In the News at ABIL

Posted on: January 24th, 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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ABIL Commentary: Threats, Opportunities for Employers in 2018

After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL) shared their thoughts on what employers can expect in 2018. Below is a summary of their responses and reports from the field.

Where Things Stand Now

The Trump administration appears to be attempting to keep various campaign promises on immigration and border enforcement that mesh with the President’s (and his supporters’) overall dim view of foreign people entering the United States. Before he was elected, President Trump made a wide range of anti-immigration promises couched in national security terms. Those promises included, among other things, building a massive wall along the southern border and making Mexico pay for it; immediately deporting undocumented migrants; barring Muslims from entering the United States; “extreme vetting” of immigrants; and creating a “deportation force.” The President has waffled on Deferred Action for Childhood Arrivals (DACA) “Dreamers,” verbally expressing his support and understanding of their plight and then canceling the DACA program with an exhortation for Congress to handle it.

Executive orders issued since his inauguration have included various entry/travel bans, limits on refugees, and threats to sanctuary cities to pull their federal funding. The first travel ban on people entering from several predominantly Muslim countries was announced seven days after his inauguration with no apparent advance process, discussion, preparation, warning, or guidance to the Department of Homeland Security. The result was chaos and protests at airports. Various court challenges and subsequent travel bans ensued.

Arrests for “noncriminal immigration violators” are up, with 31,888 noncriminal arrests during the first eight months of the Trump administration, according to U.S. Customs and Immigration Enforcement. On the other hand, deportations have actually decreased by about 14,000 this year, reports say, but Attorney General Jeff Sessions has called for a “concerted effort” by immigration courts to speed up processing of pending immigration cases.

Concerns for 2018

Current concerns for 2018 include:

  • Animosity of the administration toward immigrants: “This is leaching into all areas of USCIS adjudications and the attitude of [U.S. Customs and Border Patrol agents toward] travelers with a bona fide legal basis for entry,” one attorney reported. “They will do as they please right now until challenged,” said another.
  • Creeping arbitrariness and unpredictability: Attorneys report clients being held up at the border or turned away in some cases due to considerations that do not seem to be based in law or regulation. Denials are being issued in some cases filed by employers on behalf of professionals that previously would have been considered routine. Some agents of the federal government appear to believe it is now open season on cracking down, and to be acting accordingly. Officers are no longer required to defer to previous decisions when extensions are requested. An attorney reported an example of such decision-making: a “perfectly clean” request for a three-year L-1 worker was approved without an RFE for one year because “she is an employee at will, so only one year is allowed.” Another attorney reported similar treatment for Trade NAFTA clients at certain ports of entry. A third attorney said, “To me the top threat is something that affects everything we do—it is the sense (which is not universal but permeates the ranks) inside [the Departments of Homeland Security and State] that they have impunity and are not bound by the rule of law. Unless and until employers adopt a long-term view and sue—as opposed to the short-term approach of just refiling and hoping for a better result—the agencies are right.”
  • More and more demands for additional documents, interviews, and requests for evidence (RFEs): Among other things, U.S. Citizenship and Immigration Services (USCIS) is reportedly considering mandatory interviews for all applications to renew or replace green cards (Forms I-90). Interviews for petitions to remove conditions on residence for certain married couples (I-751) are already a “nightmare.” USCIS is phasing in interviews for adjustment of status applications based on employment, including for some who have already filed their applications. Executive orders are requiring visa applications and adjudications to be reviewed for compliance with “extreme vetting” and “Buy American/Hire American” policies, for both initial petitions and extensions. There has been a sharp uptick (45% compared to last year, according to USCIS) in RFEs on H-1B visa petitions for skilled workers.
  • Massive backlogs and delays in applications and petitions increasing as a result of the greater scrutiny, in some cases leading to disruptions in travel, work, and study plans.
  • Attorneys’ fees increasing as a result of the additional work.
  • An overall “brain drain” and reduction in quality employees as immigration decreases, deportations increase, and more and more people leave the United States for Canada or other countries perceived to be friendlier to immigration, or never apply to enter the United States in the first place.
  • Arbitrary caps on H-2B workers and lack of a returning worker exemption.
  • A lack of visa categories for unskilled workers who are not temporary (which constitutes about 75% of the entire workforce).
  • Denials of advance parole renewal requests filed by green card applicants if they leave the country.
  • Stress on employers as they find it harder to fill important positions in a timely manner or are accused of not wanting to hire U.S. workers when in some cases there are simply not enough U.S. workers qualified and available to take the jobs.
  • Stress on clients, including would-be immigrants and their families; family separation; stress on attorneys.
  • Travel restrictions on people from certain countries based on a new ban issued in September that the Supreme Court allowed to be put into effect while appeals run their course.
  • Ending temporary protected status for some (e.g., Nicaraguans and Haitians), and making it harder to designate or extend such status in the future.
  • A planned removal of the regulation allowing certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization documents (EADs), with a notice of proposed rulemaking scheduled for February 2018. This is expected to result in lost filing fees and labor turnover costs for employers with workers on H-4 EADs.
  • A proposed electronic registration program for H-1B petitions subject to numerical restrictions, with a notice of proposed rulemaking considered for February 2018, along with possible further restrictions on H-1B visas.
  • A proposal to make it more difficult to obtain a J-1 waiver.
  • Privacy issues: As of the middle of fiscal year 2017, approximately 30,000 travelers had their electronic devices searched at the border or at ports of entry. This was three times the number searched in 2015.

Future Concerns

In addition to those noted above, future concerns include:

  • A planned revision (not yet described) of the definition of Specialty Occupation for H-1B workers and additional requirements for H-1B wages, with a notice of proposed rulemaking scheduled for October 2018.
  • Proposed new requirements for F and M students with respect to the practical training period, to include increased oversight of schools and participating students, with a notice of proposed rulemaking scheduled for October 2018.

Hopeful Signs

Although no one has a crystal ball and things look bleak overall for the foreseeable future on the immigration front, there are a few positive indications on the horizon. For example, according to reports, after conferring with President Trump, leaders in Congress are seriously considering introducing a measure in January 2018 to allow DACA “Dreamers” to stay in the United States. As of September 4, 2017, there were 689,821 people with valid DACA status in the country. Sen. Lindsey Graham (R-SC) was quoted in late December following a meeting with President Trump: “He wants to make a deal. He wants to fix the entire system.”

Also reportedly under serious consideration is meaningful EB-5 reform legislation, such as the Fairness for High-Skilled Immigrants Act, which would allow some EB-5 investors to obtain immigrant visas more quickly because their place in the waiting line would no longer depend on the nation of chargeability. And USCIS began accepting applications again under the International Entrepreneur Rule in December, albeit temporarily while the agency drafts a notice of proposed rulemaking to quash it permanently.

Otherwise, some court challenges are either already working their way through the system (e.g., on the latest travel ban) or may be filed in the future.

Recommendations

In general, ABIL recommends that employers and employees consider:

  • Allowing much more time than before for the application/petition process. Posted processing times are not reliable. Several additional months may be required if there is an RFE or an unanticipated additional security check or other problem.
  • Filing a mandamus action in federal court to compel the agency to act if a case experiences extreme processing delays.
  • Not leaving the United States in the short term if status is in any way uncertain.
  • Contacting your ABIL attorney for advice and help in specific situations.

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DHS Implements New VWP Security Measures

Secretary of Homeland Security Kirstjen M. Nielsen announced on December 15, 2017, that the Department of Homeland Security (DHS), in consultation with the Department of State and other federal agencies, is implementing new security requirements for the Visa Waiver Program (VWP). VWP allows citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Each year, the United States allows more than 20 million visitors to travel to the United States under the VWP.

The new measures include requiring VWP countries “to use counterterrorism information to better screen travelers,” assessing VWP countries “to ensure they implement safeguards against the aviation sector,” and requiring certain VWP countries “to initiate public information campaigns to reduce overstays.”

Specifically, DHS is introducing the following measures applicable to all countries in the VWP:

  • Requiring VWP countries to fully implement existing information-sharing arrangements by systematically screening travelers crossing their borders against U.S. counterterrorism information;
  • Assessing VWP countries on the effectiveness of safeguards against insider threats in the aviation security environment; and
  • Requiring VWP countries having a two percent or greater rate of business or tourism nonimmigrant visitors overstaying the terms of their admission into the United States to initiate a public information campaign to reduce overstay violations by educating their nationals on the conditions for admission into the United States.

DHS reportedly said that Hungary, Greece, Portugal, and San Marino will launch public campaigns to inform their citizens because two percent of travelers from those countries overstayed their terms of admission.

DHS is also asking Congress to codify existing VWP requirements to bolster efforts in the following areas:

  • Reporting of foreign terrorist fighter information to multilateral organizations, such as INTERPOL and EUROPOL;
  • Systematically collecting and analyzing passenger travel data (Advance Passenger Information/Passenger Name Records); and
  • Concluding arrangements to permit U.S. Federal Air Marshals to operate onboard U.S. air carriers for last point of departure flights to the United States.

As part of its regular cooperation with VWP countries, DHS said it “will develop targeted engagement plans to support implementation of these measures.” DHS has assessed that these security enhancements will not hinder lawful trade and travel. Qualified nationals will continue to be able to travel to the United States under the VWP, DHS noted.

DHS also said that travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, Syria, Libya, Somalia, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country); and
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

In addition, travelers must have an e-passport to use the VWP. An e-passport is an enhanced secure passport with an embedded electronic chip. An e-passport is readily identified by a unique international symbol on the cover.

DHS Secretary Nielsen’s statement is at https://www.dhs.gov/news/2017/12/15/secretary-kirstjen-nielsen-announces-targeted-security-enhancements-visa-waiver. Additional information on the VWP, including a list of participating countries, is at https://www.dhs.gov/visa-waiver-program-requirements.
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USCIS Announces Restrictions on TN Economist Status

U.S. Citizenship and Immigration Services (USCIS) recently published policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for Trade NAFTA (TN) nonimmigrant status as an economist. The policy guidance states that financial analysts, marketing analysts, and market research analysts are not eligible for classification as a TN economist.

North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the United States to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, which USCIS said has resulted in inconsistent decisions about whether certain analysts and financial professionals qualify for TN status as economists.

USCIS said the new policy is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations, USCIS said.

With respect to the occupation of financial analyst, USCIS said it recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts “primarily conduct quantitative analyses of information affecting investment programs of public or private institutions,” USCIS said. Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS said it is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA.

Some attorneys warn that TN Economists—even those who were previously approved—could experience increased scrutiny when returning to the United States. Strategies may include arguing that a position meets the definition of an economist, amending the position description, avoiding international travel, or considering nonimmigrant alternatives. Contact your Alliance of Business Immigration Lawyers attorney for advice in specific situations.

The USCIS policy memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-1120-PM-602-0153_-TN-Economists.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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