In the News at ABIL

Posted on: February 28th, 2018
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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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DOJ Announces End to Use of Civil Enforcement Authority to Enforce Agency Guidance Documents

As a follow-up to a memorandum issued by Attorney General Jeff Sessions in November 2017, the Office of the Associate Attorney General announced a new policy on January 25, 2018, that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. Under the DOJ’s new policy, agency civil litigators are prohibited from using guidance documents, or noncompliance with guidance documents, to establish violations of law in affirmative civil enforcement actions. The November memo prohibits the DOJ from issuing guidance documents that have the effect of adopting new regulatory requirements or amendments to the law that are binding on persons or entities outside the Executive Branch. The memo prevents the agency “from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents,” a DOJ announcement said. “Although guidance documents can be helpful in educating the public about already existing law, they do not have the binding force or effect of law and should not be used as a substitute for rulemaking,” Associate Attorney General Rachel Brand said. The announcement is at https://www.justice.gov/opa/pr/associate-attorney-general-brandannounces-end-use-civil-enforcement-authority-enforce-agency . The November memo is at https://www.justice.gov/opa/press-release/file/1012271/download.
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CBP Issues Guidance on Border Searches of Electronic Devices

U.S. Customs and Border Protection (CBP) issued a memorandum on January 4, 2018, providing guidance and standard operating procedures for border searches of electronic devices. The guidance applies to “searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media, disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices subject to inbound and outbound border searches” by CBP. Among other things, the memo states that border searches of electronic devices may include searches of the information stored on a device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include “an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely.” The memo includes procedures for handling material identified as protected by attorney-client privilege or attorney work product, and other sensitive information such as medical records, journalist work, and business or commercial information. The memo states that if presented with an electronic device containing information that is protected by a passcode or encryption or other security mechanism, a CBP officer may request and retain passcodes or other means of access as needed to facilitate the examination of an electronic device or information contained on an electronic device, including information on the device that is accessible through software applications present on the device that is being inspected or has been detained, seized, or retained in accordance with the memo. Passcodes and other means of access obtained during the course of a border inspection “will only be utilized to facilitate the inspection of devices” and information subject to border search “will be deleted or destroyed when no longer needed to facilitate the search of a given device, and may not be utilized to access information that is only stored remotely,” the memo states. If an officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the officer may “detain the device pending a determination as to its admissibility, exclusion, or other disposition,” the memo notes. The memo is at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBPDirective-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf.
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USCIS Releases Guidance on L-1 Relationships and Proxy Votes

A recent policy memorandum from U.S. Citizenship and Immigration Services (USCIS) clarifies a 1982 precedent decision, Matter of Hughes, by instructing officers that proxy votes must be irrevocable from the time of filing the L-1 petition through adjudication to establish a qualifying relationship. The petitioner must file an amended petition if any changes of ownership and control of the organization occur after USCIS adjudicates the petition. The memo notes that although Matter of Hughes focused on joint venture scenarios, issues of ownership and control can arise in other circumstances. Specifically, owners of entities often use proxy votes to determine control of the entity. In typical proxy voting cases, a person is authorized to vote equity owned by another. Neither Matter of Hughes nor previous USCIS guidance have addressed whether proxy votes must be irrevocable to establish control, the memo states. The fact that proxies may be revoked is an issue when establishing control of a company through proxy votes, the memo notes. A petitioner can show control by submitting documentation demonstrating that one or more equity holders irrevocably granted the ability to vote their equity to another equity holder, thereby effectively (and legally) giving the other equity holder “control” over the company or companies in question. The memo notes that such documentation may include relevant evidence regarding the legal framework under which the proxy was granted (such as the laws of the jurisdiction in which the entity is organized and the jurisdiction in which any agreements were executed), the organizational documents of the entity, irrevocable proxy agreements, official meeting minutes detailing the irrevocable proxy, and an affidavit from the proxy-granting equity holder with sufficient specificity regarding the details of the irrevocable proxy. As always, the memo states, the petitioner bears the burden of proof and the evidence the petitioner provides must be credible and sufficient for the adjudicator to determine eligibility. “If a petitioner cannot demonstrate the requisite common ownership and control from the time of filing through the time USCIS adjudicates the petition, it fails to establish a qualifying relationship,” the memo states. “Further, changes of ownership and control of the organization post-adjudication may constitute a substantial change in circumstances or new material information requiring re-adjudication by USCIS to ensure compliance with the regulations. In such cases, the petitioner must file an amended L-1 petition.” The memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017- 12-29-PM-602-0155-L-1-Qualifying-Relationships-and-Proxy-Votes.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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