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  • Article: New Travel Ban, Succeed Act, Detainer Problems For Administration, Dos 90 Day Rule For Misrepresentation, H-1b Premium Processing Resumption, And Dol On Perm And H-1b Lca’s By Alan Lee, Esq.

    by


    1. The new travel ban announced on Sunday, 9/24/17, by the Trump administration drops Sudan from the earlier list of 6 (Iran, Libya, Somalia, Syria, Sudan, Yemen) and adds Chad and North Korea. Venezuela is on the list only for certain governmental officials and family members on B-1/B-2 visas, so there are many questions as to why it was even part of the travel ban except to promote the perception of less bias against Muslim countries. The bar affects countries differently banning all immigrants and non-immigrants from North Korea and Syria; immigrants and B-1/B-2 visitors from Chad, Libya and Yemen; immigrants and all non-immigrants except F, M, and J visa holders from Iran; immigrants and enhanced screening of all non-immigrants from Somalia. The new ban goes into effect on October 18. It does not apply to LPR’s, asylees and refugees and Convention against Torture (CAT) grantees; people admitted to or paroled into the U. S. or with documents other than a visa like a transportation letter, boarding foil, or advance parole document on or after October 18; dual nationals traveling on the passport of the non-designated country; and persons with diplomatic visas. Waivers can be granted where denying entry would cause the foreign national undue hardship, entry would not pose a threat to the national security or public safety of the U. S., and entry would be in the national interest.

    2. The latest bill to give DACA members relief (4 already proposed – The Dream Act, The Recognizing America’s Children Act, The Bridge Act and The Enlistment Act), SUCCEED (Solution for Undocumented Children through Careers, Employment, Education and Defending Our Nation Act), was brought out by conservative Republicans on September 25, 2017. Introduced by Republican Senators Thom Tillis (R-NC), James Lankford (R-OK) and Orrin Hatch (R-UT), SUCCEED does the following for and to the Dreamers:

    · Allows a path to citizenship after 15 years – 10 as conditional residents split into two 5 year grants, and 5 more to become eligible for citizenship.

    · Does not allow conditional residents to petition for family members.

    · The standards to meet to apply are basically the same as under DACA but tougher in many respects – an applicant must be physically present since 6/15/12; younger than 16 years of age on initial entry (no longer says must be here continuously since 6/15/07); younger than 31 and having no lawful status on 6/15/12; cannot have felonies or significant misdemeanors including being sentenced to 90 days or more – but new features are that it splits applicants into 2 groups – if 18 or older, SUCCEED requires an applicant to have a high school diploma, GED certificate, high school equivalency diploma, or admission to an institution of higher education in the U. S., or has served, is serving, or has enlisted in the U. S. Armed Forces (DACA applicants can just be currently in school); and if under 18 is attending, or has enrolled in a primary or secondary school, or is attending or has enrolled in a post secondary school; been a person a good moral character since the date of initial entry (not part of DACA); and has paid or agreed to pay any applicable federal tax liability through a payment installment plan approved by the IRS (not part of DACA).

    · Fraud or misrepresentation is not forgivable (such is not considered a problem under DACA).

    · Forces each applicant for conditional permanent residence who is at least 18 years of age to sign an acknowledgment that he or she was notified and understands that he or she will be ineligible for any immigration relief or benefit other than those dealing with persecution – withholding of removal and a claim under the Convention against Torture (CAT) if he or she violates a term for conditional permanent resident status.

    · A grant of advance parole or conditional residence does not allow an individual to adjust status under §245(a).

    · In a non-DACA related provision, SUCCEED would make it almost impossible for persons coming here under a visa waiver program (WT) and nonimmigrant visa applicants to obtain benefits after violating their statuses as they would have to sign a waiver of rights of eligibility for ten-year cancellation of removal, adjustment of status, change of status, registry, any relief not in effect at the time that they sign the waiver of rights, and from contesting removal if the persons violate any term or condition of the status or visa. That means that the signer of the waiver would generally not even be allowed an appearance before the immigration court, but could be summarily deported by ICE.

    3. Detainer problems for the Trump administration are cropping up as it attempts to have local law enforcement detain aliens through immigration holds. In Sanchez- Ochoa v. Campbell, 1-17: CV-03124-SMJ (ED Wash. 7/31/17), the federal district court in Eastern Washington issued a temporary restraining order against the government ruling that the Yakima County jail authorities had to immediately remove an immigration hold on an individual which prevented him from posting bail, thus violating his Fourth amendment right to be free from unreasonable seizures. The argument was that the hold which was placed on local inmates by federal ICE officers was enforced by a county jail without judicial review, a violation of civil rights under the Fourth amendment. The court found that the county had no authority to place an immigration hold against persons based on a civil immigration “warrant” – an administrative form issued by federal immigration officers. In the oral ruling after a lengthy hearing, Judge Salvador Mendoza Jr. emphasized that the Fourth amendment requires that an arrest warrant be approved by a neutral and detached judge – not by an employee of the executive branch. Other judges have said that holding people in criminal custody for a civil infraction violates the Fourth amendment protection against unreasonable seizures, and the administration’s demands violate the Tenth Amendment by forcing states to do the federal government’s bidding. More than a dozen people who were held on detainers brought lawsuits against local governments, and the majority of those who sued have been successful, resulting in settlement payments as high as $145,000.

    4. The State Department’s recent doing away with the 30/60 day rule and in effect imposing a 90 day rule to judge whether people are misrepresenting their intent in coming to the U. S. will especially make it more difficult for those with visa waivers (WT) coming to the U. S. for 90 days maximum to adjust status through a marriage contracted after entry into the U. S since they only have 90 days to stay (no extension allowed) and U.S.C.I.S. in the past has given large problems to some who overstayed and later attempted to adjust status. But it should be remembered that the 30/60 day rule as well as the new 90 day rule are ones created by the State Department and not U.S.C.I.S., and that U.S.C.I.S. is the arbiter of the law in the field of immigration between the two agencies.

    5. U.S.C.I.S. plans to make premium processing available for all classes of H-1B on October 3, 2017, according to information given to the American Immigration Lawyers Association (AILA) by the agency. As of September 18, 2017, U.S.C.I.S. resumed premium processing for all H-1B cap cases for FY 2018. It had already resumed premium processing for H-1B petitions for physicians under the Conrad 30 waiver program, interested government agency waivers, and cap-exempt H-1B’s.

    6. American Immigration Lawyers Association (AILA)/Department of Labor (DOL) Wage and Hour Division (WHD) meeting 6/16/17:

    · WHD said that the 30 and 60 day window for employers to put H-1B workers on the payroll (30 if the H-1B holder is entering from overseas and 60 if in the U. S. pursuant to a change of status) is only applicable where the H-1B worker has not made himself or herself available to begin employment.

    · In an H-1B transfer where the alien is immediately available upon the filing, WHD looks to the specific facts of the case to determine whether or not the H-1B worker was available for employment at any point before the H-1B petition was approved. WHD said that it would give further consideration to AILA’s position that some employers are cautious and want to have the H-1B approved prior to the alien commencing employment, and it will determine whether this by itself is sufficient to demonstrate that the wage obligation does not commence on the basis of eligibility for H-1B portability alone.

    · AILA asked WHD to confirm that a bona fide termination has occurred even when the employer did not provide the H-1B workers with the reasonable cost of return transportation in the circumstances where the H-1B worker voluntarily resigned; applied for adjustment of status; had an H-1B change of employer petition filed by another employer; or the employer offered the reasonable return transportation costs to the H-1B worker but the worker did not accept them. WHD declined to confirm only saying that this will be a fact specific inquiry.

    · An LCA must cover “place of employment” which is not limited to the exact worksite stated on the LCA but includes all locations within normal commuting distance and the question to WHD was whether it had a fixed standard to determine normal commuting distance, to which WHD said that there is no fixed internal standard for determining normal commuting distance; that the specific facts of the case are important and WHD would look to whether the commuting distance is normal for the specific location of employment; and that helpful information would include documentation of whether other workers regularly make that kind of commute, whether the commute is reasonable for the industry and type of position, and whether there are roads, trains, or other infrastructure that would make the commute reasonable despite a longer distance.

    · On AILA pointing out the Labor Department’s prohibition against H-1B workers paying for any expenses including attorneys fees and premium processing fee, while U.S.C.I.S. guidance says that the H-1B workers are permitted to pay the premium processing fee, WHD said that it believed the premium processing fee, like any other H-1B filing fees, is normally an employer business expense despite the guidance from U.S.C.I.S. WHD said that it would consider the issue where the employee would want premium processing for personal reasons unrelated to the employer, such as to accommodate personal travel or purely for the employee’s peace of mind.

    7. DOL confirmed that as of July 11, 2017, the PERM upload feature audit response is now functional and AILA’s DOL liaison committee strongly recommends that attorneys use the upload feature rather than email, as it improves efficiencies at DOL and provides immediate confirmation of an audit submission.

    8. 2016 Annual Report of the Office of Foreign Labor Certifications:

    · Top 5 states with labor certifications approved were California 27,547, Texas 15,593, New Jersey 9166, New York 8453, and Washington 6473.

    · Top 5 job titles with the most labor certifications granted were software developers, applications 41,147, computer systems analysts 10,642, software developers, systems software 7868, electronics engineers, except computer 3563, computer and information systems managers 2935.

    · Top 5 countries for labor certification grants were India 65,095, China 9932, South Korea 8349, Canada 3999, and Mexico 2149.

    · Top 5 employers with the highest number of PERM certifications were Cognizant Technology Solutions U. S. Corporation 4243, Microsoft Corporation 3326, Intel Corporation 1944, Google Inc. 1739, and Amazon Corporate LLC 1603.

    · The H-1B program saw 1,198,782 LCA grants overall and the top 5 employers with approvals were Deloitte Consulting LLP 163,625, Cognizant Technology Solutions U. S. Corporation 97,472, Pricewaterhouse Coopers LLP 54,093, CapGemini America, Inc. 47,224, and WIPRO Limited 32,243.

    This article © 2017 Alan Lee, Esq.


    About The Author

    Alan Lee, Esq. Alan Lee, Esq. The author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2017), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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