Access to Immigrants’ Information

Immigration applications are the most common trigger of adverse immigration consequences. When an immigrant applies for an immigration benefit or status, such as green card or naturalization, s/he must demonstrate that s/he is admissible to the U.S. and has good moral character. Immigration adjudicators often compel applicants to divulge information about their family court cases when, for example, proof of materially supporting a child is relevant to the relief being sought; when a child does not reside with the applicant; when an applicant has had an order of protection issued against him or her; or where an applicant has been arrested for a crime involving endangering the welfare of a minor (even if the charge was dismissed).

Fingerprinting

There are three types of fingerprinting that can prompt an immigration authority or adjudicator to demand access to family court information and adjudications: a) fingerprints taken at the time of booking into a local jail; b) fingerprints taken to conduct both criminal and civil background checks; and c) fingerprints taken to adjudicate immigration applications.

a.         Fingerprinting at Booking in Criminal Matters – Any time an immigrant litigant is arrested on a family court warrant or confined in connection with a contempt order, the immigrant becomes vulnerable to detection and apprehension by ICE. Fingerprints taken by local jails at booking are automatically shared with ICE via federal data-sharing networks.

b.         Fingerprinting for Background Checks in Family Court When individuals are fingerprinted for family court related background checks, the print checks are done by New York State’s Division of Criminal Justice Services (DCJS).

c.            Fingerprinting for Immigration Applications – For many types of immigration benefits, including those that relate to protecting unaccompanied minors and victims of domestic violence and other crimes, USCIS requires that the immigrant applicant undergo a “biometric screening” that includes both fingerprints and digitized photographs. USCIS uses the fingerprints to check an individual’s immigration and criminal history. Fingerprints are run through immigration databases that include information about immigrants who have violated immigration laws. Fingerprints are also run through the FBI’s criminal database, which includes information about past arrests, criminal convictions, and any active orders of protection. The FBI database includes information about active orders of protection issued by both family and criminal courts, which it obtains through a data sharing agreement with the New York State Police. Any time an immigrant applies for an immigration benefit, USCIS can access information about an immigrant’s travel, family, criminal history, etc. Immigrant applicants are often questioned about travel, family, and criminal matters that surface through biometric screening, and can be denied benefits after disclosure of information about arrests that do not result in prosecution. 

Individuals should always consult with a competent immigration attorney to determine the potential for adverse immigration consequences and to identify any available options that may pertain to his or her specific case.

 

The US Has Finalized An Asylum Agreement With Honduras

On Friday, a newly-finalized asylum agreement with Honduras took effect. The agreement means that the U.S. may send some asylum seekers to Honduras rather than handle their asylum claim here. Critics of the agreement say it violates our obligations under international asylum law, particularly since Honduras has high levels of violence and corruption. On Friday, a newly-finalized asylum agreement with Honduras took effect. The agreement means that the U.S. may send some asylum seekers to Honduras rather than handle their asylum claim here. Read it here.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-09322.pdf

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Relief

Emergency Loans, Expanded Unemployment Pay

On March 27, 2020, after many sectors of the economy have come to a virtual standstill and millions of Americans have filed for unemployment as a result of the coronavirus, the United States Congress passed, and President Trump signed, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in its effort to respond to the COVID-19 pandemic.

The CARES Act provides various forms of economic assistance to employers to address the economic effects of the pandemic, although this assistance is subject to certain conditions and restrictions.

This alert summarizes the significant provisions of the CARES Act that affect employers and employees.

Expanded Unemployment Benefits for Individuals

The CARES Act includes expanded rights to unemployment compensation for individuals who are unemployed due to various reasons related to COVID-19. Notably, the CARES Act provides a special unemployment compensation program for gig workers, independent contractors, and self-employed individuals, and an individual whose work histories might not otherwise qualify.

The Act also provides for payments of an additional $600 per week in unemployment compensation benefits above and beyond what an individual is otherwise entitled to under state law, for up to four months. Further, the CARES Act extends an individual’s ability to receive unemployment benefits by an additional 13 weeks, through December 31, 2020. However, individuals cannot receive unemployment compensation simultaneously they are receiving paid sick leave from an employer.

The federal government has incentivized the states to waive the one-week waiting period by funding the costs. In addition, the federal government will fund expanded unemployment benefits.

The CARES Act includes some favorable tax provisions for employers as it concerns their employees. Certain provisions are limited to “eligible employers,” while other provisions are more generally applicable.

What Should Businesses Do Immediately?

Every business should contact its banker(s). The expanded SBA Section 7(a) loans, sometimes referred to as the “Paycheck Protection Program,” will be administered by banks and other financial institutions. 

Evaluate, with its banker and potentially other professional advisors, whether it qualifies for expanded SBA Section 7(a) and/or EIDL loans (see below for more information). Franchisors not in the restaurant or hospital space (Sector 72) should consider applying to be on the SBA’s franchise directory.

Assemble company documents, such as certificates or articles of incorporation, bylaws, operating agreements, and certificates of good standing (make sure that the company is in good standing).

Assemble financial information of a type that borrowers would ordinarily expect a lender to want to review, including financial statements, tax returns, and payroll information. As you will see below, payroll information is of particular importance for the expanded SBA Section 7(a) loans.

 

What the coronavirus shutdown means for immigrant workers

Faced with indeterminate delays and circumstances changing by the day, businesses that rely on immigrant workers have been frantically communicating with their legal teams in recent weeks as the impact of the coronavirus pandemic has spread.

Diane Hernandez, a Denver-based lawyer at Hall Estill, said one university she works with was expecting a Chinese researcher to arrive March 1 to helm a large summer project. His H-1B visa was approved in December, but as his start day approached, he could not obtain the visa at the U.S. consulate in China because of the coronavirus-related travel ban. Now, the researcher, his family, and the university are all on hold, waiting to see what will happen.

“There will likely be issues when he finally does enter that will have to be dealt with, specifically getting some leeway from U.S. immigration on his entry date and having missed a number of weeks or months in his H-1B status,” says Hernandez, who has fielded many panicked emails from clients in the past few weeks.

The processing speed for employment visas, and immigration benefits in general, had already decelerated under the Trump administration, with more requests for additional documentation and other evidence that were not typical in the decades prior.

“Even before COVID-19, many of our partners in the business community were worried about USCIS [U.S. Citizenship and Immigration Services] processing of work-related immigration visas. Wait times, labor certifications, and other issues seemed to spring up at every turn,” says Ali Noorani, executive director of the National Immigration Forum.

Now, further delays are expected during the pandemic response, and employers and employees alike are faced with tough decisions.

“There are all kinds of ramifications. Some companies are worried about having work available for people to do, because the economy’s going downhill so quickly, and how to handle their staff in the best way,” says Susan Cohen of the Mintz law firm. “On the other side, some businesses are still desperate for people, key hires that they’ve gone to great trouble and expense to retain, and now their visa is approved, but they can’t get here. In some cases, we’re talking about executives and top managers.”

USCIS offices for in-person interviews, biometric appointments, and other activities are temporarily closed, but the agency service centers that handle things like the H-1B lottery process and visa adjudications are still operating.

“If they start laying people off or furloughing workers, or otherwise close the service centers where they do the adjudication, that would have a huge impact,” Hernandez says.

While employment, student, and other visa applications are moving forward, they will not be issued until consulates reopen to the public, and travel bans are lifted.

“For larger companies, it might not be such a big deal, but for the little startups that have fewer than 10 employees, to not have one team member can be really detrimental. The uncertainty is really tough on employers,” says San Francisco–based attorney Jennifer Burk.

Depending on the visa category, rules can vary widely. Furloughed H-1B employees, for example, must still be paid even if they are not working, as long as they are under contract. Laid-off visa holders typically have 60 days to adjust their status, such as securing a different job or enrolling in school, before they are required to leave the country.

From technology companies to medical services and food production, the COVID-19 pandemic is expected to strain a wide range of industries reliant on immigrant labor.

“One area of great concern these days is coming from agricultural interests who utilize the H-2A program,” Noorani says. “With harvest season looming and the State Department not conducting interviews, growers are worried about their labor supply.”

This year, USCIS implemented a brand-new H-1B lottery system that pushes the old April 1 deadline for final applications out to June 30. Meanwhile, USCIS recently suspended premium processing, which enables employers to pay $1,440 per application for a guaranteed response in 15 days, otherwise, a decision can take months.

“The new June deadline might offer more time, but it could end up as a negative for employers who can’t do premium processing, are not given the option, or can’t afford it,” Hernandez says. “That will likely push approval past the October 1 start of the new visa period. Someone who is converting from student to H-1B, for example, may run out of status before the new visa is approved and would be required to leave, then come back. It’s a whole domino effect.”

USCIS has made some allowances for filings, including a March 20 announcement to accept copies of signed I-9 work authorization forms in lieu of original documents until normal work-site operations resume.

“I tell my clients to take it day by day, because things are changing so fast. The best thing to do is document everything, keep track of what you’re doing and why,” Hernandez says. “I think that the government understands how detrimental it would be to totally cease processing work visas, not just to small entrepreneurs but to big companies like Microsoft that use tons of H-1B workers.”

By: Tovin Lapan. See https://fortune.com/2020/03/26/coronavirus-jobs-immigrants-us-work-visas-h1b-employment-immigration/

IMMIGRATION ALERT COVID-19 PANDEMIC

IMMIGRATION ALERT

The world is confronting the potentially deadly COVID-19 pandemic. Preliminary reports from the Center for Disease Control (CDC) indicate that the virus is primarily spread between people who are in close contact.  The virus can also be spread before people show symptoms. The virus can remain alive on surfaces–such as court tables–for days. The pandemic has caused the President to issue a national declaration of emergency.

To slow the spread of the virus the CDC advises individuals to increase their physical distance from other people to about 6 feet. Id. Consequently, social gatherings, business conferences, sporting events, and religious ceremonies have been canceled or postponed across the nation.

As the coronavirus situation continues to evolve, LAW OFFICES OF NORKA M. SCHELL, LLC is focused on ensuring the health and safety of our employees and their families.  At the same time, we remain committed to delivering the same level of service our clients expect and deserve.  We also aim to support our community with cutting-edge thought leadership throughout the coronavirus pandemic.

We maintain a business continuity plan designed to minimize significant business interruptions and facilitate uninterrupted service.  Precautionary actions include ongoing briefing on health recommendations and safety measures; banning non-essential travel; amplified cleaning and sanitization; and enabling remote work options to encourage self-quarantine and social distancing.

We are actively following the latest reports and recommendations from the Centers for Disease Control (CDC), and the World Health Organization (WHO) to help us develop our policies.

Contact us directly for any further questions you may have.

 

 

 

Coronavirus (COVID-19)

Below is the guidance we have received for visitation of detainees.

=========================================

Effective March 13, 2020, U.S. Immigration and Customs Enforcement (ICE) will temporarily suspend social visitation at all its detention facilities until further notice in order to mitigate the for potential transmission of the novel coronavirus (COVID-19). 

Unless and until it is determined to pose a risk to the safety and security of the facility, legal visitation should be permitted to continue.

  • Non-contact legal visitation should be offered first to limit exposure to detainees.

o        If the legal visitation requires contact, ICE will permit the visit but              reinforce the recommendation for non-contact visitation.

  • Should in-person legal visitation be suspended, ICE will ensure detainee communication with legal representatives continues unimpeded via Skype or teleconference as available.  ICE will also take steps to facilitate such communication, in the absence of visitation, through extended access to telephones and other reasonable means.

Notwithstanding the above, Members of Congress, Congressional Member Delegations (CODELs), and Congressional Staff Delegations (STAFFDELs) will not be prevented from accessing facilities for the purpose of conducting oversight.  However, in order to safeguard visitors, detainees, and ICE and facility staff, visitors may be subject to special screening procedures.  For example, if the public is limited access to the facility due to potential COVID-19 exposure by a detainee or detainees, raising concern about the potential spread of the virus to visitors, notification should be made to the CODEL or STAFFDEL to inform its decision whether to conduct a visit.

In appropriate circumstances, ICE may impose additional requirements, such as requiring the visitors to wear protective equipment.  If there is an articulable concern that a visitor or visitors may transmit COVID-19 to detainees, ICE may ask them to leave or require them to wear equipment which will prevent the spread of the virus and/or require them to go through similar testing as employees of the detention facility.  All visitors should be advised of standard hygiene practices to help prevent the spread of disease, i.e., washing hands and avoiding close contact, and should be made aware of available washrooms within the facility.

Although ICE has no confirmed cases of COVID-19 within its detained population, ICE has decided to revise its visitation practices during this time.

 

 

H-1B Registration

“H-1B Registration with INSZoom” Feature Release

U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year (FY) 2021 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 20. During this period, prospective petitioners and representatives will be able to fill out prospective petitioner and beneficiary information and submit their registrations.

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to: 1) register each beneficiary electronically for the selection process and 2) pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. If USCIS receives enough registrations by March 20, it will randomly select registrations and send selection notifications via users’ USCIS online accounts.

Immigration in 2020

The past year has arguably been the Trump administration’s most successful one in its quest to restrict asylum at the U.S.-Mexico border, overhaul the nation’s legal immigration system, crack down on undocumented immigrants, alter America’s status as a safe haven for refugees and challenge decades of bipartisan consensus that robust immigration is key to America’s economic and social prosperity.

The 2020 promises to be a big year for employment-related immigration developments.

Here are the top five to watch.

USCIS Fees

Applying for a visa will get a lot more expensive. That’s if the final version of U.S. Citizenship and Immigration Services’ new fee schedule looks anything like its proposal—and it likely will. And that fee increase will be especially acute for employers of temporary foreign workers.

The USCIS also is proposing to increase the fee for named workers on H-2A agricultural guest worker visas and H-2B nonagricultural, seasonal guest worker visas while limiting the number of named workers who can be listed on each petition. That means employers seeking large numbers of guest workers will be on the hook for potentially hundreds of thousands of dollars each season.

The proposed rule is a sweeping attack on the United States immigration and naturalization system designed to limit immigration, asylum, and naturalization, with a disproportionate impact on communities of color and non-wealthy immigrants. The proposal includes a plan to transfer over $100 million of USCIS funds to Immigration and Customs Enforcement (ICE), the agency responsible for enforcement.

H-1B Changes

Electronic preregistration for the H-1B lottery becomes official March 1, 2020. Authorized by a January 2019 regulation, the new process will allow employers to enter the lottery for the 85,000 visas that become available Oct. 1, 2020, without having to prepare a full petition and supporting documentation.

Preregistration has the potential to streamline the H-1B application process, but also could cause problems for smaller employers trying to compete for the visas.

Also expect to see a new proposed rule from the USCIS that would redefine an H-1B “specialty occupation” to restrict eligibility to the “best and brightest” applicants. The proposal likely will reflect how the agency already is treating H-1B petitions, but codifying the practice would make it more difficult for businesses to challenge visa denials in court.

DACA Decision

The U.S. Supreme Court likely will rule in June on whether the Trump administration legally ended the Deferred Action for Childhood Arrivals program, which provides deportation protections and work permits to young, undocumented immigrants who came to the U.S. as children.

The justices’ reaction to oral arguments Nov. 12 appears to indicate that the court will back the administration’s curtailment of the seven-year program.

One report by pro-immigration groups estimated that ending DACA will result in an average of 30,000 DACA recipients losing their jobs every month. Another report concluded that removing DACA workers from the economy would cause a $460.3 billion drop in the national gross domestic product over the next decade.

The question remains whether Congress would be willing to pass legislation providing legal status to DACA recipients so close to the election. The House passed such a bill in June, but the Senate hasn’t made any move to take it up.

Optional Practical Training

Optional practical training, which allows foreign graduates of U.S. colleges and universities to work in the U.S., could see big changes next year.

A federal judge in Washington has indicated a willingness to entertain a lawsuit by a group of U.S.-born tech workers who say OPT is illegal and harms their job prospects. The potential for the case to upend OPT recently prompted a wave of amicus briefs.

“Without OPT and STEM OPT, employers would suddenly find fewer STEM-educated persons to take positions in the United States for jobs that cannot be filled with native employees alone,” according to one brief filed by 52 businesses and 11 industry associations.

Immigration and Customs Enforcement, which manages OPT, also has revived its plan to overhaul the regulations governing the program. That change, combined with another proposal to limit how long international students can remain in the U.S., could upend how the program operates in the future—if the courts allow it to continue.

H-4 Work Permits

A longtime Trump administration promise to rescind a program providing work permits to certain H-4 spouses of H-1B workers likely will come to fruition in 2020.

A Homeland Security Department proposal has been under review at the White House Office of Management and Budget since February 2018. The agency now anticipates a spring 2020 release for public comment, which would mean a summer or early fall implementation of the final regulation.

A lawsuit against the program brought by U.S.-born tech workers also recently gained traction when a federal appeals court in Washington said the workers showed that it’s causing them to face increased job competition. Now back with the federal district court, the case could result in a finding next year that the program is illegal.

That would put more than 120,000 H-4 spouses, mostly women from India, out of work.

By Laura D. Francis Bloomberg Law.

By Camilo Moyntoya-Galvez Dec. 31, 2019/ 6:59 AM/ CBS News

USCIS Reaches H-2B Cap for First Half of FY 2020

Release Date: 
U.S. Citizenship and Immigration Services has reached the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2020.

Nov. 15 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2020. USCIS will reject new cap-subject H-2B petitions received after Nov. 15 that request an employment start date before April 1, 2020.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct.1 – March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30).

For more information, H-2B petitioners can visit the Cap Count for H-2B Nonimmigrants page.