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Seyfarth Synopsis: On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.

USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.  Over the last few months, the agency incrementally reinstated premium processing service for lower-volume filings including certain H-1B petitions that are not subject to the H-1B cap as well as H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program.  On September 18, 2017, the agency reinstated and will immediately accept premium processing requests for pending H-1B petitions that were filed under the Fiscal Year 2018 cap.  This includes H-1B petitions filed under the annual quota of 20,000 U.S. Master’s degree petitions as well as those filed under the general H-1B cap of 65,000 petitions.  Unfortunately, premium processing service remains suspended for H-1B petitions that are filed to extend an employee’s status or change employers.

When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.  This additional filing fee requires USCIS to adjudicate the petition within 15 days of receiving the request.  Petitions are either approved or a Request for Evidence (RFE) is issued by USCIS within that 15-day time period.  Premium processing requests can be filed with the initial filing of a petition, or at a later date by referencing the petition’s receipt number.  Since the quota of H-1B cap petitions has already been reached, this service is only available to currently pending H-1B cap cases for FY 2018.

With the reinstatement of this service, Employers should carefully review their pending H-1B cap lists and strongly consider submitting a premium processing request for any pending FY 2018 cap cases in which the beneficiary has an expired F-1 Optional Practical Training (OPT) employment authorization card and is relying on “Cap Gap” for work authorization through September 30, 2017.  Any beneficiary relying on “Cap Gap” whose H-1B petition is still pending on October 1, 2017 will lose employment authorization until his or her H-1B petition is approved.  Employers should also consider prioritizing premium processing requests for employees in a different status who are facing imminent expirations of work authorization as well as those with upcoming international travel plans that require an H-1B visa stamp for reentry.

Summary

Premium processing of FY 2018 cap H-1B petitions has resumed.  Your contacts at Seyfarth Shaw LLP will work with you to determine which cases should be considered for immediate premium processing upgrades.  In addition, we will continue to monitor USCIS announcements with regard to reinstatement of premium processing for other types of H-1B petitions.

Seyfarth Synopsis: The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.

“Congress, get ready to do your job – DACA,” tweets President Trump on Tuesday morning.   

End to DACA

The President’s tweet confirmed Sunday’s reports that the Trump administration will move forward with plans to wind down the Deferred Action for Childhood Arrivals (DACA) program following challenges to its legality by the attorneys general of several states.

Attorney General Sessions made a formal announcement this morning outlining an end to the Executive Action taken by President Obama in 2012, after Congress failed to pass the Dream Act in 2010.  The Administration confirmed that no action — meaning no loss of work authorization and/or removal of DACA recipients — will take place prior to March 2018.  This six-month period appears intended to provide Congress with a window within which to take the legislative action alluded to on the President’s Twitter account.

It is estimated that DACA provided work authorization to almost 800,000 “Dreamers” who were brought to the United States as children, many of whom know no other country.  Acting Department of Homeland Security (DHS) Secretary Elaine Duke released the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), and the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) simultaneously issued an FAQ outlining the particulars of the DACA rescission.  The DHS Fact Sheet confirms that, “effective immediately,” DHS:

  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents (EADs) that have been accepted as of September 5, 2017.
  • Will reject all DACA initial requests and associated applications for EADs filed after September 5, 2017.
  • Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of September 5, 2017..  The government will also accept extension applications from current beneficiaries whose employment authorization benefits will expire between September 5, 2017 and March 5, 2018 — as long as the application for extension benefits is filed on or before October 5, 2017.
  • Will reject all DACA renewal requests and associated applications for EADs filed outside of the parameters specified above.
  • Will not terminate the grants of previously issued deferred action or revoke EADs solely based on the directives in the memorandum for the remaining duration of their validity periods.
  • Will not approve any new applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection (CBP) will, of course, retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.
  • Will administratively close all pending applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
  • Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.

USCIS acknowledged that DACA recipients will retain deferred action and their EADs “until they expire, unless terminated or revoked.”  Notably, the FAQ  states that “DACA benefits are generally valid for two years from the date of issuance.”  Accordingly, as indicated above, it appears that USCIS will continue to issue EADs for current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017 for a two-year time period.  However, DHS has not yet directly clarified the period of validity for EAD renewals

Bi-Partisan Legislation in Support of DACA

Congress will likely refocus the debate related to the “dreamers,” and there are currently two main bipartisan bills in play that could grant status and a “pathway to citizenship” to the DACA population.

  1. Introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Jeff Flake (R-AZ), and Chuck Schumer (D-NY), the Dream Act of 2017 provides a path to U.S. citizenship for young undocumented immigrants with DACA or temporary protected status (TPS) who meet certain educational requirements, enter the workforce, or enlist in the military.  All must successfully pass a background check and remain eligible.
  2. The Recognizing America’s Children (RAC) Act would allow “dreamers” who arrived in the U.S. as minors prior to 2010 the ability to adjust their status — meaning to apply for U.S. permanent residence or a green card — if they meet certain educational or military requirements, successfully pass a background check, and remain in good legal standing.

The Business Community’s Support of DACA

Last Thursday, FWD.us published a letter from Leaders of American Industry on DACA, including CEOs/Founders/Executives from Facebook, Apple, Amazon, General Motors, Google, Hyatt, Levi Strauss, Netflix, and PayPal reminding the President and Congress that “Dreamers are vital to the future of our companies and our economy. With them, we grow and create jobs. They are part of why we will continue to have a global competitive advantage.”

Possible Workforce Impact from DACA and TPS Elimination

In light of the termination of DACA, as well as possible suspension of several TPS programs, U.S. companies may wish to conduct an assessment of the number of potentially affected individuals currently in their employ.  Seyfarth partner, and former USCIS Director, Leon Rodriguez, estimated “that the combination of the threats to TPS and to DACA mean that as many as 1 million workers could lose U.S. work authorization over approximately a two and one half year period,” in a Seyfarth client alert.

Recent Form I-9 guidance and auto-extension rules now force employers to review employment eligibility basis codes.  Reviewing these category codes which are listed on EADs, may provide a starting place to assess the impact of the loss of DACA and TPS recipients.  However, this type of undertaking should be carefully considered with the assistance of competent counsel to ensure that there are no anti-discrimination based missteps.

By: Jake Campbell, Gabriel Mozes, and Jason Burritt

Seyfarth Synopsis:  As of August 23, 2017, the U.S. Department of State (DOS) has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia.  NIV interviews will resume only at the U.S. Embassy in Moscow beginning September 1, 2017.  DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.  

In response to the Russian government’s decision to reduce the number of U.S. Department of State (DOS) staff working in Russia, DOS has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia as of August 23, 2017.  The suspension will last for a period of eight (8) days and, during this time, previously-scheduled visa appointments for temporary work, business, and visitor visas will be canceled.  According to DOS, NIV interviews will resume on September 1, 2017, but only at the U.S. Embassy in Moscow.  DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.

DOS will contact any affected applicants by e-mail for rescheduling.  Rescheduled applicants and new applications submitted at the U.S. Embassy in Moscow should expect considerable delays.  Priority consideration will be given to officials of the United Nations, international organizations with offices in the United States, and those requiring travel for medical or family emergencies.

In addition, the U.S. Embassy in Moscow and the U.S. Consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus.  DOS encourages Belarussian applicants to schedule NIV appointments at the U.S. Embassies in Warsaw, Kyiv, or Vilnius.  The decision to temporarily suspend NIV operations in Russia does not affect NIV applications outside of Russia, but U.S. Embassies and Consulates close to Russia may experience additional NIV processing delays.

By: Angelo Paparelli

Seyfarth Synopsis:  The EB-5 Immigrant Investment program is at a critical juncture. As Congress contemplates reform legislation, little is known about how newly appointed officials in the Department of Homeland Security will administer and enforce the EB-5 program. The President has named two new officers, Francis Cissna as Director of USCIS (subject to Senate confirmation), and Julie Kirchner, who has already begun to serve as the USCIS Ombudsman. Their past actions foretell only part of the EB-5 program’ s future. Time will tell the rest.

Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.

Facts: Former Senator Jeff Sessions (a stalwart opponent of legal immigration) is the Attorney General. Sen. Charles Grassley (no friend of the EB-5 program) has proposed legislation, with Sen. Dianne Feinstein, to eliminate the EB-5 program.

Facts: Trump Administration appointees and nominees have previously worked closely with Messrs. Sessions and Grassley, or with the Federation for American Immigration Reform (FAIR), a nonprofit widely regarded as an anti-immigrant advocacy group. The decisionmakers include:

Sessions alumni

Stephen Miller, now Senior Advisor to the President for Policy.

Gene Hamilton, now Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor.

Grassley alumni

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS).

Kathy Nuebel Kovarik, now Chief of the USCIS Office of Policy and Strategy.

FAIR alumni

Julie Kirchner, now USCIS Ombudsman.

Aside from Stephen Miller, reportedly an author or coauthor of Versions 1.0 and 2.0 of the controversial Executive Order described by the President as the “travel ban,” not much is known publicly about the intended policy positions of these individuals, except for Mr. Cissna[1] and Ms. Kirchner, [2]  both lawyers of strong pedigree.

Mr. Cissna has been most recently “detailed” to Sen. Grassley where he helped write S.2266,[3] the H-1B and L-1 Visa Reform Act of 2015  — a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits, as well as S.1501,[4] the American Job Creation and Investment Promotion Reform Act of 2015 — introduced by and Sen. Grassley and Sen. Leahy — which included an array of what have come to be known as EB-5 “integrity” measures.

Before and after his stint with Sen. Grassley, Mr. Cissna spent years as a lawyer at DHS immersed behind the scenes in immigration policy.  His testimony before the Senate Judiciary Committee and his written answers to questions from three Senators tell us how he intends to deal with the EB-5 program if approved as USCIS Director:

  • He will finalize the two prior rulemaking efforts of USCIS during the Obama Administration (an advance notice of proposed rulemaking and a proposed rule) into final effect “according to the process set forth in the Administrative Procedure Act and related DHS and OMB [Office of Management and Budget] guidance.”[5]
  • He is “committed to enforcing USCIS policies ensuring the integrity of all USCIS adjudications, no matter who the applicant or petitioner is, as well as policy deliberations, including their independence from any inappropriate external influences.”[6]
  • He has observed that the “USCIS Ombudsman and the USCIS director should maintain an independent, yet respectful and cooperative relationship, as both share the goal of improving USCIS” and acknowledged the “USCIS Director’s statutory obligation to ‘meet regularly with the Ombudsman . . . to correct serious service problems identified by the Ombudsman . . .’”[7]
  • He confirmed his intention to “strive to ensure that the agency carries out its mission in a fair, lawful, efficient, and expeditious manner.”[8]

Before becoming the Ombudsman, Ms. Kirchner apparently did not make any public statements revealing her personal views on the EB-5 program.[9]   During her tenure as Executive Director of FAIR, however, the organization actively opposed EB-5 program.[10]

In accepting her position and taking her oath of office, Ms. Kirchner is no doubt aware of Section 452 of the Homeland Security Act, the statutory mandate prescribing the authority and duties of the Ombudsman, which provides:

Section 452 of the Homeland Security Act (HSA) provides:

(a) IN GENERAL – Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the ‘Ombudsman’). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law.

(b) FUNCTIONS – It shall be the function of the Ombudsman—

1) To assist individuals and employers in resolving problems with [U.S.]  Citizenship and Immigration Services;

2) To identify areas in which individuals and employers have problems in dealing with [U.S.]  Citizenship and Immigration Services; and

3) To the extent possible, to propose changes in the administrative practices of [U.S.]  Citizenship and Immigration Services to mitigate problems identified under paragraph (2).

In addition, Section 452(c)(F) of the HSA requires the Ombudsman to report annually to Congress and recommend “such administrative action as may be appropriate to resolve problems encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applications[.]”[11]

The responsibilities of the Ombudsman are particularly significant given that in August 2015 USCIS published a set of EB-5 “Protocols,” which limited the direct intervention of USCIS leadership in specific EB-5 cases, but exempted the USCIS Ombudsman from its prohibitions.[12] Since direct outreach to USCIS senior leadership in specific cases is now greatly restricted, the statutory role of the USCIS Ombudsman in assisting “individuals and employers in resolving problems with” USCIS becomes essentially the only way that EB-5 stakeholders can raise quality assurance problems in specific cases.  To be sure, the USCIS Office of Public Engagement (OPE) conducts regular EB-5 stakeholder engagements and listening sessions. These OPE opportunities, however, are often structured to preclude posing questions or concerns about specific cases.

Ms. Kirchner, the fifth individual to hold the title of Ombudsman, will likely review and adapt for herself the varying approaches of her predecessors.  At least one Ombudsman took a more aggressive approach, which understandably produced resistance at USCIS.  Others in varying degrees have been more or less assertive, innovative, affable and collaborative in finding ways to communicate directly with USCIS Service Center adjudicators and help resolve individual and employer  problems.

So, how much power does an Ombudsman have in interacting with USCIS?  As a matter of historic practice, prior incumbents often achieved a measure of success by acting as disinterested intermediaries, but did not offer or make public the Office’s own interpretations of the Immigration and Nationality Act (INA), deferring instead to USCIS.  As a coequal component of DHS with USCIS, however, the Ombudsman  is authorized by its mandate in HSA § 452(b)(2) and (b)(3) to “identify” problematic areas in the public’s “dealing with [USCIS]” and to “propose changes in the administrative practices” of USCIS.

Clearly, therefore, the Ombudsman’s duties of identifying problems and proposing changes to USCIS’s administrative practices are sufficiently broad to include problems and practices stemming from misinterpretations of the INA and agency regulations.  A recent instance in which a legal interpretation by the Ombudsman would have been appropriate and welcome is on long-unresolved issues of the period during which EB-5 conditional resident’s funds must be redeployed and whether the redeployment must be in “at-risk” assets once the investment project has concluded but before conditions on residency have been removed.[13]

Knowledgeable immigration lawyers recognize that the role of the Secretary of Homeland Security, and the Department’s component agency, USCIS, is to “administer” and “enforce” the INA and all other immigration laws, whereas the Attorney General possesses exclusive authority within the Executive Branch to determine and rule on all questions of law.[14]

Since the Ombudsman’s role is to identify problematic areas in the public’s dealings with USCIS and to propose changes in its administrative practices, the Ombudsman undoubtedly holds coequal authority with USCIS to challenge the latter’s legally unsupportable and troublesome administrative interpretations of the law and regulations underpinning the EB-5 program, subject only to the Attorney General’s power to conclusively determine questions of law that are binding within the Executive Branch.

Recently, Ms. Kirchner provided welcome insights on the EB-5 program. In the Ombudsman’s 2017 Report to Congress, she acknowledged the adverse consequences caused by the lack of robust anti-fraud and national- security protections, and by the failure of the House and Senate to agree on a permanent or multi-year reauthorization of the Regional Center program. Concerning the unfortunate pattern of successive short-term EB-5 Regional-Center reauthorizations, Ms. Kirchner observed:

Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework,and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program.[15]

In addition, Ms. Kirchner observed in her 2017 Report that extremely long backlogs in EB-5 adjudications at USCIS continue to plague the program, and, with regard to the predominant segment of all EB-5 investors, namely, individuals born in mainland China, that the lack of annual EB-5 immigrant visa numbers “will likely [require them to] wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.”[16]

One troubling observation in the 2017 Report hinted that the Office of the Ombudsman may not offer its own independent statutory and regulatory analysis in situations where USCIS’s policy guidance appears to deviate from the INA and agency regulations, even though the views of USCIS cause problems for individuals and businesses:

In November 2016, USCIS released an addition to its Policy Manual titled “Investors.” This six-chapter policy treatment is a significant achievement, as it synthesized and aligned the agency’s regulations, decisional law, policies, and procedures with enabling statutes. Given the complexity of the EB-5 Program, the creation of this comprehensive and authoritative resource has been well received by EB-5 stakeholders.[17]

This statement no doubt comes as a surprise to many external EB-5 legal experts. The lawyers who submitted an eight-page AILA Comment replete with numerous and wide-ranging suggested corrections to the EB-5 chapters in the USCIS Policy Manual would likely disagree with the characterization that this sub-regulatory guidance can be fairly characterized as a “comprehensive and authoritative resource [that] has been well received by EB-5 stakeholders.” Thus, it remains to be seen just how much future federal litigation (likely brought under the Administrative Procedure Act, the INA, and other statutes) will be spawned raising substantive legal questions on the degree to which the manual is in fact comprehensive or authoritative. Hence, scholars of EB-5 jurisprudence must stay tuned as EB-5 jurisprudence evolves.

* * *

In the final analysis, insufficient hard facts are known to foretell how Mr. Cissna, Ms. Kirchner, and their respective agencies will discharge their responsibilities under the immigration laws. As noted, they are both accomplished lawyers, and during their respective honeymoon periods, EB-5 stakeholders should accord them the respect and confidence, consistent with existing rules of professional responsibility, that the views of their former employers are not necessarily predictive of their future policies.[18]

Time will tell whether and how well Ms. Kirchner and Mr. Cissna engage together in resolving EB-5 stakeholder concerns over backlog reduction, wayward adjudications, kitchen-sink requests for additional evidence, and other frustrations.  Until more is known about real-world actions of the Ombudsman and adjudications at USCIS, EB-5 stakeholders and their immigration lawyers must decide for themselves whether resort to Ombudsman intercession will more likely help or hurt regional centers and immigrant investors in specific cases. The calculus in approaching or avoiding the Ombudsman should be based on a variety of factors, such as, the financial strength of the project and its potential or actual job-creation activities; the factually-demonstrable urgency in receiving an adjudication; the presence or absence of red-flag factual or legal issues; and the likelihood that the particular case presents issues that, once resolved, would benefit multiple EB-5 stakeholders, and thereby allow the Ombudsman to husband its scarce resources, and get more bang for its intercessory buck; and other relevant  considerations.

This author believes that USCIS (under Mr. Cissna) and the Office of the USCIS Ombudsman (under Ms. Kirchner) will be led in good faith by talented and accomplished lawyers who have taken oaths to support and uphold the Constitution and the immigration laws of the United States, unless either of them, by their conduct, demonstrates otherwise.

For the time being, as a matter of fact, this author will continue to seek the intervention of the Ombudsman in worthy cases, given that (a) Office of the Ombudsman continues to be staffed by experienced lawyers and other career officers who have historically been helpful in employment-based immigration matters, (b) the EB-5 program continues to be a tax-generating engine of economic growth and job creation, and (c) fully law-compliant EB-5 petitions continue to encounter “problems” at USCIS.

As for USCIS itself, the agency’s widely-known endemic problems continue to cry out for resolution.  Submission of well-documented cases establishing EB-5 eligibility, participation in public engagement, advocacy at public conferences and through print and social media, and litigation — this author believes — remain the tools of choice.

Footnotes:

[1] Mr. Cissna’s legal career is outlined in his answers to the questionnaire of the Senate Judiciary Committee, accessible here (unless otherwise noted, all links are current as of June 12, 2017).

[2] Ms. Kirchner’s official biography can be found here.

[3] S.2266 is available here.

[4] S.1501 is available here.

[5] May 27, 2017 Responses of Lee Francis Cissna to Questions for the Record from Sen. Dianne Feinstein), available here, No. 11 (Responses).

[6] Responses to Sen. Durbin, available here, No. 9.  Sen. Durbin expressly asked “How would you ensure that President Trump’s family business interests won’t affect the adjudication of [the EB-5 program] . . . or the consideration of possible reforms to [the program].”

[7] Responses to Sen. Durbin, No. 6.

[8] Responses to Sen. Feinstein, No. 2.  In the preface to her question Sen. Feinstein stated that “one of the agency’s strategic goals is ‘providing effective customer-oriented immigration benefit and information services’ . . . [and] one of USCIS’s core customer service principles is ‘to approach each case objectively and adjudicate each case in a thorough and fair manner.’”

[9] Based on the remarks made by a representative of the USCIS Ombudsman at the Federal Bar Association Annual Immigration Conference on May 12, 2017, Ms. Kirchner reportedly has indicated to staff that she is interested in the EB-5 investor program, the H-1B visa category and other areas of employment-based immigration law.

[10] Ms. Kirchner is listed, for example, as a lobbyist in 2012 concerning  S.3245 sponsored by Sen. Leahy, a bill to “permanently reauthorize the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program,” regarding provisions  “relating to more controversial issues in three of the four programs because of significant deficiencies in oversight and fraud.” See Form LD-2 for Third Quarter 2012, available here.  Also, in 2012, while Ms. Kirchner served as FAIR’s Executive Director, the organization published “Selling America Short: The Failure of the EB-5 Visa Program,” available here.

[11] As discussed in the text below, on June 29, 2017 Ms. Kirchner, in her formal capacity as Ombudsman, submitted to Congress her Office’s  2017 Annual Report (“2017 Report”).  The report, discussed later in the text, is available here (last accessed on July 12, 2017).

[12] Entitled, “Ethics and Integrity: Protocols for Processing of EB-5 Immigrant Investor Visa Petitions and EB-5 Regional Center Applications, Including Stakeholder Communications,” the document is available here.

[13] The USCIS’s continuing at-risk “sustainment” requirement for redeployed funds, lasting until conditions on residency have been removed, is an issue that begs for interpretation by the USCIS Ombudsman. See June 14, 2017 USCIS Policy Alert, “Job Creation and Capital At Risk Requirements for Adjudication of Form I-526 and Form I-829,” (accessible here) and amendments to the USCIS Policy Manual at Volume 6: Immigrants, Part G, Investors [6 USCIS-PM G] (accessible here). See also, “USCIS Finalizes EB-5 Sustainment and Redeployment of Capital Issues and Consequences of Regional Center Termination,” by Robert C. Divine in the current issue. For arguments opposing the USCIS redeployment and sustainment interpretations, see American Immigration Lawyers Association Comments on the USCIS Policy Manual Regarding Eligibility Requirements for Regional Centers and Immigrant Investors. Volume 6: Immigrants, Part G, Investors (December 14, 2016; AILA Doc. No. 16121565 Posted 12/15/16 [“AILA Comment”]), at pp 6-7 (noting that the at-risk requirement is a creature of the regulations and not the INA, and that as a matter of law the EB-5 investment need merely be “… sustained over the two years of the petitioner’s conditional permanent residence in the United States”).

[14] See INA § 103(a).

[15] See, 2017 Annual Report at 32 (footnotes omitted).

[16] Id. at 33.

[17] Id. at 31-32 (footnotes omitted).

[18] Rules of legal ethics generally hold that “a lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” See American Bar Association Model Rules of Professional Conduct Rule 1.2(b)(“Scope Of Representation And Allocation Of Authority Between Client And Lawyer”), accessible here. The author understands that Ms. Kirchner apparently did not serve as an attorney of FAIR, but as its Executive Director. In this author’s view, however, merely because an individual on behalf of a prior employer has opposed immigration relief for unauthorized immigrants (see, e.g., Ms. Kirchner’s November 8, 2007 testimony before Congress to that effect, accessible here) does not require or necessarily justify the conclusion that she would ipso facto take steps to maintain America’s legal immigration system in its clearly dysfunctional state.

By Dawn Lurie, Mahsa Aliaskari, and Jason Burritt

Seyfarth Synopsis: USCIS released a revised version of Form I-9 that employers must use to verify identity and employment authorization of new hires effective September 18, 2017. There are no substantive changes from the current Form I-9, which USCIS issued in November 2016 and considered a major overhaul.  Employers are urged to utilize the roll out of the new Form I-9 as an opportunity to offer I-9, E-Verify and Antidiscrimination training, to assess their state of immigration compliance and to address necessary remediation.  

As expected, the U.S. Citizenship and Immigration Services (USCIS)  released a revised version of Form I-9, Employment Eligibility Verification, on July 17.  Employers can use this new Form I-9 or continue using the  Form I-9 with a revision date of 11/14/16 N through September 17.  As of September 18, employers may only use the new form with a revision date of 07/17/17 N; no other versions will be acceptable.  The issuance of the new form does not necessitate employers  “redoing” previously completed Form I-9s, this is going forward only.

What’s New?

In the Form I-9 instructions:

  • Updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER). Given the lack of any true substantive updates, it appears this name change is the main reason for the form update.
  • Removed “the end of” from the phrase “the first day of employment.”

In the List of Acceptable Documents:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C and made it easy to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3 (in the dynamic Form I-9) and to identify it in E-Verify.
  • Combined the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • Renumbered all List C documents except the Social Security card into an easier format.

In the new M-274, Handbook for Employers:

  • USCIS reflected these changes and endeavored to simplify the format.

What’s the Same?

No changes to storage – which means that employers may still keep Form I-9s in a single format or a combination of formats, such as paper, microfilm or microfiche, or electronic.  For paper I-9s, we continue to recommend a three “binder system” consisting of Active, Reverifications and Terminated I-9s.  Employer should keep all of the forms separate from personnel folders and safeguarded due to privacy concerns.

For electronic users, this version’s updates should not be as difficult as the one released in November of 2016.  However, it is important to note that keeping up with version changes, as well as USCIS directives on how to record certain status updates or other bits and pieces of information,  is clearly an issue for some Electronic I-9 vendors.  For those employers considering electronic systems, or already using an electronic I-9, it is critical to conduct due diligence to ensure that the product complies with the regulations and guidance.  Not all systems meet the electronic I-9 regulations, and the mere fact a large vendor sells the product does not necessarily render the product compliant.  We expect that Immigration and Customs Enforcement (ICE) will begin to develop and showcase an expertise in this area in the near future.

No changes to retention – which means that employers should retain all Form I-9’s for active employees as well as all Form I-9’s for terminated employees for three years from the date of hire or one year from the date of termination, whichever is later.

No relief for employers with remote workforces – which means that the person who completes Section 2 must see the new hire in person, the original documents presented for Section 2, and record the documents in Section 2.  No Skype, no Facetime, no WhatsApp, no Instagraming, no scanning and no faxing.

What Should We Do Now?

The 60 day transition period for employers and electronic I-9 vendors provided by the government should be used for more than deprecating the old Form and introducing the 7/17/17 version before September 18, 2017.  In fact, we recommend that companies immediately begin to use the new Form and notify their HR and other staff of the change.  This is an excellent opportunity to also offer I-9, antidiscrimination and E-Verify related trainings as well as to review immigration related policies and handbooks (or to start thinking about developing them).  Given the focus on compliance by the new administration, immigration related efforts should prove time and money well spent.  There is speculation that increased worksite enforcement, greater scrutiny and less tolerance for companies with I-9 related issues is on the horizon.  Now is the time to schedule experienced immigration compliance counsel for an on-site proactive I-9 review, including access to those that own the I-9 “process” on the ground.  This review should include observations focusing on the implementation of well-intended standard operating procedures.  Site visits and /or direct discussions are critical to assessing and identifying potential I-9 related  liabilities.  The chance to remediate on your own timeline, and not that of the government, is priceless; proactive remediation is key.

Interested in an immigration compliance assessment?  Contact the authors or your relationship partner at Seyfarth.

Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration’s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.

Further, the Court has reinstated the travel ban for the six countries, but only insofar as it relates to foreign nationals who lack a bona fide relationship with a U.S. person or entity. Examples of individuals who do possess a bona fide relationship with a U.S. entity include students enrolled at U.S. universities and employees of U.S. companies.  Conversely, foreign nationals from the affected countries wishing to visit solely for tourism may encounter significant challenges entering the U.S.

This ruling will not impact U.S. employers that employ foreign nationals from any of the affected countries. U.S. employers may continue to sponsor their employees for employment-based visa petitions, and employees may continue to apply for work visas at U.S. Embassies and Consulates. However, all foreign nationals from these countries should nevertheless exercise caution when travelling to the U.S., as they can expect to face lengthy delays and questioning at the border as part of the administration’s ongoing “extreme vetting” measures.

Seyfarth Shaw is monitoring the developments closely, and will publish updated information accordingly.

Immigration, Refugees and Citizenship Canada (“IRCC”) has launched a Global Skills Strategy to facilitate the entry of skilled workers to Canada, which is effective immediately. The Strategy focuses on a two-week processing standard for certain Labour Market Impact Assessment (“LMIA”)-exempt work permit applications and two brand new work permit exemptions, as part of Canada’s Global Skills Strategy.

Two-Week Work Permit Processing Standard

Certain LMIA-exempt work permit applications made outside of Canada at a Canadian Consulate are now eligible for expedited two-week processing, including LMIA-exempt work permit applications for employees performing work at Skill Level 0 or A of the National Occupational Classification (“NOC”). Therefore, NAFTA Professionals and Intra-company Transferees in high-skilled occupations, such as IT professionals, Management Consultants and senior managers, can benefit from this new processing standard. Historically, and for those not eligible for the new two-week standard, it would typically take about ten weeks at the Consulate General of Canada in New York.

In addition, corresponding applications for any accompanying family members, including open work permits for spouses and study permits for dependents, are eligible for two-week processing. Applications made inside Canada are not eligible for this new, expedited two-week processing.

Please note there is no additional premium processing fee for applications eligible for expedited two-week processing.

Single-Entry Short-Term Work Permit Exemption for High Skilled Workers

Workers with a job offer for a position under NOC Skill Level 0 or A are now eligible for a work permit exemption of up to 15 consecutive calendar days every six (6) months, or up to 30 consecutive calendar days every 12 months. This means that workers who qualify for this exemption may work in Canada within these timeframes without first obtaining a work permit. Individuals must apply for this exemption from outside of Canada or at a port of entry. This exemption is not available for applicants submitting applications from within Canada.

Continue Reading Canada Launches Global Skills Strategy to Fast-Track Short-Term Entry of High-Skilled Workers

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and includes the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visit; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past five years.

The supplemental questionnaire will not be required of all visa applicants. As part of the visa application interview and screening process, Visa Officers will decide when the individual visa applicant’s background warrants additional security checks. Previous travel by the visa applicant to areas controlled by terrorist groups is expected to make it more likely that the supplemental questionnaire will be requested. The U.S. Department of State estimates that approximately 65,000 people (less than 1% of 13 million visa applicants worldwide) may be requested to complete the supplemental questionnaire each year.

Continue Reading Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information

The order in question is the Trump Administration’s revised Executive Order of March 6, 2017 (“revised EO”). The revised EO would have temporarily restricted certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for a period of 90 days. The revised EO sought to resolve constitutional issues and ambiguities related to the initial Executive Order signed on January 27, 2017.

In early May 2017, a 13-judge panel of the 4th Circuit heard arguments over the revised EO and on May 25, 2017, the court issued its decision to uphold the preliminary injunction. Writing on behalf of the majority, Chief Judge Roger Gregory stated that the travel ban “drips with religious intolerance, animus, and discrimination.”  The judges ruled 10-3 to affirm in substantial part the earlier decisions that had blocked the ban, citing the violation of the First Amendment as authority to decline reinstatement of the travel ban.  The court rejected the Trump Administration’s argument that the travel ban was a matter of national security.

The Trump Administration can seek Supreme Court review of the Fourth Court decision. If the Supreme Court decides to hear the case, arguments would not commence until the Fall 2017 term.

At a program held today at Seyfarth Shaw’s offices in Chicago, partners Jim King and Leon Rodriguez discussed rapidly developing changes in business immigration in the first 100 days of the Trump administration.  King serves as co-chair of the Business Immigration Group and Rodriguez is the most recent director of United States Citizenship and Immigration Services.

King and Rodriguez identified changes flowing from a series of executive orders issued by President Trump since inauguration which direct changes in areas including arrival of foreign travelers in the United States, screening of visa applicants and immigration enforcement in the interior of the United States.  King and Rodriguez also discussed possible policy changes that could operate to change and possibly restrict the availability of employment-based visas to the United States.

Continue Reading SEYFARTH BUSINESS IMMIGRATION GROUP PARTNERS JIM KING AND LEON RODRIGUEZ DISCUSS IMMIGRATION TRENDS BEFORE CHICAGO AREA BUSINESS LEADERS