Category: News

As published in Immigration Daily on May 15,2018

One of the purposes of writing on immigration issues has been trying to get others to see in order to improve immigration law for the sake of justice and humanity. Unfortunately that does not seem to be happening now or in the near future as the levers of power rest with a President, his immigration cohorts (Attorney General Jeff Sessions and senior White House advisor Stephen Miller), and a compliant Republican Party who blatantly disregard the sweeping benefits of immigrants while scourging them by anecdotal examples as deficits and threats to the nation. Anything that does not comport with Mr. Trump’s anti-immigration views is swept under as “fake news” even as he fails to read materials on presidential briefings and instead spends his time watching “Fox and Friends” and other right-wing TV shows to gain ammunition for his rants. He has not told the truth over 3000 times since taking office, twisting reality to his needs.

Can anyone expect a voice of reason in the government to intervene in the field of immigration? No, especially when Mr. Trump’s hand-picked DHS Secretary Kirstjen Nielsen (who controls CBP, U.S.C.I.S., and ICE and has heavily worked to implement the Trump agenda) is lambasted to the point of almost resigning for failing to stop illegal border crossings.

So this article is written as more of a warning to readers of recent and future changes in immigration and how they may affect you. 

1. F, M, J students to be subject to the 3 and 10 year bars for overstay if the violation occurs on August 9, 2018, or after. 

U.S.C.I.S. policy in the past had always been considerate of foreign students, and so those who violated their statuses did not acquire unlawful presence for purposes of the bars unless DHS made a formal denial of an application or a formal finding of violation of status while adjudicating a request for another immigration benefit, or upon receiving a negative decision by an immigration judge. Under a policy memorandum of May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Non-Immigrants”, with a comment period to June 11, 2018, those individuals violating status on or after August 9, 2018, will begin accruing unlawful status on the earliest of the following dates: 

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• the day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
•  the day after the I-94 expires; or
• the day after an immigration judge, or in certain cases, the Board of Immigration Appeals, orders them excluded, deported, or removed (whether or not the decision is appealed). 
  
  

The above move shows the increasingly hostile attitude of the Trump administration towards higher education and perhaps reflects the fact that Mr. Trump does not expect much of his support to come from the educated class. Still the lack of compassion towards those who spend many thousands of dollars to help support the country’s colleges and universities continues to amaze, especially as an unintended violation will likely put the student or scholar on the horns of a dilemma in attempting a reinstatement application as U.S.C.I.S. normally takes more than 6 months to decide such with the result being that choosing to stay instead of leaving before 180 days would subject the student to a 3 year bar in reentering the country if the reinstatement request is denied. (An unlawful presence violation of 180 days subjects an individual to a 3 year bar and one of 1 year to a 10 year bar).

2. Applications for change of status to F-1 student bring into question whether U.S.C.I.S. has revised policy without formall y notifying anyone. 

In the seemingly distant past (before April 2017), individuals applying for change of status to F-1 student only had to file the application with an I-20 student acceptance form in which the schooling would begin within 30 days of the applicant’s status expiration date. Then they could just wait until U.S.C.I.S. reached the case for adjudication no matter how long that event took to occur. In April 2017, U.S.C.I.S. made a distinction among visa categories so that those on B-1 or B-2 statuses attempting to change to F-1 had to maintain their statuses until the date that U.S.C.I.S. made the adjudication, leading many individuals to file at least one application to extend status even after filing for the change of status. Now U.S.C.I.S.’s current website information does not distinguish between B-1 and B-2 and other visas statuses, only stating that, “If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”)… Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because U.S.C.I.S. did not make a decision on your form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before your new program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.” There are already reports of denials of applications for persons in statuses other than B-1 or B-2 and the American Immigration Lawyers Association has put out a call for members to send in examples. The author notes that the U.S.C.I.S. processing times last week for this category were only up to applications submitted in May 2017, one year ago, but on the site being accessed again on 5/12/18, the California and National Benefits service centers were supposedly processing these applications between 2.5 –4.5 months while Vermont was between 9 – 12 months. The inanity of forcing visa applicants for change of status to file additional applications to maintain status only because of the inability of U.S.C.I.S. to timely reach cases for adjudication cannot be overstated.

3. Many green cards, reentry permits, and employment authorization cards will soon not be received. 

As of April 30, 2018, U.S.C.I.S. has implemented a new policy that the above secure documents among others will only be delivered where there is an authorized signature. The agency is phasing in the use of the U. S. Postal Services Signature Confirmation Restricted Delivery service where applicants must either present identification to sign for their documents or designate an agent to sign on their behalf by completing the Postal Service’s PS form 3801, Standing Delivery Order (PDF) or PS form 3801-A, Agreement by a Hotel, Apartment House, or the like (PDF). Applicants can sign up for USPS Informed Delivery to receive delivery status notifications, and also have the option to arrange for pickup at a post office at a convenient time and date by going to the USPS website and selecting “hold for pickup.” U.S.C.I.S. says that the first phase will affect documents that need to be re-mailed because they have been returned as non-deliverable. The problem is that whereas U.S.C.I.S. wishes for more security here, many immigrants are not familiar with computers, new processes, or dealing with postal authorities. This forced secure document delivery method will cause many people inconvenience and the loss of their secure documents with no assurance that it will produce any better result. The author notes that U.S.C.I.S. in early April notified the public that beginning on April 2, it would destroy the above-mentioned secure documents returned as undeliverable by USPS after 60 business days if it was not contacted by the document’s intended recipient to provide the correct address. Is there a justification for the change other than anecdotal evidence that secure documents are being mis-delivered? Does U.S.C.I.S. have statistics on the number that have gone into the wrong hands? If not, why implement a more complex procedure for immigrants to obtain their documents?

4. U.S.C.I.S. Director’s letter to Senator Charles Grassley(R-IA) on the agency’s recent completed efforts and upcoming agenda promising a litany of crackdowns. 

In an April 4, 2018, letter to Sen. Grassley, L. Francis Cissna, U.S.C.I.S. Director, wrote of the different areas on which U.S.C.I.S. was working to implement the Trump “Buy American and Hire American” Executive Order: 

• That U.S.C.I.S. had recently published a policy memorandum clarifying existing regulatory requirements relating to H-1B petitions filed for workers to be employed at one or more third-party worksites including that employers of such must provide itineraries and that U.S.C.I.S. may request detailed documentation, including contracts relating to the employment or assignment of such workers, to ensure that a legitimate employer-employee relationship will be maintained and that the beneficiary will be performing H-1B specialty occupation work for the entire time requested in the petition.
• That when H-1B beneficiaries are placed at third-party worksites, the petitioners must demonstrate that they have specific and non-speculative qualifying assignments for the entire time requested, and while an H-1B petition may be approved for up to 3 years, U.S.C.I.S. may generally limit the approval period to the length of time during which the beneficiary will be in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
• That U.S.C.I.S. in addition to having dedicated email addresses to make it easier for the public to report suspected fraud and abuse, is initiating a more targeted approach in its H-1B employer site visit program to help it determine among other things whether H-1B dependent employers are actually paying their workers the statutorily required salary to qualify for an exemption from recruitment attestation requirements.
• That administrative site visits are being expanded to include L-1B petitions for specialized knowledge workers and are initially focused on beneficiaries who will primarily work off-site in another company or organization’s location to ensure that they are complying with the requirements from the L-1 Visa Reform Act of 2004.
• That U.S.C.I.S. has published a policy memorandum instructing officers to apply the same level of scrutiny to both initial petitions and extension requests for non-immigrant visa categories.
• That its regulatory plans include two regulations to improve the H-1B program – the first to establish an electronic registration program for petitions subject to numerical limits for the H-1B nonimmigrant classification, and the second to revise the definition of specialty occupation to increase focus on obtaining the best and brightest foreign nationals via the H-1B program, and to revise the definition of employment and employer-employee relationship to better protect U. S. workers in wages.
• That DHS will propose additional requirements designed to ensure workers pay appropriate wages to H-1B visa holders.
• That it is drafting a proposed rule to remove the International Entrepreneur Rule which is currently in effect due to a court order that invalidated the attempt by U.S.C.I.S. to delay it, but noting that at this time, U.S.C.I.S. had not approved any parole requests under the entrepreneur final rule.

5. Memorandum of understanding (MOU) between U.S.C.I.S. and Department of Justice set to target companies employing non-immigrants . 

Both agencies announced on May 11, 2018, a memorandum of understanding to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. The Department of Justice enforcement component will be the Immigrant and Employee Rights Section (IER) and U.S.C.I.S.’s the Fraud Detection and National Security Directorate (FDNS). In the past, IER’s assignment was immigrant positive to protect immigrants from discrimination by U. S. employers. That was all changed with the “Buy American Hire American” Executive Order which turned the mandate to protecting American workers from being replaced by foreign workers, such act being seen as a form of discrimination against Americans. FDNS’s assignment has always been to make site visits (mainly on nonimmigrant employment cases) to ensure that all the conditions of employment as promised in the petitions are met. In the MOU, a double whammy will now potentially be placed on employers as either agency will be referring companies to the other agency where one of them finds violations. In the understanding’s section on specific referrals, the MOU states that, “If FDNS becomes aware of information relating to suspected employer violations of the statutes and regulations that IER enforces governing the potential misuse of employment-based immigrant and nonimmigrant visa programs to discriminate against available and qualified U. S. workers in favor of employment-based visa workers, FDNS will promptly refer that information to IER when FDNS’s policies and procedures do not require otherwise.” The IER language is likewise that “If IER becomes aware of information relating to suspected employer violations of statutes and regulations governing employment-based immigrant and nonimmigrant visa programs that U.S.C.I.S. enforces, IER will promptly share that information with FDNS… and/or encourage the individual with such information to promptly contact FDNS….” 

Hopefully an understanding of the above 5 topics will allow readers a chance to prepare for events that have already happened and those about to be implemented in the immigration arena. I have chosen the above topics as they are the ones less spoken of, but of course who can ignore the Trump administration’s attempt to militarize the border, separate families and charge the parents who bring in children with felonies, revoke the status of Dreamers and hold their fate hostage to ram through Mr. Trump’s entire anti-immigration agenda, shamefully end Temporary Protected Status (TPS) programs for over 300,000 persons some of whom will face certain death upon return to their home countries, and attempt through Attorney General Sessions to force immigration courts to become more restrictive by cutting down their independence and undoing recognized precedent immigration decisions favoring immigrants by fiat through certifying long decided cases to himself.

 

As published in the Immigration Daily on April 12, 2018.

EB-5 investment into the U. S. by the China-born in the past has proven a boom to U. S. cash starved projects, investors, immigration lawyers, and Chinese agents. Through the practice of gerrymandering almost disconnected parts of municipalities, much of the risk-taking which was supposed to be a component of the law has been removed for investors giving $500,000 (instead of the regular $1 million) for projects in targeted employment areas (TEA’s) for which the unemployment rate is supposed to be at least 150% of the national average. TEA projects abound in the richest areas, Midtown Manhattan being a prime example. However, there is a supreme party killer which has come into being because of the very success of the marketing effort to Chinese nationals – exhaustion of visa numbers as Mainlanders have taken up 85% or more of the world’s EB-5 quota over the years to the point that there is now a tremendous waiting time before China-born can expect to receive a conditional green card from the EB-5 category. U.S.C.I.S.’s Ombudsman estimated in its 2017 annual report that the waiting time for Chinese nationals beginning an investment today could be 10 years or even longer. Currently the EB-5 China availability date has been stuck at July 22, 2014 since October 2017.

The waiting time is intolerable to many investors as it means that, not only do they have to watch their case for a long period of time, but also that their children may age out (over the age of 21) and not be eligible to immigrate at the time that the principal investor’s priority date is reached. Under the Child Status Protection Act (CSPA), a child’s age can only be “frozen” where the child is under the age of 21 (with credit for the time that the I-526 Immigrant Petition by Alien Entrepreneur pended with U.S.C.I.S.) when that priority date is reached and becomes available on the State Department visa bulletin. Even with the reported softening stance of U.S.C.I.S. allowing children to be the principal investors, how young would a child have to be to ensure his or her immigration vis-à-vis the immigration requirement that the investor be legally capable of signing a binding contract?

The backlog situation does not have a solution at present, and may not be resolved as many members of Congress have been put off by the perceived abuses of the program. A fix was not seriously attempted as part of the Omnibus Spending Act which extended the status quo until September 30, 2018.

For many well-to-do Chinese nationals who own or are majority shareholders of companies in China, use of the EB-1C immigration category for multinational executives and managers could be a viable alternative allowing U. S. immigration within 1-2 years. The requirements are that the China company be of reasonable size, and that the U. S. company be more than a tiny company, e.g. China company 100+ employees and U. S. company 10-20 employees. The U. S. company could be directly acquired by either the China company or the majority shareholder. (Beginning a new company from scratch in the U. S. rather than acquiring an existing company would add time and difficulty to the case). Such would satisfy the requirement that the companies be “affiliated.” The person to immigrate would also have to show working experience with the China company as an executive or manager of at least one year out of the past three before filing the petition. As a multinational executive or manager transferring between the China company and the U. S. company, the law would not require advance clearance by the Department of Labor for immigration, and a petition could be directly submitted by the U. S. company for the individual.

Two questions that come up in this context are whether an L-1 visa (nonimmigrant intracompany transferee visa) approval is required before embarking on the immigrant visa petition, and whether this path which involves acquiring a U. S. company is too difficult. The short answer to the first question is that an L-1 approval notice, while helpful, is not a requirement to beginning a permanent residence application for a multinational executive or manager. For the second, while EB-5 investments are quite easy to get into (930 regional investment centers as of April 2, 2018) with regional center heads using tremendous advertising and middlemen to push and shove potential investors to their projects, effort on the part of the individual or China company will generally be required in choosing this path. Companies that are already doing business in the United States could use their network of customers and suppliers to assist, or go through business agencies, advertisements in trade journals or newspapers, or organizations which attempt to put business buyers and sellers together, etc. In addition, this would not have to be a lone effort as the individual or China company could band together with another China company wishing to do the same thing since the law contemplates investment percentage as low as 50% for a recognized “affiliation.”

The EB-1C category is part of the first employment-based preference (EB-1) which is traditionally open for China-born as well as the rest of the world except that in the past two years, the category backlogged from June-September (FY 2016 and FY 2017) for China before springing open again in October. In 2018, the category just backlogged in April, but Charlie Oppenheim, the Chief of the State Department Visa Control and Reporting Division, was unclear as to whether high demand for EB-1 visas would be ongoing, but if not, that China EB-1 final action dates could be advanced late in the summer.

Other advantages of the EB-1C category are not only the faster immigration that will generally include all members of the family and even children who have reached the age of 20 prior to the start of the case, but also the ability of others to work and ultimately immigrate through the same U. S. company, lesser attention to source of funds, on how the funds are transmitted to this country, the possible lesser required amount of investment, and that this form of immigration does not involve a conditional green card. It should be remarked here that as the individual would be coming over as manager or executive, he or she would be expected to work in the U. S. company in that capacity rather than just being a passive investor. But even here, an interested individual could use the same tactic employed in many EB-5 cases of having the spouse be the principal applicant, the only difference being that the spouse would also have to have the qualifying experience of being a manager or executive in the China company for at least one out of the past three years prior to the filing.

The connection between the two companies could eventually allow other managers, executives, and persons of specialized knowledge with qualifying experience in the China company to enter the U. S. quickly on nonimmigrant L-1 intracompany transferee visas to work for the U. S. enterprise. If the U. S. company later wished to petition for their permanent residences, managers and executives could qualify without needing to go through the Department of Labor for PERM labor certification. Those under specialized knowledge would have to obtain a labor certification and qualify under another category, EB-2 for advanced degrees or for persons of exceptional ability, or EB-3 for professionals with a baccalaureate degree or 2 years of required skilled work experience. For the month of April 2018, immigrant visa availability under EB-2 is open to China-born who began their labor certification applications prior to August 1, 2014, and for those under EB-3 who began their papers prior to June 1, 2015. The projected time period for China EB-2 cases is approximately 3-5 years and for EB-3 3 years.

A prime concern in EB-5 investment cases to U.S.C.I.S. is the source of funds to ensure that they are actually from the investor and that the funds are not from illegal sources. Documenting the source of funds is usually a painstaking process. Although there is always a concern with ill-gotten gains, that is not of paramount concern in EB-1C cases, and the funds do not have to emanate from the individual, but can come directly from the China company. Also in EB-5 cases, there is great concern with the transfer of funds to show a paper trail of the funds from the investor in China to an account in the U. S. As the funds do not have to directly come from the individual in an EB-1C multinational executive/manager case, the paper trail could be directly from the company in China through banking institutions to an account in the U. S. or even to the owners of the company to be acquired.

There is no fixed amount of investment in EB-1C as opposed to EB-5 cases, and the expended amount for capitalization can be less. In the scenario of the individual or China company acquiring a U. S. company, many factors are considered in the final price such as the customer base, goodwill, company debt, receivables, inventory, willingness or need to quickly sell, etc. Also the individual or China company would not have to acquire the entire company, but just enough to have majority control. The individual or China company could leave the present U. S. owners with minority shares or even have a joint venture with a partner or partners as long as the individual or China company winds up with at least 50% of the U. S. company.

Finally, once the priority date is reached for an EB-5 case and the individual approved for residence status, he or she is assigned conditional residence for a two-year period of time, and must then file an I-829 Petition by Entrepreneur to Remove Conditions (present fee $3835) to remove the conditional basis of the residence status. The I-829 must show that all conditions promised in the I-526 approval were met. That is not a case for an EB-1C approval which is permanent and does not involve a further application and/or interview in the future.

With the uncertainty and unfavorable outlook of many in Congress surrounding the EB-5 program raising a huge question as to whether the China backlog situation will be remedied, it might well be in the interest of those who fit the above bill to look into the possibilities of EB-1C immigration.

As published in the Immigration Daily on May 23, 2017. 

Despite all the gloomy news about immigration ala Trump, U.S.C.I.S. is preparing to bring into the U. S. ambitious immigrants and their families to begin the road towards permanent residence. They will be given up to 5 years of legal stay to accomplish their purpose. The entrepreneur parole rule will come into effect on July 17, 2017, for individuals hoping to begin the next generation of innovative startups. Is this the new hope for China EB-5 investors stuck under a 6-8 year backlog or another option for all investors? U.S.C.I.S. and experts in the field have many times interchanged the terms “investor” and “entrepreneur” in describing participants in the EB-5 program. It remains a possibility that some investors may qualify, but most would likely not in light of the different requirements of the new program. The conditions are:

• Within the 18 month period prior to filing the application for parole, the entrepreneur received a qualified $250,000 from one or more qualified investors, or
• $100,000 through one or more qualified government grants or awards.
• If an applicant only partially satisfies either one of the 2 above conditions, he or she can provide other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The amount of money is certainly not intimidating compared to the current amounts required for the EB-5 program and especially the levels being discussed in U.S.C.I.S.’s proposed regulations of January 13, 2017 (raising investments for targeted employment areas (TEAS) from $500,000 to $1.3 million and all other investments from $1 million to $1.8 million). However, the huge hurdle is that the investment must come through a qualified U. S. investor . A “qualified investor” is defined as a U. S. investor who in the past 5 years has made investments in startup entities of no less than $600,000 and at least 2 of the entities created at least 5 qualified jobs or generated at least $500,000 in revenue with average annualized revenue growth of at least 20%. U.S.C.I.S. made clear that it is looking for established U. S. investors such as venture capital firms, angel investors, or start up accelerators. The qualified investor also cannot be closely related such as the entrepreneur himself or herself, parent, spouse, child, or sibling, or any entity where the entrepreneur or relative has an ownership interest. But for those who qualify, they can obtain up to 5 years of entrepreneur parole, and may put themselves in line for permanent immigration through the EB-2 National Interest Waiver (NIW) category.

The national interest waiver category was created with the Immigration Act of 1990 to allow EB-2 immigrant visa classification including waivers of the job offer requirement if in the national interest to members of the professions holding advanced degrees or their equivalent, and to individuals who because of their exceptional ability in the sciences, arts, or business would substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(B) of the Immigration and Nationality Act (INA) allows a waiver where it will substantially benefit prospectively the national economy, cultural or education interests, or welfare of the United States. The precedent decision of Matter of New York State Department of Transportation, 22 I & N Dec. 215 (Comm., 1998) (“NYSDOT” ) stated 3 requirements to be met before a waiver could be granted – that the waiver applicant had to seek employment in an area of substantial intrinsic merit; that he or she had to demonstrate that the proposed benefit to be provided would be national in scope; and that he or she had to demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U. S. workers the position sought by the waiver applicant. Under this reading, many NIW applicants were simply denied on the basis that the applicant could not demonstrate that non-allowance of the waiver for labor certification would damage the national interest. Recently however, the NIW has become more intriguing and accessible with the demise of NYSDOT in Matter of Dhanasar , 26 I & N Dec. 884 (AAO 2016) on December 27, 2016. There is now a new three-part test:

• Whether the work that the person would be doing has both substantial merit and national importance. 
• Whether the person is well-positioned to advance the proposed work.
• Whether the requirement for a labor certification is impractical, e.g. entrepreneur, or if there is availability of U. S. workers, whether on balance it still would be sufficiently beneficial to the country to allow an NIW to be approved.

This new interpretation does not require either harm to the national interest or a comparison against U. S. workers in the field. An unpublished decision of the AAO on the same date that Dhanasar was issued is instructive on how the new standards would apply to entrepreneurs.

Matter of E-C-H- (AAO 12/27/16) featured an entrepreneur wanting to serve the U. S. veterans’ community by forming his own small consulting firm through which he would undertake projects aimed at improving veterans’ services and wounded warrior care. In approving the petition, the AAO found that substantial merit was proven by letters from prospective clients, a business plan for the company, and submitted news articles and research reports describing the plight of returning veterans and the necessity of ensuring adequate services for their physical and emotional well-being. National importance was proven by probative expert letters describing the importance of effective programs for U. S. troops upon returning home and transitioning to civilian life along with submitted news articles and other evidence documenting gaps in veterans’ health services and discussing the federal government’s initiatives. The AAO found that the petitioner was well-positioned to advance the proposed endeavor through his numerous support letters describing his expertise and record of success in his past work relating to Veterans Affairs, a detailed business plan, and communications from several prospective clients expressing their eagerness to use his services. Finally in balancing the factors to determine the waiver’s benefit to the United States, the AAO cited the petitioner’s experience in the field, the immense value of improving programs and assisting organizations that provide support and advocacy for U. S. veterans and wounded warriors, and that, based on the petitioner’s intention to start a consultancy firm through which he would be self-employed, it would be impractical for him to obtain a labor certification.

Dhanasar is new and E-C-H- is only illustrative of how the Dhanasar factors can apply in an entrepreneur case for NIW immigration. Entrepreneurs under parole may certainly have vastly different situations that U.S.C.I.S. will approve as long as they meet the 3 requirements of Dhanasar. Lending credence to the belief that many deserving cases will be approved is that most if not all of the petitioners will have been prescreened by the “Shark Tank” environment through which entrepreneurs must pass to gain funding for their projects under the parole rule – that experienced outside investors sufficiently believe in the innovative vision of the individual, which is certainly encouraging not only for entrepreneurs seeking parole but also NIW classification.

Insofar as mainland China and India born are concerned, the new pathway likely requires a legislative fix before it becomes truly useful. The impediment is the EB-2 category itself which is backlogged at present to cases filed by March 1, 2013 for China and July 1, 2008 for India (Although the time indicated for China EB-2 is 4 years plus, visa chart time does not correlate to calendar time, and it may take longer than 5 years for the category to advance 4 years in chart time). U.S.C.I.S.’s suggestion that paroled individuals may apply for any nonimmigrant classification for which they may be eligible is not a good solution in light of the lottery aspect of H-1B’s and the high requirements of O-1 extraordinary aliens in the sciences and business. Either the NIW must have a separate quota of its own, or the time under parole must be extended under a device such as in the American Competitiveness in the 21st Century (AC-21) which allows H-1B holders to stay past the maximum time allowed as long as they either have a labor certification application filed 365 days or an I-140 approval. Under NIW, no labor certification is involved as petitioners directly apply for I-140 approvals. The second solution appears more doable as it mostly involves adding words such as “entrepreneurs under parole” alongside H-1B holders. Either action would allow more utility of the new pathway to nationals of two countries known for the scientific and entrepreneurial acumen of their nationals.

As published in Immigration Daily on March 1, 2018.

Extorting the protectors of the innocent (DACA) and what the future holds – In an attempt to cast himself as mentally sound and show his mastery of the nuances of politics, Donald Trump held a televised meeting with members of Congress on DACA on January 9, 2018, and promised to sign any bill that they sent to him. He then proceeded to extort those interested in saving the protected statuses of the approximate 690,000 DACA recipients in a series of mad tweets decrying any attempt to put together an acceptable bill unless it pushed through his entire anti-immigration package of border wall funding, much tougher immigration enforcement, repealing the diversity visa program, and chopping off most categories of family-based cases. With the failure of the Democratic shutdown of Congress in early February, it has become apparent that no relief bill will pass by March 5, 2018, the ending date of DACA. The Supreme Court’s decision on February 26, 2018, to deny an extraordinary stay of two District Court rulings imposing nationwide injunctions against Mr. Trump’s unilateral stoppage of DACA has given some relief as those with DACA status can continue to apply for extensions of protection and work authorization until the Ninth Circuit Court of Appeals renders its decision and the Supreme Court properly takes up the subject on appeal. Where does that leave the DACA recipients? Not in a good place. After the large amount of congressional attention given to the immigration issue in January and February, there is probably little appetite to take it back up given the period of relief afforded by the Supreme Court and the wasted week allotted to immigration issues in mid-February in which the Republicans tried to box the Democrats into politically unpalatable corners and vice versa. There will only be more appetite if the Republicans suffer huge losses in the midterm elections of November and come to the conclusion that they cannot continue supporting the Trump agenda. So unfortunately, the midterms may turn out to be the crucial moment for DACA proponents to turn out the vote. Other issues on which the Republicans are vulnerable in being close to Trump are assault rifles, the Russia investigation, his constant lying, disregard of sexual harassment claims, chaos in the White House, lack of coherent foreign-policy, etc. Immigration advocates cannot only try to persuade voters on the immigration issue alone regardless of how sympathetic the circumstances of the DACA recipients.

I-485 filing despite U.S.C.I.S. suggesting that such would be improper – In September, 2015, the State Department in the interests of attempting to ensure that many numbers of available immigrant visa numbers would not continue to be wasted, came up with the plan to add a second chart for each month to the visa bulletin so that individuals could begin to prepare and file their cases ahead of their visas becoming available. In this way, U.S.C.I.S. and the US consular posts could complete many more cases before the end of the government fiscal year and use up many more of the available immigrant visa numbers than in past years when unused numbers were lost forever. State then introduced Chart A and Chart B, the “Final Action Date” and “Filing Date” charts respectively. U.S.C.I.S. had a voice in stating that it had the authority to decide what chart could be used for filing cases during any particular month. Therefore the practice has evolved that U.S.C.I.S. announces within 7-15 days of State Department issuance of the bulletin which chart it will allow people to use for filing either family or employment based cases. But a strange phenomenon has occurred that U.S.C.I.S. has not addressed either in policy or in its I-485 adjustment of status form instructions – whether one can properly file where U.S.C.I.S. decides to use the “filing date” chart, but that date is less advanced in a category than the “final action date” chart, and the applicant has a priority date that is already available under the latter chart. An example is the visa bulletin for the month of March 2018 wherein the F-3 category for married sons and daughters of US citizens has final action date availability before December 15, 2005, but filing date availability only before December 1, 2005, and U.S.C.I.S. has instructed the use of the latter chart. An applicant with a priority date of December 8, 2005, would properly wonder whether he or she had the authority to file for adjustment of status during the month. It is clear that under the law pertaining to adjustment of status, applicants are allowed to file once the final action date has been reached as §245(a) of the INA permits adjustment of status filing where there is visa availability. This being the case, U.S.C.I.S. should make it clear in either policy or form instructions that filings are allowed. Failure to clarify means that many who are eligible to file during the month may continue to needlessly wait. Also if U.S.C.I.S. has a contrary view, it should immediately state the reasoning behind its interpretation.

H-1B decisions to mull over – U.S.C.I.S.’s Administrative Appeals Office in two non-precedent decisions on January 25, 2018, gave insight as to how it would look at whether the submitted labor condition application (LCA) corresponded with the H-1B petition, especially focusing on H-1B wage levels. The AAO set forth a five-part examination encompassing the following: 

• Whether the petitioner selected the appropriate SOC code for the proffered position after comparing the petitioner’s duties to those provided in the O*Net.
• Whether the petitioner’s experience requirements would warrant an increase in the level of pay.
• Whether the petitioner’s minimum educational requirement as compared to the education requirement contained in Appendix D of the Department of Labor guidance would warrant an increase in wage level.
• Whether the provided job duties as compared to O*Net are generally encompassed by the O*Net description or whether they require special skills or other requirements beyond those listed in the O*Net which would warrant an increase in pay.
• Whether any supervisory duties warrant a higher wage level.

The AAO sustained one of the appeals (Matter of B-C-, Inc., ID #1139516 (AAO Jan. 25, 2018)), and in the one denied (Matter of G-J-S-USA, Inc., ID #1182139 (AAO Jan. 25, 2018)) pointed out that the petitioner’s stated minimum education requirement was a Masters degree in finance or related field whereas the requirement contained in Appendix D indicated that the usual education level was a bachelor’s degree. The decisions are a welcome relief in showing the direction that the agency will follow in appeals pertaining to LCA wage levels vis-à-vis job duties, especially in the focus on Appendix D. U.S.C.I.S. adjudicators in the past have seemingly believed that any advanced degree merits another point in wage level. The appendix shows that for a number of occupations, a first professional degree, PhD, or Masters should not increase the entry level wage of the position.

Other H-1B scuttlebutt to watch out for – U.S.C.I.S. signaled in a new policy memorandum on February 22, 2018, its intent to make it even more difficult to obtain approvals for outsourced H-1B workers. The memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” gave background on determining the relationship of employer-employee, referenced U.S.C.I.S.’s mission to protect the interests of U. S. workers, stated that a petitioner must establish by a preponderance of the evidence that the beneficiary will be employed in a specialty occupation and for the entire length of time requested, and that the employer will maintain an employer-employee relationship for the duration of the requested period of time. It then went into graphic detail concerning the many pieces of evidence that it might require to prove such, and added that where an H-1B extension is requested for someone who was placed at one or more third-party worksites, the petitioner should establish that all of the H-1B requirements had been met for the entire prior approval period of time. In the same vein in attempting to curb outsourcing, “The Protect and Grow American Jobs Act,” placing new requirements of American worker recruitment on H-1B dependent companies and increasing the salary level for H-1B workers, passed the House Judiciary Committee in November, but will not likely affect this H-1B season because of the lack of legislative days in Congress and its other pressing concerns. The period for submitting H-1B cap cases this year will be from April 2-6, 2018, assuming that the 85,000 figure is reached within that time. Most practitioners believe that there will be fewer H-1B filings this year due to discouragement of the Trump administration, the many requests for further evidence (RFEs) to H-1B filings in 2017, numerous denials, and the expected strict scrutiny of petitions this year. The silver lining is that with the lesser expected numbers of petitions, the chances of being selected will rise. U.S.C.I.S. has already announced that it does not anticipate that premium processing will be suspended for non-H-1B petitions, and there will be a short suspension of premium processing for H-1B cap subject petitions. In 2017, premium processing for both was suspended for months. It also stated that it was not anticipating any procedural changes for the H-1B cap season.

Planning your litigation according to the circuit court – Sometimes an attorney has the opportunity to pick the forum for immigration court, and may wish to take full advantage to better litigate his or her client’s future case if he or she knows that a critical element may depend upon that person’s state of residence. Clients are often willing to move across state lines if doing so would help their cases. Two recent cases illustrate the importance of residence. A Board of Immigration Appeals decision, Matter of Castillo Angulo, 27 I & N Dec. 194 (BIA 2018), focused on the issue of admission “in any status” to qualify for LPR cancellation of removal in establishing the required continuous presence in the US for seven years. The Board held that in this case arising in the Ninth Circuit (covering Alaska, Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, and Hawaii), an alien who was “waved through” a port of entry had established an admission “in any status” within the meaning of the law, but that this interpretation only applied for cases in the Fifth (covering Louisiana, Mississippi, and Texas) and Ninth Circuits and that otherwise, an alien had to prove that he or she possessed some form of lawful immigration status at the time of admission from which to count the seven years. A First Circuit case, Pereira v. Sessions, No. 16-1033 (First Circuit, 7/31/17) illustrated the stop time rule’s applicability where a notice to appear (NTA) in the immigration court did not contain the date and time of the alien’s initial hearing. Under the stop time rule, an alien’s period of continuous physical presence ends for purposes of cancellation of removal when he or she is served with an NTA. The First Circuit believed that the lack of date and time did not nullify the stop time rule. But in contrast, the rule in the Third (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands) and Ninth Circuits would hold the other way. Although the government may decry the reliance on circuit law in some cases citing Brand X (National Cable & Telecomm. Ass’n v.Brand X Internet Test Servs, 545 U. S. 967 (2005)) that the BIA may adopt different interpretations of ambiguous provisions of the immigration laws despite contrary court decisions, and that those interpretations, if reasonable, are entitled to deference, exploring differences in rulings in the circuit courts where the attorney knows what will be a critical issue may mean the difference between the client being allowed to stay or being removed.

As published in Immigration Daily on January 16, 2018.

I sit here on Martin Luther King Day wondering what to write and what good it will do. This past week has shown the President of the United States to be an out and out racist. Anyone with an ounce of brain matter knew that he was an inveterate liar second or first to Mr. Putin, but everyone hoped against hope that he was not a racist. That hope was blasted by Mr. Trump’s private White House immigration meeting on a Dreamer (“DACA”) compromise negotiation that included a bipartisan group of lawmakers. As reported by The Wall Street Journal, he asked why the U. S. would want to admit people from Africa, the source of many visa lottery applicants, and said “Why do we want all these people from these shithole countries here? We should have people from places like Norway” according to 2 people; and he also expressed dismay with granting legal status in particular to people from Haiti, saying “What do we want Haitians here for?” according to another person. The juxtaposition of his wishes to have people from Norway, an overwhelmingly white country, and his disdain for people of color as coming from shithole countries of Africa proves the case of racism coupled with his support of the neo-Nazis in Charlottesville, weak response to the disaster in Puerto Rico characterizing the American Latino islanders a burden and cavalierly lobbing paper towels like footballs to its desperate people, painting Mexicans as rapists and drug carriers, ending temporary protected status (TPS) programs for Haitians, El Salvadorans, Nicaraguans, and soon Hondurans, attempting mass deportations of people of color and hoping their U. S. family members follow, and saying previously that the Haitians in the U. S. “all have AIDS” and Nigerian immigrants would never “go back to their huts” in Africa once they had seen the United States. Although Mr. Trump attempted weakly to deny that he said “shithole countries” with backing from his sycophantic immigration hardline senators David Purdue (R-GA) and Tom Cotton (R-AR) after a day of no denial by the White House, the words cannot be walked back, and more truthful senators like Lindsey Graham (R-SC), Dick Durbin (D-IL), and Jeff Flake (R-AZ) stated the truth of what he said.

Where does that leave us? Unfortunately for the country, in a terrible place. It does no good to admonish Mr. Trump and tell him that he is wrecking the country when all he seems to care about is taking care of the wealthy and making the country not “great again” but “white again.” The Dreamers have received a short reprieve from a California federal judge’s ruling in the past week that DACA recipients must retain their work permits and protection from deportation while their lawsuit challenging the decision to end the program progresses. U.S.C.I.S.’s website on January 13, 2018, stated the procedure under which the agency would resume accepting requests to renew a grant of deferred action and that the DACA policy would be operated on the terms in place before it was rescinded on September 5, 2017. In the meantime, Mr. Trump tweeted the next day that DACA is probably dead and blamed the Democratic lawmakers for it. What should Democratic legislators do at this time? The answer is to meet force with force. Today they have leverage to shut down the government on January 19th as Republicans need Democratic support to keep the government running. Kicking the can down the road to March, the Trump administration deadline for DACA, is an exercise in futility as the Republicans even now attempt to undermine the present negotiators with a second set of mainly hardline negotiators.

For everyone else not blinded by his false promises, the country under Trump is becoming a slow-motion avalanche to disaster in which the inequality of income between top and bottom under his recent tax bill will expand greatly risking momentous social upheaval; the monies borrowed for funding the federal budget will be crippling especially in light of the anticipated giveaways to the military, recent tax bill deficit, monies for infrastructure spending, payments for weather disasters, and no curbing of the Social Security program; the deportation and threat of deportation that are causing many to hide leaving a huge hole in the profits of U. S. companies which will not be able to sell goods and services, especially large purchases of homes, cars, and large appliances, to the 11 million undocumented in this country; the real estate market that will begin to tank with urban blight in many cities because of overbuilding, the tax bill ending state and local tax deductions and capping mortgage deductions, and lack of immigrants buying and leaving the cities; the many jobs in hurting industries that are now and will continue to go wanting simply because they are very hard and Americans born here have been trained by TV to see themselves as stars rather than hard laborers; the 4.1% low rate of unemployment meaning that Americans can basically pick and choose from open jobs; the inflation that will come roaring back as the government begins running the printing presses wildly to cover the deficit spending; and the cost of goods that will skyrocket making any wage gains by the middle class passé as items like hamburger meat sell for $10 a pound and a loaf of bread for $12. On top of that, Mr. Trump has made the U. S. and American companies unpalatable to the African continent, which translates into less U. S. business with a continent rich in natural resources and providing no counterweight to China, which has made Africa a focal point of its foreign-policy. The U. S. State Department diplomatic corps will not be able to assist as it has been tremendously weakened by the slashing and other leaving of personnel and the constant undermining of Secretary of State Tillerson by Mr. Trump so that many doubt that he speaks for the Administration.

While Mr. Trump may have recently passed his medical, no information was available on the tests administered, much less whether any were given pertaining to his mental state. His temperamental attitude, constantly repeated phrases, and continual vacillation on decision-making are tremendously worrisome to many professionals in mental health, and especially as he has his finger on the nuclear football and has made outlandish threats against North Korea for its missile launches.

In this writer’s opinion, there will soon be a tipping point for America in which the momentum will be too great to stop the rolling catastrophe. The 2018 midterm elections offer the nation a chance to tell the Republicans that they should separate themselves from Mr. Trump as it appears that the party is in thrall to him and the red state base that he brings. Is that the solution? No, but at least it’s a start.

As published in Immigration Daily on December 15, 2017.

January 2008 visa bulletin

A short summary of the bulletin is that the final action dates (A chart) for family and employment based cases generally advanced except for assumedly temporary unavailability of certain religious workers and regional center investment cases (tied in with the machinations of Washington’s budget bill), and that the filing dates (B chart) for both family and employment remained the same. So the rest of this part of the article will only talk about the A chart. Most countries in the world saw family-based advances in the F-1 category for unmarried adult sons and daughters of U. S. citizens from 2/1/11 to 3/15/11; F-2A for spouses and unmarried children under the age of 21 of permanent residents from 12/22/15 to 2/1/16; F-2B for adult unmarried children of permanent residents from 11/22/10 to 12/1/10; F-3 for married sons and daughters of U. S. citizens from 9/8/05 to 10/8/05; and F-4 for siblings of U. S. citizens from 6/8/04 to 6/22/04. On the employment-based categories, EB-1 for extraordinary aliens, outstanding professors and researchers, and multinational executives and managers remained current worldwide; EB-2 for those with advanced degrees or exceptional aliens remained current for all of the world except for China which moved from 7/1/13 to 8/8/13 and India from 11/1/08 to 11/22/08; EB-3 for skilled workers or professionals was current for most of the world except for China which moved from 3/8/14 to 4/15/14, India from 10/15/06 to 11/1/06, and the Philippines from 1/15/16 to 2/15/16; EB-W Other Workers was current for most of the world except for China which moved from 7/1/06 to 12/22/06, India from 10/15/06 to 11/1/06, and the Philippines from 1/15/16 to 2/15/16; EB-4 for special immigrants including ministers remained current with the exception of Mexico which moved from 4/22/16 to 6/1/16 and the 3 countries of El Salvador, Guatemala, and Honduras which went from current to 12/1/15; the other part of EB-4, certain religious workers, went from current for most of the world except for Mexico to unavailable worldwide; EB-5 direct cases remained current except for China which moved from 7/15/14 to 7/22/14; and EB-5 regional center cases went from current for most of the world except for China to unavailable worldwide.

Dangers of Leaving the United States for NIV interviews

Reports continue to pop up on the negative effects on adjudications of the Administration’s “Buy American Hire American” (BAHA) Executive Order which has found its way into the Department of State’s Foreign Affairs Manual which guides consular posts worldwide in nonimmigrant visa determinations. Cases involving applications from both new employer approved petitions and renewals have seen a spike in denials, administrative processing, lengthy questioning, and requests for further paperwork. Refusal rates have increased and telephonic investigations of local employers are up. As the risks attendant to consular interviews are now observably higher, persons who already have a change of status should well consider the factors before taking a trip back home which requires a new visa. Individuals with approved changes of status from U.S.C.I.S. should remember that a visa is not necessary to maintain legal status in this country. U.S.C.I.S. controls nonimmigrants in the country through I-797 approval sheets and paper or electronically retrieved I-94’s. A visa is usually only useful for traveling back and forth.

Varied H-1B RFE Response Strategies

Is there an immigration lawyer doing H-1B’s who does not have a response by now to U.S.C.I.S.’s barrage of RFEs attacking level I wages and the specialized nature of H-1B positions? I would wager not. The following just goes through some of the response strategies out there and a few of ours. At a meeting of the New York American Immigration Lawyers Association (AILA) Chapter last month, the observation was made that if U.S.C.I.S. gave an RFE just challenging the job as level I and you respond, then the agency would come back with the second RFE to say that the position was not a specialty occupation. Also that while the language in the OOH says that an occupation “typically” requires a bachelors degree, U.S.C.I.S. jumps on that by saying that not all people in the position have to have a bachelors degree. The panel pointed out the case, Residential Finance, for the proposition that even if an occupation’s requirements include disparate and various bachelors degrees, it is a specialty occupation if you can show that each field truly prepares one for the rigors of the duties. It recommended going to the unpublished AAO decisions in addition to citing Residential Finance to make a body of knowledge argument. One panelist viewed the language in the second part of the four-part regulatory criteria to prove specialized knowledge, “… In the alternative, an employer may show this particular position is so complex or unique that it can be performed only by an individual with a degree” as opening another avenue for response different from that of the fourth criteria to prove that “the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.” One agency specializing in working with attorneys and credentials evaluations proposed the solution of responding with an expert opinion letter explaining that level I does not mean that the job is entry-level, and then providing documentation that the job does require the level of specialization and higher education that meets H-1B requirements. AILA headquarters had earlier provided a practice pointer for responding to RFEs raising the level I or level II wage issue including arguing against the U.S.C.I.S. interpretation of DOL’s wage guidance of level I being only for those employees performing routine tasks requiring limited if any exercise of judgment by going through the entire wage guidance including walking the adjudicator through steps 1 through 5 of Appendix A; arguing that the regulations do not authorize U.S.C.I.S. to review the appropriateness of a wage level; that U.S.C.I.S. is misapplying the wage level system; that some positions are inherently specialty occupations regardless of the wage level; and that the wage level reflects the worker’s stature within the employer’s hierarchy, not whether the position falls within the regulatory definition of specialty occupation. Along with what I believe is a multitude of lawyers, we argue each of the 4 points of specialty occupation separately (if we can) pointing out exactly how the position fits within each of the points and supporting the first criteria that “a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position” with references to case law, the OOH itself, and dictionary definitions. We also use expert evaluation letters dependent upon the client organization’s wishes although cognizant that their use is also being attacked. In arguing level I, we point out in many pages that USCIS does not have statutory nor regulatory authority to adjudicate the levels of a wage, and support the view with statutory and regulatory language along with DOL’s own wage guidances over the years. There is probably no magic avenue or bullet to win the day, but the large volume of evidence shows that U.S.C.I.S.’s H-1B views as spurred on by BAHA are plainly wrong.

The law firm won two recent non-precedential decisions at the U.S.C.I.S. Administrative Appeals Office which sided with us in our appeals of I-601 denials. An I-601 approval is required to waive grounds of inadmissibility, which in these cases involved fraud or misrepresentation. The standard required for waiver approval is the establishment of extreme hardship to a U. S. citizen or lawful permanent resident spouse or parent. Following such a determination of extreme hardship, U.S.C.I.S. must also make a decision on whether a waiver should be approved in the discretion of the agency. The decisions may be of some interest to the readers. In the first one, Matter of L-C-, ID #553828 (AAO Nov. 2, 2017), a large factor in establishing extreme hardship was that although both applicant and qualifying spouse were Chinese, the spouse was born and raised in Hong Kong, and had no ties to mainland China, the home country of the applicant. Also that he maintained that he was unfamiliar with the language, culture, and customs of China. In the second case, Matter of P-Y-K-, ID #639671 (AAO Oct. 31, 2017), the AAO favorably balanced on the side of the applicant the negative factors on discretion of fraud or misrepresentation when procuring a nonimmigrant visa and subsequently entering the United States, the applicant’s failure to depart pursuant to a voluntary departure in 1987, her deportation order in 1993 (which we had previously reopened and terminated), and periods of unlawful presence and employment in the U. S. against a showing of many factors including her son’s service in the Armed Forces of the U. S. 

The full decisions can be read here: Matter of L-C-, and Matter of P-Y-K-.

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.

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

President Trump’s ending of the DACA (Deferred Action for Childhood Arrivals) program on September 5, 2017, was hardhearted in act and tone. Given a choice between fighting to preserve the program in court against an alliance of 9 attorney generals threatening to sue to end the program or caving in to his Attorney General Jeffrey Sessions who would not defend against a suit and pressure from his white nationalist base, Mr. Trump chose the latter. Although the ending of the program provides 6 months for Congress to pass legislation to save the Dreamers and work permission (those expiring by March 5, 2018, have one month until October 5, 2017, to apply for a new two-year permit), Mr. Trump clearly put the onus on Congress. His later day vacillating tweet that if Congress could not legalize DACA in 6 months, “I will revisit this issue!” appeared to be another of his empty threats as he already gave up his authority to continue the program. It remains to be seen how enthusiastic he will be in fighting for saving legislation, but early indications are that he will do little for the Dreamers. Instead of conciliatory expressions of regret and hope, the President took the opportunity to slam former President Obama for creating the program through executive authority; emphasized that he stands by his “America First” agenda; stated that “We must also have heart and compassion for unemployed, struggling and forgotten Americans”; called the program an “amnesty first approach”; and his press secretary Sarah Huckabee Sanders said that Mr. Trump would support Dreamer legislation, as long as Congress passed it as part of a broader immigration overhaul to strengthen the border, protect American jobs and enhance enforcement.

In other words, the chances of Dreamer legislation passing unscathed and alone are not good as the Republicans can be relied upon to hold the bill hostage for other items on their anti-immigration wish list. Mr. Trump himself in his official statement on the ending of DACA put forth his views:

Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers, and job seekers.

Congress now has the opportunity to advance responsible immigration reform that puts American jobs and American security first. We are facing the symptom of a larger problem, illegal immigration, along with the many other chronic immigration problems Washington has left unsolved. We must reform our green card system, which now favors low skilled immigration and puts immense strain on U. S. taxpayers. We must base future immigration on merit – we want those coming into the country to be able to support themselves financially, to contribute to our economy, and to love our country and the values it stands for. Under a merit-based system, citizens will enjoy higher employment, rising wages, and a stronger middle class. Senators Tom Cotton and David Purdue have introduced the RAISE Act, which would establish this merit-based system and produce lasting gains for the American People.

The RAISE legislation would chop off family-based immigration for parents of U. S. citizens, adult children of U. S. citizens and permanent residents, and brothers and sisters of U. S. citizens, as well as terminate the visa lottery program. Its effect would be to lower U. S. legal immigration by half within 10 years.

There is less incentive for Congress to act within the 6 months because of Mr. Trump’s vacillating tweet. Democrats would be harder pressed to agree to significant anti-immigration measures given the justification that the President would take up the topic again anyway. Mr. Trump can also justify to himself a Pontius Pilate washing of the hands attitude having given his empty threat instead of taking a leadership role and working with Congress to ensure the passage of Dreamer legislation. For without heavy pressure from above, even the heavy to-do list of Congress may stymie the passage of Dreamer relief as Congress must deal with the consequences of Hurricanes Harvey and now Irma, Mr. Trump’s repeated sorties in resurrecting repeal and replace of the ACA, tax legislation, infrastructure spending, and stopgap measures to fund the federal government if a compromise cannot be reached by the end of September.

While expressing great sympathy and empathy with the DACA recipients, immigration proponents and all those opposed to the Trump agenda should look hard to establish the tone for elections in 2018 and 2020. The 2018 midterm elections provide an opportunity to stymie Mr. Trump’s rogue style of governing if one or both houses of Congress can be regained. 2020 presents the chance to rid the nation of his presidency. The difficulty is that while Mr. Trump’s popularity is sagging tremendously according to the polls, many of his supporters decry or say nothing about him in public and vote for him in private. They see the choice as clinging to the lifestyle of conservative and/or center values that they were born with and going with a Pied Piper promising to take them back 20 years ago when their lot was better or looking with horror at a future of liberal values including rebellion against the police and other authorities, gender bending, attacks against the establishment, gay rights, the expansion of blacks and other minorities’ rights, and global trade agreements enhancing the fortunes of many in the nation but not them.

To capture enough votes in this populace, Democrats must go back to center left and not farther to the left. The Party must lower the volume on the left, and Democrats must appear more attuned to the concerns of those in small town America. Statue bashing for one should stop as it leads to confrontation and confuses many who regard the statues only as sign posts to American history. Protest must continue as people must be continually made aware of what is worth fighting for, but unhelpful confrontations like in colleges between students and teachers over professors’ remarks should be de-escalated as they seem to be part of an unwarranted leftist movement against free speech. In the recent cases involving Evergreen State College in Olympia, Washington, and Yale University, the scenario appeared to be the extreme left attacking the moderate left.

Although this must seem antithetical to the instincts of many liberals, many must know in their hearts that their stridency is taken with alarm by many in the center and is anathema to them and to conservatives who wonder what and where their place would be in a nation with such values. As for the Dreamers, one hopes that they will continue to dream and work towards a peaceable nonviolent solution to their status. Acts of violence out of frustration would damn them at a time when they have the sympathy and ear of most Americans.