Presidential Memorandum on Combating High Nonimmigrant Overstay Rates

Posted in President Trump's Administration, Visa Waiver Program, Visas

On April 22, President Trump, in a quick turn to interior immigration enforcement, issued a Presidential Memorandum (Memo) initiating a process to develop administration initiatives to address visa overstays in the United States. Last week, the Department of Homeland Security released the Fiscal Year 2018 Entry/Exit Overstay Report, stating a total overstay rate of 1.22%, or 666, 582 overstay events, among other metrics.

The Memo directs federal agencies to develop plans to address, mitigate, and enforce immigrations laws. The Memo deliverables include the following, among others:

  • Within 120 days of the date of this memorandum, the Secretary of State, in consultation with the Attorney General and the Secretary of Homeland Security, shall provide to the president recommendations to reduce B-1 and B-2 nonimmigrant visa overstay rates from the identified countries.  With respect to any of the identified countries, the recommendations may include, as appropriate and to the extent consistent with applicable law, a proclamation, relying on authorities such as sections 212(f) and 215 of the INA (8 U.S.C. 1182(f) and 1185(a)), suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; limits to duration of admission, to be implemented by the Department of Homeland Security; and additional documentary requirements.
  • Within 180 days of the date of this memorandum, the Secretary of Homeland Security shall provide to the president a summary of the Department of Homeland Security’s ongoing efforts to reduce overstays from countries participating in the Visa Waiver Program, to include any recommendations for additional action necessary and appropriate to ensure the integrity and security of that Program.
  • Admission Bonds. The Secretary of State and the Secretary of Homeland Security shall take steps to develop measures required for imposing admission bonds as a means for improving compliance with the terms and conditions of nonimmigrant visas. The secretaries shall provide a status report to the president within 120 days of the date of this memorandum.

Please see a previous post on the 2017 Entry/Exit Overstay Report and legislation addressing interior immigration enforcement in the last congress and the current congress (H.R. 2260, the ”E-bonding for Immigration Integrity Act of 2019”).

Please check back, as updates on this process and others will be posted as information becomes available.

For more on visa overstay policies, click here.

˘ Not admitted to the practice of law.

H-2B Rule Sent to OMB for Review

Posted in Department of Homeland Security, H-2B

Following up on a previous report, the Department of Homeland Security forwarded a final H-2B Rule to the White House Office Of Management and Budget on April 22 (see below). Once OMB completes review, a final rule will be published in the Federal Register for implementation.

Agency: DHS-USCIS

RIN1615-AC38

StatusPending Review

Title: Exercise of Time-Limited Authority to Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program

Stage: Final Rule

Economically Significant: No

Received Date: 04/22/2019

Legal Deadline: None

Please check back, as more information on this and other matters will be published as available.

For more on H-2B visas, click here.

˘ Not admitted to the practice of law.

Major Changes for Canadians Seeking Subsequent L-1 Petition Adjudication by CBP

Posted in Canada, Customs and Border Protection, L-1

Until most recently, Canadians working and living in the U.S. as L-1 intracompany transferees have been able to file a subsequent application for admission in L-1 status relatively easily, applying in the same manner by which they applied for their initial L entry with U.S. Customs and Border Protection (CBP).  However, a new interpretation of the applicable regulations now adopted by CBP at all ports of entry and preclearance locations in Canada has abruptly ended the status-quo. Employers of Canadians in the U.S. in L-1 status need to be aware of this and plan accordingly.

Based on the North American Free Trade Agreement (NAFTA) which became effective in 1994, Canadians seeking L-1 status sponsored by a qualifying multinational company in the U.S. can petition for this nonimmigrant classification in-person with CBP in Canada at a port of entry or at an airport with Pre-Flight Inspection at the same time they file an application for admission. CBP adjudicates these L-1 petitions and applications for admission same-day, efficiently facilitating the transfer of an employee found to be critical to the sponsoring company’s U.S. operations. This quick and straightforward processing is in line with the objective of NAFTA, to lessen the barriers between the U.S. and Canada to better enable and advance economic activity. Further, NAFTA’s aim to reduce restrictions has further been fulfilled by the United States’ elimination of the visa requirement for Canadian L-1 employees and their dependents in L-2 status to enter the country.

For years Canadians have routinely submitted subsequent L-1 petitions to CBP seeking time in the U.S. beyond the initially granted three-year period. Previously, Canadians had been able to leave the U.S. and submit “new” L-1 petitions to CBP.[1]  CBP has the authority to both adjudicate their L-1 petitions, and to admit them into the country in L-1 status.  Now, CBP is refusing to process any petition for someone who has been in the U.S. in L-1 status within the most recent year [2], referring to nuances within the controlling regulations that could apply in such instances.

While there are legal arguments and sound logic supporting CBP’s authority to adjudicate subsequent L-1 petitions for Canadians, the regulations do not grant CBP this power prima facially; conversely, it is explicitly granted to USCIS. Canadians in the U.S. in L-1 status must petition USCIS to both adjudicate their underlying application for an extension of their L-1 status, and to grant them personally an extension of their stay in the country. This is specifically applicable to in-country petitions where the L-1 employee does not leave the United States.

At first, only some ports of entry and preclearance locations had adopted this narrow interpretation of CBP’s authority early this year. Now it has been reported to be in place throughout all of Canada. There has not been an official policy announcement by CBP regarding this drastic departure from how they operated regarding this issue for years.

This is a major change for companies with Canadians working in the U.S. in L-1 status.  Instead of sending employees on a quick trip to the border and back for subsequent L-1 petition adjudication, employers must now anticipate the more lengthy and involved process for petition extensions/renewals submitted to USCIS. Normal adjudication times are between 1.5 to 4.5 months according to USCIS’s current estimates. Employers can expedite this by electing for Premium Processing for an additional fee of $1,410 that guarantees adjudication in 15 calendar days. However, this faster method may increase the chance of a Request for Evidence (RFE) being issued for the case.

Although an employee will remain in lawful status to live and work in the U.S. as long as an extension petition has been submitted to USCIS by the status expiration date, employees can face several problems. The validity of critical documents such as drivers’ licenses are often limited to the status expiration date and may not be able to be renewed until approval of the status extension has been granted.  Further, employees may not be able to travel abroad and re-enter with L-1 status if the extension has not been granted.

Finally, this new practice by CBP may be more difficult to navigate for multinational companies that frequently transfer employees to the U.S. based on their Blanket L Approval. A petition under the company’s Blanket L is one that an employee submits to a consular post abroad for adjudication by a Consular Officer who will also conduct an interview with the employee. The employee needs to wait only a few days before travel to the U.S. to allow the consular post a time to issue a visa in the employee’s passport. This process is favored by companies with a Blanket L Approval since it is more simple and efficient than first submitting a petition to USCIS. However, this is not a straightforward option for Canadians. Consular posts in Canada can be hesitant to adjudicate petitions for Canadian citizens submitted under a Blanket L given that: (1) they are unfamiliar with doing so, since these petitions have almost always been submitted to CBP; (2) petitions submitted under a Blanket are always considered “new” petitions, even if a person is renewing his/her previously held L-status; and (3) Canadians normally do not require visas to enter the U.S. in L status, and this is a primary function of the consular post.

Greenberg Traurig will continue to monitor this changing situation and provide updates as information becomes available.

1 The petition would list the employee’s subsequent time in the United States in L-1 status, but would be characterized as a new petition with the fees required to accompany only an initial petition being paid.

2 Time spent in the U.S. within the past year in L-1 status is not the de-facto controlling rule CBP is applying uniformly. At some ports and preclearance locations, CBP is processing petitions for L-1 holders who intermittently work in the United States as long as they maintain a residence in Canada and spend less than 50% of their time in the United States.

For more on L-1 visas, click here.

No-Match Letters Are Back, and They’re No Laughing Matter

Posted in no-match letter, Social Security

The Social Security Administration (SSA) has once again begun notifying employers (and third-party payroll companies) who submitted Form W-2s containing name and Social Security Number (SSN) combinations that do not match the agency’s records, with what are known as “No-Match Letters.” Such discrepancies can arise from commonplace events such as marital name changes, but can also indicate that an individual is using false identification. Accordingly, while not conclusive evidence that an employee is not authorized to work in the United States, No-Match Letters put employers on notice of a possible issue. The SSA began sending these letters in 1993, and ceased the practice in 2012 after a failed attempt to introduce a regulatory “safe harbor” for employers that received these letters and took appropriate measures in response to verify the identity and work authorization of the employees at issue.

Now, with the current administration having pledged to increase workplace immigration enforcement, it is important for an employer to contact an attorney upon receipt of a No-Match Letter. Information regarding No-Match Letters is not automatically shared between the SSA and the agencies that enforce immigration laws. The Court of Appeals for the District of Columbia has ruled that the SSA may not disclose information concerning the names of employers receiving the most no-match employees because the information was derived from a W-2 form, and was therefore subject to confidentiality under tax laws. Judicial Watch v. SSA, 701 F.3d 379 (D.C. Cir. 2012). However, the Department of Homeland Security (DHS) can request information from the SSA for the purposes of identifying and locating aliens in the United States, and enforcing laws. 5 U.S.C. § 552a(b)(7). Accordingly, employers ignore such letters at their peril.

Employers should note that receipt of a No-Match Letter or other no-match notice does not, standing alone, constitute “constructive knowledge” that the affected employee is not work-authorized. Only DHS is legally authorized to determine an individual’s authorization to work. Moreover, employers must be careful to respond appropriately to a No-Match Letter. The U.S. Department of Justice (DOJ) has issued guidance regarding employer action in response to “anonymous tips” reminding employers that requesting excessive or unnecessary documentation from employees can violate the anti-discrimination provisions of the Immigration and Nationality Act. Those provisions prohibit, among other things, unfair documentary practices on the basis of citizenship, immigration status, or national origin relating to the employment eligibility verification (Form 1-9) process. Furthermore, the 9th Circuit Court of Appeals has ruled that receipt of an SSA No-Match Letter about a worker is not, in and of itself, “just cause” for firing the worker when the worker is covered by a collective bargaining agreement. Aramark Facility Services v. SEIU, Local 1877, No. 06-56662 (9th Cir. June 16, 2008). Accordingly, a rash or improper reaction to a No-Match Letter can be as bad as inaction.

Once the proper response to a No-Match Letter has been determined, employers should give affected employees a reasonable period of time to provide required information. DOJ guidance addresses this issue. It states:

There are no Federal statutes or regulations in effect that define a “reasonable period of time” in connection with the resolution of a no-match notice. As a practical matter, a “reasonable period of time” depends on the totality of the circumstances. Of note, in the E-Verify context SSA has the ability to put a tentative non-confirmation into continuance for up to 120 days. This recognizes that it can sometimes take that long to resolve a discrepancy in SSA’s database.

The SSA also has guidance for employers regarding No-Match Letters on its website.

Greenberg Traurig’s experienced immigration attorneys guide employers with respect to all aspects of immigration compliance, including responding to No-Match Letters.

For more on immigration and employers, click here.

Form I-94 is Getting a Makeover

Posted in Form I-94

Beginning in May 2019, Form I-94 will have a new look. The current 11-digit numerical format will be replaced by alphanumeric characters. The new format will include 11 characters, starting with nine digits, a letter in the tenth position, and a digit in the eleventh position. Customs and Border Protection (CBP) indicated that unexpired I-94 Records issued in the current numeric-only format will continue to be valid until the “Admit Until Date” printed on the paper or digital I-94 Record expires. You can continue to retrieve your electronic Form I-94 here.

For more on I-94, click here.

 

May 2019 Visa Bulletin Updates

Posted in EB-1, EB-2, EB-3, EB-4, EB-5 Program, Visa Bulletin

The Department of State May 2019 Visa Bulletin shows movement in employment-based categories. The EB-1 category will advance one month in all countries, moving up the cutoff date to March 1, 2018, except China and India, whose dates remain the same at Feb. 22, 2017. The EB-2 category will remain current for all countries except China, advancing to May 15, 2016, and India, advancing to April 16, 2009. Although most countries will remain current on the EB-3 category, China will advance to August 22, 2015; India will advance to July 1, 2009; and the Philippines will advance to June 1, 2018. Notably, India’s final action date in the EB-3 category continues to surpass the EB-2 category, leaving EB-3 India with a more favorable final action date than that of EB-2 India.

The EB-4 dates will remain current for most countries except El Salvador, Guatemala, and Honduras, which will remain the same at March 8, 2016, and Mexico, which will advance to Aug. 1, 2018. For those in the EB-5 category, the priority date remains current for all applicants except those born in mainland China, where the cutoff date will advance one week from Sept. 15, 2014, to Sept. 22, 2014; Vietnam will move forward one month from Aug. 22, 2016, to Sept. 22, 2016.

For those seeking to adjust status based on employment-based preference filings, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Final Action Dates chart must be used for filing Form I-485 for May 2019. In January 2019, USCIS allowed the filing of adjustment of status applications based on the Dates for Filing chart, but has since reverted to the use of Final Action Dates. We will closely monitor the developments and advise once USCIS resumes the use of Dates for Filing chart for employment-based adjustment of status filings.

Final Action Dates for Employment-Based Preference Cases

Final Action Dates for Employment-Based Preference Cases May 2019

 

 

 

 

 

 

 

 

 

Dates for Filing of Employment-Based Visa Applications

Dates for Filing of Employment-Based Visa Applications May 2019

 

 

 

 

 

 

 

 

 

For more Visa Bulletin Updates, click here.

˘ Not admitted to the practice of law.

USCIS Completes the H-1B Cap Random Selection Process for FY2020 and Reaches the Advanced Degree Exemption Cap

Posted in H-1B, H-1B Cap, USCIS

On April 10, 2019, USCIS announced it used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated regular cap and U.S. advance degree exemption (Master’s cap) for fiscal year (FY) 2020.

USCIS received 201,011 petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 5, USCIS announced it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000 visas. After completing the random selection process for the regular cap, USCIS also determined it had received a number of petitions projected as sufficient to meet the 20,000 H-1B visa U.S. Master’s cap.

In accordance with the new H-1B regulation, USCIS first conducted the selection process for H-1B cap-subject petitions submitted on behalf of all beneficiaries, including those who may have been eligible for the Master’s cap. USCIS then selected a number projected to reach the advanced degree exemption from the remaining eligible petitions. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for concurrent H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

For additional updates, H-1B applicants may subscribe to the H-1B Cap Season email located on the H-1B FY 2020 Cap Season page.

For more on H-1B petitions, click here.

˘ Not admitted to the practice of law.

Phase One of Premium Processing for FY 2020 Cap-Subject H-1B Petitions Begins May 20

Posted in H-1B, H-1B Cap, H-1B Premium Processing

On May 20, 2019, the United States Citizenship and Immigration Services (USCIS) will begin premium processing for FY 2020 cap-subject H-1B petitions that were filed (1) requesting a change of status; and (2) with a Form I-907. To manage high demand during the initial surge of premium processing requests for H-1B cap petitions and to meet the 15-day adjudication timeline, USCIS will implement the following restrictions during the first phase of premium processing, affecting FY 2020 cap-subject H-1B petitions requesting a change of status:

  • From May 20 to June 3, USCIS will not send final notices for premium processing using pre-paid mailers. Final notices for cap-subject, change of status petitions will be sent via regular mail.
  • Petitioners who did not concurrently file Form I-907 with their cap-subject H-1B petitions requesting a change of status must wait until May 20 to request premium processing.

The second phase of premium processing affecting all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019 (the exact date has yet to be announced). Premium processing for petitions exempt from the cap remains available.

Even with the two-phased approach and additional restrictions on premium processing for this year’s H-1B cap season, USCIS says petitioners can expect more efficient service than previous years, when premium processing was suspended for cap-subject petitions.

For more on H-1B petitions, click here.

Israel to Join Countries Qualified for E-2 Treaty Investor Visa

Posted in E-Visas, Visas

On May 1, 2019, the E-2 Treaty Investor Visa may be available to Israeli citizens wishing to make a substantial investment in or set up a business in the United States. After several rounds of negotiations between the two countries and U.S. citizens already able to obtain a B-5 Israeli Investor visa, the United States is expected to approve the proposed May 1 launch date in early April.

The E-2 Visa grants qualified treaty investors and employees, as well as their dependent family members, a maximum initial stay of two years. Extensions may be granted in increments of up to two years, with no maximum limit so long as the E-2 nonimmigrant maintains an intention to depart the United States when their status expires or is terminated.

To qualify, the United States Citizenship and Immigration Services (USCIS) indicates a treaty investor must show at least 50 percent ownership of the enterprise or possession of operational control through a managerial position or other corporate device. The enterprise must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. In addition, the treaty investor must risk a substantial amount of capital with the objective of generating a profit.

Given the flexibility of the E-2 Visa and Israel’s prominent position in the hi-tech sector, this new development has great potential to advance Israeli business interests and streamline entrepreneurial ventures.

For more on E-2 visas, click here.

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