DHS & DOL: H-2B Visa Program Expands for FY 2019

Together, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a joint rule permitting an additional 30,000 H-2B temporary non-agricultural worker visas for fiscal year 2019 (FY 2019). However, this expansion comes with a condition: the additional visas will be made available only to those returning workers who have previously received approval for an H-2B visa in FY 2016, FY 2017, and FY 2018. Only businesses that require H-2B workers, and would otherwise be un-operational without the program, are allowed to benefit from the expansion. Thus, applications will be restricted to those businesses who would “suffer irreparable harm without the additional workers.”

Returning Workers

According to USCIS, H-2B workers who return via the same work visa program are more likely to abide by the terms and conditions established by DHS and DOL, and thus present a lower risk of unauthorized work and a lower risk of overstaying their visa. The expansion targets those businesses that depend on the H-2B visa program because many H-2B workers return to the same employer annually or during the peak seasons. The 30,0000 additional visas will serve H-2B workers who have been vetted, thus expediting the approval process.

DHS Message to Congress

For decades, visa program caps set by federal legislation have blocked businesses from fulfilling labor demands. The H-2B visa program serves to fill the gaps in economies with U.S. worker labor shortages in certain industries. However, the cap typically does not fulfill annual and seasonal demand. In statement, the Acting Secretary for DHS, McAleenan, urged lawmakers to “pursue a long-term legislative fix that both meets employers’ temporary needs while fulfilling the president’s Buy American and Hire American executive order to spur higher wages and employment rates for U.S. workers.” The decision to expand visa programs ultimately lies in the power of congress. Although the DOL and the DHS may allow supplementary visas, this still puts businesses at a disadvantage who do not meet the original cap. “Congress – not DHS – should be responsible for determining whether the annual numerical limitations for H-2B workers set by Congress need to be modified and by how much, and for setting parameters to ensure that enough workers are available to meet employers’ temporary needs throughout the year.” While the cap remains, as of May 8thpetitioners can now filed a for these additional H-2B visas for the time being.

Presidential Memo on Visa Overstay: B-1 & B-2 Visitor Visas

The White House has released a memorandum outlining President Trump’s strategy to curtail the overstay rate for all nonimmigrant visas, with particular focus on B-1 and B-2 nonimmigrant visas. According to recent Department of Homeland Security DHS statistics, B-1 and B-2 visa overstay rates grew beyond 10 percent. President Trump has ordered the DHS to engage with the governments of countries with larger rates of overstay in the United States.

Potential Changes

President Trump’s memo suggests “suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; limits to duration of admission, to be implemented by the Department of Homeland Security; and additional documentary requirements.” As such, those nationals of countries with higher rates of overstay could be barred from entering the United States for a short stay effective immediately. The memo does not, however, clarify the types and quantity of “additional documentary requirements,” nor does the memo explain how the country suspensions would be determined by DHS officials. For countries that have only a small quantity of nationals under the B-1 and B-2 visas each year, a system based on “overstay rate” would come as an extreme disadvantage. For example, the country Chad, which had over a 30% overstay rate, had only 536 nonimmigrants come into the United States for business or pleasure purposes. Therefore, there were only a total of 165 suspected overstays during fiscal year 2018.

Similarities to Buy American, Hire American

Like the Buy American, Hire American memorandum, this recent memo out of the Trump White House seeks to increase scrutiny over problems in the immigration system. However, the memo does not present an extensive plan to fix or improve the immigration system. While the issue of overstayed visas impacts the United States, this new Trump memo may cause a lasting negative impact on current immigration.

USCIS Director Resigns: Trump Administration Seeks New Leader

The United States Citizenship and Immigration Service Director (USCIS), L. Francis Cissna submitted his resignation at the request of the president to be effective June 1st. This departure comes in the shadow of recent changes in administration throughout the Department of Homeland Security. Many believe that the changes in administration are a result of dissatisfaction from the White House given President Trump’s desire for even tougher policies on immigration. According to Washington Post reports, Trump is set to place former Virginia Attorney General Ken Cuccinelli as the next director. This change, along with other recent changes in the Trump Administration, could preview an administration with tougher stances on immigration policy.

Cause for Concern

Bi-partisan concern surrounding the potential appointment of Ken Cuccinelli stems from Cuccinelli’s vast immigration knowledge gap as compared to Director Cissna. Additionally, Cuccinelli will be a far more political appointment than career long bureaucrat, Cissna. A harsh political opponent of Mitch McConnel, Cuccinelli will face bi-partisan criticism during confirmation. The Washington Post site Cuccinelli as the leader of the 2014 Republican effort to unseat ranking Republican members of Congress. Unlike Cuccinelli, Cissna joined USCIS in 2017 with years of immigration experience. While Cissna has kept faith with several hardline immigration policies out of the Trump Administration, USCIS under Cissna has challenged immigration announcements and policies out of the White House. While the change comes among greater controversies in the administration, Cissna left with a positive message. He wrote “It gives me great pride to reflect upon the many strides we have made in a relatively short period of time to carry out our statutory mission and ensure that you’re appropriately trained and empowered to carry out your individual duties and responsibilities under the law.I also know we have carefully and purposefully laid the groundwork for many more, much-needed, lawful reforms to come in the near future.” While Cissna leaves after overseeing some of the toughest immigration policy changes in the past several decades, Cuccinelli may take measures to a new height.

CBP at the Port of Entry Refuse to Adjudicate L-1 Renewal Petitions

Customs and Border Patrol (CBP) officials at the Canadian border have reportedly denied Canadian citizen’s applications to renew L-1 petitions. At the Canadian border, CBP has refused to adjudicate anything other than initial L-1 petition or applications for commuter L class visas for Canadian citizens with visa exemptions under NAFTA. The sudden change in adjudicating policies at Canadian ports of entry effects both individual L-1 petitions and blanket L-1 petitions.

Prior Policy

Previous CBP guidelines for L-1 Intracompany Transferee Petitions for Canadian Citizens under the North American Free Trade Agreement (NAFTA) stated that L-1 petitions with proper documentation would be considered for adjudication at the Canadian border. Though not guaranteed, Canadian citizens could easily apply for L-1 visa permissions at any designated port of entry. This streamlined the visa process, allowing businesses to operate seamlessly across the border. By slowing the L-1 processes significantly, sometimes by several months, the changes could have severe effects on business operations between the United States and Canada.

New Denials.

In the past month, the CBP began to require Canadian citizens who previously obtained an L-1 visa to acquire L-1 visa petition for a new period through the United States Citizenship and Immigration Service prior to entry into the US. To obtain this, employers of L-1 beneficiaries must request to extend their employee’s L-1 status directly through USCIS and receive an I-797 approval notice. The new process will deny L-1 applicants the opportunity to have an in-person audience with immigration officials as most employers will have to file petition via mail. Additionally, L-1 visa beneficiaries could be forced to wait months to receive final determination from USCIS, a stark contrast from same-day process facilitated through CBP. While this policy is significant in its effect on business in the United States, particularly large technical companies in California, there has been no formal policy announced out of the Department of Homeland Security (DHS) or the CBP. We will continue to monitor announcements from CBP and DHS for more information on this sudden change to adjudication policies.

USCIS Challenged: Court Considers Restrictive H-1B Policies

A lawsuit filed by ITServe Alliance came to court for pre-trial proceedings on May 9th, bringing forth arguments against the United States Citizenship and Immigration Service (USCIS) and the Service’s policies that continue to produce H-1B visa denials. While there continues to be several restrictive USCIS policies, this lawsuit brings forth the issue of H-1B application denials with short validity periods and worksite requirements. In other words, USCIS currently may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion and deny applications based on third-party placement. District Judge Rosemary M. Collyer presently presides over the case and, at the conclusion of the lawsuit, will have a significant impact on future USCIS adjudications and policies. 

Lawsuit Arguments

According to Forbes correspondents, the lawsuit boils down to three major issues:

  • USCIS has not provided reasoning for disparate outcomes and adjudication processes for different types of employers (i.e. employment at primary worksite versus third party worksites);
  • USCIS does not explain why specific work assignments must stretch out for three years for contractors without allowing for paid, nonproductive time; and
  • There is no clear directive for changes to USCIS adjudication of H-1B petitions.

The plaintiff brings forth arguments against third party worksite policies, short validity periods, and anti-benching regulations. The plaintiffs argue that USCIS is beyond authority in denying applications when an employer intends to place H-1B workers at a third-party customer worksite. Representatives for the IT companies further argue that contractors should be considered viable employers under regulation 8 C.F.R Sec. 214.2(h)(4)(ii). In this case, the plaintiffs argue that contractors are as sufficient as day to day employers. To date, contracting H-1B employers have received denials based on third party, customer worksite location placements.

The plaintiffs have additionally brought issue with adjudication policies allowing short periods of visa validity, citing an H-1B approval that lasted only one day. The issue, like with other policy complaints, comes from the lack of transparency related to adjudication regulations. District Rosemary M. Collyer, over the next four weeks, will decide whether to order discovery (i.e. investigation of further information by each party) is necessary for the case.

Treaty Investor Program Open to Israel: E-2 Visa Program

The United States Embassy in Israel announced a new agreement permitting Israeli citizens to apply to the E-2 visa starting this month. Through the treaty, Israel follows 80 other countries listed under treaty investor status.

E-2 Program

The E-2 treaty investor program permits any national of a country with a treaty of commerce and navigation with the United States to apply to be admitted into the United States as a capital investor. Those permitted the E-2 non-immigrant classification may enter the United States to invest in businesses. This program expands trade agreements between the US and its allies by allowing foreign investment in U.S. business. To be eligible for the program, investors must hold at least 50% stake of the developing business. The E-2 program additionally expands to employees and organizational associates of primary investors who serve as essential personnel to the U.S. business.

Israeli Tech

The agreement between the U.S. and Israel will boost commerce. The Israeli Tech industry, in particular, has shown interest in expanding in the U.S. market and investing in new startups. According to Forbes, “around 15% of all venture capital investment in cybersecurity goes to Israel, and a recent report from the Israel Venture Capital Research center and ZAG-S&W firm showed that $1.44 billion raised in high tech capital in Q3 of 2017, with the average financing round at $10 million.”The agreement, years in the making, began during the Obama administration in 2012. However, the federal government does not begin a E-2 program with a treaty country until a similar investment exchange program exist with the agreement party. Therefore, given delays in the government of Israel, the Israeli program launched only last year. While years in the making, this agreement should bring booming business to the United States given the successful growing start-up economy in Israel.

USCIS & DHS Takedown Immigration Fraud Scheme Directed at Families

In Florida, federal prosecutors and the United States Attorney Maria Chapa Lopez announced indictment charges for Erika Paola Intriago, of Tampa, Florida. Intriago stands accused of four counts of wire fraud and three counts of wrongfully using government seals. Allegedly, Intriago posed as an immigration attorney through social media, manipulating immigrants and immigrant families from Florida to Illinois. If proven guilty, Intriago could face a penalty of 20 years for each count of wire fraud and up to five years in prison for each count of unauthorized use of governments seals.

Alleged Scheme

According to the indictment released by the Department of Justice (DOJ), Intriago posed as a licensed and qualified immigration attorney, despite holding no license to practice law in the state of Florida or any state for that matter. Intriago operated a business under the name of “EPI Services, INC” that purportedly helped assist individuals and families with all legal immigration matters. Through social media platforms like Facebook, Intriago advertised her services as a qualified legal expert in immigration matters to Hispanic immigrants around Florida. She particularly targeted vulnerable Spanish-speaking families, claiming to be a licensed immigration attorney. Victims of Intriago’s scheme needed assistance with matters before the United States Citizenship and Immigration Service (USCIS) and other agencies and payed Intriago to communicate between immigration agencies and the immigrant families both domestically and abroad. Intriago manipulated many of her victims by promising to secure her clients legal status if the victims payed through cash or money order. Intriago promised to pay USCIS fees directly, and instead pocketed the money without submitted forms or payments to the government. Intriago also stands accused of unauthorized use of government seals as a part of her scheme. Intriago would allegedly “create, copy, and affix seals of government agencies of the United States, including DHS and USCIS, to email messages, letters, and other documents created for and sent to her client-victims as purported proof that she was and had been acting on their behalf in immigration proceedings.” For some victims who had completed paperwork, Intriago either abandoned the immigration paperwork or did not inform her victims about notices of denial. Those victims who complained to Intriago were further victimized as Intriago would threaten to report undocumented clients to the U.S. Immigration and Customs Enforcement (ICE) Agency for deportation.

If you suspect someone is unlawfully posing as a licensed attorney, or you are someone or are aware of someone who is a possible victim please contact 1-866-DHS-2ICE.

USCIS on Marijuana (Naturalization)

The United States Citizenship and Immigration Service (USCIS) updated policies related to conditional bars to naturalization due to substance abuse violations. The policy memo notes that regardless of state law, controlled substance related activity will create a conditional bar to establish good moral character for naturalization. Despite legalization in several states, Marijuana use may put naturalization applicants at risk of denial.

Marijuana & Federal Law

Marijuana, a controlled substance under the Controlled Substances Act (21 U.S.C. 812) is permitted for recreational consumption and medical consumption in several US states and territories. The USCIS policy memo states that despite the increasing acceptance in the form of legalization or decriminalization of Marijuana in areas across the country since 1996, including the District of Columbia, federal law maintains that Marijuana is a controlled substance. In fact, Marijuana is listed as a “Schedule I” controlled substance whose “manufacture, cultivation, possession, or distribution may lead to criminal and immigration consequences.”

To become a naturalized citizen, applicants must prove good moral character. Evidence of controlled substance-related activity leads to a conditional bar to establishing good moral character, regardless if the individual operates within state law. Additionally, those who are employed in the Marijuana industry, whether directly or indirectly, may be barred from establishing good moral character. The policy clarification states “[an] applicant who is involved in certain marijuana related activities may lack [good moral character] if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.” Therefore, those who are found to consume or profit from the Marijuana industry, regardless of state legality, are deemed without good moral character under the USCIS policy manual. While the policy update largely targets those applicants in states which legalized marijuana, the controlled substance bar applies to all substances filed under the Controlled Substances Act (21 U.S.C. 812).

USCIS Issues Guidance on Child Marriage: Policy Update

The United States Citizenship and Immigration Services (USCIS) announced new guidance for adjudicating officers processing a Form I-130 spousal petition involving a minor party. Now, those petitions involving a minor party will require an initial interview as a part of the early stages of the Form I-130 adjudication.

Impacted Applications

From April 12th, 2019 on, all Form I-130 spousal petitions with a petitioner or beneficiary under the age of 16 years old will require an interview in the early stages. Those petitioners or beneficiaries seeking a spousal petition aged 16 or 17 will additionally be flagged for an initial interview if there is a 10 year or more age difference between the spouses. While there is no minimum age requirement for a spousal petition in the Immigration and Nationality Act, USCIS notes that the service will now consider these petitions with greater scrutiny given the unfortunate circumstances often surrounding child marriage. In many countries and areas around the United States, marriage is permitted before the age of 18 given specific requirements are met. The new initial interview process will ensure that the circumstances of the marriage were both legal and voluntary.

Circumstances Considered

When adjudicating a spousal petition with at least one minor petitioner or beneficiary, USCIS adjudicating officers will now consider the following:

  • Whether the marriage, at the place of celebration (e.g. country, municipality, etc.), was permissible under the local law;
  • Whether the marriage is valid under the current legislation of the couple’s present or understood state of residence, as filed in their Form I-130;
  • Whether the marriage conflicts with current public policy;
  • And, whether the marriage is legitimate under immigration guidelines.

This backstop will now help to ensure that all Form I-130 petitions are submitted without coercion or abuse of minor parties. In a statement, the Director of USICIS, L. Francis Cissna emphasized the Service’s dedication to additional scrutiny for spousal petitions involving minors, noting that the duty now falls upon Congress to provide “more clarity under the law” for USCIS adjudicating officers. Given the absence of federal law restricting the age of petitioners or beneficiaries seeking spousal immigration benefits, USCIS officers must assess these petitions on a case by case basis.

USCIS does however, have the power to issue a request for evidence (RFE), which largely places the responsibility of proving a bona fide relationship to the petitioners. Regardless, all petitions filed with a minor party are automatically flagged in the electronic system. USCIS then is alerted if a minor spouse or fiancé is involved in a Form I-130 petition. If the birthdate of a spouse was incorrectly filed, petitioners will have the opportunity to correct the mistake.

Marriage Fraud Business Take-Down

In Florida, two people stood before a United States District court for their involvement in a marriage and visa fraud scheme. Ravi Babu Kolla, a foreign national from India and Krystal Cloud, of Altha, Florida conspired together to assist Indian foreign nationals with obtaining immigration benefits through the spousal visa program. Both parties have since pled guilty to charges of conspiracy to commit marriage and visa fraud and conspiracy to commit money laundering. Ms. Cloud, a United States citizen who entered a fraudulent marriage in 2017, faces two years in federal prison while Ravi Babu Kolla awaits sentencing from the acting United States Attorney for the Northern District of Florida, Lawrence Keefe.

Florida Marriage Fraud Scheme

For a period of 18-moths, from winter of 2017 to the summer of 2018, Kolla controlled an immigration fraud business in Bay County, Florida that sought out United States citizens to marry Indian foreign nationals. These clients payed Kolla to obtain US citizen spouses to remain in the United States under a fraudulent visa. According to the Department of Justice, a vast proportion of the foreign nationals had unlawfully extended the period of their prior visa or student visa, and were unlawfully present in the United States. While the recruitment of US citizens took place in Florida, the majority of the fake marriages were performed in the state of Alabama. In total, Kolla and Cloud facilitated over 80 fraudulent marriages.

In assisting with recruitment of US citizens, Cloud, a party in a fraudulent marriage herself, targeted vulnerable citizens in the largely rural areas surrounding Panama City and other nearby areas. In total, she pled guilty to assisting over 10 fraudulent marriages starting in late 2017. Cloud additionally aided in the gathering of personal information from the US citizen spouses, required in Form I-130 petitions. Kolla then created fraudulent immigration forms to allow those Indian foreign nationals who payed for Kolla’s services to live and remain in the United States. A United States citizen, Cloud will see only two years of prison. However, Kolla, who is detained in Florida awaiting sentencing procedures, could face up to 5 years for conspiracy to commit marriage fraud in addition to up to 20 years for money laundering conspiracy.