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1. Openers ................................................................................................................................................ 2

2. ABCs of Immigration: The Impact of Mergers and Acquisitions on Physician Immigration .............................................................................................................................................. 3

3. AskVisalaw.com ............................................................................................................................... 12

4. Border and Enforcement News .................................................................................................. 14

• Siskind Summary – H.R. 3591 – The American Hope Act of 2017 ...................... 14

• Siskind Summary – HR 3304 – The House Dream Act of 2017 ............................ 17

• Siskind Summary - Proclamation Expanding Travel Ban By: Greg Siskind .... 24

• Siskind Summary – Chart Comparing “Dream” Bills ................................................. 29

• Siskind Summary SUCCEED Act ........................................................................................ 29

• United States U.S. issues visa sanctions on 4 nations ............................................. 35

5. News from the Courts ................................................................................................................... 36

• BIA Affirms Aiding and Abetting Under California Law is Aggravated Felony . 36

• BALCA Affirms Denial of Second PERM While First PERM Is Pending Before BALCA .......................................................................................................................................... 37

6. News Bytes ........................................................................................................................................ 39

Table of Contents

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• Department of Homeland Security to Gather Social Media Information on All Immigrants ................................................................................................................................ 39

• Temporary Protected Status for South Sudan Extended for 18 Months, Sudan Set to Terminate in November ........................................................................................... 39

• Microsoft vows to protect its Dreamers in court ......................................................... 40

• USCIS Updates Numerous Forms ..................................................................................... 40

7. Washington Watch .......................................................................................................................... 41

• H.R.170: Protect and Grow American Jobs Act ........................................................... 41

• S. 1560: Integrity in Border and Immigration Enforcement Act .......................... 42

8. In the News at ABIL ....................................................................................................................... 42

• President Orders End of DACA in Six Months, With Mixed Signals About Future for 'Dreamers'; Two Lawsuits Challenge Program's Termination .......... 42

• ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will Not Be a Factor During Rescues ....................................................................................................................................... 44

• State Dept. Changes Standard for Assessing 'Residence Abroad' for F-1 Nonimmigrant Students ........................................................................................................ 44

9. Updates from the Visalaw.com Blogs ...................................................................................... 45

10. State Department Visa Bulletin: October 2017 ................................................................ 46

1. Openers Dear Readers:

Immigration continues to make major headlines in the US despite the fact that polls continue to show that it is not a major priority for US voters. Polls actually show the public remains very pro-immigration and the President’s policies generally only appeal to a narrow group of voters that is his core base.

Despite this disconnect, the attack on legal immigration and on illegally present immigrants continues. Last month, the President announced the wind down of the Deferred Action for Childhood Arrivals (DACA) program begun by President Obama in 2012. An estimated 800,000 individuals are beneficiaries of DACA and the public backlash to the announcement was loud and instantaneous. That may explain why President Trump met a few days later with Democratic minority leaders Nancy Pelosi and Chuck Schumer and announced support for legislation to offer a path to citizenship for those individuals. So there is some reason for optimism regarding that population and we cover those bills with several “Siskind Summaries” in this issue.

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We also saw the introduction of the third iteration of the travel ban (3.0). This ban is meant to be indefinite and it calls for the end of visa issuance for two of the countries – Syria and Iran. Sudan has been removed and Chad, North Korea and Venezuela have all been added. The ACLU announced this week they are challenging the White House in court. The Supreme Court was set to hear oral arguments on travel ban 2.0 this month, but has announced it is postponing and will wait until the new ban makes its way to them (which seems inevitable).

And we also saw the announcement of the ends of two more Temporary Protected Status programs. Individuals from Sudan and South Sudan will lose their TPS status next year according to an announcement from DHS. TPS designees number about 400,000 in total and the White House clearly has little interest in the fate of this population.

In firm news, a number of us have been quoted in the media and you can find those article as well as many other useful posts on our firm’s Facebook page. Just go to Facebook and search for Siskind Susser and you will find us.

I’m also leaving to attend the International Bar Association’s annual meeting in Sydney where I will be speaking on student visas. This month I’ll also be a panelist on an ABA webinar on Twitter which you can sign up for at https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=288580158.

I’m also happy to announce the publication of my latest book with co-author Bruce Buchanan entitled the I-9 and E-Verify Handbook which is available for purchase on Amazon at http://a.co/eta3QJ4. More information on that book soon.

As always, please feel free to contact our firm. You can schedule an appointment with one of our lawyers by going to www.visalaw.com/consultation.

Regards,

Greg Siskind

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2. ABCs of Immigration: The Impact of Mergers and Acquisitions on Physician Immigration

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[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Elissa Taub, The Physician Immigration Handbook.]

ABCs of Immigration: The Impact of Mergers and Acquisitions on Physician Immigration

The health care industry has been experiencing consolidation for decades, the pace of merger and acquisition activity within the sector, however, has increased significantly within the past few years. Hospital systems have been purchasing independent hospitals, physician practices have been purchased by hospitals, and a doctor will often discover that the employer which hired him or her will change as a consequence of these corporate transactions.

The results of the transaction can be extremely severe and detrimental, if immigration issues are not attended to. Physicians can find themselves in a situation in which they are illegally present, resulting in their potential deportation and significant penalties and fines for their employers. Hospitals could potentially lose their business licenses, government contract access, and even face lawsuits from employees whose immigration status the hospitals ignored during the deal. Patients may also discover that needed health care professionals are no longer available due either to their immigration status being compromised or their departure to another company which has been proactive in managing the employee’s visa process.

The degree of impact of a corporate change will vary from foreign employee to foreign employee and is affected by the type of visa or status the individual holds and where in the immigration process he or she is.

Considering the potential risks, it would be safe to assume that immigration issues are commonly addressed in the pre-closing stage of a corporate transaction, but in reality the opposite is true more often than not, with issues going unnoticed until it is too late to prevent serious ramifications.

What issued need to be considered to determine if a deal impacts an immigrant physician?

When assessing the impact a transaction will have on an immigrant physician, the following questions should be addressed:

1. What type of deal is happening? 2. When will the deal be closing? 3. What type of visa does the physician have? 4. Is a permanent residency application pending?

What are the types of deals that can affect a physician’s immigration status?

Corporate changes commonly consequential to immigration status are stock or asset acquisitions, mergers, consolidations, initial public offerings, spin-offs, corporate name changes, changes in payroll source, and the relocation of an employer or its employees.

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The type of deal in question is imperative. If the employing entity is removed from the equation, a new employee identification number could affect the visas of the acquired company’s employees. Some deals only involve acquiring specifically noted assets of the seller, while others are purchases of an entire company even that company’s debts. This is pertinent because government agencies will occasionally permit companies who are “successors of interest” to avoid new filings.

How does the timing of the closing affect a physician’s immigration status?

Though some deals are announced in the news and it may take many months for them to close, others are decided at a high level unbeknownst to the employees of the company and the broader public until much closer to the date the deal closes. This is noteworthy because dependent upon the type of visa, it may be necessary to file documents before the closing which could require sufficient lead-time.

How are H-1B visa holder potentially affected by a transaction?

In H-1B cases, important aspects to investigate are whether a corporate change results in a new employer, and if that is the case then to what extent are the interests of the target corporation being assumed?

Before December 2000, the Department of Labor (DOL) identified a change in an employer’s Federal Employer Identification Number (FEIN) as a qualifying reason to trigger a need to file a new Labor Condition Application (LCA). According to the regulations implemented on December 22, 2000, a new LCA will not be required only because a corporate reorganization results in a change of corporate identity, regardless of whether there is a change in FEIN, provided that the successor entity, prior to the continued employment of the H-1B worker, agrees to assume the predecessor’s obligations and liabilities under the LCA with a memorandum to the “public access file” kept for LCA purposes. Material changes in the responsibilities and job requirements of the employee and the employee’s relocation may necessitate a new LCA. Thusly, new LCAs will be required for H-1B workers who are relocated as the result of a merger or sale.

Though similar to the LCA, the rules which dictate the circumstances under which a new Form I-129, Petition for a Nonimmigrant Worker has to be filed with United States Citizenship and Immigration Services (USCIS) are not identical. Needing to file a new I-129 can be a relatively expensive undertaking. Each new employment petition requires the employer to pay the American Competitiveness and Workforce Improvement fee which is $1,500 for businesses with more than 25 employees and $750 for businesses with fewer employees. This is in combination with a fraud fee of $500, a base filing fee of $230, and for fast adjudication a $1,225 premium processing fee. This brings the total for each worker to $3,500, without accounting for attorney’s fees.

Within the Immigration and Nationality Act, an exemption from filing a new Form I-129 exists in cases of corporate restructuring where the new employer is a successor-in-interest which assumes the interests and obligations of the previous employer. This restates a USCIS policy which waives the need for a new or amended petition as long as an employer, for H-1B purposes, “assumes the previous owner’s liabilities which include the assertions the

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prior owner made on the labor condition application.” If exempted, the employer can wait before notifying USCIS when it files an extension petition for the employee.

In the realm of health care more so than other industries, it is far more common to lose eligibility for cap-exempt status. Cap-exempt employers who are acquired by cap-exempt companies face additional challenges.

If an employee’s H-1B status is predicated by that employee’s status as exempt from the quota limitations, the physician will want to assess whether cap=exempt status is lost after closing. A loss of cap-exempt status would render continued employment by the succeeding entity as an H-1B status holder impossible. Though USCIS has never explicitly stated that a loss of H-1B cap exemption status is a material change requiring an amendment, the issue would definitely need to be ameliorated at the time of an extension.

The timing of filing H-1B visas in such a case or the timing of the closing of the transaction can be affected by visa availability. Attempting to secure visa numbers while still available, a number of employers try to file new cap-subject petitions as early as possible, which can be as early as 180 days prior to the start date for an employee. In the case of an acquisition, this is generally the closing date. In certain cases, the acquiring entity might lack flexibility if a new subsidiary entity is being created for the acquisition. Other employers might aim to time the closing of the acquisition in accordance with when visa numbers are available.

Teaching hospitals similarly face the problem of having residency programs that annually begin on July 1, which is a time of year in which H-1B cap numbers are extremely unlikely to be available, even in a down economy. Additionally, medical residents are generally selected only a few months prior to that date, so filing far enough in advance for an H-1B might not be practical. When faced with such a situation, some employers might decide to use the J-1 exchange program to employ medical residents and fellows. Teaching hospitals may be concerned, however, that they could potentially lose some of their best prospects if using the J-1 program exclusively, though the proportion of J-1s gas increased in recent years in relation to H-1Bs.

In the past, numerous for-profit employers have maneuvered the cap-exemption challenge by creating a new nonprofit subsidiary entity and re-establishing an appropriate association between the entity and a qualifying university or nonprofit research institution. Beginning in 2011, USCIS controversially started contesting the affiliations of many employers, including numerous teaching hospitals, which claimed cap-exemption status. USCIS decided to pull back on pursuing so aggressively, releasing a memorandum which stated that entities, having previously been granted cap-exempt status, would be given difference, as long as the employer had filed an H-1B cap-exempt petition after June 6, 2006. The memorandum does not address, however, successor-in-interest situations, so employers would possibly face close scrutiny in order to determine if the affiliation qualifies.

Acquisitions can also affect physicians who are completing their three-year service requirement in H-1B status following a J-1 waiver. If it is a new H-1B petition that is being files and the employer is changing, then the physician is required to demonstrate that a number of requirements are still valid. The physician will need to prove that he or she is still

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working in an underserved area, that he or she has a contract for the balance of the three-year service requirement, and that extenuating circumstances exist which justify the change in employers. An acquisition would generally constitute such a circumstance. There is a caveat that should be addressed; states are permitted up to 10 “flex” slots annually for J-1 waiver applicants. These applicants are allowed to work in areas not federally recognized as shortage areas, provided they are able to demonstrate that they are providing care to patients from shortage areas. Unfortunately prohibited are transfers from one flex location to another, so USCIS could potentially deny the change of employer petition if the work is not being done in a federally designated shortage are even if the work location remains unchanged.

What does the corporate reorganization memorandum for the employee’s public access file need to say?

Below is a sample corporate reorganization memo:

CORPORATE REORGANIZATION STATEMENT

Full name of New Employer: ABC Health System, LLC

Federal Employer Identification Number (FEIN): _________

Actual Wage System

On January 1, 2015, there were ____ [number] Pulmonary and Critical Care Medicine Specialists employed by ABC Health System, LLC in XXX, Washington.

Their salaries range from $_____ to $_____. The salaries of individuals holding this position were determined on the basis of a number of criteria, including:

• Level of education; • Years of experience in the specific field of occupation; • Specific responsibilities and duties involved; and • [any other criteria specifically relevant to the position]

Salaries of employees are adjusted on an ______ [annual, periodic, etc.] basis, based upon [performance reviews, cost of living adjustments, etc.].

Please note that the employer applies the same methodology to all U.S. and H-1B employees in the classification when determining the actual wage, based upon the above referenced criteria.

Sworn Statement

I, _____, am an authorized representative of Employer, and make the following statements pursuant to 20 CFR §655.730€(iv):

1. Employer assumes all obligation, liabilities and undertakings arising from or under the attestations made in each certified LCA, and still effective LCA, filed by XYZ Health Services on behalf of the employees transferring to Employer;

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2. Employer agrees to maintain a copy of this statement in the public access file; 3. Employer agrees to abide by DOLS’s H-1B regulations applicable LCAs; and 4. Employer agrees to make the document required under 22 CFR §655.730(e)

available to any member of the public and the Department of Labor upon request.

I declare that the above is true and correct, executed this ____ day of ____, in the city of ____, ____ [state].

Name

Title:____

List of each LCA Affected by Corporate Reorganization with Name, ETA Number, and Date of Certification.

How are physicians on J-1 visas affected by major corporate transactions?

Luckily, acquisitions do not commonly affect the continuance of working without disruption for J-1 visa holders. This is due to the Educational Commission on Foreign Medical Graduates (ECFMG) being the petitioner in a J-1 case and not the actual teaching hospital. Though ECFMG does expect to receive notification in the event of an institution changing hands, the Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, which each J-1 physician possesses usually notes only the name of the hospital, making altering the existing DS-2019 forms unnecessary as long as the hospital’s name remains unchanged in the transaction.

How are green-card applications affected by mergers and acquisitions?

The first step in acquiring a green card for most physicians is seeking a labor certification from the Department of Labor (DOL). DOL’s perception of a corporate transaction in terms of the impact on a labor certification application

DOL holds a liberal view of when a new labor certification petition needs refiling. After an inquisition, if a new owner remains the worker’s employer and has assumed all of the past owner’s obligations, then the new owner should qualify as a “successor-in-interest” and a labor certification will survive.

In a June 2009 memorandum in which it addressed successorship and I-140 petitions, USCIS eased the requirements and laid out a process employers can follow in successor-in-interest situations. Employers do not need to demonstrate that all of the assets and liabilities have been assumed, rather an August 2009 USCIS memorandum instructs USCIS examiners to consider three factors in determining whether an employee is a successor-in-interest:

“(1) whether it’s the same job; (2) if the successor has established eligibility for the requested visa classification in all respects; and (3) if the successor has adequately detailed the nature of the transfer of rights, obligations, and ownership of the prior entity. If a business can establish these three factors, it is possible to find a valid successor-in-interest

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relationship even in situations where a successor does not wholly assume a predecessor entity’s rights, duties and obligations.”

Successor employers must submit an I-140 amendment reaffirming the labor certification and including documentation of the three aforementioned factors.

Petitions which are self-sponsored by the physician, including regular national interest petitions and EB-1 extraordinary ability cases, are not usually affected by major transactions. In select cases, however, an employment relationship is how an applicant show that he or she plans to work in the field upon approval of permanent residency. If the transaction would result in an employee losing the position, the employee’s ability to qualify for EB-1 or EB-2 status could potentially be affected.

In the August 2009 Neufield memorandum, USCIS stated that permanent residency petitions which do not require a labor certification, including EB-1 and EB-2 cases, do not require an I-140 amendment. According to the memorandum, EB-1 outstanding researchers or professors, EB-1 multinational managers and executives, and employer-petitioned physician National Interest Waiver cases all require new I-140 petitions. The employee would keep, however, the priority date of the previously filed I-140 approved in the same category.

Doctors have the ability to pursue permanent residency through a national interest category, which would entail working five years in a medically underserved area. These physician national interest cases can be sponsored either by the employer or self-sponsored by the doctor. There would be a new I-140 required in a successor situation for employer-sponsored cases, but physicians who self-sponsor generally do not need to file a new I-140 since the petition is not based upon an employer’s petition.

Even if an employer fails to qualify as a successor-in-interest, employees who have pending adjustment-of-status applications can have another option for maintaining a permanent residency application. Adjusting applications which are pending for at least six months will remain active as long as an employee finds new employment in the same or similar occupation. However, due to the length of green card backlogs, most applicants are unable to fila a Form I-485, Application to Register Permanent Residence or Adjust Status. Since this is the case, the applicant might find his or her petition to be nullified if the original job offer is revoked.

What immigration issues does an employer need to consider in a major corporate transaction?

As previously mentioned, understanding the severity of potential risks, in a corporate transaction, immigration issues need to be carefully assessed. Employers generally should:

1. Ensure the transference of visas to a new employer before closing when a closing will affect the visa’s validity, or consider moving a transaction’s closing date if it will significantly impact the employees’ ability to keep working.

2. File amendments prior to or shortly after closing, unless regulations prohibit filing after closing.

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3. Move employees to new visa categories before the closing when they will no longer be eligible in a particular category after closing.

4. Start green-card processing early in order to minimize the number of nonimmigrant visas requiring attention.

5. Incorporate immigration inquiries into the due-diligence inquiry, and incorporate representations and warranties addressing immigration issues into the transaction documents.

6. Conduct an employee-by-employee analysis to determine what actions must be taken, once the acquiring employer identifies all of the employees on nonimmigrant visas or in the process of applying for permanent residency.

7. Transactions can induce a great deal of anxiety amongst employees and human resource professionals. Once the plan for the workers is determined, both the current and the acquiring employer should facilitate joint communication with affected workers to discuss what the transaction will mean for their immigration status and what procedures will be undertaken ensuring the maintenance employee’s status without adverse consequences. While it is impossible to guarantee that no adverse consequences will occur, that information should also be disclosed to employees.

8. Employers may want to weigh various options for communicating with employees. A preferable option is to prepare a written explanation in which common questions are addressed. One-on-one meetings or group meetings or phone calls with the employees and the acquiring company’s immigration attorney can also be beneficial.

9. In the time following a closing, any employee attempting to travel can be cumbersome. Though an employer can meet the successor-in-interest tests which ensure new petitions are not required, this does not guarantee an employee will be free from issues when seeking a visa stamp or entering an airport or land point of entry. It can be a good idea for employers to consider having their immigration counsel prepare travel packets for each employee that include a letter to the U.S. Customs and Border Protection or consular officer explaining what has happened and what immigration law specifically requires of the employer for a particular employee, documentation of successorship-in-interest, and any additional relevant documents (an H-1B corporate reorganization memorandum for example). If a new position needs to be filed for an employee, like in the event that a successor-in-interest test is not being met, employees should be advised that they might find travelling before the closing to be a more beneficial plan, or they may face a delay in re-entering the United States if a new visa stamp must be issued.

10. Immigration and transaction counsel should remain engaged in regular communications; this is particularly important because closing dates are often delayed and required filings could be needed to be timed to coincide with the closing.

What immigration-related documents should be requested in a due-diligence checklist?

It is important for any company involved in a major corporate transaction to have a thorough understanding of the other company’s immigration issues before the transaction’s closing. There are certain documents that, as a result, should be included in a due-diligence checklist of requested documents to review in the time leading up to the closing of the deal. The following are immigration documents to request in a due-diligence checklist:

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1. Provide an exhaustive list of employees who are not U.S. lawful permanent residents or citizens. These employees should be broken down by visa category, work authorization expiration date, number of years in a particular visa category, the employee’s worksite and whether any nonimmigrant visa applications or extension petitions or permanent residency petitions are pending or promised. It is also important to note any augmentations made to job responsibilities, location or salary that will result from the transaction.

2. For the list of employees mentioned above, provide a copy of all documents relating to such employees’ immigration status, including, but not limited to:

a. Nonimmigrant visa applications and extension petitions; b. Employment authorization documents; c. I-9 Forms; d. Labor certification and immigrant visa applications and supporting

documentation; e. Approval notices and correspondence with any government agencies; f. I-94 forms and passport visa stamps; g. Visa documentation for the employees’ spouses and minor children; and h. H-1B public access files.

3. Supply all copies of correspondence with the Social Security Administration relating

to the “mismatch” of Social Security numbers for any employees. 4. Provide copies of any correspondence with agencies of the Department of Homeland

Security, Department of Labor, Department of Justice, or Department of State regarding compliance with the country’s immigration laws.

5. Provide a copy of all I-9s required to be kept by the employer. [Provide a list of all employees of the company employed since 1986. Counsel will select ____ employees from the list and request their I-9s be provided].

What language should be included in the corporate transaction documents to ensure immigration issues are addressed?

The following sample language might be considered for inclusion in the transaction contract documents:

Contract Representation and Warranty

Immigration. All necessary visa or work authorization petitions have been timely and properly filed on behalf of any employees requiring a visa stamp, I-94 status document, employment authorization document, or any other immigration document to legally work in the United States. All paperwork retention requirements with respect to such applications and petitions have been met. No employees have ever worked without employment authorization from the Department of Homeland Security or any other government agency that must authorize such employment and any employment of foreign nationals has complied with applicable immigration laws. I-9 forms have been timely and properly completed for all employees hired since the establishment of the company or the effective date of the Immigration and Control Act of 1986, whichever is earlier. I-9 forms have been

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lawfully retained and re-verified. There are no claims, lawsuits, actions, arbitrations, administrative or other proceedings, governmental investigations or inquiries pending or threatened against the Company relating to the Company’s compliance with local, state, or federal immigration regulations, including, but not limited to, compliance with any immigration laws except for employees named in schedule __.

There have been no letters received from the Social Security Administration (SSA) regarding the failure of an employee’s Social Security number to match his or her name in the SSA database. There have been no letters or other correspondence received from the Department of Homeland Security or other agencies regarding the employment authorization of any employees. If the Company operates in a state or has contracts with a state or federal agency that requires or provides a safe harbor if an employer participates in the Department of Homeland Security’s e-Verify electronic employment verification system, the Company has been participating in e-Verify for the entire period such participation has been required or available as a safe harbor or as long as the Company has been operating in such state or contracting with such agency.

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3. AskVisalaw.com In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

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QUESTION: I have a US citizen daughter and she will be 21 years old soon. We know that when she is 21 she will be able to sponsor me and my wife, but we have another child who will be 10 years old by that time. Will we be able to apply for us and our youngest child through one application, or are we going to have to make separated applications?

ANSWER: You are correct that US citizens can apply to sponsor their foreign national parents for US Permanent Residence (green card) once the US citizen son or daughter is 21 years old or older. Parents of US citizens who are sponsored by their US citizen sons or daughters fall within a category called Immediate Relatives. Other individuals that fall within the Immediate Relative category are spouses of US citizens and unmarried children of US citizens where the child is under the age of 21.

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The benefit of being an Immediate Relative is that there is currently no limit on the number of visas that can be issued to those who are being sponsored by their US citizen relative in the Immediate Relative category. This means that Immediate Relatives do not have the wait that is required, for a visa to become available, that most other visa preference categories have. You can see my other posts about visa wait times and the DOS Visa Bulletin.

But the one downside of the Immediate Relative category is that Immediate Relatives are not allowed to have derivative beneficiaries, meaning that spouses and minor children of Immediate Relatives are not eligible to obtain Permanent Residence through Adjustment of Status (I-485) or an Immigrant Visa along with their US citizen spouse or parent.

So a US citizen can file an Immediate Relative petition for her parents. A separate petition would be required for each parent. But where the parents have another child, that child is not able to benefit from the petition filed for the parents and cannot come to the US as a permanent resident with his/her parents.

A US Citizen can file a petition for their sibling, under the Family Fourth (F-4) preference category. But the wait time for a visa to become available for the petition (currently more than a decade) makes it so that this is not a viable solution to this problem.

However, once the parent comes to the US as a Permanent Resident, they can file an immigrant petition for their unmarried child who is under 21, under the Family Based Second Preference (F2A). It takes some time, currently a couple years, for a visa to become available under the F2A preference category, so some families will leave the younger child with a family member while both parents go to the US as Permanent Residents and file a petition(s) for the younger child, and some families will have one parent go to the US and file a petition for both their spouse and the younger sibling. You should be warned that one is required to maintain the US as their permanent residence in order to maintain the legal immigration status of US permanent residence. So those parents who come to the US to obtain US Permanent Residence and then move back to their home country, so that they are primarily living in their home country, to await a visa for their child or spouse risk the possibility that the US government could determine that they have failed to maintain the US as their permanent residence, and therefore have abandoned their US Permanent Residence.

In a similar situation, in order for a US citizen to be able to petition for a step-parent, the marriage between the parent and step-parent must have taken place before the US citizen’s 18th birthday. So where the parent has remarried and has a spouse that is the US citizen’s step-parent, but where the marriage took place after the US citizen’s 18th birthday, in that situation the US citizen can petition for their biological parent, but they cannot petition for their step-parent, and the step-parent cannot come to the US as a permanent resident with his/her spouse.

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Attorney Ari Sauer explains how Dreamers are affected by the Trump administration’s plan to terminate DACA

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4. Border and Enforcement News

Siskind Summary – H.R. 3591 – The American Hope Act of 2017

By: Greg Siskind

Section 1. Short Title – The “American Hope Act of 2017”

Section 2. Definitions.

Eligible Nonprofit Organization – A nonprofit, tax-exempt organization, including a community, educational, faith-based or other immigrant-serving organization whose staff has the qualifications to serve immigrants, refugees, asylees or persons applying for these statuses.

Institution of Higher Education – Based on Section 101 of the Higher Education Act of 1965 which is limited to nonprofit institutions offering associate’s degrees and higher.

Section 3. Restoration of State Option to Determine Residency For Purposes of Higher Education Benefits.

Section 505 of the 1996 Immigration Act is repealed. That provision bars states from offering in-state tuition to illegally present immigrants (some states have bypassed this by offering in-state tuition based on graduating from a high school in the state rather than based on residence). The repeal is made retroactive to 1996.

Section 4. Cancellation of Removal and Adjustments of Status of Certain Residents Who Entered The United States as Children.

Special Rule for Certified Residents Who Entered the United States as Children.

DHS will cancel the removal of and adjust to the status of an alien lawfully admitted for permanent residence on a conditional basis (CPR) an alien who is inadmissible or deportable from the US if the alien shows that

• The alien has been continuously present in the US since 12/31/2016 and was younger than 18 when the alien entered

• The alien isn’t inadmissible for the following reasons

• Criminal grounds – INA Section 212(a)(2)

• Security grounds – INA Section 212(a)(3)

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• Permanently ineligible for citizenship or a draft dodger – INA Section 212(a)(8)

• Polygamists – INA Section 212(a)(10)(A)

• International child abductors – INA Section 212(a)(10)(C)

• Former citizens who renounced citizenship for tax purposes – INA Section 212(a)(10)(E)

• DHS may waive these grounds if the offense is immigration-related, a misdemeanor offense or its equivalent or any offense that is not a crime of violence where the waiver serves humanitarian purposes, family unity or is in the public interest.

DHS shall by rule set a procedure to apply for this status without requiring being placed in removal proceedings. Minors may request the benefit through a legal guardian or counsel. People in removal proceedings or previously ordered removed are eligible to apply.

DHS shall conduct background checks on all aliens applying for relief.

Any period of continuous presence in the US of an alien who applies for cancellation of removal under this section shall not be considered to have terminated when the alien is served a notice to appear in a removal proceeding.

Departures of 90 days in a row or an aggregate of more than 180 days will be considered a failure to maintain continuous presence unless the departure was authorized by DHS. Exception for brief, casual and innocent absences whether or not authorized by DHS. DHS may also extend these periods in exceptional circumstances such as the serious illness of the alien, or death or serious illness of a spouse, parent, grandparent, sibling or child.

CPRs won’t count against green card numerical limits.

DHS shall propose regulations within 180 days of enactment and shall be effective immediately. Within an additional 180 days, final regulations are due.

Aliens denied applications may seek a review from DHS.

DHS may not remove people with pending application or who are prima facie eligible.

Section 5. Conditional Permanent Resident Status.

Valid for an initial period of 8 years.

Termination of status. DHS may terminate status if the alien has engaged in conduct that renders the alien deportable. Aliens who have their status terminated will revert to the status they had immediately before being granted CPR. Aliens who have their CPR terminated may request review of the determination in a removal proceeding. The burden of proof is on DHS.

CPRs may submit a request to remove conditions. An approved applicant will have conditions on green card removed. Denied applicants will have CPR status terminated. An

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alien denied may have that determination reviewed in a removal proceeding. The burden of proof is on DHS with a preponderance of the evidence standard.

Applicants may file within six months of maintaining conditional status for 3 years a removal of conditions application. The application must show the alien has not become ineligible for one of the admissibility grounds noted above and has not abandoned residency in the US. Abandonment presumed if the alien has been absent from the US for 365 days in the aggregate during the CPR period unless the alien can show otherwise. Time in the armed services abroad doesn’t count.

Time in DACA shall count toward the 3-year period governing when conditions can be removed.

Time in CPR can count toward the naturalization period but applicants cannot apply to naturalize until conditions are removed.

Applicants seeking a removal of conditions must undergo a new background check.

Section 6. Exclusive Jurisdiction.

DHS has exclusive jurisdiction except for people in removal proceedings and in that case the Attorney General has exclusive jurisdiction until proceedings are terminated. After this, DHS shall resume jurisdiction.

Section 7. Confidentiality of Information.

The government may not use information furnished by the alien to initiate removal proceedings or publicize information in the petitions except to assist law enforcement agency investing crimes or terrorism or a coroner to identify a deceased individual. $50K potential penalty.

Section 8. Grant Program to Assist Eligible Applicants.

DHS may establish with USCIS a program to award grants to eligible nonprofit organizations to assist eligible applicants apply for benefits under the act. No specified dollar amount except “such sums as may be necessary.”

Section 9. Presidential Award For Business Leadership in Promoting American Citizenship

An award shall be given to companies and other organizations that make extraordinary efforts in assisting their employees in learning English, attain GEDs and increasing their understanding of American history and civics.

Section 10. English Learning Program.

The Secretary of Education shall develop an open source electronic program that is useable on computers and the Internet which provides instruction on the English language, is available for free, is readily accessible in public libraries and is fully accessible to speakers of the top 6 foreign languages spoken by immigrants in the US.

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Section 11. Higher Education Assistance.

Outlines which federal student financial aid programs are available to CPRs.

Section 12. GAO Report.

Within 7 years, the Comptroller General of the US shall submit a report to the Judiciary Committees of the House and Senate setting forth the number of people who applied for benefits and statistics on the adjudication of those benefits.

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Siskind Summary – HR 3304 – The House Dream Act of 2017

Section 1. Short Title – The Dream Act of 2017

Section 2. Definitions

Select ones that are not obvious –

“Disability” – Refers to section 3(1) of the Americans with Disabilities Act of 1990

The term “disability” means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment .

“Early Childhood Education Program” – As defined in Section 103 of the Higher Education Act of 1965 – includes Head Start programs, state licensed child care programs or programs that serve children from birth through age six that addresses children’s cognitive, social, emotional and physical development and is a state pre-k or similar program.

“Institution of Higher Education” – as defined in section 102 of the Higher Education Act of 1965. This is a somewhat broader definition than used, for example, for H-1B visas and would include for-profit schools as well as programs offering lesser degrees than associates or bachelors degrees. Does NOT include foreign institutions.

“Permanent Resident Status on a Conditional Basis” means people who get conditional permanent residence (CPR) under this act.

“Poverty Line” – Uses Census definition rather than HHS guidelines which is the normal reference in immigration cases. Census number is a little higher.

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“Uniformed Services” – defined in 10 USC 101(a) and means the armed forces, the commissioned corp of the National Oceanic and Atmospheric Administration and the commissioned corp of the Public Health Service.

Section 3. Permanent Resident Status on a Conditional Basis for Certain Long-Term Residents Who Entered the United States as Children.

Aliens getting permanent resident status under this act get it on a conditional basis.

DHS shall cancel the removal of and adjust to CPR status an alien who is inadmissible or deportable from the US or is in temporary protected status (TPS) if

• The alien has been continuously physically present in the US since the date that is 4 years before the date of the enactment of the act.

• The alien was younger than 18 when the alien initially entered the US.

• The alien is not inadmissible for the following reasons outlined in INA 212(a)-

• Criminal and related grounds – 212(a)(2)

• Security and related grounds – 212(a)(3)

• Alien smuggling – 212(a)(6)(E)

• Student visa abusers – these are people who came on F-1s and violated status – 212(a)(6)(G)

• People permanently ineligible for citizenship and draft evaders – 212(a)(8)

• Polygamists – 212(a)(10)(A)

• International Child Abductors – 212(a)(10)(C)

• Unlawful Voters – 212(a)(10)(D)

• The alien hasn’t been involved with persecuting people on account of race, religion, nationality, membership in a social group or political opinion

• The alien hasn’t been convicted under federal or state law (other than immigration violations) that is punishable by a maximum term of more than 1 year or 3 or more offenses under federal or state law (other than immigration violations) and arising on different dates that led to imprisonment for an aggregate of 90 days or more;

• The alien has been admitted to an institution of higher education, has earned a high school diploma or GED, or is enrolled in secondary school or a GED/high school diploma equivalent educational program.

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Waiver – DHS may waive the grounds of inadmissibility based on 212(a)(2), (6)(E), (6)(G), or (10)(D).

Treatment of Expunged Convictions – DHS shall review expunged cases on a case by case basis and review circumstances to determine whether they should prevent someone from applying.

DACA recipients – DACA recipients will get CPR unless they engaged in conduct since receiving DACA status making them ineligible for DACA.

Application fee – DHS may charge a reasonable fee. Exemptions will be available for applicants 1) younger than 18 years of age or 2) receiving total income during the year preceding application date less than 150% of the poverty line AND the applicant is in foster care, younger than 18 and homeless or cannot care for himself or herself because of a disability and had income under 150% of the poverty line in the last year OR during the last year accumulated more than $10K in medical debt (includes immediate family) and has income below 150% of the poverty line.

Biometrics/Biographic data – Aliens must submit such data (exceptions for physically impaired) and DHS must complete a background check using the data.

Medical exams – Aliens must undergo an exam to get CPR status.

Military selective service – Aliens applying for CPR must register for the draft if required.

Determining physical presence – doesn’t terminate when the alien gets a notice to appear in a removal proceeding.

Treatment of Certain Breaks in Presence – With exceptions, aliens cannot maintain continuous residence if they have departed for more than 90 straight days or 180 days in the aggregate. DHS may extend for extenuating circumstances beyond the alien’s control, including the serious illness of the alien, or death or serious illness of a parent, sibling, grandparent or child of the alien. Doesn’t include periods of travel authorized by DHS.

Limitation on Removal of Certain Aliens – DHS/DOJ may not remove aliens who appear prima facie eligible for relief under this section. Such individuals must be given a reasonable opportunity to apply if the alien is in removal proceedings, is the subject of a final removal order or is the subject of a voluntary departure order. DHS will also stay the removal proceedings of and not commence new proceedings for any alien who meets the act’s requirements except education/service requirements who is at least 5 years of age and enrolled in elementary or secondary school or an early childhood education program. [Note – those younger wouldn’t meet the requirement to be here for at least four years]. Employment Authorization Documents are to be granted to people covered under this section.

CPR grants will not affect numerical limits on green cards.

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Section 4. Terms of Permanent Resident Status on a Conditional Basis.

Granted for a period of 8 years unless DHS extends.

May be terminated if DHS

• Determines the alien now fails one of the inadmissibility eligibility grounds (such as the criminal ones)

• DHS must give notice and an opportunity to contest

The alien will be returned to the status held before CPR except that if DHS determines that the reason for terminating renders the alien ineligible for TPS, the alien will not be returned to that status.

Section 5. Removal of Conditional Basis of Permanent Resident Status.

The conditional basis of the alien’s permanent resident status shall be removed if the alien has not abandoned residence in the US and 1) has acquired a degree from an institution of higher education or has completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the US, 2) has served in the Uniformed Services for at least 2 years and, if discharged, received an honorable discharge, or 3) has been employed for at least 3 years and 75% of that time has held a valid employment authorization, except that any period the person is not employed while having employment authorization and is enrolled in school shall not count toward the time requirements under this clause.

Hardship exception – DHS may remove the conditions and grant unconditional permanent residency if the alien demonstrates compelling circumstances for the inability to satisfy the requirements and demonstrates the alien has a disability, is a full-time caregiver of a minor child or the removal of the alien would result in an extreme hardship to the alien or the alien’s parent, spouse, or child who is a US national or lawful permanent resident.

Citizenship requirement – Alien must show the ability to pass citizenship English exam (there’s a disability exception).

Application fee – DHS may charge a reasonable fee to process this application. Same fee exemptions as noted above are available.

Biometrics/Biographic data – same requirements as for initial CPR application.

Treatment for Purposes of Naturalization – For purposes of naturalizing, an alien granted CPR shall be considered to have been admitted to the US and be present in the US as an alien lawfully admitted for permanent residence. Aliens must be converted to unconditional permanent residence before a naturalization application may be submitted.

Section 6. Documentation Requirements.

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Documents Establishing Identity –

• Passport or national ID document from the alien’s country that includes alien’s name and a photo or fingerprint

• Alien’s birth certificate and an ID card that includes name and photo

• A school ID card including name and photo and school records showing name and that the alien was enrolled

• A Uniformed Services ID card issued by the Department of Defense

• Any immigration or other document issued by the US government

• A state-issued ID card bearing alien’s name and photo

Documents Establishing Continuous Physical Presence in the US –

– employment records

– school records

– Uniformed Services records

– Religious institution records showing alien’s participation in a religious ceremony

– passport entries

– a birth certificate for a child born in the US

– automobile license receipts or registration

– real estate/lease documents

– tax receipts

– insurance policies

– remittance records

– rent receipts or utility bills

– money orders for money sent in or out of US

– dated bank transactions

– two or more sworn affidavits from people not related to the alien with direct knowledge

Documents Establishing Initial Entry Into the US – To show the alien was under 18 on the date of entry, the following may be submitted:

– admission stamp on the passport

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– school records

– DOJ/DHS documents stating date of entry into the US

– health records

– rent receipts or utility bills

– employment records

– religious records

– birth certificate for child born in the US

– automobile license receipts or registration

– real estate/lease documents

– tax records

– travel records

– money orders for money sent in or out of US

– dated bank transactions

– remittance records

– insurance policies

Documents Establishing Admission to an Institution of Higher Education – to show admission to an institution of higher education, the alien shall submit a document from the institution certifying that the alien has been admitted or is currently enrolled as a student.

Documents Establishing Receipt of a Degree From an Institution of Higher Education – A diploma or other document from the school stating receipt of the degree will suffice.

Documents Establishing Receipt of High School Diploma, General Education Development Certificate, or a Recognized Equivalent – The alien shall submit to DHS a high school diploma or certificate of completion, equivalency diploma or certificate recognized by the state or evidence of passing the GED.

Documents Establishing Enrollment in an Educational Program – for other schools discussed in the act, school records showing the name of the school, alien’s name, periods of attendance and the current grade or educational level.

Documents Establishing Exemption from Application Fees –

• To show age, show ID documents noted above showing age is younger than 18

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• To show income, employment records from the SSA or IRS or other government agency or bank records, or two sworn affidavits from non-relatives with direct knowledge

Documents to Establish Foster Care, Lack of Familial Support, Homelessness, or Serious Chronic Disability – Two sworn affidavits from non-relatives with direct knowledge

Documents to Establish Unpaid Medical Expense – The alien shall provide receipts or other documentation from a medical provider documenting that the alien has accumulated more than $10K in debt in the past year as a result of unreimbursed medical expenses.

Documents Establishing Qualification for Hardship Exemption – two sworn affidavits from non-relatives with direct knowledge.

Documents Establishing Service in the Uniformed Services –

– DOD form DD-214

– National Guard Report of Separation and Record of Service form 22

– Personnel records for such service from the appropriate Uniformed Service or

– health records from the appropriate Uniformed Service

Documents Establishing Employment –

• SSA or IRS or other government records

• At least two of the following:

• Bank records

• Business records

• Employer records

• Union, day labor center or worker assistance organization records

• Sworn affidavits from non-related individuals with direct knowledge

• Remittance records

DHS may prohibit or restrict the use of a document or class of documents if they go through a comment period and can show it is not reliable or is being used fraudulently to an unacceptable degree.

Section 7. Rulemaking.

Within 90 days of enactment, DHS shall publish implementing regulations which will allow for immediate application for relief. The regulations shall be effective on an interim basis

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and may be changed after notice and comment. Final regulations are due within 180 days of enactment. Paperwork Reduction Act is waived (presumably to speed up the process).

Section 8. Confidentiality of Information.

DHS may not disclose Dream or DACA application information. DHS may not refer individuals granted permanent resident status on a conditional basis or was granted DACA to ICE or CBP except to assist in law enforcement or to investigate criminal and security backgrounds of the applicant as part of application process. $10K penalty for violators.

Section 9. Restoration of State Option to Determine Residency for Purposes of Higher Education Benefits.

Section 505 of the 1996 Act which bars states from offering in-state tuition based on residency to illegally present immigrants is repealed. The repeal is retroactive to 1996.

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Siskind Summary - Proclamation Expanding Travel Ban

By: Greg Siskind

The White House states that it’s March 6, 2017 call for information sharing requirements to be met for countries to avoid being included in the travel ban. According to the Administration, several countries are deficient with respect to their identity-management and information-sharing capabilities, protocols and practices. Some countries have also been deemed to have a “significant terrorist presence” within their country. Therefore, the President is imposing various restrictions on the entry into the US of nationals from these countries.

Section 1. Policy and Purpose. US policy is to protect citizens from terrorist attacks and public-safety threats. Visa processing with adequate screening and vetting is critical.

Information-sharing and identity-management protocols by foreign governments are important parts of this.

As part of Executive Order 13780, the President ordered a worldwide review to identify what additional information would be needed from foreign governments to determine if individuals pose a security or public safety threat. That resulted in a July 9, 2017 review that created a baseline for reviewing threats with three categories of criteria:

• Identity-management information – the US expects foreign governments to provide information needed to determine whether applicants are who they claim to be;

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• National security and public-safety information – the US expects foreign governments to provide information about whether people seeking entry pose national security or public-safety risks;

• National security and public-safety risk assessment – this category focuses on national security risk indicators and include whether a country is a known or potential terrorist safe haven, whether it is in the Visa Waiver Program and whether it fails to receive its national subject to final orders of removal from the US.

The review identified 16 countries as being “inadequate” based on the three categories and another 31 as being “at risk” of becoming inadequate based on the criteria.

The White House claims that the 50-day engagement period caused many countries to improve their cooperation with the US.

DHS has determined that the following countries continue to have “inadequate” ID management and information sharing practices such that entry restrictions and limits are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela and Yemen. Iraq missed the baseline as well, but DHS is not recommending inclusion with the others, but Iraqi nationals would still be subject to additional scrutiny if they pose a security or safety risk. Somalia was also identified as problematic.

With respect to the countries identified, the restrictions on travel apply to all immigrants – both green card holders and nonimmigrants. But the restrictions apply differently depending on the particular country and type of visa.

Somalia (not listed on the list of 7) – while it is sharing information, it is unable to consistently cooperate and has terrorist threats emanating from its territories. Therefore, entry restrictions for nationals of Somalia are being imposed.

Section 2. Suspension of Entry for Nationals of Countries of identified Concern.

Chad – Has shown a willingness to improve, but doesn’t adequately share public-safety and terrorism information and terrorist groups are active in the country. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

Iran – Iran fails all tests. The entry of immigrants and all nonimmigrants except F and M students and J-1 exchange visitors is suspended. F, M and J nonimmigrant applicants will be subject to enhanced screening and vetting requirements.

Libya – Libya, while an important and valuable counterterrorism partner, faces significant challenges in all three criteria. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

North Korea – North Korea doesn’t cooperate in any respect and fails all tests. The entry of all immigrants and nonimmigrants is suspended.

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Syria – Syria regularly fails to cooperate and does not meet any of the criteria. The entry of all immigrants and nonimmigrants is suspended.

Venezuela – Venezuela is uncooperative in verifying whether its citizens pose national security or public-safety threats. But there are alternative sources for obtaining information to verify ID. The restrictions therefore focus on government officials. The entry into the US of officials of government agencies involved in screening and vetting procedures – including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations – and their immediate family members, as nonimmigrants on B-1, B-2 and B-1/B-2 visas is suspended. Nationals of Venezuela who are visa holders should be subject to appropriate additional measure to sure traveler information remains current.

Yemen – Yemen, while an important and valuable counterterrorism partner, faces significant challenges in all three criteria. The entry of immigrants is suspended. The entry of B-1 business visitors, B-2 tourists and B-1/B-2 nonimmigrants is suspended.

Somalia – The entry of immigrants is suspended. Nonimmigrants are subject to additional scrutiny to determine if applicants are security or safety threats.

Section 3. Scope and Implementation of Suspensions and Limitations.

The proclamation applies to people from designated countries who

• Are outside the US later than 3:30 eastern time on September 24, 2017;

• Do not have a valid visa on that date; and

• Do not qualify for a visa under Section 6(d) of this proclamation.

Exceptions – The suspension of entry pursuant to section 2 of this proclamation shall not apply to:

• Any lawful permanent residents of the US (this directly contradicts descriptions in various country outlines);

• Any foreign national who is admitted to or paroled into the US on or after the applicable effective date;

• Any foreign national who has a document other than a visa – such as a transportation letter or advance parole document – valid on the effective date;

• Any dual national of a country designated under section 2 when the individual is traveling on a passport issued by a non-designated country;

• Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 via for travel to the UN, or G-2, G-2, G-3, or G-4 visa; or

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• Any foreign national who has been granted asylum to the US; any refugee who has already been admitted to the US; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers. A consular officer or CBP may, in their discretion, grant waivers on a case-by-case basis to permit entry if the following criteria are satisfied:

• Denying entry would cause undue hardship;

• Entry would not pose a threat to the national security or public safety of the US; and

• Entry would be in the national interest.

A waiver will allow for issuance of a visa, but will leave unchanged all other requirements for entry or admission. Examples of situations that might be appropriate for consideration of a waiver include

• The foreign national has been previously admitted to the US for a continuous period of work, study or other long-term activity and is seeking to reenter the US to resume that activity and denying reentry would impair that activity;

• The foreign national has previously established significant contacts within the US but is outside the US on the effective date for work, study or other lawful activity;

• The foreign national seeks to enter the US for significant business or professional obligations and the denial of entry would impair those obligations;

• The foreign national seeks to enter the US to visit or reside with a close family member (e.g. spouse, child or parent) who is a US citizen, green card holder or alien on a nonimmigrant visa and denial would cause the foreign national undue hardship;

• The foreign national is an infant, young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstance of the case;

• The foreign national has been employed by, or on behalf of, the US government;

• The foreign national is traveling for purposed related to certain international organizations;

• Canadian permanent residents;

• Foreign nationals traveling as a US government-sponsored exchange visitor; or

• The foreign national is traveling to the US at the request of a US government department or agency for law enforcement, foreign policy or national security reasons.

Section 4. Adjustments to and Removal of Suspensions and Limitations.

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DHS and the State Department will devise a process to assess whether the suspensions should be continued for each country. A report will be submitted with recommendations every 180 days. DHS, State, DOJ, the Director of National Intelligence and other agencies shall engage with listed the countries.

Section 5. Reports on Screening and Vetting Procedures.

DHS, in coordination with State, the AG, the Dir. of National Intelligence shall submit periodic reports that

• Describe the steps the US government has taken to improve vetting for nationals of all foreign nationals;

• Describe the scope and magnitude of fraud, errors, and unverifiable claims made in applications for immigration benefits;

• Evaluate the procedures related to screening and vetting established by State Department

The first report will be submitted within 180 days and the second with 270 days of the first report; annually after that.

Section 6. Enforcement. No immigrant or nonimmigrant visa issued before the applicable date under Section 7 shall be revoked. Individuals with visas revoked based on the January 27th Executive Order shall be entitled to a travel document. Admitted refugees and granted asylees not covered.

Section 7. Effective dates.

• Section 2 effective 3:30 eastern time on September 24, 2017 for people who were subject to entry restrictions from the January EO and who lack a credible claim of a bona fide relationship with a person or entity with a person or entity in the US.

• Section 2 effective date for all other person is 12:01 am eastern time on October 18, 2017 including nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a bona fide relationship with a person or entity in the US and Chad, North Korea and Venezuela.

Section 8. Severability. If any provision is held invalid, the remainder of the proclamation shall not be affected; and if any provision of the proclamation is held to be invalid because of the lack of certain procedural requirements, the relevant officials shall implement those requirements to conform with existing law and with any applicable court orders.

Section 9. General Provisions.

The proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

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Siskind Summary – Chart Comparing “Dream” Bills

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Siskind Summary SUCCEED Act

By: Greg Siskind

Senate Republicans have introduced the SUCCEED Act as an alternative to the DREAM Act to provide relief to DACA recipients.

Section 1. Short Title; Table of Contents

“Solution for Undocumented Children through Careers, Employment, Education and Defending our Nation Act” or the “SUCCEED Act”.

Section 2. Definitions

Alien Enlistee – A conditional permanent resident who seeks to comply with bill requirements through enlistment & service in the Armed Forces.

Alien Postsecondary Student – A conditional permanent resident who seeks to comply with the bill requirements through enrolling in and graduating from an institution of higher education in the US.

Conditional Permanent Resident (CPR) – 1) An alien who is granted conditional permanent resident status under this bill. CPRs shall not be considered to be unlawfully present in the US for purposes of Section 505 of the 1996 Immigration Act which bars states from granting in-state tuition to illegally present immigrants (states have bypassed this by conditioning in-state tuition on graduating from a state high school). 2) CPRs shall not be considered a lawful permanent resident for purposes of petitioning for relatives under section 204(a) of the INA or filing for adjustment of status under INA section 245(a). 3) CPRs must intend to permanently reside in the US. 4) CPRs are not required to have a foreign residence which they don’t intend to abandon. 5) CPRs are considered to have been inspected and admitted for purposes of INA Section 245(a) in order to later adjust to permanent residency AFTER CPR status has been removed under Section 5 of the bill.

Federal Public Benefit – the American Opportunity Tax Credit authorized under IRC Section 24A(i) [tax credits available to offset certain higher education costs], the Earned Income Tax Credit [tax credit available for people earning under a certain income level], the Health Coverage Tax Credit [available to certain people based on jobs lost due to international trade agreements and people whose pensions were taken over by the Pension Benefit Guaranty Corporation (PBGC) because of financial difficulties], Social Security benefits, Medicare benefits, and benefits under the Federal-State Unemployment Compensation Act.

Institution of Higher Education – Includes US institutions defined under section 102 of the Higher Education Act of 1965.

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Applicable Federal Tax Liability – liability for federal taxes including penalties and interest.

Secretary – Secretary of Homeland Security

Significant Misdemeanor – A criminal offense involving domestic violence; sexual abuse or exploitation, burglary, unlawful possession or use of a firearm; drug distribution or trafficking; or DUI. Also, any misdemeanor for which the individual was sentenced for a term of not less than 90 days (excluding a suspended sentence).

Section 3. Cancellation of Removal of Certain Long-Term Residents Who Entered the US as Children.

Special Rule for Certain Long-Term Residents Who Entered the United States as Children

The Secretary may cancel the removal of an alien who is inadmissible or deportable from the US and grant CPR if the alien a) has been physically present in the US for a continuous period since 6/15/12;

b) was younger than 16 years of age on the date when the alien initially entered the US;

c) was younger than 31 years of age and no lawful status in the US on 6/15/12;

d) If 18 years of age or older, the person has 1) while in the US, earned a high school diploma or GED; 2) has been admitted to an institution of higher education in the US; or 3) has served, is serving, or has enlisted in the Armed Forces;

e) If younger than 18 years of age, 1) is attending or has enrolled in a primary or secondary school; or 2) is attending, or has enrolled in, a postsecondary school. NOTE: This will allow children too young to apply for DACA to be eligible for CPR;

f) has been a person of good moral character since the date on which the alien entered the US-based on section 101(f) of the INA. That INA section refers to the following:

• Habitual drunkards

• Certain drug offenders

• Professional gamblers and people convicted of illegal gambling

• People who have lied to get immigration benefits

• People jailed for an aggregate period of 180 days or more regardless of the offense

• People convicted of an aggravated felony

• People who have participated in torture or genocide or committed severe violations of religious freedom

• Other offenses not named above can still lead to a determination one lacks good moral character

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False claims to citizenship or registering or voting in violation of the law are not violations if both parents are US citizens [note – not all children automatically naturalize with their parents], they were citizens before the person was 16 and the person believed he or she was a citizen

g) has paid federal taxes or is on a payment plan approved by the IRS;

h) is not inadmissible under INA Section 212(a) or deportable under Section 237(a) for the following reasons –

• Has no listed diseases and has required vaccinations, no physical or mental illnesses posing a danger to others, and is not a habitual drug user or addict

• Not inadmissible on criminal grounds

• Security and terrorism grounds, people whose entry would have negative foreign policy consequences for the US, membership in totalitarian party, participants in persecution, torture and genocide, recruiter of child soldiers

• Public charge grounds (people who are a financial burden on the country)

• Fraudulently or willfully misrepresenting a material fact to procure a visa or admission into the US or falsely claimed citizenship

• Alien smugglers

• People permanently ineligible for citizenship and draft evaders

• Aliens ordered removed who illegally re-enter or attempt to re-enter the US

• Practicing polygamists, international child abductors, unlawful voters, former citizens who renounced to avoid taxation

• Engaging in marriage fraud

• Failure to register address changes (unless DHS determines failure was excusable)

The alien has not been convicted of a felony under State or Federal law, regardless of the sentence imposed, any combination of offenses under Federal or State law for which the alien was sentenced to imprisonment for at least one year; a significant misdemeanor and has never been under a final order of removal unless the person has remained in the US under color of law after such final order was issued or received the order before attaining 18 years of age.

DHS may waive, on a case-by-case basis and for humanitarian reasons, a ground of inadmissibility based on health, public charge, failure to attend removal proceeding [query – 212(a)(6)(b) is not listed as a ground to deny CPR so why would waiver be needed?], and alien smuggling and visa and immigration status violators. DHS must report within 180 days after enactment the number of waivers granted and denied and then report that information quarterly.

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Application procedures.

DHS shall issue regulations allowing eligible people to apply for relief without being placed in removal proceedings.

Each alien applying for CPR who are at least 18, must sign an acknowledgment confirming the alien was notified that he or she will be ineligible for any form of relief or immigration benefit under this bill or other immigration laws other than withholding of removal under 214(b)(3) or Convention Against Torture claims if the alien violates a term for CPR. DHS can make an exception if warranted on humanitarian grounds or in the public interest. Courts may not review these determinations.

Applicants must submit biometric and biographic data. Alternative procedures for people with physical disabilities or impairments.

Background checks – DHS shall use biometric, biographic and other data that DHS to conduct security and law enforcement background checks and to determine if there are any factors that would render the applicant ineligible for relief. Cancellation of removal won’t happen until checks are complete. DHS will seek information on criminal activity from international law enforcement agencies and the country of last habitual residence.

Medical examinations will be submitted.

Applicants must register for Selective Service if required.

Expunged convictions – Expunged convictions shall be evaluated by DHS on a case-by-case basis according to the nature and severity of the offense to determine eligibility for CPR, removal of CPR status or adjustment to permanent residency. No judicial review of these determinations.

Termination of Continuous Period – ANy required periods of continuous residence are not interrupted by being served a notice to appear in a removal proceeding under section 239(a) of the INA.

Treatment of Certain Breaks in Presence – Departures of more than 90 continuous days or more than 180 days in the aggregate in a five-year period will break continuous residence. Exceptions made if failure to return to the US was for exceptional circumstances such as serious illness of the alien or the death or serious illness of the alien’s parent, grandparent, sibling or child. Absences due to military service are excused.

DHS shall publish rules implementing this section within 180 days of enactment. They may be issued on an interim basis with a final rule due within a reasonable period of time.

DHS may not remove an alien who establishes prima facie eligibility for cancellation or removal and CPR until the alien has had a reasonable chance to file a CPR application.

Section 4. Conditional Permanent Resident Status.

CPR shall be granted for an initial period of 5 years or when the alien reaches 18 if after 5 years.

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CPRs may be employed in the US incident to CPR status and enlist in the Armed Forces.

CPRS may travel outside the US and may be admitted without having to obtain a visa if the alien has a valid CPR document and the absence from the US was not for more than 180 days or longer or for multiple periods exceeding 180 days in the aggregate or was due to service in the Armed Forces.

DHS shall terminate CPR status for an alien who is 18+ years of age if DHS determines the alien is a postsecondary student in an accredited institution of higher education in the US but failed to enroll in such institution within 1 year after the date on which the alien was granted CPR.

DHS shall terminate CPR for children under 18 if DHS determines the child enrolled in a primary or secondary school as a full-time student but has failed to attend for a period exceeding 1 year during the date on which the child was granted CPR.

DHS shall terminate CPR for enlistees who received CPR status on that basis and failed to complete basic training and begin active duty service within 1 year or received a discharge which was not honorable.

DHS will also terminate for people who got CPR fraudulently, no longer are meeting CPR requirements or has become a public charge, has not maintained employment in the US for a year since being granted CPR while the alien was not enrolled as a student or enlisted in the Armed Forces or hasn’t completed a combination of employment, military service or postsecondary school totaling 48 months during the 5-year period beginning on the date CPR status was granted.

People whose CPR is revoked for failing to meet CPR requirements shall be subject to expedited removal.

Once CPR status revoked, the alien returns to status the person had immediately before receiving CPR.

Extension of CPR Status.

DHS shall extend CPR for an additional 5 years if the alien has demonstrated good moral character during the entire CPR period, is in compliance with CPR requirements, has not abandoned residence in the US, doesn’t have tax liabilities, is not receiving Federal public benefits and has graduated from college, attended a postsecondary school for at least 8 semesters, has served as a member of the Armed Forces for 3 years and, if discharged, received an honorable discharge, or has attended a postsecondary school, served in the Armed Forces or maintained employment for a cumulative total of not less than 48 months.

Section 5. Removal of Conditional Basis for Permanent Residence

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Aliens who have been CPR for at least 10 years may file an application to remove conditions and adjust to (unconditional) permanent residence. If the requirements for adjusting are not met, CPR status may be terminated and adjustment denied.

Applicants may apply to adjust status up to 180 days before the 10 year CPR period expires through the expiration date of CPR. CPR shall be deemed to continue while the adjustment is pending.

Adjustment applications must contain proof of maintaining CPR status for 10 years, good moral character, and no abandonment of residence in the US (presumed if absent for an aggregate of 365 days unless alien can show otherwise and not including Armed Services work).

Citizenship requirement. CPRs may not have conditions removed unless they can pass the citizenship English test unless there are developmental or mental impairments explaining this.

No adjustment of status without being current on taxes.

Biometrics and biographic data are required and must be reviewed before adjustment granted.

There are no numerical limitations on adjustment of status for people going this route.

Section 6. Limitation on Parole Authority.

INA is amended to say DHS may not use parole authority to parole generalized categories or classes of aliens based on nationality, presence or residence in the US, family relationships, or any other criteria that would cover a broad group of foreign nationals, whether inside or outside the US.

Advance parole is separately defined to distinguish it from other parole categories.

Section 7. Failure to Comply With Status Requirements; Visa Overstays

VWP applicants must sign an acknowledgment confirming the alien has been notified he or she will be ineligible for any right to apply for adjustment of status if the alien fails to depart at the end of the 90-day period for admission and waives any right to review or appeal a determination of admissibility at a port of entry into the US and waives the right to contest removal (except for asylum applicants).

NIV applicants must sign an acknowledgment that they understand no right to apply to adjust status if the alien violates any term or condition of his or her nonimmigrant visa.

DHS may not issue an NIV (other than an A or G visa) until the alien has waived right to adjust status in the US and from contesting removal if the alien violates a term of NIV status or fails to depart at the end of the alien’s authorized period of stay.

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Section 8. Benefits for Relatives of Aliens Granted Conditional Permanent Resident Status.

CPRs may not sponsor family members for any immigration benefit and having CPR may not be used to provide special consideration for relatives to remain in the US (appears to eliminate using a CPR to help a family member get cancellation of removal).

Section 9. Exclusive Jurisdiction.

DHS shall have exclusive jurisdiction to determine eligibility for CPR and adjustment. The AG shall terminate final removal orders after the alien has been granted CPR status. The AG has jurisdiction to determine eligibility for relief under this Act for any alien has been placed into deportation, exclusion or removal proceedings until proceedings are terminated.

Section 10. Confidentiality of Information.

Information provided in a CPR application may not be used to initiate removal proceedings and will keep application information confidential. Information may be shared with law enforcement authorities or with a coroner to assist in identifying a deceased individual. $10,000 fine for violating this section.

Section 11. Restriction on Welfare Benefits for Conditional Permanent Residents.

For purposes of the current 5-year wait applicable to green card holders to apply for public benefits, individuals have met the requirements to adjust status from CPR shall be considered to have met the 5-year requirement (i.e. they can apply after ten years).

Section 12. GAO Report.

Within 7 years, the Comptroller General shall submit a report to the Judiciary Committees of the Senate and House a report setting forth data on usage of the CPR program.

Section 13. Military Enlistment.

Military enlistment eligibility section of US Code amended to include CPRs.

Section 14. Eligibility for Naturalization.

People adjusting to permanent residency under this bill may apply to naturalize not later than 5 years after such adjustment of status.

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United States U.S. issues visa sanctions on 4 nations The United States placed sanctions on visa issuance for four countries who declined to admit deported nationals. DHS has announced the sanctions on Cambodia, Eritrea, Guinea, and Sierra Leone were imposed due to a “lack of cooperation” in these deportation proceedings.

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This is in accordance with a January executive order which instructed DHS to contact “recalcitrant countries” unwilling to accept deported individuals and to impose appropriate sanctions if this refusal persists. The levying of sanctions has never been a common practice, and the president’s utilization of sanctions as a disciplinary action is even more novel. Removal of these sanctions will occur once cooperation has “improved to an acceptable level.”

Claiming unilateral adherence to international law by the United States, Acting Secretary of Homeland Security Elaine Duke announced the sanctions by saying, “The United States itself routinely cooperates with foreign governments in documenting and accepting its citizens when asked, as do the majority of countries in the world. However, these countries have failed to do so, and that one way street ends with these sanctions.”

Beginning September 13, 2017, these sanctions specifically affect the following countries in the following ways:

The U.S. Embassy in Phnom Penh, Cambodia discontinued the issuance of B visas, temporary visitors for either business or pleasure, for Cambodian Ministry of Foreign Affairs employees, with the rank of Director General or above, and their families.

The U.S. Embassy in Asmara, Eritrea discontinued the issuance of all B visas, temporary visitors for either business or pleasure.

The U.S. Embassy in Conakry, Guinea discontinues the issuance of B visas, temporary visitors for either business or pleasure, and F, J, and M visas, temporary visitors for student and exchange programs for Guinean government officials and their immediate family members.

The U.S. Embassy in Freetown, Sierra Leone discontinues the issuance of B visas, temporary visitors for either business or pleasure, for Ministry of Foreign Affairs officials and immigration officials.

For more information, view the press release.

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5. News from the Courts

BIA Affirms Aiding and Abetting Under California Law is Aggravated Felony In March 2008, an Immigration Judge found Juan Delgado, a native and citizen of Mexico and lawful permanent resident of the United States, removable as a result of a 2005 conviction of an aggravated felony. The judge also denied his applications for relief from removal, a decision appealed by Delgado.

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In December 2005, Delgado was found guilty of five counts of robbery, the first of which he received a sentence of five years of incarceration and one year for each of the remaining four charges. In determining if this offense is an aggravated felony, the Board utilized a categorical approach. Inconsequential to this approach were the idiosyncratic specifics of Delgado’s case, but rather whether his State statute of conviction adhered to the Federal definition of the offense.

The generic definition of theft is “taking of property or an exercise of control over property without permission with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Citing precedential cases, the Board concluded that extortionate takings, such as those perpetrated through force or fear, adhere to the generic definition of aggravated felony theft, which equated the conviction Delgado faced with aggravated felony theft.

Delgado contested that the language of the violation of which he was convicted prevented such an equation from being possible. Under section 211 of the California penal code, the “taking of property” carries with it an element not only of seizure but also an element of asportation, or taking the property away. Delgado contested that the taking away of property necessitates a perpetrator, but as an aider and abettor, he could not qualify as a perpetrator. Since he argued that he did not execute this integral aspect of the definition of the law, then he could not be held accountable for its qualification as an aggravated felony.

The Board disagreed with this logic. Though it did not disagree that he did not meet the asportation element previously mentioned, it argued the element to be applicable to a specific subset of thefts; not adhering to this particular element of the definition does not exclude an individual’s qualification for the entire category. Since this indicated that Delgado’s conviction was under section 211, which was classified as an aggravated felony, Delgado’s offense was categorically an aggravated felony. Additionally, an aider and abettor assumes the same responsibility as the initial perpetrator in the crime; Delgado did not commit the initial taking of the property but his aiding and abetting made him just as responsible for the crime.

For these reasons, the Board dismissed Delgado’s appeal.

For more information, view the full case.

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BALCA Affirms Denial of Second PERM While First PERM Is Pending Before BALCA A petition filed in late July 2012 by an employer applying for permanent employment was denied by a Certifying Officer (CO) on the basis of the application’s congruity to another pending application before the Board of Alien Labor Certification Appeals (BALCA) which was filed by the same employer for the same alien to be appointed to the same position. In October of the same year, the employer, contending difference between the two applications, submitted a Request for Reconsideration. Outlining the differences, the employer noted the job requirements, the skill level determined by the Prevailing Wage Determination (PWD), and the offered salary were all dissimilar. Also presented by the

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employer was an excerpt from a FAQ from the Program Electronic Review Management (PERM) which stated that the job identified and the salary requirements must be identical to be considered an identical job offer. The CO denied the employer’s Request for Reconsideration a month later, asserting that the SOC/O*NET (OES) codes and job duties for the position listed in the application were the same as the position in the other application. This led the CO to the conclusion that the applications for the same alien for the same position.

The CO transmitted the file to BALCA, which issued a Notice of Docketing in late June 2013, and in July, the employer filed a statement of intent to proceed. The employer resubmitted its Request for Reconsideration on July 24, 2013. On March 2, 2017, BALCA issued an Order Requiring Certification on Mootness, and five days later, the employer filed a response contesting the case was not moot.

The regulations specifically state that processing more than one application for the same person in the same position is barred, “a new application for the same occupation for the same alien cannot be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.” The employer’s application was denied by the CO for this reason, and the employer’s reconsideration request revolves around the incongruity of the applications due to the PWD determination of a different skill level and education requirement.

In April 2008, the New York State Department of Labor issued a PWD for the employer, after the employee submitted information identifying the position title as “Medical & Health Services Manager.” The employer also listed in the application for a foreign worker named “Christine A. Ignacio” a graduate degree in dentistry and one-month training as a dentist as the job requirements for the position. The listed responsibilities for the position were to “[p]lan, direct or coordinate medicine and health services in clinics; manage organizations or similar organizations. Oversee administrative tasks including bookeepping [sic], buying equipment and supplies; supervise employees.” The New York State Department of Labor came to conclusion, after analyzing the information the employer provided, that the skill level for the position listed was 1 and it warranted an annual prevailing wage of $65,125.00.

Almost four years later, in March 2012, the employer received a PWD from the U.S. Department of Labor for a position entitled “Medical and Health Services Manager.” The job requirements listed for this position were a Doctor of Dental Medicine and 12 months experience in the position of Dentist, and the responsibilities listed were to “[p]lan, direct or coordinate medicine and health services in clinics; no pts. care; manage organizations, oversee administrative tasks including bookkeeping, buying equipment and supplies; supervise employees.” The U.S. Department of Labor decided that, after weighing the information provided, the skill level for this position was 2 and that the prevailing wage should be $115,170.00.

While the employee, job site, job title, and all other aspects of the application were identical, the difference between the two was in regard to the skills and experience required and the financial compensation. BALCA determined that this increase in prevailing wage was a direct result of the heightened requirements of Doctor of Dental Medicine instead of a

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graduate degree in Dentistry and 12 months experience as a dentist instead of one-month training. This did not, however, constitute to BALCA an entirely different position. The employers evidence of the FAQ was also inadequate, due to it pertaining to applications filed under pre-PERM program and applications re-filed under PERM regulations, as was not the situation in her instance. BALCA pointed out that the employer had the capability to withdraw the pending appeal and file a new petition, but since two applications were submitted for the same alien and the same position, which is against regulations, they affirmed the decision of the CO.

For more information, view the full case.

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6. News Bytes

Department of Homeland Security to Gather Social Media Information on All Immigrants

Federal officials are going to use immigrants’ social media accounts as a vetting tool, according to a new rule implemented by the Department of Homeland Security. The measure, which goes into effect October 18, will permit DHS to collect information on all immigrants, including permanent residents and naturalized citizens.

Critics have attacked the initiative and noted that the ambiguous nature of social media leads to questions about the efficacy of such a program. Character limitations, hashtags, and emojis can all yield shorthand communication, which can be open for interpretation in terms of the user’s intended meaning. Furthermore, the issue of identity also raises questions on such an implementation’s practicality. With no way of knowing that an individual is responsible for a social media post, can that individual fairly be judged for such posts? The announced plan comes after three pilot programs observing the effectiveness of monitoring social media accounts in determining an individual’s threat to national security were deemed unreliable.

For more information, view the full article or the new rule.

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Temporary Protected Status for South Sudan Extended for 18 Months, Sudan Set to Terminate in November

Temporary Protected Status (TPS) for South Sudan is going to be extended 18-months according to a release from the acting Secretary of Homeland Security, Elaine Duke. Extending the benefit for all eligible South Sudan nationals through May 2, 2019 was granted after determining that the ongoing armed conflict and overall conditions which predicated the 2016 redisgnation necessitated such a measure. Any current beneficiaries seeking TPS designation extension must re-register, and if when re-registering they request

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a new employment authorization document (EAD) may receive an automatic extension of their expiring EAD within the 180-day period prior to the expiration of their current EAD. If approved, the new EAD will have an expiration date of May 2, 2019. To avoid any potential lapses in documentation of employment authorization, TPS beneficiaries are strongly advised to re-register EAD applications as soon as they can.

Acting Secretary Duke also announced TPS for Sudan will be terminated in November of 2018. After assessing the conditions in the country, it was concluded that TPS designation can no longer be supported. The benefits for beneficiaries will be protected for 12 months to permit an orderly transition prior to the November 2, 2018 end date. Current beneficiaries who wish to extend their status need to re-register. Those re-registering and requesting a new EAD may receive automatic extension for up to 180 days from the expiration date of their current EAD. If the beneficiary’s EAD request is approved, a new EAD with a November 2, 2018 expiration date will be issued. To help avoid any prospective lapses in documentation of employment authorization, TPS beneficiaries are strongly advised to re-register and file EAD applications as soon as they can.

For more information, view the USCIS release for Sudan and South Sudan.

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Microsoft vows to protect its Dreamers in court

The large software manufacturer Microsoft has gone on record with its support of DREAMERs who the company employs. The company’s president Brad Smith asserted his displeasure with the decision to end the DACA program in a blog post, describing the decision as, “a big step back for our entire country.” Smith also firmly asserted support for any Microsoft employees who will face court proceedings, saying, “If Dreamers who are our employees are in court, we will be by their side.”

The DACA program permits individuals who were brought to the country without documentation to be employed and go to school with impunity from deportation. Congress was given 6 months to either re-work or repeal the DACA program, while DACA recipients are left to wait and see how their fate is decided. Smith and Microsoft firmly support expeditious legislature that will protect the DACA program and its recipients. Smith attested, “The Dreamers are a part of our nation’s fabric. They belong here.”

For more information, view the full article.

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USCIS Updates Numerous Forms

United States Citizenship and Immigration Services has released revised versions of a number of its forms and has provided information regarding when the new version will go into effect and how long the older versions will continue to be accepted. Below is a list of the updated forms and the pertinent changes made to them.

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Form N-426, Request for Certification of Military or Naval Service

The new edition is dated 07/25/17. Beginning 10/27/2017, USCIS will exclusively accept the edition dated 07/25/17. Until that date, USCIS will continue to accept the 08/04/15 edition.

Form I-601, Application for Waiver of Grounds of Inadmissibility

The new edition is dated 08/21/17. Beginning 10/27/2017, USCIS will exclusively accept the edition dated 08/21/17. Until that date, USCIS will continue to accept the 12/23/16 edition.

Form I-854, Inter-Agency Alien Witness and Informant Record

The new edition is dated 07/13/17. Beginning 10/13/2017, USCIS will exclusively accept the edition dated 07/13/17. Unit that date, USCIS will continue to accept the 03/13/15 edition.

Form G-1450, Authorization for Credit Card Transactions

The new edition is dated 08/04/17. Beginning 10/13/2017, USCIS will exclusively accept the edition dated 08/04/17. Until that date, USCIS will continue to accept the 08/06/15 edition.

Form N-4 Monthly Report Naturalization Papers

The new edition is dated 08/01/17, but USCIS will continue to accept editions dated 10/26/15, 01/22/13, and 11/09/09.

Form I-821, Application for Temporary Protected Status

The new edition is dated 12/23/16. A new edition of the form is expected to be released shortly. Until that time, USCIS will continue to accept editions dated 12/23/16, and 02/20/14.

For more information, view the USCIS updated forms page.

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7. Washington Watch

H.R.170: Protect and Grow American Jobs Act Complaints about abuses in the H-1B program has led to the introduction of H.R. 170 Protect and Grow American Jobs Act. The bill aims to mandate H-1B dependent employers pay higher wages for H-1B positions compared to their domestic counterparts, thus incentivizing domestic hires and facilitate proper H-1B enforcement.

For more information, view the proposed Act.

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S. 1560: Integrity in Border and Immigration Enforcement Act In order to quantifiably verify the integrity of prospective candidates for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) officers as well as current officers, S. 1560: Integrity in Border and Immigration Enforcement Act was proposed. The Act mandates polygraph testing of all applicants to the departments, testing of any current officers deemed a risk by their superior officers, and periodic testing of all officers to ensure there is no risk for misconduct or abuses. The testing would disqualify any applicants who fail the polygraph from employment. The officers tested as potential risks for misconduct or abuse would be determined by their superior officers based upon past incidents of corruption or misconduct. Both ICE and CBP would be required to conduct random polygraph tests to at least 5% of their officers who are undergoing background checks during that year and who were not tested in either of the two previously mentioned circumstances.

For more information, view the proposed Act.

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8. In the News at ABIL Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.

The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

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President Orders End of DACA in Six Months, With Mixed Signals About Future for 'Dreamers'; Two Lawsuits Challenge Program's Termination

On September 5, 2017, President Donald Trump ordered the end of Deferred Action for Childhood Arrivals (DACA), an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as "Dreamers." He said that his administration's position is that DACA was not statutorily authorized and therefore was an unconstitutional exercise of discretion by the

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executive branch. The order takes effect in six months. The rescission affects nearly 800,000 DACA recipients.

Based on "guidance from Attorney General Sessions and the likely result of potentially imminent litigation," the Department of Homeland Security's Acting Secretary Elaine Duke issued a memorandum on September 5 formally rescinding the Obama administration's June 15, 2012, memorandum that created DACA. Ms. Duke explained, "As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation, or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option." Ms. Duke said that "no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after [September 5, 2017] will be acted on."

President Trump's statement about current beneficiaries not being affected for 6 months was slightly less absolute; he said that current DACA recipients "generally" will not be affected: "DHS's enforcement priorities remain in place. However, absent a law enforcement interest—which is largely the standard that has been in place since the inception of the program—the Department will generally not take actions to remove active DACA recipients." He said that renewal applications for DACA employment authorization documents (EADs) properly filed and accepted by October 5, 2017, for people whose current EADs expire between September 5, 2017, and March 5, 2018, will be processed. He also said that all pending applications for advance parole by DACA recipients "will be closed and associated fees will be refunded." In a related tweet on September 7, 2017, President Trump said, "For all of those (DACA) that are concerned about your status during the 6 month period, you have nothing to worry about - No action!"

Hinting that the end of the DACA program might not necessarily be the end of the line for the Dreamers, President Trump also tweeted on September 5, "Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can't, I will revisit this issue!"

On September 6, 2017, the attorneys general of more than a dozen states and the District of Columbia sued the government to stop the DACA program's rescission. The lawsuit argues that the repeal of President Obama's DACA order violates the Administrative Procedure Act, is motivated by discrimination against Mexicans, and violates due process. The University of California filed a similar suit on September 8, 2017, against the Trump administration for violating the rights of the university and its students by rescinding DACA on "nothing more than unreasoned executive whim."

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ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will Not Be a Factor During

Rescues U.S. Immigration and Customs Enforcement (ICE) released a statement on September 7, 2017, that appears to temporarily suspend unspecified enforcement actions in areas affected by recent hurricanes:

While we generally do not comment on future potential law enforcement actions, operational plans are subject to change based on a variety of factors. Due to the current weather situation in Florida and other potentially impacted areas, along with the ongoing recovery in Texas, U.S. Immigration and Customs Enforcement (ICE) had already reviewed all upcoming operations and has adjusted accordingly. There is currently no coordinated nationwide operation planned at this time. The priority in the affected areas should remain focused on life-saving and life-sustaining activities.

For the safety and security of our communities, ICE fugitive operations teams will continue to target and arrest criminal aliens and other individuals who are in violation of our nation’s immigration laws, in non-affected areas of the country, as part of routine operations.

A separate statement issued by the Department of Homeland Security (DHS) on September 6, 2017, states, among other things, that "DHS will not conduct non-criminal immigration enforcement operations in the affected area." The statement also notes, "When it comes to rescuing people in the wake of Hurricane Irma, immigration status is not and will not be a factor. However, the laws will not be suspended, and we will be vigilant against any effort by criminals to exploit disruptions caused by the storm." DHS also stated that ICE detainees from the Krome Detention Center, Monroe County Jail, Broward Transitional Center, and Glades Detention Center "are being temporarily transferred to various other detention facilities outside the projected path of the hurricane. In the event of transfers, the detainee's attorney of record is notified, the Online Detainer Locator is updated, and the transfer is temporary in nature.

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State Dept. Changes Standard for Assessing 'Residence Abroad' for F-1 Nonimmigrant Students

The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated. An amendment to the Foreign Affairs Manual at 9 FAM 402.5-5(E)(1) revises the "Residence Abroad Required" provision. The new provision states:

b. Examining Residence Abroad: General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a

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basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.

The old provision stated, in relevant part:

b. The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

c. The residence abroad requirement for a student should therefore not be exclusively connected to ties. You must focus on the student applicant’s immediate intent. Another aspect to consider: students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.

It is not yet clear how this update will affect future adjudications of the F-1 student visa. It will be important for applicants to emphasize their intent to leave the United States at the end of their studies or optional practical training.

RELATED SECTION OF THE FAM

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

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9. Updates from the Visalaw.com Blogs Greg Siskind’s Blog on ILW.com

• Siskind Summary – September 24, 2017 Proclamation Expanding the Travel Ban • Siskind Summary – National Venture Capital Association v. Duke (filed 9/19/2017) • Guest Post – The Legal Workforce Act (H.R. 3711) – Pro-Immigration Advocates, Be

Sure to Look This Gift Horse in the Mouth by Anthony Weigel • Siskind Susser Advisory on the Revocation of DACA • Congress’ Choices – Three Bills That Address the DACA Mess

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• Siskind Summary – The RAC Act of 2017 • Siskind Summary – The Bridge Act of 2017 • Siskind Summary – The Dream Act of 2017 • Guest Post – Immigrant of the Day: Ang Lee • DACA Fate Remains Unclear • Immigrant of the Day: Jerry Yang – Tech Entrepreneur

Bruce Buchanan's Blog on ILW.com

• E-Verify Participation Poster Redesigned • Trump’s Extreme Vetting – L-1B Site Visits • Effects of Termination of DACA on Employers • New I-9 Form Must Be Used as of September 18 • 9th Court of Appeals Agrees with OCAHO Decision • I-9 Violations Cannot be Alleged by a Complainant in Discrimination Complaint • Realty Company Pays Over $100,000 to U.S. Workers to Settle Discrimination Claims • Plant Nursery Violates Law by Favoring H-2A Workers • OCAHO Finds State Employer Had Sovereign Immunity • OCAHO Finds State Employer Had Sovereign Immunity • Texas Tortilla Company Convicted of Employment of Undocumented Workers

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10. State Department Visa Bulletin: October 2017

Number 10 Volume X Washington, D.C

A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during October for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS in the Department of Homeland Security must use the “Final Action Dates” charts below for determining when they can file such applications.

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When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.

1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by September 11th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The final action date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a final action date, supplemental requests for numbers will be honored only if the priority date falls within the new final action date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, EL SALVADOR, GUATEMALA, HONDURAS, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

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A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

A. FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA-mainland born INDIA MEXICO PHILIPPINES

F1 22DEC10 22DEC10 22DEC10 01MAR96 01JAN07

F2A 22OCT15 22OCT15 22OCT15 15OCT15 22OCT15

F2B 08NOV10 08NOV10 08NOV10 15JUL96 01JAN07

F3 22JUL05 22JUL05 22JUL05 22APR95 22FEB95

F4 08MAY04 08MAY04 01OCT03 01OCT97 01JUN94

22MAR05

22MAR05

22DEC10

*NOTE: For October, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 15OCT15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable

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to all countries EXCEPT MEXICO with priority dates beginning 15OCT15 and earlier than 22OCT15. All F2A numbers provided for MEXICO are exempt from the per-country limit.

B. DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family- Sponsored

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIPPINES

F1 01JAN12 01JAN12 01JAN12 01NOV96 01OCT07

F2A 01NOV16 01NOV16 01NOV16 01NOV16 01NOV16

F2B 01SEP11 01SEP11 01SEP11 01JAN97 01SEP07

F3 01DEC05 01DEC05 01DEC05 01OCT95 15JUN95

F4 15NOV04 15NOV04 22JUN04 08FEB98 01MAR95

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

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First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.)

Employ- ment based

All Charge- ability Areas Except Those Listed

CHINA- mainland born

EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES

1st C C C C C C

2nd C 22MAY13 C 15SEP08 C C

3rd C 01JAN14 C 15OCT06 C 01DEC15

Other Workers C 01JAN06 C 15OCT06 C 01DEC15

4th C C 01NOV15 C 01MAR16 C

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Certain Religious Workers C C 01NOV15 C 01MAR16 C

5th Non-Regional Center (C5 and T5) C 22JUN14 C C C C

5th Regional Center (I5 and R5) C 22JUN14 C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The application date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing

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applications for adjustment of status with USCIS.

Employ- ment based

All Charge- ability Areas Except Those Listed

CHINA- mainland born

EL SALVADOR GUATEMALA HONDURAS INDIA MEXICO PHILIPPINES

1st C C C C C C

2nd C 15NOV13 C 08FEB09 C C

3rd C 01SEP15 C 01JAN08 C 01AUG16

Other Workers C 01JUN08 C 01JAN08 C 01AUG16

4th C C 15APR16 C C C

Certain Religious Workers C C 15APR16 C C C

5th Non-Regional Center (C5 and T5) C 01OCT14 C C C C

5th Regional Center (I5 and R5) C 01OCT14 C C C C

6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on final action dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF OCTOBER

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during

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the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2018 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For October, immigrant numbers in the DV category are available to qualified DV-2018 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 8,500

Except: Egypt: 2,350 Ethiopia: 2,100

ASIA 1,200

Except: Iran: 750 Nepal: 750

EUROPE 2,600

NORTH AMERICA (BAHAMAS) 2

OCEANIA 185

SOUTH AMERICA, and the CARIBBEAN 190

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2018 program ends as of September 30, 2018. DV visas may not be issued to DV-2018 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2018 principals are only entitled to derivative DV status until September 30, 2018. DV visa availability through the very end of FY-2018 cannot be taken for granted. Numbers could be exhausted prior to September 30.

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C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN NOVEMBER

For November, immigrant numbers in the DV category are available to qualified DV-2018 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region

All DV Chargeability Areas Except Those Listed Separately

AFRICA 8,600

Except: Egypt: 4,400 Ethiopia: 4,700

ASIA 1,750

Except: Iran: 1,450 Nepal: 1,400

EUROPE 4,500

NORTH AMERICA (BAHAMAS) 3

OCEANIA 315

SOUTH AMERICA, and the CARIBBEAN 325

D. SPECIAL IMMIGRANT (SI) TRANSLATOR CATEGORY VISA AVAILABILITY

Given the limited availability of visa numbers and the existing demand, the Department expects to reach the FY-2018 annual limit of 50 Special Immigrant Visas in the SI category early in the Fiscal Year. As a result, it has been necessary to establish an October Final Action Date of April 1, 2010. It is likely that number use will require the SI category to become “unavailable” in the coming months. Once the annual limit of 50 visas is reached, further issuances in the SI category will not be possible until October 2018, under the FY-2019 annual limit. The SQ Special Immigrant Visa category for certain Iraqi and Afghan nationals employed by or on behalf of the U.S. government in Iraq or Afghanistan is not affected and remains current.

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E. EXTENSION OF TWO EMPLOYMENT VISA CATEGORIES

HR 601 — Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017 extended both the Employment Fourth Preference Certain Religious Workers (SR) and Employment Fifth Preference Pilot (I5 and R5) Categories until December 8, 2017.

F. VISA AVAILABILITY IN THE COMING MONTHS

FAMILY-sponsored categories (potential monthly movement)

Worldwide dates:

F1: Up to several months F2A: Up to one month F2B: Up to one month F3: Three or four weeks F4: Two or three weeks

EMPLOYMENT-based categories (potential monthly movement)

Employment First: The category will remain “Current”.

Employment Second:

Worldwide: Current

China: Up to four weeks

India: Up to one month

Employment Third:

Worldwide: Current

China: Up to four months

India: Limited forward movement

Mexico: Current

Philippines: Up to two months

Employment Fourth: Current for most countries.

El Salvador, Guatemala, Honduras: Up to three weeks

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Mexico: some forward movement

Employment Fifth: The category will remain “Current” for most countries.

China-mainland born: Up to one week

The above final action date projections for the Family and Employment categories indicate what is likely to happen on a monthly basis through January based on current applicant demand patterns. Readers should never assume that recent trends in final action date movements are guaranteed for the future, or that "corrective" action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.

G. OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Subscribe Visa-Bulletin (example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa final action dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on final action dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514 CA/VO: September 11, 2017

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