As you are likely aware, the administration just issued a new executive order restricting entry of H-1B/H-2B, L, and J visa (intern, trainee, teacher, camp counselor, au pair, or summer work travel program) holders and their dependents to the U.S. until the end of the year. We are analyzing the order and will provide more information in the next few days. Our preliminary review of the order indicates that the ban on entry is not all encompassing and there will be a number of exemptions to the ban. We will need to wait for further guidance from the Department of State and the Department of Homeland Security on the exemptions from the ban. Notably, the ban only applies to those who are outside the U.S. on June 22, 2020, who do not already have a valid non-immigrant visa.
USCIS has announced that it will close all field offices, asylum offices, and Application Support Centers to the public until at least April 1 in an effort to slow the spread of the coronavirus COVID-19. All scheduled interviews will be canceled and new interview notices will be sent out at a later date when they are rescheduled. Individuals with InfoPass appointments will need to reach out to the USCIS Contact Center to reschedule their appointments.
Below is the full announcement from USCIS:
Effective March 18, U.S. Citizenship and Immigration Services is suspending in-person services at its field offices, asylum offices and Application Support Centers (ASCs) to help slow the spread of Coronavirus Disease 2019 (COVID-19). This suspension of services will be effective until at least April 1. In the meantime, USCIS will provide limited emergency services. Please call the Contact Center for assistance with emergency services.
USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if your field office has been reopened before reaching out to the USCIS Contact Center.
Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.
USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please also visit uscis.gov/coronavirus for updates.
The Obama Administration created Deferred Action for Childhood Arrivals, or DACA, program, in 2012 to establish protections for children who were brought to the U.S. without proper immigration documentation. The program was available for undocumented foreign nationals who met certain requirements, including having arrived in the United States prior to 2007 when they were under the age of 16. Since the program’s inception, nearly 800,000 individuals have acquired status under DACA, which does not offer a permanent path to remain in the United States but protects those individuals from immediate deportation.
In September 2017, despite broad and longstanding bipartisan support for codification of the program’s protections, the Trump Administration announced that it would shut down the program entirely. President Trump argued that the program was illegal in the first place and that allowing undocumented individuals work authorization would undercut native-born Americans by usurping jobs and driving down wages. The president’s actions were swiftly met with several lawsuits, resulting in three nationwide injunctions by federal district courts. Individuals who currently have or have previously had DACA have been able to continue to renew their status in the meantime. In FY2018, USCIS processed approximately 332,500 requests for DACA renewals.
The Supreme Court announced in July that the justices will review the dispute over the termination of the DACA program. With the new term convening this week, the Justices have scheduled to hear oral arguments in November. The case purports to decide two fundamental questions: 1) If the decision to terminate the DACA program is a decision the Court can review at all, and 2) If so, whether the decision to terminate the DACA program is legal. A decision on the case is expected no later than July 2020.
Over 1,200 students from more than 17 colleges, including Yale, Stanford, Harvard, and the University of California-Berkley, are pledging not to work for software company Palantir over its contract with Immigration and Customs Enforcement (ICE). Palantir has come under recent criticism for providing data-mining software for ICE’s Investigative Case Management system, which is used in workplace raids and deportations. Palantir, who has worked with ICE since 2014, has an estimated $51 million contract with the immigration enforcement agency.
The advocacy campaign, called No Tech For ICE, is specifically targeting Palantir’s recruitment efforts on university and college campuses. “Without these corporate partnerships, Palantir’s recruitment efforts and future growth would stall,” the campaign said in a statement.
Earlier this month, Palantir’s CEO, Alex Karp, authored an op-ed defending the company’s position, stating, “[i]mmigration policy is not a software challenge; it’s a political one. . .[t]he solution lies with our political and judiciary system, not with Silicon Valley’s C-suite.”
Palantir, along with Microsoft, Amazon, Dell, and others, have faced criticism in recent months as part of a growing effort to call out companies for doing business with immigration enforcement agencies.
On September 4, 2019, The Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register that would amend current regulations to require petitioners filing an H-1B cap-subject petition to pay a registration fee. The rule proposes that U.S. Citizenship and Immigration Services (USCIS) would charge a $10 fee for each registration submitted. According to DHS, the purpose of the fee is to offset the cost of the H-1B cap registration system, but also to “deter frivolous [H-1B cap] registrations.”
The notice and comment period for the proposed rule was shortened to 30 days (instead of the usual 60) to allow for the requirement to be finalized before the new electronic registration system goes into operation. Accordingly, written comments on the rule must be submitted on or before October 4, 2019, and can be submitted to:
Federal eRulemaking Portal: http://www.regulations.gov. Follow this site’s instructions for submitting comments.
Mail: Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Mailstop #2140, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0006 in your correspondence. Mail must be postmarked by the comment submission deadline. Please note that we will not accept any comments that are hand delivered or couriered. In addition, we will not accept any comments that are on removable media (e.g. thumb drives, CDs, etc.). All comments that are mailed must be addressed as specifically written above.
This rule is only a proposal and is not yet in effect. The attorneys at Stern & Curray will provide updates as more information becomes available.
USCIS publishes new public charge rule that will likely have a negative effect on green card applicants.
This week, the U.S. Department of Homeland Security (DHS) published a final rule that redefines the public charge grounds for inadmissibility. The term “public charge” is used to describe individuals applying for admission to the U.S. or adjustment of status who are considered likely to become a burden on society. The new rule is set to go into effect on October 15, 2019, and may affect somewhere between 60-80% of green card applicants. Lawsuits have already been filed challenging the lawfulness of the new rule and seeking restraining orders to stop the new rule from going into effect.
What was the old public charge rule?
The current rule defines public charge as an individual who is likely to become primarily dependent on the government for support, meaning that they rely on cash assistance programs for income support or government funded long-term care. Immigration officers currently consider whether applicants have used these benefits in the past, which include welfare (TANF) and SSI (Supplemental Security Income). Under existing policy, the use of housing and nutrition programs or publicly-funded health care is not considered.
What has changed?
Under the new rule, any intending immigrant who received public benefits for more than a total of 12 months within a 36-month period has a heavily weighted negative factor against their application for permanent residence, and may be considered a public charge. Benefits considered for public charge determinations now include Medicaid, the Supplemental Nutrition Assistance Program (SNAP/Food Stamps), Section 8 housing assistance, federally subsidized housing, and any form of federal, state, or local cash assistance.
The following are not public benefits under the new rule:
- Medicaid for those under 21;
- Medicaid for pregnant individuals (including 60 days after giving birth);
- Medicaid under the Individuals with Disabilities Education Act;
- Emergency medical care or disaster relief;
- Members of the U.S. armed forces (and their spouses and children) who are enrolled in benefits programs;
- National school lunch programs;
- Student loans or mortgage loans; and
- Food pantries or homeless shelters.
Only benefits received directly by immigrants will be considered, so U.S. Citizen family members who receive benefits are not considered. Also, some immigrants, such as those granted asylum and refugees, are exempt from the public charge rules.
Immigration officers may also consider lack of proficiency in the English language to be a negative factor, and English proficiency to be a positive factor. Additionally, an individual’s medical conditions can weigh negatively against their applications, especially if they will likely require extensive medical treatment, are unable to work, and will likely be uninsured. The rule will still consider an applicant’s entire circumstance, including examining their financial status, size of family, age, education, skills, and employment status.
While the U.S. gets stricter on employment immigration, entrepreneurs choose to set up shop in Canada instead.
Everyone always seems to be concerned about the health of the economy, and rightfully so. As a country, we would all like to see our economy do better, and one way to do that is by providing a welcoming environment for tech companies to grow.
Tech companies are a hotbed for innovation and development. They hire a lot of skilled workers, who in turn generate new business and create new jobs, both within and outside of the tech industry. In the tech sphere, the best way to find the right people for the job is by bringing in professionals from around the globe.
Fortunately for our neighbors to the north, tech companies are now finding Canadian immigration policies to be much better suited to their business needs. In the meantime, the United States is losing out on some of these opportunities.
The U.S. used to be the center for entrepreneurial activity back in the 90s, when 95%of start-ups around the globe began here. Now that number has been cut in half, with no expected increase in sight. So why are more tech companies choosing Canada over the U.S.?
Economists and executives in the tech industry are saying that tough stances on immigration and increased backlogs for skilled worker permits pose a challenge to the start-up industry in the United States. Businesses want clarity and efficiency on what the work authorization process looks like—two words that are rarely associated with the U.S. immigration system. In fact, processing times for some work permits have doubled since 2014, and denial rates for H-1B temporary work visas have increased by 18% since 2015.
Meanwhile, in the past few years, Canada has been in the process of revamping its immigration system, adding new programs that are designed to attract business and skilled professionals. In 2017, Canada implemented the Global Skills Strategy program that allows businesses with offices in Canada to get their skilled worker visa applications processed in just two weeks. These workers can soon after apply for permanent residency, and can usually become citizens in just three years. In contrast, obtaining permanent resident status alone can take more than 10 years in the U.S. The program also allows applicants’ spouses to obtain work permits, making a move to Canada more feasible for prospective employees.
In 2018, Canada began its Start-Up Visa Program, which allows immigrant entrepreneurs to live and work in the country, as long as they have secured enough funding to support their businesses. Here in the U.S., we have a similar system called the International Entrepreneur Rule, but the Department of Homeland Security is currently planning on removing the program due to concerns that it doesn’t adequately project American workers.
Even giant companies are diverting workers to Canada to take advantage of the country’s streamlined business immigration policies. For example, in addition to sending more and more foreign skilled workers to Canada, Amazon is planning on expanding its presence in Vancouver, creating 3,000 new jobs in its new downtown office alone. Creating tech jobs isn’t where potential economic growth stops, either. Researchers have found that for every new high-paying tech job, five more jobs are created as a result, which include positions outside the tech industry.
For America, what used to be a great place for entrepreneurs to get started is now full of delays and barriers to global business immigration. Canada’s policies are faster and more clear-cut, and its goal of increasing its immigrant population is expected to account for about a third of the increase in the nation’s GDP by 2021. All immigrants, not just skilled workers, are good for business, and the U.S. could stand to take a page out of Canada’s playbook as we look for new ways to facilitate economic growth.
DHS releases updates to EB-5 Investor Visa Program.
Do you just happen to have $1.8 million lying around? If so, you might be eligible for an EB-5 visa. For the first time since 1992, the Department of Homeland Security (DHS) is updating the rules for the EB-5 investor visa program, which will go into effect in November of this year.
The EB-5 investor visa program was first enacted in 1990 as a way to attract foreign investors to the U.S. economy. Investors and their family members are eligible to apply for a Green Card and gain permanent resident status if they invest the required amount and create at least 10 full-time permanent jobs in the process. In 1992, Congress created the Regional Center Program, which allows some entrepreneurs to invest in designated regional centers that are meant to promote economic growth and job creation.
The EB-5 Program has a limit of 9,940 visas available annually and also limits the percentage that can be allocated to certain countries each year. At least 3,000 EB-5 visas must be reserved for TEA (Targeted Employment Area) investors. TEAs are meant to address locations with the most economic need and include rural areas and areas with high unemployment rates. Just as with any other visa, the demand for EB-5s is high. Priority dates are current for all countries except China, India, and Vietnam, which are backlogged to the year 2014. The majority of applicants are Chinese investors, who make up approximately 85% of EB-5 visa holders.
Updates to the EB-5 Program
The EB-5 Program has remained unchanged for almost 30 years. The DHS is finally rolling out updates, including changing the required minimum investment from $1 million to $1.8 million and increasing the minimum TEA investment from $500,000 to $900,000 to account for inflation. The amounts will increase every 5 years according to inflation to ensure that the program stays current.
Under the updated program, designation of high-unemployment TEAs will now be directly reviewed by the DHS, instead of deferring to state and local governments. The definition of high-unemployment TEAs has been clarified to include non-metropolitan towns with populations of 20,000 or more with an average unemployment rate of at least 1.5 times the national average.
The updates also allow investors to use the earliest available priority date, meaning that if an investor already has an approved EB-5 application, their priority date for that application effectively rolls over to their newly filed EB-5 application.
Problems with Fraud
The updated program doesn’t make changes to policies regarding fraud, which has been an ongoing problem with the EB-5 program since its inception. Investors continue to be vulnerable to scams that promise them a visa and guaranteed returns on their investments. In recent years, the major suits brought by the SEC (Securities and Exchange Commission) against EB-5 defrauders include $350 million against a Vermont ski resort, $125 million against a Seattle skyscraper developer, and $89 million against a Chicago immigration attorney.
Since policies preventing fraud remain unchanged, it is still up to individual investors to ensure the integrity of the programs they’re investing in. Back in 2013, US Citizenship and Immigration Services (USCIS) and the SEC issued an alert to investors and instructions on scam avoidance that can still be helpful today. Some of these guidelines are listed below.
Investor Tips for Avoiding EB-5 Fraud
- Know the warning signs of fraud, including promises of visas, guaranteed returns on investment, or representations that there is zero investment risk.
- Confirm that the regional center is USCIS-designated.
- Request copies of the center’s past investment information.
- Ask if promotors of the center are being paid.
- Seek independent verification of records, such as permits, tax assessments, and confirmed investment from other companies.
- For the complete list, read the full 2013 Investor Alert.
A brief history of immigration restrictions in America and how they have changed over time.
If you are an American citizen, there’s a pretty strong chance that you are descended from immigrants. Different generations of immigrants have had to face their own unique sets of problems, but many would find today’s immigration system virtually unrecognizable.
Barriers to Entry
While the 18th and 19th centuries posed physical barriers to immigration, such as the Atlantic Ocean, it turns out that many of these immigrants did not face any legal barriers to entry into the United States once they arrived. In fact, it wasn’t until 1875 that the U.S. enacted its first restrictive immigration statute, which banned entry to criminals, and later included people with contagious diseases, anarchists, beggars, polygamists, and traffickers of prostitutes. Up until 1875, the only action a person had to take in order to immigrate lawfully was to show up.
Starting in 1882 and continuing through 1943, Chinese laborers were banned from immigrating to the United States, and from 1917 through 1952, the U.S. banned immigrants from most Asian countries.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act increased enforcement with mandates to build fences on the Southwest border. Under the 2002 Homeland Security Act, the duties of the U.S. Immigration and Naturalization Service (INS) were transferred to the newly created Department of Homeland Security (DHS), which now includes Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). Created in response to 9/11, the DHS is actually the United States’ youngest cabinet department.
Barriers to Citizenship
Historically, one of the largest barriers to citizenship was race. Under the 1790 Naturalization Act, a free white person could naturalize after 2 years of residence if they possessed “good moral character.” This act formally barred citizenship to any non-white person.
After the Civil War, the Naturalization Act of 1870 allowed people of African descent to naturalize. It wasn’t until the 1952 that race was removed as a legal exclusion to immigration and naturalization.
Now, becoming a United States citizen involves an extensive ten-step process that includes filling out form N-400, completing a personal interview, and passing the U.S. Naturalization Test.
History of Deportation
In the past, deportation was limited to those who posed a serious danger to society. The 1798 Alien Friends and Enemies Acts were the first acts to authorize deportation of immigrants and included those who were either deemed dangerous to the U.S. or were citizens of a hostile nation during wartime. A version of the Alien Enemies Act is still in effect today. The 1882 Chinese Exclusion Act allowed the deportation of unauthorized Chinese immigrants.
Now, grounds for deportation apply to people who violate any law, including non-violent crimes and misdemeanors, and even those who fail to fill out a change of address form. From 1996 through today, policies enforcing deportation have been widespread, with roughly 5.77 million people deported between 1997 and 2016.
Introduction of Quotas
The concept of quotas is relatively new. The 1921 Emergency Quota Act was the first to create nationality-based immigration quotas with a cap of 350,000 that did not apply to countries in the Western Hemisphere. In 1924, the cap was almost cut in half at 165,000, and only people eligible to become citizens (whites and people of African descent) were allowed entry into the U.S.
Following the Chinese Exclusion Repeal Act of 1943, roughly 105 Chinese immigrants were allowed to immigrate each year. In 1952, Asian countries were granted a minimum quota of 100 visas per year.
In 1965, a new system was created favoring skilled immigrants and family reunification over quotas. The system also imposed the very first limits on immigration from the Western Hemisphere.
Now, USCIS often places a cap on the number of visas available, and different skillsets and personal situations are prioritized based on the availability of certain types of visas, making the U.S. immigration system one of the most selective and difficult to navigate in the world.
Employers see first return of no-match letters since 2011.
This March, the Social Security Administration (SSA) started sending letters to employers whose name and social security number (SSN) for one or more of their employees do not correspond to SSA records, also known as “no-match” letters. No-match letters might come about due to typographical errors, unreported name changes, or inaccurate or incomplete employer records.
Navigating the I-9 process is already complicated, and employers who violate these requirements can face fines and serious criminal charges. While receiving one of these letters isn’t immediate cause for alarm, it certainly is something to take seriously.
Though no-match letters are issued by the SSA, they arose out of I-9 audits by ICE that took place over the past two years and will likely lead to immigration enforcement. Unbeknownst to some employers, these I-9 audits were probably driven by leads that ICE received from various enforcement tools, like undercover work, E-Verify, USCIS application processing, and identity theft complaints. ICE believes that under certain circumstances it can request no-match data from the SSA. While there is a defense to this claim, ICE still may be able to access no-match data during the course of an I-9 audit.
What to do if you receive a no-match letter
Should I respond to the no-match letter?
- Yes. The new policy gives employers 60 days to respond. As noted above, the discrepancy might just be a typo or an oversight. However, in the case that the letter points to an employee who is unauthorized to work in the U.S., an unaddressed no-match letter can partially show that you had constructive knowledge of the situation, which could lead to criminal prosecution of your corporation, executives, and/or managers.
What process should I follow?
- Check the reported information against your records.
- Inform the affected employee that you have received a no-match letter.
- Ask the employee to confirm their name and SSN for your records, and submit any corrections to the SSA.
- Advise the employee to contact SSA and correct or update their SSA records.
What other information do I need to know?
- Be sure to give the employee a reasonable amount of time to address the no-match with the SSA, but you can also check in on their progress periodically.
- Do not attempt to request that the employee immediately fill out a new I-9 based on the no-match letter, and do not ask the employee to produce specific I-9 documents.
- Be sure to follow the same procedures for all employees in a fair and non-discriminatory manner.
What process should I follow?
- If you receive a no-match letter at home, do not notify your employer, as your employer might not have received a letter.
- If your employer informs you that they have received a no-match letter for you, ask for a copy of the letter and your W-2 form.
- Confirm whether your name and SSN match their records, and provide any corrections to your employer and the SSA, if applicable.
- Don’t lie. If you showed your employer false ID or work authorization documents when you were hired, do not show these same documents to your employer again, as this can get you in legal trouble.
What are my rights?
- Like all people working in the U.S., you have the right to:
- Remain silent about your immigration status
- Work without retaliation
- Organize with coworkers
- Be compensated for your work
- Keep in mind that your employer cannot terminate or suspend you based solely on their receipt of a no-match letter.
- Your employer also cannot ask you for proof of your immigration status or your eligibility to work based solely on their receipt of a no-match letter.
- Like all people working in the U.S., you have the right to:
How can I protect myself?
- First, keep calm and do not quit your job. Remember that receiving a no-match letter does not mean you are unauthorized to work in the U.S.
- Do not talk to anyone at work about your immigration status, as it could cause legal problems for both you and them.
- Tell your employer that you want someone else present in meetings about the letter, including a coworker, community advocate, or union representative.
- Reach out to a community organization, like the Colorado Immigrant Rights Coalition, for support.
- If you’re part of a union, contact your union representative right away, as you may have additional rights as a union member.
- Click here to see the National Immigration Law Center’s “Know Your Rights” web page.