Everyone has seen the horrible human suffering at our southern order. Many of our clients have asked us what they can do to help people caught up in the terrible situation. There are organizations providing help at the southern border and they are actively seeking non-lawyer and lawyer volunteers. Cornell Law School’s Migration and Human Rights Program has compiled a list of organizations providing help at the southern border, and which are seeking donations and non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is at http://www.lawschool.cornell.edu/MigrationandHumanRightsProgram/Organizations-seeking-non-lawyer-and-lawyer-volunteers.cfm.
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Here is the Immigration News You NEED to Know Now
IMMIGRATION NEWS IN BRIEF:
USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions – USCIS has changed the direct filing addresses for certain petitioners filing Form I-129, Petition for a Nonimmigrant Worker, as of September 1, 2019.
Ninth Circuit Dismisses Challenge to Denial of National Interest Waiver for Lack of Jurisdiction – Affirming the district court’s dismissal for lack of subject-matter jurisdiction of an Iranian engineer’s suit challenging the denial of his petition for a national interest waiver (NIW) related to his application for a work visa, a panel of the U.S. Court of Appeals for the Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review NIW denials.
USCIS Policy Guidance Changes Definition of “Residing in the United States” for Purposes of Acquiring Citizenship – Effective October 29, 2019, USCIS is changing its policy regarding eligibility for U.S. citizenship of children born to U.S. government employees and U.S. armed forces members employed or stationed outside the United States.
Guidance Updated on Adjudication of Cuban Adjustment Act Cases – USCIS accepts certain documents as evidence that an applicant is a Cuban native or U.S. citizen, and has updated its guidance to provide examples of acceptable documents.
New DOJ Interim Rule, Effective Immediately, Makes Significant Changes to EOIR – A new Department of Justice interim rule, effective August 26, 2019, and published on the same day, makes significant changes to several components of the Executive Office for Immigration Review (EOIR) and its lines of authority. The immigration judges’ union immediately protested.
18 Attorneys General Challenge Sweeping Expansion of Expedited Removal – Eighteen attorneys general have filed an amicus brief challenging a new DHS expansion of expedited removal of undocumented immigrants. The signers support a preliminary injunction to bar implementation while the court case is proceeding. The American Civil Liberties Union also has filed a federal lawsuit.
USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled Into the United States – The policy guidance includes a list of positive and negative factors an officer may consider when “balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion.”
Controversial New Rule Allows Indefinite Detention of Minors, Families – The Departments of Homeland Security and Health and Human Services announced a final rule, effective October 22, 2019, to terminate the Flores settlement agreement and “ensure the humane detention of families.” Many advocates and others expressed concern.
New Final Rule Expands Definition of ‘Public Charge,’ ‘Public Benefit’ for Inadmissibility Determinations – Among other things, the 217-page final rule defines certain terms and explains factors DHS will consider when making a public charge inadmissibility determination. Lawsuits have been filed.
September Visa Bulletin Shows Employment-Based Advances, Retrogressions – The bulletin notes that it is “likely that corrective action will also be required for other preferences prior to the end of the fiscal year.”
ICE Is Conducting Site Visits to STEM OPT Employers – New site visits are underway to question foreign students and company managers on optional practical training in the fields of science, technology, engineering, and mathematics.
USCIS Returns Unselected FY 2020 H-1B Cap-Subject Petitions – USCIS said it has returned all FY 2020 H-1B cap-subject petitions that were not selected in its computer-generated random process.
USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address – USCIS is subjecting all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers.
Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case– The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, USCIS; the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis’ H-1B petition on behalf of the data analyst.
ICE Conducts Secretive Workplace Raids in Mississippi – Six hundred agents took part in raids of chicken processing plants that netted nearly 700 detainees and left some children stranded after school or day care because their parents were taken into custody.
USCIS Plans to Close 13 International Field Offices and Three District Offices – The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.
State Dept. Releases DV-2020 Results – Approximately 83,884 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, DOS said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020.
USCIS Extends Comment Period for Tip Form – USCIS has extended the comment period until September 9, 2019, for a new USCIS Tip Form to facilitate the collection of information from the public regarding “credible and relevant claims of immigration benefit fraud impacting both open adjudications as well as previously approved benefit requests where the benefit remains valid.”
Global: Belgium – There have been several developments with respect to business immigration in Belgium this year, including the introduction of a single permit authorizing a foreign employee to work and reside in Belgium, and new legal frameworks for work authorizations/permits in Flanders, Brussels, and Wallonia.
Here are the Details:
USCIS Changes Direct Filing Addresses for Certain Nonimmigrant Worker Petitions
U.S. Citizenship and Immigration Services (USCIS) has changed the direct filing addresses for certain petitioners filing Form I-129, Petition for a Nonimmigrant Worker, as of September 1, 2019. USCIS said that starting October 1, 2019, “we may reject Forms I-129 that are filed at the wrong service center.”
The changes apply to the following cap-exempt H-1B petitions:
● Continuing previously approved employment from the same employer
● Changing previously approved employment
● New concurrent employment
● Changing an employer
● Changing status to H-1B
● Notifying a U.S. consulate, port of entry, or pre-flight inspection
● Amending a petition
The announcement excludes petitions:
● Filed by cap-exempt petitioners or for cap-exempt entities
● That are cap-exempt based on a Conrad/Interested Government Agency waiver
● Where the employer is located in Guam or the beneficiary will be performing services in Guam. This also excludes all H-1B1, H-1B2, and H-1B3 petitions
Details: USCIS announcement with links to direct filing addresses, https://www.uscis.gov/news/alerts/changes-direct-filing-addresses-certain-h-1b-form-i-129-petitions; direct filing addresses for the I-129, https://www.uscis.gov/i-129-addresses
Ninth Circuit Dismisses Challenge to Denial of National Interest Waiver for Lack of Jurisdiction
Affirming the district court’s dismissal for lack of subject-matter jurisdiction of an Iranian engineer’s suit challenging the denial of his petition for a national interest waiver (NIW) related to his application for a work visa, a panel of the U.S. Court of Appeals for the Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review NIW denials. Among other things, the panel also noted that his due process claim that he did not receive a copy of a request for evidence for the denial of his second petition failed on the merits because notice sent to his home address “was reasonably calculated to reach him.”
Details: Ninth Circuit’s opinion, https://law.justia.com/cases/federal/appellate-courts/ca9/17-16579/17-16579-2019-08-28.html (scroll down)
USCIS Policy Guidance Changes Definition of “Residing in the United States” for Purposes of Acquiring Citizenship
U.S. Citizenship and Immigration Service (USCIS) has issued policy guidance, effective October 29, 2019, and applicable prospectively to applications filed on or after that date, that defines “residence” and clarifies distinctions between U.S. residence and physical presence. USCIS is changing its policy regarding eligibility for U.S. citizenship of children born to U.S. government employees and U.S. armed forces members employed or stationed outside the United States.
Specifically, the guidance:
- Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States
- Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring U.S. citizenship under INA 320.
USCIS said it is rescinding the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered “residing in” the United States. The changes also will affect the ability of U.S.-born citizens to transmit citizenship to children if they do not meet the more restrictive test for residing in the United States.
Details: USCIS Policy Alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20190828-ResidenceForCitizenship.pdf; USCIS announcement, https://www.uscis.gov/news/fact-sheets/uscis-policy-manual-update; statement from Acting USCIS Director Ken Cuccinelli, https://www.uscis.gov/news/alerts/statement-regarding-a-policy-update-defining-residence-statutory-provisions-related-citizenship
Guidance Updated on Adjudication of Cuban Adjustment Act Cases
U.S. Citizenship and Immigration Services has updated policy guidance relating to adjustment of status under the Cuban Adjustment Act (CAA), enacted in 1966 as a special avenue for Cuban refugees to adjust to lawful permanent resident status in the United States. USCIS accepts certain documents as evidence that an applicant is a Cuban native or U.S. citizen, and has updated its guidance to provide examples of acceptable documents.
The guidance, dated August 13, 2019, states that an expired or unexpired Cuban passport can be evidence of being a Cuban native, and an unexpired Cuban passport can be evidence of Cuban citizenship.
USCIS is also clarifying that a Cuban Citizenship Letter (Carta de Ciudadanía) or a Nationality Certificate (Certificado de Nacionalidad) may be evidence of Cuban citizenship. Previously, acceptable evidence of Cuban citizenship generally included “a Cuban Civil Registry document issued in Havana.” However, a birth certificate issued by the Civil Registry or a Cuban consular certificate documenting an individual’s birth outside of Cuba to at least one Cuban parent is not sufficient to establish Cuban citizenship, the guidance states. This remains true even if the birth or consular certificate states the individual to whom the certificate was issued is a Cuban citizen.
Details: USCIS policy guidance, https://www.uscis.gov/sites/default/files/policymanual/updates/20190813-CAA.pdf
New DOJ Interim Rule, Effective Immediately, Makes Significant Changes to EOIR
A new Department of Justice interim rule, effective August 26, 2019, and published on the same day, makes significant changes to several components of the Executive Office for Immigration Review (EOIR) and its lines of authority.
Among other things, the interim rule:
- Outlines the functions and roles of the new Office of Policy and transfers the Office of Legal Access Programs (OLAP) to a division in the Office of Policy.
- Delegates authority from the Attorney General to the EOIR Director when appeals pending before the Board of Immigration Appeals (BIA) have not been “timely resolved in order to allow more practical flexibility in efficiently deciding appeals.” Specifically, the rule states that with limited exceptions, appeals assigned to a single Board member must be adjudicated within 90 days of completion of the record, and appeals assigned to a three-member panel must be completed within 180 days after assignment. Appeals not completed within these time limits that are not subject to an exception will be assigned by the BIA Chairman either to him- or herself or to a Vice Chairman for a final decision within 14 days, “or the Chairman shall refer them to the Attorney General.”
- Distinguishes functions performed by the Office of Policy and the Office of the General Counsel (OGC). Specifically, the rule transfers some of OGC’s current programs to the Office of Policy. The rule explains that the General Counsel, subject to the supervision of the Director, remains the chief legal counsel and supervisor of legal activities related to specific categories of issues, but expressly provides that the General Counsel “does not have authority to influence the adjudication of specific cases under the [Immigration and Nationality Act (INA)], including as an advisor on disciplinary matters related to the adjudication of cases under the cases under the INA. It also explains that the General Counsel may continue to advise on matters of immigration law, provided that the advice does not direct or influence specific adjudications under the Act.”
- Changes the titles of members of the BIA. Specifically, the rule provides that members of the Board will also be known as “Appellate Immigration Judges.”
The rule states that it is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because it is an “internal delegation of administrative authority.” The DOJ said it is providing an opportunity for “post-promulgation comment” before the final rule is issued. Written comments must be received by October 25, 2019.
Reaction. Ashley Tabaddor, president of the National Association of Immigration Judges (NAIJ), called the new interim rule “an unprecedented attempt at agency overreach” and said that it “ends any transparency and assurance of independent decision making over individual cases.” Characterizing the new rule as a “wolf in sheep’s clothing,” Ms. Tabaddor said that although the rule is “couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators.” She said NAIJ would “provide a more detailed analysis in the days ahead,” noting that NAIJ received notice of the action on the same day the press was advised.
Details: Interim rule, https://www.federalregister.gov/documents/2019/08/26/2019-18196/organization-of-the-executive-office-for-immigration-review; Tabaddor statement, https://www.naij-usa.org/images/uploads/newsroom/NAIJ_Speaks_on_Major_Change_Announced_to_the_Immigration_Court_System.pdf; news article, https://www.npr.org/2019/08/23/753912351/doj-increases-power-of-agency-running-immigration-court-system
18 Attorneys General Challenge Sweeping Expansion of Expedited Removal
Eighteen attorneys general have filed an amicus brief challenging a new Department of Homeland Security expansion of expedited removal of undocumented immigrants. The new rule, released in July, allows for any undocumented immigrant who cannot show that he or she has been in the United States at least two years to be removed from the United States without access to an immigration court. Under the prior system, only immigrants in the United States for less than two weeks who were caught within 100 miles of the border were subject to expedited removal. The signers of the amicus brief support a preliminary injunction to bar implementation while the court case is proceeding.
The American Civil Liberties Union also has filed a federal lawsuit.
The attorneys general are from California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, and Washington, in addition to Washington, DC. New York’s attorney general, Letitia James, released a statement noting that the new policy “significantly increases the risk that people will be erroneously deported” and that for those in proceedings, “virtually eliminates access to the protections afforded during formal immigration hearings.” The statement notes that because of the policy, mixed-status households may be separated with little or no time to prepare and that immigrants may be “even less likely to report crime or exploitation or seek needed medical care, negatively affecting both public safety and health.” The statement also notes that the policy “could have a substantial economic impact on New York and other states.”
Details: Amicus brief, https://ag.ny.gov/sites/default/files/amicus_brief_expedited_removal.pdf; press release from Attorney General of New York, https://ag.ny.gov/press-release/attorney-general-james-challenges-trump-administrations-inhumane-and-unnecessary-rule; news article, https://www.nbcnews.com/news/us-news/18-attorneys-general-support-challenge-trump-rule-expanding-rapid-deportations-n1045356; “Designating Aliens for Expedited Removal” notice, https://www.federalregister.gov/documents/2019/07/23/2019-15710/designating-aliens-for-expedited-removal
USCIS Issues Guidance on Discretionary Employment Authorization for Foreign Nationals Paroled Into the United States
U.S. Citizenship and Immigration Service (USCIS) recently issued policy guidance on its discretion to grant employment authorization to foreign nationals paroled into the United States, including those who are otherwise inadmissible.
The agency noted that employment authorization for such parolees is not automatic and that the agency “will only consider employment authorization for parolees when, based on the facts and circumstances of each individual case, USCIS finds that a favorable exercise of discretion is warranted.” The policy guidance includes a list of positive and negative factors an officer may consider when “balancing the totality of the circumstances and determining whether an applicant warrants a favorable exercise of discretion.”
USCIS said the policy update does not affect individuals paroled into the United States under the International Entrepreneur Rule. Such parolees are authorized to work based on their parole under current Department of Homeland Security regulations governing the International Entrepreneur parole program.
Details: USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-issues-guidance-discretionary-employment-authorization-parolees; USCIS policy alert, https://www.uscis.gov/sites/default/files/policymanual/updates/20190819-EmploymentAuthorizationForParolees.pdf; USCIS policy manual, Chapter 2—Parolees, https://www.uscis.gov/policy-manual/volume-10-part-b-chapter-2
Controversial New Rule Allows Indefinite Detention of Minors, Families
The Departments of Homeland Security (DHS) and Health and Human Services announced a final rule, effective October 22, 2019, to terminate the Floressettlement agreement and “ensure the humane detention of families.”
Many advocates and others have expressed concern. Among other things, in addition to concerns about potentially lengthy detentions of noncriminal immigrants, including children, commenters said DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers. Legal advocates have filed a notice to challenge the rule in court.
Details: Joint agency rule, https://www.federalregister.gov/documents/2019/08/23/2019-17927/apprehension-processing-care-and-custody-of-alien-minors-and-unaccompanied-alien-children; DHS statement, https://www.dhs.gov/news/2019/08/21/dhs-and-hhs-announce-new-rule-implement-flores-settlement-agreement; DHS press conference, https://www.dhs.gov/news/2019/08/21/acting-secretary-mcaleenan-dhs-hhs-federal-rule-flores-agreement; Flores settlement agreement, https://www.aclu.org/sites/default/files/assets/flores_settlement_final_plus_extension_of_settlement011797.pdf; Human Rights Watch comments on related proposed rule, https://www.hrw.org/news/2018/11/06/human-rights-watch-submits-comments-proposed-rule-regarding-detention-children-and; notice to challenge rule, https://youthlaw.org/wp-content/uploads/1997/05/Regs-Motion.pdf
New Final Rule Expands Definition of ‘Public Charge,’ ‘Public Benefit’ for Inadmissibility Determinations
A new U.S. Citizenship and Immigration Services (USCIS) final rule prescribes how the Department of Homeland Security (DHS) will determine ineligibility for admission or adjustment of status based on whether an individual is likely to become a “public charge,” which relates to the use of various forms of public assistance.
The 217-page final rule defines certain terms critical to the public charge determination, such as “public charge” and “public benefit,” and explains the factors DHS will consider in the totality of the circumstances when making a public charge inadmissibility determination. The final rule also addresses USCIS’s authority to issue public charge bonds in the context of applications for adjustment of status. Finally, the rule includes a requirement that those seeking an extension of stay or change of status demonstrate that they have not, since obtaining the nonimmigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in the rule.
Among other things, the final rule notes that DHS is revising its interpretation of “public charge” to “incorporate consideration” of an individual’s “reliance on or receipt of non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps, Medicaid; and housing vouchers and other housing subsidies.” DHS said the intent is “to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.”
The rule does not apply to those whom Congress exempted from the public charge ground of inadmissibility, such as asylees, refugees, or other vulnerable populations listed as exempt in the final rule, or to those for whom DHS has exercised its discretion to waive the ground of inadmissibility.
The state of California and advocacy groups have filed several lawsuits challenging the final rule.
Details: USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-announces-final-rule-enforcing-long-standing-public-charge-inadmissibility-law; Federal Register final rule at 84 Fed. Reg. 41292 (Aug. 14, 2019), https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-17142.pdf; news reports, https://www.nbcnews.com/news/us-news/california-advocacy-groups-file-lawsuit-against-trump-public-charge-rule-n1043351,https://www.latimes.com/california/story/2019-08-16/california-immigration-lawsuit-trump-public-charge,https://www.politico.com/story/2019/08/12/trumop-immigration-public-benefits-1413690, https://www.bbc.com/news/av/world-us-canada-49325358/top-trump-immigration-official-defends-legal-migrant-rule-change
September Visa Bulletin Shows Employment-Based Advances, Retrogressions
The Department of State’s Visa Bulletin for September 2019 shows both advances and retrogressions in employment-based categories.
The bulletin notes a combination of a dramatic change in the U.S. Citizenship and Immigration Services (USCIS) demand pattern for adjustment-of-status applicants during July and a larger-than-anticipated return of unused numbers that had been provided to consular offices for July use. As a result, the bulletin notes, it has been possible to advance the employment first and second preference September final action dates for most countries, as well as the India employment fifth preference.
On the other hand, several employment-based preference categories have retrogressed or become “Unavailable” for the remainder of fiscal year (FY) 2019, including the Worldwide employment fourth preference, and the China and India employment first and third preferences.
The bulletin notes that it is “likely that corrective action will also be required for other preferences prior to the end of the fiscal year.” Numbers will once again be available for applicants in these preference categories beginning October 1, 2019, under the FY 2020 annual numerical limitations.
The bulletin also notes that the employment-based preference numerical limit for FY 2019 is 141,918.
Details: Visa Bulletin for September 2019, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-september-2019.html
ICE Is Conducting Site Visits to STEM OPT Employers
According to reports, new site visits are underway by U.S. Immigration and Customs Enforcement (ICE) to question foreign students and company managers on optional practical training (OPT) in the fields of science, technology, engineering, and mathematics (STEM). The site visits are pursuant to a rule on STEM OPT published in May 2016.
The Department of Homeland Security (DHS) noted that the new provision allows DHS to perform site visits to employer locations that train STEM OPT students. DHS said its intent during such site visits is “to confirm that information reported on the student’s Form I-983 concerning the training opportunity is accurate, while not placing an unnecessary burden on employers.” DHS will provide notice to an employer at least 48 hours before any site visit “unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. In these cases, DHS reserves the right to conduct a site visit without notice.”
Among other things, DHS said that as part of a site visit, it may confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program, and ask the employer to provide the evidence used to assess wages of similarly situated U.S. workers.
Details: DHS information on STEM OPT employer site visits, https://studyinthestates.dhs.gov/employer-site-visits; May 2016 STEM OPT regulation, https://www.federalregister.gov/documents/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and; news report, https://www.forbes.com/sites/stuartanderson/2019/08/12/ice-starts-immigration-site-visits-for-students-on-stem-opt/#689c27ba5512
USCIS Returns Unselected FY 2020 H-1B Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) said it has returned all fiscal year (FY) 2020 H-1B cap-subject petitions that were not selected in its computer-generated random process. On May 17, 2019, USCIS announced that it had completed data entry of all selected H-1B cap-subject petitions for FY 2020.
Details: Latest USCIS notice, https://www.uscis.gov/news/alerts/uscis-returns-unselected-fiscal-year-2020-h-1b-cap-subject-petitions; May announcement, https://www.uscis.gov/news/alerts/uscis-completes-data-entry-fiscal-year-2020-h-1b-cap-subject-petitions
USCIS Is Rejecting Nonimmigrant Worker Petitions That Lack Required Name and Address
U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that as of August 5, 2019, it is rejecting Form I-129 nonimmigrant worker petitions that do not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of the form.
USCIS is subjecting all requests for nonimmigrant classifications filed on Form I-129 to this rejection criteria, including the time-sensitive H-2A visa classification for temporary agricultural workers. USCIS said it recognizes that in certain circumstances, the person signing Part 8 of Form I-129 may be an employee of the petitioning entity and have the same address as that of the petitioner named in Part 1 of the form. In such a case, USCIS would not reject the I-129 because of the duplicate addresses.
Details: USCIS notice, https://www.uscis.gov/news/alerts/reminder-uscis-rejecting-form-i-129-petitions-lack-required-name-and-address
Court Grants Summary Judgment for Plaintiffs in LexisNexis H-1B Denial Case
The U.S. District Court for the District of Columbia recently granted summary judgment for plaintiffs and denied defendants’ motion to dismiss in an H-1B case, RELX, Inc. v. Baran. The plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a data analyst for Lexis Nexis in F-1 student status, alleged that the California Service Center, U.S. Citizenship and Immigration Services (USCIS); the Department of Homeland Security; and others violated the Administrative Procedure Act when they denied LexisNexis’ H-1B petition on behalf of the data analyst.
The government responded to the H-1B petition with a request for evidence (RFE) related to whether the data analyst position was a specialty occupation, finally denying the petition after LexisNexis sent documentation. Plaintiffs filed suit, but shortly before they filed their opening motion, the government reopened the petition without notifying defendants or providing a reason. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had reopened the case.
Among other things, the court noted that an agency’s failure to set forth its reasons for a decision constitutes arbitrary and capricious action, and the court must undo the agency action. The court also noted that the government issued an RFE requesting nearly identical information as it did when it last reviewed the petition. Also, upon imminent expiration of the data analyst’s F-1 visa, she would have lost her job and been required to leave the United States for an extended period of time, thus causing “significant hardship,” the court observed. Because the agency failed to request any new information when it attempted to reopen the petition, the court found the circumstances of the reopening “highly suspect and contrary to the regulations.” Finding that the LexisNexis position was “a distinct occupation which required a specialized course of study,” as supported by a “mountain of evidence” that “more than meets the preponderance of the evidence standard,” the court concluded that the agency’s decision to deny the H-1B petition was not based on a consideration of the relevant factors, was a clear error of judgment, and that USCIS “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the data analyst.
Details: Case text, https://casetext.com/case/relx-inc-v-baran
ICE Conducts Secretive Workplace Raids in Mississippi
U.S. Immigration and Customs Enforcement (ICE) recently conducted mass raids on workplaces in Mississippi. According to reports, the operation was conducted without much advance notice, even to the White House. Six hundred agents took part in raids of chicken processing plants that netted nearly 700 detainees and left some children stranded after school or day care because their parents were taken into custody. About half of those detained were released the next day, as they were determined not to be a public threat, and some were taken back to their workplaces with a summons to appear later in immigration court. The action drew criticism because of the timing—just days after a mass shooting in El Paso, Texas, targeting Hispanic immigrants.
Details: News articles, https://www.washingtonpost.com/national/us-defends-secretive-miss-ice-raids-as-local-state-officials-decry-effect-on-children/2019/08/08/485d6240-ba21-11e9-b3b4-2bb69e8c4e39_story.html;https://www.npr.org/2019/08/09/749932968/chicken-plants-see-little-fallout-from-immigration-raids
USCIS Plans to Close 13 International Field Offices and Three District Offices
U.S. Citizenship and Immigration Services (USCIS) has announced plans to close 13 international field offices and three district offices between now and August 2020. The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September 2019.
USCIS said that many functions currently performed at international offices “will be handled domestically or by USCIS domestic staff on temporary assignments abroad.” As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices. USCIS said it is working closely with DOS “to minimize interruptions in immigration services to affected applicants and petitioners.”
USCIS said it plans to maintain operations at its international field offices in Beijing and Guangzhou, China; Nairobi, Kenya; New Delhi, India; Guatemala City, Guatemala; Mexico City, Mexico; and San Salvador, El Salvador.
Details: USCIS notice, https://www.uscis.gov/news/news-releases/uscis-will-adjust-international-footprint-seven-locations
State Dept. Releases DV-2020 Results
The Department of State’s (DOS) Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the winners of the DV-2020 diversity lottery. Approximately 83,884 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the persons registered will not pursue their cases to visa issuance, DOS said this larger figure should ensure that all DV-2020 numbers will be used during fiscal year 2020 (October 1, 2019, to September 30, 2020).
Applicants registered for the DV-2020 program were selected at random from 14,722,798 qualified entries (23,182,554 with derivatives) received during the 34-day application period that ran in late 2018. The visas were apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.
During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly, DOS said. Applicants should follow the instructions in their notification letters.
Details: Visa Bulletin for August 2019, including the country-by-country breakdown, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-august-2019.html
USCIS Extends Comment Period for Tip Form
U.S. Citizenship and Immigration Services (USCIS) has extended the comment period until September 9, 2019, for a new USCIS Tip Form to facilitate the collection of information from the public regarding “credible and relevant claims of immigration benefit fraud impacting both open adjudications as well as previously approved benefit requests where the benefit remains valid.” The estimated total number of respondents is 55,000.
Details: Federal Register notice, https://www.govinfo.gov/content/pkg/FR-2019-08-08/html/2019-17022.htm
Global: Belgium
There have been several developments with respect to business immigration in Belgium this year, including the introduction of a single permit authorizing a foreign employee to work and reside in Belgium, and new legal frameworks for work authorizations/permits in Flanders, Brussels, and Wallonia.
Introduction of Single Permit
Before 2019, the process for employees was always a “dual permit” system: an employment authorization/work permit authorized a foreign employee to work, and a Belgian residence permit authorized legal residence in Belgium.
As of 2019, the single permit has been implemented, in principle, for any (with a few exceptions) employment for more than 90 days. This means that the applicant will receive one Belgian permit authorizing him or her to work and reside in Belgium. For employment up to 90 days and some situations of employment for more than 90 days (e.g., frontier workers, au pairs), the “dual permit” system remains in place.
The single permit application must be filed by the employer and the employee with the regional Ministry (Flanders, Brussels, or Wallonia) with jurisdiction (in general this will be determined by the place of work in Belgium). The process includes the following phases:
● The first phase is the admissibility check. The regional Ministry will check whether the file is complete, and will, in principle, confirm this within 10 days. If the file is not complete, the applicant(s) will be informed and will have 15 days to complete the file. If the file is timely completed, it is considered admissible. If the file is not timely completed, the application will not be processed further.
● The second phase is the processing of the single permit application. The maximum processing time is 4 months/120 days (in exceptional circumstances, the processing time can theoretically even be extended) after notification by the regional Ministry that the application is complete. The regional Ministry will first make a decision on the work aspect: in the event of an approval, a work authorization will be issued. Afterwards, the federal immigration office will make a decision regarding residence. At present, the average processing time is approximately 3 months.
● If the application is approved by the federal immigration office (this can be an explicit or implicit approval), the employer and the employee will be informed, and instructions to issue a residence authorization will be sent to the relevant authorities, either the Belgian embassy in the employee’s home country, for an employee residing abroad (the employee will receive a visa D), or the Belgian municipality where the employee legally resides, for an employee who is already legally residing in Belgium. The employee residing abroad can travel to Belgium with the visa D; he or she must register with the local municipality and will receive a temporary document before the single permit will be issued. The employee can start working as soon as the temporary document is issued.
New Legal Framework for Flanders for Work Authorizations/Permits
In general (for all single and dual permit applications), Flanders adopted a Decree, dated December 7, 2018, with new corporate immigration rules as of January 1, 2019. A portion of these new rules relates to the implementation of European Union (EU) directives (e.g., ICT (Intra-Corporate Transfers), researchers, trainees, volunteers). These new rules have not yet taken effect, however. This is expected to happen in the next few months.
There are several important changes:
● Eligibility as a “highly skilled” or executive employee
“Highly skilled” implies having a higher education degree, issued by an education establishment accredited as a higher education establishment by its country of location. Degrees issued by private schools will not be taken into account. The studies must have taken at least 3 years, or have resulted in education qualification level 5 as defined by ISCED (International Standard Classification of Education).
Executives are defined as employees who (i) are entrusted with daily management of the company and authorized to represent and bind the company, and (ii) lead the company and supervise the activities of “lower” employees.
● Salary threshold for highly skilled and executive employees
The gross salary threshold for highly skilled employees and executives will be determined on the basis of the average gross salary, published by federal authorities. The average annual gross salary is 12 times the average monthly gross salary. For 2019, the average annual gross salary is 41,868 € (12 x 3,489 €). For highly skilled employees, the salary threshold is 100% of the average annual gross salary (exception: locally employed highly skilled < 30 years and nurses: 80% of the average annual gross salary, or 33,494.40 € for 2019). For executives, the salary threshold is 160% of the average annual gross salary; for 2019 this is 66,989 €.
Salary includes all payments to the employee in consideration for work. The payments/amounts must be certain in advance/at the start of the employment in Belgium, which means that they must be mentioned in the assignment letter. The fact that the payment must be certain excludes discretionary bonuses.
Allowances, directly linked and specific to the assignment, are considered part of the salary, unless they are paid in reimbursement of expenditures actually incurred on account of the assignment, such as expenditures on travel, lodging, and board. Travel, lodging, and board allowances are thus not considered as salary.
● Duration of work authorizations for highly skilled and executive employees
The maximum duration of work authorization for the highly skilled and executives is 3 years instead of 1 year. The maximum duration depends on the duration of validity of the employment contract or assignment letter.
New Legal Framework for Brussels for Work Authorizations/Permits
A Decree of the Brussels Region government dated May 16, 2019, introduced new rules regarding work authorizations/permits as of June 1, 2019. A portion of the new rules relates to the implementation of EU directives (e.g., researchers, trainees, volunteers). These new rules have not yet taken effect; this is expected to happen in the next few months.
Some key points:
● ICT (Intra-Corporate Transfer) permits
ICT permits can be applied for as of June 1, 2019, for managers (maximum 3 years), specialists (maximum 3 years), and trainee-employees (maximum 1 year), who have been employed for at least 6 months uninterrupted, immediately preceding the transfer. There is a degree requirement (3 years of higher education for managers and specialists; university, at least a bachelor’s degree, for trainee-employees), as well as a salary threshold (for 2019: 53,970 € for managers, 43,176 € for specialists, and 26,985 € for trainee-employees). The rules regarding short-term and long-term mobility for ICT permit holders also took effect as of June 1, 2019.
● Duration of work authorizations for the highly skilled and executives
For applications filed as of June 1, 2019, highly skilled and executive work authorizations can be valid up to 3 years (instead of 1 year). The maximum duration depends on the duration of validity of the employment contract or assignment letter. Instead of filing an annual renewal application, the only obligation for the employer is to submit copies of salary documents and, for assignees, of the foreign social security confirmation document and of the Belgian Limosa (this is an online notification for assignees with the Belgian national social security office).
New Legal Framework for Wallonia for Work Authorizations/Permits
A Decree of the Walloon Region government dated May 16, 2019, is the new legal framework for work authorizations/permits issued by the Walloon Region. The new rules apply as of June 1, 2019, without affecting the validity of already issued authorizations/permits. An important section of the Decree relates to the implementation of EU directives (e.g., ICT, researchers, trainees, volunteers). These new rules have not yet taken effect; this is expected to happen in the next few months.
A few key points:
● Salary threshold for the highly skilled and executives
As of 2020, the annual gross salary threshold for highly skilled and executive-level permits will be defined on the basis of the average annual gross salary. For the highly skilled, the threshold is 100% of the average annual gross salary (41,868 €); for executives, 160% (66,989 €). In addition, the annual gross salary cannot be less favorable than the applicable salary for similar jobs (currently and pursuant to the law, collective bargaining agreements, or practices);
Effective immediately, the definition of salary is clarified. Salary includes all payments to the employee in consideration for work. The amounts must be known with certainty to the employer, employee, and Belgian authorities before the start of the employment in Belgium. The fact that the amount must be certain excludes discretionary bonuses; contributions paid for professional supplementary pension schemes are not taken into account either. In the event of assignment, allowances, directly linked and specific to the assignment, are considered part of the salary provided they are not paid in reimbursement of expenditures actually incurred on account of the assignment, such as expenditures on travel, lodging, and board. Travel, lodging, and board allowances are thus not considered salary.
● Duration of work authorizations for the highly skilled and executives
Highly skilled and executive work authorizations can be valid for the duration of the employment contract or assignment letter, up to a maximum of 3 years (instead of 1 year). Instead of filing an annual renewal application, the employer must submit copies of salary documents on/by the anniversary date of issuance of the work authorization.
Organizations providing help at the southern border and seeking non-lawyer and lawyer volunteers. Cornell Law School’s Migration and Human Rights Program has compiled a list of organizations providing help at the southern border, and seeking donations and non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is at http://www.lawschool.cornell.edu/MigrationandHumanRightsProgram/Organizations-seeking-non-lawyer-and-lawyer-volunteers.cfm.
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
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
Visa application wait times for any post:https://travel.state.gov/content/visas/en/general/wait-times.html/
Kuck Baxter Immigration — In The News
Kuck Baxter Immigration LLC published its US legal guide for Corporate Immigration. It can be found at https://iclg.com/practice-areas/corporate-immigration-laws-and-regulations/usa
Charles Kuck released the latest edition of his podcast, the Immigration Hour. The September 10th edition examines new polling that show that 80% of all Americans support a legalization program, and that same poll shows that 78% of GOP voters think Immigration is a more critical an issue than foreign interference in our elections! The podcast is at https://www.stitcher.com/podcast/kuck-baxter-immigration-llc-2/the-immigration-hour
Kuck Baxter Immigration LLC has opened a new office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 5,000 detained immigrants. The new office is managed by our Senior Counsel Elizabeth Matherne, the former Director for the Southern Poverty Law Center’s Irwin Detention Project.
We have changed the location of our podcast–The Immigration Hour— to Stitcher. We are entering our 11th year of continuous broadcasts. Listen here each week for our latest take on immigration and immigration law!
You can follow us on Twitter @KuckBaxter or @CKuck
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].
