court of appeals is expected to hear the case in October 2017.

Meanwhile, USCIS announced that certain dependent H-4 extensions would not be adjudicated within 15 calendar dates along with a premium processed H-1B extension request. Specifically, USCIS advised that if a principal filed a premium processed H-1B extension at the Nebraska Service Center, his or her spouse's H-4 extension and work authorization application would not be adjudicated at the same time as the H-1B extension. It is likely that there will be a one- to three-week gap between adjudication of the H-1B and the adjudication of the H-4 extension and EAD card. H-4 spouses who have not received notices by the end of April are advised to follow up with USCIS about the status of the case.

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Rollout of Administration's
Interior Enforcement on Immigration

As previously reported, two significant Executive Orders were signed by President Trump in January, "Enhancing Public Safety in the Interior of the United States" and "Border Security and Immigration Enforcement Improvements," which are now being implemented. During the last several weeks, various immigration-related agencies announced a myriad of plans that range from construction of the border wall, to hiring more ICE and CBP employees, to ramping up domestic enforcement actions. While some plans still remain vague, the daily barrage of domestic immigration enforcement developments has created a general feeling of anxiety for noncitizens. For some, their future prospects in the United States are extremely bleak, as safe havens shrink and legal avenues for relief from deportation disappear. Nonimmigrants also are anxious as their visa options may become increasing difficult to secure. Meanwhile, the court cases hearing the travel ban are ongoing, meaning foreign nationals of certain countries identified by President Trump may still confront barriers to admission.

Enforcement Priorities Vacated:
Now All Undocumented Are Effectively Targets

Interior enforcement numbers have spiked after President Trump's removal of enforcement priorities. There have been anecdotal cases of legal residents and DACA recipients being apprehended, but more alarming is the number of people who have no criminal record whatsoever who are being detained. Moreover, ICE is no longer limiting arrest to the person identified in a warrant — now everyone without status in the vicinity of an enforcement action is equally at risk. And, ICE has been showing up at courthouses and USCIS offices with increasing regularity, making foreign nationals eligible for benefits less likely to apply for them.

Down on the Southern Border

The President is still talking about a wall on the Southern border, and there have been steps taken on construction. This will be a monumental undertaking and it would be up to Congress to appropriate funds for the project on a continuing basis. However, apprehensions of people illegally crossing the border are already down by roughly 60 percent. Such a drop in border crossings may cause Congress to lose interest in providing funding for the wall in the upcoming months and years, but construction has started on a border wall prototype that is scheduled to be completed this summer. If Congress grants more funding, the Rio Grande and San Diego areas will likely be targeted first.

Meanwhile, Attorney General Jeff Sessions has directed federal prosecutors to make immigration cases a higher priority and look for opportunities to bring serious felony charges against those who cross the border illegally. For example, a felony for multiple illegal entries or aggravated identity theft charges are possibilities that, once pursued, will make it all but impossible for an immigrant to remain in the United States. Sessions also confirmed that the "catch and release" program is no longer viable, meaning that those caught at the border will remain in detention until their cases are heard, absent extenuating circumstances.

ICE and Border Patrol Expanding Their Workforce

Under the Executive Orders, ICE is required to hire an additional 10,000 officers and the Border Patrol 5,000. How these agencies will accomplish this remains to be seen. In fact, ICE has already announced that it will lower its standards for its new hires. It will not require polygraph testing and it will reduce physical fitness requirements. The Border Patrol, in contrast, has not made such pronouncements, and expects to only be able to hire new agents after thorough vetting and field training. However, federal hiring processes are notoriously slow and expensive. A DHS assessment estimated that hiring just 500 new agents would cost $100 million.

"Sanctuary Cities" Being Targeted

Notably aggrieved parties in these enforcement actions include the "sanctuary cities." From New York to Austin, San Francisco to Baltimore, mayors and local politicians are rallying behind immigrants and refusing to honor detainers issued by ICE. By openly defying the federal government, these state and local entities are testing the core principles of federalism, a political theory upon which the country is built. Also, there is growing pressure on police forces in sanctuary cities to refrain from making arrests for minor violations, as that could lead to a foreign national's eventual removal. The Trump Administration continues to publish its list of crimes committed by immigrants living in these sanctuary cities as a shaming tactic.

Meanwhile, other jurisdictions are willfully cooperating with the Executive Order requesting the assistance of state and local law enforcement with immigration enforcement activities. DHS would like to expand the "287(g)" program that allows these law enforcement officials to assist in pursuing immigration violations. The 287(g) program comes with a price tag as well, and it remains to be determined how many new locales DHS can afford to bring into their program.

Attorney General Expands Program
for Foreign Nationals in Detention

Attorney General Sessions is expanding and modernizing the Justice Department's Institutional Hearing Program. This program allows ICE to bring a criminal alien before an immigration judge while the alien is still incarcerated for their crime. By concluding the removal proceedings while the alien is prison, ICE does not have to transfer them to an immigration detention facility after their release. This program accelerates the removal process.

Cables on Heightened Scrutiny at Consulates

The supposed purpose of a temporary ban on immigration from certain countries was so that the Departments of State (DOS) and Homeland Security (DHS) could develop new vetting procedures to more thoroughly screen visa issuances and incoming foreign nationals for security threats. While the Administration has not publicly set any new vetting procedures, DOS announced that increased vetting and heightened scrutiny of visa applicants would take place. What exactly this means has not been divulged but will inevitably cause delays for visa applicants. Immigrants can expect longer visa wait times, especially during the summer months when consulates and embassies are normally busy.

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CBP Handout on
Inspection of Electronic Devices

In light of increased inspection of electronic devises at the border, CBP recently released a handout explaining why a person's electronic device may be subject to inspection, the authority to search electronic devices, and what happens with the return or seizure of detained such electronic devices. The following is a summary:

Why You May Be Chosen for an Inspection. You may be subject to an inspection for a variety of reasons, some of which include: your travel documents are incomplete or you do not have the proper documents or visa; you have previously violated one of the laws CBP enforces; you have a name that matches a person of interest in one of the government's enforcement databases; or you have been selected for a random search. If you are subject to inspection, you should expect to be treated in a courteous, dignified, and professional manner. If you have concerns, you can always ask to speak with a CBP supervisor.

Authority to Search. All persons, baggage, and merchandise arriving in, or departing from, the United States are subject to inspection, search and detention. CBP has the authority to determine the identity and citizenship of all persons seeking entry into the United States, determine the admissibility of foreign nationals, and deter the entry of possible terrorists, terrorist weapons, controlled substances, and a wide variety of other prohibited and restricted items.

What Happens Now? CBP will provide you with a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property within a reasonable time upon completion of the examination. The CBP officer who approved the detention will speak with you and explain the process, and provide his or her name and contact telephone number if you have any concerns. Some airport locations have dedicated Passenger Service Managers who are available in addition to the onsite supervisor to address any concerns.

Return or Seizure of Detained Electronic Devices. CBP will contact you by telephone when the examination of the electronic device(s) is complete, to notify you that you may pick-up the item(s) during regular business hours from the location where the item(s) was detained. If it is impractical for you to pick up the device, CBP can make arrangements to ship the device to you at our expense. CBP may retain documents or information relating to immigration, customs, and other enforcement matters only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if after reviewing the information, there exists no probable cause to seize it, CBP will not retain any copies. If CBP determines that the device is subject to seizure under law, you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties, and Forfeitures Office.

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So It's Back to Private Prisons

In the waning months of 2016, the growing trend in the executive branch was disdain for the private prison system. The Department of Justice issued a memorandum stopping the practice altogether, which prompted action by other federal agencies. Immigration and Customs Enforcement (ICE) gave serious consideration to ending the practice of relying on private detention centers but begrudgingly determined that it would be impossible to maintain their obligations under the law relying solely on government detention centers. Less than a year later, private prisons and detention centers are on the rise.

Attorney General Jeff Sessions reversed the Justice Department's position and reinstated reliance of private prisons. The aggressive enforcement of immigration laws coupled with millions of undocumented aliens in the United States has actually caused ICE to require more detention centers than ever before. Nine out of the 10 largest ICE detention centers in the U.S. are now private, and approximately 65 percent of immigrant detainees are operated by for-profit prison corporations. The two largest corporations, GEO Group and CivicCore (formerly the Corrections Corporation of America, or CCA) began in the 1980s, when the corporations lobbied for laws that would expand detention and other forms of incarceration. Today there are still new private prisons being built, including plans for openings in Texas and Georgia.

The reliance on private prisons and detention facilities give rise to serious concerns about the motivations of those in office while their justifications merit rigorous debate and scrutiny. However, it is the rapid expansion of detention facilities that create more immediate concerns. Growth at such a rapid pace, while good for investors, has led to accusations of inadequate controls and supervision, poor food and medical care, and even potential labor violations. While civil lawsuits may loom in the distance for some of the poorly run detention centers, the Administration is moving full-steam ahead with its aggressive removal practices. ICE is likely to lean heavily on private facilities as it identifies and apprehends increasing numbers of individuals residing in the United States unlawfully.

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Don't Procrastinate

Apply for U.S. Citizenship
If You Are Eligible

If you are a legal permanent resident (LPR) and eligible for citizenship, now is a good time to give serious thought to becoming a U.S. citizen. Procrastination, cost, and an emotional bond to your home country may encourage you to remain in LPR status. That is understandable, but only for so long. The immigration system is in flux and though LPRs are afforded the same constitutional protections as citizens, permanent resident status is something that can be lost. Crime, abandonment, fraud, and other violations can result in a revocation of LPR status and subsequent removal from the country. If you are a citizen, however, you cannot be removed or deported. So, now you know you should apply for U.S. citizenship, but how do you do apply?

Determine if you're eligible. To apply for citizenship, you have to be: (1) at least 18 years of age or older; (2) a permanent resident (green card holder) for at least 5 years (three years if married and living with a U.S. citizen) and actual physical presence in the U.S. for half of that time; (3) living within a state for at least three months prior to filing the application; (4) a person of good moral character; and (5) able to read, write, and speak basic English.

Two eligibility issues seem to cause the most concern for potential applicants: how much travel outside of the U.S. is permitted and the meaning of good moral character. First, since many applicants for citizenship frequently travel abroad, capturing all time out of the country seems onerous. It need not be. Look through your old passports for entry stamps and compare them to your online I-94. Make a list of travel times. Start with estimates. If you have sufficient time in the U.S., estimates even on the application can be okay.

Second, the meaning of good moral character for U.S. citizenship covers a wide variety of behavior. Many applicants are concerned about applying if they have had any law violation. They should be. But, some violations don't count. For example, minor traffic infractions don't disqualify someone from citizenship, but they should be listed on the application. And, an arrest may not delay the filing of for citizenship, but being on probation can. Some people simply can't remember or never fully understood what happened many years ago. If you are unsure of your criminal history, request an FBI criminal background check and obtain a copy of your record.

If you have had any criminal arrest or encounter, consult with an immigration lawyer before applying for citizenship even if you plan to prepare and file the application on your own. The point of filing for citizenship is to keep you in the country, not contribute to your removal.

Get the Documents You Need and File. If you have a straightforward case, you can do it on your own. You will need the following minimum documents in order to file for U.S. citizenship: (1) Form N-400 (available online); (2) a copy of both sides of your permanent resident card; (3) a check or money order made payable to "U.S. Department of Homeland Security" for the filing fee. The current fee is $725 but always double-check the fee on the USCIS website because the fee changes and it must be correct.

Other documents must be submitted if the application is based on marriage and residence with a U.S. citizen after three years; special rules apply if naturalization is based on military service. Before you submit your application, make sure you have made a complete copy of everything for your personal reference.

Three to four weeks after USCIS receives your application, you will receive a biometrics appointment notice instructing you to go to your local Application Support Center and have your digital fingerprints, photo and signature taken. Yes, the fingerprints are for a criminal background check, and USCIS will know everything even if the incident happened 20 years ago. Again, if you have any convictions talk to an immigration attorney first.

Attend Your Interview and Take the English and Civic Tests. Within about five or six months after filing your N-400 application, you will receive an interview notice informing you of the date and time of your interview. The USCIS officer will review your application with you. The officer also will administer your English and civic tests. The tests consist of: (1) reading and writing a sentence in English; (2) an oral examination of 10 random questions you studied from the 100 or so questions in your civics questions. You need to get 6 out of 10 correct in order to pass. The USCIS website contains the necessary study materials. If you do not pass the first time, you get another chance a couple of months later (for free — you don't have to pay or apply again).

Swearing-In and Become a Naturalized U.S. Citizen. Finally, some fun. At this time, you receive a notice in the mail informing you of your swearing-in — the point at which you will actually become a U.S. citizen. Each jurisdiction does it differently. At the swearing-in ceremony, you must advise the officials of any changes between the time you had your interview and the date you are being sworn-in. And, you must bring the relevant documents. So, if you got married, bring your marriage certificate; if you get a speeding ticket, bring the certified disposition; if you traveled out of the country, bring your foreign passport. The ceremony itself is exciting and very momentous. Most applicants cry! After the ceremony, you'll obtain a certificate of naturalization, and you can now apply for a U.S. passport.

Becoming a U.S. citizen is not only more meaningful than many people imagine, but it protects lawful permanent residents from some of the most draconian provisions in immigration law. And, it permits those individuals who already call America their home to become full participants in American society. Oh yeah. And now you can vote for President.

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NEWS IN BRIEF

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

Sunset of Four Immigration Programs: Four immigration programs will collectively sunset (expire) on April 28, 2017, if the Continuing Resolution to fund the federal government is not renewed on time. The programs include E-verify, Special Immigrant Religious Workers, the EB-5 Investor Program, and Conrad-30 Waivers for physicians.

Update on Refugees: Since President Trump's inauguration, the United States has admitted 9,268 refugees, including 3,138 from the countries identified in the travel ban. Last year during the same period, the U.S. admitted 13,327 refugees.

New I-130 and I-130A: Beginning April 28, USCIS will only accept the 2/27/2017 edition of Form I-130, Petition for Alien Relative. The new form incorporates much of the information required of a spouse-petitioner and normally included on Form G-325A in the context of a marriage-based case. For marriage cases, a new Form I-130A (Supplemental Information for Spouse and Beneficiary), will be required.

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