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    Published on 11-23-2016 11:10 AM

    Winter 2016 U.S. Immigration Compliance Travel Advisory

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    This travel advisory summarizes the main issues and requirements for foreign nationals who plan to travel outside the U.S. to make ensure reentry is as seamless as possible.

    If unclear, or if your specific situation needs attention, please check with your Wolfsdorf Rosenthal LLP professional prior to departure. Simply put, in order to reenter the U.S. you will need a valid immigrant visa (green card) or a valid nonimmigrant visa, or other travel document such as an advance parole travel permit, in order to be able to re-enter the U.S.

    Basic Documents Required Re-Entry to the U.S.:

    • Passport valid for at least six months beyond the date of intended departure from the U.S.
    • Valid U.S. Visa (see below, if applying for a new visa while abroad)
    • Original Form I-797, Notice of Approval (for nonimmigrant petition based cases) and a full copy of the petition
    • Valid Advance Parole for pending adjustment of status applicants (this must be approved prior to departure, unless you have a valid H-1B/H-4 or L-1/L-2 visa)
    • Valid Lawful Permanent Resident Card (“Greencard”) for U.S. permanent residents.

    U.S. Customs and Border Protection (CBP) has automated Form I-94 at air and sea ports of entry. CBP no longer provides a paper form (unless traveling ...

    Published on 11-23-2016 11:02 AM
    Published on 11-22-2016 01:02 PM

    Analysis Of Key Provisions Of The High Skilled Worker Final Rule

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    The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. While the final rule does not make too many modifications from the proposed rule, I will highlight some of the provisions that can potentially alleviate the problems caused by the long waits. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s excellent summary, but will analyze some of the most relevant provisions that affect backlogged immigrants.

    The centerpiece of the rule is to provide a basis to apply for an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

    It appears from the discussion in the preamble that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically ...

    Published on 11-21-2016 03:20 PM

    Will the Trump Administration's "Deportation Force" Use Workplace Raids? A Possible Glimpse into Our Immigration Future

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    Donald Trump has promised a "deportation force" tasked with removing the 11 million undocumented immigrants from the United States.  I have been thinking about whether, as part of increased interior immigration enforcement, the Trump administration might increase the use of workplace raids.  The Obama administration has not used raids as much as the Bush administration did.  The controversy surrounding the raid of a meat processing plant in Postville Iowa, in May 2008 in all likelihood convinced the Obama administration of the community concerns with such operations.  The Postville raid at the Agriprocessors Inc. plant in Postville, Iowa was the largest single raid of a workplace in U.S. history and resulted in nearly 400 arrests of immigrant workers who were charged criminally with identity theft, document fraud, use of stolen social security numbers, and related offenses. After quick trials, the majority served a five-month prison sentence before being deported.

    450px-Agriprocessors_plant_3

    Published on 11-18-2016 01:13 PM

    The Answer To Your I-140 RFE Is NOT In The RFE

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    Visa petitions across the board are receiving more RFEs with every year. This is particularly the case for education-based RFEs that require the form I-140. Form I-140 visas include EB1, EB2, and EB3, all of which are for foreign nationals seeking a Green Card to stay in the United States to work on a permanent basis. Form I-140 visa petitions are being met with more RFEs because there are more petitions flooding in every year than there are available to approve annually, ...

    Published on 11-17-2016 03:46 PM

    Refugee, Asylum, and Related Legislation in the US Congress: 2013–2016

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    [Note: This is an excerpt from the paper: Refugee, Asylum, and Related Legislation in the US Congress: 2013–2016 published in the Center for Migration Studies’ (CMS’s) Journal on Migration and Human Security. Read the entire article here.]

    Executive Summary

    Members of Congress have introduced numerous pieces of legislation in recent years related to refugees, asylum seekers, and other populations of migrants seeking ...

    Published on 11-17-2016 09:30 AM
    Published on 11-16-2016 05:42 PM

    Asylum Granted To Man In El Salvador Due To His "Anti-Gang" Political Opinion

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    “Social activism” against gangs is the expression of a political opinion, ruled a Boston MA Immigration Judge.

    IJ Leonard I. Shapiro granted asylum to an activist from El Salvador, in an 11-page decision dated September 9, 2015. A redacted version is available at Louise Trauma Center: www.louisetrauma.weebly.com, on the “Gang-Based Asylum” page.

    Facts

    Respondent was active in the FMLN, “a leftist political party.” Opinion at 3. He campaigned against the ARENA party, whose policies respondent believed “were exacerbating the gang problem in El Salvador.” Id. at 5. He founded a community organization, ADESCO, to fight against some policies of the ARENA party. He was active in his church.

    Respondent organized a campaign to make reports to the police whenever gang members entered his community. He spearheaded a new security plan, to hire private guards. He “became widely acknowledged to be the leader of anti-gang efforts within his community.” Id. at 5.

    The Immigration Judge quoted with approval from a study in 2005, which concluded that gangs in El Salvador have developed “ambitious political and economic agendas.” Id. at 5, note 1, [emphasis added], citing Max G. Manwaring, Street Gangs: the New Urban Insurgency

    [available at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=597]

    “The gangs exercise their own justice, demanding certain behavior from all,

    particularly those residing in the areas in which they operate and those who affect their political and economic interests. ...

    Published on 11-16-2016 10:56 AM

    Kris Kobach, Rudy Guiliani to have immigration roles in the Trump administration?

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    KrisKobach

    As is well-known, immigration policy will be changing with the change in presidential administrations.  The degree of change is likely to be jarring.  Consider the new cast of characters.

    Kansas Secretary of State Kris Kobach has advised Donald Trump on immigration and now reportedly is on Trump's immigration transition team. The team will help transition President Barack Obama's immigration policies to President-elect Donald Trump's policies.  "I'm a member of the immigration policy transition team and there's going to be a lot to do there in part because Mr. Trump and Mr. Obama are diametric opposites when it comes to immigration policy so there will be a lot of changes," Kobach said.  Kobach has supported Trump from the beginning. When asked, he said a border wall between the United States and Mexico is coming.  "There's no question the wall is going to get built. The only question is how quickly will it get done and who pays for it?" Kobach said.

    Rudy_Giuliani_by_Gage_Skidmore

    Rudy Guiliani has been rumored to be the possible Attorney ...

    Published on 11-16-2016 10:52 AM

    Breaking News - Revised Form I-9 Now Available

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    On November 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification. Employers may continue using Form I-9 with a revision date of March 3, 2013 through January 21, 2017. Effective January 22, 2017, employers must use the new form.

    The new form may now be considered a “smart” I-9 because most fields have an icon that hovers over the field and provides further instruction, helping to avoid unintended errors. However, this feature is only enabled if the employer uses the PDF version of the I-9 form online.

    A noteworthy feature of the “smart” I-9 precludes the completion ...

    Published on 11-16-2016 10:44 AM

    Signs That EB-5 Will Prosper Under A Trump Presidency

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    Now that the dust has settled on what has been a tumultuous election cycle, the next question that everyone seems to be asking is: what will a Trump Presidency entail? An unconventional president-elect to say the least, Trump steamrolled past establishment skepticism to win the election – capturing the support of millions of Americans through a platform of tough action on immigration and a promise to bring back jobs to the economically neglected corners of the United States. With strong anti-immigration rhetoric having dominated the campaign, immigration attorneys are now left with the question of what a Trump overhaul of the current immigration system means for their clients. As EB-5 practitioners, we too have been bombarded with questions from both prospective EB-5 investors and those that have already invested.

    As the Trump campaign has not yet commented specifically on the EB-5 program, the short answer is that there is no answer. ...

    Published on 11-15-2016 01:41 PM

    Seyfarth's Analysis of the Short-Term Impact of the Election on Business and Employment-based Immigration

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    Seyfarth Synopsis: The Trump Administration will have the power to make significant changes to the business immigration landscape.  Here is what we can expect.

    Immigration issues have become more important than ever for employers. Click here to join our exclusive mailing list to receive the latest immigration law and policy updates.

    The unforeseen victory of Donald Trump and the continued GOP control of both houses have caught many by surprise. Since control of illegal immigration served as a foundation stone of the  incoming president’s campaign, many now wonder or worry about the future of U.S. employment-based immigration policy and procedure in a Trump Administration.  

    While no one has a crystal ball to address these concerns, the lawyers in Seyfarth Shaw’s Business Immigration Group offer the following analysis based on their decades of practicing immigration law under several past presidents.

    What Immigration Programs, Policies and Procedures Will Not Change Easily or Quickly?

    Here is what Seyfarth’s immigration attorneys foresee:

    No immediate change to the immigration laws.  The Trump Administration and members of the Republican-controlled Congress who take office in January must operate within our constitutional system and the rule of law.  For our purposes, this means new laws cannot be quickly enacted.  Hence, the Immigration and Nationality Act (INA)- which established the alphabet soup of visas for immigrants and nonimmigrants, will remain in place for the time being. Unless and until Congress amends the INA and President Trump signs any amendment, nothing in this statute will change. 

    Moreover, Senate Democrats will likely filibuster proposed immigration changes that they believe are ill-considered, harmful or unhelpful in advancing our country’s tradition as a nation of immigrants. There is even the remote possibility that Senate Democrats may collaborate with the party in power to reflect ...


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