Late yesterday, the U.S. Chamber of Commerce along with a host of other businesses, trade associations, universities and research labs filed a Federal lawsuit against both the DOL and the DHS challenging the recent regulations which both published last week, significantly impacting the employment of high-skilled immigrants. The lawsuit alleges procedural defects in the promulgation of the regulations and also substantive issues in the content. A summary of the complaint can be found here.
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.
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.
If you like statistics and are missing baseball box scores, check out the report recently released by the DHS on non-immigrant admissions in FY 2015. As you read this, keep in mind that admission does not equal people as the same person may make multiple admissions in a year if they travel internationally.
The Office of the Chief Administrative Hearing Officer (OCAHO), recently found a temporary employment company, Golden Employment Group Inc., located in Minnesota, liable for over 465 I-9 violations (United States of America v. Golden Employment Group Inc., OCAHO Case Number 15A00037). Specifically, the Judge found that they failed to timely present 125 Form I-9s and failed to prepare 236 Form I-9s. They also racked up fines for not making sure the employee completed Section 1 of the Form I-9 and other infractions. 40 claims were dismissed because Immigration and Customs Enforcement failed to overcome its burden of proof. This case serves as a warning that use of E-Verify does not protect an employer from failing to properly prepare, retain, re-verify and present when asked a Form I-9 for employees hired after November 6, 1986.
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.
Herguan University’s former CEO, Jerry Wang, was sentenced to one year in prison and order to forfeit $700,000 for his part in a student visa scheme.
Mr. Wang admitted to submitting false document to the Department of Homeland Security’s (DHS) Student and Exchange Visitor Program (SEVIS) program. He also admitted to participating in a schedule to commit visa fraud involving 100s of Forms I-20, Certificate of Eligibility for Non-Immigrant Students, as well as allowing unauthorized access to the DHS computer database.
The fraud was uncovered by the Document and Benefit Fraud Task Force — an agency created by DHS, and the U.S. Departments of Justice, Labor and State to combat document and immigration benefits fraud — in an investigation spearheaded by ICE, the agency said.
With this case, ICE reaffirmed its intent to “aggressively target those who commit student visa fraud out of greed and self-interest. Their actions undermine the integrity of this country’s immigration laws and it will not be tolerated.”
Employer Solutions Staffing Group II (ESSG), a large MN company with six to eight thousand temporary employees on its payroll, was recently fined $225 for “creating false attestations” on Section 2 of the I-9. Specifically, ESSG reviewed copies of the employee’s I-9 documents “without ever seeing the individuals whose documents they examined.” This is a clear failure to comply with the I-9 regulations as it is Section 2 that is the core of the employment verification process. This case is important for many reasons. First, it is further evidence that employers must be diligent when completing their I-9s. This is especially true for staffing companies who may employ remote hires. Employers – You must always review the original and unexpired identify and work authorization documents of each and employee and this must be done in the presence of the employee. Otherwise, how can you properly attest that you have done so? Second – E-Verify will not excuse such a failure to comply. In fact, it is a requirement of the E-verify system that you properly complete an I-9 before you run an E-Verify query. Thus, the affirmative defense provided by the regulations would be unavailable to an employer who creates a false attestation on an I-9. Finally, notwithstanding that no unauthorized workers are hired, this type of failure to comply with I-9 requirements is an exceedingly serious offense that could lead to a maximum penalty of $1100 per violation as well as other sanctions. In fact, in this case, ESSG was fined $935 per violation.
Update: On August 11, 2016, the 5t Circuit Court of Appeals vacated the $226,000 fine against Employer Solutions Staffing Group II (ESSG) having ruled that is was not a violation for them to have one of its agents inspect original employee documents in Texas and have another person in Minnesota complete the employer attestation in Section 2 after reviewing the photocopies of the documents sent by the Texas agent. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016) and my new blog above.
The Department of Homeland Security (“DHS”) expects to launch the “Known Employer” pilot program by late 2015 which is designed to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers. The pilot program is designed to make adjudications more effectively and less costly and reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.
U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) would jointly implement the pilot program. A goal would be to expedite or otherwise facilitate legitimate cross-border business travel along the northern border ports of entry. Doing so is a binational commitment under the North American Free Trade Agreement as well as the U.S.-Canada Beyond the Border initiative.
We will provide additional information about the “Known Employer” program in the coming months.