Articles Posted in Business Immigration

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corte-suprema-di-cassazione-3682663_640-300x200Recent decisions by US Attorney General Jeff Sessions may place heavier limitations on immigration courts and impact their treatment of unlawfully present immigrants, signifying a change in the way immigration courts may start handling certain types of cases and the way immigration law is enforced in the US.

The first is a ruling wherein Sessions declares that an immigration judge’s discretion is not enough to dismiss a case.

“The authority to dismiss or terminate proceedings is not a free-floating power an immigration judge may invoke whenever he or she believes that a case no longer merits space on the docket,” Session wrote in the 7-page ruling.

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visa-3653492_640-300x184In June this year, US Citizenship and Immigration Services (USCIS) released Policy Memorandum with the subject: Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens in responsive to a Trump EO (Enhancing Public Safety in the Interior of the United States) issued last year, which ordered USCIS to prioritize the removal of unlawfully present immigrants in the country.

The memo targets all delinquent immigrants, including holders of EB-5 visas who are overstaying in the country. At present, USCIS can at any moment file an NTA on an immigrant when they meet certain criteria, initiating removal proceedings.

A foreign investor under the EB-5 may now be issued an NTA when they are found to have made an immigration violation, abused public benefit programs, or have fallen out of legal status. They can also be removed for being arrested for a criminal offense whether or not the case has been resolved and regardless of its outcome.

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pass-2530813_640-300x200US Citizenship and Immigration Services (USCIS) announced on August 28, 2018 that it will extend the temporary suspension of premium processing for H-1B petitions subject to the annual cap, as well as expand the suspension’s coverage to include other H-1B petitions.

About the H-1B

The H-1B program allows foreign workers in highly specialized fields to enter and work in the United States, as provided by section 101(a)(17)(H) of the Immigration and Nationality Act. The visa is available to workers who are experts in technology, accounting, academic research, and other fields “requiring specific theoretical and technical expertise.”

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woman-792162_640-300x200U.S. Citizenship and Immigration Services (USCIS) has published a final immigration memorandum updating its newly implemented unlawful presence policy, which changed how USCIS determined whether foreign students and participants of student exchange programs were lawfully in the country.

According to the memo, F- and M-visa holders will not be deemed as being in the country unlawfully while waiting for their visas to be reinstated, so long as they file their reinstatement applications no longer than five months after their status expires.

If, however, their reinstatement application is denied, they will automatically begin accruing unlawful presence the day after being notified of their denial. Likewise, J-1 visa holders with reinstatement applications that are approved will not accrue unlawful presence.

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visa-3109800_640-300x169The Visa Control and Reporting Division of the US Department of State (DOS) announced last week that it will be cutting back on processing immigrant visas for certain “priority workers” due to their unmanageable worldwide demand.

Priority workers, also known as “EB-1” (employment-based first preference workers), include “persons of extraordinary ability in the sciences, business, arts or sports; outstanding professors and researchers; and multinational executives and managers.”

In light of this announcement, US Citizenship and Immigration Services (USCIS) and the DOS have, since August 1 of this year, ceased issuing both immigrant visas and lawful permanent residence status to at least 137,000 highly in-demand workers.

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money-256312_640-300x200A number of Texas businessmen and business organizations have recently filed a brief in opposition of the Texas state government’s efforts to pursue legal action aimed at terminating the Deferred Action for Childhood Arrivals (DACA) program, the Obama-era immigration policy they claim plays a vital role in the Texas economy.

Representatives from southwest businesses, business associations, and Hispanic Chambers of Commerce filed the brief last week objecting to Texas Attorney General Ken Paxton’s lawsuit against the DACA program, citing concerns over the significant negative consequences that getting rid of the program would have on their businesses. Rescinding DACA, they claim, would cause Texas to lose over $6 billion in economic activity over the next 10 years.

DACA is an Obama executive order that took effect in 2012, designed to protect immigrants who entered the country as children from immediate deportation and provides them the opportunity to acquire temporary work permits. The brief states that DACA has given over 126,000 Texas-based immigrants deferred status since its implementation.

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pulse-trace-163708_640-300x169The Supreme Court’s decision to uphold President Trump’s immigration/travel ban in Trump v. Hawaii will have a substantial impact on the industries that depend on employing immigrant workers from countries affected by the ban, namely: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

The healthcare industry is expected to take a specifically strong blow as the United States is already facing a critical shortage of healthcare professionals including nurses, doctors, and home health aides, ban notwithstanding. According to the Migration Policy Institute, immigrants comprise at least 30 percent of all physicians and surgeons in the country, with Syria and Iran among the top 10 countries supplying these professionals.

Over 30 organizations, including the Association of American Medical Colleges (AAMC), wrote a joint statement to the Supreme Court in an amicus brief during the Trump v. Hawaii proceedings, pointing out that “international health professionals provide essential care in teaching hospitals and their communities, particularly for rural and underserved populations.”

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build-builder-carry-585419-300x200The U.S. Department of Labor (DOL) released a list of proposed changes to ETA Form-9035, also known as the Labor Condition Application for Nonimmigrant Workers (LCA), which could place added burdens on companies that hire and place migrant workers with H-1B visas (a program under the Immigration and Nationality Act.)

Under the current policies, petitioning employers are only required to note the addresses of end-user clients’ worksites they intend to place H-1B workers in. On the other hand, details such as the names of the clients associated with these worksites are unnecessary to the petition process.

The DOL’s proposed changes, however, expand the information requirements to include:

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apron-celebration-cute-763934-300x199Secretary Kirstjen Nielsen of the Department of Homeland Security (DHS) recently released a statement declaring the addition of 15,000 H-2B temporary visas to be issued to non-agricultural foreign workers for Fiscal Year 2018.

While 66,000 working visas have already been issued this year, Homeland Security has determined that thousands more are required to keep U.S. businesses that depend on an increased workforce afloat for FY2018. After consulting with members of the Congress and business owners, Nielsen admits that there are not enough qualified U.S. workers available to work in non-agricultural fields, justifying the move.

“The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses, it needs to be reformed,” Secretary Nielsen explains. “I call on Congress to pass much needed reforms of the program and to expressly set the number of H-2B visas in statute. We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program. As Secretary, I remain committed to protecting US workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

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adult-auto-automobile-558375-300x200US Citizenship and Immigration Services (USCIS) and the Justice Department published a Memorandum of Understanding (MOU) last week to announce their joint effort to identify and eliminate fraud, abuse, and discrimination among employers that hire immigrant workers. Both agencies are set to make changes geared towards improving communication and cooperation in handling such cases.

The partnership expands on existing efforts to crack down on immigration-related labor abuses. At present, USCIS and the DOJ’s Civil Rights Division have the Protecting US Workers Initiative, which investigates and prosecutes employer discrimination and misuse of E-Verify. Both projects emerge from President Trump’s “Buy American, Hire American” anti-immigrant agenda.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against US workers by favoring foreign visa workers,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against US workers based on their citizenship status.”