Supreme Court Hears Oral Arguments in Important Immigration Case, United States v. Texas

On April 18, 2016, the U.S. Supreme Court heard oral arguments in United States v. Texas, the lawsuit challenging President Obama’s executive actions on immigration. The case concerns a program that President Obama announced in November of 2014 called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. This program would allow more than four million unauthorized and undocumented immigrants who are the parents of citizens or lawful permanent residents to apply for a program that would spare them from deportation and provide them work permits. President Obama issued these actions in response to Congress’ inactivity in dealing with immigration reform. Along with DAPA, President Obama announced an expansion to the existing program Deferred Action for Childhood Arrivals, or DACA, which is aimed at non-citizens who came to the country as children. A topic of argument in the case is whether or not the President has overstepped his authority by announcing these programs and taken over something that would normally be handled by Congress.

Most of the April 18 arguments suggest that the court will break in a 4-4 split along party lines. A 4-4 tie would uphold a Texas appeals court ruling that blocks the program and denies President Obama the chance to revive it while he remains in office, therefore allowing a renewed challenge to the plan once the court is back at capacity.

To read more information about the case, please visit the articles below:

http://www.nytimes.com/2016/04/19/us/politics/supreme-court-immigration.html?_r=0

http://www.cnn.com/2016/04/18/politics/supreme-court-immigration-executive-actions-texas/

To read the transcript of the court proceedings, click here.

Rachel is an intern with the firm and is not a practicing attorney.

 

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USCIS Has Completed FY 2017 H-1B Cap Lottery

On April 7, 2016, USCIS announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas for FY 2017. They also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap. In total USCIS received more than 236,000 H-1B petitions during the filing period which began on April 1. On April 9, 2016, USCIS used a computer-generated random selection process to select enough petitions to meet the 65,000 general-category cap and the 20,000 master’s cap. Only about 27% of H-1B petitions that were filed were selected in this year’s lottery. USICS will reject and return all unselected petitions with their filing fees. Premium processing for H-1B cap cases will begin no later than May 16, 2016. Read the full alert on the H-1B cap lottery here.

Rachel is an intern with the firm and is not a practicing attorney.

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Posted in H-1B Visa Petitions, In The News

USCIS Transfers Workload from the Vermont Service Center to the California Service Center

USCIS has issued an alert on workload transfer from the Vermont Service Center (VSC) to the California Service Center (CSC) to balance workloads and decrease processing times. The CSC will now be processing some:

  • Form I-129, Petition for a Nonimmigrant Worker, for petitioners requesting L-1 Intracompany Transferee nonimmigrant classification;
  • Form I-539, Application to Extend/Change Nonimmigrant Status, for the L-2 nonimmigrant classification; and
  • Form I-765, Application for Employment Authorization, for L-2 nonimmigrants applying for employment authorization.

If USCIS transfers your case, they will send you a transfer notice. The original receipt number will not change and the transfer will not delay the processing of your case. USCIS asks that you allow two weeks from the date of the notice before referring to the webpage for CSC processing times for your petition. The filing location and instructions for the previously mentioned forms have not changed.

For more information and to read the alert, click here.

Rachel is an intern for the firm and is not a practicing attorney.

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Posted in In The News, Nonimmigrant Visas, USCIS New Policies/Procedures

DOS Announces New Policy for Phasing-out of U.S. Employment Authorization for Diplomats’ Dependents

The Department of State has announced a new policy for phasing out the ability of diplomats’ dependents holding A-2 visas to receive employment authorization in the U.S. For new applications, the Department’s Office of Foreign Missions (OFM) will consider applications only from dependents of PA2 employees who began or will begin employment between July 1 and December 31, 2015. For renewal applications, OFM will consider applications only from a PA2 employee’s dependents whose current employment authorization card (EAD) expires on or before June 30, 2016. This new policy is outlined in the Office of Foreign Missions’ (OFM) Diplomatic Note dated November 18, 2015.

Rachel is an intern with the firm and is not a practicing attorney

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Posted in In The News

USCIS Will Begin Accepting H-1B Petitions for FY2017 on April 1, 2016

USCIS has announced that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap on April 1, 2016. The congressionally mandated cap on H-1B visas is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap. USCIS expects to receive more than 65,000 petitions within the first five business days of this year’s program, and the agency will notify the public when the H-1B cap has been reached. H-1B petitioners may still request premium processing together with their petition. Premium processing will begin no later than May 16, 2016

For more information on filing and premium processing, please visit USCIS’ press release.

Rachel is an intern with the firm and is not a practicing attorney.

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Posted in H-1B Visa Petitions, In The News

DHS Extends OPT Period to Improve Opportunities for F-1 Visa STEM Students

The Department of Homeland Security published a final rule in the Federal Register on March 11, 2016 that will allow certain international students to stay and work in the United States on their student visas as long as three years after graduating. Certain STEM students (students studying science, technology, engineering, and math) with an F-1 visa who have elected to pursue 12 months of optional practical training (OPT) will be able to extend that OPT period by 24 months. Previously, the extension period was 17 months. The new regulations give STEM students the opportunity to apply for an H-1B visa multiple times to increase their chances of being allowed to work in the U.S. long-term.

To read more about the new visa rules, visit this article. You can read the final rule in full here.

Rachel is an intern with the firm and is not a practicing attorney.

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Posted in In The News, Nonimmigrant Visas

Carnival company voluntarily dismissed from H-2B prevailing wage class action

Last week, plaintiffs from a proposed class action involving H-2B visa guest workers voluntarily dismissed a Florida amusement park company from the pending litigation. The case involves the prevailing wage rate offered to guest workers.

This proposed class action involves the guest workers’ ability to receive supplemental prevailing wages. The prevailing wage rate involves two government agencies: the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL). The DHS issues H-2B visas for foreign workers coming to the United States to perform non-agricultural labor. The DOL requires that employers pay these workers at least the prevailing wage.

In November 2015, Pablo Gonzales-Aviles and Heleodoro Pena-Gonzalez filed a complaint on behalf of H-2B guest workers against the DOL and 79 identified employers. The potential class could exceed 1,500 workers—all the workers in the 79 companies’ employ. The complaint alleges that the guest workers on H-2B visas have yet to receive payment for work performed in 2013 because the DOL allowed the employers to challenge a wage increase. The complaint further alleges the wages were required pursuant to Supplemental Prevailing Wage Determinations (SPWDs) that the DOL issued to H-2B employers in accordance with a court order in Comite de Apoyo a los Trabajadores Agricolas v. Solis, 933 F.Supp.2d 700 (E.D. Pa. 2013) and the DOL’s Interim Final Rule published on April 24, 2013, in response to the order. 78 Fed. Reg. 24,047 (Apr. 24, 2013). Due to the employers’ challenge to the DOL, the plaintiffs allege, the employers kept the lower wages throughout 2013.

On February 17, the plaintiffs voluntarily dismissed one of the 79 named companies, Interstate Amusements of America, Inc., a Florida-based amusement park company. This dismissal follows the February 1 filing of a motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction. Several of the companies jointly filed this motion to dismiss, stating the workers lack legal standing to bring this lawsuit. On February 18, the plaintiffs filed a response to the motion to dismiss, stating the DOL’s policy on paying the prevailing wage gives the workers the necessary “injury-in-fact” to establish constitutional standing.

The case is pending in the U.S. District Court for the District Maryland, Case No. 1:15-CV-03463-MJG.

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DHS Announces New Travel Regulations under Visa Waiver Program to Include Libya, Somalia, and Yemen

The U.S. Department of Homeland Security issued a statement on February 18, 2016 on the implementation of additional changes to the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 for the countries of Libya, Somalia, and Yemen. The Visa Waiver Program (VWP) permits citizens of 38 countries to travel to the United States for tourism or business for stays of up to 90 days without needing a visa. In return, those 38 countries must allow U.S. citizens and nationals to travel to their countries for a similar length of stay for tourism or business purposes without requiring a visa.

The new regulations limit visa-free travel to the U.S. for people who have visited Libya, Somalia, and Yemen since March 1, 2011. Unlike the restriction for nationals of Iran, Iraq, Syria, or Sudan, this current restriction for Libya, Somalia, and Yemen does not apply to dual nationals of these three countries. Individuals impacted by this new restriction can still apply for a visa using the regular immigration process at embassies or consulates. The Department of Homeland Security noted that U.S. embassies and consulates are available to provide expedited visa appointments for those who need to travel to the U.S. for urgent business, medical, or humanitarian reasons.

To read more about these changes, the DHS press release is available here.

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The Failures and Future of the EB-5 Regional Center Program: Can it be Fixed?

The below was authored by Howard Schweitzer and Robert Freeman, the Managing Partner and Government Relations Principal, respectively, of Cozen O’Connor’s Public Strategies group.

The Failures and Future of the EB-5 Regional Center Program: Can it be Fixed?

Senate Committee on the Judiciary Hearing

February 2, 2016

The Senate Committee on the Judiciary (“Committee”) held a hearing on February 2nd regarding the future of the EB-5 Regional Center Program. The hearing was led by Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT); the two witnesses were Nicholas Colucci, the Chief of the Immigrant Investor Program Office (IPO) for U.S. Citizenship and Immigration Services (USCIS), and Stephen Cohen, the Associate Director of the Enforcement Division of the U.S. Securities and Exchange Commission (SEC).

In 1990, Congress created the EB-5 Immigrant Investor Program to stimulate the U.S. economy through job creation and capital investment by foreign investors. Two years later, it created the Regional Center pilot program, which allows investors to use regional centers to pool their investments. Through the EB-5 program, foreign investors can obtain permanent residency in the United States by investing capital, the amount depending on whether the investment is in a high-unemployment area called a Targeted Employment Area (TEA), and directly or indirectly creating a certain number of jobs.

In December 2013, the Department of Homeland Security (DHS) Office of Inspector General issued a report on the results of an investigation to determine whether the EB-5 regional center program is administered and managed effectively. The report’s major finding was that USCIS was in fact limited in its ability to prevent fraud or national security threats and could not adequately demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as originally intended. Another report was issued in March 2015 in response to whistleblower allegations of improper influence and favoritism by then-USCIS Director Alejandro Mayorkas. The report concluded that, while not taking a position as to the legitimacy of Mr. Mayorkas’ actions, they did create a perception within the EB-5 program that certain individuals had special access and received special consideration.

Several bills in Congress last session sought to reform and reauthorize the EB-5 Program by, among other provisions, increasing the level of capital investment, revising the definition of TEAs, and adding reporting and compliance requirements. However, despite what many in Congress see as a clear need for reform to prevent fraud and corruption, the EB-5 program was reauthorized in its current form under the fiscal year 2016 omnibus appropriations bill.

Senator Grassley, in his opening statement for the hearing, listed a number of the program’s problems and vulnerabilities, many of which were reiterated by other committee members in their opening statements and questions, including concerns over the source of capital funds, the reliability of job creation data, the possibility of foreign government involvement in

regional centers or projects, and the problem of “gerrymandering” of regional centers to include low-employment areas. Senator Grassley and others also mentioned Senator Jeff Flake’s (R-AZ) EB-5 Integrity Act, which has widespread support within the Committee to reform the EB-5 program before it is up for reauthorization at the end of September 2016.

Among the Committee members, there was widespread agreement that the EB-5 visa program should be reformed rather than ended. One notable exception was Sen. Diane Feinstein (D-CA); she opposes the program entirely, saying that America shouldn’t sell a path to citizenship when so many are in line for visas and green cards. She cited numerous cases of fraud and questioned Mr. Colucci about the ability of his agency to verify the source of EB-5 funds, since the U.S. government often doesn’t have access to information from foreign financial systems. She gave an example of a case in which funds were tied to a brothel in China, and expressed concern about the possibility of funding sources having ties with the drug trade, human trafficking, or terrorism.

Among the rest of the senators who support reforming the program, there was unanimous agreement that issues of fraud, corruption, and national security need to be addressed in order for the EB-5 to be reauthorized. When asked what tools could help USCIS address fraud, Mr. Colucci responded that the program’s integrity could be improved if USCIS had the authority to terminate regional centers in cases of fraud or national security concerns. Currently, centers can only be terminated for failing to file paperwork or create the requisite number of jobs. Mr. Cohen agreed with a statement by Sen. Richard Blumenthal (D-CT) that among many government programs there are problems with fraud, but that the response should be to reform the programs and not to eliminate them entirely.

Another issue that came up repeatedly was how states designate TEAs and where the money ultimately goes. Often, states will connect wealthier, urban tracts to unrelated poorer ones in order to attract more investment at a lower capital level. Mr. Colucci acknowledged that USCIS defers to the states to create TEAs, but the agency is currently contemplating changes to regulations so that there is consistent guidance for states. This is one way that the program can be improved with USCIS’s existing authority and without legislative action.

A related issue came up about urban versus rural regional center funding. Senators from rural states such as Sen. Grassley and Sen. Leahy questioned the tendency for capital to go to projects in wealthy, urban areas rather than distressed areas that could benefit most from investment. Sen. Chuck Schumer (D-NY) argued that the urban poor also benefit from investments in cities, for example those who commute from the South Bronx to work in office buildings in Manhattan. He urged his fellow senators to work for balance and a compromise for rural versus urban investment, which was mostly met with agreement by the other senators. Mr. Colucci noted that coming up with new guidelines for designating TEAs to encourage investment in disadvantaged areas is a top priority for EB-5 regulators, and that they have a large amount of data at their disposal about issues such as commuting patterns.

Another question, raised by Sen. Jeff Sessions (R-AL), was whether USCIS had the authority to raise the investment level, in order to get more investment with the same number of visas. Mr. Colucci responded that this was within the agency’s power to do without Congressional action, and that the issue was being addressed in forthcoming regulations.

In his closing questions, Sen. Grassley made several additional points about what he saw as shortcomings to the program. One was the fact that USCIS doesn’t deny investment for TEAs that have clearly been “gerrymandered”; the agency ensures that proper data is used, but doesn’t question the construction of the tracts. He again raised concerns about the source of funds, since USCIS’s “source of funds review” only ensures that funds are legitimate, but doesn’t discriminate beyond that. Additionally, he asked about whether the available data and methodology were sufficient to determine that job creation requirements had been met, mentioning the problem that arises when all jobs associated with a project are counted even when EB-5 money only makes up a fraction of total investment. Mr. Colucci acknowledged this limitation and noted that regulations differentiate amongst jobs created in different industries in an attempt to address the issue. Lastly, Sen. Grassley asked if USCIS would commit to performing site visits if given sufficient resources. Mr. Colucci responded that the visits are already being planned, and he hopes routine visits will begin this year.

Overall, the hearing was less substantive than reiterating the support of the senators in the Committee to reform rather than end the EB-5 visa program. Everyone agreed that there are problems with fraud, corruption, and national security concerns. However, with the exception of Sen. Feinstein, they also agreed that the program delivered enough economic benefits that it was worth continuing. Little new information was presented at the hearing, since Mr. Colucci often declined to take a stance that could potentially contradict official policy positions. He also often didn’t have detailed data about the program, but offered to submit requested information following the hearing. Mr. Cohen, in his capacity at the SEC, spoke about the agency’s role in prosecuting fraud, but noted several times that their influence over the program itself is limited.

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Posted in Immigrant Visas, In The News

DOS and DHS Announce Changes to the Visa Waiver Program

The Department of State and Department of Homeland Security issued a joint statement on January 21, 2016 on the implementation of certain changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. The Visa Waiver Program (VWP) permits citizens of 38 countries to travel to the United States for tourism or business for stays of up to 90 days without needing a visa. In return, those 38 countries must allow U.S. citizens and nationals to travel to their countries for a similar length of stay for tourism or business purposes without requiring a visa. With the implementation of these new regulations, any foreign national of VWP countries who have traveled to or been present in Iran, Iraq, Syria, or Sudan on or after March 1, 2011 are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program. In addition, nationals of VWP countries who are also nationals of Iran, Iraq, Syria, or Sudan will now need to apply for a visa using the regular immigration process to enter the United States. However, under the new law these individuals may be eligible for a waiver from the Secretary of Homeland Security based on a case-by-case basis. These exceptions may apply to individuals who traveled to Iran, Iraq, Syria, or Sudan on official duty on behalf of certain organizations (humanitarian NGO, international and regional organizations) and sub-national governments or who traveled as a journalist for reporting purposes.

To read more about these changes, please visit the DHS and DOS joint press release.

Rachel is an intern with the firm and is not a practicing attorney.

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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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