New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

What DACA Recipients & Employers Need to Know About The End of DACA

President Trump has announced his plans to terminate the Deferred Action for Childhood Arrivals (DACA) program, which provides “temporary relief from deportation” and work authorization for certain undocumented immigrants who arrived in the U.S. when they were minors. There are over 800,000 DACA beneficiaries across the country, the majority of whom are legally employed by U.S. employers.

As of September 6, 2017, U.S. Citizenship & Immigration Services (USCIS) will no longer be accepting new DACA applications, however, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization until they expire. Individuals who currently have an initial DACA request pending with USCIS will have their cases adjudicated on a case-by-case basis. Those individuals with their deferred action expiring before March 5, 2018 must apply to renew their DACA (for a two-year period) before October 5, 2017. After March 6, 2018 no more DACA renewal applications will be accepted by USCIS.

WORK AUTHORIZATION

Through the DACA program, beneficiaries receive Employment Authorization Documents (also known as “work permits” or “EAD” cards) which provide lawful work authorization with U.S. employers. These cards are issued for limited periods of time and have expiration dates. Despite this new policy which will terminate the ability to renew EAD cards, current valid EAD cards will continue to provide lawful work authorization for those beneficiaries, until the EAD expires. This means DACA beneficiaries are allowed to legally continue working for U.S. employers with their EAD card until the expiration date on the card. While employers may not be aware of their employees who are on DACA until it comes time to reverify an employee’s work authorization in the Form I-9, Employment Eligibility Verification process, employers are not legally obligated to terminate an employee until after their EAD card has expired. 

SOCIAL SECURITY NUMBERS, DRIVER’S LICENSES, AND ADVANCE PAROLE CARDS

Social security numbers for DACA recipients will remain valid and can continue to be used for banking, education, housing, and other reasons. Driver’s licenses should also remain valid until the expiration date of the card (but double check with your State’s motor vehicle department to confirm). While the Department of Homeland Security (DHS) has indicated they will still honor valid Advance Parole documents, which provide immigration officers with discretionary authority to permit an individual to return to the U.S. after foreign travel, DACA beneficiaries are advised not to travel internationally, due to the risk of being denied re-entry into the U.S. upon return.

IMMIGRATION ENFORCEMENT

Information which DACA recipients provided to DHS in their DACA applications will not be proactively provided to Immigration Customs Enforcement (ICE), Customs and Border Protection (CBP), or shared with other law enforcement entities for the purpose of immigration enforcement proceedings, unless an individual poses a risk to national security or public safety. ICE has said that it has no plans to target DACA holders as their permits expire and that they will continue to remain low enforcement priorities. 

OTHER IMMIGRATION OPTIONS

DACA recipients may be eligible for other immigration relief either through family or employment. Employers with overseas offices may be able to employ affected individuals abroad. DACA recipients may be able to obtain work authorization and/or lawful residence in another country and may even be able to do so from within in the United States. 

Individuals and employers should contact qualified legal counsel to understand their options. As always, we will continue to monitor this recent DACA update and continue to provide additional analysis as information continues to become available. If you have any questions, please feel free to contact us.

New Employment Eligibility Verification, Form I-9

U.S. Citizenship & Immigration Services (USCIS) has annouced the release of a new version of the Employment Eligibility Verification, Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. Employers and Human Resources staff may begin using this new Form I-9 or continue to use the current version of the Form I-9 (dated 11/14/16 N) through September 17, 2017.  Beginning September 18, 2017, employers must use the new form.  

The revised form includes some cosmetic changes, along with changes related to acceptable I-9 verification documentation, including Consular Reports of Birth Abroad.  USCIS plans to update its M-274 “Handbook for Employers: Guidance for Completing Form I-9” in the near future.

This change, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources departments, as all U.S. employers must ensure proper completion of Form I-9 for each individual they hire.  More importantly, as the workforce compliance landscape continues to evolve, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules.  As part of this process, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms;
  • Develop, implement, and maintain compliance policies for worksite raids.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

The Reality of Trump's Proposed Immigration Policies

The dust has still not settled since Donald Trump’s win in the U.S. presidential election last week, but we are already starting to see some details regarding his campaign pledges as it pertains to immigration.  Despite there still be overwhelming uncertainty as to the specifics of his immigration policies, the general cornerstones seem to call for an increase in immigration enforcement and a decrease in the amount of immigration to the United States. That said, how realistic is Trump’s agenda?

Undocumented Immigrants

The deportation of an estimated 11 million undocumented immigrants from the United States is almost impossible. In fact, earlier this week Trump dialed back his campaign rhetoric to express his intention to prioritize the removal of around 2-3 million undocumented immigrants with criminal records, which is a position that is actually in line with the current administration’s priorities.  

Deporting all undocumented immigrants from the U.S. will require incredible amounts of new resources and funding. While many congressional Republicans might support Trump’s policies, would they support the cost?  Politico estimates it would cost $166 billion to deport all of the undocumented immigrants in our country and complete a border wall.  (No, by the way, Trump can’t force a country to spend money on something it does not want).  The Bipartisan Policy Center estimates that Trump’s immigration attrition policies could increase projected deficits by about $800 billion over the next 20 years.  By keeping immigrants in this country working, creating businesses, and making the goods and services that people want to buy we are ultimately increasing wages and employment opportunities.  Would Republicans really be so foolish as to actually spend money on large-scale nationwide attrition programs?

DACA

Trump has pledged to end President Obama’s deferred deportation program (Deferred Action for Childhood Arrivals (DACA)), which has provided “temporary relief from deportation” and work authorization to over 650,000 undocumented immigrants who arrived in the U.S. when they were minors.  While it is certainly possible for the next President to overturn this executive action, it remains unclear whether he would simply prevent future renewals of the U.S. employment authorization documents for DACA individuals, or whether he would cancel and revoke existing employment authorization documents for DACA recipients.  A more substantial concern, is whether DACA recipients would be more vulnerable to deportations based on the personal information they previously provided to the government as part of their application process.

Assuming, as Trump hinted earlier this week, that DACA recipients may not fall under his 2-3 million criminal aliens enforcement strategy, what economic benefit would arise from revoking the work permits of over 650,000 young immigrants who have been residents of the U.S. for decades, who are working and participating in the economy and attending college?  What might be the harm to U.S. employers lawfully employing workers with employment authorization based on DACA?  There may be severe consequences to our economy by eliminating valuable employees from our workforce, not to mention creating a humanitarian crisis by deporting these individuals.  

H-1B Visas

During Trump’s campaign he expressed a desire to make it harder for American companies to obtain employment-based visas for immigrant workers.  In particular, Trump called for policies to increase the regulatory costs for American businesses hiring skilled foreign workers in specialty occupations, particularly in the H-1B visa category.

While it is reasonable to expect that the new administration may add new statutory restrictions, institute stricter U.S. recruitment requirements, or increase USCIS filing fees, it is also possible that they may not make any changes to the existing employment-based visa program.  As U.S. businesses are increasingly in need of high-skilled labor (especially in STEM fields), what benefit would the U.S. achieve by limiting the amount of intelligent, professional-level foreign nationals into this country?

TN Visas

Canceling the North America Free Trade Agreement (NAFTA) treaty with Mexico and Canada was a major talking point in Trump’s campaign.  Doing so would most likely eliminate the TN visa for Canadian and Mexican nationals.  Again, the elimination of a visa, like the TN, for high-skilled immigrants in the U.S. does not seem to be in the best interest of American businesses.  Furthermore, scrapping NAFTA would also eliminate reciprocal visa options Canada and Mexico provide to U.S. workers seeking to engage in professional activities in those countries.

F-1 STEM OPT

Recent changes to the Optional Practical Training (OPT) program for foreign students on F-1 student visas and who graduated with degrees in science, technology, engineering, and mathematics (STEM), allow for an additional two years of U.S. work authorization.  This new rule could be a target under the new President.  Again, though, with U.S. employers in desperate need for STEM employees, cancelling the STEM OPT extension rule, would severely injure American companies.

“Extreme Vetting”

Trump’s most controversial policy called for some type of “extreme vetting” of foreign nationals from certain countries or certain religions.  While it is not clear what he means by this type of vetting, the possibility of increased screening could have serious consequences for U.S. employers and employment-based visa holders, due to stricter scrutiny on visa petitions and longer visa application times.  It might also make it harder for individuals to obtain U.S. citizenship.

In the end, it is realistic to expect some changes to the U.S. immigration system.  Whether all the broad promises of Trump’s campaign will become reality is a different story.  In less than 60 days, though, Donald Trump will take the oath of office as the 45th president of the United States.  Therefore, employers and individuals considering whether to seek certain immigration-related benefits, should act sooner than later.  In the meantime, please visit our website and sign up for our newsletter for the latest news regarding any changes to U.S. immigration laws.

 

What Your Vote Means for Immigration

As I discussed almost a year ago, immigration has become one of, if not the, key issue in the U.S. Presidential election.  As we reach the final stretch of this election season and voters finally get to go to the polls to cast their votes, its important to consider what your vote might mean for U.S. immigration policy.  Whether you’re for stiffer enforcement of our borders, new options for more highly-skilled and entrepreneurial immigrants to work in the U.S., or pathways for legalization of undocumented immigrants, the future of millions of people will be shaped by your vote in the next few weeks.

Nearly everyone agrees that the U.S. immigration system needs to be overhauled, but there is a lot that goes into that.  Yes, its a broken system, but fixing it is not easy…it involves actual people, families, careers, futures.  So what would the Democrat and Republican presidential contenders do to tackle these challenging issues?

Visas and Green Cards

Trump says that allowing foreign nationals to work in the U.S. weighs down salaries, keeps unemployment high and makes it difficult for American workers to earn a middle-class wage.  He would put an end to the H-1B work visa program and suspend the issuance of green cards to require U.S. employers to hire American workers first for every visa and immigration program.

Hillary has called for providing lawful permanent residence (“green cards”) to foreign students who earn advanced STEM degrees from U.S. universities.  She has also voiced support for visas for international entrepreneurs who come to the U.S. to establish tech companies and who have financial support from U.S. investors.  She would provide pathways to permanent residence for foreign nationals who create jobs for U.S. workers and meet certain other performance criteria.  

Undocumented Immigrants

Hillary would like to expand the DACA and DAPA programs to defer the deportation and provide work authorization for undocumented individuals who are either children or the parents of children born in the U.S., while deporting undocumented immigrants who are violent criminals and terrorists.  Clinton also seeks to get rid of the 3 and 10 year bars to re-entry when undocumented immigrants leave the country as part of the process to legalize their status.

Trump’s plan calls for the deportation of all 11 million undocumented immigrants in the U.S., allowing some to return to the U.S. under a more stringent legal process.  His plan would impose criminal penalties on immigrants who stay longer than their visa departure date.

Border

Trump intends to build a wall along the U.S.-Mexico border and have Mexico pay $5-10 billion to build the wall.  Clinton, on the other hand, has called for increasing enforcement of our borders, but opposes a wall along the U.S.-Mexico border.

Clinton and Trump clearly seem to be taking opposite roads on their quest for immigration reform.  Clinton’s immigration reform plans stress her commitment to keeping families together, giving undocumented immigrants a chance to get right with the law, and provide new pathways for immigrant integration and employment opportunities.  Trump’s immigration reform plans focus on American workers and suspending benefits and immigration options to foreign nationals.  

Regardless of where you stand on these issues, your vote will have a dramatic impact on the social, cultural, and economic future of our country.

Immigration & Employment Verification Fines Drastically Increasing

The U.S. Department of Justice has announced that beginning August 1, 2016 they will increase the penalties for unlawfully employing immigrants, unfair employment practices tied to immigration, and for so-called “paperwork violations” on Forms I-9.

The new rule will enhance Form I-9 paperwork violations from a maximum of $1,100 to $2,156 per violation, and a minimum from $110 to $216.  The minimum penalty for employing undocumented individuals will increase from $375 to $539, while the maximum will go from $3,200 to $4,313.  Employers with multiple violations will face a new maximum penalty of $21,563 for unlawfully employing immigrants.  For unfair immigration-related employment practices, a first fine could cost as much as $3,563 per person discriminated against.

These new penalties will take effect on August 1st and apply to all violations that took place after November 2, 2015.

Supreme Court Blocks DAPA & DACA Expansion

The Supreme Court has decided that the injunction blocking President Obama's Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA) programs will remain in place.  This ruling prevents the President's immigration programs from moving forward, which would have allowed millions of undocumented immigrants "temporary relief from deportation" and the ability apply for work authorization while they wait.

As a result of this injunction, millions of immigrants throughout this country will continue to wait in limbo for the opportunity to contribute to our communities and economy.  Rather than providing these “low enforcement priority” individuals with valid work authorization, which would allow them to come out of the shadows and take on better and more productive jobs, which would in turn immensely benefit our local, state, and national economies, we will continue to waste valuable resources on removing these well-established, productive U.S. residents from our country. 

The Council of Economic Advisers estimates that DACA and DAPA would increase the national gross domestic product (GDP) by nearly $60 billion over the next 10 years, payroll tax revenues would increase $22.6 billion in 5 years, and the solvency of the Social Security system would increase by $41 billion over 10 years as workers earn higher wages.  In Texas alone, if undocumented immigrants were able to receive work authorization the state’s tax revenue would increase by $338 million.

In Texas, 80% of those eligible for DACA and 78% of those eligible for DAPA have lived in the U.S. for over 10 years; 94% of those eligible for DAPA are employed; and 93% of those 18 years and older, eligible for DACA, have graduated from high school.  These are our neighbors, coworkers, and contributing members in our communities.  Failing to “temporarily" turn these individuals into productive members of society does not make any sense at all.

While this ruling is a significant setback for undocumented immigrants, it is important to note that it will not impact the original DACA program that was implemented in 2012.  Those eligible for DACA under the President's 2012 executive action may continue to seek renewal of their deferred action and work authorization.  Furthermore, this ruling does not prevent the next President from continuing the deferred action programs in the future or prevent the next President from pursuing DAPA or an expansion of DACA.  Ultimately, it will be up to the next administration (and hopefully Congress) to reform our immigration system and put in place an immigration program that benefits all Americans…documented AND undocumented.