April 2018 Newsletter

In This Issue

USCIS to Begin Accepting FY 2019 H-1B Cap-Subject Petitions April 2, Suspends Premium Processing

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2019 cap. USCIS said it will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master's degree or higher, until September 10, 2018. During this time, the agency will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. USCIS said it will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

During this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, USCIS will reject both forms. When the agency resumes premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets certain "expedite criteria":
  • Severe financial loss to company or person
  • Emergency situation
  • Humanitarian reasons
  • Nonprofit organization whose request furthers U.S. cultural and social interests
  • Department of Defense or national interest situation (such expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government)
  • USCIS error
  • Compelling interest of USCIS
USCIS encourages petitioners to submit documentary evidence to support their expedite requests. "We review all expedite requests on a case-by-case basis and will grant requests at the discretion of USCIS office leadership," the agency said.

USCIS said the temporary suspension will help it reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will be able to process long-pending petitions, "which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years," and to prioritize adjudication of H-1B extension-of-status cases that are nearing the 240-day mark.

Read the announcement.

Read the expedite criteria.

Read additional information on the latter is in the USCIS Policy Manual.

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Omnibus Spending Bill Includes Immigration Provisions

A $1.3 trillion omnibus spending bill signed by President Donald Trump on March 23, 2018, keeps the federal government in operation through September 30, 2018, and increases overall funding for various aspects of federal immigration enforcement, among other things. Notably, the bill does not include any provisions for addressing the "Dreamers," beneficiaries of the Deferred Action for Childhood Arrivals program that President Trump discontinued.

Highlights of the bill's immigration provisions include:
  • Appropriations for U.S. Customs and Border Protection ($14 billion, which represents an approximately 13 percent increase over the previous fiscal year)
  • Appropriations for U.S. Immigration and Customs Enforcement ($7.1 billion, which represents an approximately 10 percent increase over the previous fiscal year)
  • Appropriations for U.S. Citizenship and Immigration Services ($132 million, which represents an approximately 8 percent increase over the previous fiscal year)
  • A requirement for the Department of Homeland Security (DHS) to report to Congress on visa overstay rates by country for fiscal year 2017
  • A requirement for the DHS to publish metrics to measure the effectiveness of security between ports of entry, including methodology and data supporting the resulting measures
  • A prohibition on DHS's establishing any new border fee for individuals crossing the southern or northern U.S. border at a land port of entry
  • Funding for border wall construction and improvements ($1.5 billion, with restrictions; the Trump administration had asked for $25 billion)
  • "Flexibility" for employers bringing into the United States H-2B nonimmigrants in the seafood industry (an employer may bring in nonimmigrants described in the petition into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants, without filing another petition)
  • A provision defining the H-2B prevailing wage as the greater of (1) the actual wage level paid by the employer to other employees with similar experience and qualifications for the same position in the same location or (2) the prevailing wage level for the occupational classification of the position in the geographic area in which the H-2B nonimmigrant will be employed, based on the best information available at the time of filing the petition
  • Inadmissibility for corrupt foreign officials
  • Lautenberg Amendment extension, through September 30, 2018
  • Visa restrictions for certain Cambodian government officials
  • Four programs—EB-5, Conrad 30, religious workers, and E-Verify—extended until September 30, 2018
  • H-2B returning workers provision
Read the full text of the bill (Pub. L. No. 115–141, Mar. 23, 2018, 132 Stat. 348).

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State Dept. Seeks to Add Social Media Questions to Visa Application Forms

The Department of State is seeking Office of Management and Budget approval to revise the immigrant and nonimmigrant visa applications to add several new questions. One question would require all visa applicants to list which social media platforms they used during the five years preceding the date of application. The Department said it will collect this information from visa applicants for "identity resolution and vetting purposes based on statutory visa eligibility standards."

Other questions seek five years of previously used telephone numbers, email addresses, and international travel; and whether specified family members have been involved in terrorist activities. Additionally, some E-nonimmigrant visa applicants will be asked whether the principal treaty trader was issued a visa. The immigrant visa application will ask for a list of all prior immigration violations. The nonimmigrant visa application will ask whether the applicant has been deported or removed from any country.

The revised visa application form will include additional information regarding the visa medical examination that some applicants may be required to undergo.

The Department is accepting comments from the public until May 29, 2018. Click here for the immigrant OMB submission. Click here for the nonimmigrant OMB submission.

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USCIS and CBP to Implement Form I-129 Pilot Program for Canadian L-1 Nonimmigrants

U.S. Citizenship and Immigration Services' (USCIS) California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) port of entry (POE) at Blaine, Washington, will implement a joint agency pilot program from April 30, 2018, to October 31, 2018, for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA). USCIS said the pilot is designed to facilitate the adjudication and admission process for Canadians traveling to the United States as L-1 nonimmigrants.

Department of Homeland Security regulations permit an employer to file an L petition on behalf of a Canadian citizen in conjunction with the Canadian citizen's application for admission to the United States. USCIS said that petitioners choosing to participate in the joint agency pilot program will be asked to:
  • Submit Form I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the CSC before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine POE; and
  • Use a cover sheet annotated with "Canadian L" to ensure quick identification of the I-129 and for any correspondence thereafter, such as a response to a request for evidence (RFE).
A petitioner who chooses not to participate in the pilot program may continue to file its L-1 petition on behalf of a Canadian citizen with CBP at the Blaine POE. In such a case, CBP will accept the petition but will adjudicate it at the next Class A POE.

For those who choose to participate in the pilot program, USCIS will receive fees, issue a Form I-797C receipt notice, and adjudicate the I-129. If USCIS needs additional evidence, the agency will send a request for evidence (RFE) to the petitioner.

CBP will continue to make the final determination on whether a Canadian L-1 applicant is admissible to the United States. Applicants participating in the pilot and seeking an immediate determination of admissibility must bring a copy of the petition approval notice for the I-129 when seeking admission to the United States at the Blaine POE, USCIS said.

If the petitioner chooses to send the applicant to the Blaine POE before USCIS makes a decision on the I-129, there may be delays while USCIS remotely adjudicates the form. USCIS said that in such a case, the applicant must bring a copy of the petition receipt notice for the I-129 and await adjudication of the I-129.

If a petitioner chooses not to file the I-129 in advance with USCIS, the filing may continue to be made with CBP at the Blaine POE, but CBP will adjudicate it during the pilot at the nearest Class A POE. The beneficiary may apply for admission at any designated Class A CBP POE optimized for processing L-1 petitions for Canadian citizen beneficiaries. Accordingly, petitioners can still choose to have CBP adjudicate their petitions at the time an applicant appears at any CBP-designated Class A POE or pre-clearance airport (PC). The three optimized stations nearest to Blaine are Class A POEs Point Roberts, Washington, and Sumas, Washington, and the Vancouver, Washington, PC.

CBP and USCIS "strongly encourage petitioners participating in the L-1 pilot program to file L-1 nonimmigrant petitions with USCIS as far in advance of travel as possible." USCIS said the L-1 nonimmigrant pilot program for Canadian citizens will allow both agencies to determine the efficiency of the program's procedures, identify shortcomings, and develop operational improvements. During the six-month pilot, stakeholders may communicate and provide feedback to USCIS. Once the pilot is complete, USCIS will seek feedback from stakeholders before considering extending the program concept to other POEs, the agency said.

Under existing law, a Canadian citizen may apply for admission as an L-1 nonimmigrant by presenting a petitioning employer’s Form I-129 to an immigration officer at a Class A port of entry or pre-clearance airport. Alternatively, an L-1 petitioner may choose to file a Form I-129 for a Canadian citizen with USCIS, seeking to classify the individual as eligible for L-1 nonimmigrant status. If the petitioner chooses to file its petition with USCIS and USCIS approves the I-129, the qualifying Canadian citizen may then apply at a POE for admission to the United States in L-1 status.

Read the USCIS announcement.

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USCIS Clarifies 'One-in-Three' Foreign Employment Requirement for Multinational Managers/Executives

U.S. Citizenship and Immigration Services (USCIS) has designated Matter of S-P, Inc., as an Adopted Decision. The adopted decision "establishes policy guidance that applies to and shall be used to guide determinations by all [USCIS] employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases," the agency said.

Matter of S-P- clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the "one-in-three" foreign employment requirement for immigrant classification as a multinational manager or executive. "To cure the interruption in employment, such a beneficiary would need an additional year of qualifying employment abroad before he or she could once again qualify," USCIS said.

In Matter of S-P-, the Administrative Appeals Office (AAO) agreed with the petitioner that a period of employment with a different U.S. employer would not automatically disqualify a beneficiary. However, "a break in qualifying employment longer than two years will interrupt a beneficiary's continuity of employment with the petitioner's multinational organization. Such breaks may include, but are not limited to, intervening employment with a nonqualifying U.S. employer or periods of stay in a nonimmigrant status without work authorization," the AAO said.

Read the memorandum, issued March 19, 2018, includes the decision.

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OIG Says USCIS Has Unclear Website Info and Unrealistic Time Goals for Adjudicating Green Card Applications

U.S. Citizenship and Immigration Services' (USCIS) Office of Inspector General (OIG) recently found that information USCIS posts on its website about the time it takes field offices to adjudicate green card applications (processing times) is confusing and "unclear and not helpful" because it does not reflect the actual amount of time it takes field offices, on average, to complete green card applications.

In addition, the OIG noted that the actual average time it takes USCIS to process green card applications has lengthened. USCIS's goal is to adjudicate applications within 120 days, but since fiscal year 2011, the OIG said, the overall average number of days has risen to twice the goal. The OIG said it believes the time goal is "unrealistic."

The OIG recommended that USCIS present information on the USCIS website that is more accurate, and reassess the current time goal of 120 days to determine whether it is reasonable and realistic, increasing the time frame if necessary. USCIS concurred with both recommendations.

Read the report.

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California, Sued by Dept. of Justice for 'Sanctuary' Laws, Continues to Resist

The Department of Justice (DOJ) filed a lawsuit on March 6, 2018, against the state of California, Governor Jerry Brown, and the state's attorney general, Xavier Becerra, over several "sanctuary" laws passed by the state. DOJ argues in its complaint that these laws "have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California. The Supremacy Clause does not allow California to obstruct the United States' ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution. Accordingly, the provisions at issue here are invalid."

The three laws at issue are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration law compliance; the California Values Act, which limits communication from state and local law enforcement with federal immigration officials and prevents them from investigating people for immigration enforcement purposes; and A.B. 103, which subjects local detention facilities to twice-yearly inspections by the California Attorney General's office.

It appeared that the Trump administration's pushback against California and other states enacting such laws is not confined to lawsuits or ICE raids. Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), reportedly said after one of the laws was enacted that "[w]e've got to start charging some of these politicians with crimes." And Homeland Security Secretary Kirstjen Nielsen said the Department of Justice was looking into "what avenues might be available" for potentially charging state and local officials. On March 6, in a speech in California, U.S. Attorney General Jeff Sessions invoked the Civil War, stating, "There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg or to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled."

California officials remained defiant in the face of the lawsuit and other threats. Mr. Becerra responded to the lawsuit and related threats that California will not do the federal government's "bidding on immigration enforcement and deportation." He said state and federal teams "work together to go after drug dealers and go after gang violence," but that the state would not "change from being focused on public safety" rather than on deportation.

On January 17, 2018, U.S. Senators Dianne Feinstein (D-Cal.) and Kamala Harris (D-Cal.) sent a letter to Mr. Homan asking for a full accounting of how ICE raids are being prioritized and conducted, quoting a television interview where Mr. Homan had said "California better hold on tight." Sens. Feinstein and Harris said they were deeply concerned that ICE was not prioritizing violent criminals. "We firmly believe that law enforcement must prioritize dangerous criminals and not undocumented immigrants who do not pose a threat to public safety. Diverting resources in an effort to punish California and score political points is an abhorrent abuse of power, not to mention a terrible misuse of scarce resources." Oakland Mayor Libby Schaaf recently publicly warned that ICE agents were about to conduct a large operation in her area. "I know that Oakland is a city of law-abiding immigrants and families who deserve to live free from the constant threat of arrest and deportation. I believe it is my duty and moral obligation as mayor to give those families fair warning when that threat appears imminent," she said. Mr. Homan said that as a result, federal agents subsequently were able to arrest only about 200 people instead of a higher percentage of the 1,000 they had targeted. President Trump threatened to pull all ICE agents out of California.

Subsequently, James Schwab, ICE's spokesperson in San Francisco, quit his position, stating, "I quit because I didn't want to perpetuate misleading facts. I asked them to change the information. I told them that the information was wrong, they asked me to deflect, and I didn't agree with that. Then I took some time and I quit." He said he "didn't feel like fabricating the truth to defend ourselves against [Mayor Schaaf's] actions was the way to go about it. We were never going to pick up that many people. To say that 100 percent are dangerous criminals on the street, or that those people weren't picked up because of the misguided actions of the mayor, is just wrong."

Read the lawsuit against California.

Read the Feinstein-Harris letter.

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Lost in the Weed: Practitioners Warn About Potential Immigration Consequences of Marijuana Use

More and more states are legalizing marijuana for both medical and recreational use. But federal law still makes most marijuana use criminally prosecutable and a ground of inadmissibility for people wishing to come to the United States. Immigration practitioners are warning clients that U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services officials are increasingly asking people about past marijuana usage.

According to the Immigrant Legal Resource Center (ILRC), as of January 2018, 28 states and the District of Columbia had legalized medical marijuana, and 8 states plus the District of Columbia had legalized recreational marijuana for adults. ILRC warns that if a noncitizen admits to an immigration official that he or she has ever possessed marijuana, the person "can face very serious immigration problems." This is true "even if the person never was convicted of a crime, just used marijuana at home, and it was permitted under state law." ILRC recommends avoiding marijuana until a person is a U.S. citizen; getting legal counsel in the event of a real medical need; never leaving the house carrying marijuana, a medical marijuana card, or related paraphernalia or accessories; and not posting photos or information about use of marijuana on phones or social media. ILRC also recommends never discussing marijuana use or possession with any immigration or border official. If an official asks about marijuana, "say that you don't want to talk to them and you want to speak to a lawyer. You have the right to remain silent. ...once you admit it, you can't take it back. If you did admit this to a federal officer, get legal help quickly."

About a year ago, CBP issued a travel advisory in Minnesota for medical marijuana prescription holders, reminding travelers planning trips "across the border into Minnesota or North Dakota to leave their medicinal marijuana at home." Although medical marijuana is legal in many U.S. states and Canada, the travel advisory notes that "the sale, possession, production and distribution of marijuana all remain illegal under U.S. federal law. Consequently, crossing with a valid medical marijuana prescription is prohibited and could potentially result in fines, apprehension, or both."

Read the CBP travel advisory.

Read the ILC warning.

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New Publications and Items of Interest

Immigrant and Employee Rights Section's free webinars. The Department of Justice's Immigrant and Employee Rights (IER) Section enforces the antidiscrimination provisions of the Immigration and Nationality Act. IER is offering a webinar on April 18, 2018, on "IER Training for Employers and HR Professionals" (register here) and on April 26, 2018, on "IER Training for Workers & Advocates" (register here).

Support for DREAM Act by legal practitioners and scholars. A group of legal practitioners and scholars with experience in the field of immigration have published a statement in support of passing a "clean" DREAM Act.

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America: 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

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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: Back to top

Hodkinson Law Group News

Kehrela was recently interviewed by The Independent, a UK newspaper, regarding the immigrant visa category by which Melania Trump’s parents obtained their permanent resident status, read the article here.

Kehrela Hodkinson was selected as one of the top three Thought Leaders in Corporate Immigration in Europe by Who’s Who Legal in its 2017 Corporate Immigration Analysis. “Kehrela Hodkinson is a ‘brilliant’ lawyer who is ‘really, really good with clients’ and a ‘very helpful, efficient’ practitioner on immigration issues. She continues to be regarded as one of the leading experts in US immigration practising abroad.” Kehrela is a founding member of Alliance of Business Immigration Lawyers (ABIL). She has been practising U.S. immigration law since 1980 and has been in London since 1994. Her passion for assisting both individual and corporate clients resolve their US immigration issues has never waned in her 35+ years of practising law.

Sharon Noble has been practicing U.S. immigration law with Hodkinson Law Group since 1996. Her areas of expertise include non-immigrant and immigrant visa petitions for corporate employees, individual investors and entrepreneurs. Ms. Noble worked with Ms. Hodkinson in London for seven years before returning to the United States in 2003. She is now Of Counsel to Hodkinson law Group, working remotely from California.

Tasha Cripe continues to assist our clients in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility. She is a member of the Illinois State Bar and is actively involved in The American Immigration Lawyers Association Military Assistance Program.
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Kehrela Hodkinson has been named as one of the top three Thought Leaders in Corporate Immigration in Europe by "Who's Who Legal, Corporate Immigration 2017'.

Sharon Noble has been practicing US immigration law since 1996. She is Of Counsel to Hodkinson Law Group, working remotely from California.

Tasha Cripe assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications for waivers of inadmissibility.
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