In this issue
- USCIS Plans to Revise Definition of Specialty Occupation, Employment, Employer-Employee Relationship, Among Other Actions
- Gorsuch Votes Against Trump Administration in Deportation Case; DHS, ICE Issue Statements
- Justice Dept. Settles Immigration-Related Discrimination Claim Against Texas Company
- USCIS Announces Convictions in Two Immigration Fraud Cases
- Attorney General Orders 'Zero Tolerance' Policy for Improper Entries at Southwest Border; President Issues Memo on 'Catch and Release'
- USCIS Completes H-1B Cap Random Selection Process for FY 2019
- USCIS Launches E-Verify Website
- New Publications and Items of Interest
USCIS Plans to Revise Definition of Specialty Occupation, Employment, Employer-Employee Relationship, Among Other Actions
On April 4, 2018, L. Francis Cissna, Director of U.S. Citizenship and Immigration Services (USCIS), sent a letter to Sen. Charles Grassley (R-Iowa), Chairman of the Senate Committee on the Judiciary discussing the agency's review of existing regulations, policies, and programs and its development of "a combination of rulemaking, policy memoranda, and operational changes to implement the 'Buy American and Hire American' Executive Order." Mr. Cissna said that, among other things, USCIS plans to propose regulations to revise the definition of specialty occupation "to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program," and to revise the definitions of employment and employer-employee relationship "to better protect U.S. workers and wages." In addition, he said DHS will propose "additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders." The letter does not specify how these definitions will be revised or when the proposed regulations will be issued.
The letter also confirms USCIS' plans to propose regulatory changes to remove H-4 dependent spouses from the class of aliens eligible for employment authorization.
Mr. Cissna confirmed that USCIS is also drafting a proposed rule to remove the International Entrepreneur Rule, noting that the rule is currently in effect. He said USCIS has not approved "any parole requests under the International Entrepreneur Rule at this time."
Read the USCIS letter.
Gorsuch Votes Against Trump Administration in Deportation Case; DHS, ICE Issue Statements
U.S. Supreme Court Justice Neil Gorsuch voted with the Democrat-appointed justices in a 5-4 decision in Sessions v. Dimaya holding that a federal law permitting the removal of foreigners guilty of a "crime of violence" is unconstitutionally vague. Among other things, the Court noted that the "ordinary case" of a crime of violence is an excessively speculative thing, and that uncertainty about the level of risk that makes a crime "violent" is fatal. The case involved a permanent resident convicted of the crime of burglary.
Justice Gorsuch concurred in part and concurred in the judgment. Among other things, he agreed with the majority that the Immigration and Nationality Act provision at hand was unconstitutionally vague. He said that in the criminal context, the law generally must afford ordinary people fair notice of the conduct it punishes, and that it was hard to see how the Due Process Clause of the U.S. Constitution might require any less than that in the civil context. With respect to the vagueness of the law in question, he said, "Vague laws invite arbitrary power." Justice Gorsuch also noted, "The law's silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more." He said he was persuaded that the "void for vagueness" doctrine "serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution."
Tyler Q. Houlton, Department of Homeland Security (DHS) Press Secretary, said the decision "significantly undermines DHS's efforts to remove aliens convicted of certain violent crimes," and that it "allows our nation to be a safe haven for criminals and makes us more vulnerable." Tom Homan, U.S. Immigration and Customs Enforcement (ICE) Deputy Director, said he was "disappointed" by the decision. "As a law enforcement agency, ICE will certainly abide by this decision," he said, but "it will have an adverse impact on our ability to establish that aliens convicted of certain violent crimes…are removable from the United States and ineligible for certain immigration benefits." He said it was "yet another example of the need for Congress to urgently close the loopholes that allow criminal aliens to avoid removal and remain in the United States."
Read the Supreme Court's opinion.
Read the DHS Press Secretary's statement.
Read the ICE Deputy Director's statement.
Justice Dept. Settles Immigration-Related Discrimination Claim Against Texas Company
The Department of Justice (DOJ) announced on April 20, 2018, that it reached a settlement with Themesoft, Inc., a Texas-based company that provides consulting and staffing services to technology clients. The settlement resolves DOJ's investigation into whether the company discriminated against a work-authorized immigrant by refusing to allow him to continue in the hiring process.
The investigation, initiated based on a worker's complaint, revealed that Themesoft engaged in citizenship status discrimination against an asylee by refusing to process his application because he was not a lawful permanent resident, U.S. citizen, or H-1B visa holder. DOJ noted that asylees have permanent work authorization, like U.S. citizens, U.S. nationals, refugees, and lawful permanent residents, so employers are generally prohibited from discriminating against them based on their citizenship status. The investigation also revealed that Themesoft requested specific immigration documentation from the worker because of his citizenship or immigration status, even though the INA's antidiscrimination provision prohibits such conduct.
Under the settlement agreement, Themesoft will pay civil penalties for the alleged citizenship status discrimination and the unfair documentary practices. Themesoft will also post notices informing workers about their rights under the INA's antidiscrimination provision, train its staff, and be subject to departmental monitoring and reporting requirements for three years. During the investigation, Themesoft agreed to pay the worker back pay and offered him a job. The Department's agreement requires Themesoft to timely pay the worker the remainder of the $12,000 in back pay it still owes him.
"Employers must not engage in unlawful discrimination against asylees," said Acting Assistant Attorney General John Gore of the Civil Rights Division. "This settlement serves as a reminder that companies that refer workers to third-party clients should be mindful of their non-discrimination obligations."
Read the settlement agreement.
Read the DOJ press release.
USCIS Announces Convictions in Two Immigration Fraud Cases
U.S. Citizenship and Immigration Services (USCIS) recently announced convictions in two cases related to immigration fraud.
On April 18, 2018, Jessica Godoy Ramos of Lynwood, California, was sentenced for stealing the identity of a New York attorney and filing immigration petitions on behalf of foreign nationals who believed she was a legitimate lawyer, USCIS announced. Ramos was sentenced to 15 months in federal prison. Upon completion of the prison term, she will spend six months in home detention. Calling the crimes "despicable," presiding U.S. District Judge Dolly M. Gee also ordered Ramos to pay $29,693 in restitution to 16 identified victims.
According to USCIS, Ms. Ramos accepted tens of thousands of dollars from dozens of people who sought her services in an attempt to obtain legal status in the United States. Using the name of the New York attorney, Ms. Ramos filed immigration petitions on behalf of some of the people, but in other cases, she never performed any services. Ms. Ramos also created counterfeit immigration parole documents to make it appear that she had successfully represented her clients.
According to court documents, Ms. Ramos' clients initially believed she was a legitimate immigration attorney, but several became suspicious when she directed them to appear at USCIS offices for interviews but they did not have any scheduled appointments.
Sentencing in the second case took place on April 19, 2018. That case involved the owner of four schools, Hee Sun Shim of Hancock Park, California. Mr. Shim enrolled hundreds of foreign nationals to fraudulently obtain immigration documents, which allowed them to remain in the United States as "students" even though they rarely, if ever, attended classes. He was sentenced to 15 months in federal prison and ordered to forfeit more than $450,000.
Mr. Shim, along with two co-defendants, ran a "pay-to-stay" scheme through three schools in Koreatown: Prodee University/Neo-America Language School; Walter Jay M.D. Institute, an Educational Center; and the American College of Forensic Studies. A fourth school in Alhambra, Likie Fashion and Technology College, was also involved in the scheme, which ran for at least five years, USCIS said.
USCIS attributed the convictions to the "considerable efforts of the [USCIS] Los Angeles Fraud Detection and National Security (FDNS) unit. Los Angeles FDNS immigration officers worked closely with law enforcement and intelligence community partners to resolve potential fraud, national security and public safety concerns, and to ensure exchange of current and comprehensive information."
Read the USCIS announcement.
Attorney General Orders 'Zero Tolerance' Policy for Improper Entries at Southwest Border; President Issues Memo on 'Catch and Release'
Attorney General Jeff Sessions issued a memorandum on April 6, 2018, directing federal prosecutors along the southwest border of the United States to adopt immediately a "zero-tolerance policy for all offenses referred for prosecution under [8 U.S.C.] section 1325(a)." Later the same day, President Donald Trump issued a memorandum on "catch and release" at the border and other enforcement actions.
Mr. Sessions said the new zero-tolerance policy supersedes any existing policies, and that it should be applied "to the extent practicable, and in consultation with [the Department of Homeland Security." If adopting such a policy requires additional resources, Mr. Sessions directs each office to identify and request those resources.
"You are on the front lines of this battle," the memo states. "I respect you and your team." He reminded federal prosecutors that "our goal is not simply more cases. It is to end the illegality in our immigration system."
8 U.S.C. § 1325(a) states:
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
The Trump memo directs the Secretaries of Homeland Security, Defense, and Health and Human Services, along with the Attorney General, to submit reports detailing all measures that their departments "have pursued or are pursuing to expeditiously end 'catch and release' practices." Among other things, the reports must include measures taken to "allocate all legally available resources" to ensure the detention of people for violations of immigration law at or near the U.S. borders, and must provide a "detailed list of all existing facilities, including military facilities, that could be used, modified, or repurposed to detain aliens for violations of immigration law at or near the borders of the United States." The reports must also include the number of credible fear and reasonable fear claims received, granted, and denied, in each year since the beginning of fiscal year 2009, "broken down by the purported protected ground upon which a credible fear or reasonable fear claim was made."
Read the Sessions memo.
Read the Trump memo.
USCIS Completes H-1B Cap Random Selection Process for FY 2019
On April 11, 2018, USCIS announced that it had used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated cap and the U.S. advanced degree exemption, known as the master's cap, for fiscal year (FY) 2019.
USCIS said it received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6 that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master's cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.
USCIS conducted the selection process for the master's cap first. All unselected master's cap petitions then became part of the random selection process for the 65,000 cap, USCIS said.
The agency said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, also will not be counted toward the FY 2019 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.
USCIS Launches E-Verify Website
U.S. Citizenship and Immigration Services (USCIS) recently launched a new website, E-Verify.gov. USCIS called it "the authoritative source for information on electronic employment eligibility verification." The website is intended for employers, employees, and the general public.
The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. The site "allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov," USCIS said.
Employers can access E-Verify from a Web browser. Nearly all employees are confirmed as work-authorized "instantly or within 24 hours," the agency said. The system, which has nearly 800,000 enrolled employers, compares information from an employee's I-9 to records available to the Department of Homeland Security and the Social Security Administration to verify authorization to work in the United States.
USCIS said it "encourages all U.S. employers to verify all new hires through E-Verify."
Read the announcement.
New Publications and Items of Interest
Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:
- Statutes of Liberty
- Code Switch Podcast: What Does It Mean To Be A 'Nation of Immigrants'?
- Hidden Brain: The Huddled Masses and the Myth of America
- American Pendulum IThe 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: