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Immigration View

Navigating Complex U.S. Immigration Laws

President Obama Announced Executive Action on Immigration Reform

Posted in General Immigration News and Updates

On November 20, 2014, President Obama announced his long-awaited Executive Action on immigration reform. Even though President Obama continues “to believe that the best way to solve this problem is by working together to pass that kind of common-sense law”, he would have to use his legal authority to help to “make the immigration system more fair and more just” until Congress takes any further actions.  There are three major goals President Obama aims to achieve through the Executive Action.

“1. We will build on our progress at the border with additional resources for our law enforcement personnel.

2. We will make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.

3. We will take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.”

The following are some key components summarized by American Immigration Lawyers Association based on a briefing by the White House on November 20, 2014:

  • Enforcement Priorities. Many of the existing memos on enforcement priorities and prosecutorial discretion will be replaced by a new memo that will name three enforcement priorities, which will be operational immediately:
    1. Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and people apprehended on the border;
    2. People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after 1/1/14);
    3. Those who, after 1/1/14, failed to leave under a removal order or returned after removal.

The memo will contain “strong language” on using prosecutorial discretion appropriately. While most other memos on the subject will be rescinded, the victims of crime memo and the USCIS memo on issuance of NTAs will stand.

  • Border Security. The Secretary of DHS will announce a South Border “command and control” campaign to coordinate and better use resources at the border.
  • State and Local. Secure Communities will be discontinued and replaced by a Priority Enforcement Program (PEP). What it means that Secure Communities will be discontinued is unclear. Unclear if they will stop fingerprinting people and unplug the technology and interoperability of the federal and local databases. Detainers will be discontinued for all except national security cases. Instead of detainers, there will be a request for notification when a law enforcement entity is about to release a convicted criminal.
  • Two deferred action initiatives that combined are estimated to benefit 4.4 million:

a. Deferred Action for Parental Accountability (DAPA). Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since 1/1/10, and who pass background checks and pay taxes, will be eligible to apply for deferred action, which will be granted for a 3-year period. The plan is to stand this up within 180 days (for applications to be accepted). Note that parents of DACA recipients are not eligible.

b. Expansion of DACA. DACA will be revised to get rid of the age cap, and to change the date that continuous presence must have started to 1/1/10. It also will be granted for 3 years (including those with pending renewal applications). Ready in 90 days.

  • Pending Proceedings. There will be a review of cases currently under proceedings to see who is prima facie eligible for the relief stated in this program, and those cases will be closed.
  • Immigration Court Reforms. There will be a package of immigration court reforms that will include qualification of accredited representatives and ineffective assistance of counsel issues.
  • U/T Visas. Three more types of offenses will be added to the list of offenses for which Department of Labor (DOL) can certify for U status. No specifics were available regarding which offenses will be added. T visa eligibility may also come into play with respect to DOL.
  • Worksite Enforcement. DOL will coordinate with other agencies regarding worksite enforcement activities.
  • Foreign Entrepreneurs. Certain investors will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation (no further details at this time). This will be done by regulation. Also, entrepreneurs, researchers, inventors, and founders will be eligible for national interest waivers. This will be implemented through policy guidance.
  • Timing of Filing for Adjustment of Status. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation.
  • AC21. “Same or similar” will be clarified.
  • L-1B. The guidance will be released.
  • H-4 EADs. The regulation will be finalized, probably in December or January.
  • OPT. The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened for this period. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration. This will be done by regulation.
  • PERM. A full rulemaking will be undertaken to modernize the PERM program.
  • I-601a Waivers. The provisional waiver will be expanded to include spouses and children of LPRs. The definition of extreme hardship will be expanded and clarified.
  • Advance Parole. There will be a new advance parole memo that will make clear that CBP should honor the advance paroles issued by USCIS.
  • Parole in Place. PIP will be expanded to include families of individuals trying to enlist in the armed forces.
  • Visa Modernization. There will be a Presidential Memorandum directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visa available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.
  • Integration. A second Presidential Memorandum will set up a Task Force on New Americans.

Please note many items mentioned above are still unclear at this stage.  Many will require regulations or memos to be implemented and so the timing is presently unpredictable.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

President Obama primes the nation to hear about immigration via Facebook

Posted in General Immigration News and Updates

 

It’s not every day that a president makes a major announcement on social media.  On Wednesday (Nov. 19), President Barack Obama posted a video on Facebook to announce that he plans to make a primetime address to the nation to lay out the steps he will take with regard to our immigration system tonight (Thursday, Nov. 20) and then will travel to Las Vegas on the heels of that announcement to rally support for his initiative on Friday.

“Everybody agrees that our immigration system is broken. Unfortunately Washington has allowed the problem to fester for too long,” Obama said. “So what’ I’m going to be laying out is the things I can do with my lawful authority as president to make the system work better even as I continue to work with Congress and encourage them to get a bipartisan, comprehensive bill that can solve the entire problem.”

When asked about the President’s decision to use Facebook for the announcement, White House spokesman Josh Earnest said, “This was an opportunity for us to reach hundreds of thousands, if not millions of people.”

In the video, also posted on the White House website, Obama said he will give a prime time immigration address Thursday, and follow it up with an event Friday in Las Vegas.

Earnest reported: “In under an hour the video reached more than 1.2 million users on Facebook — 227,000 people had viewed it, another 12,000 people had shared it. So this is a pretty effective way of the president communicating with the American public.”

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Alka Bahal’s Recent Appearance on “Leiberman Live” SiriuxXM Radio Show

Posted in General Immigration News and Updates

Please see below for a clip of my November 18th appearance on “Leiberman Live” SiriuxXM radio show with host Jon Leiberman.  In the clip, I discuss current issues surrounding Immigration Reform and President Obama’s imminent announcement regarding his executive action on immigration.

Leiberman Live feat. Alka Bahal – Immigration Reform

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

National Visa Center No Longer Requires Originals for IV Processing

Posted in Consular Issues, General Immigration News and Updates, Immigrant Visas

Recently, the Department of State (“DOS”) issued a cable to advise that as of November 12, 2014 the National Visa Center (NVC) will no longer require applicants to submit original civil documents (such as birth certificates, marriage certificates, police certificates, etc.) during the immigrant visa (IV) process (i.e. permanent residency application via a Consulate abroad). This exemption from submitting original documents does not apply to the Affidavit of Support; original Affidavit of Support forms are still required to be submitted to NVC.

Previously, civil documents were required to be submitted in original to the NVC for preliminary evaluation, but now, applicants may submit photocopies of their documents to the NVC instead. Applicants are responsible for carrying their original documents to their assigned interview at the Consulate for final processing.

The NVC expects this change will “maintain the integrity of the IV process, reduce customer wait times and improve the customer experience overall.”  The new procedure will significantly shorten the processing time for the NVC to complete its initial review before forwarding the case file to the Consulate for final processing.

E-1/E-2 Trade and Investment Treaty with India: Why not?

Posted in General Immigration News and Updates, Investors, Traders and Entrepreneurs (E visas and Permanent Residence)

Why isn’t there an E-1 Trader or E-2 Investor Treaty between the US and India? 

This question came to mind again while I was working on an E-2 Treaty Investor case for a Canadian citizen who was born in India.  It occurred to me how peculiar it was that except for being a Canadian citizen, the client would not have been eligible to apply for an E-2 Treaty Investor visa.  

Admittedly, I haven’t researched the issue of why we don’t have an E Treaty with India.  There are no doubt complex political and other reasons at play, but I do know that visa options are often based on reciprocity between countries.  And, with regard to reciprocity, the US and China very recently announced that the duration of certain short-term visas will be extended…so significant change certainly is possible.  (See http://www.reuters.com/article/2014/11/10/us-china-usa-visas-idUSKCN0IU0Q020141110.)

Now may be the time for an E Treaty with India given that long gone are the days of former Prime Minister Indira Gandhi’s restrictive foreign exchange policies.  India’s 1973 Foreign Exchange Regulation Act (FERA) was repealed in 1998 and replaced by a policy which liberalized foreign exchange controls and restrictions on foreign investment in India.  Based on my nearly annual travels to India since 1988, I can confirm that there is now a strong presence of American companies/products in India.  Perhaps the time has come to explore the E Treaty issue further.  It could be a win/win for both countries.

And, of course, it’s not only Indian nationals who can bring benefits to the US by their investments and trade when they are able to live and work in the US.  Citizens of more than 80 countries are eligible for the E visa.  Some treaties date back the 1840s others are as recent as 2012.  (See http://travel.state.gov/content/visas/english/fees/treaty.html.)

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Ms. Wadhwani is a partner in the Immigration Group of Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.

     

 

 

 

Employer’s New Obligation to Affirmatively Request for BALCA Review after Perm Denial

Posted in General Immigration News and Updates, PERM Labor Certification

Recently, the Department of Labor (DOL) announced new changes in the procedure of seeking review of the perm denial. As of October 27, 2014, the DOL’s Atlanta National Processing Center (ANPC) will no longer automatically forward Requests for Reconsideration of a PERM labor certification denial to Board of Alien Labor Certification Appeals (BALCA) for review when the original decision to deny is upheld by the Certifying Officer (CO).  Instead, now an employer must affirmatively request review before BALCA within 30 days of the date the request for reconsideration is denied.

Prior to this new policy, employers were only obligated to file the request for reconsideration with DOL and if the CO upheld the denial, the DOL would automatically forward the Request for Reconsideration to BALCA for further review.

Pursuant to the new policy, it is now the employer’s burden to request review before BALCA after/if the CO upholds the decision to deny.  Employers and their attorneys must be cognizant of this new obligation and be alert in order to take action to submit a denied PERM labor certification to BALCA within 30 calendar days from the date of the letter from the CO upholding a PERM denial.  If an employer or its attorney fails to take action in a timely manner, the denial will automatically become final.

L-1B Status: What is Specialized Knowledge?

Posted in Uncategorized

What is “specialized knowledge” for an L-1B intracompany transferee?   A recent US Court of Appeals decision provided guidance on this question.

The facts were as follows:

  • Plaintiff Fogo de Chao, is a chain of Brazilian-style steakhouses specializing in preparing and serving meats in the “churrasco” style of the gauchos of Brazil.
  • Fogo de Chao had successfully filed more than 200 L-1B visas for the specialized chefs, until…
  • USCIS denied the L-1B petition Chef Rones Gasparetto  in 2010 on the basis that his cultural background, knowledge and training did not constitute “specialized knowledge”  as a matter of law.
  • Fogo de Chao appealed until the case ultimately reached the US Court of Appeals for the District of Columbia.

The Court of Appeals reversed the denial and remanded the finding that culturally based skills do not constitute specialized knowledge.  In doing so, the Court  referred to the dismissal of the restaurant’s argument that training another employee to perform these specialized duties would cause economic hardship to the restaurant, opining that:

“Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts…that specialized knowledge may be ultimately a ’relative and empty idea which cannot have plain meaning’ …is not a feature to be celebrated and certainly not license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation.  Suddenly departing from policy  guidance and rejecting outright relevance of Fogo de Chao’s evidence of economic evidence threatens just that.”   

The Court rejected the government’s categorical disregard??? of culturally acquired knowledge and refused to give deference to the agency’s interpretation of “specialized knowledge”  as the decision was the product of informal adjudication within USCIS rather than formal adjudication or notice and comment rulemaking.

 

H-1B LCA Legacy Records No Longer Available according to DOL

Posted in Uncategorized

On October 17, 2014, the Department of Labor (DOL) announced that labor condition applications (LCA) retained in the legacy LCA Online System are all beyond the retention period of five years from a date of final determination or final action.  Therefore, effective 10/17/14, the LCA Online System has been decommissioned.  As such, the OFLC will no longer respond to inquiries to search for records in response to FOIA requests, or provide information for requests for duplicate certifications for LCA applications processed in the LCA Online System, in keeping with the OFLC records schedule.

DV-2016: Deadline Imminent

Posted in General Immigration News and Updates, Permanent Residence, Priority Dates

Just a reminder that the deadline to enter the 2016 Diversity Lottery (DV-2016) is fast-approaching and ends at 12:00 pm EDT (GMT -4) on Monday, November 3, 2014.

 

The State Department has indicated that it anticipates an increased number of applicants as the deadline nears, possibly resulting in difficulty accessing their online entry form.  So if you have decided to enter, it’s best not to wait until the last minute.

 

Details regarding the DV-2016 application process can be found on the Department of State website.  Please also check out my prior DV-2016 blog post and view my interview with the Pittsburgh Post-Gazette   on the topic.

 

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Ms. Wadhwani is a partner in the Immigration Practice of Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

Homeland Security issues Ebola Travel Advisory

Posted in General Immigration News and Updates

The Department of Homeland Security (DHS) is requiring that anyone coming to the US from one of three West African countries reporting an Ebola outbreak must enter the country through one of five airports screening passengers for the deadly disease.

DHS, together with the CDC and U.S. Customs and Border Protection (CBP), implemented increase screening measures at five major US airports where over 94% of travelers from the affected region enter the U.S., which started with John F. Kennedy International Airport on Saturday, Oct. 11. The five airports are JFK, Chicago, Dulles, Atlanta and Newark. All passengers will experience enhanced security measures and screening.  Specifically, passengers flying into one of these five airports whose travel originated in Liberia, Sierra Leone, and Guinea are also subject to secondary screening and added protocols, including having their temperature taken, before they can be admitted into the United States. At present there are no direct, non-stop commercial flights from Liberia, Sierra Leone or Guinea to any airport in the United States.

The Department of Homeland security (DHS) is one of the leading government agencies working to assist in the Ebola crisis. According to a report issued by the Whitehouse, a new audit reveals that there have been significant issues with the DHS preparations for a pandemic which include supplies and medical equipment purchased by the government have expired.

USCIS released a press release on August 15, 2014, providing guidance on immigration relief measures for nationals of Guinea, Liberia and Sierra Leone currently in the U.S.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.