February 19th, 2015 by W. Scott Railton
President Obama’s attempt to expand the Deferred Action for Childhood Arrivals (DACA) and implementation of the Deferred Action for Parents of U.S. citizens and Lawful Permanent Residents (DAPA) is temporarily on hold, after a U.S. District Court in Texas issued a preliminary injunction based on the Administrative Procedures Act (APA). The agency was scheduled to begin accepting DACA applications on the expanded basis, beginning today.
The decision does not come as a surprise to those following the issue closely. The State of Texas picked the forum for the suit, and did so with forethought. It is somewhat of a surprise that that the decision was based on the APA’s rulmaking process, rather than on a determination of a constitutional overreach by the President. The U.S. Government will appeal, and the matter could take some time to reach judicial closure. The case could end up in the Supreme Court eventually. If so, then it will be a matter of swing votes, as Supreme Court decisions usually are. In the meantime, DHS and the White House have said they will not move forward with the expanded DACA and new DAPA programs.
Congress continues to avoid dealing with the immigration issue. The House of Representatives latest plan is to threaten to defund Department of Homeland Security over the President’s executive action. Pundits and campaign experts now will analyze the political fallout of these non-events for Republicans and Democrats, as each party positions itself for elections next year. This is how you don’t get things done in DC.
Here is the press release issued in response to the decision by DHS Secretary Jeh Johnson:
Feb. 17, 2015
Contact: DHS Press Office, (202) 282-8010
STATEMENT BY SECRETARY JEH C. JOHNSON CONCERNING THE DISTRICT COURT’S RULING CONCERNING DAPA AND DACA
I strongly disagree with Judge Hanen’s decision to temporarily enjoin implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it.
Accordingly, the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.
The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do.
It is important to emphasize what the District Court’s order does not affect.
The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012.
Nor does the Court’s order affect this Department’s ability to set and implement enforcement priorities. The priorities established in my November 20, 2014 memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” remain in full force and effect. Pursuant to those enforcement priorities, we continue to prioritize public safety, national security, and border security. I am pleased that an increasing percentage of removals each year are of those convicted of crimes. I am also pleased that, due in large part to our investments in and prioritization of border security, apprehensions at the southern border – a large indicator of total attempts to cross the border illegally — are now at the lowest levels in years.
For more information, visit www.dhs.gov.
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February 13th, 2015 by W. Scott Railton
U.S. Citizenship & Immigration Services is scheduled to begin accepting a wider range of applicants under the Deferred Action for Childhood Arrivals (DACA) program on February 18th. The expansion of the program is one of the measures included in President Obama’s Executive Action on Immigration. Work authorization will now be available to qualifying persons of any age who entered the U.S. before the age of 16 and have been in the U.S. continuously since January 1st, 2010. The temporary period of work authorization granted will now also be extended from two years to three years.
The program may be halted by lawsuit, however, as more than half of U.S. states are involved with a lawsuit to halt the executive action. Texas is leading the charge of 26 states against the Executive Action, claiming it is an exercise in executive overreach. The Washington State Attorney General has filed an amicus brief arguing the opposite, and was joined by 12 states. So, the possibility is real that a court may issue an order to halt the agency from acting on the President’s program, at least temporarily.
The program is set to expand even further in May. The government currently projects that it will begin accepting applications in mid-to-late May of 2015 for undocumented individuals living in the United States who are the parent of a U.S. citizen or lawful permanent resident and who (1) have lived continuously in the U.S. since January 1st, 2010; (2) had on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and (3) who is not an enforcement priority for removal under certain published guidelines.
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February 4th, 2015 by W. Scott Railton
Here’s a press release from CBP, issued on January 29th, announcing a new NEXUS enrollment center in Birch Bay, just south of the border in NW Washington:
BLAINE, Wash. – U.S. Customs and Border Protection (CBP) and Canada Border Services Agency (CBSA) today announced the relocation and expansion of a joint “Trusted Traveler” Enrollment Center (EC) in the Birch Bay Square business center, Blaine, Washington. The Enrollment Center is designed to make obtaining a NEXUS border-crossing card easy and convenient for nearby residents on both sides of the border. Today’s announcement came at a commemorative ribbon-cutting ceremony held at the new Enrollment Center.
NEXUS is a joint CBP/CBSA program that offers pre-screened, approved travelers dedicated lanes at selected ports faster processing permitting border agencies to concentrate their efforts on potentially higher-risk persons. NEXUS was established in 2002 as part of the Shared Border Accord, a partnership between the United States and Canada. Over one million U.S and Canadian citizens are currently enrolled in the NEXUS program.
“Border security remains our utmost priority,” said CBP’s Michele James, Director-Field Operations, Seattle Field Office. “Facilitating legitimate cross-border travel is also a major priority. The NEXUS program reduces border wait times for trusted travelers allowing us to focus our enforcement resources where they are needed.”
“As partners, we work closely with USCBP to ensure the security of our shared borders,” said CBSA Regional Director General, Pacific Region, Roslyn MacVicar. “It is through continuous collaboration and diligent efforts on behalf of all partners, that the NEXUS program continues to grow and expand.”
The new Enrollment Center is located on Interstate 5 (Exit 270) within 10 minutes driving time of the U.S./Canadian border at 8115 Birch Bay Square Street. The expanded facility and additional CBP/CBSA staffing will provide the ability to double the number of conditionally-approved applications currently processed. The NEXUS application process begins online with one application, interested persons may obtain more information and apply at the Global Online Enrollment System (GOES) website.
On June 1, 2009, the Western Hemisphere Travel Initiative (WHTI) rules took effect requiring all U.S. and Canadian citizens to present proof of citizenship and identity in a single document at land and sea ports of entry. Trusted traveler cards, such as NEXUS, SENTRI, Global Entry and FAST, are considered WHTI-compliant documents and are accepted for cross-border travel. NEXUS pre-approved travelers crossing the U.S./Canada border receive the added benefits of expedited marine reporting and access to NEXUS kiosks at designated Canadian airports. A five year NEXUS membership card costs $50 (USD).
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January 20th, 2015 by W. Scott Railton
Last week a bipartisan group of Senators introduced the Immigration Innovation Act of 2015 (S. 153). Commonly referred to as the “I-Squared” Act, this bill provides critical reforms needed in the area of high-skilled immigration.
The bill includes the following provisions:
• Raises the H-1B cap from 65,000 to 115,000 and creates market demand provisions for the cap to go up (but not above 195,000) or down (but not below 115,000), based on usage.
• Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
• Authorizes employment for dependent spouses of H-1B visa holders.
• Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.
• Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.
• Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.
• Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.
• Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.
The bill was introduced by Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT).
If passed–and we all know that is a big “If”–these measures will be a move in the right direction for the improvement of high skilled immigration in the U.S.
The current base H-1B cap number is completely out of touch with U.S. business needs, as we see every April 1st. Cap demand does change year to year, and during the Great Recession, the annual quota was slowly depleted, but last year less than half of applicants were picked in the April lottery. Uncapping the Master’s degree program will be a boost for employers and higher education. The Dual Intent change brings the law in to sync with every day realities.
More can be done. The arbitrary six year cap on H-1B time creates all sorts of unnecessary chaos for some beneficiaries who wish to pursue permanent residence. Labor mobility should be improved, as persons can get stuck in their job due to a long-standing application. Innovation and entrepreneurship should be further encouraged in immigration laws, though use of the E, O, H-1B, and permanent resident categories. While STEM profession are desirable, immigration should focus more broadly on the higher educated. Reducing the cost of applications will encourage greater high skilled investment. Some type of citizen’s suit provision, or money-back guarantee, for arbitrary and capricious agency decisions might lead to more predictability from USCIS. Unlikely, for sure, but some measures are needed to call DHS agencies to account for the expensive red tape they sometimes needlessly foister on businesses. Filing fees have increased significantly over the years, and businesses have some reasonable expectations associated with the payment of these significant costs.
With the Republicans majorities in the Senate and House, there is a decent chance that legislative action on immigration will be taken in a piece-meal fashion, focusing on individual sector interests. If that happens, there’s also a decent chance high skilled immigration proposals such as the I-Squared Act will receive attention.
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December 9th, 2014 by W. Scott Railton
Businesses and professionals have asked us how the President’s executive actions may impact them. The language and memorandums are very promising. However, we will have to wait and see how things play out. Many of the particulars still have to make it through the Federal Register publication process, which includes agency drafting of rules and required public comment periods.
Things to know:
Probably the best introductory resource is the Department of Homeland Security’s dedicated page, which references a number of different memorandums and actions. For the DHS memo which addresses changes for employers and high skilled workers, visit here. The White House’s website and dedicated webpage is also a good resource. The American Immigration Council has published a comprehensive summary of the President’s actions.
2. The Law and Politics of the Executive Action
Seventeen states, led by the Texas Attorney General, filed a lawsuit last week to stop the President’s actions, based on claims that his actions are unconstitutional, as an overreach of his authority. Our take, in a nutshell, is the President’s actions are constitutional, due to the existing broad delegation of authority in the Immigration and Nationality Act. If Congress wants to change things, it will need to pass a law. Some judges may disagree, at least in part, and some of the President’s actions are edgier than others, and so we’ll wait and see.
The House of Representatives passed a bill last week, by a small majority, voting on partisan lines, which found the actions unconstitutional. It is unlikely the bill will go anywhere. Even if it passed the Senate, the President presumably would veto the bill.
It is going to take a while for the actions to take effect. In many cases, federal regulations and processes have to be drafted, and published in the Federal Register first for comment. For less-specific orders, such as where the President ordered agencies to consult to streamline immigration processing measures, some activity may be seen after the turn of the year. Of course, it’s possible the litigation may slow things down.
Some of the proposals to help high skilled workers have been in the making for a while, such as H-4 work authorization for spouses of persons with approved I-140s. That should be coming soon, and would likely be of interest to some.
In 2012, the Deferred Action for Childhood Action program was announced in June, and the agency began accepting applications two months later. It will be interesting to see how fast the affirmative application processes can be implemented here.
4. Specific measures Impacting Businesses
a. Perhaps the most noteworthy possible change related to business is the possibility of “preregistration” for those who have an approved I-140 but don’t have a current priority date. This has been mentioned in stakeholder briefings from the White House, but hasn’t explicitly made it into the press releases or other announcements. This would allow a process to apply for an employment authorization/travel document. It is possible this will be written into the regulations, but we’ll have to wait and see. It’s also possible the proposal needs to be further vetted before release, as the statute on adjustment of status is relatively clear. Such an action could impact many persons who are stuck in long waits, and could reflect the White House statements concerning relief to 400,000 workers.
b. Guidance is likely to be issued that will allow a more liberal view of portability for position same or similar position changes, when persons switch positions with after having an immigrant visa petition. This would provide more confidence to employers and beneficiaries in taking promotions and other natural career changes.
c. The President has asked the agencies involved in issuing visas to come up with a plan to coordinate between them to streamline the application process (e.g. single data entry, background checks). The expectation is measures will also speed up the process.
d. The agencies have been directed to take measures to favor entrepreneurs, such as greater use of the National Interest Waiver provisions for job-creators.
e. The PERM labor certification system is supposed to be reevaluated and amended. This sounds promising, but it could take a long time to have impact, due to federal regulation and internal system processes. It has been asked that the process include harmless error provisions, which would at least cover clerical errors. Ideally, we’ll see an expanded use of Schedule A. For instance, we have lobbied for use of Schedule A with regard to physicians practicing in underserved areas.
f. There may be a number of revisions to Optional Practical Training (OPT) for foreign students. The DHS Secretary has directed the agency to expand the list of STEM degree programs eligible for automatic OPT extensions of 29 months for certain employers (which would include Providence). That period may be lengthened too, though no alternative length of time has been said. There also may need to be closer nexus between degree and training than which has been required to date. There are also indications of labor market protections being implemented related to OPT usage.
These are just some of the highlights. There are other reforms which may come in relation to the use of parole, military enlistment, and other areas. Of course, the centerpiece of the proposal is the Deferred Action programs for parents of U.S. citizens and lawful permanent residents, and the expansion of the rules for the Deferred Action for Childhood Arrivals. Experts say these latter two proposals could create work authorization for roughly 5 million persons.
November 21st, 2014 by W. Scott Railton
After much deliberation, press, and controversy, President Obama announced tonight that he will take executive action to improve the United States’ immigration system. His speech, and various briefing materials, can be found at the White House’s website. Specifics on the action plan, including border security measures and applications processes, can be found here at the Department of Homeland Security’s website.
Note: many of the affirmative relief measures will take some time to implement, as the government (and principally Department of Homeland Security) has to create forms, systems and processes for individual applications. Where the issuance of a regulation is required–which is only true in some instances–there will be lag time to implementation.
The plan is politically controversial. The President has legal authority to implement broad measures—the question is just how broad that authority goes? As he said in his speech, most of his predecessors have exercised executive action in the context of immigration. The Immigration and Nationality Act delegates broad discretionary powers to the President. Further, prosecutorial discretion is fundamental to the responsible implementation and enforcement of immigration laws, which falls to the Executive Branch. The limits of these powers may be tested. The Department of Justice issued a legal memorandum, dated November 19th, 2014 (yesterday), which concludes the President can (1) prioritize removals as an act of prosecutorial discretion, and (2) can propose deferred action for relatives of U.S. citizens and lawful permanent residents; but (3) cannot authorize deferred action for parents of DACA recipients, as the President proposes.
The President’s Executive Action is presented as having three critical elements: (1) cracking down on illegal immigration at the border, (2) deporting felons, not families, and (3) accountability – criminal background checks and taxes. Most notably, the action may allow as many as 4 million (or more) persons to apply to come out of the shadows and obtain work authorization, and become part of the tax system.
Our business clients are likely to see significant benefits from the Action Plan, as presented. The Action Plan has language favoring enhanced opportunities for foreign entrepreneurs. The Plan intends to strengthen and extend on-the-job training for STEM graduates from U.S. universities. Portable work authorization shall be made available for high skilled workers awaiting lawful permanent resident status, as well as for their spouses.
The Action Plan also includes measures to improve border security and promote public safety, by focusing on persons who are threats to society. The Action Plan also will seek to promote citizenship public awareness. It has language which provides relief to spouses and children of U.S. citizens seeking to enlist in the military. The Plan also expand the already existing Deferred Action for Childhood Arrivals program to cover additional DREAMers.
Reforms are much needed. In some cases, these measures don’t go far enough, such as where discretionary relief is limited to those with U.S. citizen relatives, or with the range of possible reforms that could help business. There is much good news here for many. I suspect in time many of these measures will be widely accepted, as has seemed to be the case with DACA after two years.
The need for Congress to act on immigration remains. I was on Capitol Hill last week meeting with Congressional offices to discuss immigration matters. My impression, based on the news and these meetings, is that a comprehensive immigration bill is unlikely in the near future. The Action Plan therefore may serve the interests of the people, until Congress can pass a bill, whenever that shall be.
October 31st, 2014 by W. Scott Railton
The Board of Immigration Appeals rules this week that a Form I-9 (Employment Eligibility Verification form) is admissible in immigration proceedings as evidence to establish removability. The case is Matter of Bett, 26 I&N Dec. 437 (BIA 2014). This decision may have widespread implications for persons seeking immigration benefits, as well as for persons seeking relief from removal. The issue has been coming up increasingly at local U.S. Citizenship & Immigration Services field offices.
The I-9 Form is used to verify a person’s work authorization. It is completed at time of hire by new employees. The new employee must state their status in the United States. The form offers an opportunity to declare that a person is a U.S. citizen. Of course, this box gets checked sometimes by persons who are not U.S. citizens. This can be done intentionally or not intentionally, and may also be completed later by an employer. If a person makes a false claim to U.S. citizenship, they are inadmissible to the United States. Thus, if an I-9 is presented in removal proceedings, the Immigration Judge may now try to determine whether the form holds a false claim to citizenship.
The Court concurred with the 8th Ciricuit’s decision in Downs v. Holder, 758 F.3d 994 (8th Cir. 2014), and said the decision is binding against the Respondent Betts. The 8th Circuit concluded that I-9s are admissible in proceedings to enforce the Immigration and Nationality Act.
We have heard of reports of USCIS officers contacting employers to request copies of I-9s, to help them with the adjudication of applications for benefits. With this case, there is an increased chance that DHS attorneys and officers will seek to review I-9s in relation to fulfilling their duties under the Immigration and Nationality Act.
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September 17th, 2014 by W. Scott Railton
U.S. Customs and Border Protection is attempting to steer TN and L applicants to certain ports of entry and pre-flight inspection facilities in Canada for “optimal” processing. TN and L petitions can still be submitted at any Class A port of entry. However, CBP has designated certain ports of entry “that will ensure a more efficient approach to processing the high volume of TN and L applicants.”
The list includes major airports in Toronto, Vancouver, Calgary, and Quebec, as well as ten major land port of entries, including Highgate, Derby Line, Alexandria Bay, Peace Bridge, Rainbow Bridge, Champion, Detroit Canada Tunnel, Detroit Ambassador Bridge, Blaine Peace Arch, and Sweetgrass, MT. The CBP website also lists preferred time for the presentation of petitions, with most ports favoring times in the middle of the week. They really need to accommodate applicants on the weekend as well, since many working in the U.S. will drive to the border to renew over the weekend.
Time will tell how this plays out, but I am skeptical. In the old days, the ports used to have Free Trade Officers who were expert in NAFTA matters. They would usually take a reasoned approach to adjudications, and were amenable to hearing from attorneys on more technical points. Since 9/11, that has fallen by the wayside, and there have only been limited attempts by the agency to cultivate and put forth such expertise. Meanwhile, adjudications at the border have become increasingly erratic. These tendencies of border adjudicators have led some attorneys to opt for the less convenient processing that is possible with USCIS.
If the agency is going to do this, I would suggest that it is needed at more than 10 land ports. There are many, many more ports of entry on the Canadian border, and they all should have expertise in NAFTA matters.
Further, it is a little concerning that CBP highlights as the impetus for this program “the need for a more efficient approach to processing high volume of TN and L applicants.” Efficiency can mean many things, sometimes good, sometimes bad, but it’s not usually the first word that comes to mind when someone seeks an adjudication of a matter. Fairness is what most people seek first.
All this said, building a bank of NAFTA expertise within the agency is much needed, and this is possibly a start.
September 3rd, 2014 by W. Scott Railton
The Department of State (DOS) announced a proposed rule, effective September 6, to change several filing fees for visa applications and other consular services.
The most significant change is the administrative processing fee for formal renunciation of U.S. citizenship is increasing 422%, from $450 to $2350. DOS says that demand for this service has increased dramatically in the past few years, almost certainly in relation to IRS initiatives and new laws to collect taxes from citizens outside the U.S.
Overall, the costs of family based visa applications is increasing. The proposed fee for immigrant visa applications based on family relationships will increase $95, from $230 to $325. The affidavit of support review fee is rising from $88 to $120. Similar K visa applications for fiancee and family reunification are rising $25, from $240 to $265. These fees are in addition to the fees paid to U.S. Citizenship and Immigration Services (USCIS) for the initial stages of the application process.
Some application costs will be decreasing. For example, the fee for an E visa Treaty-Trader or Treaty Investor visa is dropping $65, from $270 to $205.
The fees are all proposed, and comments can be sent to firstname.lastname@example.org. The comment period is open until at least October 21st.
For the full published Federal Register notice, visit http://www.gpo.gov/fdsys/pkg/FR-2014-08-28/pdf/2014-20516.pdf.
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July 25th, 2014 by W. Scott Railton
USCIS issued guidance recently for determining whether or not a nursing position meets the definition of an “specialty occupation.” Specialty occupations are typically eligible for H-1B and E-3 professional work visas. The guidance advises that with the increase of nursing specialization, adjudicators need to take a careful case-by-case approach to analyzing whether an individual position is a specialty occupation. This is good news in light of the challenges hospitals and medical facilities have faced in obtaining H-1Bs for key nurse personnel.
The memo begins by clearly stating that the standard Registered Nurse position does not qualify for H-1B classification. The memo then notes that there is are three typical paths to obtaining an RN: a bachelor’s of science degree (BSN), an associate’s degree in nursing (ADN), or a diploma from an approved nursing program. The memo also notes that the increasingly, nurses are obtaining the Bachelor’s degree first, and that the private sector favors more highly educated nurses.
The memo lists a number of specializations in nursing: addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, peri-operative, rehabilitation, and other nurses. Depending on the facts of each case, some of these specializations may qualify as specialty occupations. The memo also offers a “non-exhaustive” list of Advanced Practice Registered Nurse occupations that may be specialty occupations: Certified Nurse-Midwife (CNM), Certified Clinical Nurse Specialist (CNS); Certified Nurse Practitioner (CNP); and Certified Registered Nurse Anesthetist (CRNA).
The memo advises adjudicators and stakeholders that the the appropriate evidentiary standard for determining whether a position is a specialty occupation is the “preponderance” standard, which means whether it is more likely than not. To evaluate the cases, adjudicators are instructed to weigh such factors in the record as (1) the nature of the petitioner’s business; (2) industry practices; (3) a detailed description of the duties to be performed within the petitioner’s business operations; (4) advanced certification requirements; (5) ANCC Magnet Recognized status; (6) clinical experience requirements; (7) training in the specialty requirements; and (8) wage rate relative to others within the occupation.
Time will tell how this plays out, but this memo opens the door for employers to pursue H-1Bs more confidently in cases where Registered Nurses are particularly specialized.