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What is the Impact of the Government Shutdown on Immigration?

Posted January 22, 2018Cynthia S. CoulangeArticles

We are currently in the midst of a government shut down as Congress struggles to agree on a federal spending bill or a short-term continuing resolution to continue funding the federal government.

Generally, if the government shuts down for budgetary reasons, all but "essential" personnel are allowed to work and many government agencies are therefore unable to operate until funding is restored. How does this impact immigration processes? Below is an overview of how the various agencies involved in the immigration process will be affected by the shutdown.

United States Citizenship and Immigration Service (USCIS): USCIS is a fee-funded agency with the exception of E-Verify. USCIS will continue to operate as usual during the shutdown.

 

Department of State (DOS): Visa and passport operations are fee-funded and generally are not impacted by the shutdown. Operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and "life or death" emergencies.

 

Customs and Border Patrol (CBP): Inspection and law enforcement personnel are considered "essential” as such, ports of entry will be open; however, processing of applications filed at the border may be impacted.

 

Immigration and Customs Enforcement (ICE): ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

 

Department of Labor (DOL): The Office of Foreign Labor Certification (OFLC) would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. New LCA’s and PERMs cannot be filed electronically during this time as the websites are no longer accessible. For PERM cases where recruitment expires during a shutdown the DOL would make accommodations for filers affected by the shutdown and allow a grace period for late submissions in the case of expired prevailing wages or recruitment.

 

CIS Ombudsman: The DHS Office of the CIS Ombudsman is not currently accepting any inquiries through its online case intake system.

 

As, always, if you have questions regarding an immigration process, please reach out to your designated Meltzer Hellrung Attorney. 

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CBP Issues Updated Policies on Electronic Device Searches

Posted January 16, 2018Articles

On January 4, 2018, U.S. Customs and Border Protection released an updated Directive Governing Border Searches of Electronic Devices. The Directive clarifies that the searches may be conducted by CBP Officers or other authorized individuals and the types of border searches they may conduct. In fiscal year 2017 CBP conducted 30,200 border searches of electronic devices, out of more than 397 million international travelers. This translates to about 0.007 percent of people being subjected to a device search; a 0.002 percent rise over fiscal year 2016.

Border searches of electronic devices are limited only to information stored on the device. Specifically, on the operating system or other software, tools, or applications. Officers cannot access information stored remotely that requires network connectivity to access. Officers will ask individuals to disable network connectivity, or, if warranted, may do so themselves. The Directive outlines two types of searches. Basic searches allow an Officer, to examine, review, and analyze a device, with or without suspicion. Advanced searches are similar to basic searches but allow an Officer to copy the contents of the electronic device as well. The Directive also establishes that CBP should detain a device for no more than five days unless approval to extend a hold is granted by a supervisor.

If you are stopped by a CBP officer while entering or exiting the United States and the officer decides to do a device search, they cannot require you to unlock the device, but failing to comply or failing to provide assist in providing a passcode or way to unencrypt the device could result in the device being detained, seized, or retained by CBP. It will also likely delay your entry or departure. For nonimmigrants, failure to assist a CBP officer may also lead the officer to determine that you are not admissible. U.S. citizens cannot be refused admission to the U.S. and permanent residents are generally still admitted.

Companies may want to consider implementing a policy on how employees using company devices should respond if an officer asks to search a device as well as what company information employees should or should not have on personal devices. In addition, we suggest that individuals travelling internationally:

  • Travel with as little data or as few company files on devices as possible.
  • Limit information stored directly on the phone and instead consider storing files or information in a way that is only accessible with a network connection.
  • If it’s not entirely necessary to travel with the device, consider leaving it at home or travelling with a different device.
  • Uninstall applications or delete other information or files prior to passing through a border checkpoint.
  • Let the officer know if there is any sensitive or privileged information on the device as it may require them to reach out to the CBP Associate/Assistant Chief Counsel’s office.
  • If a border search is conducted CBP should provide you with information on how to report concerns about the search or to seek redress if you feel you were treated unfairly. If the officer does not provide this information, you may request it.
  • If your device needs to be detained, CBP must issue you a completed custody receipt on Form 6051D. If it is not provided, request it immediately.

If you have any questions about border searches you can reach out to your designated Meltzer Hellrung LLC attorney.

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Potential Visa Alternatives for TPS Beneficiaries

Posted January 16, 2018Cynthia S. CoulangeArticles

Potential Visa Alternatives for TPS Beneficiaries

On January 8, 2018, the Department of Homeland Security announced that Temporary Protected Status (TPS) designation for nationals of El Salvador would be terminated. Foreign Nationals from El Salvador who currently benefit from TPS will have until September 2019 to either depart the United States or obtain some other visa status. El Salvador joins Haiti, Nicaragua, and Sudan as the most recent country to lose this designation. An estimated 200,000 people from El Salvador are expected to lose TPS once the status expires. Beneficiaries from El Salvador are the largest group of people who currently benefit from this protection.

For employers who currently employ individuals from these countries, there may be alternative visa options for foreign nationals who will soon be losing work authorization. Individuals on TPS may be eligible to be sponsored for a green card through the PERM process which involves a testing of the labor market. Subsequently, many individuals on TPS are eligible to adjust their status to a permanent resident while inside the United States. TPS holders may apply for an advance parole document which allows them to travel outside of the United States and subsequently re-enter the U.S. This entry will allow the TPS beneficiary to subsequently apply for their green card inside of the United States instead of going to a U.S. embassy or consulate abroad.

Another alternative for employees in occupations which require at least a Bachelor’s degree is the H-1B visa lottery. Employers may potentially file an H-1B visa petition on behalf of the employee in this year’s upcoming H-1B visa lottery. There are only 85,000 visas issued each year in the lottery. Applications submitted in April 2017’s lottery had about a 33 percent chance of being selected. If selected, the Beneficiary’s work authorization would begin on October 1st of 2018.

As, always, if you have questions regarding an employee’s visa options, please reach out to your designated Meltzer Hellrung Attorney.  

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Planning for the H-1B Cap

Posted January 5, 2018Kristen KellarH-1B

With the annual April H-1B cap right around the corner now is a great time to start thinking about individuals you’d like to sponsor and opening cases. The H-1B cap officially opens April 2, 2018. For the past few years, the USCIS accepted cap petitions the first five business days of the month, and we anticipate the same this year. Petitions received after will not be eligible to be selected in the H-1B cap lottery. Starting the process early can provide peace of mind as April approaches knowing that the cases are prepared and that if positions or employees change there is time to make adjustments.

Employees you may consider sponsoring for the cap include:

  • Employees in F-1 OPT or CPT status
  • Employees who are currently working abroad
  • Employees in other visa statuses who may be sponsored for a green card
  • Employees working on an H-4 EAD
  • Employees currently on TN status, such as those working under the Economist category.

Due to the nature of the H-1B cap, even if an employee’s current status is valid until 2019 or later, you may want to consider filing an H-1B cap case now so that they have more chances at the cap. This past April, USCIS received 199,000 petitions for 85,000 spots.

It is also important to keep in mind processing timelines for the certified Labor Condition Application (LCA), which is required for all H-1Bs. If your company has not filed an LCA in the past, it must register with the Department of Labor prior to filing an LCA. Typically, it takes a few days for the Department of Labor to verify a company, but verification tends to take longer as April approaches. Once a company is verified with the Department of Labor, the LCA can be filed. LCAs are usually certified in 7 days, but that timeline tends to get longer as well. In the event of any error on the LCA or change to to position it’s vital to have time to correct it and have a new LCA be certified.

For companies that place employees at client sites, starting the H-1B process early can provide more time to ensure that sufficient evidence regarding the client relationship can be obtained. Providing client documents early allows your business immigration attorney ample time to review them and for additional documents to be obtained in the event of incomplete or insufficient evidence. Not having the proper documentation can result in an inability to file the case or a Request for Evidence later.

We encourage you to speak with you Meltzer Hellrung LLC attorney about any individuals you’d like to sponsor or if you have questions about the types of positions that qualify for an H-1B.

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US Embassy in Turkey Resumes Visa Services

Posted December 29, 2017Karen GillespieArticles
Following a three-month cessation of visa services in Turkey, the U.S. Embassy in Ankara will resume full visa processing for Turkish citizens seeking entry to the U.S. It is likely that heightened scrutiny will apply to any visa applications from Turkish citizens given the strained relationship between the U.S. and Turkey but, for now, applications will be reviewed and processed. If any of your employees have been affected by this cessation of services, Meltzer Hellrung is available for consultation on moving forward with any new or extended visa applications. 

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