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USCIS Adjudicators Given the Go-Ahead to Deny Cases Without First Issuing a Request for Evidence

Effective September 11, 2018, adjudicators for U.S. Citizenship and Immigration Services (USCIS) will have the authority to deny any application or petition that is incomplete or lacks sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The new guidelines are a reversal of the current policy, which requires that an RFE be issued unless there is “no possibility” that the deficiency can be remedied. Depending on the vigor with which it is enforced, this policy shift may eliminate the opportunity for petitioners and applicants to correct simple errors, like missing documents, or to beef-up documentation in support of an applicant’s eligibility, before the case is denied.

SCOTUS Upholds Travel Restrictions

On June 26, 2018, the Supreme Court of the United States upheld the travel ban implemented by the Trump Administration in September 2017. This travel ban was the third permutation after two other travel bans failed to withstand lower court scrutiny. Unsurprisingly, the travel ban was upheld along the party lines of the Supreme Court Justices.

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.

Supreme Court Upholds Trump’s Third Travel Ban

In one of its most anticipated cases in decades, a deeply divided U.S. Supreme Court ruled 5-4 in favor of upholding President Trump’s latest “travel ban” today, delivering a key win to the Trump administration and one of its strict immigration enforcement stances. In its decision, the Court concluded that the president’s executive order—which largely targeted individuals from predominately Muslim countries—did not violate the Constitution’s Establishment Clause by favoring one religion over another. Despite the rhetoric from the president and those in his administration that some claimed to prove religious bias, the Court ruled that the order was a lawful exercise of the authority granted to the president by Congress (Trump v. Hawaii).

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.”

Latest ICE Aggressive Enforcement Targets Northern Ohio Meat Processing Plants

On June 19, 2018, unannounced ICE raids resulted in the arrest of more than 140 workers at four meat processing plants in Ohio. ICE calls this its largest workplace raid in recent history.

Administration Considering New Rule on Lawfully Present Immigrants Who Use Public Benefits?

The Trump Administration reportedly is considering a new rule that would make it easier for the government to deny visas to individuals on “public charge” grounds. This has drawn the criticism of many New York legislators.

More H-1B Third-Party Placement Changes: DOL Proposes Significant Changes to H-1B LCA Form

U.S. employers that hire and place foreign workers with H-1B visas at third-party worksites may be faced with additional burdens in the H-1B petition process. The U.S. Department of Labor (DOL) has released proposed changes to ETA Form-9035, Labor Condition Application for Nonimmigrant Workers (LCA) that would require more details about the end-user clients and potential worksites specific to the placement of H-1B workers.

Business Immigration Zone (BIZ): H-2B Visa Program Updates

The Secretary of Homeland Security and the Department of Labor have increased the H-2B cap for the 2018 fiscal year by up to 15,000 additional visas through a jointly issued temporary rule. This rule is titled “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program” and is effective as of May 31, 2018. An American employer wanting to take advantage of these additional visas must attest its business is likely to suffer irreparable harm if it cannot employ all the H-2B workers it requested on its Form 1-129 petition. For the purposes of this rule, irreparable harm is defined as permanent and severe financial loss.

H-1B Visa Rules Tightening for Outsourcing and Staffing Companies

The Trump Administration has been targeting outsourcing and staffing firms that use H-1B non-immigrant visas, the most popular employment-based visa for foreign professional workers. The Administration has issued guidance after guidance since March 2017 that add requirements for such firms.