March 2018 Newsletter
In This Issue
Global Entry Enrollment at American Embassy, London
U.S. Customs and Border Protection will host a Global Entry enrollment event at the U.S. Embassy in London staring March 07 until March 03, 2018. The enrollment center will be open Monday through Friday from 8 a.m. to 4:30 p.m. CMP officers will only interview Global Entry applicants with appointments.
The U.S. Embassy is located at 33 Nine Elms Lane, London SW11 7US. Appointments will not take place during the UK holidays Good Monday (March 30) and Easter Monday (April 2).
To register for Global Entry, UK citizens should apply through the UK Home Office website and pay £42 processing fee. If the applicant passes the UK vetting process, they will receive a "UK Access Code," which applicants will need to enter when applying for Global Entry through CBP's Global Online Enrollment System (GOES). The non-refundable application fee for a five-year Global Entry membership is $100 and applications must be submitted online. Once the applicant is approved, a CBP Officer will conduct a scheduled interview with the applicant and then make a final eligibility determination.
U.S. citizens are eligible to apply for the United Kingdom's Registered Traveller Service. Members enrolled in Registered Traveler may use ePassport gates at airports in the United Kingdom. The service costs £70 to apply and an additional £50 a year thereafter. If the application is unsuccessful, the application will receive £50 back. To apply for the Registered Traveler Service, a U.S. citizen must either hold an entry clearance/visa or have made 4 trips to the UK in the last two years.
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Supreme Court Declines Trump Administration Appeal in DACA Case
On February 26, 2018, the U.S. Supreme Court blocked the Trump administration's attempt to bypass the U.S. Court of Appeals for the Ninth Circuit and let stand without comment a ruling by a federal judge in California on January 9, 2018, to end Deferred Action for Childhood Arrivals (DACA) by March 5, 2018. This means that the Trump administration must continue to accept renewal applications for the time being from those enrolled in DACA. The case is expected to be considered next by the Ninth Circuit.
The Supreme Court said, "It is assumed the court of appeals will act expeditiously to decide this case." It could take another year for the case to wind its way back to the Supreme Court. Congressional legislation is also a possibility, although current prospects for such action seem dim.
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Supreme Court Says Certain Aliens May Be Held in Indefinite Detention, Remands Case to Ninth Circuit
On February 27, 2018, the U.S. Supreme Court remanded a case to the U.S. Court of Appeals for the Ninth Circuit that challenges the government's authority to hold an alien in detention indefinitely without a bond hearing. The Court said that certain aliens may be held in detention indefinitely while proceedings are pending, and that periodic bond hearings are not required. In this case, the Supreme Court was asked to interpret several provisions of U.S. immigration law that authorize the government to detain aliens in the course of immigration proceedings.
The Court said that because the Ninth Circuit "erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents' constitutional arguments on their merits. Consistent with our role as 'a court of review, not of first view,' ... we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance." The Court also noted several additional issues for the Ninth Circuit to address, such as whether respondents could continue litigating their claims as a class and whether the Court of Appeals continues to have jurisdiction.
The Court observed that all parties appeared to agree that the text of the provisions at issue, when read most naturally, did not give detained aliens the right to periodic bond hearings during the course of their detention. "But by relying on the constitutional avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue," the Court noted, concluding that "[i]mmigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country."
Justice Breyer dissented, saying he would find it alarming "to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail." He said, among other things, that given the "serious constitutional problem" of prolonged detention of noncitizens, he "would interpret the statutory provisions before us as authorizing bail." He referred to the Declaration of Independence, which states that all have certain rights, among them the right to liberty, and that the Constitution's Due Process Clause "protects each person's liberty from arbitrary deprivation." He also noted that for a long time, "liberty has included the right of a confined person to seek release on bail." Justice Breyer said, "No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection."
Read the Supreme Court's opinion.
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USCIS Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions
U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.
USCIS said this clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. "This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location," USCIS said. The guidance explains that for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:
When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition, the guidance states. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
USCIS said the updated policy guidance aligns with President Trump's "Buy American and Hire American" Executive Order and directive to protect the interests of U.S. workers.
Reaction. Some immigration attorneys have noted that the new policy suggests that additional evidence may be needed in addition to contracts and work orders, such as more details in the work orders or in letters from the end client regarding the beneficiary's work assignment. It appears that employers will need to provide more evidence to establish that the H-1B worker will be performing qualified duties under the H-1B program at the end client. If USCIS does not have evidence that this is the case, it could either deny the H-1B petition or grant it for less than three years. According to reports, requests for evidence in response to H-1B visa applications were up 45% (a total of 85,265 requests) in January to August 2017 over the same time period a year earlier.
Read the USCIS policy memorandum.
Read a related announcement here.
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USCIS Expands Credit Card Payment Option for Fees
U.S. Citizenship and Immigration Services (USCIS) announced that it will now accept credit card payments for filing most of its forms.
The new payment option is available for the 41 fee-based forms processed at USCIS Lockbox facilities. To pay by Visa, MasterCard, American Express or Discover, applicants will need to Form G-1450, Authorization for Credit Card Transaction. USCIS will enter credit card data into the Pay.gov system, operated by the U.S. Department of the Treasury, and will then destroy the Form G-1450 to protect the credit card information.
Applicants for naturalization and those renewing or replacing their permanent resident cards (green cards) can already use a credit card when they file online at the USCIS website. In addition, USCIS has been accepting credit card payments for naturalization forms filed at Lockbox facilities since 2015.
Read the USCIS announcement.
Click here for links to the 41 fee-based forms affected by this announcement.
Click here for Lockbox information.
Click here for the Pay.gov website.
Click here for the G-1450 form.
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USCIS Revises Mission Statement, Removes "Nation of Immigrants"
In what may be a sign of the times, U.S. Citizenship and Immigration Services (USCIS) has revised its mission statement to remove the term "nation of immigrants," among other changes.
USCIS Director Francis Cissna announced the new mission statement on February 22, 2018. He emphasized the principles of "upholding the rule of law and ensuring the integrity of our immigration system." He singled out deletion of the word "customers," which, he said, "promotes an institutional culture that emphasizes the ultimate satisfaction of applicants and petitioners, rather than the correct adjudication of such applications and petitions according to the law. Use of the term leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve. All applicants and petitioners should, of course, always be treated with the greatest respect and courtesy, but we can't forget that we serve the American people."
The new mission statement says:
U.S. Citizenship and Immigration Services administers the nation's lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.The former mission statement said:
USCIS secures America's promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.Read the new USCIS mission statement.
Read USCIS Director Cissna's related statement.
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USCIS Finalizes Guidance on Signature Requirements; Power-of-Attorney Signatures Will no Longer be Accepted
U.S. Citizenship and Immigration Services (USCIS) announced on February 16, 2018, that petitioners and applicants who seek immigration benefits must provide a valid signature on forms submitted to the agency, and that power-of-attorney signatures will no longer be accepted in most cases. If forms are filed by a corporation or other legal entity, they must be signed by an authorized person. The new policy is effective March 18, 2018.
A related final policy memorandum has updated an interim memorandum that outlined the elements of a valid signature and permitted entities that filed petitions with USCIS to use the signature of an individual based on a power of attorney. Because of concerns about consistency and program integrity, USCIS reversed the interim memorandum's policy on power-of-attorney signatures.
The prohibition on power-of-attorney signatures does not affect signatures on behalf of individuals younger than age 14 or those with disabilities. The final memorandum makes additional changes, such as providing that an authorized signatory must be employed by the petitioner and that USCIS may reject a form submitted with a faulty signature instead of offering the opportunity to fix the deficiency.
USCIS said it will publish revised instructions for individual forms to clearly specify the applicable signature requirements. USCIS will also address requirements for electronic signatures in future guidance.
Read the announcement.
Read the final policy memorandum.
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Immigration Bills Fail in Senate, Including DACA; House Bill's Prospects Appear Dim; Second Court Enjoins DACA Rescission
A bipartisan deal on immigration, the so-called "Common Sense Plan," failed on February 15, 2018, in the U.S. Senate, 54-45. The legislation would have provided a pathway to legalization for Deferred Action for Childhood Arrivals (DACA) "Dreamers" and provided $25 billion for border security measures, among other things. Reportedly, the Trump administration opposed the deal and had threatened to veto it despite substantial bipartisan support. A White House-supported bill also failed in the Senate, 39-60. The latter bill would have cut family immigration, ended the diversity visa (DV) program, and increased federal removal powers. Two other immigration proposals also failed on February 15.
Sen. John Thune was quoted as saying, "Well, we'll go back to the drawing board." Sen. Susan Collins (R-Maine) said she was "very disappointed" and added that "we've got real problems that we need to solve."
Meanwhile, the U.S. House of Representatives is hard at work on a tough bill—the "Securing America's Future Act," also dubbed the "Goodlatte bill" after its main author, Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee—that appears not to have sufficient support in either the House or the Senate. Among other things, the bill would provide temporary, renewable legal status to DACA recipients rather than citizenship. It would authorize border wall funding, end family-based immigration, end the DV program, and require employers to use the E-Verify program, among other measures.
Also, on February 13, 2018, the U.S. District Court for the Eastern District of New York became the second court to enjoin DACA rescission, with a nationwide preliminary injunction while lawsuits proceed. The court ordered the Trump administration to maintain the DACA program on the same terms and conditions that existed before promulgation of the DACA Rescission Memo, subject to several limitations: the administration need not consider new applications by individuals who have never before obtained DACA benefits; need not continue granting advance parole to DACA beneficiaries; and may adjudicate DACA renewal requests on a case-by-case basis.
Read the court decision.
Click here for a Department of Homeland Security press release issued before the Senate voted on the "Common Sense Plan".
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President Trump Calls for Establishment of National Vetting Center
On February 6, 2018, President Donald Trump signed a National Security Presidential Memorandum to establish a National Vetting Center (NVC) "to coordinate the efforts of departments and agencies to better identify individuals seeking to enter the country who present a threat to national security, border security, homeland security, or public safety."
A statement issued by the White House said the NVC, to be led by the Department of Homeland Security, "will help fulfill the President's requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process."
The statement says:
The Federal Government's current vetting efforts are ad hoc, which impedes our ability to keep up with today's threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC's operations will adhere to America's strong protections for individuals' privacy, civil rights, and civil liberties. The Administration's top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfil that obligation.Read the statement.
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Surge in H-2B Petitions Possible for Second Half of FY 2018, USCIS Announces
Following the Department of Labor's recent announcement that it would not begin releasing H-2B temporary labor certifications until February 20, 2018, due to an unprecedented number of applications, U.S. Citizenship and Immigration Services (USCIS) announced that it may receive more H-2B nonimmigrant petitions than there are H-2B visas available in the second half of fiscal year 2018.
USCIS said it is "maintaining a flexible approach to this issue," which may include randomly selecting petitions received on the final receipt date "to ensure that we allocate H-2B visas fairly and do not exceed the cap." USCIS said more information would be forthcoming.
Read the USCIS announcement.
Click here for information on the cap count for H-2B nonimmigrants.
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New Publications and Items of Interest
The 10 Things Trump Has Done Without Legislation, a press release by the Alliance of Business Immigration Lawyers
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
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:
Hodkinson Law Group News
We hope our UK-based clients are managing to keep warm during The Beast from the East weather we have experienced this week. We are all looking forward to thawing out during warmer weather very soon.