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For many U.S. immigrants, achieving lawful permanent residence, commonly known as a “green card,” is a momentous milestone and the final step in their immigration journey.
Some employers assume that these employees are exempt from travel and entry restrictions once they have a valid green card. After all, employers no longer need to file extension petitions or renew visa stamps for these employees. The false perception that green-card holders enjoy unrestricted entry into the U.S. may also have been reinforced by the fact that green-card holders are exempt from many of the recent COVID-19 travel bans.
However, as we near the one-year mark since COVID-19 shuttered borders around the world, employers should revisit the often-forgotten restrictions on green-card holders who remain outside the U.S. for over one year.
Generally, when green-card holders enter the U.S., an immigration officer will determine their intent to reside in the U.S. and confirm the validity of their green card and reentry permit. Green-card holders can document their intent to reside in the U.S. through evidence of close ties in the U.S., such as maintaining a principal U.S. residence, paying taxes, holding a job in the U.S., having bank accounts or owning property in the U.S. Additionally, immigration officers will consider both the length and frequency of trips as factors in deciding if the employee intends to reside in the U.S.
Trips lasting less than a year. Some green-card holders assume that frequent trips abroad for less than six months do not present any red flags. This is not accurate. Immigration officers have the authority and discretion to question a green-card holder’s intent, regardless of the length or frequency of a trip. Additionally, green-card holders will likely experience more scrutiny at the port of entry when the length of the trip is over six months. Although COVID-19 may provide a reasonable explanation for lengthy trips, green-card holders should be prepared for additional questions upon return. All green-card holders must present their unexpired green cards as a valid entry document.
Trips lasting more than one year. Employers and employees should focus on longer absences as the pandemic enters its second year. Green-card holders who leave the U.S. for longer than one year face detrimental consequences: Not only are they presumed to have abandoned their permanent-residence status, the green card becomes invalid for reentry into the U.S. In this scenario, they must apply for and obtain a “returning resident” (SB-1) immigrant visa at the U.S. embassy or consulate, showing that they departed the U.S. with the intent to return and that the extended stay abroad was for reasons beyond their control.
While green-card holders may technically travel directly to the U.S. without applying for a returning-resident visa, this approach is much riskier because the decision to admit the employee is left to the discretion of the immigration officer at the port of entry, both to waive the requirement that the employee show valid documents and to confirm that he or she did not intend to abandon permanent residence status.
Generally, the longer the trip, the more challenging the reentry. If feasible, obtaining a reentry permit before departing the U.S. can help prevent issues. For employees who have been stranded abroad during COVID-19, employers should review entry restrictions for green-card holders and take steps now to avoid unnecessary obstacles for returning employees and to ease their transition back to the U.S.
This article was originally published in the Washington Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
DALLAS, Jan. 26, 2021 — Berry Appleman & Leiden (BAL) LLP, the world’s preeminent corporate immigration law firm, opens the doors to its new office in Santa Clara, Calif., on Jan. 25. The expansion into Silicon Valley is not only part of the firm’s national growth strategy, it also solidifies BAL as the dominant immigration law firm in Northern California and the West Coast.
“We are certainly thrilled about this newest expansion, and looking forward to being closer to our clients,” said BAL Partner Nassim Mahzoon, who will oversee Santa Clara operations. “Additionally, clients and staff will find the new space to be a unique environment for connection, collaboration and problem solving, allowing us to strategize on program tactics and management, and ensure that clients are well-positioned for complex, global business challenges.”
In a rapidly changing global mobility landscape, impacted by COVID-19, geopolitical and cross-border issues, a holistic immigration strategy is a necessity in today’s business and policy environment. By understanding the complexities of global mobility and talent management, and by focusing on the client experience, BAL is able to turn immigration into a business advantage rather than a bureaucratic impasse for its clients.
“We have deep roots and long-standing relationships with Silicon Valley, and we understand the objectives of its established business community,” said BAL Partner Frieda Garcia. “BAL has always shared the tech industry’s organizational values, drive toward innovation and spirit of entrepreneurship, and we are creating tools and solutions today, for tomorrow’s immigration challenges.”
Known for its robust service-delivery model, BAL has revolutionized the industry by leveraging and developing AI, machine learning and robotic process automation (RPA) in groundbreaking ways to create an exceptional client experience. BAL’s market-leading proprietary Cobalt® platform is the platinum standard in case management, security, and user experience, and BAL’s newest multimedia Advisor portal is the industry’s most comprehensive immigration knowledgebase for in-house professionals. The firm is consistently recognized for its tech innovation achievements by some of the most highly coveted awards in both legal and tech industries.
The Santa Clara office, located at 4555 Great America Parkway, is a campus-style space mirroring the culture, aesthetic and amenities familiar to Silicon Valley companies, as well as BAL’s state of the art Center of Excellence in Dallas, Texas. The space inspires creativity and disrupts the traditional practice of law, appealing to our clients, their employees and the next generation of legal talent.
“We continue to empower the tech industry using 21st century tools to make their mobility and talent management programs more successful,” said BAL Partner Carla Tarazi. “We serve our clients with skill, empathy and a mission to make a positive difference in people’s lives.”
About Berry Appleman & Leiden LLP BAL is one of the world’s most recognized corporate immigration law firms and the Best Lawyers® Law Firm of the Year in U.S. Immigration Law (2019), the Most Diverse Law Firm in America (2020), the #1 Law Firm Law Firm for Women by the National Law Journal (2019 and 2020) and the #1 Best Law Firm for Female Attorneys among firms it size by Law360 (2019 and 2020).
BAL’s Cobalt® digital immigration services platform earned a 2020 CIO 100 Award, won the 2020 CODiE Award for Best Legal Tech Product and placed as a 2020 Tech Titans Award finalist. The firm is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful.
Established in 1980, the firm provides immigration expertise, top-notch information security and leading technology. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers, Chambers, The Legal 500, Lawdragon, and Who’s Who Legal. For more information, please visit: https://www.bal.com/.
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
Dallas, Jan. 4, 2021 – Berry Appleman & Leiden (BAL) LLP, the world’s preeminent corporate immigration firm, is pleased to announce the promotions of Matthew Gross and Mark Yelich to the partnership.
“Matt and Mark exemplify the best of BAL, and we are excited to welcome them to the partnership. Both have an unwavering desire and commitment not only to our clients, and the service we provide them, but to the continued success and growth of the firm, and our people,” said Managing Partner Jeremy Fudge. “Adding them to the partnership ranks will make us stronger.”
Matt is based in Dallas at BAL’s Center of Excellence. He focuses on business immigration matters representing a broad spectrum of Fortune 500 companies, major universities, investors and foreign nationals in a range of industries, including healthcare, consumer goods and technology. Matt was recently recognized in this year’s prestigious Legal 500 rankings for his expertise, where clients lauded him as a “trusted advisor.”
“What has always propelled us as the industry leader in our field is our innovative spirit and approach,” Matt said. “BAL is always looking ahead. Yes, we solve the problems our clients are dealing with today, but we are also anticipating challenges our clients may face 5, 10, 20 years from now, and building products, tools and solutions for that world. That’s what sets us apart, and I’m honored to help steer us in that journey.”
Mark practices in the firm’s Tysons, Va., office and represents clients ranging from startups to Fortune 100 companies in the IT, retail, healthcare, medical research, engineering, transportation and pharmaceutical industries. He provides his clients with strategic guidance on immigration programs and policies, and is an industry leader in guiding companies through internal reorganizations, mergers and acquisitions. Mark is a frequent speaker at national and international industry conferences and is an active member of Croatian organizations in the Washington, D.C., area and across the country.
“My parents are both immigrants, so I understand both the technical and emotional components of immigration,” Mark said. “Our firm is not just in the business of moving folks from point A to point B. Those are simply the mechanics of immigration. We bring it all together. Not just with our technology, tools, resources and subject-matter expertise, but with our empathy, transparency and a fundamental understanding that our clients’ overall experience with our services should be second to none. It’s a banner I definitely look forward to carrying as a partner.”
Nearly six months after the U.S. Supreme Court ruled that the Trump administration’s termination of the Deferred Action for Childhood Arrivals (DACA) program was unlawful, the government refused to comply with the ruling, sending Dreamers back to court to enforce it.
On Dec. 4, a federal court in New York ordered the government to fully reinstate DACA to its Obama-era terms. Three days later, the Department of Homeland Security announced it would comply with the order and begin to accept first-time DACA requests and restore other terms of the program it had taken away, such as “advance parole,” which allows Dreamers to travel abroad and return to the U.S., thereby opening a narrow pathway for permanent residence for a small class of Dreamers. Meanwhile, President-elect Joe Biden has promised to reinstate DACA on his first day in office, to work toward a permanent legislative fix and provide a pathway to citizenship for undocumented immigrants.
Despite these indisputable victories, here’s why it’s too early to celebrate. An existential threat to DACA looms in the form of a pending lawsuit in Texas federal court that directly grapples with whether the original DACA program is lawful in the first place—a question no court has addressed (although three dissenting Supreme Court Justices characterized DACA as “unlawful from its inception”).
The Texas court’s history with DACA-related litigation does not bode well for Dreamers: In 2015, Judge Andrew S. Hanen blocked the Obama administration from introducing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, an expansion of DACA that shielded undocumented parents of U.S. citizens and green card holders from deportation. The decision only narrowly survived appeal, when the Fifth Circuit Court of Appeals agreed and an eight-member Supreme Court (following the death of Antonin Scalia) split evenly, leaving in place the injunction on DAPA. The expanded program never took effect.
After President Trump took office, his Acting Secretary of Homeland Security issued a September 2017 memorandum rescinding the DACA program. But the rescission was immediately challenged and a judge in California ordered the administration to maintain the program. Additional injunctions followed, requiring the government to continue to accept renewal applications. In response, Texas and other conservative states filed a new complaint in the Texas court, this time seeking to dismantle DACA as “unlawful.” In August 2018, Judge Hanen ruled that DACA “violates the substantive provisions of the Administrative Procedure Act,” but somewhat surprisingly left DACA in place.
Questioning why the states did not challenge DACA itself in their original 2014 suit against DAPA, he noted the potential for significant hardship to the estimated 800,000 Dreamers, and concluded that a temporary injunction would not repair an “egg [that] has [already] been scrambled.” Importantly, however, Judge Hanen also said that “DACA and DAPA are basically identical, and there is no legal ground for striking DAPA that wouldn’t apply to DACA.” The states are now asking the court to declare that DACA is unlawful and order its termination. A hearing took place Tuesday, Dec. 22.
The stakes could not be higher for Dreamers. Judge Hanen has already signaled that DACA is likely to suffer the same fate as DAPA and could ultimately strike down the program. But after astute advocacy by Dreamers’ attorneys at today’s hearing—in particular focusing on nuanced conceptions about prosecutorial discretion, employment authorization, and potential legal remedies flowing from his decision—Judge Hanen’s task just got more complicated. Moreover, Texas and the other plaintiff states are requesting that the judge stay his decision for a two-year period, during which no additional applications or renewals would be entertained. If the case winds up in the Supreme Court, it will be a different and more hostile forum with the addition of Justice Amy Coney Barrett, who, as a judge on the Seventh Circuit Court of Appeals, authored a 40-page dissent siding with the Trump administration on the controversial pubic charge rule.
Of course, the battle will continue—and with renewed vigor under a new administration that has promised to “reinstate” DACA and protect Dreamers. All sides agree that only Congress can provide a permanent solution for Dreamers, and it remains to be seen whether legislative relief will be possible in the current hyper-partisan environment.” Meanwhile, despite overwhelming public support for DACA and repeated public advocacy by U.S. businesses urging the government to keep the program in place, Dreamers continue to live a nightmare of uncertainty.
This article was originally published in the California Business Journal.
Dallas, Dec. 10, 2020 – Berry Appleman & Leiden LLP (BAL) is named more times in the elite LawDragon® ranking of corporate immigration lawyers than any other firm in the country. In the newly released 2020 Lawdragon rankings of employment lawyers, eight BAL attorneys landed top spots, representing 12% of all ranked corporate immigration attorneys. BAL Partners listed in the top tier include David Berry, Rob Caballero, Jeremy Fudge, Frieda Garcia, Kortney Gibson, Lynden Melmed, and Carla Tarazi with Jeff Appleman, emeritus, inducted into the Immigration Hall of Fame.
Despite the huge challenges COVID-19 poses for U.S. businesses, BAL attorneys continue to make a lasting impact in the immigration field, successfully challenging multiple U.S. travel bans, obtaining National Interest Exceptions for companies so that critical international staff can travel to the U.S., and helping companies navigate complex compliance issues as employees moved to work-from-home arrangements en masse.
“We’re proud to be among the elite who are recognized as practicing at the highest caliber of immigration law,” says BAL Managing Partner Jeremy Fudge, “Immigration is a profoundly important segment of employment law, and by helping our clients hire and retain the best talent in the world, we are powering human achievement.”
The trailblazing immigration firm has risen to the challenges of 2020, dominating the legal rankings and leading the industry in its tech-forward practice. This year, BAL was named the Most Diverse Law Firm in America by The American Lawyer, the Best Law Firm for Women by the National Law Journal for the second year in a row, and the #1 Law Firm for Female Attorneys in its category by Law360 for two years running. BAL’s proprietary Cobalt® digital immigration services platform earned a 2020 CIO 100 Award, won the 2020 CODiE Award for Best Legal Tech Product, and placed as a 2020 Tech Titans Award finalist.
“This has been an incredible year for our practice, and our attorneys are not just surviving but thriving in the face of challenges,” says Partner Rob Caballero. “In 2020, we were tested as attorneys, but we have worked to serve our clients with creativity, technology, empathy and the drive to pursue the exceptional at every turn. We are pleased to have so many BAL attorneys recognized for excelling in their work and making a positive difference in people’s lives.”
About Berry Appleman & Leiden LLP
BAL is one of the world’s most recognized corporate immigration law firms and the Best Lawyers® Law Firm of the Year in U.S. Immigration Law (2019), the Most Diverse Law Firm in America (2020), the Best Law Firm for Women by the National Law Journal (2019 and 2020) and the #1 Law Firm for Female Attorneys in its category by Law360 (2019 and 2020).
BAL’s Cobalt® digital immigration services platform earned a 2020 CIO 100 Award, won the 2020 CODiE Award for Best Legal Tech Product, and placed as a 2020 Tech Titans Award finalist. The firm is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable clients to be more successful. Established in 1980, the firm provides immigration expertise, top-notch information security and leading technology innovation. The firm entered into a strategic alliance with Deloitte UK to create the world’s first global immigration service delivery model. BAL and its leaders are highly ranked in every major legal publication, including Best Lawyers, Chambers, The Legal 500, and Who’s Who Legal. For more information, please visit: https://www.bal.com/.
U.S. Citizenship and Immigration Services (USCIS) has recently resumed employer worksite visits that were put on hold because of COVID-19 and social distancing precautions. This may pose challenges for USCIS and your company, as much of the workforce is still working from home or telecommuting from outside the office. That means employees should be prepared if immigration authorities knock on the front door of their residence.
A home visit from USCIS may seem unusual and alarming to employers and employees alike, but this is not a new practice for the agency—in the family-based immigration context, USCIS officers visit individuals at their homes as a matter of course to confirm the information listed on their petition or application.
Now is a great time for companies to assess their administrative site visit policies and ensure that employees who may be visited at home by an immigration officer understand what to do, whom to contact and what questions they may be asked.
Employers are usually given notice of a verification check—in the past by letter, but recently via email—although the agency has the authority to show up at a work location unannounced to speak with employees, such as the HR or company representative and the foreign national employee who are named in an immigration petition. Immigration verifications are performed by the Fraud Detection and National Security (FDNS) unit of USCIS, and any employee receiving an officer at their home or worksite should promptly ask for a photo ID and a business card to confirm the officer is in fact from USCIS. For prescheduled or unannounced visits, the company is allowed (and recommended) to have an immigration attorney present.
Employees should know beforehand whom to call in the event of a site visit. During the visit, the FDNS officer may ask HR and immigration managers about its general business and its H-1B program, such as the number of H-1B employees and whether employees are sponsored for green cards, and ask about the individual H-1B employee, such as his or her job duties, work location and date of hire. Officers may also question the H-1B employee directly about his or her job, tenure at the company, immigration or visa status before obtaining an H-1B visa, education and work experience, and request documentation such as recent pay stubs, driver’s license and employee badge. More recently, we have seen FDNS officers question the employee’s work-from-home address, length of time the employee has been working from home, and other aspects of the employee’s telework. Finally, FDNS officers may ask to contact the employee’s direct manager separately to confirm the employee’s information.
Enforcement against employers who violate immigration rules has been a priority of the agency in recent years and the trend is expected to continue. In 2018, USCIS beefed up its FDNS unit and began hiring new officers and amplifying targeted site visits with the aim of doubling the number of worksite visits to 20,000 per year and increasing that number every year. The agency has also increased its information sharing with other agencies, allowing USCIS to access information contained in filings with the Labor Department, such as the labor condition application that companies must file to sponsor an H-1B worker.
It is important that companies review and update their policies and procedures for responding to a USCIS site visit or verification and that employees who are working at home understand the protocols. Although COVID-19 continues to keep most companies’ offices closed or at limited capacity, the pandemic is not preventing USCIS from restarting its site visit program—even when the “worksite” is an employee’s kitchen table or spare bedroom.
Kelli Duehning is a Partner and Michael Sela is a Senior Associate in the San Francisco office of Berry Appleman & Leiden LLP.