In this issue
- State Dept. Announces Oversubscription of August Employment-Based Preference Categories, Limits on Special Immigrant Translator Visa Availability
- USCIS Postpones Implementation of Memorandum on Notices to Appear
- New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, Will Require E-Verify Participation
- Office of Foreign Labor Certification Releases Foreign Labor Recruiter List
- Trump Threatens Immigration-Related Shutdown Ahead of Midterm Elections
- Supreme Court Upholds Latest Trump Entry Ban
- Dept. of State Partners with Hilton Hotels and Resorts on Passport Project
- New Publications and Items of Interest
State Dept. Announces Oversubscription of August Employment-Based Preference Categories, Limits on Special Immigrant Translator Visa Availability
The Department of State's Visa Bulletin for the month of August 2018 includes the following announcement:
OVERSUBSCRIPTION OF AUGUST EMPLOYMENT-BASED PREFERENCE CATEGORIES
WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED FIRST (E1) PREFERENCE: As readers were advised in item F of the July Visa Bulletin, there continues to be an extremely high rate of demand for E1 numbers, primarily for USCIS adjustment of status applicants. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose an E1 Final Action Date for the month of August, with this date being imposed immediately. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.
INDIA Employment-based Fourth (E4) AND Certain Religious Workers (SR) preference categories: There has been extremely high demand in these preference categories. Pursuant to the Immigration and Nationality Act, it has been necessary to impose E4 and SR Final Action Dates for India, which has reached its per-country limit. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.
The implementation of the above mentioned dates will only be temporary, with the dates returning to Current status for October, the first month of fiscal year 2019.
The bulletin also includes this update on special immigrant translator visa availability:
Given the limited availability of visa numbers and the existing demand, the Department expects to reach the FY-2018 annual limit of 50 Special Immigrant Visas in the SI category early this year. As a result, it has been necessary to maintain an August Final Action Date of April 22, 2012. Once the annual limit of 50 visas is reached, further issuances in the SI category will not be possible until October 2018, under the FY-2019 annual limit. The SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains current.
Read the bulletin for August 2018.
USCIS Postpones Implementation of Memorandum on Notices to Appear
U.S. Citizenship and Immigration Services (USCIS) announced on July 30, 2018, that issuance of operational guidance is pending for its recent memorandum on notices to appear (NTAs); therefore the implementation of the memorandum is postponed until the operational guidance is issued.
Policy Memorandum 602-0050.1, "Updated Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens," was issued on June 28, 2018, and instructed USCIS components to create or update operational guidance on NTAs and Referrals to ICE, to be issued within 30 days of the Policy Memorandum.
Read the announcement.
New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, Will Require E-Verify Participation
On July 24, 2018, President Trump signed the Northern Mariana Islands U.S. Workforce Act of 2018 (H.R. 5956), extending the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker program (CW-1 program) through 2029 and increasing the CW-1 cap for fiscal year (FY) 2019. The CW-1 program allows employers within the CNMI to apply for permission to employ foreign (nonimmigrant) workers who are otherwise ineligible to work in the CNMI under other nonimmigrant worker categories.
CW-1 employers must pay a mandatory $50 "fraud prevention and detection" fee with each petition, in addition to other current fees. USCIS said it will reject any petition received after July 24, 2018, that includes incorrect or insufficient fees. This new fraud prevention and detection fee does not apply to CW petitions already filed and pending with USCIS as of July 24, 2018.
The Workforce Act will require CNMI employers seeking CW-1 workers to enroll in E-Verify and comply with the requirements of the E-Verify program. Although E-Verify enrollment is not currently required, it will soon be a requirement for all employers filing for CW-1 visas. U.S. Citizenship and Immigration Services (USCIS) said it "strongly encourages CNMI employers to enroll in the E-Verify program as soon as possible."
The Workforce Act raises the CW-1 cap for FY 2019 from 4,999 to 13,000, and provides new CW-1 caps for subsequent fiscal years. After announcing on April 11, 2018, that it had received CW-1 petitions for more than the number of visas previously available for FY 2019, USCIS will now resume accepting CW-1 petitions. Employers whose petitions were previously rejected because the cap was reached must file a new petition if they want CW workers to be considered under the increased cap. USCIS said it did not retain and cannot reopen previously rejected petitions.
In addition to extending the CW-1 program, the Workforce Act extends the following Consolidated Natural Resources Act of 2008 provisions until December 31, 2029:
- The exemption from national caps for H-1B and H-2B workers in the CNMI and on Guam;
- The bar on asylum applications in the CNMI; and
- The CNMI-Only Nonimmigrant Investor (E-2C) program.
USCIS said the Department of Homeland Security (DHS) is exercising its discretion, as provided in the Act, to delay implementation of other changes to the CW program affecting CW-1 filers until DHS issues an interim final rule. As of July 24, 2018, USCIS will only accept the May 9, 2018, version of Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker. USCIS will reject and return fees for any petitions submitted using a December 11, 2017, or earlier version date of Form I-129CW.
Read the USCIS notice.
Read the new law here.
Office of Foreign Labor Certification Releases Foreign Labor Recruiter List
The Department of Labor's Office of Foreign Labor Certification (OFLC) has published a list of foreign labor recruiters. OFLC said that providing the list enables the agency to "be in a better position to enforce recruitment violations, and workers will be better protected against fraudulent recruiting schemes, because they will be able to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States." OFLC said workers may use the partial case number(s) associated with a recruiter on the list to identify the particular job order(s) in OFLC's Electronic Job Registry, available in the iCERT system, for which the recruiter is seeking workers.
The Department said it compiles this data from disclosures employers and their attorneys or agents made in conjunction with filing a Form ETA-9142B, H-2B Application for Temporary Employment Certification, about the foreign labor recruiters they engage, or plan to engage, in the recruitment of H-2B workers.
The Department noted that it does not endorse or vouch for any foreign labor agent or recruiter included in the Foreign Labor Recruiter List, nor does inclusion on the list signify that the recruiter is in compliance with the H-2B program.
Read the announcement and list here.
Trump Threatens Immigration-Related Shutdown Ahead of Midterm Elections
On July 29, 2018, President Donald Trump tweeted:
I would be willing to "shut down" government if the Democrats do not give us the votes for Border Security, which includes the Wall! Must get rid of Lottery, Catch & Release etc. and finally go to system of Immigration based on MERIT! We need great people coming into our Country!
With respect to funding a wall along the border with Mexico, which President Trump previously promised Mexico would pay for, in May President Trump said, "we're going to get the wall, even if we have to think about closing up the country for a while." He signed a spending bill in late March without everything he wanted in it but said, "I will never sign another bill like this again."
As of press time, there were no further specifics. According to reports, Republicans are concerned that this may mean President Trump intends to veto any spending bill that doesn't include everything he wants, including bills passed by Congress to continue government functions past the end of September, when the government runs out of money. Some in Congress hope to avoid drama before the midterm elections in November.
Supreme Court Upholds Latest Trump Entry Ban
On June 26, 2018, the U.S. Supreme Court upheld, by a 5-4 vote, the Trump administration's third travel ban order under Presidential Proclamation 9645, issued September 24, 2017. The ban prevents indefinitely the entry into the United States of certain nationals from specific countries, with some exceptions.
A Department of Homeland Security (DHS) fact sheet noted that, among other things, the government:
- Maintained, modified, or eased restrictions on five of six countries designated by Executive Order 13780, issued in March 2017: Iran, Libya, Syria, Yemen, and Somalia.
- Lifted restrictions on Sudan.
- Added restrictions and/or additional vetting on three additional countries (Chad, North Korea, and Venezuela) found not to meet baseline requirements, but that were not included in Executive Order 13780. Effective April 13, 2018, Chad was removed from this list.
The Court observed that plaintiffs alleged that the primary purpose of the entry ban was religious animus and that the President's stated concerns about vetting protocols and national security were pretexts for discriminating against Muslims. At the heart of their case was a series of statements by the President and his advisers both during the campaign and since the President assumed office. Chief Justice Roberts, writing for the majority, said the issue was not whether to denounce the President's statements, but the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, he said, the Court must consider not only the statements of a particular president but also the authority of the presidency itself.
Justice Roberts noted that the Proclamation "is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies."
Three additional features of the entry policy supported the government's claim of a legitimate national security interest, Justice Roberts noted. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. "Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review," the majority concluded.
Justices Breyer, Kagan, Sotomayor, and Ginsburg dissented. Justice Sotomayor said, among other things, "Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus rather than by the Government's asserted national-security justifications." Ultimately, she said, what began as a policy explicitly "calling for a total and complete shutdown of Muslims entering the United States" has morphed into a Proclamation putatively based on national-security concerns. "But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers."
Read the Supreme Court's opinion.
Read the Presidential Proclamation 9645.
Read a related fact sheet from the Department of Homeland Security.
Dept. of State Partners with Hilton Hotels and Resorts on Passport Project
The Department of State (DOS) is working with Hilton Hotels and Resorts on the "Hilton Passport Project," which "seeks to inspire and encourage U.S. citizens to apply for a passport." DOS noted that approximately 60% of U.S. citizens do not have a U.S. passport.
DOS employees have assisted Hilton's "Passport Concierge Booths" across the United States to provide passport applications, photos, and opportunities to ask questions about applying for a passport.
A passport application typically takes around six to eight weeks from the time of application to be processed, including mailing time. Expedited Service is an additional $60 and takes two to three weeks.
More information on the Hilton Passport Project is available here and here.
DOS separately announced "special passport acceptance events." Most such events are for first-time applicants and children using Form DS-11 to apply. Those eligible to renew should do so by mail, DOS said. Click here for a city-by-city list. Read the announcement here. Click here for information on renewal by mail.
New Publications and Items of Interest
A new study on H-1B denials and requests for evidence (RFEs) by the National Foundation for American Policy (NFAP) finds that H-1B denials and RFEs increased significantly in the fourth quarter of FY 2017, likely due to new Trump administration policies, according to data obtained from U.S. Citizenship and Immigration Services (USCIS). The proportion of H-1B petitions denied for foreign-born professionals increased by 41% from the third to the fourth quarter of FY 2017, rising from a denial rate of 15.9% in the third quarter to 22.4% in the fourth quarter. The number of RFEs in the fourth quarter of FY 2017 almost equalled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 versus 63,599). Failure to comply with an adjudicator's RFE will result in the denial of an application. As a percentage of completed cases, the RFE rate was approximately 69% in the fourth quarter compared to 23% in the third quarter of FY 2017, the study found.
Webinars for employers and employees. The Immigrant & Employee Rights Section of the Department of Justice's Civil Rights Division will present a series of webinars for employers and employees.
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- Listings and links to cases challenging executive orders, and related available
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: