Monique Kornfeld, Immagration Lawyer

Judge Rejects DHS Delay on Foreign Entrepreneur Startup Visa Immigration Program

December 5th, 2017

A federal judge ordered the Department of Homeland Security (DHS) to rescind its delay of a rule allowing certain foreign entrepreneurs to work in the US to grow their startup companies. The National Venture Capital Association filed a lawsuit in the US District of Columbia challenging the delay of the International Entrepreneur Program (IEP). It argued that the Trump Administration violated the Administrative Procedures Act (APA) by ignoring the proper procedures in postponing implementation of the International Entrepreneur Program (IEP), which was scheduled to go into effect on July 17, 2017. Several technology companies later joined the suit.

The rule, proposed by President Obama, would allow for foreign entrepreneurs to work in the US for five years to direct and develop their business. In July 2017 before the effective date, the Trump Administration pushed back the implementation to March 14, 2018, stating that it was “highly likely” that the rule would be revoked. Judge Boasby held that the government violated the APA, which requires that the government provide the public with a voice during the rule-making process, and in particular, with the opportunity to provide comments in advance of the proposed delay.

The International Entrepreneur Program (IEP), often called the startup visa, will allow foreign entrepreneurs to grow innovative companies, stimulate the economy and create jobs. The US economy has thrived in part because of the significant contributions of immigrant entrepreneurs.

Although the NVCA is victorious in its suit, it is not clear whether or when DHS will begin accepting IEP applications. It is also possible that DHS will appeal the District Court ruling.

Supreme Court Allows Trump’s Travel Ban to Temporarily Take Effect

December 5th, 2017

On December 4, 2017, the US Supreme Court allowed President Trump’s third travel ban to temporarily take effect while it is being challenged in the appeals courts. It issued orders staying two federal district courts’ preliminary injunctions barring the ban.

The third travel ban encompasses eight countries – six Muslim majority (Chad, Iran, Libya, Yemen, Syria, Somalia), North Korea and Venezuela). It is not a blanket ban, since it allows for certain foreigners to enter the US depending on the country (for example, Iranian students may enter the US).

BALCA Overturns PERM Denial in Matter of Marlabs

November 27th, 2017

In Matter of Marlabs, Inc. 2013-PER-01125 (Nov. 9, 2017), BALCA reversed the Department of Labor’s (DOL) denial of a PERM labor certification application (ETA 9089). The employer filed an Application for Permanent Employment Certification (“Form 9089”) sponsoring the alien for permanent employment for the position of “Software Developers, Applications,” and required a master’s degree and five years of experience. Also, the employer did note that it would accept any suitable combination of education, training or experience. In response to an audit, the employer had provided a statement that the rejection was due to lack of a bachelor’s degree. The certifying officer (CO) determined that the employer’s statement that the applicant did not meet the minimum requirements was not specific enough to determine whether the employer rejected the applicant for a lawful, job-related reason. The CO concluded “the mere assertion that a candidate does not have a Bachelor’s degree is not sufficient to reject the candidate without additional information” because the employer stated it would accept any suitable combination of education, training, and/or experience.

BALCA disagreed with the CO because it found that there was no reasonable possibility that the applicant met employer’s job requirements based on his resume alone. It cited to several cases noting that it is the employer’s burden to demonstrate that there is no reasonable possibility that an applicant meets the job requirements (Xerox Business Services, LLC, 2013-PER-00092 (Jan. 27, 2017); Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc). BALCA also stated that in Select International, Inc. 2011-PER-01478 (Sept. 19, 2012), it held that if the applicant’s resume “indicated” that the applicant lacked the minimum requirements for the job, then the employer could reject the applicant without an interview. In addition, BALCA noted that the same standard applied to major requirements such as a college degree. Lemon Bay Drugs, 2015-PER-00009 (Jan. 12, 2017).

In this case, BALCA stated that the applicant’s resume was silent for a major requirement, i.e., a college degree, and that the applicant had no relevant experience and provided no evidence that he had any training in the job opportunity. Hence, BALCA concluded that the employer rejected the applicant for a lawful, job-related reason.

San Francisco Federal Judge Permanently Blocks Trump’s Sanctuary Cities Executive Order

November 24th, 2017

On November 20, 2017, a federal judge in San Francisco enjoined Trump’s executive order that tried to cut funding to so-called sanctuary cities, one more legal hurdle to Trump administration’s efforts to increase deportations. US District Judge William Orrick called Trump’s order “unconstitutional on its face.” The executive order threatened to terminate federal law enforcement grants from cities that did not cooperate with the Trump administration in its arrest campaigns.

In particular, Judge Orrick granted the Counties’ motions for summary judgment on the executive order to permanently enjoin Section 9(a) of the executive order. He held, “The Counties have demonstrated that the Executive Order has caused and will cause them constitutional injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth Amendment rights.” He also concluded, “Because Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here, a nationwide injunction against the defendants other than President.”

Sanctuary city is not an actual legal term and is broadly defined as one that limits cooperation with federal immigration authorities, including barring local police from asking about a person’s immigration status or refusing to deliver undocumented immigrants being held in jails (detainers). In Lunn v. Commonwealth, the Massachusetts Supreme Judicial Court ruled that local law enforcement officials do not have authority under state law to detain a person solely on an Immigration and Customs Enforcement (ICE) detainer.

Courts in Philadelphia and Chicago have similarly found the executive order defunding sanctuary cities as unconstitutional.

DHS Terminates Temporary Protected Status (TPS) for Haitians as of July 2019

November 22nd, 2017

The US Department of Homeland Security (DHS) announced that it will terminate Temporary Protected Status (TPS) designation for Haiti as of July 22, 2019. Haitians with TPS will be required to reapply for EADs in order to legally work in the United States.

Temporary protected status is offered to legal US residents and undocumented immigrants when war, natural disaster or other “extraordinary” conditions temporarily make return to their native country unsafe. The foreign nationals can obtain employment authorization, but TPS status does not “lead to lawful, permanent resident status.” Foreign nationals from 10 nations legally reside in TPS status in the US and these countries are El Salvador, Honduras, Nicaragua, Somalia, Sudan, South Sudan, Syria, Nepal and Yemen. Nicaragua’s TPS designation will terminate in 2019 and DHS is expected to make a decision on El Salvador’s TPS fate next month.

Haiti was originally granted TPS designation because of the devastating earthquake that struck it in 2010. Haiti was already the Western Hemisphere’s poorest nation in 2010 and the earthquake killed more than 200,000, left hundreds of thousands homeless and decimated most of the island’s infrastructure. In its recent decision, DHS determined that the extraordinary conditions caused by the 2010 earthquake no longer exist and that under the applicable statute TPS designation must be terminated. However, a variety of American groups, including the Congressional Black Caucus and the US Chamber of Commerce decry the termination, stating that Haiti is still in dire straits and cannot adequately handle the safe return of their nationals and that the approximate 60,000 Haitians who are in the US pursuant to TPS status are working, paying their taxes, sending needed money home to Haiti and have raised families in the US.

Almost 30,000 children have been born in the US to Haitian TPS holders. These children are US citizen and entitled to remain in the US. Their parents face a heart-wrenching decision: take their children back to the Haiti, leave them with relatives or guardian in the US or remain in the country illegally and risk deportation. Some of the parents may qualify for cancellation of removal if they can show extreme hardship to a US born child.

USCIS Adopts Decision of Matter of G- Defining Function Manager for EB-1C Multinational Executive/Manager Petition

November 16th, 2017

On November 8, 2017, USCIS issued a policy memo on multinational function managers designating Matter of G-, Inc. as an adopted decision (Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017) . Matter of G- states that to satisfy the requirement that the beneficiary will be employed in a managerial role as a function manager (as opposed to a manager of people), the following must be demonstrated:

1. The function is a clearly defined activity;
2. The function is “essential,” i.e., core to the organization;
3. The beneficiary will primarily manage, as opposed to perform, the function;
4. The beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
5. The beneficiary will exercise discretion over the function’s day-to-day operations.

In order to be classified as an EB-1C multinational executive/manager for immigrant visa purposes, the following requirements must be met:

1. The foreign national was employed in a full-time executive or managerial position for one year in the three years preceding his or her transfer into the U.S;
2. The foreign national was employed in such capacity by the overseas affiliate, parent, subsidiary or branch of the US petitioner employer;
3. The foreign national will work in a managerial or executive capacity for the affiliated entity in the US; and
4. The US petitioner has been operating for at least one year as of the date of filing the petition.

December 2017 Visa Bulletin

November 14th, 2017

The Department of State (DOS) posted the Visa Bulletin for December 2017, which provides the visa number availability for family-sponsored and employment-sponsored preference categories, as well as for the diversity visa lottery cut-offs. As of November 14, 2017, USCIS has not announced whether in December 2017 it will accept adjustment of status applications based on the filing dates or the final action dates chart. USCIS anticipates that this information will be released within one week of the monthly Visa Bulletin.

The EB2 category for India is at November 1, 2008, and for China July 1, 2013. The EB1 category across the board remains current. The EB3 worldwide category remains current and the EB3 category for China is at March 8, 2014, and at October 15, 2006, for India.

Ninth Circuit Allows for Implementation of Travel Ban with Exceptions for Individuals with Credible Relationships

November 13th, 2017

The Appeals Court of the Ninth Circuit issued an order staying the district court’s October 20, 2017, preliminary injunction against the ban on entry (“travel ban”) of nationals from Chad, Iran, Libya, Somalia, Syria and Yemen, except as to foreign nationals who have a credible claim of a qualifying family or institutional connection to the U.S. People with a qualifying family relationship include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. Formal documented relationships to a U.S.-based entity, such as a university or employer in the U.S. may also qualify to exempt individuals from the travel ban.

The Ninth Circuit is scheduled to hear oral arguments on the case to block the ban on December 6th. The Fourth Circuit U.S. District Court of Appeals in Richmond, VA will hear an appeal to a similar injunction on implementation of the travel ban on December 8, 2017.

Everyone Is Fair Game for Deportation

November 9th, 2017

The Independent reports that everyone is fair game for deportation (removal) under the Trump administration. Arrests of undocumented immigrants have jumped compared to last year and there has also been a shift in who is being picked up for deportation.

US Immigration and Customs Enforcement (ICE) has arrested up 30,000 aliens more between January and September of this year compared to in 2016. ICE states that it is prioritizing aliens who pose a threat to national security or public safety. However, many of the aliens arrested had committed only immigrant-related offenses like illegally reentering the US or falsifying documents.
Of the 97,482 immigrants ICE arrested between January and September of 2017, 28,011 of them (around 28%) were non-criminals. For the same period last year, this was 16%.

One of Trump’s first executive orders overhauled how ICE agents perform their jobs and it discarded Obama-era rules prioritizing some immigrants over others. The Obama administration focused on criminal aliens and Trump’s directive sets its sights on anyone here illegally and they are all at equal risk of being deported.

Trump Calls for an End to the Diversity Immigrant Visa Lottery Program

November 2nd, 2017

In the wake of the terrorist attack in New York City this week by a foreign national who entered using the Diversity Immigrant Visa Program, President Trump has called for ending it. Eliminating the program is not the answer to terrorist attacks, since it is an important part of the US immigration system and the Diversity Visa entrants undergo extreme vetting.

Diversity Visa lottery winners undergo screening just like every other immigrant visa applicant, including employment and family-based immigrants. The process is extremely thorough and can take many months. Security screening includes biometrics capture; name and fingerprints checks against many government agency databases to identify potential criminal or national security issues; and checks against terrorist, organized crime, gang and other watch-lists. Also, in some instances a “Security Advisory Opinion” may be required from the Department of State headquarters before a visa is issued.

The Diversity Immigrant Visa Program, also known as the Diversity Visa lottery, since the visas are issued based on a lottery of applicants, provides for immigrant visas (legal permanent residency) for immigrants from countries with historically low rates of immigration to the US. Each year 50,000 visas are available and they Diversity Immigrant Visas are distributed among six geographic regions. There is no fee for applying for the Diversity Visa lottery. The deadline for the next Diversity Visa lottery program (DV-2019) is November 22, 2017. The following is the list of countries whose foreign nationals are not eligible for the Diversity Visa lottery program for 2019: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El
Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Applicants who are selected must meet the following requirements:
1. Earned at least a high school education or its equivalent, defined as completing a 12-year course of formal elementary and secondary education; or
2. Two years of work experience within the past five years in an occupation that requires at least two years of training or experience.

Applicants must submit the ‘Electronic Diversity Visa Entry Form (E-DV Entry Form or DS-5501) online at dvlottery.state.gov. Starting on May 15, 2018, applicants can check their status online to see if they have been selected for DV-2019. The spouse and children under 21 of the applicant may also immigrate with the applicant.

If selected as one of the DV-2019 lottery winners, then the US Department of State will schedule an interview at a US consulate or at a local USCIS office in the US (to adjust status) and provide detailed instructions beforehand. DV selectee must be admissible to the US and complete the online Form DS-260. All selectees, including their family members, must be issued their visas by September 30, 2019. If the above comprehensive screening process is not completed by this date then the selectee will be denied a visa and lose his or her opportunity to immigrate through this program for this year.