CBP Testing New Technology to Collect Biometric Data from Departing Foreign Nationals

September 30th, 2015

U.S. Customs and Border Protection (CBP) has begun testing a mobile device to collect biometric data from a limited number of foreign national air travelers departing the United States. Officers will compare biometrics collected via the handheld device to the biometrics collected when the traveler entered the United States.  The testing will begin at Hartsfield-Jackson Atlanta International Airport and will be expand this fall to Chicago, Dallas, Houston, Los Angeles, Miami, Newark, New York, San Francisco, and Washington-Dulles. The project is expected to run through June 2016. After this period, CBP will use the results to determine its future plans for biometric exit.

During testing, CBP officers will be stationed at the passenger-loading bridge of selected flights departing the United States with a handheld biometric device. CBP officers will scan selected foreign national air travelers’ fingerprints and passports using the device. The traveler’s data will be matched to their entry data and then stored in data systems managed by DHS.  Only non-U.S. citizens will be included in the testing.

Several federal statutes mandate DHS to biometrically record the entry and departure of foreign visitors.  The CBP’s entry/exit strategy is designed around three goals: “identify and close the biographic gaps and enhance the entry-exit system; perform targeted biometric operations; and transform the entry/exit process through the use of emerging biometric technologies.”

Detention of Immigrant Children – Litigated Some 30 Years Ago in Flores v. Reno – Back Before the Courts

September 30th, 2015

Some 30 years ago in 1985, a lawsuit, Flores v. Reno, was brought against the government for detaining minor immigrant children in secure and unlicensed facilities. Twelve years later, in 1997, the government entered into a nationwide settlement agreement and agreed not to detain such children anymore. Those issues are back before the courts in the wake of DHS’s detention of Central American immigrant children and their mothers, which began in the summer of 2014.

The current litigation, brought in federal district court in February 2015, alleges that the government breached the 1997 Flores settlement agreement by detaining immigrant children in the same kind of facilities. After the parties failed to reach an agreement in July, the judge in the case, Judge Dolly Gee, stepped in and issued an order to show cause, essentially a ruling in which she found that the government had, in fact, breached the Flores agreement and that it could not hold the children any longer in these facilities. Judge Gee also found that the immigrant children should be released and preferably to a parent, including the parent with whom they had entered the country unless that parent posed a flight or security risk.

In its lengthy response, the government argued that the circumstances had changed since April 2015 and that it no longer had a blanket policy of detention. It argued that it now had a process whereby children and their mothers who passed the first hurdle of establishing “credible fear” – the first step toward winning asylum – were being released. It also argued that the court should revisit the order and reassess a number of the terms. Furthermore, the government asserted that detention ensured certain medical care and access to counsel to which the children would not be afforded if released. Plaintiffs replied. They argued that the government’s detention policies have not, in fact, changed and that access to counsel and medical care were, in fact, impeded by incarceration. Plaintiffs also argued that expedited removal is not required by law and that the government could issue a Notice to Appear and at the same time parole the women and children into the U.S. while they undergo their removal proceedings in immigration court at a later date.  Plaintiffs pointed out that the government has in fact paroled in some children and women, at least for a period of time in July while they await their removal proceedings.

The judge very quickly denied the government’s request for oral argument and signaled that she is ready to rule on the case. A decision is expected by August 24.  Assuming the order is issued for the plaintiffs, the government can appeal but it is not expected to do so. Instead, it is believed that the government may respond to pressure from advocates and members of Congress who have called for the end of family detention and will comply with the judge’s order in the case.  Stay tuned.

DHS to Implement Additional Security Measures to the Visa Waiver Program

September 25th, 2015

DHS will be introducing a number of additional or revised security criteria for all participants in the Visa Waiver Program. These criteria will apply to both new and current members of the program:

  • requiring use of e-passports (passports containing an electronic chip that holds the same information that is printed on the passport’s data page as well as biometric identifier) for all VWP travelers coming to the United States.
  • requiring use of the INTERPOL Lost and Stolen Database to screen travelers crossing a visa waiver country’s borders.
  • seeking permission to expand the use of U.S. federal air marshals on international flights from visa waiver countries to the United States.

ESTA travelers are encouraged to make sure that their visa waiver passports are compliant.

Green Cards with “Signature Waived” are Acceptable for I-9 Purposes

September 25th, 2015

USCIS has clarified that permanent resident cards that say “signature waived” are acceptable documents for Form I-9, Employment Eligibility Verification, as long as they are unexpired and reasonably appear to be genuine and relate to the person presenting them. Since February 2015, USCIS has been waiving the signature requirement for foreign nationals entering the United States for the first time as lawful permanent residents after obtaining an immigrant visa abroad.

News In Brief: DHS Announces Trilateral Agreement to Expand Trusted Traveler Programs; Derivative Citizenship Requirements Violate Equal Protection, Says Second Circuit: Citizenship Discrimination Claims Against City of Eugene and Staffing Company Settled

September 18th, 2015

The following additional items may be of interest to our readers:

DHS Announces Trilateral Agreement to Expand Trusted Traveler Programs: A new agreement signed by Homeland Security Secretary Jeh Johnson and his Canadian and Mexican counterparts will make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs at international airports. Eligible travelers will be able to apply for each program beginning in 2016.

Derivative Citizenship Requirements Violate Equal Protection, Says Second Circuit: The U.S. Court of Appeals for the Second Circuit held that the more stringent physical presence requirements for derivative citizenship placed on unwed citizen fathers than on unwed citizen mothers under the 1952 immigration law violates the Fifth Amendment’s guarantee of equal protection.

Citizenship Discrimination Claims Against City of Eugene and Staffing Company Settled:  DOJ recently announced a couple of settlement agreements resolving citizenship discrimination claims.  First, DOJ settled a case with Eugene, Oregon, to resolve allegations that the city violated the anti-discrimination provision of the INA by improperly restricting law enforcement positions to U.S. citizens at the time of hire and excluding any applicants who were not U.S. citizens.  The city of Eugene had required its law enforcement personnel to be U.S. citizens at the time of hire even though Oregon law requires police officers to be citizens within 18 months of hire. Second, DOJ settled a case with Priority Fulfillment Services, Inc. and PFSweb, Inc. after the company rejected valid Puerto Rican birth certificates and required individuals to present naturalization documents to prove their citizenship status, even though Puerto Ricans are U.S. citizens by birth.

Ongoing Delays for Interview-Waivable Cases

September 18th, 2015

Since 2013, there have been extensive adjudication delays of certain interview-waivable, family-based adjustment of status cases held at the National Benefits Center (NBC), with no real relief available while the case waits. Interview-waivable cases are those that the USCIS determines a personal interview at a USCIS field office is not required for adjustment adjudication. While in theory this is a benefit because the individual is not required to appear for an interview, in practice delayed cases are often adjudicated after a year or even longer whereas individuals scheduled for an interview at a USCIS field office normally obtain a decision and their green card within 6–8 months of filing. For the past two years, USCIS has repeatedly stated that it is trying to resolve this problem; however, delays continue. According to the latest USCIS update released on April 16, 2015, USCIS hopes to bring these cases within the regular four-month NBC processing time by the end of this fiscal year – September 30, 2015. We can only hope this means all delayed cases will be adjudicated by this date and going forward all interview-waivable cases will be processed within four months.

TPS Designation for Nepal

September 11th, 2015

On June 24, DHS designated Nepal for Temporary Protected Status (TPS) for 18 months based on the conditions resulting from the devastating 7.8 earthquake that struck that nation on April 25, 2015, and the subsequent aftershocks. The TPS designation for Nepal is effective June 24, 2015, through December 24, 2016. The designation means that, during the designated period, eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) will not be removed from the United States and may receive work authorization. The 180-day TPS registration period began June 24, 2015 and runs through December 21, 2015. To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since June 24, 2015. Applicants also undergo thorough security checks. Fee-waiver requests are available, but USCIS will reject any TPS application that does not include the required filing fee or a properly documented fee-waiver request.

Federal District Court Finds DHS Extension of STEM OPT Invalid but Stays Ruling until February 2016

September 11th, 2015

The U.S. District Court for the District of Columbia held that a 2008 DHS interim final rule extending the period of post-graduation optional practical training (OPT) by 17 months for STEM students on F-1 visas was invalid because DHS promulgated the rule without notice and comment. Post-graduation OPT allows nonimmigrant foreign nationals on an F-1 student visa to engage in employment during and after completing a course of study at a U.S. educational institution. The court found, however, that vacating the rule immediately would cause substantial hardship for F-1 STEM students and would create a major labor disruption for the technology sector. As such, the court ordered that the 2008 rule and its subsequent amendments be vacated, but that the vacatur be stayed until February 12, 2016, during which time DHS may submit the rule for proper notice and comment.

The plaintiffs are a collective-bargaining organization that represents science, technology, engineering, and mathematics (STEM) workers. The rule in question was issued by DHS on April 8, 2008 – H-1B filing season – without notice and public comment. In describing the purpose of the interim rule, DHS explained that “the H-1B category is greatly oversubscribed and as a consequence, OPT employees often are unable to obtain H-1B status within their authorized period of stay in F-1 status, including the 12-month OPT period, and thus are forced to leave the country.” DHS also noted that the inability of U.S. employers, in particular in the STEM fields, to obtain H-1B status for much needed highly skilled foreign workers had adversely affected the ability of U.S. employers to recruit and retain skilled workers. Such a loss of skilled workers, DHS said, created a competitive disadvantage for U.S. companies. The agency concluded that the rule would “quickly ameliorate some of the adverse impacts on the U.S. economy” by potentially adding “tens of thousands of OPT workers . . . in STEM occupations in the U.S. economy.” On several occasions, the agency modified, without notice and comment, the list of disciplines that qualify for the STEM extension via memos and updates to its website.

While it is unlikely that DHS will eliminate 17-month STEM OPT for eligible students when it conducts formal rulemaking, it is likely to review the program and make changes consistent with President Obama’s November executive action on immigration. In fact, the agency already announced plans to expand the degree programs eligible for OPT STEM  and to review more generally the length of time foreign graduates can work in the U.S. in OPT status.

EB-5 Investor and Three Other Popular Immigration Programs Set to Sunset September 30 Unless Reauthorized by Congress

September 4th, 2015

Once again we are at that time of year when four popular programs – the EB-5 “Regional Center” Visa Program, the Conrad 30 Waiver Program for Foreign Physicians, the E-Verify Electronic Employment Verification Program, and the Religious Workers Immigrant Visa Program – will sunset unless reauthorized by Congress. All four programs have been extended numerous times, but often at the last minute and without any change. This year, as in the past, the climate surrounding any kind of immigration legislation makes reauthorization – never mind change to the programs – uncertain and complex.  Let’s take a look at the EB-5 and the Conrad Waiver programs.

EB-5 Program

The EB-5 program has received significant negative criticism over the past several years; many believe the program needs major changes including increasing the minimum investment, addition of integrity provisions, and redefining the certain provisions, including what is a targeted employment area (TEA).  As of this writing, parallel efforts to extend the program are underway in both chambers of Congress.

In the U.S. House of Representatives, two bills have been introduced.  The first, H.R. 616, the “American Entrepreneurship and Investment Act of 2015” would, in part:

  • make the Regional Center program permanent;
  • require EB-5 petition adjudication within 180 days;
  • exempt spouses and children of EB-5 immigrants from EB-5 admissions limits;
  • authorize concurrent adjustment of status filing;
  • eliminate the per-country limit for employment-based immigrants and increase the per-country limit for family-based immigrants.

The second bill, the “EB-JOBS Act of 2015,” would:

  • extend and reform the EB-5 program;
  • create a new green card category for entrepreneurs who establish start-up businesses;
  • create a new green card category for certain treaty investors who have maintained their status for 10 years;
  • create a renewable reserve of 10,000 EB-5 visas upon exhaustion of the initial 10,000.

In the U.S. Senate, S. 1501, “American Job Creation and Investment Promotion Reform Act of 2015,” would, in part:

  • reauthorize the Regional Center program for 5 years;
  • increase the minimum TEA investment from $500,000 to $800,000 and non-TEA minimum investment from $1 million to $1.2 million;
  • eliminate state authority to certify TEAs;
  • limit high unemployment areas/TEA to a single census tract; and
  • create several different restrictions on indirect job creation calculations.

It is expected that these legislative efforts will combine at some point to fast-track an extension so that Congress can take a vote when members return to Washington after the August recess.

Conrad 30 Waiver Program

The Conrad 30 Program permits each state to support up to 30 foreign physicians for a waiver of the J-1 two-year home residence requirement that attached to the foreign physician’s visa status in exchange for the doctor’s two-year service in a medically underserved area in the United States.

A bill introduced in the Senate, S. 1189, “Conrad State 30 and Physician Access Act,” would:

  • remove the sunset provisions;
  • clarify requirements of the physician National Interest Waiver classification; and
  • make technical fixes, including confirming the ability of J-2 spouses to change status to classifications other than H-4.

NVC Corrects Erroneous Letters Indicating Possible Termination of Immigrant Visa Applications

September 4th, 2015

In July some visa applicants received e-mails from the National Visa Center (NVC) indicating that proceedings to terminate their immigrant visa application would commence, or that the application was being terminated for failure to contact the NVC within one year of notification of the availability of a visa, even when the individual or the attorney contacted the NVC within the one-year period. The NVC has since advised that is correcting the issue and is sending affected applicants a follow-up e-mail to let them know that their case is still in process, and that they should disregard the e-mail previously received.

Further clarification on the best process for reopening an erroneously terminated application is expected. A similar issue arose last year.