Headlines:
1. U.S. Supreme Court Decides Two Immigration Cases -The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications, Kerry v. Din and Mata v. Lynch.
2. Visa, Passport Computer Problems Mostly Resolved -Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States.
3. USCIS Temporarily Stops Accepting Electronic Versions of Several Forms -To ensure that the paper and electronic versions of certain forms are consistent with each other, the agency has temporarily remove the current electronic versions until it develops updated forms in the new USCIS online filing system.
4. USCIS Proposes Changes to E-Verify -USCIS seeks public comments on proposed changes to E-Verify.
5. North Dakota Joins E-Verify RIDE Program -North Dakota joins Mississippi, Florida, Idaho, Iowa, and Nebraska in the Records and Information from DMVs for E-Verify (RIDE) Program.
6. DHS Announces Temporary Protected Status Designation for Nepal -The 180-day TPS registration period runs through December 21, 2015.
7. DHS Extends Temporary Protected Status Registration Deadline for Liberia, Guinea, Sierra Leone -DHS is extending the initial registration deadline for TPS to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone.
8. USCIS Warns DACA Renewal Applicants About Work Permit Expirations -USCIS noted that some people wait too long to request DACA renewal or do not correctly submit all the required forms and fees. As a result, their employment authorization documents may expire before USCIS can finish processing their requests. USCIS outlined steps to prevent this from happening.
9. ABIL Global: United Kingdom -Far-reaching immigration reforms have been announced following the general election.
10. New Publications and Items of Interest -New Publications and Items of Interest
11. ABIL Member/Firm News -ABIL Member/Firm News
12. Government Agency Links –Government Agency Links
Details:
1. U.S. Supreme Court Decides Two Immigration Cases
The U.S. Supreme Court has decided two immigration cases with potentially far-reaching implications:
Kerry v. Din. Kanishka Berashk is an Afghan who formerly worked in the Taliban-controlled government as a payroll clerk. Due to a terrorism-related statute, he was denied a visa to enter the United States to live with his U.S. citizen spouse, Fauzia Din. The Supreme Court held that because Mr. Berashk is not a U.S. citizen, he had no right to a court review, and his U.S. citizen wife had no due process right to challenge the visa denial in federal court. This left the longstanding doctrine of consular absolutism untouched. DECISION
Mata v. Lynch. Noel Reyes Mata, an undocumented person from Mexico, was convicted of assault and put in removal proceedings. His original attorneys failed to submit an appeals brief and missed a deadline in filing a motion to reopen. The Supreme Court held that the federal court has jurisdiction to hear his case and decide whether those in removal proceedings can extend their deadlines. DECISION
2. Visa, Passport Computer Problems Mostly Resolved
The Department of State’s Bureau of Consular Affairs initially reported on June 12, 2015, technical problems with overseas passport and visa systems. The issue was not specific to any particular country, citizenship document, or visa category. Those problems reportedly were generallly resolved by the end of June.
Among other things, the problems caused delays at the U.S.-Mexico border with seasonal workers being unable to enter the United States. Daren Gee, a California strawberry grower, said the delay was costing him $25,000 to $30,000 per day in lost revenue because 200 seasonal workers he intended to employ were unable to enter the country. “The vans are there, the buses are waiting. But we can’t seem to get workers across,” he said.
Some businesspeople were also unable to obtain passports. David Lummas, who was waiting for his passport in Bangkok, Thailand, so he could continue working for a British multinational company, said, “They are holding my passport so I have been grounded this week from traveling.”
The Department of State told the Wall Street Journal that 100 technicians were working on the problem, and that it was prioritizing visas for urgent humanitarian cases and agricultural workers.
A State Department announcement about its progress on these problems. The State Department announced that as of June 26, 2015, all visa-issuing embassies and consulates were back online. The State Department is scheduling visa interviews and issuing nonimmigrant and immigrant visas.
3. USCIS Temporarily Stops Accepting Electronic Versions of Several Forms
On June 15, 2015, U.S. Citizenship and Immigration Services (USCIS) stopped accepting electronically filed Forms I-539, Application to Extend/Change Nonimmigrant Status, and Forms I-526, Immigrant Petition by Alien Entrepreneur. Recently, USCIS also updated the Form I-539 and Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. USCIS also discontinued the EB-5 Regional Center Document Library.
USCIS said that to ensure that the paper and electronic versions of these forms are consistent with each other, “we must temporarily remove the current electronic versions until we develop these updated forms in our new USCIS online filing system.”
USCIS said this change will not adversely affect those who have pending or draft cases that were created before June 15. “We will adjudicate those cases to completion and allow the standard 30 days” for completion or submission of draft cases, USCIS said.
USCIS issued the following instructions:
Filing a Form I-539 or Form I-526
Customers who need to file a Form I-539 or Form I-526 must now file the paper version of the form. If you already started an electronic Form I-539 or Form I-526, you will have 30 days from the day you began your application/petition to complete and submit it online. If you are unable to complete your electronic form within this 30-day time period, you will need to file a new paper application or petition. …
If You Filed Electronically Before June 15, 2015
If you filed a Form I-539 or Form I-526 electronically, you will still be able to access your account to check your case status, change your address, and respond to requests for evidence while USCIS processes your case. If you filed a Form I-526 electronically, you will still be able to review and attest existing deal packages created by the Document Library Manager. However, Document Library Managers will not be able to create new document libraries or deal packages.
NOTICE. Instructions on how to file a paper Form I-539 are available at http://www.uscis.gov/i-539. Instructions on how to file a paper I-526.
4. USCIS Proposes Changes to E-Verify
On June 8, 2015, USCIS published a Federal Register notice seeking public comments on proposed changes to E-Verify, including:
- Three proposed enhancements:
- Final Nonconfirmation (FNC)—Allows employees to contest FNCs that they feel have been issued in error. This will be a new process allowing employees to request a review of their FNCs that will replace the current manual review process.
- Reverification—Requires employers to use E-Verify to reverify employees whose work authorization has expired. These include employees who were hired before the employer signed the E-Verify Memorandum of Understanding (MOU).
- Updated MOUs—Revises the E-Verify MOU to support proposed business processes.
- Streamlined Tentative Nonconfirmation (TNC) Processes
—Provides employees with greater access to E-Verify information. USCIS has simplified the TNC process to streamline the notice that an employer provides to the employee. USCIS has also drafted new email messages to communicate directly with the employee regarding Social Security Administration and Department of Homeland Security TNC notices.
The public will have 60 days to submit comments, until August 7, 2015. To comment, follow the instructions in the Federal Register notice. Contact E-Verifywith questions.
5. North Dakota Joins E-Verify RIDE Program
U.S. Citizenship and Immigration Services (USCIS) announced that North Dakota is the latest state to join the Records and Information from DMVs for E-Verify (RIDE) Program, beginning June 15, 2015. RIDE is an ongoing E-Verify initiative that links E-Verify with participating state driver licensing agencies in conjunction with the American Association of Motor Vehicle Administrators.
RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as Form I-9 identity documents. USCIS said that RIDE “helps to reduce document fraud and boosts the accuracy of E-Verify employment eligibility verification.”
North Dakota joins Mississippi, Florida, Idaho, Iowa, and Nebraska in this initiative.
A fact sheet on North Dakota’s driver’s license and ID card information with respect to E-Verify. Information on driver’s license verification.
6. DHS Announces Temporary Protected Status Designation for Nepal
On June 24, 2015, the Department of Homeland Security designated Nepal for temporary protected status (TPS) for 18 months based on conditions resulting from the magnitude 7.8 earthquake that struck Nepal on April 25, 2015, and subsequent aftershocks. As a result, eligible nationals of Nepal residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS).
The TPS designation for Nepal will be in effect through December 24, 2016. During the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive an employment authorization document (EAD). The 180-day TPS registration period began June 24, 2015, and runs through December 21, 2015.
To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since June 24, 2015. Applicants will also undergo security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.
Applicants may ask USCIS to waive any or all TPS-related fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee waiver requests must be accompanied by supporting documentation. USCIS will reject any TPS application that does not include the required filing fee or a properly documented fee waiver request.
RELATED FEDERAL REGISTER NOTICE
7. DHS Extends Temporary Protected Status Registration Deadline for Liberia, Guinea, Sierra Leone
The Department of Homeland Security (DHS) is extending the initial registration deadline for temporary protected status (TPS) to August 18, 2015, for eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries).
DHS began accepting TPS applications on November 21, 2014, from applicants of these three countries. The previous deadline was May 21, 2016. Those who submitted an application for one of these three countries whose applications were previously returned based on the May 20, 2015, deadline may now resubmit a complete application by August 18, 2015.
Additional details on eligibility and how to register
8. USCIS Warns DACA Renewal Applicants About Work Permit Expirations
U.S. Citizenship and Immigration Services (USCIS) issued a warning on June 15, 2015, to those wishing to renew work permits under the Deferred Action for Childhood Arrivals (DACA) program. USCIS noted that some people wait too long to request renewal or do not correctly submit all the required forms and fees. As a result, their employment authorization documents may expire before USCIS can finish processing their requests for DACA renewal.
USCIS said that renewal applicants can lessen the chance that this may happen by taking the following steps:
- File on time. Submit your renewal request between 150 days and 120 days before the expiration date listed on your current Form I-797 DACA approval notice and Employment Authorization Document.
- Correctly submit all required forms and fees. USCIS will reject your renewal request unless you properly submit:
- Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
- Form I-765, Application for Employment Authorization;
- Form I-765 Worksheet; and
- Required fees of $465
- Avoid processing delays. Be sure to submit:
- Any new documents and information related to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request;
- Proof of advance parole if you have traveled outside the United States since you filed your last DACA request that was approved; and
- Proof of any legal name change.
- Respond to Requests for Evidence. USCIS may deny your renewal request if you do not respond to a Request for Evidence in a timely manner.
USCIS noted that since March 27, 2015, the agency has been mailing renewal reminder notices to DACA recipients 180 days before the expiration date of their current period of deferred action. Previously, these reminder notices were mailed 100 days in advance. The earlier notices are intended to ensure that DACA recipients are reminded before the start of the recommended renewal period and have sufficient time to prepare their renewal requests.
USCIS said its current goal is to process DACA renewal requests within 120 days. A DACA recipient may submit an inquiry about the status of his or her renewal request after it has been pending more than 105 days.
9. ABIL Global: United Kingdom
Far-reaching reforms have been announced following the general election.
When the results of the recent general election were tallied, even the victors were surprised when the Conservative Party won sufficient seats in the House of Commons to shed its coalition partner and form a new majority government. Following this success, Prime Minister David Cameron moved swiftly to announce the Tories’ new policies and begin implementing a raft of far-reaching reforms.
With regard to immigration, the government intends to:
- introduce a criminal offense for illegal working (the government plans to seize wages as the proceeds of a crime);
- create a government enforcement agency to address the exploitation and coercion of migrant workers;
- make it illegal for employment agencies to recruit solely from abroad without first advertising in English in Britain;
- expand tenant immigration status checks to the national level, while simultaneously making the eviction of undocumented migrant tenants easier for landlords;
- ensure that banks take action against accounts of undocumented migrants;
- broaden the scope of “deport first, appeal later” to include nearly all immigration cases;
- implement mandatory electronic “tagging” of migrant offenders who are released on bail; and
- ask the Migration Advisory Committee (MAC) to consult on plans to further reduce migrant labor from outside the European Union, including:
- financing United Kingdom (UK) apprenticeships via levies on businesses hiring individuals under Tier 2;
- increasing minimum salary thresholds for migrant workers;
- restricting how long occupational sectors may claim that they have a skills shortage;
- limiting work visas to specialist experts and areas with skills shortages; and
- restricting Tier 2 dependents’ right to work.
In anticipation of the promised “in-out” referendum by 2017 on whether the UK should remain a member of the EU, Prime Minister Cameron also took the first steps toward renegotiating the terms of the UK’s relationship with the EU. Alongside other, broader changes he is proposing, and in an effort to curb migration from the European continent, Cameron hopes to restrict EU migrants’ access to social welfare benefits in the UK. While some of these terms may be possible, EU leaders have made it clear that free movement is not up for negotiation.
At present, however, an overwhelming majority of Britons do not believe that Mr. Cameron’s negotiations will be effective. Notwithstanding this pessimism, polls suggest that 44% of British citizens favor remaining in the EU (with 36% hoping to leave, and 17% still undecided). That said, as the pollsters and pundits were nearly universally incorrect in their general election forecasts, no result should at this point be seen as a foregone conclusion.
10. New Publications and Items of Interest
The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS
11. ABIL Member/Firm News
H. Ronald Klasko, one of the United States’ top EB-5 immigration lawyers and founding partner of Klasko Immigration Law Partners, recently served as the program co-organizer at the 2015 Invest in America Summit in China. As the largest annual EB-5 conference and trade show held in China, the Invest in America Summit brings together regional centers, developers, attorneys, economists, migration agents, large numbers of individual Chinese investors and Chinese government officials involved with the EB-5 migration program. The summit was held in Shanghai, Shenzhen, and Beijing.
Robert F. Loughran spoke on June 20, 2015, on a panel, Advising Small Businesses on Immigration Options, at the American Immigration Lawyers Association conference in Washington, DC.
Mr. Loughran moderated a day-long ILW seminar on June 17, 2015, for the EB-5 Summit for Attorneys and Developers in National Harbor, Maryland.
Mr. Loughran moderated Part 1 of a 3-part panel on Consular Processing for Experts on May 28, 2015. Foster Partner Jose R. Perez, Jr., and Angelo Paparelli provided expert commentary on analyzing consular issues and preparing clients for consular interviews.
Cyrus Mehta has published several new blog entries. “Keeping Tabs On A Non-Citizen’s Eligibility for Health Coverage Under the Affordable Care Act” “Extension of STEM Practical Training Under President Obama’s Executive Actions”
Julie Pearl was recently profiled in “Being Julie Pearl, Legal Tech Entrepreneur,” in Bloomberg BNA on June 19, 2015. Ms. Pearl has been CEO and managing partner of the Pearl Law Group for the past two decades, and founded two legal tech companies.
Bernard Wolfsdorf and Robert Blanco co-authored “EB-5 and Real Estate Development,” which discusses the role of EB-5 financing in major real estate development projects. The article was published in The Pinkwater Report, a leading publication on trends in super-prime property markets.
Stephen Yale-Loehr was quoted on June 20, 2015, in VOA News in “Supreme Court Hands Down 2 Decisions on Immigration.” In a case where a former Taliban-controlled payroll worker from Afghanistan married a U.S. citizen but was denied a visa to move to the United States, Mr. Yale-Loehr noted that this case has a broader impact: “If a U.S. citizen marries a Chinese citizen in China and tries to petition through the green-card process to have the foreign spouse come over to the United States, and if the U.S. [consulate] in Guangzhou were to deny the visa because the foreign spouse is a former member of the Communist Party, or they allege maybe the Chinese citizen committed some crimes in the past even though it is unproven, that would not be reviewable in the U.S. court.” He noted that this means the couple would be either separated or the U.S. citizen spouse would have to move to China to live with his or her spouse.
In another case, where an undocumented person was put in removal proceedings after he was convicted of assault, and his attorney missed a key filing deadline, Mr. Yale-Loehr noted, “The Supreme Court said, ‘Look, we are not going to decide whether the Mexican citizen case should be overturned, but at least the federal court has jurisdiction to hear the case.’ ” He said that immigrants “can at least get in the door to the courthouse in some cases, but it doesn’t necessarily mean that they will win once they get in the courthouse door.”
Mr. Yale-Loehr was quoted in several related articles with respect to recent Supreme Court decisions:
- U.S. News and World Report on June 15, 2015, in “Supreme Court Hands Defeat to Binational Marriage Rights.” He said the decision to deny a visa to an Afghan who married a U.S. citizen but had formerly been a payroll worker in the Taliban-controlled government “continues a long line of Supreme Court cases that hold when it comes to immigration that consular officials have carte blanche to deny a visa and it’s very hard to get those denials overturned in federal court.”
- Law360 on June 29, 2015, in “High Court Bolstered Immigrant Removal Rights This Term.” On Mata v. Lynch, He noted that the justices ruled that federal appeals courts can decide whether people facing removal should be able to extend deadlines in immigration proceedings. “That’s important because it establishes the primacy of federal court jurisdiction,” he said. On Kerry v. Din, he noted that the decision was extremely close at 5 to 4, which he said is the closest ruling the Supreme Court has ever issued in consular nonreviewability. “So, I have a faint hope that someday in the not-too-distant future, the court will ultimately recognize that there should be judicial review for at least certain kinds of visa denials,” he said.
- Law360 on June 15, 2015, in “Visa Review Stymied For Now, But More Challenges May Come.” With respect to the doctrine of consular absolutism, Mr. Yale-Loehr observed that the Supreme Court declined to disturb this “long-criticized doctrine.” He said “[i]t was a little closer this time, in that you only had a plurality, and then you had a concurrence on separate grounds.” But the bottom line was that the court reaffirmed consular nonreviewability. He said striking down that doctrine was unlikely given the current makeup of the Supreme Court, but that “hope springs eternal” and that “it’s possible that with a new president and new justices, the doctrine of consular absolutism may finally die.”
- Law360 on June 15, 2015, in “Immigrants Get More Court Access Under High Court Ruling.” Mr. Yale-Loehr said the decision about the Mexican deportation case “reaffirms that immigrants have some procedural protections” even if they have little constitutional protection.
- National Law Journal on June 15, 2015. Mr. Yale-Loehr noted that “[t]ogether, the decisions underscore the court’s dichotomy on immigration issues: Unlike citizens, immigrants have few substantive constitutional rights, but they can receive some procedural rights.” He noted that the decision “continues the much criticized doctrine of consular absolutism. It is ironic that while the Supreme Court actively reviews congressional or executive branch decisions in other areas such as health care, the court continues its hands-off approach in reviewing substantive immigration decisions. It is time to bring immigration law into the mainstream of constitutional law.”
Mr. Yale-Loehr was quoted by McClatchy Washington Bureau in “Mothers’ Proposal on Family Detention Divides Advocacy Groups,” published on June 26, 2015. He noted that although the proposal would not end family detention, it would cut dramatically the amount of time most mothers and children could spend in a facility, from over a year to less than 12 days. Many could be released within 24 hours. “If this stipulation were to be agreed to by the federal government, it would be a huge win for the plaintiffs.”
12. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post
