KANTER IMMIGRATION LAW OFFICE

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1 NEW USCIS FEES TAKING EFFECT 12/23/2016 First Fee Increase Since 2010 H-1B, L-1, and R-1 Government Site Visits What to Expect and What to Do DOL Meeting Reveals Some Big Changes on the Horizon for PERM New Questions Proposed for ESTA Form Provisional Waiver Expansion USCIS Clarifies 120-Day Time Period for EAD Renewals Passport Photos No Longer Required for Naturalization Application DHS Extends Employment Policy for Syrian F-1 Students Marijuana Imbibers Beware California Governor Takes Up Two Recently Passed State Legislative Efforts on Immigration Is Using a Fake Social Security Number a Crime Involving Moral Turpitude? The 7th Circuit Doesn t Think So News In Brief: First-Time Third Country H-1B Applicants Can Apply in Vancouver for Their Visas; All UK Citizens Now Eligible for Global Entry; Citizenship Discrimination Continues to be a Focus of DOJ Enforcement Activity; Updates on TPS and Deferred Enforced Departure NEW USCIS FEES TAKING EFFECT 12/23/2016 First Fee Increase Since 2010 U.S. Citizenship and Immigration Services announced a final rule published in the Federal Register on October 24, 2016, adjusting the fees required for most immigration applications and petitions. The new fees will be effective December 23, Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions. This increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions. The law requires USCIS to conduct fee reviews every two years to determine the funding

2 levels necessary to administer the nation s immigration laws, process benefit requests and provide the infrastructure needed to support those activities. The final rule contains a table summarizing current and new fees. The new fees are also listed on the Form G-1055, Fee Schedule, and on the Our Fees page of the USCIS website. Applications and petitions postmarked or filed on or after Dec. 23, 2016 must include the new fees or USCIS will not be able to accept them. This is our first fee increase since November 2010, and we sincerely appreciate the valuable public input we received as we prepared this final rule, said USCIS Director León Rodríguez. We are mindful of the effect fee increases have on many of the customers we serve. That s why we decided against raising fees as recommended after the fiscal year 2012 and 2014 fee reviews. However, as an agency dependent upon users fees to operate, these changes are now necessary to ensure we can continue to serve our customers effectively. We will also offer a reduced filing fee for certain naturalization applicants with limited means. Changes in the new fee schedule can be found here. Highlights follow: A fee increase of $155, or 16 percent, from $985 to $1,140 for Form I-485, Application for Naturalization. A fee increase of $135, or 42 percent, from $325 to $460 for Form I-129, Petition for a Nonimmigrant worker. A fee increase of $120, or 21 percent, from $580 to $700 for Form I-140, Immigrant Petition for Alien Worker. A fee increase of $30, or 8 percent, from $380 to $410 for Form I-765, Application for Employment Authorization. A fee increase of $115, or 27 percent, from $420 to $535 for Form I-130, Petition for Alien Relative. A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization. Biometrics fees and the Premium Processing fee (Form I-907) are not changing at this time. H-1B, L-1, and R-1 Government Site Visits What to Expect and What to Do U.S. Citizenship and Immigration Services (USCIS) began its Administrative Site Visit and Verification Program in Under the program, site visits are conducted by its Fraud Detection and National Security Directorate (FDNS). FDNS conducts site visits for religious worker (R-1) petitions, H-1B petitions, and, since 2014, L-1 petitions. An employer that signs Form I-129 agrees that any supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not 2

3 limited to, on-site compliance reviews. FDNS site visits are voluntary, but it is strongly recommended that employers cooperate should one occur. Employers should also be advised to contact their immigration attorney immediately should an FDNS investigation take place. Though most site visits are unannounced, and FDNS will not reschedule a visit to accommodate counsel, counsel is permitted to be present if logistically possible and might be permitted to participate via telephone. What Happens During a FDNS Site Visit? When an FDNS inspector appears at the employer premises, he or she will likely ask to speak with the human resources manager or the company official who signed the H-1B petition. During an FDNS site visit, the inspector is typically charged with verifying the existence of the employer, the validity of the information the employer provided in the petition, and whether the foreign national is working in compliance with the terms of the approval. FDNS may ask to take photographs of the facility to verify its existence, and interview the beneficiary, and supervisors or other personnel to confirm the details of the beneficiary s physical work area, hours, salary, and duties. Site visits typically take less than one hour and often take significantly less time. The inspectors may also ask for pay stubs or W-2s and may ask questions regarding the rate of pay, title, and job duties in order to compare that information with the information reflected in the petition and supporting letter. If an FDNS investigator asks questions that are beyond the scope of the petition or would require internal research, it is okay to ask for additional time to respond. If follow-up is required, it is important that the employer quickly respond with the requested information or documentation to ensure that the Compliance Review Report can be completed by the inspector in a timely manner. If at any point the employer or the employee is unwilling to continue, FDNS should end the inspection. However, the inspector will likely complete the Compliance Review Report based only on the information that was gathered before the inspection was terminated and will indicate that the interview was terminated upon request. FDNS may follow-up at a later time. The following are some common red flags for site investigators: (1) The beneficiary s salary in pay statements does not match the amount stated in the petition. (2) Reported income on the beneficiary s IRS Form 1040 does not match the beneficiary s salary, or the beneficiary reports as self-employed. (3) The address of the beneficiary s work location in the petition is not an actual work site. (4) Virtual offices or empty offices without equipment are listed as the beneficiary s place of employment. (5) The beneficiary lacks a work or work phone number. Are You Prepared? What an Employer Should Do It is important that H-1B/L-1/R-1 employers have policies and procedures in place in case of an FDNS inspection. Human resource departments, staff, and company signatories should be aware of the potential for unannounced site visits and should be prepared to follow the employer s response plan. If you don t have a plan, make one. Make sure that everything included in the underlying petition pertaining to the company and the employee is accurate. Review and re-review the petition that was filed, if necessary. Remember, material changes to job duties, and in the case of H-1Bs, changes to work location, require amended petitions. Make sure the person who signs the petitions (and/or the assistant) knows where to find copies 3

4 of the petitions quickly and review those petitions before meeting with the inspector. If there are discrepancies between pay stubs and the salary listed on the I-129 petition, be ready with a complete explanation. For example, some L-1 companies pay part of the beneficiary s salary through the foreign employer, which is an acceptable practice. If you are confronted with a site visit, contact your immigration lawyer immediately and see if he or she can attend the site visit. If your lawyer cannot attend, ask for and record the credentials of the inspector (name, title, and contact information) to ensure that any post-visit communications are directed toward the appropriate agent. Write down a detailed description of what happened immediately after the visit. Finally, if during the site visit, either you or your employee are unsure of an answer to a question, ask for additional time and offer to follow-up with the officer, rather than guessing. DOL Meeting Reveals Some Big Changes on the Horizon for PERM The DOL Office of Foreign Labor Certification (OFLC), at a meeting in May 2016, indicated that the Prevailing Wage, PERM, and H-2B Processing Centers will be undergoing some major changes. Upon recommendations from the efficiency experts at the Office of Personnel Management (OPM), OFLC will be creating new divisions, appointing new directors, and restructuring itself in hopes of creating a more seamless operational and policymaking system. In the meantime, expect processing times to lengthen and the PERM backlog to increase. Between 2010 and 2015, the overall application load at the OFLC increased by 84 percent while funding and resources decreased by 9 percent. Despite all of the improvements, trainings, cross-trainings, and possible outsourcing to implement the OPM recommendations, OFLC does not expect to be able to maintain the current processing times, which are likely to get worse in the near future. Furthermore, the filing fee provisions that are being considered will not be functional for several years because OFLC does not have a system to collect and distribute fees. We applaud OFLC s honesty in admitting these realities, if nothing else. As to the substantive developments about PERM filings, it is important to note that OFLC is continuing to ignore SOC (standard occupational classification) guidance with regard to jobs that have cross-occupational duties. When a prevailing wage is submitted that includes duties from two separate occupations (like management analyst and market research analyst), the adjudicating officer will simply choose the occupation with the higher wage and add a point to the wage level. Skill level, corresponding job zone, and time spent on each duty are completely ignored. Why? OFLC did not provide a substantive answer. The one piece of good news came from OFLC s consideration of State Workforce Agencies that refer to the potential applicants who never actually apply or show any interest in the job. OFLC did state that the employer is only required to consider applicants; referrals are not applicants for PERM purposes. 4

5 New Questions Proposed for ESTA Form CBP has proposed adding questions to the Electronic System for Travel Authorization (ESTA) application on eligibility requirements for travel under the Visa Waiver Program. In addition to country-specific travel restrictions, a request for ESTA applicants Global Entry Program numbers are being proposed as well as work and overstay questions. The latter could pose problems for some. Interestingly, questions about marriage have not been added, which also could have posed problems for ESTA applicants who are married to a U.S. citizen. ESTA travelers are reminded to check their ESTA authorization before travelling. If you obtain a new passport or change your name, gender, or country of citizenship, you will be required to apply for a new travel authorization. This is also required if one of your answers to any of the VWP eligibility questions changes. The associated fee of $14 will be charged for each new application submitted. Provisional Waiver Expansion The Department of Homeland Security (DHS) recently published a final rule that expands the class of those eligible to apply for a provisional waiver of inadmissibility. The waiver essentially allows certain individuals unlawfully present in the U.S. to request forgiveness of this immigration violation and avoid a three- or ten-year wait outside the U.S. while they apply for their immigrant visa at an American consulate abroad. The waiver qualifications have been expanded from U.S. citizen (USC) spouses and parents to include legal permanent resident (LPR) spouses and parents. The standard remains the same: showing that the qualifying spouse or parent (USC or LPR) would suffer extreme hardship if separated from their relative or relocated abroad while waiting out the three- or ten-year bar. The new rule makes the provisional waiver available to all individuals who are statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility, including beneficiaries of an I-140 and diversity visa lottery winners. The five major changes are: (1) clarifying that all individuals seeking the waiver must apply through USCIS including those in removal proceedings; (2) allowing individuals to apply regardless of whether they may have additional immigration violations that affect their admissibility (those individuals will still require another waiver while abroad); (3) eliminating limitations that restricted eligibility due to consular interview scheduling; (4) allowing those with final orders of removal to apply as long as they have an approved I-212 (Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal), assuming no other bars apply; and (5) requiring that DHS actually reinstate a removal order for an individual who illegally returned to the U.S. after removal before the individual is declared ineligible for the provisional waiver. Eligibility for the provisional waiver also will extend to the spouses and children who will accompany or follow to join the principal applicant. 5

6 USCIS Clarifies 120-Day Time Period for EAD Renewals USCIS has a policy that renewals for EADs (employment authorization documents) should not be filed earlier than 120 days before the expiration of the current EAD. However, USCIS has confirmed that the 120-day limit is not an absolute cut-off date. Applicants can file sooner in certain circumstances, it said, giving the example where a family seeks to file EAD renewal applications together even though the filing would be earlier than the 120-day limit for some family members. USCIS advises, however, that the starting validity date will be the date of adjudication, so filing early could result in a renewal EAD being issued earlier than when it is needed, and thus ending earlier than desired. Passport Photos No Longer Required for Naturalization Applications USCIS has revised its rules for filing N-400 naturalization applications, stating that applicants no longer need to submit two passport-style photographs with their applications. Fingerprints, photographs, and signature will be taken at scheduled biometric service appointments. Biometrics will now be required regardless of age. On a related note, naturalization applicants are reminded that during the pendency of their case, they are required to file a Form I-90 to renew their permanent resident card if it is expiring. DHS Extends Employment Policy for Syrian F-1 Students The Department of Homeland Security has extended the policy that permits Syrian students to work beyond the limits of their F-1 visa. Foreign students in F-1 status often have to show an ability to pay tuition and living expenses before they receive their visa, either through personal funds or a scholarship opportunity. Because of this, and because F-1s are students first, the visa comes with severe limitations on employment that can be undertaken. However, because of the ongoing crisis in Syria that has jeopardized some of Syrian students academic funding, DHS has permitted Syrian F-1 students who can show financial hardship to work beyond the current limitations. This policy has been extended and will remain in effect until March 31,

7 Marijuana Imbibers Beware An admission of any drug use can cause an immigrant visa to be denied. This is because the immigration law states that an individual is inadmissible to the United States if he or she admits to the elements of a drug crime. In other words, a conviction is not necessary. Just admitting to prior drug use is sufficient. Fortunately, USCIS does not routinely ask specifically about prior drug use at interviews for permanent residence or naturalization. However, consular officers abroad frequently do so at immigrant visa interviews, and there have been recent reports of Customs and Border Protection (CBP) officers asking such questions of noncitizens entering the United States. (Moreover, a person entering the U.S. at a port of entry might be asked by a CBP officer to share the contents of a cell phone or laptop, and must comply; he or she has no right to consult with an attorney.) This issue, while in the immigration laws for decades, is becoming more problematic due to discrepancy between federal and state law with respect to marijuana use. A person who has previously spent time in a state where marijuana use is legal Colorado, for example might think that admitting to having used marijuana in that state is not going to cause a problem because it is legal there. In fact, if the CBP officer knows that the applicant was previously in a state known for legalized marijuana, the officer may be more likely to ask about marijuana use and to use any admission of such use to disqualify that person from entry. Also, even a noncriminal summons payment of a fine for marijuana use can result in exclusion or deportation from the United States. California Governor Takes Up Two Recently Passed State Legislative Efforts on Immigration California Governor Jerry Brown recently had two bills related to immigration cross his desk, vetoing one and signing the other. The bill that was signed requires foreign nationals to be informed of their right to an attorney and right to remain silent before talking to federal immigration officials while in custody. Many people would assume this is an obvious fact, but the reality is the Due Process Clause of the Fifth Amendment only applies to criminal offenses whereas most immigration offenses like visa overstays are civil offenses. It usually comes as a surprise to learn that the U.S. Supreme Court has determined that, because of the civil nature of the offense, foreign nationals are not guaranteed legal representation at their hearings despite the severe consequences (deportation) of immigration offenses. Being advised of their right to remain silent before ICE officials is of paramount importance, as immigrants often inadvertently provide information to ICE that is detrimental to their cases. Governor Brown called the legislation a measured approach to due process and transparency principles, as it acts as a Miranda-equivalent for foreign nationals. The law also requires that police departments give the same information to the immigrant s attorney that they provide to ICE officials, and that a public forum must be held annually to disclose local law enforcement s 7

8 role in federal immigration policies. The new law stops short of providing free legal representation for those that cannot afford an attorney, but it is still a giant step forward in implementing the true spirit of the Due Process Clause. Colorado and New York City have similar policies in place, but not the result of state legislation. The bill Governor Brown vetoed would have prevented local governments from contracting with for-profit companies to detain immigrants. The governor explained that he was waiting for DHS to finish examining its own use of for-profit detention facilities. However, a recent statement from ICE Director Sarah Saldaña indicates that it is unlikely that DHS will stop using for-profit detention centers because of the statutory requirements mandating 34,000 detention beds be maintained at all times. These for-profit detention centers have recently come under congressional scrutiny after allegations of inhumane conditions and treatment of detainees. (The Department of Justice s announcement last August stated that it would begin phasing out the use of private prisons for federal prisoners did not apply to people held in DHS detention centers for immigration violations.) Is Using a Fake Social Security Number a Crime Involving Moral Turpitude? The 7th Circuit Doesn t Think So A new opinion from the U.S. Court of Appeals for the Seventh Circuit, Arias v. Lynch, disagreed with the Board of Immigration Appeal s (BIA) finding that using a false Social Security number (SSN) is a crime involving moral turpitude (CIMT) that prevents relief from removal. In the case, Ms. Arias had provided her employer a false SSN to gain employment. This was held by the immigration judge and the BIA to be a turpitudinous crime that prevented Arias from receiving relief. The Seventh Circuit disagreed, noting that a crime involving moral turpitude has been defined as morally base, vile, or depraved. The court could find nothing in the record to describe Arias s decision to supply her employer with a false SSN as base, vile, or depraved. Instead, it noted the inconsistency in the determination that a foreign national using a false SSN so that she could hold a job, pay taxes, and support her family constituted a CIMT precluding removal relief while an individual who works under the table and pays no taxes would not be guilty of the same type of offense and remains eligible for relief. In a concurring opinion, Judge Richard Posner questioned the relevance and legitimacy of the idea of a crime involving moral turpitude, stating the phrase was grossly outdated and nearly impossible to actually define with specific crimes. The BIA will reconsider the case upon remand and render a final decision. If it issues a decision it deems precedential, the ruling will affect the eligibility of removal relief for potentially thousands of foreign nationals, often undocumented immigrants, working with false Social Security numbers. 8

9 News in Brief: The following additional items may be of interest to our readers: First-Time Third Country H-1B Applicants Can Apply in Vancouver for Their Visas: The U.S. Consulate General at Vancouver, B.C., Canada has confirmed that it will accept applications by third country nationals (non-canadians) applying for their first H-1B visa stamp, even if it is based on a university degree issued outside the U.S. or Canada. Normally, foreign nationals must appear at a U.S. consulate in their home country for the first visa stamp in a particular classification. All UK Citizens Now Eligible for Global Entry: DHS announced expansion of Global Entry eligibility to all citizens of the United Kingdom, effective 7/12/16. Previously, a limited pilot program through which only certain UK citizens were eligible to apply for participation in Global Entry had been in effect. Citizenship Discrimination Continues to be a Focus of DOJ Enforcement Activity: In the past few months, the DOJ s Office of Special Counsel for Immigration-Related Unfair Employment Practices has settled two more cases where employers have discriminated against noncitizens in their hiring practices. The settlements include fines against the employer and mandate that those responsible for hiring employees undergo I-9 compliance and discrimination training. Hartz Mountain Industries agreed to a settlement over a discrimination case with the Department of Justice (DOJ) after it posted a job advertisement that required U.S. citizenship for the position without any legal justification. The DOJ believed the job posting constituted citizenship discrimination. The fine of $1,500 was insignificant, but employers should be aware that restricting jobs without legal reasons to U.S. citizens and excluding others who are legally authorized to work in the United States is a form of discrimination that is unacceptable under U.S. law. Updates on TPS and Deferred Enforced Departure: The following is an update and roundup of the current status of Temporary Protected Status (TPS) for some 12 countries: El Salvador: DHS extended TPS for El Salvador for an additional 18 months, effective 9/10/16 through 3/9/18. The 60-day re-registration period expired on 9/6/16. Guinea: TPS for Guinea, which was set to expire on 11/21/16, was extended for six months for the purpose of an orderly transition, and will then terminate on 5/21/17. Haiti: A number of senators have urged the DOS and DHS to grant TPS to eligible Haitian nationals in the wake of Hurricane Matthew and the ongoing cholera epidemic. TPS had been granted to Haiti in 2010 in the wake of a devastating earthquake. While DHS issued a statement that removal flights to Haiti had been suspended temporarily 9

10 in light of Hurricane Mathew, it also advised that it intends to resume those flights as soon as possible. Honduras: DHS extended the designation of Honduras for TPS for 18 months, from 7/6/16 through 1/5/18. The 60-day re-registration period expired on 7/15/16. Liberia: Deferred Enforced Departure for certain Liberians was extended for an additional 18 months, from 10/1/16 through 3/31/18. USCIS will automatically extend for six months current DED-based EADs that have an expiration date of 9/30/16. These EADs will now be valid through 3/31/17. Nicaragua: DHS extended the designation of Nicaragua for TPS for 18 months, from 7/6/16 through 1/5/18. The 60-day re-registration period expired on 7/15/16. Nepal: Some 130 organizations have requested that DHS re-designate Nepal for TPS for an additional 18 months. TPS is set to expire on 12/21/16. Sierra Leone: TPS for Sierra Leone, which was set to expire on 11/21/16, was extended for six months for the purpose of an orderly transition, and will then terminate on 5/21/17. Sudan: DHS extended Sudan s designation for TPS, effective 5/3/2016 through 11/2/2017. South Sudan: DHS extended South Sudan s designation for TPS, effective 5/3/2016 through 11/2/2017. Syria: DHS extended and re-designated Syria for TPS for 18 months, from 10/1/16 through 3/31/18. The redesignation allows additional individuals who have not yet applied and who have been continuously residing in the U.S. since 8/1/16 to obtain TPS, if otherwise eligible. Yemen: TPS for Yemen was designated on 9/3/2015 for an additional 18 months, until 3/3/17. 10