In 2018, the US received approximately 740,000 visitors a week. While that number looks big, when compared to the US population of 372 million, it is relatively small, equal to only .2 percent of the population. In stark contrast, last week Saudi Arabia, a country of about 33 million people, hosted about 140,000 international visitors for the annual Hajj pilgrimage, temporarily increasing its population by 4 percent.

Such international events can put a strain on a country, not to mention an immigration system. When hosting major international events, countries have come up with a variety of ways to process international travelers.

Saudi Arabia – The Hajj

To coordinate the large number of visitors traveling for the Hajj, Saudi Arabia has instituted a system of pilgrimage visas. These visas are allocated to specific countries through a quota system and are only available through official Hajj travel agents. Individuals cannot apply for a pilgrimage visa directly. In addition, pilgrimage visas are limited in geographic scope (they only allow travel to the area of the pilgrimage, not to other regions of Saudi Arabia) and duration (pilgrims must depart the country shortly after the traditional pilgrimage week).

Various Countries – The Olympics

Ahead of the 2020 Tokyo Summer Olympics, the Japanese government plans to create an eVisa process to streamline entry for international spectators. For the 2018 PyeongChang Winter Olympics, Korea offered easy extensions of stay for Olympic spectators and offered a special visa-free entry period to citizens of some countries normally subject to visa requirements. Similarly, Brazil waived visa requirements during the 2016 Rio games.

Russia – The Soccer World Cup

When the FIFA Men’s Soccer World Cup was held in Russia, spectators were exempt from visa requirements if they obtained a “Fan ID”, which also gave access to public transportation between venues. Qatar is reported to be considering a similar visa/fan ID combination when they host the event in 2022.

United States – The United Nations General Assembly

The 74th Session of the UN General Assembly will open on September 17th in New York City. This event draws political figures from around the world, many of whom would not normally be granted a US visa. For example, Iran’s former president Mahmoud Ahmadinejad spoke to the Assembly in 2011. Other notable UN visitors have included Moammar Gadhafi, Fidel Castro, and Nikita Khrushchev. To facilitate the travel of such individuals, the US has the C-2 visa. A subcategory of the US transit visa, this category allows travel only to the UN and the immediate vicinity, defined as within 25 miles of Columbus Circle, New York.

Pilgrimage visas organized by travel agents, eVisas, Fan IDs, and location specific visas are just some of the ways countries adjust their visa requirements for special events.

In what seems to be a continuing effort to limit legal immigration, DHS issued a final rule that reinterprets “public charge” as a ground of inadmissibility. The new interpretation is scheduled to take effect October 15, 2019, but has already been challenged in several federal courts, which may delay the effective date.

 With this reinterpretation, the government has expanded the grounds on which it can deny immigration benefits to various applicants seeking permanent residence (green card) status or work authorization to include those who have obtained certain public benefits such as cash welfare or housing assistance. In addition, not only will this new interpretation apply to those who have already sought certain public benefits, those the government believes may need such assistance in the future can also be denied. The new rules, if they take effect, will also impact those who are clearly financially secure, as it requires nearly all permanent resident applicants to file an additional form with their application and to provide evidence of self-sufficiency.

Between now and the time the rule goes into effect, there will be a great deal of discussion, interpretation, and clarification of the new rule that spans over 800 pages. Thirteen states filed lawsuits against DHS on August 14th claiming that the changes to the long-standing meaning of the term “public charge” violates the Immigration and Nationality Act, and other states, cities, and advocacy groups have filed similar suits. In the process of defending these suits, the government will provide further clarification as to how they intend to implement the rule. USCIS is also expected to issue clarifications through form instructions and other public announcements.

If you have questions about how this change could impact a specific situation or immigration process, please contact an immigration lawyer.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.

Below is a summary of the September Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 retrogresses more than two years to January 1, 2014; EB-2 stalls at January 1, 2017; and EB-3 falls back more than two years to January 1, 2014
  • India: EB-1 becomes unavailable for the first time ever (excluding the aftermath of the visa fiasco of August 2007); EB-2 creeps forward six days to May 8, 2009; and EB-3 falls back six months to July 1, 2005
  • All Other Countries (including the Philippines): EB-1 remains backlogged, but advances over one year to October 1, 2017; EB-2 moves forward one year to January 1, 2018; and EB-3 stalls at July 1, 2016

NOTE 1:     The September Visa Bulletin includes an ominous note that all dates could retrogress further before the end of the government’s fiscal year on September 30.

NOTE 2:     USCIS will accept I-485 applications in September based only on the Department of State’s Final Action Dates listed above. USCIS will NOT accept applications based on the Dates for Filing chart.

USCIS Acting Director Ken Cuccinelli announced today, via Twitter, that USCIS will close all but seven of its international field offices, leaving only the offices in Beijing, Guanghzou, Guatemala City, Mexico City, Nairobi, New Delhi and San Salvador to service the many US citizens and permanent residents who reside abroad. USCIS has also made the official announcement on their website. The decision leaves the entire continents of South America and Europe without a USCIS office.  Although not ideal, this announcement still marks a welcome change from USCIS’s prior announcement, in March 2019, by then-Director Francis Cissna that all twenty international offices would be closed and their workload shifted to domestic offices.

International field offices are currently located in the following cities around the world:

Latin America, Canada and the Caribbean District (3 of 7 offices to remain open):

  • Dominican Republic – Santo Domingo Field Office
  • El Salvador – San Salvador Field Office
  • Guatemala – Guatemala City Field Office
  • Haiti – Port-au-Prince Field Office
  • Mexico – Mexico City Field Office
  • Mexico – Monterrey Field Office
  • Peru – Lima Field Office

Asia/Pacific District (3 of 5 offices to remain open):

  • China – Beijing Field Office
  • China – Guangzhou Field Office
  • India – New Delhi Field Office
  • South Korea – Seoul Field Office
  • Thailand – Bangkok Field Office

Europe, Middle East and Africa District (1 of 8 offices to remain open):

  • Germany – Frankfurt Field Office
  • Ghana – Accra Field Office
  • Greece – Athens Field Office
  • Italy – Rome Field Office
  • Jordan – Amman Field Office
  • Kenya – Nairobi Field Office
  • South Africa – Johannesburg Field Office
  • United Kingdom – London Field Office

International field offices play an important role in carrying out USCIS’s mission of efficiently and fairly adjudicating requests for immigration benefits.  These field offices process various petitions and applications, including immigrant petitions for alien relatives and special immigrants, petitions to classify orphans as immediate relatives, naturalization applications by service members stationed abroad, and applications for refugee travel documents.  People served by international offices include US employees sent abroad by their US employers, US service members, and refugees.

International field offices have been generally highly regarded by the immigration bar and customers for providing exceptional levels of customer service and for processing applications and petitions in a fraction of the time USCIS’s domestic offices take.

Although these closings may result in cost savings, it is unlikely they will improve USCIS’s efficiency and effectiveness, one of the reasons USCIS stated for the decision to close thirteen of the twenty international offices.  US citizens and permanent residents living abroad are now likely to experience the same ever‑increasing backlogs and delays as those who reside within the United States.

On Tuesday, July 30, 2019, the U.S. Department of Justice (DOJ) announced a settlement agreement with United General Bakery, Inc. based in Phoenix, Arizona. The agreement resolved a DOJ investigation into whether the company discriminated against authorized workers based on their citizenship status when verifying their work authorization in violation of the Immigration and Nationality Act (INA).

All employers must verify the employment eligibility of their employees through the I-9 process. U.S. Immigration and Customs Enforcement (ICE) has primary jurisdiction over the I-9 process; however, DOJ’s Civil Rights Division, Immigrant and Employee Rights Section (IER), plays a significant role when it comes to investigating and prosecuting cases of I-9 related discrimination.

What is I-9 Discrimination?

The INA prohibits discrimination in several ways related to the I-9 process. Employers may not have I-9 policies that results in unequal treatment of employees based on their citizenship, immigration status, or national origin. The INA also states that employers cannot make unnecessary requests for documentation when verifying employment authorization, have unfair documentary practices, or engage in behavior that is meant to intimidate or retaliate.

Case Study: United General Bakery, Inc.

The investigation into United General Bakery serves as a case study of discriminatory behavior in multiple aspects of the I-9 process. For example, the company required non-US citizens to present specific forms of documentation as proof of employment authorization, rejecting other valid, legally acceptable documents. In addition, they imposed this requirement in a discriminatory fashion, requiring the additional documentation from non-US citizen employees only while setting a different standard for US citizen workers. The DOJ also found that the bakery had a practice of requesting lawful permanent residents provide “additional and unnecessary” documents when their permanent resident cards expired. The bakery was also fined for retaliation and intimidation of workers.

Potential penalties for such violations can include civil penalties of up to $2,000 for each individual discriminated against. In this case, under the terms of the settlement, DOJ imposed $45,000 in civil penalties. In addition, United General Bakery, Inc. is required to train their human resources department on the INA requirements regarding anti-discrimination and will be subject to compliance monitoring by the DOJ during a two-year period.

How Can US Employers Avoid Discrimination in the I-9 Process?

When you present your employee with a Form I-9, you must also present the List of Acceptable Documents. You may not specify which of the documents from the list are preferred, nor should you accept only a limited subset of documents from the list. Likewise, when re-verifying employment, you may not specify what documents the employee should provide.

Employers need to keep in mind that advertising job posts with language such as “Only Open to US Citizens” or “Must Present US Birth Certificate” risks violation of the INA. If it is the rare job which has citizenship status restrictions, ensure the job advertisement does not violate the INA.

In this climate, all agencies are examining business with heightened scrutiny concerning hiring practices and no business is immune. ICE and the DOJ continue to expand their efforts beyond industries that traditionally rely on low-skilled foreign workers to include those that have not previously been the target of investigations or only have a handful of foreign workers.

In 1985, near the village of Schengen in Luxembourg, five European countries signed an agreement to gradually eliminate border controls between their countries. Since then, the Schengen agreement has become the basis for the elimination of border controls between 26 European countries facilitating the flow of people and goods throughout Europe. Visitors are subject to immigration inspection when entering the Schengen area, but not when traveling between Schengen states.

Continue Reading 10 Things to Know about Schengen

Even though the United States ended the compulsory military draft on January 27, 1973, it maintains a database of eligible men used to provide “trained and untrained manpower to the Department of Defense in a national emergency.” The agency that manages this database, the “Selective Service System”, is alive and well, as is the requirement to register.

 Who must register?

Current law requires that all male US citizens who are 18-25 register with the Selective Service.  But did you know that non-citizens must register as well?  With a few exemptions, the following males who are 18-25 must register:

  • US born citizens (including dual nationals)
  • Naturalized citizens
  • Lawful permanent residents (“green card” holders)
  • Parolees
  • Asylum seekers
  • Refugees
  • Undocumented immigrants who entered without inspection
  • All males with visas of any kind that have expired more than 30 days ago

Those who would claim that they are “conscientious objectors” if drafted also must register, but can file for the exemption from military service if drafted, as too must disabled men living at home, even if their disabilities would exempt them from military service.  Those hospitalized, incarcerated, or in a nursing/mental/rehab institution must register within 30 days of being discharged.

Who is exempt?

There are a few categories of individuals exempt from Selective Service registration:

  • Nonimmigrants who are maintaining valid nonimmigrant status (such as H-1B, H-2A, L-1, F-1, etc)
  • Members of the armed forces on active duty
  • Cadets and midshipman at Service Academies or the Coast Guard Academy
  • Students in Officer Procurement Programs at certain educational institutions
  • Transgender men who were assigned female at birth and have corrected their gender to male (transgender women assigned male at birth must register, however)

Selective Service and applying for permanent residence

Foreign nationals applying for permanent residence in the United States using Form I-485 must sign a declaration that they understand that submitting the application will automatically register them in the Selective Service if they are 18 to 25 (the form actually says “26”, but the law requires registration up to, but not including, the 26th birthday).  Those filing this form who are younger than 18 when granted lawful permanent resident status are not automatically registered, but must do so when they turn 18.  Those issued immigrant visas at a US consulate are not automatically registered, but must do so within 30 days of arriving in the United States if they fall between the required ages.

Selective Service and applying for naturalization

Lawful permanent residents who qualify to become US citizens through naturalization can file Form N-400, which asks “Are you a male who lived in the United States at any time between your 18th and 26th birthdays?”.  If you answer “yes”, you are required to list the date you registered and the registration number assigned.  However, if you answer “yes” but did not register, the form says

  • you must register if under 26 before filing the application (so that you can complete the registration date and number section) or
  • if between 26 and 31 (or 29 if filing under INA 319(a) as the spouse of a US citizen), you must attach a statement explaining why you did not register and provide a status information letter from the Selective Service (instructions to do so can be found here).

Selective Service registration goes to a person’s good moral character, which is a key requirement for naturalization.  While failure to have registered when required is not an automatic bar to naturalization, it is an issue that requires legal advice before filing for naturalization.

Are you frustrated with the increasing level of documentation required to support employment-based immigration filings? You are not alone.

Gone are the days when a company letter and organizational chart were enough to support an L-1A manager case or just quoting the Occupational Outlook Handbook was enough to demonstrate specialty occupation status for an H-1B petition. US Citizenship and Immigration Services (USCIS) now requires pages and pages of supporting evidence for all employment-based filings, including I-129 nonimmigrant petitions for L-1 or H-1B status and I-140 immigrant petitions for multinational executives and managers. Immigration law firms, scrambling to keep up with the government’s ever-changing adjudications standards, increasingly turn to clients’ HR contacts and employees with requests for voluminous amounts of initial and additional evidence.

Below are answers to some frequently asked questions our firm has received regarding this issue:

My friend’s case was approved without extensive documentation. Why do I need to provide it?

Does your friend work for the same employer? In the same position? Does your friend have the same education as you? Each case is different. Each requires a different strategy and therefore, different amounts and types of documentation. USCIS scrutinizes certain occupations and industries more closely than others. Smaller companies also endure more scrutiny, but even large multinational companies are not immune to the government’s whims. In fact, those whims illustrate the last reason your friend’s case could have been approved with minimal documentation — luck. Despite the government’s recent efforts to standardize adjudications across officers and service centers, huge discrepancies still exist in outcomes. Strong cases are denied and weak cases are approved, for no apparent reason other than a single officer’s discretion.

We filed the initial petition three years ago, and it was approved without documentation. Why do we need to provide it now? Have the laws changed?

While immigration laws and regulations have not significantly changed, the agency’s adjudications policies and procedures have. USCIS no longer accepts as fact statements made by a petitioning employer in company support letters. All such statements must be backed up by documentary evidence.

The original petition was filed with extensive documentation. Why did USCIS issue a Request for Evidence asking for even more documents? Did USCIS lose my documents?

Possibly, but some occupations will almost always receive an RFE no matter what is submitted up front. While we are aware of no reliable evidence that USCIS officers have an RFE quota, there is much speculation that they do. We do know that the Trump administration is concerned by the generally high approval rate for immigration cases and is using the “Buy American, Hire American” executive order to scrutinize petitions through increased RFEs in order to decrease legal immigration. In addition, in cases filed using the USCIS 15-day premium processing service, RFEs may be issued on the 13th or 14th day to give officers more time to process their caseloads.

What if we do not provide any documents? Will the case still be approved?

Possibly, but why take the chance? When cases are denied, there can be severe consequences for nonimmigrant workers and any family members dependent on their immigration status. Denials jeopardize the ability to legally remain and work in the United States. Like RFE rates, denial rates have also increased considerably in recent years, mainly due to a new USCIS policy to outright deny cases for lacking initial evidence at the time of filing.

Why do I need to provide the documentation? Can’t the paralegal/attorney gather it for me? 

We gather as much as we can, but we are not familiar with every occupation. Employees, their hiring managers, and their companies are the ones who know best what the job involves on a daily basis and what education and experience are required to perform those duties.

The next time your immigration lawyer or paralegal sends a lengthy email requesting clarification of duties or additional evidence to back up a case, know that they are not being difficult. They simply want to do everything possible to ensure that the case will be approved.

If you have specific questions about your case, please contact an immigration lawyer.

Since mid-June, the White House has been promising massive U.S. Immigration and Customs Enforcement (ICE) coordinated immigration raids around the country.  The goal: arrest and quickly remove approximately 2,000 recently arrived individuals with deportation orders.  This, according to the White House, would serve as a deterrent to others seeking to enter the U.S. unlawfully.  The raids were expected to begin in earnest on Sunday July 14, 2019.

What happened?

That date has come and gone, without the expected nationwide show of force.  There were no large-scale raids with weapons drawn, no helicopters, and no associated big media splash. Various media outlets reported on small-scale ICE enforcement actions and a small number of arrests.

Despite the lack of large-scale enforcement operations, the political and media attention escalated fear among immigrants and in their communities.  Scare tactics, whether intended or not, were successful in this measure; however, immigration rights advocacy groups helped counterbalance the fear by educating immigrants on how to handle encounters with ICE.

Enforcement actions are part of ICE’s mission as the immigration law enforcement component of the Department of Homeland Security.  This past weekend was simply business as usual for ICE.  Small-scale raids will likely continue throughout the week, but, for the same reasons the raids were delayed (logistical hurdles, safety concerns, political pressures, etc.) we are unlikely to see raids on the scale of what was promised.

Ongoing worksite enforcement – part of the smoldering fire behind all the rhetorical smoke?

While the current hot topic is the threatened raids to arrest and remove individuals, employers should not lose focus on the continued rise in worksite enforcement actions.  Worksite investigations, I-9 audits, and criminal and administrative workplace arrests all surged by 300 to 750 percent in FY2018 over the previous year.  These actions, for the most part, do not draw a lot of media attention (or tweets) but can cost employers millions of dollars in fines and penalties.

In the coming months and years, ICE will continue to focus on worksite enforcement activities.  No business is immune and ICE continues to expand its worksite enforcement effort beyond industries that traditionally rely on low-skilled foreign workers to include those that have not previously been investigated or only have a handful of foreign workers.

The media storm over this round of ICE enforcement will blow over, the media will move on, but companies need to remain vigilant.