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Total Articles: 29

Federal Court Temporarily Blocks Health Insurance Requirement for Immigrant Visa Applicants

On November 2, 2019, the U.S. District Court for the District of Oregon issued a temporary restraining order, blocking the Trump administration from enforcing a recent presidential proclamation requiring health insurance for immigrant visa applicants. The proclamation, which had been scheduled to take effect on November 3, 2019, would have required certain immigrant visa applicants to prove that within 30 days of their entering the United States they would have approved health insurance or that they otherwise possessed the “financial resources” to cover “reasonably foreseeable medical costs.”

Scared to Check the Mail? Employers Face the Return of No-Match Letters

In the spring of 2019, the Social Security Administration (SSA) renewed its practice of sending employment eligibility correction request notices (known as “no-match letters”) to employers. The SSA had discontinued the practice of sending no-match letters between 2012 and 2018, but has issued more than half a million notices so far in 2019. Against the backdrop of a tight labor market, these letters particularly affect businesses in industries that rely on immigrant workers, including employers in the hospitality, construction, and agricultural industries.

The Fairness for High-Skilled Workers Act May Endanger Economy

The Fairness for High-Skilled Workers Act has passed the House of Representatives, and is pending before the Senate where it may pass by unanimous consent (i.e., with no actual vote or hearing).

ICE is Knocking

In this podcast, Lisa Burton and Leigh Ganchan discuss ICE’s increased enforcement activity in recent years. They address how to handle I-9 audits, compliance challenges employers face, and the penalties for noncompliance.

Facial Recognition Technology in Use for Air Travelers

On your next international trip, you may see facial recognition technology in use. The Transportation Security Administration (TSA) started piloting this technology in late 2018. Now, in conjunction with various airlines, the use of facial recognition technology is growing and at some airports it is being used for everything from identifying passengers at gates to full “biometric terminals” where you only need your face to check in, check baggage, traverse security and board the plane. Even if they see the cameras in use, however, U.S. citizens may opt out because these programs are currently voluntary for them.

New Public Charge Rule Seen as Latest Effort to Tighten Legal Immigration

Having focused on enforcement and illegal immigration, the Trump Administration has recently turned to legal immigration. The new Public Charge rule which will go into effect on October 15, 2019, absent court action, will make it harder for some foreign nationals to obtain green cards or even to secure or extend temporary non-immigrant status. What has been something that primarily affected family-based immigration may now affect some employers and their employees as well. Any workers with a family of four and an income of less than $64,000 (or 250% of the federal poverty guidelines) could be subject to the Public Charge Rule.

USCIS Revising, Updating Naturalization Test

USCIS is on its way to revising and updating the Naturalization Test. It will start with a pilot test involving about 1,400 volunteers this fall, then a second field testing pilot in spring 2020.

Update: DACA Litigation

DACA (Deferred Action for Childhood Arrivals) recipients have been in limbo and at the center of various political debates ever since President Donald Trump attempted to end the program in 2017. Put in place by the Obama Administration in 2012, DACA protects from deportation individuals who were brought to the United States by their parents as undocumented children. Individuals who have received DACA protection are granted work authorization, but currently have no pathway to lawful permanent residence in the United States. The 800,000 DACA recipients are known as “Dreamers,” and are generally considered to be model residents of the United States.

USCIS Caseload Redistribution May Mean Shorter Processing Times but More Travel for Green Card and Naturalization Applicants

U.S. Citizenship and Immigration Services (USCIS) will be redistributing certain naturalization and green card cases to field offices with lighter caseloads for processing. In its announcement, the agency said that since the end of 2015, it has received more green card and naturalization applications than expected. The increased volume has affected some field offices more than others. The new plan aims to reduce the backlog at the busier locations by reassigning cases to offices with lighter caseloads.

Trump Administration Targets Visa Overstays

President Donald Trump issued a Memorandum on April 22, 2019 aimed at reducing visa overstays – people who stay in the U.S. beyond the time authorized by their visas. Assertions set forth in the Memorandum include:

Key Immigration Considerations During Mergers and Acquisitions, Part II: Green Cards

Part one of this two-part series outlined common considerations related to temporary work visas employers may have during the due diligence process of a merger, acquisition, or other corporate restructuring. Part two will cover key considerations for employers during a pre-close assessment of impacted foreign national workers—this time, regarding green card processing.

Ninth Circuit Court of Appeals Rules in Favor of DACA

A three-judge panel for the Ninth Circuit Court of Appeals has upheld a nationwide preliminary injunction issued by a California district court, temporarily preventing the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program. The order requires the Department of Homeland Security (DHS) to continue to accept renewal applications. The Ninth Circuit, which is the first appeals court to rule on the matter, found that DACA “was a permissible exercise of executive discretion” and thus the plaintiffs are likely to succeed on the merits.

Supreme Court Upholds Travel Ban 3.0

The U.S. Supreme Court in a 5-4 decision has held that President Donald Trump’s Proclamation No. 9645, known as “Travel Ban 3.0,” can stand. Trump, et al. v. Hawaii, et al., No. 17-965 (June 26, 2018). Certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will continue to be subject to the ban.

More Trouble for Chevron Deference

Chevron deference is increasingly coming under fire from the justices of the Supreme Court of the United States. That came through loud and clear in Pereira v. Sessions, issued on June 21, 2018. Not only did the approach of the majority opinion appear to be at odds with the Court’s past approach to Chevron deference, but Justice Kennedy stated in a concurring opinion that “it seems necessary and appropriate to reconsider . . . the premises that underlie Chevron and how courts have implemented that decision.” Justice Alito asserted in dissent that “the Court, for whatever reason, is simply ignoring Chevron.”

Rescission of H-4 Employment Authorization Documents (EADs) Expected

The DOJ and the DHS have made clear on numerous occasions that they intend to rescind employment authorization documents (EADs) for H-4 visa status holders and it appears that rescission may be just around the corner. Family members of an H-1B worker are admitted in the H-4 category.

Status of International Entrepreneur Rule on Tenuous Ground, But USCIS To Begin Accepting Applications

The DHS is giving with one hand and taking with the other. In response to the December 1, 2017 federal court ruling in National Venture Capital v. Duke, the DHS is complying and implementing the International Entrepreneur Rule parole program (IER). At the same time, the DHS is in the final stages of publishing a notice of proposed rulemaking to eliminate the program.

Trump’s Third Travel Ban Blocked By Federal Court

For the third time this year, a federal district court has blocked a presidential travel ban from taking effect. Judge Derrick K. Watson, from the District of Hawaii, today granted a motion for a temporary restraining order that bars the federal government from enforcing President Trump’s September 24 travel ban (Travel Ban 3.0) on a national level, once again setting up a showdown at the 9th Circuit Court of Appeals and possibly the U.S. Supreme Court.

Lawsuits Over Rescission of DACA

On September 6, 2017, the day after Attorney General Jeff Sessions announced the rescission of DACA, 15 states and the District of Columbia filed a lawsuit challenging President Donald Trump’s DACA rescission. The states included in the lawsuit are Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

Trump Administration Rescinds DAPA Program

DHS Secretary Kelly has rescinded DAPA (Deferred Action for Parents of Americans and Lawful Permanents). DAPA was meant to 1) provide undocumented parents of U.S. citizens or Green Card holders with a way to remain in the U.S. with work authorization and 2) expand DACA (Deferred Action for Childhood Arrivals) by encompassing a wider range of ages and arrival dates and lengthening the duration of deferred action and work authorization per application from two to three years. Created by President Obama by an executive order, DAPA was quickly enjoined by the courts as an unacceptable expansion of executive power. The Obama administration appealed to the Supreme Court, and just one year ago, the lower court ruling was affirmed by default as a result of the Supreme Court deadlocking at 4 to 4. The case has since been stalled.

Supreme Court: Gender-Based Distinctions in Immigration Law Violates Equal Protection

A federal citizenship statute setting different residency requirements for U.S. citizen fathers and mothers seeking to transmit birthright citizenship to their non-marital children born outside the U.S. violates the Equal Protection Clause of the Constitution, the U.S. Supreme Court has ruled. Sessions v. Morales-Santana, No. 15-1191 (June 12, 2017).

Different Path, Same Result: 9th Circuit Becomes Latest Appeals Court To Reject Trump’s Travel Ban

Several weeks ago, the 4th Circuit Court of Appeals upheld an injunction that blocks President Trump’s second executive order attempting to institute a travel ban against those arriving from several specific Muslim countries (EO-2) from taking effect, largely basing its decision on a conclusion that the executive order violated the Establishment Clause of the Constitution.

Ninth Circuit Blocks Travel Ban

Joining the Fourth Circuit Court of Appeals and using President Donald Trump’s tweets to support its decision, the Ninth Circuit Court of Appeals in Hawaii v. Trump has continued to block the revised travel ban.

Extreme Vetting, Consulates, and New Form

In a series of cables sent in mid-March, Secretary of State Rex Tillerson had ordered Consulates abroad to begin preparing for “extreme vetting.” Then, the court in Hawaii v. Trump enjoined the President’s revised travel ban, and Tillerson issued another cable that suspended enforcement on the six countries in the Executive Order: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Secretary also indicated that Consulates could not request information until additional collection was approved by the Office of Management and Budget after a notice-and-comment period.

State Department Proposes Supplemental Questions for Visa Applicants

To evaluate terrorism or national security-related ineligibilities of visa applicants, the Department of State has requested emergency review and public comment on a new rule on the collection of additional information from some visa applicants.

Opposition to Travel Ban EO Includes Tech Firms and Others

After oral arguments on February 9th, the Ninth Circuit denied the government’s request to reinstate the travel ban EO. State of Washington v. Trump.

New USCIS Rule Amending Several Employment-Based and Nonimmigrant Visa Programs Will Take Effect on January 17, 2017

Beginning on January 17, 2017, the U.S. Department of Homeland Security (DHS) will implement a new rule that amends certain regulations relating to employment-based immigrant and nonimmigrant visa programs. The rule's goal is to ease U.S. employers’ ability to hire and retain high-skilled personnel who have been granted employment-based immigrant visas and are waiting to become lawful permanent residents. The rule effectively improves the job mobility process for those workers by allowing them to accept promotions, change employers, change positions with current employers, and pursue other employment opportunities.

USCIS Will Begin Accepting Cap-Subject H-1B Petitions for FY2018 in April 2017

U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B petitions subject to the annual quota for fiscal year 2018 (FY2018) starting in April of 2017 (April 1, 2017 falls on a Saturday, so USCIS will accept cap-subject petitions for the year starting on the following business day, Monday, April 3, 2017). Employers may want to begin identifying current and future employees who may require new H-1B visas to work in the United States. Individuals currently holding F-1 student or J-1 trainee visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States commonly require a cap-subject H-1B petition to be filed on their behalf.

New Regulations Commencing May 10, 2016

Starting May 10, 2016, a new regulation published last month by the U.S. Department of Homeland Security (DHS) takes effect which increases the work authorization extension period from 17 to 24 months for F-1 students holding U.S. degrees in a designated Science, Technology, Engineering or Math (STEM) field.

Bipartisan I-Squared Act Introduced to Reform Business Immigration System

On January 13, 2015, Senators Hatch (R-Utah), Klobuchar (D-Minn.), Rubio (R-Fla.), Coons (D-Del.), Flake (R-Ariz.), and Blumenthal (D-Conn.) introduced the Immigration Innovation (“I-Squared”) Act of 2015, a major immigration reform bill addressing the high-skilled and science, technology, engineering, and math (STEM) immigration programs. Similar to the I-Squared Act of 2013 (S.169) and the high-skilled provisions of the comprehensive immigration reform bill passed by the Senate in 2013 (S.744), the bill raises the allocations for H-1B skilled worker visas and employment-based green cards while forging a middle ground between the more restrictive skilled worker provisions in the 2013 Senate bill and the much higher caps in the 2013 I-Squared Act.
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