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Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April.  This year, employers must also monitor for potential regulatory changes to the filing process.  On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.”  The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings.  While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.

The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.

US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association.  The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:

Continue Reading Impact of Proposed H-1B Rule on Annual Cap Filings

Applying for a Visa

In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category.  Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly frustrated with the shift in adjudication patterns, new regulations, and changes to specific immigration categories and benefits.  For more on what’s in store in the new year, read the article.

According to a Financial Post article, US Customs and Border Protection (“CBP”) permanently barred a Vancouver man with ties to the marijuana industry from entering the United States on November 14, 2018.  The individual, who invests in a Canadian cannabis business, was traveling from Vancouver to Las Vegas to attend a cannabis convention and tour a marijuana facility.  According to the article, when CBP learned that the individual “was going down to tour the marijuana facility and that he was an investor in marijuana, they gave him a lifetime ban.”

Under 8 U.S.C. § 1182(a)(2)(C) of the Immigration and Nationality Act, an individual is inadmissible to the United States if they are, or have been, “an illicit trafficker in any controlled substance…or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so.”  While investors in the Canadian marijuana industry are generally admissible to the United States according to a CBP statement revised in October 2018, an individual may be determined to be inadmissible if they are traveling to the United States for reasons related to the marijuana industry.  The Government of Canada’s website reiterates CBP’s inadmissibility warning.

The media has reported news of at least one other cannabis investor receiving the same bar earlier in 2018.

Central American Refugees, South Texas
A district court orders DHS to process all migrants reaching the U.S.-Mexico border, as 7,000 migrants, including women and children, reach Tijuana and San Diego.

A federal judge has barred President Trump’s recent asylum ban, now forcing the administration to accept all migrants crossing the southern border who seek protection, rather than limit asylum requests to U.S. ports of entry. As of last evening, Judge John Tigar of the U.S. District Court of Northern California issued a temporary restraining order that will require the U.S. Customs and Border Patrol to process all individuals crossing the California, Arizona, and Texas border. The bar will remain until a scheduled hearing to be held on December 19, when the judge will revisit the court’s view of a permanent injunction.

The judge’s bar quickly halts the administration’s new rule, and the U.S. Citizenship and Immigration Services’ accompanying policy guidance, which limit asylum pleas to official ports of entry between the United States and Mexico. The administration stated the restriction was necessary to protect U.S. national security from the migrant caravan, as 7,000 migrants, mainly from Honduras, began to arrive in Tijuana over the weekend.

The U.S. district court opinion describes the Congressional intent to offer asylum to all applicants, whether at designated ports of arrival or not, as explicitly cited under 8 U.S.C. § 1158(a)(1) of the Immigration and Nationality Act.

law legal justice

Mayer Brown attorneys, including partner Paul Hughes, filed a lawsuit in the US District Court of the Middle District of North Carolina, challenging the legality of the August 9, 2018 USCIS policy memorandum on the accrual of unlawful presence for F, J, and M visa holders.

If an individual accrues more than 180 days of unlawful presence, she is subject to a 3-year reentry bar. That bar grows to 10 years if the individual is unlawfully present for 365 days or more. Previously, USCIS calculated unlawful presence as beginning the day after an immigration officer or immigration judge determined that the holder of an F, J, or M visa is out of status. That policy provided necessary notice to individuals, providing them an opportunity to cure any status violation prior to the imposition of a reentry bar. This policy has controlled for more than 20 years.

On August 9, USCIS issued a policy memorandum that purports to create a fundamentally different policy regarding unlawful presence. Now, USCIS will backdate unlawful presence, beginning the clock on the date of the factual situation which rendered an individual out of status. Thus, when an immigration officer or judge determines that an individual is out of status, the result is an automatic 3- or 10-year reentry bar if more than 180 days have elapsed from the underlying factual circumstances, which is often the case.

Plaintiffs include Haverford College, The New School, Guilford College, and Foothill-De Anza Community College District, among others.  The universities argue that the revised policy is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes.  The complaint states that now it is “impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”

Read more 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

Red Alert Button
On September 27, USCIS provided live feedback about the agency's implementation plans for a new Notice to Appear policy, which will significantly expand deportation categories. The policy change also places USCIS, the administrative immigration arm of DHS, in the role of enforcer, a function that ICE normally supports.

On September 27, the USCIS Office of Public Engagement hosted a live teleconference to inform the public how the agency will implement its new policy, or policy memorandum (PM), issued on June 28, 2018, “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  The policy aligns USCIS operations with Executive Order 13768: Enhancing Public Safety in the Interior of the United States.

The NTA requires the recipient to appear in court before an immigration judge, and is the first step in removal, or deportation, proceedings. After a brief overview of the new NTA policy, which supersedes previous 2011 USCIS guidance on the same topic, USCIS presented a Q&A series from more than 100 questions received by stakeholders. The USCIS teleconference participants represented a broad spectrum of the agency’s divisions including USCIS Field Operations, Policy, and Office of Chief Counsel.  USCIS also announced that the agency will soon host a public webpage about the new NTA policy implementation, and that information conveyed during the teleconference would soon be available in the USCIS electronic reading room.

The top 10 takeaways of the USCIS teleconference regarding its new NTA policy implementation include the following points: Continue Reading Top 10 NTA Takeaways: USCIS Goes Live to Reveal Implementation Plans of New DHS Deportation Policy

Montage Of Blurred Pedestrians Walking And Several Clock Faces
On September 27, USCIS will reveal how the agency plans to execute its new NTA guidance, which will likely widen the pool of immigrants facing deportation proceedings.

As anticipated by an earlier blog post, and after a couple of months of internal planning, USCIS is ready to announce its implementation plan related to the agency’s new Notice to Appear (NTA) policy guidance.  On Thursday, September 27, Mayer Brown’s Global Mobility and Migration practice will eagerly join a live USCIS teleconference entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”.  The dialogue will enable our attorneys to immediately learn and question how broadly USCIS plans to interpret its upcoming interpretations of NTA guidance that may warrant deportation proceedings.  As previously shared, USCIS officers will soon issue NTAs on a wider range of cases where an individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States. The USCIS teleconference should also share more insight regarding the Department of Homeland Security’s removal priorities per Executive Order 13768, Enhancing Public Safety in the Interior of the United States. More to come from The Mobile Workforce on this topic.

Delay
USCIS delays its implementation of its Notice to Appear policy guidance until further notice. A Notice to Appear is a charging document that initiates the removal, or deportation process.

On July 30, 2018, US Citizenship and Immigration Services announced that it will postpone its June 28, 2018 guidance for the issuance of Notices to Appear (“NTA”) to commence removal proceedings in certain cases.  For the time being, USCIS will delay activating the new NTA policy until the agency determines an implementation plan.  USCIS did not indicate a timeline or date however by which it will publish its NTA operations plan, an agency function traditionally held by US Immigration and Customs Enforcement (“ICE”).

Although USCIS NTAs are on hold until further notice, employers can take practical steps now to prepare for the agency’s transition, specifically by assessing if any of their foreign national employees may be at risk of a potential removal or deportation proceeding.  For example, student employees should have their most current address on file with USCIS in case they receive a Request for Evidence, otherwise they will not be able to respond to USCIS, and could unknowingly receive a NTA if they fail to provide a respond.  Similarly, for employees whose work authorization relies upon a non-immigrant visa category, such as an H-1B visa, employers may renew or extend the non-immigrant status beginning six months in advance of the visa expiration.  Renewing a non-immigrant visa status as early as possible allows both employers and employees more time to respond to Requests for Evidence, or concurrently strategize other immigration options that may be available, and minimize a disruption of work.

For more information about the USCIS NTA policy delay, please read our Mayer Brown Global Mobility Legal Alert here.

 

flag of wires
USCIS, the immigration agency of the Department of Homeland Security, will issue its own Notices of Appearance, a charging document that begins the deportation process for its recipients. Additionally, the agency has broadened the categories for deportation, expanding the number of individuals who may be deported from the United States, including those without a criminal history.

USCIS Broadens Categories for Deportation Under New Policy Guidance and Will Issue Notices of Appearance 

On June 28, the U.S. Citizenship and Immigration Service (USCIS) issued new policy guidance that expands the circumstances under which an adjudicator will generate a Notice to Appear (NTA), a charging document that commences removal proceedings and the deportation process, and instructs its recipient to appear before an immigration judge.  The guidance broadens USCIS authority to initiate NTAs in cases of fraud, criminal activity, or when an immigrant applicant is denied an immigration benefit and accrues unlawful presence.  The guidance aligns the agency with current immigration enforcement priorities under Executive Order 13768, Enhancing Public Safety in the Interior of the United States.

Traditionally, under 2011 policy guidance, USCIS referred deportation matters to Immigration Customs Enforcement (ICE). Now, USCIS will issue NTAs on its own. The new guidance also states that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States”. Thus, applicants for U.S. citizenship, green card, or extension or change of status petitions who are ultimately denied could face deportation, whether they are business visitors, H-1B visa holders, or international students.

This policy shift may impact the American workplace if immigrant workers facing deportation lose their jobs due to deportation, and employers must rehire.

To compound the increase of deportation proceedings that the policy might spark, immigration courts and judges currently face over 700,000 backlog cases, almost double the 400,000 cases held in 2014 by the U.S. Department of Justice Executive Office of Immigration Review.

The new USCIS guidance exempts most Deferred Action for Childhood Arrivals recipients.