Year: 2017

As published in the Immigration Daily on November 6, 2017.

1. Visa lottery program – Lashing out and politicizing tragedy, Mr. Trump predictably attacked the visa lottery (diversity visa) program which brought in Uzbekistan-born Sayfullo Saipov, accused of killing 8 and maiming about a dozen in Manhattan by use of a rental truck. Yet the President has remained virtually silent on the issue of even banning “bump stocks”, the rapid-fire enabler of the military rifles of the Las Vegas shooter who killed 58 and wounded 489 on October 1^st , following his announcement on October 5th that he would consider a ban. And he laid blame for the visa program at the feet of Democratic Senator Chuck Schumer (NY) who, while sponsoring the bill that made the temporary program permanent in 1990, also called for its repeal as part of comprehensive immigration reform in 2013 – legislation that passed the Senate but was killed by the Republican House. Very few on either side of the aisle have a problem with eliminating the program, but quickly using the incident to promote his agenda was sickening and hypocritical. Mr. Trump has been advocating the RAISE (Reforming American Immigration for Strong Employment) Act, a bill by Republican Senators Tom Cotton (AR) and David Perdue (GA), which would eliminate the program along with cutting U. S. immigration by approximately half within the next 10 years. There is much opposition to this drastic reduction in immigration numbers, and Mr. Trump was eagerly opportunistic in seizing on the tragedy. The reasonable solution advocated by many has been the reassignment of the 50,000 visa lottery numbers to the family or employment-based categories, where they can be used to reduce backlogs and waiting time of persons waiting to immigrate to this country. One possible use could be in eliminating backlogs in otherwise oversubscribed country categories such as China’s EB-5 immigrant investor preference, India and China’s EB-2 (professionals with advanced graduate degrees or exceptional ability) and EB-3 (professionals, skilled workers, and other workers) categories, and Mexico’s family-based categories.

2. Attestation of translation – This office and those of other immigration lawyers have recently received (RFEs) Requests for Evidence from U.S.C.I.S. disallowing the consideration of submitted materials for lack of language on the translation attestations not strictly adhering to the regulatory language. The American Immigration Lawyers Association (AILA) received reports from its members of U.S.C.I.S. denials due to failure to submit a complying attestation of translation. The regulatory language requires that the translator certify that he or she is “competent” to translate and that the translation is “complete and accurate.” While the agency may have the right to require that attestations follow the regulatory language, it should in fairness have given warning that it would demand such strict adherence in future cases rather than imposing the requirement on already submitted petitions and applications – especially as it receives translations from every country in the world done by armies of translators and has never before been restrictive on the format of attestation as long as the language demonstrated that the translator had sufficient knowledge of English and the foreign language to make the translation and did it to the best of his or her ability. The language rejected in our case was from a translation service in China in which the translator identified himself as an English-language professor and PhD in translation theory and practice at a university; that he was also a translator with the translation service which is a professional translation company affiliated with the university; that he certified that he had made the translation from the attached documents in the Chinese language to the English language and that such was a true and correct translation to the best of his knowledge, ability and belief.

3. DNA testing standards – Do you know the percentage standard for passing a DNA test at U.S.C.I.S.? The agency referred to its standard in a State Department cable to consular officers encouraging Department of State officers to allow for submission of direct sibling to sibling and half sibling DNA test results as one way of establishing sibling relationships. (Unclassified 17 State 6984, 1/24/17, “Update to 9 FAM 601.11 Permitting Direct Sibling-to- Sibling and Half-Sibling DNA Testing as Evidence of Relationship”). The standard for passage is a probability of 99.5%. Anything less can be retested, but will not pass if it does not reach that probability. Relationships between parent and child, direct sibling to sibling relationships and with half siblings are deemed acceptable for testing, but not recommended for testing cousins, aunts/uncles, nieces/nephews, or other such extended relationships as those tests cannot reach the minimum 99.5% probability requirement. Also consular officers are not to use testing for exclusionary purposes, such as requesting DNA testing between marital partners on suspicion that they are blood relatives.

4. Employment-based case interviews – U.S.C.I.S. is reawakening its old policy of interviewing employment based (EB) cases, for which it began waiving interviews in 1992. Those practitioners old enough to remember Legacy INS EB interviews in those bygone days can recall many questions pertaining to the I-140 immigrant visa petition as well as those relevant to the I-485 adjustment of status application, sometimes even when the I-140 was approved. I-140s as well as I-485s were commonly adjudicated by the field offices. Since those days, however, the ascendancy of the service centers has resulted in service centers adjudicating I-140s instead of field offices. This is good news as the current practice will continue and most I-140 petitions will have been favorably adjudicated prior to shipment for field office interviews, thus making interviews less onerous for applicants. This was the direction of recent U.S.C.I.S. comments in the September 28, 2017, U.S.C.I.S. Ombudsman stakeholder call featuring Dan Renaud, Associate Director of Field Operations. The gist going forward was that EB green card interviews will be scheduled for all I-485’s filed on or after March 6, 2017. Interviews would start on October 2, 2017. I-140s will be adjudicated by service center operations, and if approved, the case is sent to the NBC (National Benefits Center) which is the hub of field operations and which will conduct pre-processing activities to ensure that the case is interview ready. Field offices will communicate interview availability to the NBC and the NBC will slot the cases for the interview. EB adjustment processing times should not be affected – impacted processing times will be for family-based and N-400 [naturalization] product lines. At interview, officers have been instructed and trained not to re-adjudicate the I-140. However, they can evaluate whether the evidence used to support the I-140 was accurate, bona fide, and credible. Applicants can be asked to explain where they will work, what they are going to do, and their educational background and experience so that the officers can assess the credibility of the evidence. Also that the employer still intends to employ the applicant and the applicant still intends to take up employment. Applicants can expect to be asked any question relating to the I-485 and family members should expect questions regarding their relationship to the principal and the bona fides of that relationship. If there is a new job that is “same or similar”, the field office can speak with SCOPS (Service Center Operations) and/or U.S.C.I.S. Central Office Headquarters to try and resolve the issue of whether the case can be ported to the new employment.

5. Interpreters at U.S.C.I.S. interviews – On May 1, 2017, U.S.C.I.S. implemented a formal policy that it had announced in January concerning the acceptability of interpreters at U.S.C.I.S. interviews. The issue is important as having an unacceptable interpreter on the date of interview can cause a case to be rescheduled, resulting in much more time, expense, and inconvenience to the applicant and whoever else is supposed to appear at the interview. With the 1/17/17 policy memorandum, “The Role and Use of Interpreters in Domestic Field Office Interviews”, in effect at this time, readers should be aware that in addition to the usual people who cannot translate (attorneys in the case or persons under the age of 14), those considered disfavored are individuals who are 14-17 years of age, witnesses, family members, or persons with financial connections to the person to be interviewed, e.g. business partners. Disfavored individuals can still qualify under a good cause exception, with the memorandum giving such examples as prejudicial delay (delay preventing the alien from qualifying for a benefit (aging out); harming someone with a documented, serious medical condition (pregnant with imminent birth); person living in rural, remote, sparsely populated areas where there are few individuals who speak the alien’s language; where there is a rare dialect or language; the alien has confidential medical conditions and may not want to share sensitive information with an unfamiliar interpreter; the alien has confidential/protected information such as a VAWA (Violence Against Women Act) applicant who may not want to disclose sensitive abuse information or personal information with an unfamiliar interpreter; and persons with certain physical or mental disabilities including developmental disabilities (aliens with these conditions may be more responsive to a familiar interpreter, such as their typical support person). Because of the hardship that having an interview rescheduled can bring to all parties, applicants should err on the side of caution in choosing whom they wish to bring as interpreter to a U.S.C.I.S. interview.

6. EB-5 China cases – Here is a conundrum for the President who is a real estate magnate in his other life and along with his son-in-law’s family, the Kushners, has made a pretty penny from EB-5 financing on his Trump organization projects. How can he help out the EB-5 Chinese nationals who have by and large propped up the program in the past decade and who will disappear as a class now and in the future because of the astounding immigrant visa backlog problem without appearing to be serving his own interests? Estimates range from 7-10 years on the length of time required for a China born investor filing a petition now to be cleared for a conditional two-year green card. This is not to mention the additional time that it will require for the applicant to wait for and then file an I-829 petition to remove the conditional basis of the residence status. Perhaps a reinterpretation of the EB-5 law to count only the principal applicants and not family members for visa numbers, or reassignment of the visa lottery numbers as suggested above would help. Or perhaps Mr. Trump is already ahead of everyone with his hard advocacy of the RAISE Act, which would eliminate the EB-5 program, but put in a 30 point employment-based system in which an investment of $1,350,000 and additional requirements would garner 6 points, and one of $1,800,000 with additional requirements 12 points. As part of the legislation, the cap on country visa limits would be eliminated so that China born applicants who qualify would no longer be blocked by an immigrant visa backlog. It should be remarked that the dollar figures are not as intimidating as they would appear since they are the same numbers being bandied around in U.S.C.I.S.’s proposed EB-5 rulemaking of January 13, 2017. So if you thought about it ahead of us, congratulations on your smart thinking and self-interest, Mr. Trump!

As published in the Immigration Daily September 29, 2017.

1. The new travel ban announced on Sunday, 9/24/17, by the Trump administration drops Sudan from the earlier list of 6 (Iran, Libya, Somalia, Syria, Sudan, Yemen) and adds Chad and North Korea. Venezuela is on the list only for certain governmental officials and family members on B-1/B-2 visas, so there are many questions as to why it was even part of the travel ban except to promote the perception of less bias against Muslim countries. The bar affects countries differently banning all immigrants and non-immigrants from North Korea and Syria; immigrants and B-1/B-2 visitors from Chad, Libya and Yemen; immigrants and all non-immigrants except F, M, and J visa holders from Iran; immigrants and enhanced screening of all non-immigrants from Somalia. The new ban goes into effect on October 18. It does not apply to LPR’s, asylees and refugees and Convention against Torture (CAT) grantees; people admitted to or paroled into the U. S. or with documents other than a visa like a transportation letter, boarding foil, or advance parole document on or after October 18; dual nationals traveling on the passport of the non-designated country; and persons with diplomatic visas. Waivers can be granted where denying entry would cause the foreign national undue hardship, entry would not pose a threat to the national security or public safety of the U. S., and entry would be in the national interest.

2. The latest bill to give DACA members relief (4 already proposed – The Dream Act, The Recognizing America’s Children Act, The Bridge Act and The Enlistment Act), SUCCEED (Solution for Undocumented Children through Careers, Employment, Education and Defending Our Nation Act), was brought out by conservative Republicans on September 25, 2017. Introduced by Republican Senators Thom Tillis (R-NC), James Lankford (R-OK) and Orrin Hatch (R-UT), SUCCEED does the following for and to the Dreamers:

• Allows a path to citizenship after 15 years – 10 as conditional residents split into two 5 year grants, and 5 more to become eligible for citizenship.
• Does not allow conditional residents to petition for family members.
• The standards to meet to apply are basically the same as under DACA but tougher in many respects – an applicant must be physically present since 6/15/12; younger than 16 years of age on initial entry (no longer says must be here continuously since 6/15/07); younger than 31 and having no lawful status on 6/15/12; cannot have felonies or significant misdemeanors including being sentenced to 90 days or more – but new features are that it splits applicants into 2 groups – if 18 or older, SUCCEED requires an applicant to have a high school diploma, GED certificate, high school equivalency diploma, or admission to an institution of higher education in the U. S., or has served, is serving, or has enlisted in the U. S. Armed Forces (DACA applicants can just be currently in school); and if under 18 is attending, or has enrolled in a primary or secondary school, or is attending or has enrolled in a post secondary school; been a person a good moral character since the date of initial entry (not part of DACA); and has paid or agreed to pay any applicable federal tax liability through a payment installment plan approved by the IRS (not part of DACA).
• Fraud or misrepresentation is not forgivable (such is not considered a problem under DACA).
• Forces each applicant for conditional permanent residence who is at least 18 years of age to sign an acknowledgment that he or she was notified and understands that he or she will be ineligible for any immigration relief or benefit other than those dealing with persecution – withholding of removal and a claim under the Convention against Torture (CAT) if he or she violates a term for conditional permanent resident status.
• A grant of advance parole or conditional residence does not allow an individual to adjust status under §245(a).
• In a non-DACA related provision, SUCCEED would make it almost impossible for persons coming here under a visa waiver program (WT) and nonimmigrant visa applicants to obtain benefits after violating their statuses as they would have to sign a waiver of rights of eligibility for ten-year cancellation of removal, adjustment of status, change of status, registry, any relief not in effect at the time that they sign the waiver of rights, and from contesting removal if the persons violate any term or condition of the status or visa. That means that the signer of the waiver would generally not even be allowed an appearance before the immigration court, but could be summarily deported by ICE.

3. Detainer problems for the Trump administration are cropping up as it attempts to have local law enforcement detain aliens through immigration holds. In Sanchez- Ochoa v. Campbell, 1-17: CV-03124-SMJ (ED Wash. 7/31/17), the federal district court in Eastern Washington issued a temporary restraining order against the government ruling that the Yakima County jail authorities had to immediately remove an immigration hold on an individual which prevented him from posting bail, thus violating his Fourth amendment right to be free from unreasonable seizures. The argument was that the hold which was placed on local inmates by federal ICE officers was enforced by a county jail without judicial review, a violation of civil rights under the Fourth amendment. The court found that the county had no authority to place an immigration hold against persons based on a civil immigration “warrant” – an administrative form issued by federal immigration officers. In the oral ruling after a lengthy hearing, Judge Salvador Mendoza Jr. emphasized that the Fourth amendment requires that an arrest warrant be approved by a neutral and detached judge – not by an employee of the executive branch. Other judges have said that holding people in criminal custody for a civil infraction violates the Fourth amendment protection against unreasonable seizures, and the administration’s demands violate the Tenth Amendment by forcing states to do the federal government’s bidding. More than a dozen people who were held on detainers brought lawsuits against local governments, and the majority of those who sued have been successful, resulting in settlement payments as high as $145,000.

4. The State Department’s recent doing away with the 30/60 day rule and in effect imposing a 90 day rule to judge whether people are misrepresenting their intent in coming to the U. S. will especially make it more difficult for those with visa waivers (WT) coming to the U. S. for 90 days maximum to adjust status through a marriage contracted after entry into the U. S since they only have 90 days to stay (no extension allowed) and U.S.C.I.S. in the past has given large problems to some who overstayed and later attempted to adjust status. But it should be remembered that the 30/60 day rule as well as the new 90 day rule are ones created by the State Department and not U.S.C.I.S., and that U.S.C.I.S. is the arbiter of the law in the field of immigration between the two agencies.

5. U.S.C.I.S. plans to make premium processing available for all classes of H-1B on October 3, 2017, according to information given to the American Immigration Lawyers Association (AILA) by the agency. As of September 18, 2017, U.S.C.I.S. resumed premium processing for all H-1B cap cases for FY 2018. It had already resumed premium processing for H-1B petitions for physicians under the Conrad 30 waiver program, interested government agency waivers, and cap-exempt H-1B’s.

6. American Immigration Lawyers Association (AILA)/Department of Labor (DOL) Wage and Hour Division (WHD) meeting 6/16/17:

• WHD said that the 30 and 60 day window for employers to put H-1B workers on the payroll (30 if the H-1B holder is entering from overseas and 60 if in the U. S. pursuant to a change of status) is only applicable where the H-1B worker has not made himself or herself available to begin employment.
• In an H-1B transfer where the alien is immediately available upon the filing, WHD looks to the specific facts of the case to determine whether or not the H-1B worker was available for employment at any point before the H-1B petition was approved. WHD said that it would give further consideration to AILA’s position that some employers are cautious and want to have the H-1B approved prior to the alien commencing employment, and it will determine whether this by itself is sufficient to demonstrate that the wage obligation does not commence on the basis of eligibility for H-1B portability alone.
• AILA asked WHD to confirm that a bona fide termination has occurred even when the employer did not provide the H-1B workers with the reasonable cost of return transportation in the circumstances where the H-1B worker voluntarily resigned; applied for adjustment of status; had an H-1B change of employer petition filed by another employer; or the employer offered the reasonable return transportation costs to the H-1B worker but the worker did not accept them. WHD declined to confirm only saying that this will be a fact specific inquiry.
• An LCA must cover “place of employment” which is not limited to the exact worksite stated on the LCA but includes all locations within normal commuting distance and the question to WHD was whether it had a fixed standard to determine normal commuting distance, to which WHD said that there is no fixed internal standard for determining normal commuting distance; that the specific facts of the case are important and WHD would look to whether the commuting distance is normal for the specific location of employment; and that helpful information would include documentation of whether other workers regularly make that kind of commute, whether the commute is reasonable for the industry and type of position, and whether there are roads, trains, or other infrastructure that would make the commute reasonable despite a longer distance.
• On AILA pointing out the Labor Department’s prohibition against H-1B workers paying for any expenses including attorneys fees and premium processing fee, while U.S.C.I.S. guidance says that the H-1B workers are permitted to pay the premium processing fee, WHD said that it believed the premium processing fee, like any other H-1B filing fees, is normally an employer business expense despite the guidance from U.S.C.I.S. WHD said that it would consider the issue where the employee would want premium processing for personal reasons unrelated to the employer, such as to accommodate personal travel or purely for the employee’s peace of mind.

7. DOL confirmed that as of July 11, 2017, the PERM upload feature audit response is now functional and AILA’s DOL liaison committee strongly recommends that attorneys use the upload feature rather than email, as it improves efficiencies at DOL and provides immediate confirmation of an audit submission.

8. 2016 Annual Report of the Office of Foreign Labor Certifications:

• Top 5 states with labor certifications approved were California 27,547, Texas 15,593, New Jersey 9166, New York 8453, and Washington 6473.
• Top 5 job titles with the most labor certifications granted were software developers, applications 41,147, computer systems analysts 10,642, software developers, systems software 7868, electronics engineers, except computer 3563, computer and information systems managers 2935.
• Top 5 countries for labor certification grants were India 65,095, China 9932, South Korea 8349, Canada 3999, and Mexico 2149.
• Top 5 employers with the highest number of PERM certifications were Cognizant Technology Solutions U. S. Corporation 4243, Microsoft Corporation 3326, Intel Corporation 1944, Google Inc. 1739, and Amazon Corporate LLC 1603.
• The H-1B program saw 1,198,782 LCA grants overall and the top 5 employers with approvals were Deloitte Consulting LLP 163,625, Cognizant Technology Solutions U. S. Corporation 97,472, Pricewaterhouse Coopers LLP 54,093, CapGemini America, Inc. 47,224, and WIPRO Limited 32,243.