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U.S. Citizenship and Immigration Services opened the re-registration period Tuesday for current beneficiaries of Temporary Protected Status (TPS) for Nepal who want to continue to maintain their status. The program will be terminated on June 24, 2019.
Key dates and deadlines:
Background: The Trump administration ended the TPS designation for Nepal last month with a delayed effective date of June 24, 2019. The Department of Homeland Security has also terminated TPS designation for El Salvador, Haiti, Honduras, Nicaragua, and Sudan, and has ended Deferred Enforced Departure for Liberian nationals.
BAL Analysis: Nepalese 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 Nepal employment authorization documents. The Department of Homeland Security has advised Nepalese nationals to explore other visa categories or plan to leave the country by June 24, 2019.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 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.
U.S. Immigration and Customs Enforcement has been significantly increasing audits and worksite investigations, according to figures in a Monday press release by the agency.
During the first seven months of the 2018 fiscal year—between Oct. 1, 2017 and May 4, 2018—ICE’s Homeland Security Investigations (HSI) unit initiated 2,282 I-9 audits and opened 3,510 worksite investigations, compared with only 1,360 I-9 audits and 1,716 worksite investigations for the full previous fiscal year. The agency has also ramped up arrests, more than tripling the number of criminal and administrative workplace-related arrests. The increase in employer audits is consistent with outgoing ICE Acting Director Thomas Homan’s directive last October to quadruple workplace investigations.
“Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records,” HSI Acting Executive Associate Director Derek N. Benner said in the press release. Benner also told the Associated Press on Monday that another nationwide wave of audits is planned for this summer and would push the total to “well over” 5,000 by Sept. 30. He also highlighted a proposal by ICE to create an Employer Compliance Inspection Center to perform employer audits at a single location. ICE would like to add up to 250 auditors and a team of attorneys to enable the agency to audit between 10,000 and 15,000 companies annually.
Key reminders:
BAL Analysis: The ICE press release and Associated Press article are strong reminders to encourage employers to conduct an internal audit of their I-9 forms and have protocols in place in the event that they are inspected by ICE. BAL’s compliance team can assist in conducting internal audits and preparing employers for a Form I-9 inspection.
U.S. Citizenship and Immigration Services said Monday it will recall 8,543 permanent resident cards (green cards) because of a production error that led to the printing of cards with the wrong “Resident Since” date.
Key points:
BAL Analysis: BAL is able to assist green card holders affected by the recall. USCIS stressed the importance of completing the recall procedures, noting that having the wrong “Resident Since” date on the card can delay citizenship application eligibility.
Diversity Visa lottery results for fiscal year 2019 will be available Tuesday on the State Department’s Entrant Status Check webpage.
The Diversity Immigrant Visa Program allots 50,000 green cards per year to individuals from countries with historically low levels of immigration to the U.S. Entries for fiscal year 2019 were accepted from Oct. 18, 2017 to Nov. 22, 2017.
Key dates and procedures:
BAL Analysis: Applicants are reminded that the State Department’s Entrant Status Check webpage is the only official source where results are posted. They must use the official website to find out if they have been selected in the lottery and, if selected, to check for the date of their immigrant visa appointment, as the U.S. government does not directly notify winners. The State Department also instructs individuals to retain their confirmation number until at least Sept. 30, 2018. Confirmation numbers from the Oct. 3-10, 2017, registration period are not valid in the system and lottery participants should confirm that they are using a valid confirmation number from the Oct. 18-Nov. 22 registration period.
Foreign students, exchange visitors and their family members will face stricter rules on how “unlawful presence” is calculated under a new policy released today by U.S. Citizenship and Immigration Services.
The agency posted a policy memorandum that takes effect Aug. 9 , 2018 and that supersedes previous longstanding policy. Under the memorandum, nonimmigrants with F, J or M status will be subject to the following rules on accruing unlawful presence:
Those who failed to maintain their F, J or M status before Aug. 9 2018, will start accruing unlawful presence on that date unless they had already started accruing unlawful presence on the earliest of any of the following:
Those who fail to maintain their F, J or M status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of the following:
Background: This change in policy is intended to comply with President Donald Trump’s Executive Order on enhancing public safety by strengthening immigration enforcement. Foreign nationals remain subject to re-entry bars for three or ten years if they have accrued more than 180 days of unlawful presence during a single stay, and a permanent bar if they accrue more than one year of cumulative unlawful presence.
The policy memo will be open to public comments for a 30-day period ending June 11. Individuals or employers interested in commenting may contact their BAL professional and visit the USCIS website for instructions.
In the latest lawsuit over the Deferred Action for Childhood Arrivals program, seven states sued the federal government last week to force an end to the beleaguered program.
The Obama-era program allows certain qualifying undocumented individuals brought to the U.S. as children to register with the federal government and apply for temporary employment authorization to work legally in the U.S. The Trump administration terminated the program as of March 5, 2018, but other litigation has kept the program alive for now.
The new lawsuit, led by Texas, asks a U.S. District Court to immediately rescind and cancel all DACA benefits as unlawful. The states, which also include Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia, allege that the Obama administration exceeded its authority in introducing the program.
Current status of DACA:
BAL Analysis: The filing of the new lawsuit does not change the current status of DACA, and it is too early to predict how a court will rule in the case. While the Texas court is considered to be unsympathetic to DACA, the court’s authority will be constrained by the other court decisions. An unfavorable DACA ruling by the Texas court would probably lead to accelerated Supreme Court review. BAL is monitoring the litigation over DACA, including the July deadline set by the D.C. court, and will report any significant developments as the cases progress.
U.S. Citizenship and Immigration Services has announced that in June it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s June Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in June.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the June Visa Bulletin.
BAL Analysis: The announcement will affect Chinese and Indian nationals in the first, second and third preference categories and Philippine nationals in the third preference category. For other nationalities, the categories are current in both the Final Action and Dates for Filing charts for employment-based first, second and third preferences.
Priority cutoff dates will not advance in employment-based categories with the exception of a four-day advancement in the India EB-2 category, according to the State Department’s June Visa Bulletin.
Additional notes: All EB-1 and EB-2 categories other than those for China and India will remain current. The EB-3 categories for El Salvador, Guatemala and Honduras, Mexico, Vietnam and All Other Chargeability Areas will also remain current. After significant movement in April, advancement slowed in May and will largely remain static in June.
The State Department also released its Dates for Filing chart for June. 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. USCIS has been using the Final Action Dates chart in recent months, but could opt to use the Dates for Filing chart. BAL will update clients once the State Department confirms whether the chart can be used in June.
The Department of Homeland Security is expected to publish a proposed rule in the coming weeks to rescind the International Entrepreneur Rule. The proposal has been approved by the White House Office of Information and Regulatory Affairs, the first step in the rulemaking process.
The International Entrepreneur Rule was introduced in the final weeks of the Obama administration and allows qualifying entrepreneurs to apply for parole status to enter or remain in the U.S. to grow their start-up companies.
President Trump issued a rule to delay implementation of the International Entrepreneur Rule days before it was to take effect in July 2017, but a federal court on Dec. 1, 2017 vacated the delaying rule as violating the Administrative Procedures Act because DHS did not go through normal rulemaking procedures, including a public notice and comment period. Since that order, only 10 entrepreneurs have applied under the rule and all cases remain pending.
BAL Analysis: By rescinding the rule, the Trump administration is going against a global trend of countries seeking to attract innovation through entrepreneur and start-up visas. Foreign entrepreneurs should look for other immigration routes if seeking to pursue start-up companies in the U.S. The rescission rule will take at least three months to be finalized; it will be published in the Federal Register and thereafter undergo a notice and comment period of 30 or 60 days before a final rule is published and implemented.
What is the change? U.S. Citizenship and Immigration Services has announced that the agency will begin to use the U.S. Postal Service’s Signature Confirmation Restricted Delivery service to mail specified secure documents.
What does the change mean? USCIS will integrate the service in phases. The first phase was implemented April 30 and only affects documents that USCIS must re-mail because they have been returned as non-deliverable. Phase two will expand the use of the service to include the initial mailing of documents, and is slated for late 2019.
When USPS attempts to deliver a document using the Signature Confirmation Restricted Delivery service, the recipient listed on the mailing envelope must show ID (a valid driver’s license, state identification or passport) and sign for the mail in order to receive the document. If USPS cannot deliver the document, a notice will be left at the address explaining that delivery was attempted. The recipient has 15 days to claim the mail at the local post office indicated on the notice.
If the mail is not claimed within 15 days, it will be returned to USCIS. After the mail is returned to the agency, the recipient has 60 days to contact USCIS to provide a new address. If the recipient does not contact USCIS within that time frame, the document will be destroyed.
BAL Analysis: Applicants are encouraged to follow the next steps outlined above to ensure their documents are delivered or picked up before they are again returned to USCIS as non-deliverable. BAL will continue to track developments on this program, particularly as the agency looks to expand to the initial mailing of secure documents in phase two.