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USCIS

USCIS Has a New Mission Statement

As if they needed to make it any more clear that USCIS is taking a more combative stance against any benefits sought, USCIS has updated its mission statement. The old mission statement was:

“USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

The new Mission statement reads:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”

They don’t consider you a customer even though providing Services is in their title! They don’t believe the United States is a country of immigrants anymore, one of our founding principles. I would be prepared for the culture of NO to intensify and that every little thing will be a battle with them.

USCIS Releases Revised I-9

The USCIS recently issued a revised version of the Form I-9, Employment Eligibility Verification Form. This form must be used beginning on September 18, 2017. All existing storage and retention rules for Form I-9 must continue to be followed. As you know, employers use the Form I-9 to verify the identity and employment authorization of newly hired employees. In this latest revision, the USCIS modified the List of Acceptable Documents to include adding to List C the Consular Report of Birth Abroad (Form FS-240), combined all certifications of report of birth issued by the U.S. Department of State (Forms, FS-545, DS-1350 and FS-240) into List C, and renumbered all List C documents except the Social Security Card. Additionally, the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to its new name of Immigrant and Employee Rights Section and removed “the end of” from the phrase “the first day or employment.”

Please contact your HLG attorney if you have any questions about the new form, how to do an internal audit, E-Verify or with any other immigration or employment verification questions.

The Future? of the EB-5 Program

Numerous EB-5 legislation has been introduced with the intention of curbing some of the EB-5 program’s issues and problems. S.1501, the American Job Creation and Investment Promotion Reform Act of 2015, introduced by Sen. Grassley and Sen. Leahy, included a laundry list of EB-5 “integrity” measures. Sen. Charles Grassley and Sen. Dianne Feinstein, have proposed legislation to eliminate the EB-5 program.

In order to attempt to under the EB-5 landscape as it stands in the current political climate, we must understand the players:
Stephen Miller, Senior Advisor to the President for Policy, is a Former Senator Jeff Sessions alum who is well known for his opposition to legal immigration.

Gene Hamilton, Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor, is also a Sessions alum.

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS), most recently assisted Sen. Grassley to write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits as well as S.1501.

Kathy Nueble Kovarik, Chief of the USCIS Office of Policy and Strategy, is also a Grassley alum.

Julie Kirchner is the USCIS Ombudsman. Ms. Kirchner served as Executive Director of FAIR, an organization actively opposed to the EB-5 program.

The USCIS Ombudsman is responsible for assisting “individuals and employers in resolving problems with” USCIS and due to limits recently placed by way of EB-5 protocols, is the only way for EB-5 stakeholders to escalate issues for EB-5 cases.
Ms. Kirchner, in her Ombudsman’s 2017 Report to Congress, acknowledged that lack of anti-fraud and national security protections, and failure to agree on a permanent or multi-year reauthorization of the Regional Center program, have resulted in adverse consequences. In addition, legislative efforts have stalled over the methodology for determining TEAs, the two-tiered investment framework and effective dates for new provisions. We are also seeing increased USCIS adjudications times and longer waits for Chinese nationals due to visa backlogs.

Most recently, on November 30, 2016, the Department of Homeland Security (DHS) announced the expansion of the USCIS Policy Manual which introduced a new section, Volume 6: Part G, Investors. Part G consolidates and replaces policy guidance found in the Adjudicator’s Field Manual (AFM) Chapters 22.4, Employment Creation Entrepreneur Cases, and 25.2, Entrepreneurs (Form I-829), as well as related AFM appendices and policy memoranda.

While comprehensive guidance is good, the new section of the USCIS Policy Manual is often unclear; provides little in the way of examples and definitions; ignores common and acceptable practices, definitions, and methodologies; and misstates or misinterprets the regulations.

Some of chapters with problems of note for the direct investor include the following:

Chapter 2.A.5 – Targeted Employment Area
• Confirms that a TEA will cease to qualify as a TEA over time if unemployment decreases or population increases. This text is problematic because of the uncertainty it introduces into the planning of EB-5 projects as the USCIS will continue to evaluate and re-evaluate TEA designation.
• Does not mention current USCIS practice granting state TEA designations a validity period of 12 months.
• Not clear as to when an area must qualify as a TEA.
Chapter 2.D.3 – Full-Time Positions for Qualifying Employees
• Refers to the job creation requirement to be “full-time and permanent” when both the INA and the CFR refer to the term “full-time.”
Chapter 4.C – Form I-526/Material Change
• Provides that a “change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision” without providing examples to clarify what would be considered a “material change.”
Chapter 5.C – Removal of Conditions/Material Change/At Risk
• Misstates the plain language of the regulation by requiring evidence that the “at risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States.” The regulations only require investment be sustained “over the two years of conditional residence.”
• Excludes language confirming that an investor maintains his or her conditional permanent residence status even after the denial of the I-829 until a final administrative appeal is complete.

It is unknown if Ms. Kirchner and Mr. Cissna will be able to together resolve the issues and problem plaguing the EB-5 program. For the time being, we must utilize any and all means available to seek results for worthy cases. We should and must continue to submit well-document cases, participate in stakeholder meetings, advocate strenuously, and litigate if appropriate.

Should you have any questions about the future of the EB-5 program, please contact your HLG attorney.

EMPLOYERS: You Can Use the Current Form I-9 until 01/21/2017

USCIS will publish a new Form I-9, Employment Eligibility Verification by November 22, 2016. As such, employers can continue to use the current Form I-9, dated 03/08/2013 until 01/21/2017. On or before 01/21/17, employers must use the new form.

DOL Finds that in Certain Circumstances You Can Deduct H-1B Visa Fees from Employee Paycheck

The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.

In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.

Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”

New Form I-9 Approved – Current Form I-9 Valid until 1/21/2017

On August 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. The new Form I-9 must be published by November 22, 2016. Employer can continue to use the current form until January 21, 2017. After that date, the new Form I-9 must be used. No other editions will be valid.

USCIS ISSUES POLICY MEMORANDUM REGARDING ADJUDICATIONS FOR CERTAIN L-1A VISA PETITIONS

The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum, adopting an Administrative Appeals Office (AAO) decision, to provide guidance that applies to and binds all USCIS employees regarding the adjudication of L-1A visa petitions. Specifically, the memorandum clarifies that when determining whether the beneficiary of an L-1A visa petition will primarily manage an essential function, USICS officers must weight all relevant factors including evidence of the beneficiary’s role within the larger qualifying international organization. The guidance clarifies a 2013 decision of the appeals office, Matter of Z-A- Inc., which overturned a Director’s decision denying an extension to stay for an L-1A beneficiary who was serving as a Vice President and Chief Operating Officer of a large Japanese manufacturer. In the overturned decision, the Director had determined that the officer wasn’t employed in a managerial capacity because U.S. operations did not have an “organizational structure” large enough to ensure the executive would not be performing the day to day sales duties. The decision failed to take into account the eight foreign staff located in Japan who worked under the manager, who performed the day to day sales duties necessary. The Japanese parent company is a publicly trade firm with over $900 million in sales.
In overturning the decision, the AAO found that the beneficiary’s responsibilities did primarily consist of managerial duties and that the beneficiary served as a member of the senior management team. The AAO found that the Director erred in focusing on the number of employees without looking at preponderance of the evidence presented which included evidence that the foreign staff performed many of the day to day sales duties required and thus, although the beneficiary may be required to perform some administrative or operational tasks, he primarily manages an essential function of the Petitioner. The case is Matter of Z-A- Inc. –

DHS Ignores Federal Court

I normally do not post about subjects such as detention, removal, deportation, etc because the readers of this blog are generally professional workers on H or L visas and those subjects though very important, are not relevant. However, I read with interest an article posted on law360.com which told of various advocacy groups who were complaining that a Federal Judge had issued a clear directive and the DHS had simply ignored the order and proceeded to act without a change in practice. Unfortunately, that is the reality that US corporations and legal foreign workers face every day from the USCIS. Laws are clearly written, regulations are promulgated, and HQ directives are issued and the examiners who control the decisions, turn a blind eye and simply ignore the law, knowing full well that there is no practical remedy for business and workers to pursue. The L-1 business community recently was excited when a new policy memorandum was released but, to date, the application of that policy has been ignored. The same old decisions and reasoning is being applied. We have also seen it with respect to amended petitions, extensions, ability to pay, Neufeld memo, and we can go on and on. When an entire agency knows it will not be held accountable, it simply does what it wants.

Employer Pays $215K to Settle Citizenship Discrimination Case

Louisiana Crane & Construction LLC, which provides oilfield services, has agreed to pay $165,000 in civil penalties and create a $50,000 fund to pay workers who lost wages because of the company’s policy requiring workers who were not U.S. citizens to provide additional documents during the Form I-9 employment verification process. The company will also be required to conduct anti-discrimination training and be subject to monitoring for two year.
The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from requiring additional documents from workers during the employment eligibility verification process based on their citizenship status
This case is serves as evidence that the Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is continuing to ramp up its activities thanks in part to a 2010 agreement requiring the U.S. Citizenship and Immigration Services (USCIS) to refer discrimination matters to the OSC, along with any relevant information from the E-Verify system. As such, employers should be very careful to properly follow the employment verification regulations regarding proper completion of a Form I-9 and use of the E-Verify system.

The case is U.S. v. Louisiana Crane Co. LLC, case number 14B00102, before the U.S. Department of Justice’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer.

E-Verify Systems Records Purge

Starting on January 1, 2015, E-verify transaction records more than 10 years old will be deleted by the E-Verify system. E-Verify users will no longer have access to cases created prior to December 31, 2004. This action is required to comply with the National Archives and Records Administration’s (NARA) retention and disposal schedule.

In order to retain the ability to access cases created prior to December 31, 2004, you must download the newly created Historical Records Report prior to December 31, 2014. The reports will contain all of your transaction records for cases more than 10 years old. Please note that the report will only be available until December 31, 2014. Instructions for downloading the Historical Records Report are available online at: http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Instructions_to_Download_NARA_Reports_in_E-Verify.pdf

In order to remain compliant with NARA, the E-Verify system will delete records annually on December 31st. Therefore, we recommend that you record the E-Verify case number on the related Form I-9 and retain the Historical Records Reports with you Forms I-9. If you did not use the E-Verify system before December 31, 2004, there will be no Historical Records Report to download.