In the News at ABIL

Posted on: December 21st, 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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DHS Announces Delayed Termination of TPS for Nicaragua, Six-Month Extension for Honduras

Acting Secretary of Homeland Security Elaine Duke announced on November 6, 2017, her decision to terminate the temporary protected status (TPS) designation for Nicaragua with a delayed effective date of 12 months to allow for an orderly transition before the designation terminates on January 5, 2019. She also determined that additional information is necessary regarding the TPS designation for Honduras before a determination can be made. As a result, the TPS designation for Honduras will be automatically extended for 6 months from the current January 5, 2018, expiration date to July 5, 2018.

The Department of Homeland Security (DHS) said the decision to terminate TPS for Nicaragua was made after a review of the conditions on which the country’s original 1999 designation were based and whether those “substantial but temporary” conditions prevented Nicaragua from adequately handling the return of its nationals. Based on all available information, Acting Secretary Duke determined that those substantial but temporary conditions caused in Nicaragua by Hurricane Mitch no longer exist, and thus the current TPS designation must be terminated.

DHS said that the 12-month delay in the TPS expiration for Nicaragua “will provide time for individuals with TPS to seek an alternative lawful immigration status in the United States, if eligible, or, if necessary, arrange for their departure. It will also provide time for Nicaragua to prepare for the return and reintegration of their citizens.”

Regarding Honduras, Acting Secretary Duke said she concluded that despite receiving input from a broad spectrum of sources, additional time is necessary to obtain and assess supplemental information pertaining to country conditions in Honduras to make an “appropriately deliberative” TPS designation determination. Based on the lack of definitive information regarding conditions on the ground compared to pre-Hurricane Mitch, the Acting Secretary has not made a determination yet, thereby automatically extending the current TPS designation for Honduras for six months.

DHS noted, however, that it is possible that the TPS designation for Honduras will be terminated at the end of the 6-month automatic extension “with an appropriate delay.”

DHS said that it recognizes the difficulty facing citizens of Nicaragua, “and potentially citizens of other countries,” who have received TPS designation for “close to two decades.” Acting Secretary Duke called on Congress “to enact a permanent solution for this inherently temporary program.”

Nicaraguans and Hondurans with TPS will be required to reapply for employment authorization documents to legally work in the United States until the end of their TPS extensions. Further details will appear in a Federal Register notice, DHS said.

The announcement is at https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-dukeannouncement-temporary-protected-status-nicaragua-and.

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USCIS Designates Adopted Decisions Defining Affected Parties, Function Managers

U.S. Citizenship and Immigration Services (USCIS) has designated two Administrative Appeals Office (AAO) decisions as Adopted Decisions.

Matter of V-S-G Inc. (AAO Nov. 11, 2017), Adopted Decision 2017-06. This decision clarifies that beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers (“port”) and who have properly requested to do so under INA § 204(j) are “affected parties” under Department of Homeland Security regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings.

The USCIS memorandum notes that other kinds of visa petition beneficiaries, and the subsequent employers of beneficiaries who have ported or sought to port, are not affected parties under DHS regulations and may not participate in visa revocation proceedings.

The AAO decision states that it “settles a tension between longstanding agency regulations and subsequent developments in the law regarding who is a cognizable party to a Form I-140, Immigrant Petition for Alien Worker.” The decision notes that traditionally, the applicant or petitioner is the only recognized party to a proceeding; that is, the beneficiary of a petition generally does not have the ability to participate in the immigration proceeding initiated by the petitioner. The decision sets forth a scenario in which an I-140 beneficiary may become a recognized party in certain limited circumstances in light of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and one of its amendments. In so doing, the decision explains the current USCIS interpretation of applicable regulations to allow such a beneficiary to participate in relevant administrative proceedings.

The decision concludes:

Because we find that beneficiaries who are eligible to port and properly request to port under AC21 are within the statute’s zone of interests, USCIS interprets that statute as requiring a change in the agency’s historical interpretation of the applicable DHS regulations. Our new interpretation is to treat these beneficiaries as affected parties who may participate in revocation proceedings related to their underlying immigrant visa petitions. Because the Beneficiary in this case, who is eligible to port and properly requested to port in compliance with the requirements under AC21, did not have an opportunity to so participate, we will reopen these proceedings and reinstate the Form I140 immigrant visa petition relating to the Beneficiary and remand these proceedings to the Director, who must afford the Beneficiary an opportunity to respond to any future [Notice of Intent to Revoke] related to this I-140 petition. Should the Director thereafter revoke the immigrant petition’s approval, the Beneficiary may appeal or file a motion to reopen or reconsider from the revocation or he may participate in proceedings arising from an appeal or motion filed by the Petitioner relating to this petition.

Matter of G- Inc. (AAO Nov. 8, 2017), Adopted Decision 2017-05. This decision provides important guidance to U.S. employers who transfer “function managers” (those who primarily manage essential functions rather than people) under the L-1 intracompany visa. A USCIS memorandum explaining the adoption of this decision notes:

Matter of G- Inc. clarifies that, to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is “essential,” i.e., core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations. The

Matter of V-S-G- memorandum and decision are at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-11-11-PM-602- 0149-Matter-of-V-S-G-Inc.-Adopted-Decision.pdf. The Matter of G- memorandum and decision are at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/APPROVED_PM602-0148_Matter_of_G-_Inc._Adopted_AAO_Decision.pdf. Commentary on Matter of G- is at http://bit.ly/2Bgl3p3.

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USCIS Warns About Scams Requesting I-9 Forms Via Email

U.S. Citizenship and Immigration Services (USCIS) recently announced that employers have received scam emails requesting Form I-9, Employment Eligibility Verification, information. The emails claim to come from USCIS but do not. Employers are not required to submit Forms I-9 to USCIS but must retain them for a period of time.

USCIS said that the scam emails have been coming from a fraudulent email address: news@uscis.gov. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address, and a fraudulent download link to a non-government web address (uscis-online.org). “Do not respond to these emails or click the links in them,” USCIS warned.

Those who believe they received a scam email requesting I-9 information from USCIS may report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/GettingStarted?OrgCode=USDOEVCC&NextQID=261#cr nt. Those who are uncertain may forward the suspicious email to the USCIS webmaster, uscis.webmaster@uscis.dhs.gov. USCIS “will review the emails received and share with law enforcement agencies as appropriate.” USCIS scam alerts and related resources are at https://www.uscis.gov/avoid-scams/commonscams.

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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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