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On Oct. 25, 2019, the U.S. Attorney General issued a decision holding that evidence of multiple DUI convictions establishes a presumption that a foreign national lacks “good moral character.”
Key points:
Background: The case involved a Mexican national seeking cancelation of removal on the grounds of exceptional and extreme hardship on his wife and three U.S. citizen children. Among the requirements, he must prove good moral character for the previous 10 years. An immigration judge granted his request for cancelation of removal, finding that despite two DUI convictions in 2010 and 2012, they were outweighed by his work history, his support for his family and his efforts to rehabilitate his previous alcohol abuse. The Board of Immigration Appeals (BIA) overturned the judge’s ruling on the grounds that he did not show the requisite “exceptional and extremely unusual hardship,” and on the alternative grounds that he did not show “good moral character.”
Last December, Acting U.S. Attorney General Matthew Whitaker directed the BIA to refer the case to him for review. Last month, U.S. Attorney General William Barr affirmed the BIA’s order and provided new reasoning under the good moral character grounds.
The full decision in Matter of Castillo-Perez is here.
BAL Analysis: The Attorney General’s decision departs from previous policy and will make it more difficult for foreign nationals to overcome multiple DUIs during the relevant look-back period to establish good moral character. Though the case involved a 10-year look-back period for purposes of cancelation of removal, foreign nationals applying for naturalization are also required to prove they possess good moral character for a five-year period preceding their application, thereby impacting those individuals as well. A footnote in the decision may also reveal potential impacts on applicants for permanent residence. In the footnote, the Attorney General noted that as the decision to grant or deny adjustment of status (permanent residence) is also a discretionary benefit, there should be “a careful analysis of whether an applicant with multiple DUI convictions merits such relief as a matter of discretion.”
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Foreign student enrollment at U.S. universities is on the decline for the first time in more than a decade. New enrollment of foreign students at U.S. universities dropped by 1% in the 2018-19 school year, 7% in 2017-2018, and 3% in 2016-17.1 This year, U.S. business schools saw a 13.7% drop in foreign student applicants, while Canada and Europe are increasing their pool of foreign applicants.2
U.S. business leaders are beginning to sound the alarm. Fifty-five deans of U.S. business schools and 15 CEOs of U.S. companies recently signed a letter to President Trump warning that the U.S. is losing global talent because of outdated and restrictive immigration policies.
Foreign students provide a talent pipeline of educated, diverse, skilled workers already acclimated to American life and equipped to join the U.S. workforce, especially in STEM fields, where U.S. companies currently have 3 million unfilled jobs. Foreign students, who typically pay full out-of-state tuition rates to attend U.S. universities with little to no financial aid, anticipate employment in the U.S. after graduation to recoup those costs. Immigration policies that make it harder for foreign students to remain and work in the U.S. after graduation will slow the talent pipeline and divert it to other countries. In a 2018 survey, 83% of U.S. universities cited visa delays and denials as a major concern for lower enrollment.
Options are already limited for foreign students graduating from U.S. universities—and the current administration has further curtailed those options. H-1B denial rates have soared under the Trump administration and the adjudication process has become increasingly challenging and unpredictable. The one-year Optional Practical Training (OPT) program, along with the two-year extension for students holding degrees in STEM fields, are important programs that provide practical training opportunities and an important work-authorization bridge for foreign graduates seeking H-1B visas. The Department of Homeland Security has signaled it intends to limit OPT programs. The agency also plans to restrict foreign students’ maximum period of stay to a fixed period, after which they would need to obtain a different visa status or leave the U.S. This would replace longstanding policy that allows them to stay for the duration of their studies.
Just as there is a global race for high-skilled workers, so is there intense global competition for young minds who will shape the future talent pool. At a time when many countries are easing their policies to attract foreign students—Canada allows three-year open work permits after graduation and a pathway to permanent residency, and the U.K. introduced two-year visas to live, work and seek jobs after graduating from a U.K. university—U.S. immigration policies are moving in the opposite direction. The policies of today will have a lasting impact on the ability of U.S. companies to attract and retain international talent for years to come, and this will inevitably impact the U.S. economy.
1 Institute of International Education (2019), “International Student Enrollment Trends, 1948/49-2018/19,” Open Doors Report on International Educational Exchange; Okahana, H., and Zhou, E. (2019), “International graduate applications and enrollment: Fall 2018,” Council of Graduate Schools.
2 Graduate Management Admission Council (2019), “Early Warning Signs: Winners and Losers in the Global Race for Talent.”
Carla Tarazi is a Partner in the San Francisco office of Berry Appleman & Leiden LLP.
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.
The U.S. State Department has removed updates to the Foreign Affairs Manual (FAM) for consular officers that added stricter language for adjudicating blanket L petitions.
Background: Blanket L petitions are commonly used by multinational companies transferring large numbers of employees from international offices to a U.S. branch or affiliate office. The blanket petition eliminates the need to file individual petitions for each employee.
Last month, the State Department quietly updated the FAM section that guides consular officers on granting blanket L petitions with the stricter language. Though the stricter language did not clearly change the legal standard regarding the burden of proof for blanket L petitions, its focus on requiring applicants to establish visa eligibility was expected to encourage consular officers to scrutinize blanket L petitions more closely and potentially increase denials.
BAL Analysis: The removal of the stricter language restores previous, longstanding blanket L adjudication policy. It is unclear whether there will be subsequent attempts to tighten the FAM guidelines on blanket L adjudication.
Priority-date cutoffs will advance modestly or remain the same in employment-based categories next month, according to the Final Action Dates published Monday in the State Department’s December Visa Bulletin.
The Visa Bulletin also predicted that additional EB-2 and EB-3 categories could see final action cutoff dates as early as January if the current level of demand for employment-based green cards continues. This action would be required, the bulletin said, to avoid going over annual limits on the number of visas that are available in each category.
Key movements in the December Visa Bulletin.
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for December. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once officials confirm whether the chart can be used in November.
Dates for Filing for Employment-Based Preference Cases:
The Labor Department has posted processing times current as of Oct. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: The department is now adjudicating applications filed in July and earlier, is conducting audit reviews on applications filed in February and earlier, and is reviewing appeals filed in May and earlier for reconsideration, according to the update.
Average PERM processing times:
PWD Processing: As of Oct. 31, the National Prevailing Center was processing PWD requests filed in July and earlier for H-1B and PERM cases. Redeterminations were being considered on appeals filed in October and earlier for H-1B cases and for PERM cases. Center director reviews were being conducted on appeals filed in October and earlier for PERM cases and H-1B cases.
Average times for issuance of prevailing wage determinations in October:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications and PWD requests filed in July and earlier.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The U.S. Supreme Court will hear arguments Tuesday on whether the Trump administration’s attempt to terminate the Deferred Action for Childhood Arrivals program was lawful.
DACA provides temporary protection from deportation and the opportunity to obtain work authorization for roughly 700,000 people who were brought to the United States illegally as children. DACA recipients, immigrants’ rights groups, cities, states and universities have sued to stop the administration’s efforts to end the program. The program has also drawn the support of some of the country’s largest corporations.
“DACA recipients are filling vacancies at companies that otherwise would not be able to attract workers for open positions,” said a friend-of-the-court brief filed by more than 140 trade associations and businesses, including BAL. “They are creating businesses that employ other Americans. And their increased wages lead to higher tax revenues and expansion of our national GDP—producing new jobs and benefits for all Americans.”
The litigation reached the Supreme Court after federal courts ruled against the government, requiring the Department of Homeland Security to continue to renew DACA applications for current recipients while the lawsuits proceeded. The rulings did not require DHS to accept requests from new applicants.
Administration officials have eyed a congressional fix as a solution for the program. In June, the House of Representatives passed the American Dream and Promise Act of 2019, but the bill has not gotten a vote in the Senate.
BAL Analysis: The status of the DACA program will remain unchanged at least until the Supreme Court issues a ruling. For now, DHS will be required to renew DACA applications for current recipients, but will not be required to enroll new applicants into the program. Employers should continue to accept valid employment authorization documents from DACA recipients until further notice. BAL will continue to monitor the case before the Supreme Court and other DACA-related developments and will provide updates as information becomes available.
A lawsuit that challenges the 2015 regulation allowing certain H-4 spouses to apply for employment authorization documents (the “H-4 EAD rule”) may go forward, a federal appeals court has ruled in reversing the lower court’s dismissal of the lawsuit.
The lawsuit, brought by a group of tech workers called Save Jobs USA, claims that the Department of Homeland Security lacks authority to allow H-4 spouses to work and that the rule unfairly increases competition against American tech workers.
Background: The 2015 Obama-era rule permits spouses of certain H-1B workers who are already in the process of applying for permanent residence to apply for employment authorization in the U.S. The tech workers sued to stop the rule from taking effect but a trial court dismissed the suit, finding that they lacked standing to sue because they failed to show that H-4 spouses competed with them for jobs in the tech field. The appeals court, however, found that they proved standing on the basis of their argument that allowing H-4 spouses to work incentivizes H-1B workers to remain in the U.S. and therefore compete with them for jobs.
BAL Analysis: The appeals court ruling means that the lawsuit can move forward at this stage and will continue at the district court level. At this time, the H-4 EAD rule remains in place and eligible H-4 spouses may continue to apply for employment authorization. BAL is closely monitoring the progress of the litigation and the proposed rescission regulation and will provide updates as more information becomes available.
The final rule on the H-1B registration fee was published in the Federal Register today, along with an updated screenshot of the proposed H-1B online registration form.
BAL Analysis: Employers should prepare for the H-1B online registration system to be introduced and should anticipate a decision by the end of the year about whether the government will require the online registration process for this upcoming cap season. If the system is implemented as planned for the upcoming cap season, petitioners should be prepared to file registrations for each H-1B candidate during a designated registration period that could be as early as January 2020, but no later than March 2020. BAL is closely following developments related to the H-1B registration system and will update clients as additional information is available.
U.S. Citizenship and Immigration Services posted a pre-publication version of a regulation that would raise government filing fees for immigration petitions, applications and other benefits. The official proposed rule is expected to be published in the Federal Register on Nov. 14.
Background: According to the proposal, the current fees are not sufficient to fund USCIS services based on projected budgeting. The government last raised immigration-related fees in December 2016.
BAL Analysis: Companies should budget for potentially substantial increases in government filing fees for immigration-related petitions and applications, particularly for nonimmigrant worker classifications for which new forms would be introduced along with new filing fees significantly higher than the current Form I-129. It is too early to know whether the new H-1 fees would be implemented in time for H-1B cap cases filed in 2020. BAL is reviewing the proposed rule and will follow up with more detailed analysis in coming days.
By Stephen D. Parker
With continued unpredictability in the ever-growing green card immigrant visa backlog, employees are often concerned about their children turning 21 during the process and “aging out.” Children are typically included as “derivative” beneficiaries on their parent’s permanent residence process, and immigration law defines a child as unmarried and under 21. But what if a child turns 21 during the green card process? Will he or she “age out”? It depends.
The Child Status Protection Act (CSPA) provides a formula to adjust a child’s age to account for U.S. Citizenship and Immigration Services processing delays, so that he or she may continue to qualify as a “child” even beyond turning 21. The child’s CSPA-adjusted age is calculated by subtracting the number of days the employee’s immigrant visa petition was pending with USCIS from the child’s biological age on either the date of approval or the date an immigrant visa becomes available according to the visa bulletin (whichever is later). As long as the CSPA-adjusted age is less than 21, the child will qualify. Because of this subtraction formula, it may be strategic not to utilize premium processing with certain I-140 immigrant petition filings.
CSPA adjusted age = [Age at time of visa availability] minus [Time petition has been pending]
Example: An employee’s immigrant petition was filed the day before her child’s 21st birthday and was approved 365 days later with the priority date immediately available at that time.[1] Even though the child’s biological age is nearly 22, the child’s CSPA-adjusted age remains 20. As long as the adjusted age is less than 21, the child may be included with the employee parent’s green card process. But what if the employee’s priority date is not immediately available at the time of approval? The child is not protected by the CSPA and “aged out.”
Additionally, the CSPA-qualified child must “seek to acquire” lawful permanent residence within one year, typically by filing for Adjustment of Status in the U.S., or completing certain steps toward consular processing if the child is abroad.
There are important limitations to the CSPA. The CSPA protects children from aging out because of USCIS processing delays—not visa bulletin retrogression. The CSPA does not preserve nonimmigrant status; children who are H-4 or L-2 dependents, for example, will lose that status when they turn 21 and must find another visa category in order to remain in the U.S. lawfully. In addition, they must remain unmarried while waiting for their permanent residence approval.
During periods of retrogression, we are sometimes asked to predict when an employee’s priority date would hypothetically need to become current to prevent the child from aging out. In other words, what is the last possible date the child would qualify under the CSPA? This can be calculated by rearranging the formula.
[Date by which employee’s visa availability will be needed for the child to qualify under the CSPA] = [Date of child’s 21st birthday] + [Time petition pending]
Given current trends of significant retrogression in many employment-based categories with only minor advancement, employers and employees are encouraged to work with their BAL attorneys to initiate the green card process early where feasible, and consider contingency plans for children who may nevertheless age out.
Stephen D. Parker is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
[1] For purposes of the CSPA, the date of visa availability is determined based on the Final Action dates chart of the visa bulletin. USCIS does not refer to the Dates for Filing chart for CSPA determination.