In the News at ABIL

Posted on: August 9th, 2017
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Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

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Effects of Increased Enforcement, Security, Nationalism on Immigration Law: An Overview

 

This article provides an overview of recent developments in several countries with respect to increases in enforcement, security measures, and nationalism.

 

Canada

The election of Donald J. Trump as the 45th President of the United States and the hostile political climate that has ensued in relation to immigration issues has had a significant impact on Canadian immigration. The initial enforcement of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” has significantly affected the seven countries named in the ban. Many citizens of these countries living in the United States, fearful for their future, have turned to Canada as an alternative. Canadian immigration lawyers have witnessed an increase in the interest of highly skilled individuals living and working in the United States in relocating to Canada.

The interest in Canada has also increased due to the temporary pause in the issuance of H-1B visas in the United States, effective April 3, 2017. This is in stark contrast with the recent commitment of Immigration, Refugees and Citizenship Canada (IRCC) to faster processing times for work permits for highly skilled workers. It remains to be seen whether Canada will seize this opportunity to attract more foreign talent. It is interesting to note that this political climate in the United States coincides with Canada’s Express Entry selection system inviting the highest number of candidates to apply for Canadian permanent residence since the program began on January 1, 2015.

President Trump’s election has also been a trigger for individuals to cross the border into Canada to make refugee claims. In light of the Safe Third Country Agreement between Canada and the United States, which stipulates that individuals must make a refugee claim in the first country in which they land, many individuals in the United States have been illegally crossing the border to avoid being caught under the agreement (which only applies at official ports of entry). Although the exact numbers of individuals making refugee claims in Canada is not known, the increase is significant and has captured the attention of news outlets across Canada. Available statistics indicate that the number of asylum seekers intercepted at the border in the first two months of 2017 is equal to approximately half of the total number of asylum seekers intercepted in all of 2016. As the weather warms up in Canada, it is expected that even more individuals will be making their way to Canada, thus putting more and more pressure on Canadian Border Service Agency officers to monitor borders and guide asylum seekers in making refugee claims.

 

Italy

On April 12, 2017, the Italian Parliament approved measures to accelerate asylum procedures, boost repatriation of undocumented migrants, and speed up deportations of those whose asylum requests have been rejected.

The Law Decree 17 February 2017, n. 13, signed into law on April 12 (the so-called Minniti-Orlando immigration law, named after its promoters), introduces several new provisions designed to streamline the processing of asylum requests as well as the deportations of those whose requests are rejected.

Under the new rules:

One of the two levels in the Italian court system to which asylum seekers can currently appeal in case of rejection is cancelled, and the deadline for submitting such a request is set to 1 month. As a result, an asylum ruling can now be appealed only once instead of twice. However, the right to appeal to Italy’s Supreme Court of Cassation (Corte Suprema di Cassazione) remains in place. Twenty-six new sections in courts across the country are created, specialized in immigration.

Two hundred and fifty people are to be recruited in the next two years to work on public committees specialized in dealing with asylum requests, with the purpose of strengthening the committees assessing the applications and ensuring faster processing times.

Asylum seekers hosted in reception centers will be registered as residents with the local municipalities and may choose to take part in volunteer or community service work.

Identification and expulsion centers (Centri di Identificazione ed Espulsione [CIE]) across Italy are increased in number and become “holding centres for repatriation” (Centri di permanenza per il rimpatrio [CPR]), each with a capacity not exceeding 150 people, with a total of 1,600 persons, located near major transport infrastructures.

Summary judgment for expulsion measures is directed to those considered a threat to public health or security and for prevention of terrorism.

Illegal immigration is countered with an electronic information system (Sistema Informativo Automatizzato [SIA], connected with the Schengen Information System).

Repatriations will occur faster due to cooperation with home countries through bilateral agreements.

The new provisions do not apply to unaccompanied minor migrants for whom a specific law was recently approved (Law 7 April 2017, n. 47). That law introduces a series of provisions to ensure comprehensive protection for unaccompanied foreign children by means of an effective system guaranteeing legal and health assistance, accurate age assessment, standards for reception centers and child facilities, and support for integration of children.

United States

Scrutiny has increased at U.S. consulates and ports of entry. Following the injunction on enforcement of President Trump’s revised travel ban, U.S. Secretary of State Rex Tillerson issued diplomatic cables on March 17, 2017, directing all U.S. consular posts to increase scrutiny of visa applications and applicants for security threats. U.S. consular officers are expected to ask more detailed questions about applicants’ backgrounds. Consular officers also must refer applicants to the Fraud Prevention Unit for mandatory social media history checks if they were present in an area when it was controlled by the “Islamic State” (ISIS) or if the officer determines that an applicant may have ties to ISIS or other terrorist groups. This directive has caused a slowdown in visa issuance and an increase in visa denials.

Once a person is issued a visa or is traveling without a visa under the U.S. Electronic System for Travel Authorization (ESTA) program, U.S. Customs and Border Protection (CBP) has been reported to have increased scrutiny and raised the usual lines of questioning, specifically for business travelers and those entering on U.S. work visas. Travelers under the Visa Waiver Program should be prepared for questioning if a CBP immigration inspector determines that they have not been previously interviewed and sufficiently vetted before traveling.

Also, President Trump signed the “Buy American and Hire American” Executive Order on April 18, 2017. The order sets forth his administration’s policy to “maximize…the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”

The “Hire American” portion of the order calls on the U.S. Secretaries of State, Labor, and Homeland Security and the Attorney General to “propose new rules and issue new guidance to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

Specifically, the agencies are directed to “suggest reforms to help ensure that H-1B Specialty Occupation Nonimmigrant Visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

In addition to directing agencies to consider changes in the H-1B lottery system, the Executive Order also calls for rigorous enforcement of U.S. immigration laws. Immigration attorneys have already seen an increase in the rate of requests for further evidence issued by U.S. Citizenship & Immigration Services (USCIS). Such requests may challenge the nature of the position offered—for example, whether it is a “specialty occupation” that normally requires a bachelor’s degree or higher in a specific specialty field—and question the individual’s qualifications for employment in the specialty field. Specific areas of scrutiny include entry-level computer programmers and analysts, as well as staffing companies and foreign workers involved in “third party placement,” which is when the usual place of activity is at a client site rather than the employer’s premises. This trend is likely to continue as USCIS and other agencies move forward in implementation of the new administration’s enforcement-driven policies.

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Ten States Demand End of DACA

Republican officials from 10 states, led by Texas Attorney General Ken Paxton, sent a letter to the Department of Justice threatening further legal action if the Deferred Action for Childhood Arrivals (DACA) program is not ended. That program, instituted by President Obama in 2012, allows undocumented immigrants, called “DREAMers,” who grew up in the United States to stay in the country and obtain work authorization. Signers included officials from Alabama, Arkansas, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, Texas, and West Virginia. The letter states that the original 2012 DACA memorandum is “unlawful” because DACA “unilaterally confers eligibility for work authorization…and lawful presence without any statutory authorization from Congress.” The letter, sent to Jeff Sessions, U.S. Attorney General, asks that DACA be phased out, that the 2012 memorandum be rescinded, and that DACA or Expanded DACA permits not be renewed or issued in the future. The letter asks the Trump administration to agree by September 5, 2017, to rescind the 2012 DACA memorandum and not to renew or issue any new such permits in the future, to avoid further legal action.

The states with the most DACA applicants are California, which reportedly has received an estimated 387,000DACA applications or renewals and approved 359,000 as of August 2016, and Texas, which has received more that 220,000 such applications and approved nearly 200,000 in the same time frame.

Reaction from DACA advocates was swift and intense. Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), said his organization “condemns in the strongest terms each of the state officials who joined in threatening the federal administration to repeal DACA.” Accusing the state signatories of “xenophobia” and “mean-spirited stupidity,” he said MALDEF “urges the president not to cave in to the toothless threat in [the] Texas letter. Presidential authority does constitutionally extend to protecting DACA recipients, whom the president has repeatedly declared worthy of protection.

We urge the president to fight to vindicate that authority.” He said MALDEF “takes encouragement from the fact that less than half of the plaintiff states in Texas v. United States joined today’s craven letter. For its part, MALDEF, on behalf of the Jane Doe intervenors whom we represent, will be moving to dismiss the case as moot and not appropriate for the threatened expansion.”

The letter is at http://www.aila.org/infonet/ten-states-sent-letter-to-doj-requesting-end-daca.

MALDEF’s statement is at http://www.maldef.org/news/releases/2017_6_29_MALDEF_Statement_on_Texas_Letter_Demanding_Repeal_of_DACA/.

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USCIS Issues Policy Guidance on H-1B Master’s Degree Cap Exemption

Case U.S. Citizenship and Immigration Services (USCIS) recently published a policy memorandum designating Matter of A-T- as an “Adopted Decision,” which establishes policy that applies to and binds all USCIS employees. “USCIS personnel are directed to follow the reasoning in this decision in similar cases,” the memo states. The decision clarifies that to qualify for an H-1B numerical cap exemption based on a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned. In Matter of A-T- Inc., Adopted Decision 2017-04 (AAO May 23, 2017), the California Service Center director denied the H-1B petition, concluding that the beneficiary did not qualify for the claimed master’s cap exemption because the degree-conferring institution was not accredited when it awarded the beneficiary’s master’s degree. The petitioner asserted that a master’s degree does not need to be from a U.S. institution of higher education when the degree is awarded to qualify for the master’s cap exemption, but rather that a beneficiary may qualify for the exemption if he or she earned a degree from an entity that qualified as a U.S. institution of higher education at the time of adjudication. The Administrative Appeals Office (AAO) disagreed, noting that the degree must have been earned from an institution that has either been accredited or granted preaccreditation status. Among other things, the AAO noted that if a beneficiary could qualify for the master’s cap exemption based on accreditation or preaccreditation that happens long after the degree was earned, this would not necessarily reflect the quality of the beneficiary’s education. Conversely, the beneficiary subsequently could become ineligible for the exemption if the institution ended up not being accredited. Thus, the AAO noted, the petitioner’s proffered interpretation introduces uncertainty for graduates seeking immigration benefits over time. In contrast, the AAO said, under its interpretation, an individual who earns a degree from an accredited or preaccredited institution may continue to qualify for the master’s cap exemption even if the institution later closes or loses its accreditation status. Therefore, the AAO said it interprets the statute as requiring that the institution’s qualifications be established at the time the degree is earned, and the date the beneficiary earned his master’s degree is critical. The USCIS policy memorandum is at https://www.uscis.gov/sites/default/files/files/nativedocuments/APPROVED_PM-602- 0145_Matter_of_A-T-_Inc_Adopted_Decision.pdf.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

 

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