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Immigration News and Updates for May 2019

To many employers’ surprise, they have begun receiving “No-Match” letters from the Social Security Administration. These letters were a frequent subject of immigration enforcement during the Bush Administration, but were virtually absent during the Obama Administration. Read below on how to respond to the “no-match” letter as an employer and an employee.
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Here is the Immigration News You NEED to Know Now

IMMIGRATION NEWS

SSA Resumes Issuing No-Match Letters

In March 2019, the Social Security Administration (SSA) resumed mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on the wage and tax statement (Form W-2) that do not match SSA’s records. The purpose of the letter is to advise employers that corrections are needed.
A no-match letter is not an indication that a person is unauthorized to work in the United States. SSA noted that there are a number of reasons why reported names and SSNs may not agree with SSA’s records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.
Details: SSA information for employers, https://www.ssa.gov/employer/notices.html ; sample response forms, https://www.ssa.gov/employer/examplenotice.html
We will also be posting a blog shortly with more details on responding to this notice.
USCIS and CBP Extend I-129 Pilot Program to Canadian L-1 Nonimmigrants
U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP) announced that they are extending the joint agency pilot program for Canadian citizens seeking L-1 visa status under the North American Free Trade Agreement (NAFTA) through April 30, 2020.
The pilot program allows Canadian citizens to request that USCIS adjudicate their employer’s individual L-1 petition, or petition based on blanket L petition, before their arrival or when they arrive at the Blaine, Washington, port of entry.

Enforcement of Unlawful Presence Memo Targeting International Students Temporarily Blocked by Federal Judge

On May 3, 2019, a federal judge issued a nationwide order requiring USCIS to temporarily suspend the enforcement of a policy under which F-1/M-1 students and J-1 exchange visitors would begin to accrue unlawful presence as soon as they violate the terms of their visa status. This is terrific news for all foreign students in the US.
Students who violate their visa status (and therefore are unlawfully present in the United States) for a certain period of time may trigger a 3- or 10-year entry bar when they leave the country. This policy memo had created situations where a student could have easily and unknowingly violated their student status, and thus created a bar to their immigration to the United States.
For now, this order is encouraging news for affected students because they can rely on the prior USCIS policy of their accruing unlawful presence only after the agency or an immigration judge makes such a finding.
This order stems from a lawsuit brought by a number of universities/colleges, challenging that USCIS’ policy memo is unlawful because, among other reasons, the agency did not go through the proper rulemaking process.
Details: Preliminary injunction issued by Federal District Court, http://www.nafsa.org/_/file/_/amresource/guilfordorders20190503.pdf ; August 2018 USCIS unlawful presence memo, https://bit.ly/2BBwGvJ

USCIS Expands Fee Payment Changes to Additional Field Offices

In recent months, U.S. Citizenship and Immigration Services (USCIS) has announced an expansion of fee payment changes to additional field offices. Those offices now only accept payments in the form of a personal check, attorney check, business check, debit card, credit card, or reloadable prepaid credit or debit card. The offices no longer accept payments in the form of a cashier’s check or money order. USCIS said the changes are intended to “increase transaction security and reduce processing errors.”

E-2 Investor Visa Program Opened to Israelis May 1

Effective May 1, 2019, the E-2 investor visa program has opened to Israelis under a reciprocal treaty investor agreement signed between the United States and Israel.
Certain Israeli nationals who are lawfully present in the United States can now request a change of status to the E-2 treaty investor classification. The U.S. Embassy in Israel notes that Israeli companies seeking E visas for their owners or employees must apply at the Branch Office in Tel Aviv and establish that the trading enterprise or investment meets the requirements. For both first-time applicants and renewals, the company must submit supporting documents, including the individual application for the employee, by mail.

USCIS Responds to Congressional Letter Asking for Info on Backlog Causes

U.S. Citizenship and Immigration Services (USCIS) responded on April 5, 2019, to a letter sent from 86 members of the U.S. House of Representatives to USCIS Director Francis Cissna. The letter asked the agency to explain the reasons for backlogged cases and how certain policies such as “extreme vetting” affect processing times and contribute to the backlog.
Regarding some of the reasons for the current backlog, USCIS noted:
  • USCIS did not anticipate that filings would remain steady in FY 2017 following the implementation of the new fees in December 2016 and the presidential election in November 2016. For example, after the presidential election, naturalization filings did not decrease. The increase in filings therefore outpaced the agency’s capacity to complete processing applications within the time goals.
  • Additional interview requirements resulting from new programs/policies led to increased workloads, security checks, and overall processing times.
  • It appears that increased processing times may have been the result of USCIS changing its “focus for employee evaluations to the quality of their work product and away from numerical case production metrics.”
  • USCIS experienced hiring constraints due to budget concerns. There was also a lag in productivity concerning newly recruited officers as they needed time to ramp up on training.
USCIS’ historical data confirms that the agency’s new and unnecessary in-person interview requirement has contributed to the backlog for I-485 employment-based green card cases.
The congressional letter also asked for any analyses conducted by USCIS on its reversal of longstanding guidance concerning deference toward prior determinations for employment visa petitions. USCIS responded that it lacked data to perform such analyses.
Details: USCIS response (including representatives’ queries), https://bit.ly/2PwKBqh (click “Open”).

President Issues Memo on Combating Nonimmigrant Overstay Rates

On April 22, 2019, President Donald Trump issued a memorandum on “Combating High Nonimmigrant Overstay Rates.” Many of the measures mentioned in the memo are not law yet.
Among other things, the memo states:
  • Visa overstay rates are “unacceptably high for nationals of certain countries.”
  • The Secretary of State will “engage with the governments of countries with a total overstay rate greater than 10 percent in the combined B-1 and B-2…visa category,” with a goal of identifying conditions that contribute to “those overstay rates and methods to address those conditions.”
  • Recommended measures to combat visa overstay include:

 

    • “Suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas;”
    • Imposing “targeted suspension of visa issuance for certain nationals; limits to duration of admission;” and
    • Enforcing “additional documentary requirements.”
    • Measures may be developed for imposing “admission bonds” to improve compliance with the terms/conditions of visas.

USCIS Ending Forms Request Line June 1

Starting June 1, 2019, U.S. Citizenship and Immigration Services is ending the Forms Request Line service that allows people to order forms by phone. The agency is encouraging applicants to download and print forms for free from the USCIS website.
Mailed forms can still be requested by calling the USCIS Contact Center or through the agency’s “Forms by Mail” online request tool.

Visa Bulletin Shows Slight Forward Progress in Some Backlogged Preference Categories

The Department of State’s Visa Bulletin for May 2019 shows slight forward progress for EB-1 for all chargeability areas except China and India, EB-2 for China and India, EB-3 and Other Workers China, India, and the Philippines, and EB-5 China and Vietnam. The remainder of the priority dates remain current with per-country quotas not reached.
Regarding EB-1 for China and India, the bulletin notes a continued “extremely high rate of demand” that may require temporary retrogression until October.
U.S. Citizenship and Immigration Services (USCIS) has announced that the agency will follow the “Final Action Dates” chart for the month for accepting I-485 Adjustment of Status applications.
Details: Visa Bulletin for May 2019, https://bit.ly/2Ur6jNq ; USCIS announcement, https://bit.ly/2KQhq2F

New USCIS Policy Guidance Clarifies Marijuana-Related Activities Bar on Naturalization

U.S. Citizenship and Immigration Services (USCIS) recently issued policy guidance to clarify that certain marijuana-related activities generally bar naturalization even if they are decriminalized under applicable state laws. Such an applicant may be deemed to lack good moral character if found to have violated federal law, the guidance states.
Federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences. Some practitioners are advising clients not to work for or invest in marijuana-related companies. Reportedly, U.S. Customs and Border Protection is also checking social media accounts.

State Dept. Issues Final Rule on “Discontinuing” Granting Visas When Country is Sanctioned

The Department of State’s final rule, effective April 22, 2019, modifies current regulations to reflect that consular officers are to discontinue granting visas to individuals from certain sanctioned countries.
Under the previous regulation, consular officers either granted or denied every visa application. The final rule creates a third and different action, requiring consular officers to discontinue granting visas when a country has been sanctioned for “denying or delaying accepting one or more of its nationals subject to a final order of removal from the United States.”

Acting Secretary of Homeland Security Announces New Office for Targeted Violence and Terrorism Prevention, New CBP Commissioner

Kevin McAleenan, formerly head of U.S. Customs and Border Protection (CBP) and the new Acting Homeland Security Secretary, has replaced Kirstjen Nielsen, who was forced to resign recently amid President Trump’s declarations that he wanted a “tougher direction” for immigration. One of his first acts was announcing the establishment of a new Office for Targeted Violence and Terrorism Prevention within the Department of Homeland Security (DHS) on April 19, 2019. Acting Secretary McAleenan also designated John P. Sanders, CBP Chief Operating Officer, as the senior official performing the functions and duties of the CBP Commissioner.

Attorney General’s Decision Opens Door to Indefinite Detention of Asylum Seekers

A new decision by Attorney General William Barr holds that a person who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such a person “must be detained until his removal proceedings conclude, unless he is granted parole,” the decision states. This decision will be challenged in the federal courts and will ultimately be overturned as a violation of due process.

DHS Secretary Forced Out; Others May Leave in Trump Purge

Secretary of Homeland Security Kirstjen Nielsen has been forced to resign, according to reports. Officials told media organizations that other departures may follow, including L. Francis Cissna, head of U.S. Citizenship and Immigration Services; Kathy Nuebel Kovarik, his deputy; and John Mitnick, USCIS general counsel and a member of Ms. Nielsen’s senior leadership team. The latter departures haven’t happened yet, however, and some reports suggest that they may not.
Meanwhile, President Trump withdrew Ron Vitiello’s nomination for director of U.S. Immigration and Customs Enforcement (ICE). President Trump said he wanted a “tougher direction,” echoing his immigration adviser Stephen Miller. Mr. Vitiello, who had been serving as acting director of ICE, subsequently announced that he was leaving the agency.

USCIS Completes H-1B Cap Random Selection Process for FY 2020, Reaches Advanced Degree Exemption Cap

On April 10, 2019, USCIS used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2020.
USCIS received 201,011 H-1B petitions during the filing period, which began April 1, 2019, including petitions filed for the advanced degree exemption.

Some POEs Refusing Canadian L-1 Renewal/Extension Petitions Under NAFTA

According to reports, contrary to previous practice, various U.S. Customs and Border Protection (CBP) ports of entry (POEs) and preclearance locations have begun to refuse to process L-1 renewal and extension petitions from Canadians pursuant to the North American Free Trade Agreement. Anecdotally, the affected POEs include Toronto, Winnipeg, Vancouver, Calgary, Montreal, Pearson, Edmonton, Seattle, Pembina, Warroad, Pt. Roberts and Sumas.
Some practitioners have sent their Canadian L’s to consular posts instead to file their I-129S (Nonimmigrant Petition Based on Blanket L Petition).
Details: Fredrikson & Byron, P.A. (report prepared with the assistance of the Alliance of Business Immigration Lawyers),

DHS Increases Greece’s ESTA Validity Period to Two Years

The Department of Homeland Security (DHS) has increased Greece’s Electronic System for Travel Authorization (ESTA) travel authorization validity period for travel by nationals of Greece under the Visa Waiver Program (VWP) to two years, following a reduction in 2016 from two years to one year due to identified shortcomings in meeting VWP requirements. In November 2018, DHS determined that Greece has satisfied the requirements for normalizing Greece’s ESTA validity period to two years again.

U.S. Embassy in Israel to Accept E-2 Visa Applications Based on Investment

The U.S. Embassy Jerusalem, Tel Aviv Branch, has confirmed that E-2 visa applications based on investment are now being accepted. The Israel-America Chamber of Commerce sponsored the first U.S. and Israel Treaty Investor Seminar immediately following a convocation, with participation from the U.S. Consul, Tel Aviv Branch, and Director of the Israel Population and Immigration Authority.
This development resulted from a reciprocal agreement under which Israelis and Americans can invest in the other country and obtain a visa based on the investment.

Appeals Court Temporarily Blocks Order to Stop Trump ‘Remain in Mexico’ Policy for Asylum Seekers

The U.S. Court of Appeals for the Ninth Circuit has temporarily blocked an order that would have stopped the Trump administration’s “remain in Mexico” policy for asylum seekers while they await processing of their U.S. asylum claims. Arguments by advocates on why the policy should not be in effect were due April 16 and the government’s arguments on why it should continue were due April 17, the three-judge panel ruled. An earlier order by a judge in San Francisco was set to temporarily halt the change in U.S. asylum policy.
Kirstjen Nielsen, then-Secretary of Homeland Security, directed U.S. Customs and Border Protection (CBP) to immediately expand the “remain in Mexico” policy for asylum seekers and other migrants during a border visit in early April. She directed CBP to return hundreds of additional migrants per day above current rates to Mexico, including individuals apprehended or encountered at or between ports of entry, and to plan for further expansion of the program, called the Migrant Protection Protocols, “beyond the locations in which it currently operates in California and Texas,” according to a DHS statement. Ms. Nielsen has since left her position.

New Study Shows Companies Pay Billions in Job Training, Scholarships for U.S. Students Through H-1B Fees

New research shows H-1B fees paid by companies have funded approximately $5 billion since 1999 in training and scholarships for U.S. students and teachers to enter science fields and have funded nearly 90,000 college scholarships in tech fields for U.S. students, as well as about $2.5 billion in job training through the Department of Labor. The study by the National Foundation for American Policy also details how expensive it has become to petition for an H-1B professional.
Although critics have argued H-1B visa holders represent “cheap labor,” employers pay government-imposed fees and attorney costs of up to $16,560 for an initial H-1B petition and $28,620 for the combined cost of an initial H-1B petition and an extension.

USCIS Launches Data Hub on H-1B Employers

U.S. Citizenship and Immigration Services (USCIS) has launched an H-1B Employer Data Hub to provide information on employers petitioning for H-1B workers. The data hub will allow the public to search for H-1B petitioners by fiscal year (back to FY 2009), NAICS code, employer name, city, state, or zip code.
The new hub gives the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program.

Brazil to Allow Visa-Exempt Travel for Australian, Canadian, Japanese, and U.S. Citizens

Effective June 17, 2019, nationals of Australia, Canada, Japan, and the United States will be able to travel to Brazil without a visa for stays of up to 90 days as a visitor.
Such visitors to Brazil with valid passports may engage in certain business activities, transit through Brazil, vacation, and participate in artistic or sports activities, among other things. They can apply to extend their stay for an additional 90 days but may not stay in Brazil for longer than 180 days in any 12-month period.

USCIS Proposes to Revise Fee Waiver Requirements

U.S. Citizenship and Immigration Services recently allowed an additional 30 days for public comments on a proposed revision that would reduce the evidence required for a fee waiver to only a person’s household income and no longer require proof of whether an individual receives a means-tested benefit.The waiver requirements will retain the poverty-guideline threshold and financial hardship criteria.

USCIS Publishes Notices on Extension of Liberian DED ‘Wind-Down’ Period, EADs

Following announcements that Deferred Enforced Departure (DED) is extended for certain eligible Liberians through March 30, 2020, and that those Liberians’ employment authorization documents (EADs) are extended through September 27, 2019, with an option to obtain EADs for the remainder of the DED wind-down period, U.S. Citizenship and Immigration Services has published related notices in the Federal Register.
Details: Notice on continuation of employment authorization and automatic extension of existing EADs for eligible Liberians before DED ends, https://www.govinfo.gov/content/pkg/FR-2019-04-03/html/2019-06577.htm ; notice reproducing text of memorandum on the extension of DED for Liberians, https://www.govinfo.gov/content/pkg/FR-2019-04-03/html/2019-06576.htm.

USCIS Outlines Changes in InfoPass Appointment Process, Reducing In-Person Support

U.S. Citizenship and Immigration Services (USCIS) recently explained changes in the way it provides support services to applicants under an initiative called the “Information Services Modernization Program” (InfoMod). A goal is to limit in-person support to those who truly need assistance that can be provided only in person, such as issuing emergency documents, providing ADIT stamps, and conducting in-person interviews, the agency said.
InfoMod will enable USCIS to shift applicant support services from self-scheduled InfoPass appointments toward support services provided online or through USCIS Contact Centers. The agency encouraged users to visit myUSCIS, an online public portal.
To be clear, this is a nightmare for anyone dealing with the agency, making it harder and longer to get an answer from what is already an agency in disarray.

Foreign Nationals Serving in U.S. Military Challenge Trump Administration

Service members who enlisted through the Military Accessions Vital to the National Interest (MAVNI) program and who have not yet become naturalized U.S. citizens may be affected by litigation in the United States District Court for the District of Columbia and elsewhere. Several MAVNI soldiers brought two lawsuits (Kirwa and Nio) against the Department of Defense, the Department of Homeland Security, U.S. Citizenship and Immigration Services, and certain government officials challenging the lawfulness of Trump administration policies affecting their naturalization based on military service.
The MAVNI program, authorized in 2008, brought individuals considered assets to the U.S. military, including those with needed medical and language skills, into the U.S. Armed Forces in exchange for expedited U.S. citizenship. The Trump administration froze the program in 2016, and in 2018, the U.S. Army began discharging MAVNI soldiers. Lawsuits have followed. The Army also reportedly accidentally leaked sensitive information on 4,200 immigrant recruits between 2017 and 2018, many from China and Russia, risking interception by their autocratic governments.
Separately, the Pentagon has ordered the armed services to send green card-holding troops to recruit training, following a preliminary injunction in California
.

Corporate Immigration for U.S. Citizens to Colombia

Colombia has been facilitating migration processes in recent years to encourage individuals from different countries to do business and make investments in Colombia. With the increase of foreigners, Colombia’s Ministry of Foreign Affairs has created immigration statuses to allow them to stay and/or engage in various types of activities.

U.S. nationals may enter Colombia with an entry and stay permit (PIP), which is granted for 90 days and may be extended for another 90 days. This permit is obtained upon entering Colombia and is granted to those foreign individuals who wish to attend conferences or meetings, assist in trainings, participate in job interviews, or provide urgent technical assistance.

When the activities to be performed in Colombia take longer than 180 days or require specific conditions such as concluding a local contract, U.S. nationals may request a visa, which will authorize the person to enter and remain for up to 2 or 3 years in the national territory depending on the type of visa. When a visa is required for a stay of more than 180 days and the activities to be performed are business-related, the foreign national can opt for a business visitor visa. If the foreign national will be working in Colombia, a local contract likely will be required to obtain a migrant work visa. A foreign individual interested in obtaining an investment visa must make a foreign direct investment of 100 to 600 times the Colombian monthly legal minimum wage, which means approximately $26,000 to $174,000 USD.

New Publications and Items of Interest

IMAGE forum and training. U.S. Immigration and Customs Enforcement held the 2019 IMAGE Forum and Training, a day of free training on the IMAGE (ICE Mutual Agreement between Government and Employers) program, Form I-9, how to establish an immigration compliance program, proper hiring procedures, detecting fraudulent documents, the use of E-Verify, and antidiscrimination procedures. The training was held on May 1, 2019, in Orlando, Florida. For more information, see https://www.ice.gov/webform/image-forum-and-training-series#wcm-survey-target-id.

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.

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

Kuck Baxter Immigration — In The News

We have changed the location of our podcast–The Immigration Hour— to Soundcloud. We are entering our 11th year of continuous broadcasts. Listen here each week for our latest take on immigration and immigration law!
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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 [email protected].

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