As the longest federal government shutdown in United States history endures, Law360 discusses how the lack of government funding has impacted the field of business immigration. Although most business immigration processes remain largely unaffected, US Citizenship and Immigration Services, the State Department, the Department of Labor, Customs and Border Protection, and US immigration courts have all felt the strain of the shutdown. To find out more, including Paul Virtue’s comments on the shutdown, read the article here.
Elizabeth Espín Stern, a partner in Mayer Brown's Washington DC office, leads the firm’s Global Mobility & Migration practice, which forms part of the Employment & Benefits group. She is a seasoned veteran, advising on US and global immigration, HR and mobility services. She is consistently ranked as a leading business immigration lawyer by Chambers Global, Chambers USA, Who's Who Legal, The International Who's Who of Business Lawyers, and national and local publications. In addition, she has been named in Best Lawyers in America, Super Lawyers and "Women in Law Awards 2014" by Lawyer Monthly and named one of National Law Journal’s “Outstanding Women Lawyers 2015.” She spearheads Mayer Brown's new global worksite management initiative. This "Global People Solution" offers multinational clients, in a variety of sectors including financial services, IT, defense, telecommunications and multimedia, a comprehensive compliance and risk management program in connection with their mobile workforce. Liz regularly speaks and writes about immigration policies and contributes to major news agencies and publications, including Law 360, Quartz.com, Global Business News and a host of global HR publications.
In an article appearing in Law360, Lisa Pino offers expert analysis on the key points from USCIS’s new Notice to Appear (“NTA”) policy. In the article, Pino notes that although the new NTA policy does not currently impact employment-based petitions, it nevertheless “is of concern to unauthorized immigrants.” Pino writes that “unless applicants seeking immigration benefits are confident that their respective applications will be approved, their chances and risk of facing an NTA and a subsequent deportation proceeding in court have now significantly grown.” Read the article here.
Prime Minister Theresa May’s announcement on October 1, 2018 that Britain will not continue to give EU nationals preferential immigration treatment after Brexit heralded the future of immigration between the EU and Britain. Britain will decide what the immigration requirements are for EU nationals. Speculation on whether Britain will adopt “US-style” visas for travel and work has been considered, and May herself already indicated that waivers of visa requirements may continue on a reciprocal basis with countries (or regions) with which Britain agrees to these requirements.
The principal import of the Prime Minister’s announcement is that after 2020, EU nationals will need to apply for formal admission requirements in advance of moving to Britain, and may also face travel visa or pre-registration requirements. What these requirements will ultimately translate to will depend on continued negotiations and the input of key business sectors and stakeholders such as the Migration Advisory Committee. Continue Reading Theresa May’s October 1 Announcement Heightens Concerns About EU Nationals’ Travel and Work Authorization After Brexit
After eight years as a presidential appointee in the Obama administration, Lisa Pino is tackling immigration change from Washington at Mayer Brown. This Hispanic Executive profile addresses her dynamic career.
On August 17, 2018, Judge John D. Bates of the US District Court for the District of Columbia issued an order granting the government’s motion for a stay pending appeal of the court’s order requiring the Department of Homeland Security (DHS) to begin accepting applications for initial grants of DACA benefits and for advance parole under the DACA program. As discussed in Mayer Brown’s Alert regarding the order, the court, in line with other courts that have reviewed the issue, did not grant the government’s motion with regard to applications for renewal of DACA benefits, which DHS must continue to accept.
On Tuesday, June 19, 2018, President Donald Trump told House Republicans to send him a compromise immigration bill to address border security and other key issues. Within less than 24 hours, in a move designed to stave off the continued public outcry over the separation of children from migrant parents detained at the southern border, on June 20 the president signed an executive order, “Affording Congress an Opportunity to Address Family Separation.” The executive order states that officials will continue to prosecute everyone who crosses the border illegally but will find or build facilities to hold families together while the parents’ cases are considered by the courts.
Zero Tolerance Policy Reiterated
The president indicated the border will be “just as tough,” with borders “very strong,” but families will no longer be separated. In a news conference where he was flanked by Vice President Mike Pence and Secretary of Homeland Security Kirstjen Nielsen, President Trump indicated, “We are keeping a very powerful border and it continues to be a zero tolerance.” The executive order similarly reiterates the administration’s hard-line policy to detain any adults entering the country illegally, a policy that, according to statistics released on June 19, has led to the separation of more than 2,300 children from their parents. As stated in the order:
On May 10, 2018, USCIS issued a Policy Memorandum entitled “Accrual of Unlawful Presence and f, J, and M Nonimmigrants,” providing new guidance to USCIS officers in the calculation of unlawful presence of students, vocational students, and exchange visitors who remain in the US beyond their authorized period of stay. The Memo is a departure from policy guidance put in place more than 20 years ago. To make sense of the new policy, Forbes turned to Mayer Brown’s Paul Virtue, who, in 1997, authored the “Virtue Memo” when he served as Executive Associate Commissioner for Programs of the Immigration and Naturalization Service (INS). The Virtue Memo established the government’s interpretation of unlawful presence which has been adopted and applied ever since. The new Memo reinterprets how USCIS officials should calculate unlawful presence for F-1, J-1, and M visa holders, as well as their dependent family members.
In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s. These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).
Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program or otherwise violate the terms of their status. Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States. The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”
An article in Law360 outlines the key items addressed in the Trump administration’s spring 2018 regulatory agenda, which was made available to the public in early May 2018. Topics on the list include structural changes to the Executive Office for Immigration Review, the office within the US Department of Justice that oversees US immigration courts; changes to the EB-5 investor visa program, including increasing the minimum investment amount from $500,000 to $1.35 million; and rescission of the International Entrepreneur Rule (“IER”), a program implemented during the Obama administration to grant parole to entrepreneurs seeking to establish and build startup businesses in the United States.
The article can be read here.
On Wednesday, April 25, 2018, the US Supreme Court will hear argument in Trump v. Hawaii. Mayer Brown’s Legal Update provides background on this challenge to the third in a series of travel bans issued by President Trump and summarizes the questions before the Court in this final oral argument of its current term.