By Dawn M. Lurie, Jason E. Burritt, and Gabriel Mozes

Seyfarth SynopsisWithin the last few days, the Trump Administration has expanded an existing travel ban and initiated a new one related to the Coronavirus; similarly other countries have added entry restrictions to try to stem the spread of the virus. 

Say hello to “Travel Ban 4.0”. In previous communications[1], we provided guidance on the divided Supreme Court 5-4 ruling, upholding the “Travel Ban 3.0” on June 26, 2019. Last week, six (6) additional countries were added to the existing list of those affected by the Travel Ban.  In the newest iteration of the Travel Ban, the limitations are focused on immigrants only. In fact, nonimmigrants were excluded in the Proclamation, meaning foreign students in F-1 status and foreign workers holding other visas such as H-1B, L-1 and E, should not be directly affected.

Employers with employees from the six new countries should review all travel-related risks to determine if the restrictions will have any impact on the business. In limited instances, it could be important to understand the specific visa and entry permissions for each country as it relates to their employees. Universities should continue to provide updates to the faculty, and continue to provide assistance to the affected population.

Who Is and Who Is Not Affected by the Ban

Which countries are affected?

The original travel ban cited the Trump Administration’s concerns that certain countries lack capacity in “respect to their identity-management and information-sharing capabilities, protocols, and practices”[2]. The new Travel Ban now affects nationals of a total of thirteen countries (Eritrea, Iran, Libya, Kyrgyzstan, Myanmar (Burma), Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen) mostly due to the countries’ non-compliance with the identity verification and information-sharing regulations that are outlined in the Proclamation. Pursuant to Executive Order 13780, the Department of Homeland Security (DHS) “established certain identity-management, information sharing, national security, and public safety risk criteria all foreign governments are expected to adhere to in order to facilitate accurate and fair admissibility decisions under the Immigration and Nationality Act.” DHS spoke about the Proclamation and stated “[t]his enhanced review process raises the bar for global security by requiring nations to meet the Department’s stronger security standards and by making it clear to countries what they must do to meet those standards. The updated criteria enhance our screening and vetting capabilities and allow DHS to better identify terrorists and criminals attempting to enter the United States.” DHS stated that the review process allowed the President to customize the actions taken by the U.S. government and in fact allowed for less stringent mandates in Travel Ban 4.0 as compared to 3.0.

What is the scope of the current Travel Ban?

The Travel Ban only applies to specifics individuals from the above-mentioned countries who:

  1. Are outside of the U.S.;
  2. Do not have a visa that was valid as of the applicable effective date (either September 24, 2017 or October 18, 2017); and
  3. Do not have a waiver or other travel document.

In the latest Proclamation, President Trump notes that he has “decided not to impose any nonimmigrant visa restrictions for the newly identified countries, which substantially reduces the number of people affected by the proposed restrictions.” This is somewhat puzzling as the immigrant visa security review process is more thorough than the nonimmigrant visa process. This difference diverges from the  prior ban as it affected both types of visas.

The Cheat Sheet (Newly added countries in bold):

Country

Nonimmigrant Visas affected by the Ban

 

Immigrant Visas (including Diversity Visas) affected by the Ban.

 

Eritrea All immigrants except Special Immigrants whose eligibility is based on having provided assistance to the United States Government
Iran All nonimmigrant visas except F, M, and J visas, with enhanced screening All immigrants
Kyrgyzstan All immigrants are banned except Special Immigrants whose eligibility is based on having provided assistance to the United States Government
Libya All B-1/B-2 tourist or business visas; Entry under other types of nonimmigrant visas is not suspended All immigrants
Myanmar (Burma) All immigrants are banned, except Special Immigrants whose eligibility is based on having provided assistance to the United States Government
Nigeria All immigrants are banned, except Special Immigrants whose eligibility is based on having provided assistance to the United States Government
North Korea All nonimmigrant visas All immigrants
Somalia Enhanced screening of all nonimmigrants All immigrants
Sudan All immigrants under the Diversity Lottery Program
Syria All nonimmigrant visas All immigrants
Tanzania All immigrants under the Diversity Lottery Program
Venezuela All B-1, B-2 or B-1/B-2 visas of any kind for officials (and their immediate family members) of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs.
Yemen No B-1/B-2 tourist or business visas; Entry under other types of nonimmigrant visas is not suspended All  immigrants

 

Are there exceptions?

In addition to exceptions for any national who was in the U.S., and any national who had a visa on the effective date of the Proclamation (regardless of immigration status), the following are exempt from the Travel Ban:

  • Permanent residents (e.g. green card holders);
  • Dual nationals traveling on a passport from a country that is not affected by the Travel Ban;
  • Diplomats (holding NATA, C-2/UN , G-1, G-2, G-3, or G-4 visas);
  • Individuals traveling on advance parole, transportation letters, or boarding “foils” valid on or after the applicable effective date;
  • Refugees who are already in the U.S.:
  • Asylees granted asylum by the U.S.; and
  • Individuals granted withholding, advance parole or protection based on the Convention Against Torture.

Are There Any Waivers?

Yes, there are waivers to the Travel Ban. A waiver is permission to obtain a U.S. visa, even though the Travel Ban renders an individual ineligible to obtain the visa. There are certain exceptions available for people who can prove the following to US State Department Consular Officers or a Customs and Border Protection (CBP) officials satisfaction that:

  1. They will suffer “undue hardship” if denied entry;
  2. Their entry would not pose a threat to the national security or public safety of the United States; and
  3. Their entry would be in the national interest.

What about Foreign Students?

While the Supreme Court decision granted exceptions for student visas issued to nationals of Iran, we predicted that the road ahead would be difficult for these students. This has been the case as many individuals have been denied entry, even with valid student visas. Again, while the latest Travel Ban does NOT include students, as it is focused solely on immigrant visas, students from all affected countries should expect additional scrutiny at the border as well as at U.S. consular posts when applying for visa stamps.

What’s Next? 

The Travel Ban saga continues to be complicated. We expect the Trump Administration to continue to add additional countries and/or restrictions that expands the current Proclamation. Further reviews will be undertaken by DHS in conjunction with other agencies, in an attempt to reevaluate the current state and methodologies used in issuing the Proclamation. In the interim any travel should be carefully considered.

Coronavirus Travel Restrictions

In addition to the Travel Ban expansion, Coronavirus travel restrictions have been implemented by many countries worldwide.  With respect to travel to the U.S., DHS issued new travel restrictions for flights that carry passengers who have recently been in mainland China. Starting Sunday, February 2nd at 5 pm EST, entry to the U.S. has been suspended for any immigrants or nonimmigrants who were physically present within mainland China (e.g. excluding the Special Administrative Regions of Hong Kong and Macau) during the 14-day period preceding their entry or attempted entry into the U.S., subject to the following travelers excluded from the ban:

  1. Permanent residents (e.g. green card holders);
  2. Spouses of U.S. citizens or permanent residents;
  3. Parents or legal guardians of U.S. citizens or permanent residents, provided that the U.S. citizen or permanent resident is unmarried and under the age of 21;
  4. Siblings of U.S. citizens or permanent residents, provided that both are unmarried and under the age of 21;
  5. Children, foster children, or wards of U.S. citizens or permanent residents, or prospective adoptees seeking to enter the U.S. pursuant to the IR-4 or IH-4 visa classifications;
  6. Those coming to the U.S. by invitation of the U.S. government for a purpose related to containment or mitigation of the virus;
  7. Individuals traveling as crewmembers pursuant to C or D nonimmigrant status, or otherwise traveling to the U.S. as air or sea crew;
  8. Individuals traveling as foreign government officials or their immediate family (e.g. A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa);
  9. Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
  10. Individuals whose entry would further advance U.S. law enforcement objectives; or,
  11. Individuals whose entry would be in the national interest.

In addition, all flights coming to the U.S. carrying persons that were in mainland China within 14 days of their arrival to the U.S. must land at one of twenty designated airports where the Center for Disease Control (CDC) will perform enhanced health screenings on the passengers of these flights upon arrival. These restrictions will remain in effect until cancelled or modified by DHS through a subsequent notice in the Federal Register.

Currently, the twenty designated airports include the following:

  1. Los Angeles International
  2. John F. Kennedy International
  3. O’Hare International
  4. San Francisco International
  5. Atlanta’s Hartsfield-Jackson
  6. Anchorage Ted Stevens International
  7. Boston Logan International
  8. Dallas-Fort Worth International
  9. Detroit Metropolitan
  10. El Paso International
  11. Honolulu International
  12. Houston George Bush International
  13. Miami International
  14. Minneapolis-St. Paul International
  15. Newark Liberty International
  16. Philadelphia International
  17. Puerto Rico’s San Juan International
  18. San Diego International
  19. Seattle-Tacoma International
  20. Washington Dulles International

This list of airports may be modified by the DHS Secretary, in consultation with the Secretaries of Transportation and Health and Human Services.

Given the uncertainty and fluidity of this situation, it is recommended to avoid travel to mainland China where possible.

Please find below a few specific examples that may help to coordinate international travel in these jurisdictions and provide information about impact on immigration processes.

  1. Hong Kong closed the border for residents of Hubei and anyone who has visited Hubei in the last 14 days. Additionally, Hong Kong limits travel between Hong Kong and mainland China. This limitation includes reducing the number of flights to and from mainland China, and suspending the MTR’s intercity services. West Kowloon station, which serves the Guangzhou-Shenzhen-Hong Kong Express Rail Link, and land crossings with mainland China are also closed, except the bridges to Zhuhai and Macau, the bridge to Shenzhen, and the airport remain open.
  2. As of February 2, 2020 all new visitors with recent travel history to mainland China will not be allowed to enter Singapore, and Chinese passport holders whose passports were issued in Hubei, will not be allowed entry into Singapore. While Singapore citizens, permanent residents and long-term pass holders who have visited Hubei in the last 14 days, as well as Chinese passport holders with passports issued in Hubei, may still enter but they will be quarantined.
  3. The Ministry of Manpower in Singapore will reject all new work pass applications for foreign nationals from mainland China until further notice.
  4. Taiwan closed the border for Chinese visitors from the Hubei Province. Even Chinese citizens who already hold an entry permit may not enter Taiwan. Taiwanese, non-mainland Chinese, and other foreign passport holders traveling from China are currently still allowed to enter Taiwan; they must conduct self-health management for 14 days.
  5. Since February 1, 2020, Australia has banned entry of all travelers arriving from mainland China. Exceptions apply to citizens and permanent residents of Australia and their immediate family members, however, they will be required to self-isolate for 14 days from the time they left mainland China.
  6. New Zealand follows the same policy; all foreign nationals who have departed from or transited through mainland China since February 2, 2020 are not allowed entry. New Zealand citizens, permanent residents and their immediate family members may enter New Zealand, but they must also self-isolate for the first 14 days of arrival.
  7. All flights between China and Vietnam have been cancelled; there may still be limited flights from and to Hong Kong and Taiwan.
  8. Vietnamese consular posts in mainland China and Hong Kong have stopped issuing visas (tourist or business) or accepting visa applications. This applies to all applicants, not only Chinese citizens.
  9. The Philippines close their border for all nationalities, except Filipino citizens and holders of Permanent Resident Visa issued by the Philippine Government, directly coming from China and its Special Administrative Regions as of February 2, 2020. This also applies to travelers who had visited China and its Special Administrative Region during the past 14 days preceding arrival in the Philippines. Filipino citizens and holders of Permanent Resident Visa face a mandatory 14-day quarantine.  The Philippines also impose a temporary ban on Filipinos travelling to China and its Special Administrative Regions.
  10. South Korea does not allow entry for all foreign nationals who have stayed in or visited Hubei as of February 4, 2020. Chinese nationals who have visited Hubei in the last 14 days will not be allowed entry on the visa waiver program.
  11. The following countries also impose travel restrictions by either suspending issuance of visas, denial of entry or even closing the borders to China to all traffic: India, Indonesia, Macao, Japan, Malaysia, UAE, Kazakhstan, Sri Lanka, Russia, Mongolia and Nepal.

[1] We have also written previously about the January 27, 2017 Executive Order, (EO 13769) (and the related February, 2017 temporary restraining order), the second, March 6, 2017 Executive Order, (EO 13780) ,as well as the third September 24, 2017 Presidential Proclamation 9645, or Travel Ban 3.0 entitled Enhancing Vetting Capabilities and Processes For Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.  We followed along as federal judges in Hawaii and Maryland issued orders that blockedmajor portions of President Trump’s September 24, 2017 Presidential Proclamation.  We also blogged about the Supreme Court’s previous ruling that partially enforced the Travel Ban by staying the preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. These injunctions had partially blocked Travel Ban 3.0 for those individuals who could demonstrate they had a bona fide relationship with a person or entity in the United States. We then chronicled the Trump Administration as they amended the Presidential Proclamation on April 10, 2018 which removed restrictions imposed on nationals of Chad, citing the country’s improvements to security. Finally, we reported on the June 26, 2018 Supreme Court ruling upholding the Travel Ban’s latest iteration on July 10, 2018.

[2] See the Proclamation at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/

[3] See the article at https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f

 

President Trump’s October 9, 2019 overtures landed as music to the ears of many a grizzled immigration lawyer who persistently suffers battle fatigue from the culture of virtually never.  On that day the President released a double album, each with artfully penned liner notes:

The songs of TAFCAEA and IAGD,  resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:

  • publish clear guidance rules that spell out permissible and prohibited conduct by regulated parties;
  • eliminate instances of “unfair surprise” so that members of the public (the regulated community) are not blindsided by unforeseen changes in how the agencies interpret federal laws;
  • place any purportedly binding agency rules not published in the Federal Register (known as sub-regulatory guidance) into an indexed and searchable section of each agency’s website (or else, the “rules” go away); and
  • soon announce rules of procedure governing administrative inspections and then be held accountable to comply with the published ground rules.

Continue Reading The Trump Administration Releases a New Hymnal to Curb the Administrative State; Immigration Lawyers Erupt in Rapturous Song

By: Angelo Paparelli

Seyfarth Synopsis: The legal cannabis business is spreading like weeds.  As several states and foreign countries have enacted laws decriminalizing or legalizing marijuana for medicinal or recreational use, a fresh rush of reefer madness has overtaken the business world.  Investments in the cannabis industry are now available as ETFs (Exchange Traded Funds), and marijuana startups are proliferating at every step along the supply chain.

Not to be a downer, but this blogger worries that many imbibers of high and heady times may not realize that engaging in, and even facilitating, the marijuana trade carries risks – not the least of which are the chockablock provisions of the Immigration and Nationality Act (INA) that portend bad trips aplenty.

Continue Reading Weed and Worry — The Immigration Consequences of Engaging in the Cannabis Trade

By David Warburg and Mark Katzoff

Seyfarth Synopsis: This article discusses the impact of the newly adopted EB-5 regulations on the disclosure obligations of ongoing EB-5 offerings.

The obligation to make full and fair disclosure under the US federal securities laws is most often viewed by many, if not most sponsors who are seeking EB-5 capital as a legal and regulatory burden – sometimes almost as a necessary evil. Moreover, many also assume that a given legal development, such as the new EB-5 rule published late last July, will simply require essentially the same disclosures for every EB-5 financing being launched or currently in the offering process.

The reality is very different. Not only must disclosures be crafted to be consistent with each offering’s dynamics, needs and stage of offering, marketing and development, but required disclosures can often, without in any way impairing accuracy, compliance with law, and the need for the securities law professionals advising clients to offer impartial unconflicted advice and counsel, enhance the marketing of the offering.

To illustrate how this can be accomplished, consider how each of the following three hypothetical on-going offerings could reasonably address disclosure obligations in the wake of the recently published EB-5 Modernization Rule (the “Rule”), which is to become effective November 21, 2019. Click here for a summary of the Rule.

Hypothetical Offering A:  Commenced offering in June 2018, and has closed on investor subscriptions (with accompanying I-526 petitions filed) representing 80% of its targeted offering amount. The unsubscribed 20% is required to complete the project. The underlying project is located in a census tract which previously qualified as a TEA, but the sponsor believes (and has a reasonable and documentable basis for such belief) that the project will continue to qualify as a TEA under the New Rule.

Hypothetical Offering B:  Commenced offering in December 2018, and has closed on investor subscriptions (with accompanying I-526 petitions filed) representing 100% of its targeted offering amount. The company wishes to increase the size of the offering and use the additional funds to replace other components of its capital stack. The underlying project is located in a census tract which previously qualified as a TEA, but the sponsor believes that the project will not (or that there is substantial doubt as to whether the project will) qualify as a TEA under the New Rule.

Hypothetical Offering C:  Commenced offering in March 2019, and has closed on investor subscriptions (with accompanying I-526 petitions filed) representing only 35% of its targeted offering amount. The unsubscribed 65% is required to complete the project. The underlying project is located in a census tract which previously qualified as a TEA, but the sponsor believes that the project will not qualify as a TEA under the New Rule.

How should (or could) each of these offerings address (a) disclosure obligations, and (b) any need for, or how best to avoid rescission offers under the securities laws?  The questions a securities attorney needs to evaluate include:

  • Is a supplement to the offering’s current offering/disclosure documents required to be distributed?
  • What risks should that supplement describe?
  • Must a rescission offer be made to those investors whose subscriptions were accepted and funded?
  • How should the securities attorney and his/her client address the requirements of the New Rule that the “[petitioner investor have] no right to withdraw or rescind the investment….at the time of adjudication of the petition.” 8 CFR § 204.6(n)(3).

The three hypothetical offerings share the following characteristics:

  • The offerings are ongoing.
  • The offerings may remain open after the effective date of the New Rule.
  • Each investor who has invested in an offering to this point has filed their I-526 petitions and accordingly their petitions should be adjudicated under the existing rules.

The primary differences between the offerings are:

  • Hypothetical Offerings A and C have not yet raised their initial targeted amounts and need additional funds to complete their respect projects.
  • In Hypothetical Offerings B and C, the issuer is assuming that the project will not be deemed to be located in a TEA under the new rules.

Existing Investors. With respect to the possibility of rescission as regards existing investors, there are two potential grounds for requiring rescission: (i) a material change in the terms of an investor’s investment, if not approved by the investor,  or (ii) a material deficiency in the disclosure documents given to the investor at the time of their initial investment.  Since the New Rules do not apply to I-526 petitions filed prior to the effective date of the New Rules, the general terms of the investments made by the existing investors should not change. The investors should continue to be deemed to have invested in a TEA and be subject to a $500,000 minimum investment.  As long as the initial offering document was appropriately drafted, with disclosure of risks both relating to the possibility that the issuer would be unable to raise the full amount  (“Offering Completion Risk”) and to the possibility of changes to the terms of the EB-5 program (“Program Change Risk”), an investor should not be able to claim that they were inadequately warned of what could happen.   In short, existing investors should not be entitled to rescission as a result of the New Rules.

If (while unlikely) sponsor and legal counsel were to conclude (perhaps with the benefit of hindsight) that existing disclosures were inadequate to fully address Offering Completion Risk or Program Change Risk, a rescission offer would be appropriate. In that event, counsel would want to ensure that a full and knowing waiver of all rescission rights was obtained from each existing investor. That waiver would need to be rapidly drafted, communicated and obtained in a manner that ensured its effectiveness both under both (a) applicable securities laws and (b) the New Rule. It is not crystal clear (although one might hope) that compliance with (a) will constitute compliance with (b).

Subsequent Investors. Since the New Rules both potentially change the terms of an offering for subsequent investors and increase the risks involved with the offering by making it more difficult to raise capital, a supplement is warranted in all three of our hypothetical offerings. The content of the supplement may vary somewhat among the offerings, as described below.

Hypothetical Offering A:

  • Indicate that the minimum investment amount will increase to $900,000 (the new minimum for investing in a TEA) for investors who do not file their I-526 prior to November 21, 2019.
  • Indicate that the New Rules will make it more difficult to raise funds from EB-5 investors and discuss the impact on the project of failing to raise sufficient funds. The disclosure would be in the nature of a refinement of existing disclosure of Offering Completion Risk.

Hypothetical Offering B:

  • Indicate that the minimum investment amount will increase to $1,800,000 (the new minimum for investing in a TEA) for investors who do not file their I-526 prior to November 21, 2019.
  • Address any impact the increased offering size will have on job creation estimates.
  • Since the issuer does not need the additional funds to complete the project there should be no need for additional disclosure of Offering Completion Risk – i.e., no need to indicate that the New Rules will make it more difficult to raise funds from EB-5 investors and discuss the impact of failing to raise sufficient funds on the project. If, however, the issuer touts benefits to the investors of the expanded offering size, some discussion of these matters may be warranted to indicate that the benefits may not be achieved.

Hypothetical Offering C:

  • Indicate that the minimum investment amount will increase to $1,800,000 (the new minimum for investing in a TEA) for investors who do not file their I-526 prior to November 21, 2019.
  • Indicate that the New Rules will make it more difficult to raise funds from EB-5 investors and discuss the impact on the project of failing to raise sufficient funds. The disclosure would be in the nature of a refinement of existing disclosure of Offering Completion Risk.

As addressed in the discussion of Hypothetical Investment B above, if an issuer does not need additional funds to allow completion of a project, there is less need to discuss the added risks created by the New Rules with respect to capital-raising.  However, as making investors aware of the pending increase in minimum investments may give investors an additional incentive to make investment decisions quicker, there are likely marketing benefits to updating offering documents to include this disclosure where the offering will remain open.   Some sponsors of existing ongoing EB-5 offerings are already reporting an uptick of investor interest spurred by the New Rules.

In conclusion, while the New Rules warrant updating the offering materials for most ongoing offerings, if the initial materials were properly prepared, there should be limited impact on the offerings beyond making the updates.  The changes in the EB-5 rules should not give rise to rescission claims from initial investors.  In fact, rather than giving existing investors a way out of the funds, in the short term, the New Rules should provide sponsors engaged in ongoing offerings with an enhanced marketing “pitch” to new investors to expedite their investment decisions.

By Dawn Lurie, Mark KatzoffAngelo A. Paparelli and Randy Johnson

Seyfarth Synopsis: On July 24, 2019, U.S. Citizenship and Immigration Services (USCIS), the immigration-benefits component of the Department of Homeland Security (DHS),   published a final regulation on “EB-5 Immigrant Investor Program Modernization” (the “Rule”) to reform the EB-5 program in the Federal Register.  Absent successful court challenges, or the passage by Congress of EB-5 legislation, the Rule will take effect on November 21, 2019.  The Rule makes pronounced changes to the EB-5 program, including a significant increase in the investment threshold, conferral of exclusive authority to USCIS to designate Targeted Employment Areas (TEAs), and retention of priority dates for petitioners. The text of the Rule can be found here.

Continue Reading USCIS Publishes EB-5 Modernization Rule: the Impact on the EB-5 Program

This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.

Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool.  ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers.  It is expected that over 5000 NOIs will be issued during this round of audits

What is an NOI?

An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law.  U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers.  The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.

Continue Reading ICE Chills the Summer with Thousands of Audit Notices Issued to Businesses Nationwide

By Randy Johnson and Dawn Lurie

Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar[1] with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.

The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States.[2] As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.”  For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.

Continue Reading Houses Passes Bill Lifting “Per-Country Caps”

On May 29, 2019, forty-seven members of Congress wrote a letter to Attorney General Bob Barr and Acting Secretary of Homeland Security Kevin McAleenan registering their disagreement with the application of USCIS policy guidance to those who have been employed in the legal cannabis industry.

The letter’s signatories, led by Reps. Joe Neguse, Kelly Armstrong and Hakeem Jeffries, noted that thirty states and the District of Columbia have legalized cannabis for medical and/or recreational purposes. The letter criticizes the policy stating that it “targets naturalization applicants based on lawful employment for an activity that is legal in multiple states and and territories (albeit not under federal law).”

The letter is particularly critical of the potential treatment of naturalization applicants who have not been subjects of marijuana charges or convictions, but whose admissions in the course of immigration adjudications would then expose them to potential federal prosecution and deportation. The letter characterizes the new guidance as  “fatally flawed, as it provides no cogent basis for the agency’s apparent conclusion that lawful employment in a state licensed industry could be treated as a negative factor in establishing good moral character.”

The letter concludes by calling on the federal government either to retract the guidance altogether, or to offer more clearly defined standards for obtaining admissions from naturalization candidates disclosing employment in the marijuana industry.

A link to the letter is here.

Whether the letter will result in any modifications of USCIS policy and/or adjudicative processes remains to be seen.  Under either outcome, it is likely that marijuana use, possession or distribution by naturalization candidates, even in the course of legal employment,  will pose hazards to those applicants for years to come.

Seyfarth Synopsis: As a number of states and the District of Columbia have moved to permit possession, use and sale of marijuana for both medicinal and recreational purposes and the business of legalized cannabis distribution has grown exponentially, federal law banning such activity remains unchanged.  Deeming the trend in state law irrelevant, federal immigration authorities have in fact moved in the opposite direction.  Last month, on April 19, US Citizenship and Immigration Services announced policy guidance “to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.”

Continue Reading Too Natural for Naturalization: Even Decriminalized Marijuana Can be a Bar to US Citizenship

By Angelo Paparelli

Seyfarth Synopsis: The Social Security Administration has once again resumed issuing No-Match notices to employers.  The notices alert businesses that SSA has identified data discrepancies between the agency’s records and employer-provided data submitted for payroll tax reporting to the IRS.  Issuance of the notice triggers a duty upon employers to take action.  While a No-Match notice may involve an innocent clerical mistake or an unreported name change, it could also offer a clue suggesting that workers named in the notice may lack the right to work in the United States.  This blog outlines the risks and the measures prudent employers should take to comply with SSA requirements while avoiding the knowing employment of unauthorized workers and the risk of unlawful discrimination under the immigration laws.

Continue Reading Immigration Haunting: Social Security Administration Resumes Issuing No-Match Notices