Author: SCwpadmin

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New Form I-9

 USCIS has announced that the new I-9 form. Below are they key takeaways you need to know now.
Important Dates:
  • New form published on November 14
  • Employers must use the updated form by January 22, 2017
  • All prior versions are invalid after January 21, 2017

Changes to the Form:

  • Electronic format is simpler to complete
  • Prompts and features designed to reduce errors

As a reminder, fines for paperwork errors on the I-9 recently increased significantly from $110 to $1,100 per employee to $216 to $2,156 per infraction.

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Beyond Immigration Enforcement: Trump’s Plans for High-Skilled Immigration

While most of Donald Trump’s future plans for U.S. immigration law have centered on enforcement (i.e. his “10-Point Plan”), throughout the campaign he has made both vague and direct statements regarding U.S. high-skilled immigration policy under a Trump administration.

On one hand, Trump companies have often used high and low skilled visa categories to satisfy their employment needs. However, Trump has regularly attacked the H-1B program during the campaign. Beyond the many statements that he will suspend immigration from certain regions (particularly those “that export terrorism and where safe vetting cannot presently be ensured”), he has also said he will “end the use of the H-1B as a cheap labor program.” In fact, many Trump campaign events featured American workers allegedly displaced by companies that have used high-skilled visa categories to staff themselves. Moreover, within his 10-Points, Trump also stated he will “[e]nsure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.”

Given this ambiguous preview of what high-skilled immigration policy modifications lay on the horizon, when such policies will be implemented and what they will look like post January 20th is anyone’s guess.

 

by SCwpadmin SCwpadmin 47 Comments

Study Shows the Size of U.S. Unauthorized Immigrant Workforce Has Decreased Since 2009

Despite much talk this election cycle about unauthorized workers and “illegal” immigrants, a recent study from the Pew Research Center shows that the overall number of unauthorized workers in the U.S. has not risen since the end of the recession in 2009. Instead, the number of unauthorized workers has declined in recent years.

The study, based on data from the U.S. Census Bureau, found that while the U.S. total workforce grew by approximately 3.5 million between 2009 and 2014, the unauthorized immigrant workforce shrank slightly, by an estimated 100,000. This relative stability comes after a period of rapid growth in the unauthorized immigrant population during the 1990s and early 2000s, which peaked prior to the beginning of the recession in 2007. Currently,  unauthorized immigrants make up approximately 5 percent of the total U.S. labor force, or approximately 8 million workers, and are primarily employed in the agriculture and construction industries. In all sectors, however, U.S-born workers outnumbered unauthorized immigrant workers.  Since then, eight states have experienced significant declines in the number of unauthorized workers in their labor force: Alabama , California, Georgia, Illinois, Kansas, Nevada, South Carolina and Rhode Island. Although the rhetoric may continue, the available data fails to demonstrate any influx of unauthorized immigrant workers.

by SCwpadmin SCwpadmin 118 Comments

The Application Period for the Diversity Visa Lottery closes on November 7th

The Diversity Visa program selects 55,000 registrants at random from nations with historically low levels of immigration to the United States. Those selected are then given the opportunity to apply for Lawful Permanent Residence (a “green card”) in the U.S. The deadline for applicants to register for the 2018 Diversity Visa program is 12:00 p.m. Eastern Standard Time on the first Monday in November (11/07/2016). Beginning May 2, 2017, the results of the lottery will be available.

Those wishing to apply are encouraged to do so as early as possible and avoid applying in the final week of registration. Because of heavy demand for the lottery, the registration process may be significantly delayed.

Registration details and program instructions (including a list of eligible applicants) may be found here. There is no fee to register! To register for the Diversity Visa program, submit an entry at the official registration site: dvlottery.state.gov.

by SCwpadmin SCwpadmin 34 Comments

Obama Administration Contemplating Ending For-Profit Immigration Detention Centers

In August, the Federal Government announced its decision to end the use of for-profit prisons to house federal inmates. According to a memo released by the Department of Justice, the Federal Bureau of Prisons and the DOJ based their decision primarily on the facts that the cost savings of private facilities are negligible, and such facilities failed to provide “the same level of correctional services, programs and resources.”

Immigration detention facilities house far more detainees than the private facilities the federal prison system has used. However, it remains in question what the implications of this decision will be on the federal practice of contracting with private corporations to house immigrant detainees. The Obama Administration has budgeted $2.1 billion for detention operations in 2017, a system that currently holds over 31,000 people in custody on any given day. Out of the ten largest immigration detention facilities in the United States, nine are operated by private companies, housing about two-thirds of all immigrant detainees.

Figures for how much of the detention operations budget flows to private companies have not been released by Immigration and Customs Enforcement (ICE). However, federal budget data analysis by Grassroots Leadership, an Austin, Texas based non-profit organization, has found that about $1 billion a year, or half the annual budget for detention operations, went to private companies.

In late August, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, ordered a review of ways to end the use of private detention facilities. While Secretary Johnson has not taken a side on this issue, his Homeland Security Advisory Council is expected to make a recommendation by the end of November on the results of DHS’s review.

 

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The “Crime of Violence” Category in Immigration Law may soon be Void for Vagueness

In a 2015 case called Lynch v. Dimaya, the 9th Circuit held that 18 USC § 16(b), the statute that defines “crime of violence” for immigration purposes, to be unconstitutionally vague. The Court labeled the statue’s definition, as incorporated into INA § 101(a)(43)(F), to be vague following the Supreme Court decision in Johnson v. United States (2015). There, the Armed Career Criminal Act’s residual clause definition for “violent felony,” namely its language “involves conduct that presents a serious potential risk of physical injury to another” had been labeled unconstitutionally vague.

Before Dimaya, the open nature of Subsection (F)’s “crime of violence” definition included many criminal convictions, and conviction with a term of imprisonment of at least one year for a crime of violence constitutes an “aggravated felony.” In the immigration context, designation of a conviction as such is often devastating to non-citizens, making their options for relief from removal few and far between. Essentially, by designating “crime of violence” as vague, the 9th Circuit narrowed the definition of which crimes can be considered aggravated felonies as crimes of violence.

The Supreme Court now seems poised to follow Johnson itself as the 9th Circuit did. Following government appeal, the Supreme Court granted a petition for writ of certiorari in Dimaya on September 29, 2016, to determine “[w]hether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague. Given this development, and the Supreme Court’s recent history in Johnson, immigration practitioners and non-citizen clients may very well soon witness the jurisprudence of “crime of violence” unconstitutional vagueness expanding to the entire nation.

 

 

 

 

 

by SCwpadmin SCwpadmin 716 Comments

Immigration Programs Set to Expire at the End of the Month

Four immigration programs are set to expire on September 30th unless Congress chooses to reauthorize them in a spending bill for the new fiscal year. If the programs are not extended by Congress prior to September 30th, pending applications would be put on hold until the programs are reauthorized.

Conrad 30 Waiver Program

The Conrad 30 Waiver Program was created to address a severe shortage of qualified doctors in medically underserved communities across the United States. Under the program, J-1 medical doctors are able to waive the requirement that they return to their foreign residence for two years after the program’s end before applying for another immigrant or nonimmigrant visa. In turn, the J-1 medical doctors must agree to work fulltime for three years in a health care facility located in an area designated by the U.S. Department of Health and Human Services as a Health Professional Shortage Area, Medically Underserved Area, or Medically Underserved Population.

EB-5 Regional Center Investor Program

The EB-5 Regional Center Investor Program allows foreign entrepreneurs to apply for permanent residency if they make a substantial investment in a designated “Regional Center.” Regional Centers are economic development agencies located in targeted employment areas, which are designated and monitored by USCIS. Normally, EB-5 applicants would be required to make an investment in a commercial enterprise which would create at least ten permanent, fulltime jobs for U.S. workers. By investing in a Regional Center, however, the investor is able to meet these requirements indirectly through the aggregated efforts of the economic development agency.

H-2B Returning Worker Program

Under the H-2B Returning Workers Program, returning H-2B temporary, non-agricultural workers are exempt from the annual H-2B cap of 66,000 visas if they had already been counted against the cap during one of the previous three years.

Non-Minister Special Immigrant Religious Workers Program

The Non-Minister Special Immigrant Religious Workers Program, under the EB-4 immigrant visa category, allows non-minister religious workers to apply for permanent residence through their employment with a bona fide, non-profit religious organization in the United States. Special Immigrant Religious workers entering as ministers would be unaffected by the expiration.

by SCwpadmin SCwpadmin 25 Comments

Proposed House Bill Would Revise H-1B Program

A recently proposed bipartisan bill would amend the H-1B program by requiring more employers to attest that they are unable to find qualified U.S. workers. The bill is specifically targeted at H-1B dependent employers, which employ more than 50 people and whose workforce is comprised of at least 15 percent H-1B workers. Currently, these H-1B dependent employers are required to file attestations stating that they are unable to find qualified U.S. workers, but they are exempt from these attestations if the H-1B worker holds a master’s degree or earns at least $60,000 annually. This exemption was created in 1998 to improve administrative efficiency, but the $60,000 threshold was not indexed for inflation and has not been increased in the past 18 years.

The current bill, proposed by Rep. Darrell Issa (R-Calif.), would raise the threshold from $60,000 to $100,000, and include an adjustment for inflation. Additionally, the proposed bill would eliminate the exemption for workers with master’s degree. While the bill has not been scheduled for a vote in the House, Rep. Issa’s office said that it may be attached to an omnibus spending package following the election in November.

by SCwpadmin SCwpadmin 39 Comments

EOIR Docket Backlog Hits a New Record High

As of July 2016, the pending case backlog before the Executive Office for Immigration Review (EOIR) passed half a million, at a record high of 502, 976. The average wait time in 2016 before an immigrant can even appear in court is about 676 days, slightly under two years. This figure is more than double what an immigrant would have waited in 1998.

While there are many reasons for this huge back-up, three factors in particular are considered primary contributors to it. First, from 2008 to 2014, the dragnet program Secure Communities caused a significant uptick in the backlog as local police departments readily handed over countless arrested undocumented immigrants to the Department of Homeland Security (DHS), which in turn fed them into the court system. Then, following the massive influx of families and unaccompanied minors from Central America in the summer of 2014, the Department of Justice prioritized such cases ahead of those already on the docket. In this attempt to respond to the large group of new immigrants effectively, DOJ left many immigrants waiting in the wings much longer for their day in court. Finally, federal spending allocation toward the immigration court system rose only 74% between 2003 and 2015, whereas spending for U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) rose 105%. These budgeting priorities on enforcement over judicial support led to 200,000 cases being added to the total immigration court docket nationwide, while the number of immigration judges plateaued from 2011-2014 in parallel to a DOJ hiring freeze.

Now, Secure Communities is no more, the administrative fallout in the aftermath of the 2014 Central American migration boom has reduced, and DOJ is apparently on an immigration judge hiring spree to counteract the record backlog. Today in fact, an all-time high of 277 immigration judges are working nationwide, DOJ has 100 candidates going through the recruitment process, and it bears authorization to hire up to 374 more immigration judges. While this hiring effort by the government will hopefully help reduce the tremendous backlog, many more new immigration judges may be required, as Human Rights First estimates that it would take approximately 524 immigration judges to clear the system’s backlog within a year. Clearly, EOIR and DOJ have their work cut out for them.

 

 

 

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DHS Seeks Comments on Proposed International Entrepreneur Rule

The Department of Homeland Security is currently seeking comments on its proposed rule creating regulatory guidelines for the discretionary grant of parole to international entrepreneurs, in order to facilitate entrepreneurship, innovation, and job creation in the United States.

The proposed rule seeks to establish a framework for granting parole to entrepreneurs based on the creation of a startup entity in the United States. In order to receive parole under the rule, the entrepreneur would need to demonstrate that the United States would receive a significant public benefit from the creation of a new startup entity with significant potential for rapid growth and job creation. This potential for growth and job creation would have to be demonstrated by significant capital financing from U.S. investors with established records of successful investments, or grants or awards from Federal, State or local government entities. The grant of parole would then allow the applicant to oversee and grow the startup in the United States, maintaining an active and central role in its operations. Under the rule, entrepreneurs would be able to receive an initial 2-year grant of parole, with one additional 3-year extension available based on the initial success of the startup.

The full text of the proposed rule can be found here. DHS is accepting comments until October 10, 2016.

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