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U.S. Sen. Dick Durbin (D-Ill.) announced a plan Friday to introduce the “BRIDGE Act” with Lindsey Graham (R-S.C.), which would give three years of “provisional protected presence” to undocumented youth known as “DREAMers,” who are covered by President Obama’s 2012 executive action program, Deferred Action for Childhood Arrivals, or DACA.
If passed, the measure would temporarily shield an estimated 740,000 DACA recipients from deportation in the event that the Trump administration repeals Obama’s executive actions. During his campaign, Trump threatened to repeal Obama’s executive actions and deport all of the estimated 11 million undocumented immigrants in the country. However, in a video last month summarizing his first 100 days in office, Trump made no mention of DACA or undocumented immigrants. And in recent comments to Time Magazine, Trump softened his tone on DREAMers, whom he described as being in “never-never land because they don’t know what’s going to happen.”
Key points:
Background: Durbin said the bill is needed to protect DREAMers while Congress works on a comprehensive immigration reform bill.
“The BRIDGE Act that we are introducing today is no substitute for broader legislation to fix our broken immigration system,” Durbin said from the Senate floor Friday. “This bill should not be tied to other, unrelated measures. Let’s take care of these young people who are in doubt about tomorrow before we debate the larger and equally important question about immigration reform.”
Graham tweeted on Friday that although Obama’s executive actions should be repealed, it would be unfair to “pull the rug out” from under undocumented youth who voluntarily identified themselves and registered with the government under the program.
Under the DACA program, undocumented individuals who came forward and proved they entered the U.S. as children and maintained a clean criminal record could obtain two-year renewable deferrals of deportation and eligibility to apply for employment authorization.
Durbin and Graham were members of the bipartisan Gang of Eight who pushed comprehensive immigration legislation through the Senate in 2013 before that bill ultimately failed in the House.
BAL Analysis: If passed, the bill would provide a congressionally defined, albeit temporary, status for DACA-eligible individuals as well as eligibility for Employment Authorization Documents (EADs). Though there appears to be bipartisan support for protecting this category of undocumented immigrants, it remains uncertain whether such a stand-alone bill that does not address other immigration-related measures such as border security and enforcement would have enough Republican votes to pass.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2016 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.
IMPACT – MEDIUM
What is the change? A fake U.S. Embassy in Ghana’s capital has been shut down after operating under the radar for 10 years.
What does the change mean? Visa applicants should be aware that scams to sell or issue fraudulent visas can be quite sophisticated, and it is not altogether rare for unsuspecting individuals to fall victim to such scams only to find out that their visas are invalid when they attempt to enter their destination country.
Scams to sell fake visas are more common than people may think, particularly in African countries where many travel documents, including visas and work permits, are often handwritten. In 2014, South Africa stopped recognizing the validity of the Department of Home Affairs’ BI-1750 passport endorsement that confirmed the grant of South African permanent residency due to widespread forgery.
Background: The fake U.S. Embassy in Ghana was shut down earlier this year by agents of the real U.S. Embassy. The building flew an American flag, was staffed by individuals posing as embassy officials and shuttled foreign individuals from other West African countries to phony visa appointments. The U.S. State Department’s Bureau of Diplomatic Security confirmed in a posted article that the scheme provided some customers “fraudulently obtained, legitimate U.S. visas” for US$6,000, as well as counterfeit visas and false identification documents. When the property was raided, 150 passports from 10 countries were found.
The U.S. State Department has denied that anyone entered the U.S. on a fake visa issued by the sham entity. Officials have said it would be difficult to use a fake visa because a traveler’s biometric data would be matched by border officials against the database of the real embassy.
BAL Analysis: Companies that delegate the responsibility of obtaining visas to foreign employees should warn employees about the prevalence of visa scams and encourage them to take precautions to verify that they are only transacting with authentic entities.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
President-elect Donald Trump will appoint Gen. John Kelly, a retired four-star Marine general, to lead the Department of Homeland Security.
As head of DHS, Kelly would be responsible for overseeing many of the agencies responsible for administering the nation’s immigration programs, including U.S. Citizenship and Immigration Services. It is hard to predict how Kelly would approach high-skilled immigration, but, like Trump, he has taken a hard line on immigration-related security along the U.S.-Mexico border.
“Despite the heroic efforts of our law enforcement colleagues, criminal organizations are constantly adapting their methods for trafficking across our borders,” Kelly told the Senate Armed Services Committee in 2015.
Trump’s appointment of Kelly requires Senate confirmation.
BAL Analysis: BAL continues to follow the Trump administration transition as well as immigration-related developments in the last six weeks of President Barack Obama’s administration. BAL will keep clients updated on important immigration developments throughout the transition and once the new administration takes office.
The U.S. Department of Labor has posted current processing times as of Dec. 3 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in September and earlier are currently being adjudicated. Audit reviews are being conducted on applications filed in May and earlier, and appeals filed in November and earlier are being reviewed for reconsideration. The processing queue is current for cases that were appealed based on government error.
Average PERM processing times in November:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in August and earlier for H-1B cases and those filed in July and earlier for PERM cases. Redeterminations are being considered on appeals filed in October and earlier for H-1B cases and those filed in September for PERM cases. Center Director Reviews are being conducted on appeals filed in August for H-1B and PERM cases.
Average time for issuance of prevailing wage determinations in November:
The Labor Department reports PERM and prevailing wage determination processing time frames on its iCERT page.
BAL Analysis: The DOL’s reported processing times are in line with BAL’s internal case tracking, with the exception of private survey prevailing wage determination requests, some of which continue to be held for review from as far back as June. As BAL reported last month, the DOL has instituted a two-tiered processing system for prevailing wage determinations depending on whether the wage is supported by the department’s Occupational Employment Survey or a private survey. The average time frames confirm that PWD requests supported by private surveys are taking longer, in particular for PERM cases.
On Nov. 18, the Department of Homeland Security published a final rule expanding job portability for high-skilled foreign workers that will take effect January 17, 2017.
B·A·L’s Government Affairs team has prepared a table detailing the significant provisions in the regulation. Some highlights of the rule include:
Key Differences Between Proposed and Final Rule
During the public comment period, DHS received nearly 28,000 comments on the proposed rule, including recommendations from BAL and other industry stakeholders. As a result, the final rule contains some important changes, including:
Read B·A·L’s full summary of the regulation’s provisions here.
B·A·L Analysis: The regulation will have far-reaching implications for foreign workers in many high-skilled visa categories and addresses some of the issues with backlogged visa categories that can inhibit employers from hiring and retaining these workers. President-elect Donald Trump has not indicated whether he supports or opposes the rule, which will take effect shortly before he takes office and will remain in effect unless DHS or Congress acts to repeal or replace it. Given the uncertainty of the regulation’s future under the new administration, businesses and individuals may wish to contact their B·A·L professional to determine if and how they may benefit from the regulation in a timely manner.
The State Department issued a travel alert for this week, highlighting the possibility of terrorist attacks in Europe throughout the holiday season and into the new year.
Background: The State Department’s travel alert follows attacks in Belgium, France, Germany and Turkey, in the past year. The department issued a similar warning in May and said Monday it “remains concerned about the potential for attacks throughout Europe.” The alert is set to expire on Feb. 20.
BAL Analysis: Foreign nationals traveling or residing in Europe should exercise caution and expect delays, especially when crossing borders where border controls have been instituted. Companies with employees outside the U.S. should (1) register their employees with the appropriate U.S. embassy; (2) establish evacuation plans; (3) develop visitor logs; and (4) have employees carry copies of their passport at all times.
U.S. companies overseas should (1) engage with the Overseas Security Advisory Council (OSAC) and (2) develop an emergency communication system. Employers may additionally wish to encourage their employees to enroll in the Smart Traveler Enrollment Program, a free service that provides updated security information and allows Americans to register their trips abroad with the closest U.S. embassy or consulate.
This alert has been provided by the BAL Global Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
IMPACT – HIGH
DHS announced that a final rule containing provisions allowing greater flexibility for high-skilled foreign workers will be published in the Federal Register Friday. It becomes effective Jan. 17, 2017.
The rule provides significant reforms to job portability for employees who have an approved employment-based immigrant visa petition during the wait for a green card.
Key provisions:
Background: The regulation contains long-awaited reforms that allow greater job portability for high-skilled foreign workers and proposes significant policy changes that will affect foreign workers present in the U.S. on nonimmigrant visas or seeking to obtain employment-based green cards.
The regulation implements the American Competitiveness in the 21st Century Act and codifies much of the previous informal guidance by the Department of Homeland Security. The agency proposed the regulation in December and received nearly 28,000 comments on the proposal during the public comment period that ended Feb. 29.
B·A·L Analysis: The new regulation will become effective Jan. 17, 2017, three days before President-elect Donald Trump takes office. The regulation would be a significant development and would have far-reaching implications for foreign workers in the U.S. on nonimmigrant visas. While the new administration may oppose some or all of these provisions, the regulation will remain in effect until new regulations can be published and finalized, or until Congress acts to annul it. B·A·L will provide additional analysis in the coming week on the details of the final rule and is closely monitoring the new administration’s priorities and approach to this rule and other immigration-related policies.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact your BAL attorney.
What is the change? The German Consulate in Los Angeles is scheduled to close for approximately three months, from January through March 2017, due to remodeling.
What does the change mean? Visa and passport applicants should schedule their appointments immediately via the online appointment system while appointments are still available. Visa and passport processing will cease during the closure.
B·A·L Analysis: Foreign nationals applying for visas and German nationals applying for passports at the German Consulate in Los Angeles should plan to schedule their appointments and complete all business at the consulate by the end of the year. Additionally, applicants should factor in the holiday season and reduced staff and working hours at the consulate in December. Businesses should anticipate likely delays and a backlog. B·A·L will update clients as soon as the consulate sets out alternate procedures for Los Angeles applicants during the closure.
U.S. Citizenship and Immigration Services (USCIS) has published a new version of the Form I-9 used by employers to verify employment eligibility of new employees, which employers will be required to use beginning Jan. 22, 2017.
Key dates and changes:
Background: The new version of Form I-9, published Monday, is easier to fill out electronically and contains drop-down menus and calendars, embedded instructions at each field, and additional prompts to verify that information is filled out correctly. Among other features intended to reduce paperwork errors, the button “Click to Finish” at the end of each page prompts the form to check to ensure that all fields were filled in. The form also automatically populates certain fields based on information entered in other fields.
Employers must complete Form I-9 each time they hire a person to perform labor or services in the U.S. in return for wages or other remuneration. Though employers do not submit this form to the government, they must retain a Form I-9 for each employee for three years after the date of hire or one year after the employee’s employment ends, whichever is later. U.S. Immigration and Customs Enforcement conducts audits of employers’ Forms I-9 and if errors are found, may impose significant fines ranging from $216 to $2,156 per employee. The government recently increased these fine amounts by regulation from the previous range of $110 to $1,100 per employee.
B·A·L Analysis: The new version of the Form I-9 is available on the USCIS website. Employers should become familiar with the new version of the form and its changes and note the mandatory transition deadline of Jan. 21. In addition to being easier to fill out electronically, the new version also removes the requirement that foreign nationals who are authorized to work provide both their Form I-94 number and their foreign passport in Section 1 of the form. However, the new Form I-9 does not require that employers or employees provide any new information, and does not alter the list of documents an employee may present to demonstrate work authorization.
U.S. Citizenship and Immigration Services announced that in December it will accept adjustment-of-status applications for employment-based preference categories 1 through 4 according to the priority cutoff dates in the Dates for Filing chart published in the State Department’s December Visa Bulletin.
Applicants in the employment-based 5th preference category must use the Final Action Dates chart. Family-based adjustment-of-status applicants can use the Dates for Filing chart for family-sponsored applications.
Dates for Filing of Employment-Based Visa Applications:
Background: Under the two-chart Visa Bulletin system, the State Department publishes a Final Action Dates chart and a tentative Dates for Filing chart every month. USCIS then determines whether there are enough visa numbers available to honor the Dates for Filing chart; if there are not enough visas, the priority cutoff dates in the Final Action Dates chart control filing eligibility. USCIS adjudication of the adjustment of status application will be governed by priority dates listed in the Final Action Dates chart.
B·A·L Analysis: The filing eligibility dates benefit employment-based green card applicants in several backlogged categories, including China and India EB-2 and EB-3, and all EB-3 categories. Those who are eligible to file according to the Dates for Filing chart in November are strongly encouraged to apply in November if possible and no later than December, as there is no guarantee that USCIS will continue to accept the Dates for Filing chart in subsequent months.