USCIS Seeks Public Input on the EB-5 Program

On January 11, 2017, the U.S. Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) published an Advance Notice of Proposed Rulemaking (ANPRM) to gather information relating to the EB-5 Immigrant Investor Regional Center Program. This ANPRM comes after the Office of Management and Budget (OMB) published a notice that it had completed its review of a proposed rulemaking that USCIS drafted regarding changes to the current EB-5 program. This rule is entitled, “Improvement of the Employment Creation Immigrant Regulations.” The purpose of this ANPRM is to gather information and feedback from the public and various stakeholders on the regional center operations and EB-5 investors. The comments and information gathered by USCIS through this process will help shape the proposed rule. Comments on the ANPRM will be accepted for 90 days.

USCIS is seeking public comment on a range of issues, including: (1) the process for initially designating entities as regional centers, (2) a potential requirement for regional centers to utilize an exemplar filing process, (3) “continued participation” requirements for maintaining regional  center designation, and (4) the process for terminating regional center designation. In addition to these general inquiries, USCIS also seeks public input on over a dozen specific questions relating to the regional program. These questions range from “How can USCIS improve the initial designation process?” to “What documentation should be required to accompany an exemplar application?” It has been 25 years since the EB-5 regional center program was implemented, and there have not been any updated improvements since that time. It is still unclear whether the incoming Trump Administration will continue to support the EB-5 program.

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Trump’s Winery in Virginia Seeks Visas for Foreign Workers

President-elect Trump’s winery in Charlottesville, Virginia recently filed visa applications with the U.S. Department of Labor (DOL). The winery said it will need six workers to prune grape vines six days a week , with a pay of $10.72 an hour, from January 31, 2017 to June 30, 2017. The visas requested fall under the H-2A program, which allows employers in the U.S. to fill seasonal agricultural jobs with foreign workers. CNN reports that in the last 15 years, Trump’s various businesses have been granted approval to hire at least 1,256 foreign guest workers. The report states that since June 2015, companies the President-elect owns have requested at least 190 foreign visa workers, through a variety of different visa programs. The H-2A program was created in the 1990s to help agricultural employers bring temporary foreign workers into the U.S. to do seasonal work. As part of the program, employers are required to offer certain wages, plus transportation, and housing when necessary. The H-2A visa holders live and work in the U.S. for several months at a time but are not considered immigrants, and the program is not seen as a pathway to citizenship.

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Electronic System for Travel Authorizations (ESTAs)

The Electronic System for Travel Authorization (ESTA) is a system used to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP), and whether such travel poses any law enforcement or security risk. The VWP is administered by the U.S. Department of Homeland Security and enables eligible citizens or nationals of designated countries to travel to the U.S. for tourism or business for stays of 90 days or less without first obtaining a visa. ESTA is a web-based system run by the U.S. Customs and Border Protection (CBP), designed for citizens of countries that participate in the VWP. In order to apply for ESTA, you must fill out the online application and pay a processing plus authorization charge. Upon completion of an ESTA application, a traveler is notified of his or her edibility to travel to the U.S. under VWP. Authorization through ESTA does not necessarily determine whether a traveler will be admitted into the U.S. The CBP officers will still need to determine admissibility of a person upon their arrival. An approved ESTA application is valid for two years and allows for multiple visits to the U.S.

Some changes were made to the ESTA program in 2016 that travelers from VWP countries should be made aware of. Beginning January 21, 2016, nationals of VWP countries who are dual citizens or who have been present in Iraq, Syria, Iran and Sudan at any time on or after March 1, 2011 will no longer be eligible to travel to the U.S. under the VWP program. Some exceptions apply to those travelers in the armed forces or who traveled to those countries under a governmental capacity. This change came from the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. Individuals from these countries will still be able to apply for a visa using the regular immigration process at U.S. embassies or consulates. On February 18, 2016 DHS announced the addition of Libya, Somalia and Yemen to the list of countries of concern. The addition of Libya, Somalia and Yemen only triggers ESTA restrictions based on travel to those countries, not based on dual citizenship. As of April 1, 2016, an e-passport is required to use the VWP. An e-passport contains an electronic chip that holds the same information that is contained on the passport’s data page, as well as a biometric identifier and a digital photo of the holder.

Another program run by CBP that many may not be aware of is referred to as the “Six-Month Club.” Usually, visitors traveling to the U.S. are required to be in possession of passports that are valid for 6 months beyond the period of their intended stay in the U.S. Citizens in countries deemed eligible by CBP are exempt for the six-month rule and need only have a passport valid for their intended period of stay. The list is updated frequently, and was last updated on November 21, 2016, when Algeria was taking off the list. The newest member of the club is Saudi Arabia, added in June 2016. If your country is not a member of the Six-Month Club, and your passport doesn’t meet the six-month requirement at time of entry, your authorized stay may be shortened accordingly. So if at all possible, renew your passport early to avoid any potential issues when entering the U.S.

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The New Form I-9

The U.S. Citizenship and Immigration Services (USCIS) released a new version of the Form I-9 Employment Eligibility Verification (Form I-9), which is effective immediately. Employers may continue to use the current Form I-9 through January 21, 2017, but after that date, the new Form I-9 is mandatory. Employers are required to verify the identity and work authorization of all employees that are hired and maintain an I-9 form on file for every employee on their payroll. The new Form I-9 is supposed to be more user friendly and should clarify the process and correct many common mistakes made in the old Form I-9.

There are several changes and some improvements to the new Form I-9, including the format of the document. The new form is now available in a .pdf format that allows employees and employers to download and complete. The “smart form” may now be submitted online, however, and employers must still print and sign the document accordingly. A feature of the new smart form is the document will pre-populate some of the information entered, or it will populate N/A in sections applicable. The form also includes drop-down lists and calendars for certain fields and will automatically flag any missing fields. Another new feature is a dedicated empty space for employers to enter additional information that was previously added to the margins of the form. Throughout the new Form I-9 there are updated clarifications, for example the old Form I-9 contains a place for “Other Names Used” in Section I, and the new Form I-9 changes that to “Other Last Names Used.” There is also a new Form I-9 Supplement, which should be filled out by the form’s preparer or translator.

The new Form I-9 has updated instructions that are longer and provide much more detail than previously came with the old form. The new Form I-9 and the instructions are now available in Spanish. These instructions are now separate from the Form I-9. In addition to the Form I-9 and the instructions, employers must also provide new employees with a list of acceptable document that states the employee’s identity and employment authorization. This list of acceptable verification documents has not been updated or changed.

It should be noted that employers who use electronic I-9 software need to ensure the software is updated with the correct version of the Form I-9. The responsibility for accurate digital information will fall on the employer, so it is imperative to make certain the software is complete and up-to-date and is keeping accurate audit trails. Employers who do not use this software must still print the Form I-9 and obtain handwritten signatures. Many companies are making the switch to E-Verify, an internet-based system through USCIS that allows businesses to keep the Form I-9 data for all employees. The information entered by the Form I-9s are verified through USCIS to determine accuracy. E-Verify also allows for electronic signatures.

Employers who fail to complete the Form I-9, or do so incorrectly, may face significant fines. The U.S. Department of Homeland Security recently finalized a rule that will increase fees for immigration-related offenses, including Form I-9 and E-Verify violations. These paperwork violation penalties have increased by 96% from a range of $216 – $2156 to $110 – $1,100. This fee increase shows the government’s increased efforts to enforce immigration laws and deter employers from hiring unauthorized workers. With this fee hike, it is more important than ever that employers ensure their From I-9 documents are accurate and there are procedures in place to ensure proper filing and compliance. The increased fee rule goes into effect on December 232016.

 

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American Businesses Should be Concerned by Trump’s Announcement That He Will Nominate Jeff Sessions as Attorney General

President-elect Donald Trump has announced that he intends to nominate Senator Jeff Sessions for Attorney General. If confirmed, the conservative Senator from Alabama would serve as the country’s top law enforcement official. Senator Sessions is well known for being a hard-liner on immigration and while serving on the Senate Judiciary Committee, opposed meaningful immigration legislation, including a bill that provided a path to citizenship for immigrants in the country illegally. He is also against legal immigration reform. Last year, Senator Sessions released a Memo entitled, “Immigration Handbook for the New Republican Majority” that lays out why immigration reform has worked against American citizens. The memo describes elite skilled immigrant workers in Silicon Valley as a “hoax” and speaks very critically of the H-1B and L-1 visa programs.

This announcement is a big blow to those hoping President-elect Trump’s hard-lined rhetoric during the campaign would not turn into actual policy. Beth Werlin, Executive Director of the American Immigration Council, released the following statement after the announcement about Senator Sessions broke: “Hope that President-Elect Trump would moderate his extreme views on immigration took a major hit with the announcement that he is nominating Senator Jeff Sessions to serve as Attorney General of the United States. Senator Sessions is the leading anti-immigration voice in the U.S. Senate. For years, Senator Sessions has urged severe restrictions on visas, called for drastically expanded immigration enforcement, and blocked all practical reforms to our outdated immigration system. As the country’s top lawyer and highest-ranking law enforcement official tasked with administering justice, the Attorney General has substantial authority over our nation’s laws, including our immigration laws. . . ”

American companies that use the H-1B and L visas should be very concerned at this nomination. During the election, Trump clearly stated that he will target illegal immigration, and not skilled workers that are here legally. The nomination of Sen. Sessions signals that the election rhetoric was inaccurate. American businesses should be very concerned and raise their concerns with their representatives in Congress. We may have a broken immigration system, but we have a system that is limping along.

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Job Flexibility Rule for Immigrant Workers Finalized

The U.S. Department of Homeland Security (DHS) issued a final rule that will effect skilled foreign workers in the United States. The final rule provides benefits to certain employment-based immigrant and non-immigrant visa programs. These benefits include: improved processes and increased certainty for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for those workers; and increased transparency and consistency in the application of DHS policy related to affected classifications. DHS states that the rule will “improv[e] the ability of U.S. employers to hire and retain high-skilled workers.” Many improvements have been made to the H-1B visa status, which is the most commonly used status by U.S. employers to hire foreign workers in specialty occupations temporarily. The rule provides for longer H-1B status extensions, and allows non-immigrants to change jobs or employers – with grace periods given for certain visa classifications. The rule will be published in the Federal Register on November 18, 2016 and will take effect on January 17, 2017 – just before President Obama will leave office. WATCH THIS BLOG FOR MORE DETAIL TO COME ON THIS NEW RULE.

Posted in Uncategorized

Giuliani Speaks about the President-Elect’s Policies

On November 13th, Rudy Giuliani sat down with Jake Tapper on CNN’s “State of the Union” to discuss the President-elect’s policies. Giuliani has been an adviser to Donald Trump throughout his campaign and is currently the vice chairman of the President-elect’s transition team. On Sunday, he discussed what policy changes Trump is planning to make in the transition from his campaign to his presidency. During the hour long interview, Giuliani touched on some key immigration issues. He said there would not be a complete Muslim ban in the United States, and instead there “would be extreme vetting.” The Washington Post covered the CNN interview and discussed how Trump’s stance on “a total and complete shutdown of Muslims” has softened since President-elect Trump first used those words last December. While it is still unclear what “extreme vetting” would entail, Giuliani said Muslims would be allowed into the United States if their home countries let immigration officials thoroughly examine the migrants. Giuliani added that with six countries: Pakistan, Egypt, Syria, Iraq, Afghanistan and Yemen, “we have to be very careful.”

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How Trump’s First 100 Day Plan Effects Immigration

President-elect Donald Trump has released his “100-Day Action Plan to Make America Great Again.” Unsurprisingly, the plan includes many policies that will impact immigration. Immigration was one of the biggest issues raised by Trump during his campaign, and he promised many reforms in this area. The first item that will impact immigration is his promise to cancel President Obama’s executive actions. This would comprise of any memos and formal executive orders issued by Obama, including the creation of a Syrian refugee program and halting the deportation of illegal immigrants who arrived in the U.S. as children (also known as “DACA” or “Deferred Action for Childhood Arrivals”). In addition, President-elect Trump has pledged to cut all federal funding to “sanctuary cities.” These cities have local policies where authorities do not ask to see an immigrant’s paperwork and do not prosecute people on the basis of being an undocumented immigrant. President-elect Trump has stated these cities harbor dangerous immigrants who commit crimes against Americans. He has also promised to remove more than “2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back.” President-elect Trump will also ensure that any person coming from a “terror-prone region” will receive an extreme vetting process. A list of where these regions are located has not be given yet, but Syria will likely be at the top of the list. Lastly, President-elect Trump plans to propose legislation to build a wall along the southern border of the U.S. and ensure Mexico reimburses the U.S. for the cost of building the wall.

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DHS Finalizes Rule to Increase Fees

The U.S. Department of Homeland Security (DHS) finalized a rule that will increase immigration fees. The proposed rule was issued on May 4, 2016, and the final rule will go into effect on December 23, 2016 (60 days after publication). The fees in the final rule remain unchanged from the fees originally proposed. DHS says the new fees are needed to maintain adequate services and recover costs and proposed after a comprehensive fee review. The fee hike will affect many, including those most commonly applying for a Form I-140, where the fee will go up more than 20%. Other significant increases include the Form I-129, Petition for a Non-Immigrant Worker, which will go from $325 to $460; the Form I-485, Application to Register Permanent Residence of Adjust Status, which will go from $985 to $1140; and the Form I-539, Application to Extend/Change Non-Immigrant Status, which will go from $290 to $370. In July, the U.S. Government of Accountability Office released a report that found that better oversight, monitoring and reporting of DHS programs are needed in order to show how the Agency’s collection programs are operating. To see all the new fee changes, see the “Summary of Final Fees” chart in the Federal Register.

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Where the 2016 Presidential Candidates Stand on Immigration

For those of you who missed the third and final Presidential debate, immigration was an important topic discussed by the 2016 Presidential candidates. Moderator Chris Wallace asked both candidates about their positions and plans regarding immigration. Some highlights include Mr. Trump accusing Secretary Clinton of wanting to give amnesty to all illegal immigrants. He also stated the need for stronger borders, in an effort to keep drugs out of the United States. Trump reiterated his plan to build a wall on the southern border and deport criminals as one of his first actions in office. Ms. Clinton said that she does not want to “rip families apart” and deport the millions of undocumented people in the U.S. She also asserted she has supported border security for years and will ensure resources go towards deporting any violent criminals. Secretary Clinton stated she would introduce comprehensive immigration reform within her first one hundred days in office.

Hillary Clinton’s official immigration plan promises to introduce comprehensive immigration reform within her first 100 days in office, which would include a route to citizenship. Ms. Clinton also supports President Obama’s executive actions from 2014 that would allow undocumented immigrants whose children were born in the U.S. to apply for work permits and temporary residency (also referred to as DACA and DAPA). The Supreme Court blocked this order, after issuing a 4-4 split decision, leaving the Fifth’s Circuit decision in place, and denied rehearing the case this session. A Clinton Administration will also continue President Obama’s policy of deporting violent criminals and others who break the law after entering the U.S. In addition, Clinton would end family detention for parents and children, and she would also allow all people – regardless of immigration status – to buy into the federal health care exchanges.

Donald Trump’s official immigration plan includes building a physical wall on the Southern border on his first day in office. Mr. Trump would not support President Obama’s executive actions and has promised to triple the number of enforcement and border patrol agents. A Trump Administration would oppose any pathway to legal status for immigrants in the U.S. illegally and would deny illegal immigrants access to any government benefits. He would suspend issuance of visas to any places “where adequate screening cannot occur” and would also create a deportation task force that would prioritize the removal of criminals or people who have overstayed their visas.

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About ABCs of Immigration Law
The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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