New Form I-9 Takes Effect on September 18, 2017

As of today, September 18, employers must use the new Form I-9, Employment Eligibility Verification, for all new hires. The new form is available on the USCIS website and on most electronic Form I-9 software programs.

USCIS originally released the revised Form I-9 on July 17, 2017, which did not include any changes on the form or supplement itself. The only update is the addition of Consular Report of Birth Abroad (Forms DS-1350, FS-545, or FS-240) on List C of the Acceptable Documents list.

Employers who do not use the new Form I-9 may be subject to financial liabilities in the event of an audit.  The new form can be found here.

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President Trump, Senators Cotton and Perdue Introduce the RAISE Act

On Wednesday, August 2, 2017, President Trump, along with Senators Tom Cotton (R-Ark.) and David Perdue (R-Ga.) introduced The Reforming American Immigration for a Strong Economy Act (RAISE Act). The RAISE Act is proposed to create a skills-based immigration system, seeking to make America more competitive globally, raise wages for American workers, and create jobs to give Americans “a raise.”

“The RAISE Act ends chain migration and replaces our low-skilled system with a new points-based system for receiving a green card,” Trump said on Wednesday. “This competitive application process will favor applicants who can speak English, financially support themselves and their families and demonstrate skills that will contribute to our economy.”

According to Senator Cotton’s office, the RAISE Act would change the current visa system for employment-based immigration with a “skills-based points system,” where applicants would receive points based on things such as English language proficiency, education, age and job prospects.

The bill would eliminate family-based immigration categories such as adult sons and daughters, as well as brothers and sisters, and redefines “immediate relatives” to exclude parents. According to the government, this alters the current system as immediate relatives currently receive an immigration priority and aren’t made to wait for a visa number, which will no longer be available.

The RAISE Act would also cap refugee admittance to the U.S. at 50,000, while removing the diversity visa lottery that currently allocated 5,000 visas a year to residents of countries that do not send significant numbers of migrants to the U.S.

At this time we do not believe that the RAISE Act has enough support on the Hill or in the business community to become law.

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USCIS Resumes Premium Processing for Certain Cap-Exempt H-1B Petitions

On Monday, July 24, 2017, U.S. Citizenship and Immigration Services (USCIS) released an update detailing how it will resume premium processing for certain cap-exempt H-1B petitions. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

The processing detailed below from USCIS goes into effect immediately:

USCIS will resume premium processing for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

Starting today, those cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.

USCIS previously announced that premium processing resumed on June 26 for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.

USCIS plans to resume premium processing of other H-1B petitions as workloads permit. USCIS will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I-129 fees, USCIS will have to reject both forms.

 

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Department of State Updates “Close Familial Relationship” definition for Executive Order 13780 based on Hawaii District Court Ruling

On July 17, 2017 the Department of Homeland Security (DHS) and U.S. Department of State (DOS) announced updates regarding the implementation of President Trump’s Executive Order 13780, in response to a ruling by the U.S. District Court in Hawaii.

Last Thursday, July 13, 2017, the U.S. District Court in Hawaii issued a ruling regarding the definition of “close familial relationship,” as that phrase was used in the Supreme Court’s June 26, 2017 order on implementing Section 2(c) of E.O. 13780.  A close familial relationship for that purpose was previously defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships.  The District Court of Hawaii ruled that, in addition to those relationships, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ‎nephews and nieces, and cousins also be included in the definition of “close familial relationship.”

As of June 29, 2017, DHS and DOS had begun implementing Trump’s Executive Order at United States embassies and consulates abroad in compliance with the Supreme Court’s June 26th decision that agreed to hear the travel ban case next fall and partially granted the government’s request to stay the lower court’s injunctions. Their website states that “implementation [of the Executive Order] is in full compliance with the Supreme Court’s decision.”

 

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Homeland Security Temporarily Delaying Effective Date of International Entrepreneur Final Rule

On Tuesday, July 11, 2017, the Department of Homeland Security published notice in the Federal Register delaying the implementation of the International Entrepreneur Rule. After last month’s prediction that the Trump administration would delay the rule from going into effect on July 17th, the DHS notice officially delays the effective date of the regulation until March 14, 2018, except for an amendment to an Aliens and Nationality Immigration Regulation relating to seizure and forfeiture of conveyance, which will still go into effect on July 17, 2017.

The DHS states that the reason for the temporary delay is to “provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order 13767, ‘Border Security and Immigration Enforcement Improvements.’”

On January 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, prescribing improvements to border security and immigration enforcement, requiring the DHS Secretary to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

DHS will issue a Notice of Proposed Rulemaking seeking public comments on the proposal to rescind the International Entrepreneur Final Rule. The delayed effective date will provide an opportunity for the notice and comment rulemaking to take place.

The comment period is open for 30 days, until August 10, 2017.

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Supreme Court Agrees to Hear Travel Ban Case next Fall, Reinstates parts of Travel Ban

On Monday, June 26, 2017, the Supreme Court granted certiorari to hear the government’s appeal of lower court’s injunctions on President Trump’s travel ban in their next session beginning October 2017, and granted the government’s request to reinstate parts of the ban until the Court hears the case.  As is explained below, this means that the ban can be enforced against some travelers.

Of interest, the Court’s per curium action was a unanimous decision, but Justices Thomas, Alito and new Justice Gorsuch partially dissented and would have stayed the injunction in its entirety, allowing the full travel ban.

The revised travel ban that was issued by President Trump in March blocks most new immigrants from six predominantly Muslim countries for 90 days and all refugees for 120 days. A presidential memorandum issued earlier this month changed the conditions of implementation to prevent it from expiring during court proceedings, stating the ban would go into effect 72 hours after the Supreme Court acted on the government’s appeal.

The Court’s ruling means the travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” the Court wrote. The ban will not be applied to visa applicants who have a close relationship to a family member in the U.S. or who have been accepted to higher education programs or extended a job offer in the U.S.  Any other individual from one of the six listed countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – without a connection to the U.S. will be subject to the ban, as the Court also determined, “when it comes to refugees who lack any such connection to the United States… the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.”

The Department of Homeland Security said it will give further details on implementing portions of the ban after consulting with the Department of Justice and State Department.

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Foreign Startup Founder Rule Delayed

It is being reported that the Trump Administration intends to stop a new rule meant to help grant foreign-born entrepreneurs temporary permission, “parole,” to be in the U.S.

The International Entrepreneur Rule was created to allow foreign entrepreneurs to apply to work in the U.S., provided their startup raised $250,000 from established U.S. investors.  It was created after a public uproar after several stories were aired on TV and in the news about foreign entrepreneurs that were willing to invest in the US and hire Americans, were being denied visas.

Finalized in January on the last days of the Obama administration, the rule was supposed to take effect on July 17, 2017. Currently, it is at the Office of Management & Budget where it is to be further reviewed.  The Department of Homeland Security (DHS) plans to file an official notice, that will delay the implementation of the rule by eight months.  Then it is being reported in the press, that the Trump Administration, plans for the rule to disappear into an administrative black hole.  This position by the administration is contradictory to its promise to support and grow American jobs.

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Supreme Court Narrows Grounds for Revoking Citizenship

On Thursday, June 22, 2017, the Supreme Court unanimously tightened the standards for stripping immigrants of citizenship.  Divna Maslenjak, a Bosnian-Serb refugee who immigrated to the U.S. in 2000 and later obtained American citizenship, was stripped of her citizenship when information that she lied during her naturalization process was discovered.  She admitted to covering up her husband’s service in the Bosnian-Serb army unit that massacred 8,000 Bosnian Muslim civilians at Srebrenica in 1995.

Applicants for citizenship must possess “good moral character.” The government argued she lacked this, and if she had presented accurate information during her naturalization process, it would have affected the decision to grant Mrs. Maslenjak citizenship.

During Mrs. Maslenjak’s 2013 trial for procuring citizenship illegally, the jury was instructed that any lie, whether or not it was “material” and “did not influence the decision to approve [her] naturalization,” was sufficient for conviction.  The jury found her guilty of making false statements on her application and she was stripped of her citizenship

Mrs. Maslenjak’s lawyer challenged the jury instruction in the case, as the jury was told it could convict regardless of whether the false statement at issue influenced the government’s decision to approve the application for naturalization.

The Sixth Circuit Court of Appeals upheld her conviction, which conflicted with several other circuit rulings that held a misrepresentation must be relevant to the naturalization decision.

The Supreme Court rejected the government’s position in this case that any lie, no matter how minor, during the nationalization process can cost an individual his or her American citizenship.  Justice Kagan wrote for the court, stating that a jury must find that “a false statement sufficiently altered those processes as to have influenced the award of citizenship.”

Maslenjak v. U.S. has been remanded back to the lower courts, giving Mrs. Maslenjak  the opportunity to challenge the materiality of her false statements to determine the status of her citizenship going forward.

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U.S. Supreme Court Rules for Immigrant Who Received Bad Advice from Lawyer

On Friday, June 23, 2017, the U.S. Supreme Court ruled in favor of a green card holder who pleaded guilty to a crime based on faulty advice from his attorney. Jae Lee, 48, told the high court that he pleaded guilty to a crime based on his attorney’s advice that he would not be deported if he did. This was the wrong advice, and Lee subsequently faced “mandatory deportation” for pleading guilty to an aggravated felony. Since then, Lee has been in custody for seven years as his case proceeded. The Supreme Court ruled in Lee’s favor, holding that Lee was prejudiced as a result of his attorney’s inadequate advice.

Lee came to the United States in 1982 at the age of 13. He is a lawful permanent resident. In 2008, federal officials searched Lee’s house on a tip, where they found drugs, cash, and a loaded rifle. Lee admitted the drugs were his, and a grand jury indicted him on one count of possessing ecstasy with an intent to distribute. He told his attorney he was not a citizen, and repeatedly asked him whether he would face deportation if he pleaded guilty. Lee’s attorney assured him he would not be deported if he accepted a plea. Based on this assurance, Lee accepted the government’s plea and was sentenced to one year and one day in prison.

However, Lee had unknowingly pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), and was subject to mandatory deportation as a result of the plea. This was contrary to the advice of his attorney. Upon learning that he faced deportation, Lee filed a motion to vacate his conviction and sentence. At an evidentiary hearing, both Lee and his plea-stage counsel testified that deportation was “the determinative issue” in his decision to accept the plea. A magistrate recommended Lee’s plea be set aside, but the district court for the Western District of Tennessee denied relief, and the Sixth Circuit affirmed.

In a 6-2 decision, the U.S. Supreme Court reversed the lower courts and ruled in Lee’s favor. The Court held that Lee had adequately demonstrated to a reasonable probability that he would have rejected the plea had he known he would be deported. “Everyone agrees that Lee received objectively unreasonable representation,” the majority opinion held. “The question presented is whether he can show he was prejudiced as a result.” Applying the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), the high court found that Lee was prejudiced.

In Strickland, the Supreme Court established the standard for determining when a criminal defendant’s Sixth Amendment right to counsel is violated by that counsel’s inadequate performance. To establish ineffective assistance of counsel, a defendant must demonstrate: (1) the attorney’s performance fell below an objective standard of reasonableness; and (2) the attorney’s performance gives rise to a reasonable probability that if the attorney had performed adequately, the result would have been different. In Hill v. Lockhart, the high court held that the two part test in Strickland also applies to the plea stage. 474 U.S. 52, 57 (1985).

Here, the high court concluded that under Strickland and supporting cases, Lee was prejudiced by ineffective assistance of counsel. “But for his attorney’s incompetence,” said the majority opinion, “Lee would have known that accepting the plea agreement would certainly lead to deportation.”

Justice Thomas dissented. He noted that Lee admitted the drugs were in his possession, and a court or jury would have found Lee guilty regardless. “There is no reasonable probability of any other verdict,” Justice Thomas said “A defendant in petitioner’s shoes, therefore, would have suffered the same deportation consequences regardless of whether he accepted a plea or went to trial.”

Justice Thomas also criticized the majority’s application of Strickland. “[T]he Court today holds that a defendant who pleaded guilty need show only that he would have rejected his plea and gone to trial,” Justice Thomas said. “This standard does not appear to be particularly demanding, as even a defendant who has only the ‘smallest chance of success at trial’—relying on nothing more than a ‘Hail Mary’—may be able to satisfy it.”

Justice John Roberts wrote the majority opinion, in which Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed a dissent, in which Justice Alito partially joined. Justice Gorsuch took no part in the consideration or decision of the case.

The case is Jae Lee v. U.S., No. 16-327, in the U.S. Supreme Court. The full text of the opinion is available here.
A special thanks goes to Armeen Mistry of Cozen O’Connor’s Minneapolis office for writing this article.

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Department of Homeland Security Rescinds DAPA Program

On Thursday, June 15, 2017, the Department of Homeland Security Secretary John Kelly rescinded an Obama administration memorandum creating DAPA, a deferred deportation program for undocumented parents of U.S. citizens and lawful permanent residents.

DAPA would have allowed these undocumented parents to apply for three-year work authorization permits and deportation deferment protection, allowing the persons to be lawfully present for as long as the grant of deferred action status lasted.

This program never went into effect, as a Texas judge issued an injunction in 2015 after twenty-six states challenged the policies. The United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and in 2016 the Supreme Court allowed the district court’s injunction to remain in place, blocking the Government from further pursuing the DAPA program or expanding the previously implemented DACA program. When Secretary Kelly rescinded the memo, he stated on the DHS website that “there is no credible path forward” in court.

DACA is another Obama-era immigration policy that initially went into effect in 2012, allowing certain illegal aliens that entered the country as minors to receive a renewable two-year period of deferred action from deportation and eligibility for a work permit.

The DHS further stated that “the rescission [of the 2014 memo on DAPA and the expansion of DACA] will not affect the terms of the original DACA program as outlined in the June 15, 2012 memorandum.”

 

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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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