1. Openers ................................................................................................................ 2

2. ABCs of Immigration: An Overview of the US Immigration System – 2017 .................... 4

3. AskVisalaw.com ................................................................................................... 22

4. Border and Enforcement News ............................................................................... 23

• DHS Ends Protected Immigration Status for Nicaraguans, Haitians; Hondurans Receive Extension .......................................................................................... 23

5. News from the Courts ........................................................................................... 24

• Ninth Circuit Grants Partial Stay to Travel Ban Injunction .................................... 24

• District Court Judge Issues Permanent Injunction Against Executive Order Withholding Federal Funding to Sanctuary Cities ................................................ 24

• Data Finds Mexican Nationals and Individuals Detained in Immigration Court are Uniquely Disadvantaged .................................................................................. 25

• Lawsuit Filed Seeking to Reclaim Unpaid Wages for Au Pairs ................................ 26

• BIA Denies Appeal of Native of Italy Because of Aggravated Felony Conviction ...... 26

• Ninth Circuit Court of Appeals Decision Provides Green Card Opportunity to Certain Temporary Protected Status Holders ................................................................. 27

6. News Bytes .......................................................................................................... 28

Table of Contents

• United States Postal Service’s Errors Result in the Rejection of DACA Applications; Trump Administration Announces those Affected May Reapply ............................. 28

• Coalition for the American Dream Seeks DACA Solution ...................................... 28

• USCIS Updates Numerous Forms ..................................................................... 29

7. Washington Watch ................................................................................................ 29

• White House Proposes Strict Immigration Reform Policy ...................................... 29

8. In the News at ABIL .............................................................................................. 30

• Ban on Refugees Expires; Trump Administration Calls for Additional Vetting for 11 Nationalities During 90-Day Review Period ........................................................ 30

• USCIS Increases Scrutiny of Certain Nonimmigrant Extension Requests ................ 32

• Sen. Grassley Urges Reconsideration of Trade NAFTA Nonimmigrant Classification . 33

9. Updates from the Visalaw.com Blogs ....................................................................... 33

10. State Department Visa Bulletin: December 2017 .................................................... 34

1. Openers Dear Readers:

For most of my career, immigration law has been a practice that largely could be done from my desk. Applications submitted on behalf of clients are submitted by mail or electronically. In most cases, you never see the person deciding the case and you may not even need to see the client in person. Immigration law is a federal practice area so many in the field represent clients nationally. There are lawyers that focus on family immigration and remoal defense that have always represented clients at local office interviews and gone to court on behalf of clients facing deportation. Indeed, I have several colleagues who fit that category. My practice, however, is largely focused on employment and business immigration.

But 2017 is a year that is bringing rapid transformation to the practice thanks to the policies of the Trump Administration. The President’s Buy American, Hire American executive order has rapidly changed the mindset at USCIS and the other government agencies and we’ve seen a dramatic increase in requests for evidence issued in employment-based cases. We’re seeing a spike in audits and on-site visits. We’re seeing cases taking considerably longer than in the past. For years, many immigration lawyers could expect well-documented cases to be approved without too much incident. But that’s changing quickly.

So what is the immigration lawyer to do to help clients? First and foremost, lawyers are brushing off the dust on their litigation manuals and are now increasingly turning to suing the government to force them to do their job correctly and in a reasonable timeframe. My colleage Lily Axelrod and I flew to Portland, Oregon a few weeks back to participate in the American Immigration Council’s Business Immigration Litigation Institute that was designed to help the business immigration bar become more comfortable with suing the government.

The program was enlightening and we’re preparing our cases on the front end to better position us to sue the government if need be.

USCIS also has started interviewing all applicants for employment-based adjustment of status. That means that all of the people applying for the 140,000 employment-based green cards available each year who are processing from within the US must be interviewed (including family members). Examiners at local USCIS offices are conducting the interviews with virtually no training and applicants who may have been waiting for years for their green cards are suddenly dealing with a new uncertainty in the process. Lawyers can represent their clients at these interviews and because many clients are interviewing in parts of the country where their lawyers are not located, practitioners are cooperating with colleagues across the US to ensure people have access to counsel wherever needed. My firm has already represented clients of lawyers outside of our geographic area and, likewise, we have been working with other law firms to ensure our clients have representation at these new interviews.

*****

In this issue of the newsletter, we’re including the guide to US immigration that we’ve been updating each year for the last 10+ years. It’s a 15-page article that lays out broadly how the whole system works and provides a succinct summary of the key features of each of the major immigration categories.

*****

In firm news over the last month, our lawyers have been speaking on immigration law in forums near and afar. I’ve spoken at the International Bar Association’s annual meeting in Sydney Australia and its biannual global immigration conference in London. I’ve also spoken at American Immigration Lawyers Association (AILA) chapter conferences in the Dominican Republic and in London. Lynn Susser served as a panelist on an AILA breaking news teleconference on the new I-485 interview requirement. James Hollis, Adam Cohen, Ari Sauer and Lily Axelrod were all speakers at the AILA Midsouth Chapter conference in Nashville. I was also a panelist on an American Bar Association webinar on Twitter for lawyers.

*****

Finally, I’m pleased to announce that I’ve co-written a new book with Bruce Buchanan entitled The I-9 and E-Verify Handbook which provides in depth information on this increasingly important subject. The book is available on Amazon at http://a.co/aAXEkwa.

Regards,

Greg Siskind

*****

2. ABCs of Immigration: An Overview of the US Immigration System – 2017

Prepared by Greg Siskind

Introduction:

There are five (5) Major Immigration Status/ Visa Categories and for the purposes of this paper, the first four will be discussed.

1. Non-Immigrant Visas – temporary visitors (work, student, visitor, etc.)

2. Immigrant Visas – lawful permanent residents (green card holders)

3. Asylees and other special groups – Asylum, refugee, DACA and TPS status holders

4. Citizens

5. Undocumented – unlawfully present immigrants

1. Non-Immigrant Visas

There are several types of non-immigrant visas. Non-immigrant visas are usually designated by letters. Below are brief summaries of the most common ones:

B-1/B-2 Visas – Available to Short-term visitors for pleasure or business

1. Do you have a job that pays well and which you can leave for a few weeks on a vacation?

2. Do you have close relatives who will be remaining in your home country when you come to the US?

3. Are you coming for a short visit?

4. Do you have assets in your home country?

5. Do you own property in your home country?

6. Do you have a passport valid for at least six months after your planned departure from the US?

7. Do you have a set itinerary for your trip to the US?

8. Do you have a roundtrip plane ticket?

9. Do you have close community ties in your home country?

10. Do you have money or proof of support from friends or relatives in the US to show adequate financial arrangements to carry out purpose of trip?

11. If you are coming for business, is the work you are doing work that would typically be done by an American worker?

12. If you are coming for business, is the main place where profits are earned outside the US?

13. If you are coming to the US on business, is your payment going to be made abroad rather than in the US?

14. If you are coming as a B-2 visitor for pleasure, are you coming for one of the following purposes?:

a. Tourist

b. Social visits to friends/relatives

c. Health purposes

d. Participants in conventions of social organizations

e. Participants in amateur musical, sports or similar events with no pay

f. Spouses and children of people in the US armed forces

g. People accompanying B-1 business visitors

h. Coming to marry a US citizen but the person plans on departing after the wedding

i. Coming to marry someone on a non-immigrant visa

j. Non-spouse partners (regardless of gender) or non-qualifying dependent relatives that accompany a non-immigrant visa holder

k. Parent seeking to accompany an F-1 student visa holder

l. Language students in course of short duration when the course of study is under 18 hours per week

15. If you are coming on a B-1 business visitor visa, are you coming for one of the following purposes?:

a. Engaging in commercial transactions not involving employment (negotiating contracts, litigation, consulting with clients or business associates)

b. Participating in scientific, educational, professional, religious or business conventions

c. Religious workers coming to do missionary work in the US, ministers exchanging pulpits but who are paid by their own church abroad, and ministers on evangelical tours

d. Domestic servants accompanying returning US citizens temporarily assigned to the US or who permanently reside in a foreign country

e. Domestic servants accompanying non-immigrant visa holders if the applicant has worked for the employer for a year or more

f. Professional athletes only receiving tournament money

g. Foreign medical students seeking to take “elective clerkship” without pay

h. Serving on a board of directors of a US company

i. Coming to the US to set up a US subsidiary and explore investment opportunities

j. Installing equipment as part of a contract

k. Participating in a volunteer service program if religious only

l. Attending an executive seminar

m. Observing the conduct of business

n. Domestic partner of a person on a non-immigrant visa.

General Notes: Usually can get an authorized stay of up to six months; chances improve if a shorter trip is requested; no USCIS approval required before consulate issues visa; not allowed to work while on a visitor visa; visa must be granted by consular officer except in most cases if the national is from one of more than two dozen countries granted Visa Waiver status allowing such persons to enter the US for up to 90 days. Visa Waiver entrants cannot have their status extended and cannot change to other non-immigrant categories

while in the US. Nationals of the following countries are eligible for the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, the Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan and the United Kingdom.VWP travelers must be cleared in the Electronic System for Travel Authorization (ESTA) program prior to traveling. ESTA applications can be completed at https://esta.cbp.dhs.gov/. In 2015, Congress limited use of the Visa Waiver Program by individuals who have traveled to Iran, Iraq, Syria or Sudan after March 1, 2011, except for those who went to those countries for diplomatic purposes or as members of their countries’ militaries. Dual nationals of Iran, Iraq, Syria an Sudan are also barred from using the Visa Waiver Program.

Medical tourists should be prepared to provide documentation of medical diagnosis from a local physician as well as an explanation of why the applicant seeks treatment in the US, a letter from the US physician or medical facility expressing a willingness to treat the ailment and detailing the projected length and cost of treatment and documentation showing the applicant has the financial ability to cover the costs.

The Trump Administration has recently instituted several policies that will impact the B-1/B-2 categories (and others as well). As part of its “extreme vetting” applicants are being requested to provide information on social media activity. Entrants from some countries have been banned under various versions of the highly publicized travel ban, but as of publication, the ban has not taken effect because of court challenges. Also, recent changes to the Foreign Affairs Manual have tightened up fraud rules for people who file to change visa categories shortly after entering as visitors or engage in activities inconsistent with a visitor visa (such as marrying a US citizen). Under the old provisions, engaging in those activities within 30 or 60 days could be problematic. The new rule extends this time to 90 days and potentially longer.

H-1B Visas – Available to people in “specialty occupations”

1. Do you have a university degree?

2. Do most people in your field in the US have university degrees?

3. If you lack a degree, do you have several years of work experience in your field?

4. Do you have an employer in the US willing to hire you?

5. Does the job pay as much as similarly employed American workers?

6. Does the employer typically only hire people with university degrees for the job?

7. Does the employer guarantee that they will have continuous work available to you?

8. If the occupation requires a license, do you have the necessary license?

9. Will the employer actually control your day to day employment or will another entity?

General Notes: Valid for up to six years; can simultaneously have green card application pending; spouses and children not allowed to work without their own independent work visa (though USCIS recently enacted a rule that went in to effect in May 2015 that allows allow H-4 spouses to apply for work authorization if their H-1B spouse has an approved I-140 application); do not need to maintain ties to your home country; limited to 65,000 people per year (but many H-1B workers are at non-profit and university jobs are exempt from this cap and there is an additional quota of 20,000 for people holding masters degrees or higher granted by a US university); can change employers quickly, but need new visa approval for each new employer; if applicant lacks appropriate degree, equivalent work experience must be demonstrated and evaluation from expert obtained; USCIS must approve before consulate can issue visa; filing fees are expensive and vary significantly depending on the employer and the need for expedited processing; employers with a large number of H-1B workers in proportion to US workers may be considered “H-1B dependent” and have additional restrictions on their ability to hire and employ H-1Bs. NOTE: over the past few years, H-1B usage has varied with the numbers being used up almost instantly when the economy is strong to less quickly when hiring is slower. Expenses (including legal and government filing fees) are generally required to be paid by the employer. Must be able to show that your employer controls your employment if placed at another location. Self-employment possible in very limited circumstances. As of 2017, Firms with fifty or more employees, half of whom are in H-1B or L-1 status must pay a supplemental fee of $4000 with H-1B petitions. In 2017, USCIS began implementing President Trump’s Buy American, Hire American executive order which has impacted H-1B program. For example, USCIS is routinely challenging the wages employees are being offered if they are Level 1 in the Department of Labor wage database.

F-1 Visas – Available to Students

1. Do you have a residence in your home country you don’t intend to abandon?

2. Have you been admitted to study full-time in a degree program or an English language program?

3. Is the school where you intend to study approved for students to attend on student visas?

4. Do you have proof of adequate financial resources to attend school full-time without the need to work in the US?

5. If you are not going to the US an English language program, are you proficient in English?

6. Will the education you obtain in the US improve your career prospects in your home country?

General Notes: Must be enrolled full-time; has limited on-campus work eligibility; off-campus employment is prohibited unless the student fits under limited exceptions and the employment authorization is granted by the school or the USCIS; can get up to a year of work authorization upon completion of program and up to an additional 24 months for certain students in science, technology, engineering and mathematics fields; can remain in the US for a period needed to complete the educational program; spouses and children not entitled to work; children can enroll in K-12 education, spouse cannot study unless he or she has a separate student visa; no USCIS approval required before consulate can issue visa. .

J-1 Visas – Exchange Visitors

1. Are you coming to the US to participate in an exchange program designed by the US State Department?

2. Do you have fluency in English and sufficient funds to live here if the program does not pay J-1 visa holders?

3. If you are looking at the au pair program, have you registered with one of the eight designated au pair programs in the US?

4. If you are a doctor seeking to train in the US, are you admitted into a medical residency or fellowship program and have you obtained sponsorship from the Educational Commission on Foreign Medical Graduates?

5. If you are coming for a business trainee or intern visa, have you found an employer to provide you with a training opportunity?

6. If you have found a training opportunity, have you found a program sponsor?

General Notes: Available to trainees, interns, professors or research scholars, short term scholars, foreign doctors, camp counselors, au pairs and students in work/travel programs

in the US; often requires person to return home for two years before switching to another visa; time limits vary depending on type of program (training – 18 months; interns – 12 months; scholars and professors – up to three year; au pairs – 12 months; medical residents – up to seven years; students are not limited); students eligible for up to 18 months (36 if post-doctoral work) of post-graduate work authorization; students must be enrolled full-time; spouses and children entitled to work authorization; no USCIS approval required before consulate can issue visa.

O Visas – People with extraordinary ability in the sciences, arts, crafts, education, business, athletics or any field of “creative endeavor”

1. Are you one of the top people in your field in your country?

2. Do you have an employer, manager or agent in the US who can sign your application?

3. Is there a peer organization willing to say that they have no objection to your being granted an O-1 visa?

4. Can you show that you have won a major international award OR at least three of the following?:

a. Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

c. Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

d. Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

e. Evidence of the alien’s original scientific, scholarly or business-related contributions of major significance in the field;

f. Evidence of the alien’s authorship of scholarly articles in the field, in professional journals or other major media;

g. Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

h. Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

General Notes: Can be admitted for up to three years at a time; no need to maintain residence abroad; can have green card application pending while on O-1 status without problems; USCIS approval required before the consulate can issue visa. USCIS recently issued a memorandum rescinding its previous policy of deferring to prior determinations of extraordinary ability and will re-adjudicate O-1 petitions each time they are filed.

L Visas – Intra-company Transfers

1. Are you coming to the US to work for a company that has offices both in the US and outside the US?

2. Have you worked for the company abroad full-time for at least one year of the last three?

3. Are you coming to the US as an owner, executive, manager or an employee with special or advanced knowledge of the company’s operations?

General Notes: Seven year stays for owners, executives and managers; five year stay for special knowledge employees; easy to get green card for owners, managers and executives; spouses are allowed to work; USCIS must approve before consulate can issue visa; difficult for workers working on a contract basis at other employers. Firms with fifty or more employees, half of whom are in H-1B or L-1 status must pay a supplemental fee of $4500 with L-1 petitions.

E Visas – E-2 Treaty Investors and E-1 Treaty Traders

1. If you are seeking an E-1 Treaty Trader visa, are you currently working for a business that has a substantial volume of trading business with the United States (more than 50%)?

2. Are you a national of a country that has a bi-lateral trade treaty with the United States?

3. Are you coming to the US to work as an owner, executive, manager or “essential skills” employee?

4. Is at least 50% of the business owned by foreign nationals who are not US citizens or permanent residents?

5. For E-2 visas, are you investing a “substantial amount” of money in a commercial investment in the US?

General Notes: No limit on total time in E visa status; spouses can work; no initial USCIS approval required; permanent residency applications do not adversely affect E visas. More information about the E visas and a list of treaty countries may be found at:

http://www.visalaw.com/abcs.html

R Visas – Religious Workers

1. Are you coming to the US to work as a minister or work in a religious vocation or occupation?

2. Have you been a member of the religious denomination for at least two years?

3. Is the employer a “nonprofit” organization (most churches, synagogues and mosques qualify as well as institutions affiliated with them)?

General Notes: Valid for up to five years; convertible to a green card after two years of work in R-1 status unless the applicant has worked in the job for two years prior to entering the US; USCIS approval now required for consulate to issue visa and a site visit is required. Must have a 501(c)(3) determination letter to prove non-profit status.

TN Visas – NAFTA Visas for Canadians and Mexicans

1. Are you coming to the US to work in an occupation listed within the NAFTA occupation schedule? http://www.nafsa.org/_/file/_/amresource/8cfr2146.htm

2. Are you a citizen/ national of Canada or Mexico?

3. Do you meet the minimum job requirements for that position as listed in the TN NAFTA Schedule?

General Notes: Valid for up to three years; can be extended in three year increments; is a non-immigrant visa, therefore the beneficiary cannot have immigrant intent; is employer specific; there are no prevailing wage requirements; experience cannot be used as a substitute for the degree requirement (except in a handful of occupations permitting experience); there is no annual limit to the visas issued; Canadians can apply for the status at the port of entries with “TN offer letters” and Mexicans can apply directly at the US Consulates; extensions and change of status applications may be filed in the US (only at the USCIS’ Nebraska Service Center).

E-3 Visas for Australians

1. Are you Australian?

2. Do you have a university degree?

3. Do most people in your field in the US have university degrees?

4. If you lack a degree, do you have several years of work experience in your field?

5. Do you have an employer in the US willing to hire you?

6. Does the job pay as much as similarly employed American workers?

7. Does the employer typically only hire people with university degrees for the job?

8. Does the employer guarantee that they will have continuous work available to you?

9. If the occupation requires a license, do you have the necessary license?

General Notes: The E-3 visa for Australians combines elements of the H-1B and the E-2 and E-1 visas. Like the E-1 and E-2, E-3 applications can be filed directly at a US consulate abroad and do not require advance USCIS approval. Also, spouses of E-3s can obtain an employment authorization document when they accompany the E-3 to the US. Like the H-1B, the visa is only available to people in specialty occupations. Also, a Labor Condition Application is required and the prevailing wage must be paid. And like the H-1B, E-3s are limited in number. However, the quota of 10,000 per year has not been reached in the past. Unlike the H-1B (and like the E-1 and E-2) there is no limit on the number of years an E-3

can hold E-3 status. Note that premium processing is not yet available for those seeking to change to E-3 status from within the US.

This list is not an exclusive list of all the non-immigrant visas. Currently there are over 25 major non-immigrant visa classifications and the above discussion includes only the most common ones. More information about these and other non-immigrant visas may be found at our website http://www.visalaw.com/abcs.html

2. Immigrant Visas (“Green Card”)

There are four (4) basic categories of immigrant visas:

1. Family sponsored immigrants

2. Employment based immigrants

3. Diversity immigrants

4. Refugees and Asylees

Family Sponsored Immigrants

1. Immediate relatives – no quotas, faster processing

a. Are you a spouse of a US citizen?

b. Are you a child under 21 years old of a US citizen?

c. Are you the parent of a US citizen over the age of 21?

2. Preference categories*

a. First Preference – Are you the adult unmarried child of a US citizen? Wait: seven years (or more for the nationals of Mexico and Philippines)

b. Second Preference A – Are you the under 21 child of a green card holder or the spouse of a green card holder?

Wait: Two years

Second Preference B – Are you the adult unmarried child of a green card holder?

Wait: Seven years (or more for the nationals of India, Mexico and Philippines)

c. Third Preference – Are you a married child of a US citizen?

Wait: Twelve years (or more for the nationals of Mexico and Philippines)

d. Fourth Preference – Are you a brother or sister of a US citizen?

Wait: Thirteen years (or more for the nationals of Mexico and Philippines)

*The above waiting periods are based on the US Department of State’s Visa Bulletin published in October 2017. The US DOS publishes the Bulletin monthly and announces the current waiting periods therein. The above periods should be considered as estimates and for accurate waiting periods, the current Visa Bulletin must be checked.

General Notes: Must file petition with the USCIS to get a place in the queue; marriage to a US citizen is scrutinized to make sure the marriage is genuine; petitions based on green card holder automatically switch to higher preference category when the green card holder becomes a citizen; cases may convert automatically from one category to another when a person’s age and marital status change; certain rights and priority dates may be retained for children when they turn 21. The Visa Bulletin can be found at:

http:// travel.state.gov.

DV Visas – Green Card Lottery

The US government allocates 55,000 visas a year for people to receive through a random computer drawing. Information on the green card lottery can be found at http://www.dvlottery.state.gov. Entry applications are submitted online.

1. Are you a high school graduate?

2. Do you work in a field typically requiring two years of work experience and you have at least two years of work experience in the field?

3. Were you born in an eligible lottery country?

General Notes: Very low odds (fewer than 1 in 40 applicants will typically succeed); easy to enter; entry period is limited and usually is in the last quarter of the calendar year (October to December); must have job available in US or proof of ability to support self financially.

Employment-Based Green Cards

EB-1-1 – Persons of Extraordinary ability in the sciences, arts, education, business or athletics

1. Are you one of the top people in your field?

2. Can you show that you have won a major international award OR at least three of the following?:

a. Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b. Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

c. Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date and author of such published material, and any necessary translation;

d. Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

e. Evidence of the alien’s original scientific, scholarly or business-related contributions of major significance in the field;

f. Evidence of the alien’s authorship of scholarly articles in the field, in professional journals or other major media;

g. Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

h. Evidence that the alien has commanded and now commands a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

General Notes: No employer required, but you’ll need to show you intend to pursue work in your field; fast category.; USCIS strict about meeting evidence categories and demonstrating sustained acclaim. Even if three categories met, USCIS may refuse to grant if they think overall the applicant is not extraordinary.

EB-1-2 – Outstanding Professors and Researchers

1. Are you recognized internationally as outstanding in a specific academic area?

2. Do you have three years experience in teaching or research in your area?

3. Are you coming to the US to work in a tenure or tenure-track teaching position or a long-term research position?

4. Can you present evidence that you are recognized internationally in your academic field by presenting evidence of at least two of the following?

a. Receipt of major prizes or awards of outstanding achievement

b. Membership in an association which requires outstanding achievement

c. Published material in the professional publications written by others about your work

d. Evidence of your participation as a judge of the work of others

e. Evidence of original scientific research

f. Authorship of scholarly books or articles in the field

General Notes: Fast category requires employer sponsorship.

EB-1-3 – Multinational Executives and Managers

1. Category is virtually identical to L-1 intracompany transfer non-immigrant visa

2. Key differences

a. Not available to specialized knowledge employees

b. US branch must be operating for at least a year

General Notes: Requirements highly similar to L-1 non-immigrant category except not available to specialized knowledge employees and office in US must be operating for a year.

EB-2 – Members of the Professions Holding Advance Degrees or People With Exceptional Ability

1. Do you have a degree beyond a bachelor’s degree or do you have a bachelor’s degree plus five years of work experience in your field?

2. Or do you meet the definition of exceptional ability by showing three of the following:

a. Degree relating to the area of exceptional ability

b. Letter from current or former employer showing at least 10 years of experience

c. License to practice profession

d. Person has commanded a salary or remuneration demonstrating exceptional ability

e. Membership in professional association

f. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization

3. Do you have a job offer and labor certification or are you basing your green card application on benefiting the nation’s interest?

4. If you are planning on basing your green card application on a labor certification, do you work in a field where there is a shortage of American workers in the local area where you intend to work?

5. If your claim is based on a labor certification, are you going to be paid the prevailing wage for similarly employed workers in the city where you are going to work?

6. If your claim is based on a labor certification, has your employer attempted to recruit workers to fill the position?

7. If your claim is based on a national interest waiver, do you meet the following tests?

a. The person seeks employment in an area of substantial intrinsic merit

b. The benefit will be national in scope

c. The national interest would be adversely affected if a labor certification were required

General Notes: Processing times vary but labor certification cases typically take one to two years and national interest cases take six months to a year and a half; Employer not required in national interest waiver cases; multiyear backlogs for Indian and Chinese nationals; for labor certification-based cases, employer required to pay costs associated with labor certification.

EB-3 – Skilled Workers, Professionals and Other Workers

General Notes: Available to university graduates and people working in jobs requiring a worker with at least two years experience can file this category if the employer gets a labor certification (see above). There is a sub-category for unskilled workers that does not have a work experience or education requirement, but still requires a labor certification. The EB-3 category is backlogged for multiple years for all nationalities; for labor certification-based cases, employer required to pay costs associated with labor certification.

EB-4 – Special Immigrants – Religious Workers

General Notes: Basically the same requirements as the R-1 religious worker non-immigrant category except that the applicant must have been working in the field for at least a two year period. No backlogs in this category as of the fall of 2017.

EB-5 – Investor Employment Creation Visa

1. Are you investing in a business in the US?

2. Is the business new or are you buying into a restructured business?

3. Are you investing at least $500,000 if the business is in a rural, high unemployment area or designated target investment area or $1,000,000 if located elsewhere?

4. Is your investment in the form of cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the entrepreneur?

5. Is the investment “at risk”?

6. Can you document that the source of the funds is legitimate?

7. Will the investment result in the creation of at least ten full-time jobs for American workers?

General Notes: The USCIS scrutinizes these cases carefully. While technically the investment and job creation need not take place until after granting the green card, in practice, the USCIS will deny unless the investment and job creation take place before the application was submitted. Applicants can avoid having to show direct job creation by investing in a pre-approved regional investment center. Applicants applying through regional centers also do not need to show they are involved in management. Chinese nationals are facing backlogs in the EB-5 category of about two years (as of April 2016).

More information about immigrant visas may be found at our website http://www.visalaw.com/abcs.html

3. Asylees and Other Special Groups

There are certain protected groups of aliens in the US. Most common are the asylee and refugees. Under the 1980 Refugee Act, a refugee is defined as “any person who is outside of any country of such person’s nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Both refugees and asylees must satisfy this definition. Indeed, in almost every way, the requirements for refugee status and asylum are the same. The most important difference is that an asylee makes their application while in the US, while the refugee applies outside of their home country, but also outside of the US.

Asylees and refugees are eligible for employment authorization and have special paths to permanent residency.

President Obama created a new discretionary program in 2012 aimed at young undocumented immigrants who arrived as children. The Deferred Action for Childhood Arrivals (DACA) program is available to those who were in the US on June 15, 2012, were under the age of 16 on that date, have been in the US for at least five years, who are under 31 on June 15, 2012, who are in school or have a high school or college degree, GED, or an honorable discharge from the Armed Forces and have no criminal history. The program is extended in two-year increments and was recently extended until 2016.

President Trump has attempted to suspend the refugee program, but has been rebuffed by the courts. He is also seeking to reduce by more than 50% the number of refugees admitted to the US after his planned temporary suspension has ended (including a total bar on Syrians).

There are other protected groups like the TPS (temporarily protected status) aliens available to people from countries facing war, disaster, etc. More more information about these special groups and others may be found at our website http://www.visalaw.com/abcs.html

3. US Citizens

US Citizenship can be obtained in multiple ways including the following:

1. Birth in the US or certain US territories

2. Birth outside the US to a US citizen parent (note that various complex residency and physical presence requirements for both parent and child likely apply)

3. Naturalization or naturalization of parent when child is under 18 at time of parent’s naturalization

Naturalization requirements:

1. Lawful permanent resident for five years (or three years if married to a US citizen and couple is together for the three years)

2. Three months residence in state where application filed

3. Present in the US for half of the required 5 or 3 year residency period.

4. Continuous residency in the US (breaks of 6 months to a year presumed to break residency; breaks of more than a year mean 5/3 year residency period starts over).

5. Residency exceptions for members of military and their dependents, employees working abroad for US employers and spouses of US citizens working abroad for US employers.

6. Good moral character for required residency period.

7. Able to pass test of English, US history and US government (exceptions based on age/medical disability)

Dual citizenship possible.

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3. AskVisalaw.com In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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QUESTION: My sister is a US citizen, and she filed an F-4 I-130 petition for me 15 years ago. I was born in the Philippines, but I have since moved to Canada and become a citizen of Canada. The wait times for a visa for the Philippines for the F4 category is way longer than the wait time for Canada. Am I now able to use Canada as my country of chargeability for my petition?

ANSWER: Unfortunately, no. You cannot use Canada as your country of chargeability for determining when a visa will become available for your immigrant petition according to the Department of State Visa Bulletin. Obtaining the citizenship of another country does not change your country of chargeability.

There are a few exceptions to the general rule that your county of chargeability is the country of birth. Obtaining the citizenship of another country is not one of those exceptions. Here is a link to a previous post of mine where I discuss what those exceptions are, so that you can see if maybe you qualify for a different country of chargeability based on one of those exceptions.

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QUESTION: My parents had a green card and stayed in the United States for 8 years. They went back to India in 2008, and their green card expired in 2010. Now they want to come back to the USA. Can I renew their green card now?

ANSWER: Someone who has not been back to the US in 9 years will not be able to show that they did not abandon their US permanent residence. So “renewing” the visa is not likely to be successful. If you are a US citizen, you may be able to file a new immigrant petition for your parents to eventually apply for new immigrant visas.

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4. Border and Enforcement News

DHS Ends Protected Immigration Status for Nicaraguans, Haitians; Hondurans Receive Extension

The Trump administration has announced that the Temporary Protected Status (TPS) designation for Nicaragua will not be renewed, providing a 14-month period of time for the 2,500 individuals who have provisional residency through the program to exit the country. The Administration announced that more time was needed to determine whether it will renew TPS for 57,000 Hondurans who are present in the United States through utilization of the program. TPS designation was granted for these two countries in 1999 after Hurricane Mitch struck Central America, and since then the service has been renewed regularly.

Citing a determination that the effects of Hurricane Mitch are no longer detrimental to Nicaragua, acting secretary of the Department of Homeland Security Elaine Duke announced that the program’s termination will result in a deadline of January 5, 2019, by which all Nicaraguans will be required to change their residency status or leave the country. She stated that, though the conditions warranted the designation, they were temporary and are no longer at the level which warrants renewal. The six-month extension through July 5,

2018 granted to Honduras likely indicates that a decision regarding the long-term future of the program will be decided by acting secretary Duke’s successor. She supported her decision to extend by stating that more time was needed in order to gain more extensive information to make a comprehensive assessment and subsequent decision.

Acting secretary Duke also announced the termination of the TPS designation for Haiti, a decision with an effective date of July 22, 2019, providing 18 months to facilitate orderly transition. The decision to terminate the designation came after determining that the conditions which warranted the designation following the 2010 earthquake no longer exist. The 18-month delay will allow those currently under the designation to seek alternative lawful immigration status, if eligible, or plan their departure from the country. The delay period will also allow for the government in Haiti to plan accordingly for the return of its citizens. To continue working legally in the United States, such individuals are required to reapply for Employment Authorization Documents.

For more information, view the press release for Nicaragua and Honduras, or for Haiti.

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5. News from the Courts

Ninth Circuit Grants Partial Stay to Travel Ban Injunction The Ninth Circuit Court of Appeals partially granted the federal government’s request for a stay of the preliminary court’s injunction dependent on a hearing and resolution of the expedited appeal in a case challenging the third version of the President’s executive order. The Ninth Circuit exempted foreign nationals with bona fide relationship ties to the United States from this decision. The injunction is still in effect for individuals with proven, documented close relationships to individuals in the country, such as grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law.

For more information, view the order.

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District Court Judge Issues Permanent Injunction Against Executive Order Withholding Federal Funding to Sanctuary Cities

A District Court Judge in California has issued a permanent injunction Executive Order 13768, which withholds funding provided by the federal government to sanctuary cities. The judge determined that the order goes beyond the scope of power of presidential executive orders in violation of the Fifth Amendment and Tenth Amendment Constitutional rights. Specifically, the executive order was found to have outreached the authority of executive orders, depriving allocated congressional funding to the affected areas without notice or

opportunity to be heard to the degree of being in violation of the Fifth Amendment right to due process. The outreach of authority of the executive order also was determined to be superseding the local jurisdiction, violating Tenth Amendment rights. The decision permanently enjoined the enforcement of the executive order to areas deemed sanctuary jurisdiction, and since the order was found to be unconstitutional, the judge issued a nationwide injunction against the travel ban executive order.

For more information, view the full case.

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Data Finds Mexican Nationals and Individuals Detained in Immigration Court are Uniquely Disadvantaged

Though it should come as no surprise that individuals who have competent legal representation in immigration cases have a higher success rate than those without, the fact that 80 percent of detained individuals facing deportation are without representation is substantially more alarming. Individuals are permitted to be represented by an attorney if they cover the cost themselves. There is no right to an attorney, however, and individuals who cannot afford or find an attorney are statistically more likely to be deported.

Individuals face many obstacles in attempting to acquire legal representation by themselves.

First and foremost, the financial burden of acquiring a competent attorney is a substantial barrier for many. Additionally, since the individual is detained, travelling to meet with a prospective attorney is impossible. Couple this with an inherent guaranteed reliance upon phones to establish connection, which are difficult to access and generally expensive in their own right, and detained immigrants seeking representation are left with very few feasible options. If individuals manage to contact and hire an attorney, visitation regulations vary from facility to facility, and most detention facilities are in remote locations far from the attorney’s office.

The Transactional Record Access Clearinghouse (TRAC) conducted a data analysis, the results of which reinforce the notion that a noncitizen’s ability to hire an attorney is correlated primarily with the nationality of the individual and whether the individual is detained. Analyzing data from over 3 million immigration cases from as early as 2001, the report found that almost 40 percent of immigrants in removal proceedings were detained. The likelihood of a detained individual receiving representation is dependent upon a number of factors. One is the location of the court handling the individual’s case. The nationality of the individual also correlates with whether a detained individual receives representation. The analysis concluded that individuals immigrating from Mexico were substantially disadvantaged in immigration court. Though these individuals have the highest detention rate at 78 percent, they received the lowest representation rate of all countries in the analysis at 33 percent.

For more information, view the full article.

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Lawsuit Filed Seeking to Reclaim Unpaid Wages for Au Pairs Plaintiffs have filed a lawsuit seeking to reclaim unpaid minimum and overtime wages for au pairs on J-1 visas dating back to July 25, 2009. The plaintiffs claim their visa sponsors failed to pay minimum hourly wages, overtime wages, and mandatory training time. The suit also alleges that an improper credit for room and board was deducted from what wages were received. The plaintiffs are seeking twice the amount of unpaid wages owed, in addition to attorney’s fees, and costs from the visa sponsors. The visa sponsors from which the plaintiffs seek retribution are InterExchange, Cultural Care Au Pair, Au Pair in America, Go Au Pair, Au Pair Care, Inc., and Expert AuPair.

For more information, view the au pair wage action informational website.

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BIA Denies Appeal of Native of Italy Because of Aggravated Felony Conviction

Giovani Rosalia Vella, a native and citizen of Italy, was granted entry into the United States on October 8, 1967, as a lawful permanent resident. A conviction 40 years later in September 2007 for conspiracy to operate an illegal gambling business violated the terms of his stay, and in 2009 the Department of Homeland Security (DHS) issued a notice to appear in removal proceedings. In August 2009, After Vella conceded his removability, the Immigration Judge granted him an adjustment of status. In February 2013, a conviction of conspiracy to commit extortion prompted a new notice to appear, and in a July 2016 decision, the Immigration Judge determined that Vella’s conviction constituted an aggravated felony “crime of violence” under 18 U.S.C. § 16(b) (2012). That decision was vacated based on the United States Third Court of Appeals, which held jurisdiction over this case, finding that Section 16(b) was “unconstitutionally vague.” Following the decision, DHS added charges of removability, arguing the respondent’s removability was justifiable since he was an alien convicted of conspiracy to commit a felony, which was upheld by an Immigration Judge and not contested by Vella. This left the only aspect eligible for appeal whether he qualified for a waiver of inadmissibility. The Immigration Judge concluded that he failed to meet the requirements, since he was an alien lawfully admitted for permanent residence who received a criminal conviction for an aggravated felony after receiving this designation.

The respondent did not contest the criminal conviction, but rather questioned the language of the section, which stated “No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony.” The Immigration Judge interpreted this to disqualify Vella, as an alien who was previously admitted in 1967 and subsequently received an aggravated felony conviction. In contrast, Vella asserted that the language of the section, specifically the designation as “previously been admitted” to refer to the most recent instance of entry, which he asserted would be the 2009 adjustment of status.

The Board of Immigration Appeals disagreed with Vella’s interpretation. The BIA understood previous admission to refer to any incident in the past, instead of the most recent time in the past as Vella argued. Since the respondent admitted that he was admitted to the country as a lawful permanent resident in 1967 and received a conviction after the date of admission for an aggravated felony, the BIA concluded that Vella was ineligible for relief and denied the appeal.

For more information, view the full case.

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Ninth Circuit Court of Appeals Decision Provides Green Card Opportunity to Certain Temporary Protected Status Holders

A potential path to apply for adjustment of status has been provided to specific Temporary Protected Status (TPS) holders, as a result of a Court of Appeals decision. The Ninth Circuit Court of Appeals ruling on Ramirez v. Brown is particularly beneficial to TPS holders whose status expiration is predicated upon the termination of the TPS designation, such as in the case of Nicaraguans. Following the decision, individuals in the Ninth and Sixth districts who entered the country without inspection or were granted TPS afterward may now qualify for adjustment of status by submitting an immediate relative petition. This decision, however, does not affect the requirements for adjustment of status. Applicants must still prove their eligibility for adjustment of status by adhering to all eligibility criteria.

A March 31, 2017 decision from the Ninth Circuit determined that the language of INA §244(f)(4) holds that TPS is an “admission” as is required for adjustment of status eligibility. Specifically in the section regarding TPS, the Court found that the language states that TPS “shall be considered as being in and maintaining lawful status as a nonimmigrant” for the specific purposes of “adjustment of status.” Therefore, the Court determined that a grant of TPS is considered an “admission” for adjusting status. The Sixth and Ninth Circuits are the only circuit courts which currently view TPS as an admission. Individuals with TPS outside of the Sixth and Ninth districts who entered the country unlawfully and have not been granted parole must exit the United States and receive a green card through consular processing.

For more information, view the practice alert update from the Immigrant Legal Resource Center.

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6. News Bytes

United States Postal Service’s Errors Result in the Rejection of DACA Applications; Trump Administration Announces those Affected May Reapply

Lapses in time between mailing and deadlines initially resulted in United States Citizenship and Immigration Services (USCIS) rejecting the applications of many Deferred Action for Childhood Arrivals (DACA) applicants, but after news outlets shed light on the issue, the Trump Administration has decided to allow those whose applications were affected to reapply. An unidentified slow-down in mail service by the United States Postal Service (USPS) lasted weeks, and individuals who submitted their applications well before the deadline, through no fault of their own, received notices of rejection for failure to file in a timely manner. Though the Administration guaranteed applicants to reapply, not necessarily that those applications will be approved, the decision could potentially provide another two years of protection for many individuals whose application was already rejected.

Two groups of applicants were affected, both of which will be required to resubmit applications. The first group included individuals whose applications were received at the USCIS’s mailboxes as of October 5 but were not picked up until October 6. USCIS will proactively reach out to applicants in this group, though a timeframe for when this will occur has yet to be named. The second group included individuals who mailed their applications well before the deadline, but those applications were not received until after the October 6 deadline. USCIS will not proactively reach out to applicants in this group, and they will be required to provide “individualized proof that the request was originally mailed in a timely manner” and that the lapse in time was directly due to the United States Postal Service. Since USCIS does not accept filing fees for untimely applications, neither group will be charged twice.

For more information, view the full article.

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Coalition for the American Dream Seeks DACA Solution

More than 60 businesses, organizations, and trade organizations have announced the formation of a coalition seeking a long-term solution for the more than 800,000 recipients of the DACA program facing loss of that status as a result of the Trump Administration’s recent announcement that the program is ending. The coalition mentioned the economic benefit of finding a bipartisan solution could affect the national GDP by $215 billion, as well as the humanitarian benefit of allowing individuals who have grown up in the United States and positively contributed to its society.

For more information, view the press release.

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USCIS Updates Numerous Forms

United States Citizenship and Immigration Services has released revised versions of a number of its forms and has provided information regarding when the new version will go into effect and how long the older versions will continue to be accepted. Below is a list of the updated forms and the pertinent changes made to them.

Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document

The new edition is dated 10/19/17. Beginning 01/12/2018, USCIS will exclusively accept the edition dated 10/19/17. Until that date, USCIS will continue to accept the 12/23/16 edition.

Form I-693, Report of Medical Examination and Vaccination Record

The new edition is dated 10/19/2017. Beginning 01/2/2018, civil surgeons will be required to use the edition dated 10/19/17. USCIS will deny the 02/07/17 version as well as any other previous editions signed and dated by a civil surgeon on or after 1/2/2018.

Form I-821, Application for Temporary Protected Status

The new edition is dated 10/19/17. Beginning 12/30/2017, USCIS will exclusively accept the edition dated 10/19/17. Until that date, USCIS will continue to accept both the 12/23/16 and 02/20/14 editions.

Form I-765, Application for Employment Authorization

The new edition is dated 07/17/17. Beginning 12/04/2017, USCIS will exclusively accept the edition dated 07/17/17. Until that date, USCIS will continue to accept the 01/17/17 edition.

Form N-426, Request for Certification of Military or Naval Service

The new edition is dated 07/25/17. Beginning 10/27/2017, USCIS will exclusively accept the edition dated 07/25/17. Until that date, USCIS will continue to accept the 08/04/15 edition.

For more information, view the USCIS updated forms page.

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7. Washington Watch

White House Proposes Strict Immigration Reform Policy The White House released a list of requests related to immigration policies, described by the Congressional Hispanic Caucus as the most radical policy proposals it has seen to date. Hispanic Caucus Representative Michelle Lujan Grisham went to far as to identify these

proposed changes as, “Even before I got to Congress, [the worst] I have ever seen by any White House, ever.”

Included in the requests was a demand that federal funding be withheld from “sanctuary cities,” areas which support the rights of immigrants, providing funding for legal support in court or denying Immigration and Customs Enforcement (ICE) from detaining individuals. Another essential aspect of the demands was funding for the construction of a southern border wall. This is an issue which was a platform for Trump when running for office, and has been a point of emphasis throughout his first year in office. Another request included was mandatory inadmissibility for individuals with specific criminal accusations. Though the current immigration system would disqualify individuals with certain criminal convictions, the proposed policy would apply to individuals who are merely accused of involvement in such criminal activity. The violations specified included identity theft, drunk driving, certain firearm offenses, and gang activity. The policy change request also called for mandating the E-Verify program in order to ensure that employment for any illegal immigrant would be impossible. The program is a record of Social Security numbers and visa records which employers can reference to determine the legal status of a prospective employee. Among the requests was also a call to ensure the speedy return of unaccompanied minors to their countries of origin. This is in opposition to the current practice of waiting for these children’s refugee or asylum cases to be processed before making a judgment to force their return.

For more information, view the full article.

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8. In the News at ABIL Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.

The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

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Ban on Refugees Expires; Trump Administration Calls for Additional Vetting for 11 Nationalities During 90-Day Review Period

The Trump administration’s 120-day ban on refugee admissions expired on October 24,

2017. On the same day, the Department of State announced that "additional in-depth review is needed with respect to refugees of 11 nationalities previously identified as potentially posing a higher risk to the United States. Admissions for applicants of those 11 potentially higher-risk nationalities will resume on a case-by-case basis during a new 90-day review period."

Rex Tillerson, Secretary of State; Elaine Duke, Acting Secretary of Homeland Security; and Daniel Coats, Director of the Office of the Director of National Intelligence, sent a related memorandum on October 23, 2017, to President Trump. The State Department announcement and memo do not list the 11 countries, but according to reports, the countries appear to be Egypt, Iran, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen; and Palestinians living in those countries. The memo notes that the 11 countries were those designated on the Security Advisory Opinion (SAO) list, which was established following the 9/11 terrorist attacks on the United States and has evolved over the years through interagency consultations.

The memo states that during the 90-day review period, while a "detailed threat analysis" is being conducted of those 11 countries, the Secretaries of State and Homeland Security "will temporarily prioritize refugee applications from other non-SAO countries," and that resources that may have been dedicated to processing nationals or stateless persons of SAO countries will be reallocated during that period "to process applicants from non-SAO countries for whom the processing may not be as resource intensive."

The Department also announced on October 24 that "[f]or family members who are 'following-to-join' refugees that have already been resettled in the United States, additional security measures must also be implemented for all nationalities. Admissions of following-to-join refugees will resume once those enhancements have been implemented." The October 23 memo states that Mr. Tillerson, Ms. Duke, and Mr. Coats "have jointly determined that additional security measures must be implemented before admission of following-to-join refugees can resume." Those measures are to include "adequate screening mechanisms" that are "similar to the processes employed for principal refugees."

An Executive Order issued by President Trump on October 24, 2017, states, among other things, that within 180 days, the Attorney General will "provide a report to the President on the effect of refugee resettlement in the United States on the national security, public safety, and general welfare of the United States. The report shall include any recommendations the Attorney General deems necessary to advance those interests."

The Executive Order also states that within 90 days of October 24, 2017, and annually thereafter, the Secretary of Homeland Security will determine "whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated, and, if so, what those modifications or terminations should be."

Meanwhile, President Trump announced that the maximum number of refugee admissions to the United States in fiscal year 2018 will be lowered to 45,000, which is the lowest number since the Refugee Act was passed in 1980.

The U.S. Supreme Court said on October 24, 2017, that it would not consider the merits or legality of the Trump administration's travel ban, issued in March, due to its expiration. Other challenges to new Presidential orders are working their way through lower courts.

The Department of State's October 24 announcement is at https://www.state.gov/r/pa/prs/ps/2017/10/275074.htm. The October 23 memo is at https://www.state.gov/documents/organization/275306.pdf. President Trump's related Executive Order is at https://www.whitehouse.gov/the-press-office/2017/10/24/presidential-executiveorder-resuming-united-states-refugee-admissions. The White House announcement of the 45,000 refugee cap for FY 2018 is at https://www.whitehouse.gov/the-pressoffice/2017/09/29/president-donald-j-trump-taking-responsible-and-humanitarian-approach.

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USCIS Increases Scrutiny of Certain Nonimmigrant Extension Requests

Under updated policy guidance, U.S. Citizenship and Immigration Services (USCIS) is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories. The guidance applies to nearly all nonimmigrant classifications filed using Form I-129, Petition for a Nonimmigrant Worker.

The agency noted that previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy, USCIS said.

USCIS explained that as before, adjudicators must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The updated guidance instructs officers to apply the same level of scrutiny when reviewing nonimmigrant visa extension requests, even where the petitioner, beneficiary, and underlying facts are unchanged from a previously approved petition. "While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner," USCIS said, adding that the adjudicator’s determination "is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility."

The Alliance of Business Immigration Lawyers (ABIL) advises employers and employees to treat nonimmigrant extension applications as no longer routine, and to include the same documentation as required in an initial petition. ABIL also advises allowing more time to file such applications; 180 days before the current petition expires is recommended. Nonimmigrants may want to consider accelerating permanent residence processing. Litigation of extension petitions may be possible in some cases. Contact your ABIL attorney for advice and help in specific situations.

The USCIS announcement is at https://www.uscis.gov/news/news-releases/uscis-updatespolicy-ensure-petitioners-meet-burden-proof-nonimmigrant-worker-extension-

petitions. The updated policy guidance is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescissionof-Deference-PM6020151.pdf.

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Sen. Grassley Urges Reconsideration of Trade NAFTA Nonimmigrant Classification

Sen. Charles Grassley (R-Iowa), chairman of the Senate Committee on the Judiciary, sent a letter on October 23, 2017, to Ambassador Robert E. Lighthizer, the U.S. Trade Representative, to express "ongoing concerns regarding the uncapped TN [Trade NAFTA] nonimmigrant classification," which is a component of the North American Free Trade Agreement (NAFTA). Sen. Grassley asked Mr. Lighthizer to "consider renegotiating the guest worker provisions of NAFTA as part of any broader examination of the treaty."

Sen. Grassley's letter notes, among other things, that given the Trump administration's "focus on protections for the American worker, including efforts to rein in the H-1B program, businesses will be looking for alternative sources of cheap foreign labor to exploit." He suggests that employers are likely to turn to the TN visa category. The letter notes that the TN visa, "if left unchanged in its current form, could well undermine the administration's broader efforts." He notes that the number of TN visa workers employed in the United States has been growing in recent years and that available statistics suggest that "the number could be approaching 100,000."

Sen. Grassley's letter noted, "Given President Trump's willingness to reevaluate—or reject—any and all of the NAFTA agreement, in the interest of protecting American workers, I recommend that you specifically include temporary workers in the ongoing NAFTA review."

A statement from Sen. Grassley and the full text of the letter are at https://www.grassley.senate.gov/news/news-releases/grassley-encourages-review-high-skilledworker-program-nafta-negotiations.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

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9. Updates from the Visalaw.com Blogs Greg Siskind’s Blog on ILW.com

• USCIS Will No Longer Stand Behind Prior Adjudications in Extension Petitions • ECFMG Warns That Travel Ban May Negatively Impact US Health Care

• Siskind Summary: Hawaii v. US (Travel Ban 3.0) Temporary Restraining Order Ruling • Siskind Summary – Chart Comparing “Dream” Bills • Siskind Summary – H.R. 3591 – The American Hope Act of 2017 • Siskind Summary – HR 3304 – The House Dream Act of 2017

Bruce Buchanan's Blog on ILW.com

• What is Unfair Documentary Practices? • IER Settles Immigration-Related Discrimination Claim for $100,00 Against Vegetable

Processing Plant • ICE Planning Worksite Enforcement Operation against National Food Service Chain • How to Get Ready for an ICE Audit? (part 2) • How to Get Ready for ICE Audit? (part 1) • H-1B Site Visits Will Be Increasing • Massachusetts restaurateur sentenced for multiple fraud schemes • What is Legal Workforce Act (H.R. 3711)? • DOJ Settles Immigration-Related Discrimination Claim Against Rustic Inn Crabhouse • IER Settles Immigration-Related Retaliation Claim Against InMotion Software

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10. State Department Visa Bulletin: December 2017

Number 12 Volume X Washington, D.C

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during December for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year

than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.

1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by November 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

A. FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA-mainland born INDIA MEXICO PHILIPPINES

F1 01FEB11 01FEB11 01FEB11 01APR96 01JAN05

F2A 22DEC15 22DEC15 22DEC15 15NOV15 22DEC15

F2B 22NOV10 22NOV10 22NOV10 22JUL96 01JUL06

F3 08SEP05 08SEP05 08SEP05 22MAY95 08MAR95

F4 08JUN04 08JUN04 22NOV03 08OCT97 01AUG94

*NOTE: For December, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 15NOV15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15NOV15 and earlier than 22DEC15. All F2A numbers provided for MEXICO are exempt from the per-country limit.

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES

F1 01JAN12 01JAN12 01JAN12 01NOV96 01OCT07

F2A 01NOV16 01NOV16 01NOV16 01NOV16 01NOV16

F2B 01SEP11 01SEP11 01SEP11 01JAN97 01SEP07

F3 01DEC05 01DEC05 01DEC05 01OCT95 15JUN95

F4 15NOV04 15NOV04 22JUN04 08FEB98 01MAR95

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Employ- ment based

All Charge- ability Areas Except Those Listed

CHINA- mainland born

EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES

1st C C C C C C

2nd C 01JUL13 C 01NOV08 C C

3rd C 08MAR14 C 15OCT06 C 15JAN16

Other Workers C 01JUL06 C 15OCT06 C 15JAN16

4th C C 08NOV15 C 22APR16 C

Certain Religious Workers C C 08NOV15 C 22APR16 C

5th Non-Regional Center (C5 and T5) C 15JUL14 C C C C

5th Regional Center (I5 and R5) C 15JUL14 C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

Employ- ment based

All Charge- ability Areas Except Those Listed

CHINA- mainland born

EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES

1st C C C C C C

2nd C 15NOV13 C 08FEB09 C C

3rd C 01SEP15 C 01JAN08 C 01AUG16

Other Workers C 01JUN08 C 01JAN08 C 01AUG16

4th C C 15APR16 C C C

Certain Religious Workers C C 15APR16 C C C

5th Non-Regional Center (C5 and T5) C 01OCT14 C C C C

5th Regional Center (I5 and R5) C 01OCT14 C C C C

6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on final action dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF DECEMBER

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2018

annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For December, immigrant numbers in the DV category are available to qualified DV-2018 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 10,000

Except: Egypt: 6,200 Ethiopia: 6,300

ASIA 2,500

Except: Iran: 2,100 Nepal: 2,000

EUROPE 6,000

NORTH AMERICA (BAHAMAS) 4

OCEANIA 400

SOUTH AMERICA, and the CARIBBEAN 425

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2018 program ends as of September 30, 2018. DV visas may not be issued to DV-2018 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2018 principals are only entitled to derivative DV status until September 30, 2018. DV visa availability through the very end of FY-2018 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN JANUARY

For January, immigrant numbers in the DV category are available to qualified DV-2018 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 13,000

Except: Egypt: 8,300 Ethiopia: 9,200

ASIA 3,400

Except: Iran: 2,800 Nepal: 2,650

EUROPE 8,200

NORTH AMERICA (BAHAMAS) 5

OCEANIA 475

SOUTH AMERICA, and the CARIBBEAN 500

D. SPECIAL IMMIGRANT (SI) TRANSLATOR CATEGORY VISA AVAILABILITY

Given the limited availability of visa numbers and the existing demand, the Department expects to reach the FY-2018 annual limit of 50 Special Immigrant Visas in the SI category early in the Fiscal Year. As a result, it has been necessary to hold the December Final Action Date at April 1, 2010. It is likely that number use will require the SI category to become “unavailable” in the coming months. Once the annual limit of 50 visas is reached, further issuances in the SI category will not be possible until October 2018, under the FY-2019 annual limit. The SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains current.

E. RETROGRESSION OF PHILIPPINES FAMILY-SPONSORED PREFERENCE CATEGORIES

The Philippines F1 and F2B final action dates had been advanced very rapidly during the course of the past year in an effort to generate sufficient demand to fully utilize all available numbers. In recent months the amount of applicant demand being received has been increasing at a steady pace. The level of such demand has reached a point where it has become necessary to retrogress each of those final action dates in an effort to hold number use within the annual limit for these preference categories.

F. SCHEDULED EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES

Employment Fourth Preference Certain Religious Workers (SR):

Pursuant to the continuing resolution, signed on September 8, 2017, the non-minister special immigrant program expires on December 8, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 7, 2017. Visas issued prior to this date will only be issued with a validity date of December 7, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight December 7, 2017.

The final action date for this category has been listed as “Current” for December for all countries except El Salvador, Guatemala, Honduras, and Mexico, which are subject to specific final action dates for December. If there is no legislative action extending this category for FY-2018, the final action date would immediately become “Unavailable” for December for all countries effective December 8, 2017.

Employment Fifth Preference Categories (I5 and R5):

The continuing resolution signed on September 8, 2017 extended this immigrant investor pilot program until December 8, 2017. The I5 and R5 visas may be issued until close of business on December 8, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after December 8, 2017.

The final action dates for the I5 and R5 categories have been listed as “Current” for December for all countries except China-mainland born, which is subject to a July 15, 2014 final action date. If there is no legislative action extending them for FY-2018, the final action dates would immediately become “Unavailable” for December for all countries effective December 9, 2017.

G. OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Subscribe Visa-Bulletin (example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa final action dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on final action dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514 CA/VO: November 8, 2017

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