Immigration Law Update - Squire Patton Boggs/media/files/... · Immigration Reform in 2013 passed the Senate but Stalled in the House. Since ... EB-5 Immigrant Investor Reform

Immigration Law Update

Brian Schield, Partner

Greg Wald, Principal

Sam Mudrick, Senior Associate

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Squire Patton Boggs US Immigration Lawyers

Brian E. Schield

Partner, Los Angeles

T +1 213 689 5109

E [email protected]

Samuel J. Mudrick

Senior Associate, Washington DC

T +1 202 457 5218

E [email protected]

Gregory A. Wald

Principal, San Francisco & Miami

T +1 415 393 9828

E [email protected]

Shanti Faiia

Associate, New York

UK Practitioner

T +1 212 872 9846

E [email protected]

Rebekah J. Poston

Partner, Miami & Latin America

T +1 305 577 7022

E [email protected]

Ranita Shah

Associate, San Francisco

T +1 415 954 0205

E [email protected]

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Update on Executive and

Congressional Action

Sam Mudrick, Senior Associate


Executive Immigration Proposal & Results

Immigration Reform in 2013 passed the Senate but Stalled in the House. Since

then, Congressional gridlock and partisanship has not led to much movement.

2014 Executive Plan Focused on Three Areas

(1) Deportability Relief and Employment Authorization for Undocumented

• Deferred Action for Parental Accountability (DAPA)

• Expansion of Deferred Action for Childhood Arrivals (DACA)

(2) Border and Interior Enforcement Shifts

• Increased resources for border enforcement and Improved interior

enforcement, including employer duties. New task forces are operational since

February 2015

• Centralize and clarify instructions for prosecutorial discretion and enforcement

priorities. January 2015 revisions are now in effect.

(3) Changes to Legal Employment & Family Systems

• A veritable grab bag

• A few employer-related changes and a Brief Overview of Family-Based Delays

Mixed Results


Legal Employment Changes

Multi-Agency Green Card Task Force

Seek to harmonize and create efficiencies in application process and quota system.

This includes improvements to the Visa Bulletin and ensuring use of all available

immigrant visas.

Result: Bifurcation of the Visa Bulletin into dates for filing and dates for final

adjudication. Will allow some individuals to apply earlier, and receive certain

benefits and assurances while the application is pending.

Corrections were required to walk back the hoped for Increases in visa numbers.

Not as effective as expected. Coming months will determine lasting changes.

Increased Portability and Benefits for Employees Adjusting Status

Clarify and expand AC21 Portability definition of “same of similar” employment.

Allow those waiting on quotas to file for adjustment of status with resulting

employment and travel authorization and to change employers while waiting.

Results: No Substantive Action, perhaps some similar benefits from the Bifurcation

of Visa Bulletin.


Legal Employment Changes

Expand Optional Practical Training (OPT) for Recent Graduates (F-1 visa)

Would increase the ability of employers to hire and employ graduates when no visas

are available. Other benefits for STEM graduates.

Result: August 2015 US District Court for DC found the DHS 2008 creation of the 17

month STEM extension did not provide sufficient notice and comment, and was

therefore unlawful. Under appeal. Executive branch is taking steps to obtain proper

approval for the program. Enforcement of Court order stayed until 2/12/16.

Employment Authorization for H-4 Visa Holders (Spouses of H-1B)

Large benefit to families waiting for many years until green cards become available.

Only for those whose H-1B spouse has received approval for the first part of the green

card process.

Result: Guidance was issued in early 2015 and spouses of certain H-1B visa holders,

in late stages of the green card process, were permitted to apply for employment

authorization beginning on May 26, 2015.


Impact on Employers

Expanded Options for R&D and Investors

National Interest Waiver requirements clarifications. Parole for Entrepreneurs,

Investors, and Researchers with no other options.

Result: No substantial action. Various bills in Congress, but Executive won’t permit

low-hanging fruit at expense of comprehensive reform.

PERM Green Card Recruitment Modernization

Improved workforce shortage and surplus analysis; Modernization of recruitment

requirements; Changes in application process and timing (Premium Processing?)

Result: No substantial action. Working groups are discussing the issue.

L-1B Specialized Knowledge Clarification

Clarify definitions and requirements to allow easier intra-company transfer of

employees from international affiliates.

Result: See Below.


Other Topics of Reform

EB-5 Immigrant Investor Reform

Various Bills Circulated in Congress. Set to expire September 30, 2015.

Result: Extended without change through December 11, 2015. Changes likely in

next reauthorization.

DACA and DAPA Context and timing

Originally estimated to have been rolled out in early 2015 and impact 3 - 5 million

Top 6 DACA states: CA, TX, IL, NY, FL, AZ

26 mostly Republican-led states brought suit in federal court to block the programs

claiming overreach of executive authority and unjust imposition of costs.

Various rulings to date have put the program on hold, delays may last until 2016.

No chance of Congressional Action in favor of similar programs.

Presidential Election 2016 and Hope in Congress?

Status Quo v. Roll Back

Boehner exit reflects immigration debate in House


New L-1B Visa Adjudications Policy

Brian Schield, Partner


Understanding the L-1B Visa Template

What is the L-1B visa?

In 1970, Congress created the L-1 visa program to enable employers to more

effectively transfer personnel within their international organizations

Specifically, the L-1A classification is available for intracompany transfers of

corporate managers and executives, while the L-1B visa classification

enables intracompany transfers of employees who possess “specialized

knowledge.”

For the last 7 years, the USCIS has significantly increased its scrutiny of L-

1B petitions, which has resulted in 45% of applications receiving evidence

requests (RFE); the denial rate reached an all-time high of 35% in FY2014.

(In contrast, only 2% of cases received an RFE in 2004)



The L-1B Policy resulted from the 2014 Executive Order

President Obama’s announcement of a series of executive actions on

11/20/2014 included improving and clarifying certain aspects of the

L-1B program.

The executive order promised to provide clear consolidated guidance on

the meaning of “specialized knowledge” to bring greater clarity and integrity

and improve consistency in adjudications

USCIS released a draft policy guidance memo in March 2015, followed by a

final version on August 31, 2015

The final Policy Memorandum is stated to be USCIS’s authoritative

guidance on the L-1B program, superseding and rescinding prior L-1

memoranda, and ensuring compliance with the L-1 Visa Reform Act of

2004 concerning placement of L-1B beneficiaries at third-party worksites.



Elements of L-1B Classification

In order to establish eligibility for approval, the L-1B petition must show:

1. The beneficiary possesses “specialized knowledge”

2. The position offered involves the “specialized knowledge” held by the beneficiary

3. The beneficiary has at least one continuous year of employment abroad in a

managerial, executive, or specialized knowledge capacity with the qualifying

organization within the preceding 3 years (The work performed in the U.S. need

not be the same type the beneficiary performed abroad)

In addition, if the beneficiary will be primarily working at the location of an

unaffiliated company, the petitioner must establish that the beneficiary:

1. Will not be controlled and supervised principally by the unaffiliated employer

2. Will be placed in the provision of a product or service for which specialized

knowledge specific to the petitioning employer is necessary



Definition of “Specialized Knowledge”

Can be established by either one of two statutory criteria:

1. “Special” knowledge of the company product and its application in international

markets

2. An “advanced” level of knowledge of the processes and procedures of the

company

The memo goes on to say “special knowledge” of the petitioner’s product,

service, research, equipment, techniques, management, etc., and its

application in international markets must be “distinct or uncommon” in

comparison to that generally found in that industry

or

“advanced knowledge” which is knowledge of or expertise in the petitioner’s

specific processes and procedures not commonly found in that industry and

is “greatly developed or further along in progress, complexity and

understanding” than is generally found within the petitioner



Application of the “specialized knowledge”

The L-1B beneficiary may possess either special or advanced knowledge,

or both

With respect to either special or advanced knowledge, petitioner must

demonstrate that beneficiary’s knowledge is not commonly held throughout

the industry

Consequently, determining whether knowledge is “special” or “advanced”

requires a comparison of the beneficiary’s knowledge against other

similarly employed workers in the industry to show the beneficiary’s

knowledge is distinct or uncommon

Alternatively, to prove the beneficiary possesses advanced knowledge of

petitioner’s processes and procedures not commonly found in the industry,

petitioner must show beneficiary’s knowledge is specific to the organization

and is greatly developed or further along in comparison to that of other

workers in the employer’s operations



Factors that determine if knowledge is specialized

The memo provides a non-exhaustive list of factors that USCIS may consider

to determine whether knowledge is specialized:

L-1B beneficiary possesses knowledge of foreign operating conditions of significant

value to petitioner’s U.S. operations

Prior employment in assignments that have significantly enhanced the employer’s

productivity, competitiveness, image or financial position

Type of special knowledge that could only be gained through prior experience with

the organization

Product or process knowledge that cannot be easily transferred or taught to another

employee without cost or inconvenience, i.e., imparting such knowledge may require

substantial training, experience, education, or

there is time sensitivity of petitioner’s need




A showing of one or more (or similar) factors when assessed under

petitioner’s circumstances may be sufficient to establish eligibility

The memo clarifies that:

Specialized/Advanced knowledge cannot be commonly held, lacking in complexity,

or easily imparted to other employees

Specialized knowledge need not be proprietary or unique to petitioner

There is no test of the U.S. labor market

Specialized knowledge need not be narrowly held within petitioner (however USCIS

may assess the need to transfer the beneficiary if there are other employees with

similar knowledge. A footnote states that one factor USCIS may consider is

whether the total compensation paid to the beneficiary is comparable to peers –

significantly lower compensation may indicate beneficiary lacks specialized

knowledge)




The memo clarifies that (continued):

L-1B beneficiaries need not hold managerial positions or receive higher

compensation compared to peers

Eligibility for another NIV such as an H-1B does not preclude approval of L-1B



USCIS’s evaluation of Beneficiary’s specialized knowledge

Petitioner must submit “a detailed description of the services to be

performed” in addition to detailed information about its industry, products or

services, the nature and need for beneficiary’s specialized knowledge

Adjudicators may request additional evidence – hence, we should anticipate

receiving RFE’s as we have in the past, including requests for a percentage

breakdown of specific job duties



Readjudication of L-1B Status

USCIS should give deference to a prior USCIS approval of L-1B

classification, unless there was a material error made in the prior

approval, a substantial change in circumstances or receipt of new material

information

Policy deference does not apply to new office extensions

USCIS will take note of prior determination of eligibility by DOS or CBP,

however, such determinations are not entitled to deference – USCIS may

make its own determination based on the extension petition record



In the aftermath of the Policy change

USCIS continues to allow examiners too much power to issue RFE’s

Although USCIS states that detailed statements from employers can serve as

persuasive evidence, examiners retain broad authority to issue RFE’s to

support petitioner’s assertions

USCIS’s ability to ignore prior eligibility determinations by other agencies

defeats the purpose of the Blanket L-1 program, and places USCIS above DOS

and CBP, which have equal statutory authority to determine L-1B eligibility

Makes clear the rules promulgated in the 2004 L-1 Act with regard to sending L-

1B workers off-site to work for clients of consulting companies

Those opposed to the presence of foreign workers, such as U.S. Sen. Charles

Grassley, R-Iowa, say the policy may result in hundreds of thousands of

temporary foreign workers being admitted to the U.S. to perform identical

specialized work that can be done by U.S. workers


I-9, E-Verify and Related

Compliance Updates



Form I-9 - Section 1


Form I-9 - Section 2


Form I-9 - List of Acceptable Documents

All Must Be Unexpired


Unlawful Employment – Prohibited Practices and

Penalties, §274A(a), INA

Unlawful to knowingly hire unauthorized aliens (or continue to employ aliens

knowing that they are or have become unauthorized to work in the United States)

Civil Penalties

For unauthorized employment

• First Offense: $375 - $3,200 per employee

• Second Offense: $3,200 - $6,500 per employee

• Subsequent Offenses: $4,300 - $16,000 per employee

For paperwork violations: $110 to $1,100 for each I-9

In determining the amount of the penalty, DHS considers:

Size of the business

Good faith of the employer

Seriousness of the violation

Whether or not the individual was unauthorized

History of previous violations

Criminal Penalties

$3,000 and/or 6 months imprisonment for engaging pattern or practice

Up to 5 years imprisonment where person knowingly uses fraudulent ID documents or makes false

I-9 attestations


Unlawful Employment – Prohibited Practices and

Penalties

Actual knowledge of hiring/employing unauthorized alien

Constructive knowledge (“should have known”) – 8 CFR 274a.1(l)(1)

Failure to complete or improper completion of I-9 paperwork

Employer has reason to know that employee unauthorized (filed a Labor

Certification or employee seeks sponsorship)

Employer acts with reckless or wanton disregard of legal consequences of

allowing another to introduce unauthorized alien into workforce

Knowledge may not be inferred from an employee’s foreign appearance or

accent. Nothing in definition should be interpreted as permitting the employer

to request more or different documentation than is required for I-9


Unlawful Employment – Defenses

Good faith and substantial compliance defenses (reasonably

appears, upon reasonable inspection, to be genuine)

E-Verify

Use of labor through contract – not a defense if employer knew was

unauthorized, then treated as employee for sanctions


Immigration Discrimination – Prohibited

Practices, §274B, INA

Employers may not commit discrimination based on citizenship or

national origin with respect to hiring, firing, and recruitment or referral

for a fee

Employers may not request more or different documents than are

required to verify employment eligibility, reject reasonably genuine-

looking documents, or specify certain documents over others with the

purpose or intent of discriminating on the basis of citizenship status

or national origin (document abuse)

Protected classes: U.S. citizens, permanent residents, temporary

residents (TPS), asylees and refugees


Immigration Discrimination - Penalties

Citizenship or national origin discrimination:

First Offense: $375 - $3,200 per violation

Second Offense: $3,200 - $6,500 per violation

Subsequent Offenses: $4,300 - $16,000 per violation

Document abuse: $110 - $1,100 per violation


The Enforcers

Department of Homeland Security (DHS) – Homeland Security

Investigations (HSI) and Immigration and Customs Enforcement (ICE)

Department of Labor, Office of Federal Contract Compliance

Programs (OFCCP)

Department of Justice (DOJ), Office of Special Counsel for

Immigration-Related Unfair Employment Practices (OSC)

Equal Employment Opportunities Commission (EEOC)

DOJ, EOIR, Office of the Chief Administrative Hearing Officer

(OCAHO)


ICE Inspection/Audit Process

http://www.ice.gov/

news/library/factsheets/

i9-inspection.htm


DHS Continues Auditing Employers

0

500

1000

1500

2000

2500

3000

3500

FY 08 FY 09 FY 10 FY 11 FY 12 FY 13 FY 14

I-9 Inspections


E-Verify Update

Online verification of employment eligibility

Now used by 600,000 + employers

Pilot program

Mandatory in some states and for federal contractors

Error rates have decreased

1.7% not found work authorized of current users

.28% of that segment challenged and found authorized

My E-Verify - self check now nationwide

New TNC process; simplified notices

Proposed rule to use E-Verify for reverification of I-9 documents

USCIS now data-mining to flag violators

Seeing more audits

Sharing employer data with other agencies (OSC, DHS)

Save CaseCheck


STATES WITH E-VERIFY REQUIREMENTS

Source: NILC


New Guidelines for Amending

H-1B Petitions



Final Guidelines: Changing H-1B Work Locations

Follows AAO precedent decision, Matter of Simeio Solutions, LLC

Effective August 19, 2015, employers must file amended or new petitions

prior to the H-1B employee changing to a new worksite locations

New worksite location = location outside Metropolitan Specific Area (MSA)

Must post a new Labor Certification Application (LCA) (or compliant notice of

posting) at the worksite and submit for certification with the Department of

Labor (DOL) even if a previous LCA was already certified for the same

location

Compliance

If change occurred prior to Simeio decision issuance on 4/9/15 then USCIS not

likely to enforce new policy

Safe harbor period – move took place after Simeio but before policy issued on

8/19/15 then have until 1/15/16 to file amended or new petition

Failure to file, per above, will be deemed failure by employer to comply with H-1B

regulations and employee will be not be maintaining nonimmigrant status


Final Guidelines: Changing H-1B Work Locations

Amendment not Required

Move within area of intended employment – If move within same MSA and all

else remains same, then LCA can be posted at new location but amendment

filing not required

Short-term placement – employee placed at new worksite for up to 30 days

without new LCA (or 60 days where employee still based at the “home”

worksite)

Non-worksite location – if H-1B employees traveling to such location and no

other change:

Traveling to participate in developmental activity (training, conference, etc.)

H-1B employee spends little time at any one location – peripatetic in nature

Primarily at one location but travel to other locations for short periods on a “casual,

short-term basis” – not exceeding 5 consecutive work days for a peripatetic

employee or 10 consecutive work days for worker with a “home” location


Today’s Presenters

Brian E. Schield

Partner, Los Angeles

T +1 213 689 5109

E [email protected]

Samuel J. Mudrick

Senior Associate, Washington DC

T +1 202 457 5218

E [email protected]

Gregory A. Wald

Principal, San Francisco & Miami

T +1 415 393 9828

E [email protected]