In this issue
- State of the Union Speech Outlines Immigration Reform Proposal; White House Releases 'Framework' on Immigration and Border Security
- Immigration Innovation Act of 2018 Introduced in Senate
- Department of State Updates Guidance on Affidavits of Support and Public Charge Determinations
- USCIS Releases Guidance on L-1 Relationships and Proxy Votes
- CBP Issues Guidance on Border Searches of Electronic Devices
- Federal Contractors with E-Verify FAR Requirement Must Enroll in E-Verify
- Former DHS Secretaries Urge Congress to Act on DACA Now; Administration Begins Accepting DACA Renewal Applications
- New I-94 Feature Reminds VWP Travelers of Number of Remaining Days
- USCIS Clarifies Proxy Vote Use for Certain Intracompany Transferee Visa Petitions
- New Publications and Items of Interest
President Donald Trump outlined several immigration-related themes during his State of the Union address on January 30, 2018. Also, the Trump administration released its "Framework on Immigration Reform & Border Security" on January 25, 2018. Following are highlights of these communications.
State of the Union. President Trump called for "immigration policies that focus on the best interests of American workers and American families." He asserted that "for decades, open borders have allowed drugs and gangs to pour into our most vulnerable communities. They've allowed millions of low-wage workers to compete for jobs and wages against the poorest Americans. Most tragically, they have caused the loss of many innocent lives." He said he is "calling on Congress to finally close the deadly loopholes that have allowed MS-13, and other criminal gangs, to break into our country."
President Trump said that after meeting extensively with both Democrats and Republicans "to craft a bipartisan approach to immigration reform," his administration "presented Congress with a detailed proposal" that includes four pillars:
- A path to citizenship for 1.8 million "illegal immigrants who were brought here by their parents at a young age." Under the plan, "those who meet education and work requirements, and show good moral character, will be able to become full citizens of the United States over a 12-year period."
- Fully securing the border. "That means building a great wall on the southern border, and it means hiring more heroes...to keep our communities safe. Crucially, our plan closes the terrible loopholes exploited by criminals and terrorists to enter our country, and it finally ends the horrible and dangerous practice of catch and release."
- Ending the diversity visa lottery. "It's time to begin moving toward a merit-based immigration system, one that admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country."
- Ending "chain migration" by limiting family migration to spouses and minor children.
President Trump also said he signed an order to keep the "detention facilities" open in Guantanamo Bay, Cuba.
Framework on Immigration Reform & Border Security. Among other things, the framework calls for a $25 billion "trust fund" for a border wall system, ports of entry/exit, and northern border enhancements. It also proposes providing legal status for Deferred Action for Childhood Arrivals (DACA) recipients, including a 10- to 12-year path to citizenship that includes "requirements for work, education and good moral character." The framework would eliminate the Diversity Visa lottery.
The next day, Kirstjen Nielsen, Secretary of Homeland Security, released a brief statement supporting President Trump's "security-focused immigration framework," including funding for the "border wall system, the ability to quickly remove those who break our immigration laws and reforms to our immigration system." Secretary Nielsen said, "This is what DHS front-line personnel have asked for to secure our borders and maintain the integrity of our immigration system."
Read The White House statement.
Read DHS Secretary Nielsen's statement.
Sens. Orrin Hatch (R-Utah) and Jeff Flake (R-Ariz.) introduced the "Immigration Innovation (I-Squared) Act of 2018" in the U.S. Senate on January 25, 2018. The bill (S. 2344) would authorize additional visas for “well-educated aliens” to live and work in the United States.
A summary from Sen. Hatch outlines the bill as follows:
Employment-Based Nonimmigrant Visas (H–1B)
- U.S. advanced degrees: Uncaps the existing exemption (currently 20,000) for holders of U.S. master's degrees or higher from the annual numerical limitation on H–1B visas for individuals who are being sponsored for or who will be sponsored for a green card.
- Statutory cap: Increases the annual base allocation of H–1B visas from 65,000 to 85,000.
- Market escalator: Creates a market-based escalator to allow the supply of H–1B visas to meet demand. Under the escalator, up to 110,000 additional H–1B visas (for a total of 195,000) may be granted in a fiscal year if certain demand requirements are met.
- Lottery prioritization: Prioritizes adjudication of cap-subject H–1B visa petitions for holders of U.S. master's degrees or higher, holders of foreign Ph.D.'s, and holders of U.S. STEM (science, technology, engineering, and mathematics) bachelor's degrees.
- Hoarding penalties: Subjects employers who fail to employ an H–1B worker for more than 3 months during the individual's first year of work authorization to a penalty.
- Prohibitions on replacement: Prohibits employers from hiring an H–1B visa holder with the purpose and intent to replace a U.S. worker.
- Work authorization for H–1B spouses and children: Provides work authorization for spouses and dependent children of H–1B visa holders.
- Worker mobility: Increases H–1B worker mobility by establishing a grace period during which H–1B visa holders can change jobs without losing legal status.
- Dependent employers: Updates 1998 law exempting H–1B dependent employers from certain recruitment and nondisplacement requirements. Raises from $60,000 to $100,000 the H–1B salary level at which the salary-based exemption takes effect. Narrows education-based exemption to H–1B hires with a U.S. Ph.D. Eliminates exemptions for "super-dependent" employers.
- Per-country numerical limits: Eliminates annual per-country limit for employment-based permanent resident "green cards" and adjusts per-country caps for family-based green cards.
- Green card recapture: Enables the recapture of green card numbers that were approved by Congress in previous years but not used.
- Exemptions from green card cap: Exempts spouses and children of employment-based green card holders, holders of U.S. STEM master's degrees or higher, and certain individuals with extraordinary ability in the arts and sciences, from worldwide numerical caps on employment-based green cards.
- Worker mobility: Increases worker mobility for individuals on the path to a green card by enabling them to change jobs earlier in the process without losing their place in the green card line.
- Employment-based conditional green cards: Creates a new conditional green card category to allow U.S. employers to sponsor university-educated foreign professionals through a separate path from H–1B.
- Dual intent: Enables F–1 student visa holders to seek permanent resident status while a student or during Optional Practical Training (OPT).
STEM Education and Worker Training
- Promoting American Ingenuity Account: Increases fees for H–1B visas and employment-based green cards and directs fees toward state-administered grants to promote STEM education and worker training.
The Department of State recently updated guidance on affidavits of support and public charge determinations:
UNCLASSIFIED 18 STATE 942
January 4, 2018
From: SECSTATE WASHDC
Subject: Update to 9 FAM 302.8 Public Charge - INA 212(A)(4)
- Guidance at 9 FAM 302.8 has been updated and reorganized.
- INA 212(a)(4)(B) continues to provide that officers must take into account the totality of the alien's circumstances at the time of visa application, including, at a minimum: (a) age, (b) health, (c) family status, (d) assets, resources, financial status, and (e) education and skills. As revised, 9 FAM 302.8-2(B)(2) now includes detailed guidance to help officers assess these statutory factors when considering the totality of the applicant's circumstances. For instance, 9 FAM 302.8-2(B)(2)(f)(1)(b)(i) provides that an officer may consider "past or current receipt of public assistance of any type" in determining whether an applicant is likely to become a public charge, although officers must make a determination based on the present circumstances. Consequently, an applicant’s current receipt of public assistance may not raise significant future concerns, based on the totality of circumstances. For example, if the applicant just completed an educational degree and received a credible job offer, the applicant's education and skills might provide a sufficient basis to find that the applicant overcomes any public charge ineligibility concerns in spite of current lack of assets. Alternatively, an applicant’s past receipt of public assistance could be very significant: for example, if the applicant’s spouse was the family's primary income earner, but recently died. In this case, the applicant's recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances.
- Additionally, 9 FAM 302.8-2(B)(3), paragraph b, as revised provides that a “properly filed and sufficient, non-fraudulent” Affidavit of Support by itself may not satisfy the INA 212(a)(4) public charge requirement. The Affidavit of Support requirement at INA 213A and the public charge ineligibility at INA 212(a)(4) are distinct requirements which, where both are applicable, must both be satisfied. Accordingly, a properly filed and sufficient Affidavit of Support is essential, but does not preclude denial on public charge grounds. Officers should consider such affidavits as one factor in the totality of the applicant's circumstances, and, may find the applicant is likely to become a public charge if, for example, the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs. Similarly, if an applicant does not clearly overcome public charge concerns but could with a joint sponsor, then a consular officer's evaluation of the likelihood the joint sponsor would voluntarily meet his or her financial obligations toward the applicant becomes vital to the adjudication. See 9 FAM 302.8-2(B)(3)(b)(1)(b).
- The updated guidance at 9 FAM 302.8 is effective immediately."
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."
Read the memo.
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.
Read the memo.
U.S. Citizenship and Immigration Services issued a reminder that as of January 5, 2018, federal contractors and subcontractors with an E-Verify Federal Acquisition Regulation (FAR) requirement must enroll in and use E-Verify. New federal contractors and subcontractors with a FAR requirement must provide their Data Universal Numbering System (DUNS) during the E-Verify enrollment process. The DUNS Number is a unique, nine-digit identification number assigned by Dun and Bradstreet to the organizations maintained in its database. Existing E-Verify employers designated as federal contractors with a FAR requirement do not have to provide their DUNS number, but will be prompted to enter it in E-Verify when they update their company profile.
Click here and here for more information on E-Verify.
Click here for an E-Verify enrollment checklist.
Watch a video on how to enroll in E-Verify.
Click here for contact information for E-Verify.
On January 3, 2018, former Department of Homeland Security Secretaries Michael Chertoff, Jeh Johnson, and Janet Napolitano sent a letter to Republican and Democratic congressional leaders urging swift passage of legislation to allow the 690,000 "Dreamers" under the Deferred Action for Childhood Arrivals (DACA) program to continue to live and work in the United States.
Specifically, the DHS secretaries urged passage of a DACA bill by January 19, 2018, as a "best-case deadline." They noted that this would provide enough time for U.S. Citizenship and Immigration Services (USCIS) to process applications "before tens of thousands of DACA recipients are negatively impacted by the loss of their work authorization or removal from the United States." They warned that by the Trump administration's March 5 deadline, the number of DACA recipients losing status "skyrockets to an average of 1,200 a day."
The DHS secretaries further warned that if DACA recipients lose their work authorization, this would create uncertainty and negatively affect the business community that has hired 90 percent of them. "Congressional delay past the next few weeks will force the employers of hundreds of thousands of DACA recipients into a state of instability" in which they must plan to lose employees, the letter said.
On January 13, 2018, USCIS resumed accepting renewal applications for DACA based on a federal court order: "Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017." The notice states:
Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.
If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.
If you previously received DACA and your DACA expired before Sept. 5, 2016, or your DACA was previously terminated at any time, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.
The court's preliminary injunction noted, among other things:
For the reasons DACA was instituted, and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA's continuation (on the conditions and exceptions set out below). Beginning March 5, absent an injunction, one thousand individuals per day, on average, will lose their DACA protection. The rescission will result in hundreds of thousands of individuals losing their work authorizations and deferred action status. This would tear authorized workers from our nation's economy and would prejudice their being able to support themselves and their families, not to mention paying taxes to support our nation. Too, authorized workers will lose the benefit of their employer-provided healthcare plans and thus place a greater burden on emergency healthcare services.
On provisional relief motions, district judges must also weigh the balance of hardships flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be repeated. The only hardship raised by defendants is interference with the agency's judgment on how best to allocate its resources in keeping our homeland secure, as well as its judgment in phasing out DACA. Significantly, however, the agency's judgment here was not based on a policy change. It was based on a mistake of law. If the instant order is correct that DACA fell within the statutory and constitutional powers of the Executive Branch, then a policy supported as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary injunction will set that right without imposing any policy unwanted by the Executive Branch.
Read the DHS secretaries' letter.
Read USCIS' announcement about resumption of acceptance of renewal applications, which states that "[a]dditional information will be forthcoming,".
Read the preliminary injunction.
U.S. Customs and Border Protection (CBP) recently launched two new "traveler compliance initiatives" on January 5, 2018. A new feature added to the I-94 website, under the "View Compliance" tab, allows Visa Waiver Program (VWP) travelers to check the status of their admission to the United States. This check informs travelers of the number of days remaining in their lawful period of admission or the number of days they have remained past that period. In addition, CBP said it will now send email notifications to VWP travelers who are still in the United States 10 days before the expiration of their lawful admission period.
CBP noted that the Arrival-Departure Record (Form I-94) provides nonimmigrant visitors with evidence that they have been lawfully admitted to the United States, which is necessary to verify alien registration, immigration status, and employment authorization. To use the online system to check days remaining or overstayed, travelers enter their biographic and passport information. Days remaining and days overstayed are calculated using the authorized period of admission date designated by a CBP officer when a traveler arrived in the country.
All emails regarding traveler compliance checks will be sent from Staycompliancefirstname.lastname@example.org. CBP warned that if a notification email did not come from this address, "it may be a phishing scam or other fraudulent email.
CBP said it encourages travelers to plan ahead to ensure a smooth and efficient processing experience. Read the announcement about the new feature. Click here for additional information on the I-94 and traveler compliance checks.
U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance on January 3, 2018, clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.
USCIS explained that a U.S. or foreign employer may file an L-1 visa petition to temporarily transfer a foreign employee to the United States from one of its operations outside the country. The employer must prove that a qualifying relationship exists between the foreign employer and the U.S. company when the petition is filed by showing that either the two companies are the same employer or the companies are related as a parent, subsidiary, or affiliate company.
To determine if a qualifying relationship exists, USCIS officers examine ownership and control of the entities. In some cases, a petitioner may seek to establish control based on the use of proxy votes, USCIS noted. Proxy votes are obtained when one or more equity holders irrevocably grant 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 new policy memorandum clarifies that when proxy votes are a determining factor in establishing control, the petitioner must now show that the proxy votes are irrevocable from the time of filing through the time USCIS adjudicates the petition, along with evidence the relationship will continue during the approval period requested. Previous guidance did not address whether proxy votes must be irrevocable to establish control, USCIS said.
The agency noted that this policy update "does not change the requirement for petitioners to file an amended petition when the ownership or control of the organization changes after its original L-1 petition was approved. Amended petitions must also comply with the clarified guidance regarding irrevocable proxy votes."
Read the USCIS announcement, which includes a link to the updated policy guidance.
Trump's first year. The Migration Policy Institute has released a new report, "Trump's First Year on Immigration Policy: Rhetoric vs. Reality,".
EOIR agency guide. The Department of Justice's Executive Office for Immigration Review recently released a fact sheet providing an overview of the agency and descriptions of types of relief from removal and hearings/reviews, among other things.
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- Listings and links to cases challenging executive orders, and related available
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: