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Seyfarth Synopsis: Federal judges in Hawaii and Maryland have issued orders blocking major portions of President Trump’s September 24, 2017 Presidential Proclamation.

The Presidential Proclamation is the third in a series of executive actions ostensibly aimed at protecting the U.S. from terrorism and other national security threats through barring or limiting U.S. travel for nationals of eight countries.  The first such action, published on January 27, 2017, was revoked in the wake of several successful legal challenges.  It was replaced on March 6, 2017 with a more narrowly tailored version.  Challenges to this second version prevailed in Hawaii Federal District Court and also before the Ninth Circuit, and they are now being considered at the Supreme Court.

On October 17, 2017, just one day before the Presidential Proclamation was set to take effect, a federal judge in Hawaii called into question the Trump administration’s claim that it will enhance national security.  The judge accordingly ruled that the plaintiffs’ challenge to the Proclamation will likely prevail.  He further found that, unless enjoined, the Proclamation will cause the plaintiffs to suffer irreparable harm in the form of familial separation, loss of access to potential foreign students who would attend schools in Hawaii, and diminished vibrancy at Muslim religious associations within the state.

In the early morning hours of October 18, 2017, a federal judge in Maryland also ruled that the plaintiffs are likely to prevail, would suffer irreparable harm, and further opined that the Proclamation amounted to an unconstitutional Muslim ban.  The judge pointed to several of President Trump’s disparaging campaign speeches and tweets concerning Muslim immigrants to support his conclusion.

As a result of the rulings in Hawaii and Maryland,  all U.S. travel restrictions imposed against nationals of Iran, Libya, Yemen, Chad, Somalia, and Syria have been lifted.  However, as the restrictions applicable to nationals of Venezuela and North Korea were not challenged in either Hawaii or Maryland, they remain intact.

The Trump administration has signaled that it will challenge these decisions and further developments will likely emerge rapidly.  Individuals from restricted countries who are considering travel to or from the U.S. should exercise caution and should anticipate increased screenings, potential delays, or even refusal of admission.

Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government’s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance. If nothing else a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers. As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law. Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies. The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible. If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected. This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.

The Story Behind Asplundh

Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?

ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States. But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas in connection with this case, with each defendant facing prison time and fines.

ICE Acting Director Thomas Homan stated in its September 28th announcement that “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).

The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States. More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.” The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.

While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts. As noted in the company’s own statement, Asplundh has already taken some corrective action, including:

  • Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
  • Revising hiring procedures to verify each identification examination for every new hire.
  • Investigating every complaint of potentially undocumented workers.
  • Retaining a third party consultant to review actions and procedures.
  • Presenting the company compliance program to ICE for review.

These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE. Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.

What Does This Mean for Your Operations?

The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made. From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.

Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability. Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda. Businesses can begin taking a proactive approach and action on the following fronts:

  • Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
  • Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
  • Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities. When the process is identifiable, then accountability can be, too.
  • Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals. For the company it can also mean a PR nightmare. Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
  • Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor. As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties. The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.

For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless of the party controlling the executive branch. Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.

As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under IRCA should be taken very seriously.

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: 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.

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.

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.

Seyfarth Synopsis: If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.

Background

A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only “essential” government workers would report to work until Congress passes a spending bill.

U.S. Citizenship and Immigration Services (USCIS)

USCIS would be minimally impacted because it is largely a user-fee funded service.  The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required — such as the H-1B that requires a Labor Condition Application (LCA) -­may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS  issued guidance suspending the “three day rule”  for any case affected by the shutdown.  Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.

Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.

Department of Labor

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications).   OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.

Department of State (DOS)

Visa issuance should continue, at least temporarily.  Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.

Department of Justice (DOJ)

DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.

On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.  Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President’s Executive Order.  Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President’s most recent Executive Order and those from Iraq.

Continue Reading New Department of State Cable Implements Extreme Vetting Measures

Seyfarth Synopsis: Federal judges from Hawaii and Maryland have issued nationwide Temporary Restraining Orders (TROs) effectively blocking the implementation of the Trump administration’s revised travel ban, which was scheduled to take effect on March 16, 2017.

Late on Wednesday, March 15, Judge Derrick K. Watson of the Federal District Court in Honolulu issued a nationwide TRO suspending the implementation of the Trump administration’s revised Executive Order (EO) and associated travel ban. Early Thursday morning, Maryland federal Judge Theodore D. Chang issued a separate TRO blocking key provisions of the EO from taking effect nationwide. Both decisions took the position that the revised EO violates the First Amendment because it was designed to discriminate against Muslims. According to Judge Watson, even the new order was “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”

Continue Reading Federal Courts Temporarily Block the Trump Administration’s Revised Travel Ban