Headlines:
1. Reading the Tea Leaves: Requests From DHS Office By Trump Transition Team, Policy Statement, Cabinet Nominees Offer Hints -President-elect Donald Trump’s transition team has requested various documents and information from the Department of Homeland Security (DHS) that, along with a statement of policies on his website, may provide hints of what Mr. Trump might prioritize once he becomes President.
2. USCIS Releases New Policy Guidance on Physicians of National or International Renown -USCIS released a new policy memorandum that designates as precedent Matter of T-O-S-U-, a 2015 decision of the Administrative Appeals Office (AAO). The decision explains that physicians of national or international renown who are graduates of medical schools in foreign states are exempt from the USMLE requirement in the H-1B context.
3. DHS Proposes Changes to EB-5 Program, Regional Center Program -DHS Proposes Changes to EB-5 Program, Regional Center Program
4. Georgia Board of Regents Appeals Decision Allowing In-State Tuition for DACA Recipients -The Board of Regents for Georgia’s state colleges and universities has filed an appeal of a Fulton County superior court judge’s decision allowing DACA recipients to pay in-state tuition.
5. USCIS Extends, Redesignates TPS for Yemen -USCIS has extended the designation of the Republic of Yemen for TPS for 18 months, through September 3, 2018, and has redesignated Yemen for TPS for 18 months, through the same date. The initial registration period for new applicants under the redesignation runs through July 3, 2017. For individuals who have already been granted TPS under Yemen’s designation, the 60-day re-registration period runs through March 6, 2017.
6. New Publications and Items of Interest -New Publications and Items of Interest
7. ABIL Member/Firm News -ABIL Member/Firm News
8. Government Agency Links -Government Agency Links
Details:
1. Reading the Tea Leaves: Requests From DHS Office By Trump Transition Team, Policy Statement, Cabinet Nominees Offer Hints
President-elect Donald Trump’s transition team has requested various documents and information from the Department of Homeland Security (DHS) that, along with a statement of policies on his website and statements made by his Cabinet nominees, may provide hints of which immigration issues Mr. Trump may prioritize once he becomes President.
Document requests by transition team. The Trump team met with DHS officials on December 5, 2016, and requested agency records on border barriers, assets available for border wall and barrier construction, and the agency’s capabilities to expand detention. The Trump team also asked for information on an aerial surveillance program President Obama downsized that authorizes the Army National Guard to monitor the southern border. The team also reportedly asked whether biographical information on immigrants has been altered out of concern for civil liberties, and asked for copies of all executive orders and directives sent to immigration agents since Obama became president in 2009.
In response to the Trump team’s queries about building a border wall, DHS estimated that a northern border fence would cost $3.3 billion to cover 452 miles, and a southern border fence would cost $11.37 billion to add 413 miles of fencing.
Policy statements. Mr. Trump’s statement of policies related to immigration as published on his website includes building “an impenetrable physical wall on the southern border” beginning on “day one,” which he said repeatedly during his presidential campaign that “Mexico will pay for.” More recently, the transition team reportedly told Congressional Republicans that he’d prefer to pay for the wall via appropriations of U.S. taxpayer dollars and asserted that Mexico would reimburse the United States later. Mexican President Enrique Peña Nieto had said that during his meeting with Mr. Trump in August 2016, he “made it clear that Mexico will not pay for the wall.”
Among other things, the Trump statement also includes prioritizing jobs, wages, and security of Americans; establishing “new immigration controls to boost wages and to ensure that open jobs are offered to American workers first”; selecting immigrants based on “their likelihood of success in the U.S. and their ability to be financially self-sufficient”; vetting applicants to ensure that they support “America’s values, institutions and people,” and temporarily suspending immigration from “regions that export terrorism and where safe vetting cannot presently be ensured”; detaining anyone who crosses the border without authorization until they are removed; ending sanctuary cities; immediately terminating “President Obama’s two illegal executive amnesties”; tripling the number of U.S. Immigration and Customs Enforcement agents; fully implementing a biometric entry-exit visa tracking system at all land, air, and sea ports; “[turning] off the jobs and benefits magnet; and reforming legal immigration.
Cabinet nominee statements. Mr. Trump’s Cabinet nominees’ statements and actions have sometimes but not always matched immigration-related statements Mr. Trump has made. John Kelly, a retired Marine Corps general and Mr. Trump’s nominee to head the Department of Homeland Security, said that securing the U.S. border with Mexico would be his top priority but that building a wall would not be enough. “A physical barrier in and of itself will not do the job. It has to be really a layered defense.” He suggested measures such as increased patrols and surveillance along the border, drones, improving alerts of DHS officials when visas expire, and partnerships with other countries to prevent drug trafficking and unauthorized travel to the United States. Gen. Kelly said that deporting Deferred Action for Childhood Arrivals (DACA) recipients would “probably not be at the top of the list” of his priorities. Regarding Mr. Trump’s proposal to register Muslims, he said, “I don’t agree with registering people based on ethnic[ity] or religion or anything like that.”
Like Mr. Trump, Sen. Jeff Sessions (R-Ala.), tapped to serve as Attorney General, has been a proponent of border security measures including physical barriers like fences. At the Republican National Convention, Sen. Sessions said, “Donald Trump will build the wall.” On the other hand, Sen. Sessions testified in his confirmation hearing that he did not support Mr. Trump’s proposed Muslim immigration ban: “I do not support the idea that Muslims as a religious group should be denied entry to the United States.” However, he seemed to allow some wiggle room in specific situations: “Many people do have religious views that are inimical to the public safety of the United States.” He also said, however, that he would not favor a registry of Muslims in the United States.
MR. TRUMP’S STATEMENT OF POLICIES RELATED TO IMMIGRATION
2. USCIS Releases New Policy Guidance on Physicians of National or International Renown
U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum on January 4, 2017, that designates as precedent Matter of T-O-S-U-, a 2015 decision of the Administrative Appeals Office (AAO). The decision explains that physicians of national or international renown who are graduates of medical schools in foreign states are exempt from the U.S. Medical Licensing Examination (USMLE) requirement in the H-1B context.
In the new policy memo, USCIS noted that Matter of T-O-S-U- clarifies that a “physician of national or international renown” is a doctor of medicine or osteopathy “who is widely acclaimed and highly honored in the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States.” USCIS noted that the decision also suggests, but does not mandate, what types of evidence may be persuasive in establishing eligibility for this exemption.
The AAO originally decided Matter of T-O-S-U- on February 20, 2015, as a nonprecedent case. The petitioner had filed a petition to classify the beneficiary, an “Assistant Professor—Clinical Physician,” as an H-1B temporary nonimmigrant worker. The California Service Center (CSC) denied the petition, concluding that the evidence did not demonstrate that the beneficiary was exempt from the USMLE requirement as a “physician of national or international renown in the field of medicine.” The AAO withdrew the CSC’s decision and approved the petition, noting that regulations specifically provide a licensing examination exception for physicians of national or international renown in the field of medicine.
The AAO said that to satisfy this exemption, the petitioner must demonstrate that the beneficiary: (1) is a physician; (2) is a graduate of a medical school in a foreign country; and (3) is of national or international renown in the field of medicine.
To establish “renown” for purposes of adjudicating exemption claims, the AAO said that “national or international renown” could be restated as “widely acclaimed and highly honored within one or more countries.” But the AAO noted that this cannot be interpreted to permit standards that may allow physicians from certain countries where renown in the field of medicine is more readily achieved—considering factors such as population size and available medical resources—to more easily qualify than those from countries where renown in the field of medicine is more difficult to achieve. Considering that physicians meeting the requirements for this exemption can provide patient care in the United States without passing the USMLE or establishing competency in English, the AAO said the standard for national renown “should be set at a level that requires achievements necessary to garner national renown in the United States and thus, applied consistently, would obviate potentially adverse effects on U.S. patients.” The AAO said it “reserve[d] without answering the question of whether international renown must also be at a level comparable to that which would result in national renown in the United States.”
The AAO provided the following “non-exhaustive list” of evidence that, depending on the qualitative nature of the evidence, may establish eligibility for the exemption:
- Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards in the field of medicine;
- Evidence of the beneficiary’s authorship of scientific or scholarly articles in the field of medicine published in professional journals, major trade publications, or other major media;
- Published material about the beneficiary’s work in the medical field that appears in professional journals, major trade publications, or other major media (which includes the title, date, and author of such material);
- Evidence that the beneficiary has been employed in a critical, leading, or essential capacity for organizations or establishments that have distinguished reputations in the field of medicine;
- Evidence of the beneficiary serving as a speaker or panelist at medical conferences;
- Evidence of the beneficiary’s participation as a judge of the work of others in the medical field;
- Documentation of the beneficiary’s membership in medical associations, which require significant achievements of their members, as judged by recognized experts in the field of medicine;
- Evidence that the beneficiary has received recognition for his/her achievements or contributions from recognized authorities in the field of medicine; and
- Any other evidence demonstrating the beneficiary’s achievements, contributions, and/or acclaim in the medical field.
USCIS POLICY MEMO, which includes the original decision in Matter of T-O-S-U. The USCIS made the decision a precedent on January 4, 2017.
3. DHS Proposes Changes to EB-5 Program, Regional Center Program
The Department of Homeland Security (DHS) has published a notice of proposed rulemaking on the EB-5 program in the Federal Register on January 13, 2017, and an advance notice of proposed rulemaking on the regional center program on January 11, 2017. Following are highlights of the notices:
Proposed Rule on EB-5 Program
Priority date retention. DHS proposes to authorize certain EB-5 petitioners to retain the priority date of an approved EB-5 immigrant petition for use in connection with any subsequent EB-5 immigrant petition. Petitioners with approved immigrant petitions might need to file new petitions due to circumstances beyond their control (for example, DHS might have terminated a regional center associated with the original petition) or might choose to do so for other reasons (for example, a petitioner may seek to materially change aspects of his or her qualifying investment). DHS proposes to generally allow EB-5 petitioners to retain the priority dates of previously approved petitions to avoid further delays on immigrant visa processing associated with the loss of priority dates. DHS said it believes that priority date retention “may become increasingly important due to the strong possibility that the EB-5 visa category will remain oversubscribed for the foreseeable future.”
Increases in the investment amounts. DHS is proposing to increase the minimum investment amounts for all new EB-5 petitioners. DHS said the increase “would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990.” Specifically, DHS proposes initially to increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million to adjust for inflation. For those investors seeking to invest in a new commercial enterprise that principally will be doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million. In addition, DHS proposes to make regular adjustments based on the Consumer Price Index for urban consumers (CPI-U) in the standard minimum investment amount, and conform adjustments to the TEA minimum investment amount, every 5 years, beginning 5 years from the effective date of the rule.
TEA designations. DHS proposes to “reform the TEA designation process to ensure consistency in TEA adjudications and ensure that designations more closely adhere to Congressional intent.” First, DHS proposes to allow any city or town with high unemployment and a population of 20,000 or more to qualify as a TEA. Currently, TEA designations are not available at the city or town level, unless a state designates the city or town as a TEA and provides evidence of such designation to a prospective EB-5 investor for submission with the Form I-526, Immigrant Petition by Alien Entrepreneur. Second, DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas. Instead, DHS would make such designations directly, using standards described in the proposed rule. DHS said it believes these changes would “help address inconsistencies between and within states in designating high unemployment areas, and better ensure that the reduced investment threshold is reserved for areas experiencing significantly high levels of unemployment.”
Removal of conditions. DHS proposes to clarify that derivative family members must file their own petitions to remove conditions on their permanent residence when they are not included in a petition to remove conditions filed by the principal investor. In addition, DHS proposes “to improve the adjudication process for removing conditions by providing flexibility in interview locations and to update the regulation to conform to the current process for issuing permanent resident cards.”
Written comments should be submitted by April 11, 2017. PROPOSED RULE
Advance Notice of Proposed Rule on EB-5 Regional Center Program
DHS said it is considering regulatory changes to the EB-5 immigrant investor regional center program and invites comments, data, and information. DHS seeks comments on: (1) the process for initially designating entities as regional centers; (2) a potential requirement for regional centers to use an “exemplar” filing process, explained in detail in the advance notice; (3) “continued participation” requirements for maintaining regional center designation; and (4) the process for terminating regional center designation.
DHS said that it has some information on these topics but seeks additional information that can help the agency “make operational and security updates to the Regional Center Program while minimizing the impact of such changes on regional center operations and EB-5 investors.” DHS said it is particularly interested in data that would inform a quantitative and qualitative assessment of the costs and benefits of the potential changes described in the advance notice. DHS is also interested in receiving more information on how to identify the small entity status of EB-5 stakeholder entities, such as regional centers and new commercial enterprises. DHS specifically requests information on revenue or employment data sources on regional centers and new commercial enterprises.
Written comments should be submitted by April 11, 2017. NOTICE
4. Georgia Board of Regents Appeals Decision Allowing In-State Tuition for DACA Recipients
The Board of Regents for Georgia’s state colleges and universities has filed an appeal of a December 30, 2016, Fulton County superior court judge’s decision allowing Deferred Action for Childhood Arrivals (DACA) recipients to pay in-state tuition. The Board of Regents had required DACA recipients to pay out-of-state tuition, which is higher, because they didn’t meet a requirement of “lawful presence” for in-state tuition. The judge found, however, that their lawful presence was “federally established.”
It is unclear what will happen to DACA after the change in administration. Meanwhile, State Sen. Josh McKoon (R-Columbus) reportedly plans to introduce legislation shortly to limit in-state tuition to those with legal status in the United States, not just lawful presence. And DACA students are already banned under “Policy 4.1.6” from admission at the University of Georgia, Georgia Institute of Technology, and Georgia College & State University.
Charles H. Kuck represented the 10 DACA plaintiffs. For more on this case, including links to related articles, see ABIL Member/Firm News, below.
5. USCIS Extends, Redesignates TPS for Yemen
U.S. Citizenship and Immigration Services (USCIS) has extended the designation of the Republic of Yemen for temporary protected status (TPS) for 18 months, through September 3, 2018, and has redesignated Yemen for TPS for 18 months, through the same date. The 180-day initial registration period for new applicants under the Yemen TPS redesignation began on January 4, 2017, and runs through July 3, 2017. For individuals who have already been granted TPS under Yemen’s designation, the 60-day re-registration period began on January 4, 2017, and runs through March 6, 2017.
The extension allows TPS beneficiaries to retain TPS through September 3, 2018, so long as they continue to meet the eligibility requirements for TPS. The redesignation of Yemen expands eligibility for TPS to include individuals who have been continuously residing in the United States since January 4, 2017. Previously, only individuals who had been continuously residing in the United States since September 3, 2015, were eligible for TPS under Yemen’s designation. The redesignation will extend TPS protection to eligible individuals who have arrived in the United States after the eligibility cutoff dates established by Yemen’s previous designation for TPS in September 2015.
The redesignation is based on determinations that (1) there continues to be an ongoing armed conflict in Yemen and, due to such conflict, requiring the return of Yemeni nationals to Yemen would pose a serious threat to their personal safety, and (2) there are extraordinary and temporary conditions in Yemen that prevent Yemeni nationals from returning to Yemen in safety, and it is not contrary to the national interest of the United States to permit Yemeni nationals to remain temporarily in the United States.
USCIS published a notice on January 4, 2017, announcing the extension and redesignation and detailing procedures for those applying for renewal of TPS or for initial registration. NOTICE
6. New Publications and Items of Interest
The Alliance of Business Immigration Lawyers (ABIL) has issued a press release on U.S. Citizenship and Immigration Services’ precedent decision, Matter of Dhanasar. Among other things, the press release says ABIL is “delighted” by the decision and believes the new framework for national interest waiver cases spelled out by the Administrative Appeals Office “opens the door to permanent residence for an expanded range of foreign nationals, including junior scientists, postdoctoral scholars, and biomedical researchers; entrepreneurs involved in job creation; academic physicians; certain advanced-level graduate students, particularly those engaged in the STEM disciplines; certain artists operating at a national level; and a wide range of other professionals who contribute (or even prospectively contribute) to the national welfare.”
The Department of Commerce’s Economics and Statistics Administration (ESA) has published an economic impact report on the EB-5 program entitled Estimating the Investment and Job Creation Impact of the EB-5 Program. The ESA examined individual projects that were active during fiscal years 2012 and 2013, and compiled a new dataset that includes the number of EB-5 projects, the number of investors, the amount of EB-5 and non-EB-5 related investment spending, and the resulting expected job creation. By using EB-5 investment and job creation estimates over the two-year period, ESA tabulated that there were 10,644 investors, a total dollar value of investment of $16.4 billion, and 169,759 expected jobs from 134 projects in EB-5 regional centers. ESA also tabulated 428 stand-alone investor projects during those two years that were expected to create or save 4,820 jobs. Active EB-5 projects, both those associated with regional centers and stand-alone projects, resulted in an estimated 174,039 expected jobs—nearly 16 jobs per immigrant investor.
The latest E-Verify webinar schedule from USCIS is available HERE.
The latest edition of the Global Business Immigration Practice Guide has 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 30 immigration hotspots around the world.
The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, 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 for:
7. ABIL Member/Firm News
Klasko Immigration Law Partners, LLP, has published a new client update on the USCIS precedent decision, Matter of Dhanasar. “The New National Interest Waiver: A More Flexible Test for Highly Skilled Immigrants”
Charles Kuck was quoted in “DACA Immigrants Can Pay Ga. In-State Tuition, Judge Says,” published by Law360 on January 5, 2017. Mr. Kuck represented plaintiffs in the case before the Fulton County, Georgia, Superior Court. The issue was previously litigated in another, unsuccessful suit, Kuck said. He filed the precursor in 2013 but said it was struck down when the Georgia state constitution was reinterpreted, rendering his suit as moot. He launched this second action in early 2016, this time seeking mandamus relief. Georgia’s Board of Regents has filed an appeal. Mr. Kuck was also quoted in an article about the appeal. INFORMATION ABOUT THE CASE.
Mr. Kuck was quoted in “Immigrant Investor Proposal Could Ease Congressional Tensions,” published in Bloomberg Law’s Daily Labor Report on January 12, 2017. The article discusses proposed Department of Homeland Security (DHS) EB-5 program regulations that define a targeted employment area (TEA) as the census tract where a commercial enterprise principally does business and all adjacent census tracts, as long as the weighted average unemployment rate for the entire area is at least 150% above the national average. Mr. Kuck said the new TEA definition “is not necessarily a bad thing.” Allowing cities and towns to be considered TEAs is a “terrific change” because it allows those local communities to attract investors rather than leaving it up to the states, he said. However, he said he wasn’t so sure about shifting TEA designations to the DHS.
Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has published a new blog entry. “Matter of Dhanasar: The New National Interest Waiver Standard”
Angelo Paparelli, Greg Siskind of Siskind Susser, PC, and Stephen Yale-Loehr were recently quoted in two articles published by Bloomberg BNA’s Daily Labor Report. Among other things, Mr. Paparelli suggested that President-elect Donald Trump’s promise to reduce regulations could mean a return to “ambiguous USCIS policy memoranda leading to “an accentuated repeat of what we’ve had over the past few years.” He noted that “the magnitude is probably far more daunting than what it has been.” He added that Mr. Trump’s pick of Sen. Jeff Sessions (R-Ala.) for attorney general is concerning because Sen. Sessions “has been the most vehement, adamant foe of legal immigration, not just illegal immigration, in the Congress.” Mr. Yale-Loehr noted that even after employers are cleared for visas, their foreign employees will likely face additional screening. Mr. Siskind noted concern about a recently finalized regulation on high-skilled immigration that is intended to make it easier for businesses to hire immigrant workers. Mr. Siskind said that rule has made the “hit list” of groups that advocate for lower immigration levels. BNA’s LABOR AND EMPLOYMENT OUTLOOK
Christian Triantaphyllis, a Foster LLP attorney, moderated a panel, “Regional Center/Issuer Obstacles: What Lies Ahead in 2017,” at the 2017 Las Vegas EB-5 & Investment Immigration Convention, sponsored by eb-5 investors, held January 13-14, 2017. MORE INFORMATION ABOUT THE CONFERENCE
Bernard Wolfsdorf and Charles C. Foster, Foster LLP founder, spoke on the advanced panel, “China Issues: Navigating the Evolving Chinese Landscape,” at the 2017 Las Vegas EB-5 & Investment Immigration Convention, sponsored by eb-5 investors, held January 13-14, 2017. MORE INFORMATION ABOUT THE CONFERENCE
Mr. Yale-Loehr was quoted by various news outlets in “Trump Says Mexico Should Reimburse U.S. for Border Wall,” published in Yahoo News on January 7, 2017. Mr. Yale-Loehr said that to obtain money for building the wall once Donald Trump becomes President, he could reallocate current fiscal year funding at the Department of Homeland Security. If he wanted to raise visa and border crossing costs, Mr. Yale-Loehr said, the relevant U.S. agencies would need to publish regulations to this effect. Also, “he would need Congress to pass a funding bill to pay for the wall,” Mr. Yale-Loehr noted.
Mr. Yale-Loehr was quoted in “Trump Faces Hurdles Turning Immigration Pledges Into Reality,” published by CNN.com on January 4, 2017. He agreed that Trump would be able to have meaningful impact during the first year of his presidency, but not to the extent suggested during the campaign. “On the campaign trail things are not nuanced. They’re black and white. It takes a while to turn the battleship of bureaucracy around.”
Mr. Yale-Loehr was quoted in “Senators Reintroduce Legislation to Save ‘Dreamers,'” published by Bloomberg BNA on January 13, 2017. Commenting on companion legislation in the House of Representative to the Senate bill introduced in December, the “Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act,” Mr. Yale-Loehr said the bills would provide a legislative basis to give the Deferred Action for Childhood Arrivals (DACA) program permanent footing. He noted that there is growing activity by DACA recipients but that the BRIDGE Act’s prospects seem “dim given the Republican-controlled Congress.” DACA, which was established by executive order, covers more than 750,000 individuals.
Mr. Yale-Loehr was quoted in “Trump, Tech Tycoons Talk Overhaul of H-1B Visas,” published by Reuters on January 12, 2017. He noted that although President-elect Donald Trump could initiate some changes to the visa program with executive actions once he becomes President, any significant shifts would likely need to go through a lengthy formal rulemaking process, and major changes could be subject to court challenges. Other reforms, like changing the H-1B visa cap or offering more green cards to high-tech workers, could require Congressional action, he noted.
8. 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
