Trump administration approves tougher visa vetting, including social media checks

The Trump administration has rolled out a new questionnaire for U.S. visa applicants worldwide that asks for social media handles for the last five years and biographical information going back 15 years.

The new questions, part of an effort to tighten vetting of would-be visitors to the United States, was approved on May 23 by the Office of Management and Budget despite criticism from a range of education officials and academic groups during a public comment period.

Critics argued that the new questions would be overly burdensome, lead to long delays in processing and discourage international students and scientists from coming to the United States.

Under the new procedures, consular officials can request all prior passport numbers, five years' worth of social media handles, email addresses and phone numbers and 15 years of biographical information including addresses, employment and travel history. 

Officials will request the additional information when they determine "that such information is required to confirm identity or conduct more rigorous national security vetting," a State Department official said on Wednesday.

Apple Strikes Out In 2 Labor Cert. Cases At BALCA

The Board of Alien Labor Certification Appeals has affirmed the denial of certifications for Apple Inc. to hire two foreign-born workers as a database administrator and a logistician, finding Monday that one candidate did not have the required qualifications and the other lacked the necessary experience.

The individual Apple sought to employ as a logistician, Shailendra Chaubal, did not have the needed master’s degree in business, operations, supply chain or a related field, the board found. In the case of Pavan Lanka, the job requirements the technology giant listed on its certification application for the database administrator position did not represent the job's actual minimum requirements, according to BALCA’s two orders.

While Chaubal has a master’s in mechanical engineering, Apple failed to establish how his degree was in a field related to business, operations or supply chain, according to BALCA.

“The panel finds there is a difference in being exposed to a few business-related courses during one’s graduate-level matriculation versus being immersed in a full course load of business classes (or a Master’s level business program) while in graduate school,” reads the order in the Chaubal case. “Hence, we affirm the [certifying officer’s] denial of the labor certification application.”

In the Lanka case, Apple appeared willing to hire a worker who did not have the required experience for the job, according to BALCA’s order.

Nabbing a permanent labor certification, or PERM, from the Department of Labor is typically one of the first steps an employer must take to permanently hire a foreign employee. The process is partly aimed at ensuring U.S. workers have a chance to apply for the job.

As part of the process, most employers must advertise the position in newspapers and place a job order with a state workforce agency that serves the area of intended employment.

After 100 Days, Immigration Changes Will Be Up To Congress

President Donald Trump has taken a variety of actions seen as a "sea change" for immigration policy during his first 100 days in office, and that approach is likely to continue, but experts told Law360 lasting change will depend on congressional action.

Pledging during his campaign to "put American workers first," Trump has made immigration a central focus of his presidency so far. Of the 30 executive orders the White House says Trump will have signed by Saturday's 100-day mark, a significant number have been immigration-related.

Among those are the embattled pair of travel ban orders — one now rescinded and the other suspended by the courts — and a proposed overhaul of the H-1B guest worker program.

He also signed orders aimed at enabling wall construction along the U.S.-Mexico border and requiring more stringent enforcement of immigration laws. Of those enforcement orders, one called for reviving a controversial information-sharing program and another for reducing or eliminating funding for so-called sanctuary cities. That too was blocked, with a federal judge ruling Tuesday that Trump may not withhold federal funding as "a weapon" to be used "against jurisdictions that disagree with his preferred policies."

Another of his controversial immigration stands was an order to prioritize the removal of immigrants who have committed any crimes or abused any kind of public benefit, among other criteria.

Predictably, Trump's actions have proven divisive. Immigration hard-liners at the conservative Federation for American Immigration Reform expressed "cautious optimism" about Trump's first 100 days, with its president issuing a statement Tuesday hailing the "sea change in attitude" at the administration level.

Meanwhile, immigrant advocates like attorney Charles H. Kuck of Kuck Immigration Partners LLC have been highly critical, saying Trump's policies have had the effect of "scaring people who are undocumented."

While Trump has some tools in place to continue down this path, including hand-picked agency appointees and certain executive powers, he's up against a string of court decisions, public opposition and the need for legislative backing — which means anything more lasting will have to come from Congress.

Calif. Judge Blocks Trump's Sanctuary City Order

A California federal judge on Tuesday granted a bid by San Francisco and a Silicon Valley county to block President Donald Trump’s executive order to withhold federal funds from so-called sanctuary cities for immigrants, in a ruling that slams the president's reference to the order as "a weapon" to be used "against jurisdictions that disagree with his preferred policies."
 

In his decision Tuesday, U.S. District Judge William H. Orrick found that San Francisco and Santa Clara County have shown they have standing to challenge the order and are suffering irreparable harm. The judge said Trump’s January executive order cutting federal funding to sanctuary cities violates the separation of powers doctrine and deprives the local governments of their Tenth and Fifth Amendment rights, and threatens to deprive them of hundreds of millions of dollars in federal grants that support core services in their jurisdictions.

“If there was doubt about the scope of the order, the president and attorney general have erased it with their public comments,” Judge Orrick said. “The president has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the president intends to ensure that ‘counties and other institutions that remain sanctuary cites [sic] don’t get federal government funding in compliance with the executive order.’”
 

The White House also doubled-down on its stance on sanctuary cities. "San Francisco, and cities like it, are putting the well-being of criminal aliens before the safety of our citizens, and those city officials who authored these policies have the blood of dead Americans on their hands," the Trump administration said, adding that "this San Francisco judge's erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk."

US SUPREME COURT DID NOT TAKE ON A CONTROVERCIAL IMMIGRATION CASE

The U.S. Supreme Court sidestepped a turbulent debate over illegal immigration on Monday, turning away an appeal by a group of asylum-seeking Central American women and their children who aimed to clarify the constitutional rights of people who the government has prioritized for deportation.

The families, 28 women and 33 children ages 2 to 17 from El Salvador, Honduras and Guatemala, had hoped the justices would overturn a lower court's ruling preventing them from having their expedited removal orders reviewed by a federal judge.

That Philadelphia-based court said the status of the families, all apprehended in Texas and later held in Pennsylvania, was akin to non-citizens who are denied entry at the border and they were not entitled to a court hearing to challenge that decision.

Immigration has become an even hotter topic than usual in the United States since President Donald Trump took office in January. His administration has ordered construction of a border wall with Mexico intended to curb illegal immigration, and plans to expand the number of people targeted for expedited removal, a process that applies to non-citizens lacking valid entry documents.

The families have said they were escaping threats, violence and police authorities unable or unwilling to help in their home countries.

Lead plaintiff Rosa Castro fled El Salvador to escape years of rape, beatings and emotional abuse by the father of her son, who was 6 years old when they arrived in the United States in 2015, according to court papers. Lesly Cruz, who also arrived in 2015, fled Honduras to protect her daughter from sexual assault by members of the Mara Salvatrucha armed gang, the court papers said.

The families were apprehended in Texas within hours of illegally crossing the U.S.-Mexican border. After claiming asylum, they were determined by immigration judges to lack "credible fear" of persecution, and placed in expedited removal proceedings.

The families were detained at Berks County Residential Center in Leesport, Pennsylvania, where 12 women and their children remain. The others have been released under orders of supervision, according to the American Civil Liberties Union, which is representing them.

The women challenged in federal court the rejection of their asylum claims, alleging a violation of their right to due process under the U.S. Constitution.

In August, the 3rd U.S. Circuit Court of Appeals in Philadelphia said they may be treated the same way as non-citizens seeking initial admission to the United States, who do not have any constitutional rights of review if denied entry.

The women appealed to the Supreme Court.

There has been a 93 percent drop since December of parents and children caught trying to cross the Mexican border illegally into the United States, which U.S. officials attribute to the Trump administration's tough policies.

U.S. Department of State Issues May Visa Bulletin: EB-5 Category Now “Unauthorized”

Globe'On April 12, the Department of State-Bureau of Consular Affairs released its Visa Bulletin for the month of May (View PDF). All EB-5 Regional Center categories have gone to “U” meaning unauthorized.

Authorization for the EB-5 Regional Center Program is scheduled to expire on April 28th, 2017, meaning that visa numbers are not currently authorized for issuance after that date. If there is legislative action reauthorizing the EB-5 Regional Center Program then the final action dates would immediately become “Current” for May for all countries except Mainland-China born applicants who would be subject to a June 1, 2014 final action date.   

EB-5 Visas may be issued until close of business on April 28, 2017, and may be issued for the full validity period. No visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.

Immigrants Key Driver of Homeownership

Immigrants are set to have a starring role in homeownership in the years ahead, with a new report touting their immense impact on community development—but also cautioning growth will depend on the trajectory of U.S. immigration policy.

Home in America: Immigrants and Housing Demand, a report by the Urban Land Institute, assesses how the immigrants who have entered the U.S. in the years since the recession have shaped urban areas, including Charlotte, N.C., and San Francisco, Calif. Immigrants, like most U.S.-born Americans, have a desire for single-family homeownership, according to the report.

“Immigrants have helped stabilize and strengthen the housing market throughout the recovery,” says Stockton Williams, executive director of the Center. Immigrants’ housing purchasing power and preferences are significant economic assets for metropolitan regions across the country. This suggests the potential for much more growth attributable to foreign-born residents in the years ahead.

San Francisco, especially, can attribute much of its growth since the housing crash to an influx of immigrants.

Immigrants the country over, however, are hoping to settle down in the suburbs, whether buying or renting a home. Much of that demand will be for existing homes, unloaded by baby boomers who are downsizing—which, in turn, will up their demand for homes with less square footage.

Still, the path immigrants take toward becoming homeowners will undoubtedly be influenced by the new administration’s immigration policy, which could alter not only their course, but also the course of homeownership in general, according to the report.

“If recent shifts in immigration flows continue, an increase in higher-income immigrants—including rising numbers from China and India—could accelerate the demand for homeownership among the foreign-born population,” the report states. “Without sustained immigration, the housing market could weaken and in many markets the impact could be dramatic.”

Executive order to review and make changes to H-1B visa program

President Trump likes to say that he doesn’t want to announce in advance when he’s going to launch an attack. But on Tuesday, he signed an executive order that did just that.

While on a visit to the headquarters of Snap-On Tools in Kenosha, Wisconsin, the president ordered an interdepartmental review of the H-1B visa program, which allows companies to bring “skilled” foreign workers to fill jobs in the US for a few years. Administration officials have made it clear that “review” means they expect Cabinet officials to suggest changes to the program — either by way of regulation or by asking Congress to pass a bill — in the name of better protecting American workers.

In Kenosha, Trump drew a bright line on the H-1B visa: It “should include only the most skilled and highest-paid applicants and should never, ever be used to replace American workers.”

A review of the H-1B program was one of many provisions included in a potential executive order drafted during the presidential transition, which would have taken much more aggressive steps to limit a broad array of work visas. Since arriving in office, however, the Trump administration appears to have focused its efforts on the H-1B program, which awards 65,000 visas a year to people with “highly specialized knowledge” (in practice, jobs requiring at least a bachelor’s degree, and often involving technology).

The administration, following Trump’s rhetoric on the campaign trail (and that of some populists like current Attorney General Jeff Sessions), has portrayed the H-1B program as a way for unscrupulous business owners to hire cheap foreign labor, rather than hiring qualified American workers or training US citizens for high-skilled jobs.

Over the past few weeks, the administration has suspended a practice that allowed employers to get their applications processed within six weeks (instead of several months) if they paid a higher fee, and issued a warning on the day visa applications opened for 2018 that the government would be cracking down on employers who used H-1B workers for jobs Americans could fill. And now, with this executive order, it’s declared that the H-1B visa is a top enemy of the pledge to “Hire American.”

The executive order doesn’t change H-1B policy on its own, and it doesn’t set a timeline for when the review will be completed.

The administration has already hinted at some of the changes it would like to see: It might try to change the existing way the government defines the “prevailing wage” in an industry (the de facto minimum wage for an H-1B visa holder in that industry) and might start handing out H-1B visas for the highest-paid jobs and best-educated employees rather than giving any applicant who meets the basic requirements for the visa a chance.

It’s not clear whether it will try to make those changes as regulation (and whether that could survive a legal challenge). Fundamentally, though, the administration is going to have to decide what kind of high-skilled visa program it wants.

If Trump wants to make it harder for outsourcing firms to use H-1Bs to staff call centers, and make it easier for tech giants such as Google and Microsoft to bring over high-level engineers, he could find a surprising amount of bipartisan agreement. But if he wants to follow the lead of chief strategist Steve Bannon and Attorney General Sessions, and crack down on H-1B visas across the board in the name of protecting American “civic society” (in Bannon’s words), he’ll be gratifying the narrow populism of his most ideological supporters

U.S. Department of State Issues May Visa Bulletin:

On April 12, the Department of State-Bureau of Consular Affairs released its Visa Bulletin for the month of May. All EB-5 Regional Center categories have gone to “U” meaning unauthorized.
Authorization for the EB-5 Regional Center Program is scheduled to expire on April 28th, 2017, meaning that visa numbers are not currently authorized for issuance after that date. If there is legislative action reauthorizing the EB-5 Regional Center Program then the final action dates would immediately become “Current” for May for all countries except Mainland-China born applicants who would be subject to a June 1, 2014 final action date.
EB-5 Visas may be issued until close of business on April 28, 2017, and may be issued for the full validity period. No visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.

Proposed Bill “invest in Our Communities” will permanently reauthorize the EB-5 Regional Center Program if passed by Congress

On March 27, Senator Rand Paul (R-KY) introduced S. 727, the Invest in Our Communities Act. The bill would not only increase the worldwide levels of employment-based visas, but also permanently reauthorize the EB-5 Regional Center Program. If enacted, the bill would exempt dependents of visa applicants from being counted towards the visa cap and would also remove the per country visa cap for the EB-5 visa category.

In addition to permanently reauthorizing the EB-5 Regional Center Program the bill includes several integrity measures specific for EB-5. Among other provision, the bill would:
• Prohibit bona fides of regional centers from participating either directly or indirectly if they have been found guilty of certain crimes in the past 5 years;
• Bar involvement by a foreign government in regional centers;
• Require criminal and other background checks (including fingerprinting) of regional center or regional center affiliated enterprises and any person involved in them;
• Allow for termination of regional centers by the Secretary of Homeland Security for reasons of fraud, abuse, misrepresentation, or otherwise failing to comply with the law;
• Statutorily reaffirms the requirement to comply with securities laws;
• Require oversight and record keeping by regional centers of offers, purchases, and sales of, and advice relating to securities made by parties associated with the regional center.
The bill also allows for the elimination of resubmission of documents that are similar across multiple petitions and allows for deference, absent material change, fraud or legal deficiency, when adjudicating multiple I-526s and I-829s from the same project.

Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.

Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.

Existing H-1B Fraud Measures

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. USCIS refers many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

USCIS Announces Launch of New EB-5 Regional Center Compliance Audit Program

Yesterday, United States Citizenship and Immigration Services (USCIS) announced the launch of its new EB-5 Regional Center Compliance Audit Program. According to USCIS Regional center compliance audits are an additional way that the agency is looking to enhance program integrity and verify information submitted in regional center applications and annual regional center certifications. Under this program, USCIS will collect case-specific data as part of a compliance audit. The audit will also verify compliance with applicable laws and authorities to ensure continued eligibility for the regional center designation.
This audit process will include researching information in government systems, reviewing commercial and public records, and reviewing evidence that accompanies regional center applications and certifications. It also includes obtaining information, on a consensual basis, through compliance audit data requests and site inspection.
The USCIS audit team will perform the following tasks:
Review applications, certifications, and associated records;
Review public records and information on the regional center;
Verify the information, including supporting documents, submitted with the application(s) and in the annual certification(s);
Conduct site inspection;
Review and analyze documents;
Interview personnel to confirm the information provided with the application(s) and annual certification(s).