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The Department of Homeland Security is expected to publish a proposed rule this month seeking to rescind the Obama-era H-4 regulation that currently allows spouses of certain H-1B workers to apply for employment authorization documents, or EADs.
The agency has consistently indicated its intention to rescind the regulation and has listed it among its regulatory agenda priorities since last year. Most recently, DHS stated in a federal appeals court filing on May 22 that the proposed rescission rule is undergoing final DHS clearance and will be sent to the Office of Management and Budget (OMB) for review.
Key points:
Background: The H-4 regulation was promulgated in 2015 and allows dependent spouses of H-1B workers who are at certain stages of the green card application process to apply for an EAD. The regulation has allowed some 71,000 H-4 spouses to obtain work authorization.
Under President Trump’s “Buy American, Hire American” Executive Order, DHS intended to rescind the regulation in January, but later indicated that it needed to delay the rescission rule in order to revise its economic analysis of the impact. The agency now expects to publish its proposed rule this month.
BAL Analysis: Employers and H-4 EAD beneficiaries should be aware that a proposed rule is likely to be published in the coming weeks, which will initiate a notice and comment period. The H-4 regulation remains in place until a final rule is published and becomes effective, which usually takes at least three months from publication of the proposed rule. Until a rule is published, it will not be clear whether current beneficiaries will be afforded a transition period. Employers are encouraged to work with BAL to plan for the changes and discuss alternative planning for H-4 spouses, as well as to participate in the public comment period.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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A phone scam has surfaced in which callers posing as immigration authorities are phoning immigrants in the U.S. and threatening them with family separation, prison and deportation unless they pay a security deposit.
The calls may seem credible because the scammers are using software that makes the calls appear to originate from a government agency, such as U.S. Citizenship and Immigration Services, Customs and Border Protection, 911 emergency services, and even from the targeted individual’s family members. To create further alarm, the scammers are telling immigrants that their family members are already in custody.
Scams targeting immigrants are quite common in the U.S. and worldwide and have become increasingly sophisticated as scammers are able to mine personal details about individuals from public data and often use this information to make the call appear official.
To verify whether the call is from U.S. immigration authorities, individuals may call the National Customer Service Center at 1-800-375-5283, make an InfoPass appointment here, or go to the MyUSCIS webpage.
Suspicious calls may be reported to the Federal Trade Commission’s complaint website. Suspicious emails may be forwarded to U.S. Citizenship and Immigration Services at uscis.webmaster@uscis.dhs.gov.
BAL Analysis: Immigrants should be aware of the latest scam and not disclose personal information or submit to demands for payment over the phone or by email. U.S. immigration officials do not seek payment over the phone; all requests for payment are via mail on government letterhead.
U.S. Citizenship and Immigration Services (USCIS) opened the re-registration period Tuesday for current beneficiaries of Temporary Protected Status (TPS) for Honduras who want to continue to maintain their status. The program will be terminated Jan. 5, 2020.
Key dates and deadlines:
Background: The Trump administration ended the TPS designation for Honduras last month with a delayed effective date of Jan. 5, 2020. The Department of Homeland Security has also terminated TPS designation for El Salvador, Haiti, Nicaragua, Nepal and Sudan, and has ended Deferred Enforced Departure for Liberian nationals.
BAL Analysis: Honduran nationals should re-register as soon as possible and not wait until the end of the re-registration period. Employers should be aware of the automatic extension of currently valid TPS Honduras employment authorization documents. DHS has advised Honduran nationals to explore other visa categories or to plan to leave the country by Jan. 5, 2020.
The Labor Department has posted processing times current as of May 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in January and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in September and earlier, and appeals filed in April and earlier are being reviewed for reconsideration.
Average PERM processing times in May:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in March and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in April and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in April and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in May:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department processing times. BAL is currently seeing approvals for PERM applications filed in January and February and is awaiting PWDs for requests filed in March and earlier.
The State Department has announced that on June 11 it will begin to limit visa validity for Chinese (PRC) national students and others involved in certain high-technology fields (robotics, aviation and others), and increase the number of cases subject to interagency clearances. The State Department gave no specific information on how this policy will be implemented.
Background: This new announcement may be implementing President Trump’s national security strategy issued in December, which stated that the U.S. would tighten visa procedures “to reduce economic theft by non-traditional intelligence collectors,” and which mentioned possible visa restrictions on Chinese students involved in STEM fields.
BAL Analysis: In the past, some Chinese nationals in the STEM fields have been subject to clearances based on potential violations of export control laws related to goods, technology or sensitive information. However, screening visa applicants for concerns over U.S. intellectual property theft would be unprecedented. While violation of export control laws is grounds for the U.S. to deny a visa, there is no express authority in the Immigration and Nationality Act for denying a visa based on protecting intellectual property. The newly announced initiative focuses instead on limiting visa validity and increased screening, which are within the discretion of consular officers.
The Department of Homeland Security published a proposed rule Tuesday proposing to remove the International Entrepreneur Rule, an Obama-era regulation that allowed qualified entrepreneurs to apply for parole status to enter or remain in the U.S. to grow their businesses.
Background: Shortly after taking office, the Trump administration issued a rule to delay implementation of the International Entrepreneur Rule days before it was slated to take effect in July 2017. On Dec. 1, 2017, a federal court vacated the delay, concluding that DHS violated the Administrative Procedure Act because it did not go through normal rulemaking procedures, including a public notice and comment period.
Although DHS was ordered to implement the rule, only a handful of applicants filed for parole under the International Entrepreneur Rule and all applications remain pending as the agency works to rescind the rule.
BAL Analysis: Companies and individuals interested in submitting comments to DHS may follow the instructions in the Federal Register notice here, or contact BAL for assistance.
Searches of cell phones, laptops and other electronic devices at the U.S. border have risen sharply, and travelers should be aware of border procedures and the potential for their electronic devices to be searched or confiscated when entering or exiting the country.
According to recent figures from U.S. Customs and Border Protection, in the first six months of the current fiscal year, nearly 15,000 searches were conducted. In the previous fiscal year, CBP conducted 30,200 border searches of electronic devices, compared with 19,051 in FY 2016 and 8,500 in FY 2015. In January, the agency issued new guidelines and operating procedures on border searches of electronic devices for inbound and outbound travelers.
Summary of CBP guidelines:
The full guidelines may be read here.
Legal challenges to these searches are beginning to reach the courts. While searches conducted at U.S. borders usually do not require a warrant under a recognized exception to the warrant requirement, searches of digital devices are raising new issues about the scope of the exception and the privacy rights in the wealth of personal information contained on digital devices.
In a recent appellate case, the U.S. Court of Appeals for the Fourth Circuit held that border officers did not require a warrant to seize a Turkish national’s phone, even though the traveler was exiting the U.S. and the phone was sent four miles away to a forensic lab to have its contents downloaded. The search was a “nonroutine” border search, and while it did not require a warrant or a showing of probable cause, it required that border officials have an individualized suspicion of criminal activity. The court was careful to note that the search did not involve information stored on the cloud. The case is U.S. v. Kolsuz, and the decision can be viewed here.
Earlier this month, a U.S. District Court in Massachusetts ruled that a lawsuit could move forward challenging the government’s use of warrantless searches at the border. The suit was brought by 10 U.S. citizens and one lawful permanent resident whose devices were searched upon re-entering the country. Two of the plaintiffs’ phones were seized for months. In rejecting the government’s attempt to dismiss the case, the court said the plaintiffs made out a plausible claim that their Fourth Amendment rights against unreasonable search and seizure and First Amendment rights to privacy were violated. The case is Alasaad v. Duke, U.S. Dist. Ct. for the District of Massachusetts, CA No. 1:17-CV-11730.
BAL Analysis: All international travelers regardless of nationality should be aware of the potential for their devices to be searched upon entry or exit and plan accordingly. Business travelers using company devices may wish to take precautions before traveling, such as limiting the devices they bring, moving data onto the cloud and deleting sensitive information from their devices before travel.
The Department of Homeland Security’s Spring regulatory agenda released this month indicates that the Trump administration will continue to pursue plans to reform the H-1B annual allotment process, revise H-1B eligibility and wage protections, terminate H-4 work authorization, overhaul the F-1 Optional Practical Training (OPT) program and review the activities that are allowed on B-1 and B-2 visas.
The agenda reinforces the goals the administration outlined in its December regulatory agenda and in an April 4 letter from U.S. Citizenship and Immigration Services Director L. Francis Cissna, to Sen. Chuck Grassley, R-Iowa, who chairs the Senate Judiciary Committee. Here are some of the key points:
BAL Analysis: The regulatory agenda reiterates the administration’s regulatory and policy priorities as previously outlined. The regulatory changes will not take place immediately—it usually takes a minimum of three months after a proposed regulation is issued before a final rule is published. When an agency publishes a proposed rule, members of the public are given the opportunity to submit formal comments to the government. Typically, a regulation does not become effective immediately and has a 30-day delayed effective date.
Employers are encouraged to work with BAL to plan for the changes, as well as to participate in the public comment period to help influence the direction of any new regulations. BAL will continue to provide clients with information on these and other regulatory and policy changes as it becomes available.
The Department of Homeland Security (DHS) is proposing a rule to rescind the International Entrepreneur Rule. The move was expected, especially after the White House Office of Information and Regulatory Affairs approved the proposal. The proposed regulation is scheduled to be published in the Federal Register on May 29.
BAL Analysis: By rescinding the rule, the Trump administration is going against a global trend where countries are seeking to attract innovation through entrepreneur and start-up visas. DHS did stress that other options are available for some entrepreneurs, including the E-2 and EB-5 investor visa programs. The rescission of the Entrepreneur Rule is not yet finalized; officials must observe a notice and comment period before a final rule can be published and implemented. This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
U.S. Citizenship and Immigration Services said this week that it mistakenly sent out a number of notices directing Form I-751 petitioners to the wrong Application Support Center (ASC) location for biometrics appointments. The I-751 is for people who obtained an initial two years of conditional residence based upon marriage to a U.S. citizen and are subsequently filing for permanent residence.
BAL Analysis: USCIS stressed that petitioners who received incorrect notices do not need to travel outside of their normal geographic area, but instead may wait for a new notice or visit an ASC for a walk-in appointment. Clients who believe they may have received an errant notice may contact BAL or the USCIS Contact Center at uscis.gov/contactcenter.