Corporate Immigration Law News

• 12Sep

  All attorneys should consider how changes to DACA might touch their clients

  Immigration Reform Comments Off on All attorneys should consider how changes to DACA might touch their clients

  On Tuesday, September 5, Attorney General, Jeff Sessions, announced that Deferred Action for Childhood Arrivals (DACA) would be phased out in six months if Congress fails to act on its own to pass immigration legislation. As initially designed, the DACA program provided administrative relief from removal/deportation to eligible immigrant youth who entered the United States when they were children (also known as Dreamers). As part of the DACA petitioning process, an applicant was required to demonstrate, inter alia, that he/she had entered the U.S. as a child, that he/she met the education requirement (completed school or attending school) and had no arrests or criminal record of any significance. Approved DACA applicants were granted  a temporary employment authorization document, typically valid for a period of two years, which allowed them to work legally in the United States, such document is also a stepping stone to obtaining a valid driver’s license, a social security number, and, ultimately, seeking college and graduate-level education. Continue reading:

  If you have any questions in connection with the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

• 07Sep

  Fact Sheet: Rescission Of Deferred Action For Childhood Arrivals (DACA)

  Immigration Reform Comments Off on Fact Sheet: Rescission Of Deferred Action For Childhood Arrivals (DACA)

  On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” creating a non-congressionally authorized administrative program that permitted certain individuals who came to the United States as juveniles and meet several criteria—including lacking any current lawful immigration status—to request consideration of deferred action for a period of two years, subject to renewal, and eligibility for work authorization.  This program became known as Deferred Action for Childhood Arrivals (DACA).

  The Obama administration chose to deploy DACA by Executive Branch memorandum—despite the fact that Congress affirmatively rejected such a program in the normal legislative process on multiple occasions. The constitutionality of this action has been widely questioned since its inception. Read more:

  If you have any questions in connection with the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

• 31Aug

  A Pending I-131 Application for Advance Parole Could Be Denied if You Travel Outside the U.S.

  USCIS News Comments Off on A Pending I-131 Application for Advance Parole Could Be Denied if You Travel Outside the U.S.

  A number of Immigration lawyers have reported that the United States Citizenship and Immigration Services (USCIS) has recently started denying I-131 Application for Advance Parole if the applicant had traveled outside of the U.S. while the application was pending.

  When an individual applies for a green card in the U.S., they can also file for advance parole. Advance parole is travel authorization. Because some nonimmigrant visa categories require a “non-immigrant” intent, once an individual applies for the green card – and demonstrates an “immigrant” intent – their existing visa is no longer valid. As a result, if an individual whose visa is no longer valid needs to depart the U.S. while their green card application is pending – they can apply for permission to reenter or be “paroled” into the U.S. after their trip – in advance.

  Not all green card applicants require such permission to travel, because they have “immigrant” visas or a visa that allows for “dual intent.” As such, these individuals may apply for advance parole as a back-up. It has long been USCIS practice that I-131 applications for applicants with a separate valid advance parole document or a valid H, K, L or V visa would continue to be processed regardless of whether the individual had traveled internationally or were out of the U.S. at the time of adjudication.

  Now, USCIS, citing the I-131 Form instructions, “[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned” is denying these applications.

  If you have any questions in connection with the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

• 30Aug

  USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants

  USCIS News Comments Off on USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants

  Effective October 1, 2017 the U.S. Citizenship and Immigration Services (USCIS) will begin expanding in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system. See more details here.

  If you have any questions in connection with any of the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

• 18Jul

  Alert: Revised Form I-9 released by USCIS

  I-9 Compliance Comments Off on Alert: Revised Form I-9 released by USCIS

  On July 17 the U.S. Citizenship and Immigration Services released a revised Form I-9 for Employment Eligibility Verification.  Employers are permitted to use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N.  Employers must continue following existing storage and retention rules for any previously completed Form I-9. Revisions include a minor change to the Instructions and a minor change to the list of Acceptable Documents in List C.  For additional information about the revisions to Form I-9, please visit the USCIS web site or contact us.

• 11Jul

  FAQs About Reinstated Travel Ban Issued by DHS

  Uncategorized Comments Off on FAQs About Reinstated Travel Ban Issued by DHS

  Do you have travel plans to the United States from abroad? The Department of Homeland Security recently published a list of 36 fairly helpful travel-related Frequently Asked Questions and answers (FAQs) in the wake of the June 26th decision of the United States Supreme Court to reinstate a portion of the Trump administration’s travel ban.  We reported the details on that decision in a June 28 post. For a full copy of the DHS FAQs, please click here. Anyone who might be affected by the travel ban will find this a good place to start when seeking information about the implementation of the travel ban. Please contact Tony Siliato or Scott Malyk if you have additional questions.

• 07Jul

  Immigration in the Spotlight: NJSBA Interviews Immigration Law Section Chair Scott R. Malyk

  Uncategorized Comments Off on Immigration in the Spotlight: NJSBA Interviews Immigration Law Section Chair Scott R. Malyk

  What are the priorities of the Immigration Law Section this year?

  It is quite an interesting time to be an immigration practitioner, as the issue is in the spotlight now more than ever, with discussions about Muslim bans, border walls, extreme vetting of visa applicants abroad, and heightened enforcement within our borders. We are even witnessing U.S. Immigration and Customs Enforcement (ICE) raids and arrests in and around our courthouses in New Jersey. Since immigration law issues often affect-and have a tendency to complicate-other legal issues and business concerns for our clients, we have made it our aim this year to collaborate with practitioners in a variety of other areas of the law in an effort to educate each other on the cross-over between practice areas. We are planning a series of collaborative continuing legal education programs that will include jointly sponsored presentations with the association’s criminal, family, municipal and labor and employment law sections. (Read full interview here)

• 28Jun

  Supreme Court Agrees To Hear Travel Ban Case Next Fall, Reinstates Parts Of Travel Ban

  Uncategorized Comments Off on Supreme Court Agrees To Hear Travel Ban Case Next Fall, Reinstates Parts Of Travel Ban

  On Monday, June 26 the U.S. Supreme Court, in a per curiam action, announced it will hear oral argument on the legal challenges to President Trump’s revised travel ban. In so doing, the Court partially reinstated the March 6, 2017 Executive Order (EO-2) that imposes a 90-day travel ban, and a 120-day suspension of the U.S. Refugee Resettlement program, on individuals from certain countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Portions of the travel ban will therefore remain in effect until arguments are heard by the Court this fall.  A summary of the Court’s rulings is as follows:

  Travel and Refugee Ban: The Court ruled that [the travel and refugee bans] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” However, all other foreign nationals, i.e., those without such a bona fide relationship-are subject to the provisions of EO-2.

  Refugee Cap: The Court held that a refugee with a credible claim of a bona fide relationship with a U.S. person or entity may not be excluded, even if the 50,000 cap on refugees has been reached or exceeded.

  Bona Fide Relationship with a Person in the United States: The Court noted the type of relationships that would qualify as bona fide, stating, “[f]or individuals, a close familial relationship is required.” The Court further stated that an individual who seeks to enter the United States to live with or visit a family member, such as a spouse or mother-in-law, “clearly has such a relationship.” 

  Bona Fide Relationship with an Entity in the United States: With regard to entities, the Court stated, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” The Court specifically stated that students who have been admitted to a U.S. university, a worker who has accepted an offer of employment from a U.S. company, or a lecturer invited to address a U.S. audience would have such a relationship.

  The Court stated that a relationship with a U.S. entity or individual that was entered into for the purpose of avoiding the travel ban will not be recognized as bona fide.

  Effective Date: A June 14, 2017 presidential memorandum directs the government to implement the travel ban “72 hours after all applicable injunctions are lifted or stayed with respect to that provision.” Therefore, we can expect the government to implement the Court’s decision on June 29, 2017.

  On the same date, June 26, 2017, DHS issued a statement confirming that it would provide details on implementation after consultation with DOJ and DOS. DHS states that implementation “will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.” In the meantime, the Court’s ruling may be interpreted as narrow, impacting only a limited number of travelers, identified as follows:

  Individuals Applying for Visas: It appears that individuals from the six designated countries who do not have a valid visa will be required to demonstrate a credible claim of a bona fide relationship with a person or entity in the United States during the visa interview.  In the B-1 visa context, it is unclear at this time how individuals traveling to the United States for business conferences or other short-term, non-contractual business interactions will be treated.   At the very least, such individuals should have evidence of a “formal, documented” relationship with a U.S. entity “formed in the ordinary course” of business.

  Under the Court’s ruling, the following individuals should not be impacted, regardless of their country of origin:

  Individuals with Currently Valid Visas: As noted in the EO-2, “Individuals [from the six affected countries] who currently hold a valid, unexpired visa may use the visa to travel to the United States.” Thus, an individual with a valid nonimmigrant or immigrant visa should be permitted to board a plane and present themselves for inspection at a U.S. airport or land port of entry.

  Lawful Permanent Residents, Asylees, and Others Exempted from EO2: EO-2 exempts from coverage LPRs, individuals who have been granted asylum, those already admitted as refugees, individuals traveling on advance parole, and those granted withholding of removal and/or CAT. All of these individuals should be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.

  Diplomats and Dual Nationals: Also exempt from the EO-2 travel ban are individuals traveling on diplomatic and related visas [NATO, C-2, G-1, G-2, G-3, or G-4] and dual nationals traveling on a passport issued by a non-designated country. These individuals should still be permitted to travel freely without having to demonstrate a bona fide relationship with a person or entity in the United States.

  Employment-based Visas (H, L, E, I, O, P, Q, R) and Employment-Based Immigrant Visas): The Court stated that a worker who has accepted an offer of employment from a U.S. company could demonstrate a bona fide relationship to a U.S. entity.

  Family-Related Visas (K, V, and Family-Based Immigrant Visas): The Court’s order is clear that individuals who “wish to enter the United States to live with or visit a family member” have close familial relationships. A spouse and a mother-in-law were included by the Court as examples of relationships that would qualify, and it should be argued that a fiancé would similarly qualify.  It is unclear at this time if more distant relationships would qualify.

  Students and Trainees (F, M, J): The Court stated that students who have been admitted to a U.S. university would have such a relationship. Presumably, the same would apply for vocational students and J-1 exchange visitors who would have a relationship to a U.S. program sponsor.

  Visitor for Business (B-1): The Court stated that a lecturer invited to address a U.S. audience would have a bona fide relationship to a U.S. entity. Visitor for Pleasure (B-2): As noted above, the Court recognized that individuals who wish to “visit a family member,” such as a spouse or mother-in-law, have close familial relationships.

  The Court’s per curiam order, and the dissenting opinion written by Justice Thomas, is available here:

• 04May

  Scott Malyk Assumes Chair of NJSBA Immigration Law Section

  Firm News Comments Off on Scott Malyk Assumes Chair of NJSBA Immigration Law Section

  Meyner and Landis LLP is pleased to announce that Scott R. Malyk, Esq., a Partner in the firm’s Immigration Law Group and current Chair-Elect of the New Jersey State Bar Association’s Immigration Law Section, will be appointed Chair effective May 18, 2017. The Immigration Law Section deals with the complexities and changing landscape of U.S. Immigration Law as well as the interaction between U. S. immigration laws and other areas of law, including Employment & Labor, Mergers & Acquisitions, Family, Criminal and Real Estate. In addition to serving as Chair of the Immigration Law Section, Scott will also serve as Chair of the section’s Presidential Task Force, responsible for providing the New Jersey State Bar Association and the press with reasoned responses to the Trump administration’s executive actions on immigration.

  Scott’s law practice is primarily focused on all aspects of corporate and business-related immigration law. Scott is an experienced, results-oriented attorney who represents a diverse group of domestic and multinational corporations and their employees, providing both short and long-term guidance in connection with the hiring, transfer and retention of international personnel worldwide.

  Scott is available to the press, upon request, for interviews, expert commentary and analysis in matters related to immigration law and practices. He can be reached via email at: smalyk@meyner.com; or direct dial phone at: (973) 602-3455.

  About Meyner and Landis LLP

  Meyner and Landis was founded in 1962 by former New Jersey Governor Robert B. Meyner.  Meyner and Landis is listed in the Martindale-Hubbell directory of preeminent law firms in the United States.  Our firm has a business-focused practice, with concentrations in Immigration Law, Banking, Business Transactions, Corporate Law, Creditor’s Rights, Commercial and Construction Litigation, Environmental Law, Real Estate and Trusts and Estates.

• 20Apr

  President Trump’s “Buy American, Hire American” Executive Order – Its Impact on the H-1B Program

  H-1B Visa News Comments Off on President Trump’s “Buy American, Hire American” Executive Order – Its Impact on the H-1B Program

  On April 18, 2017, President Trump signed a new Executive Order, “Buy American and Hire American.”  In the “Hire American” portion of the order, Trump announced he was directing DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The issuance of such Executive Order is on the heels of the government’s announcement that it had received 199,000 H-1B petitions during the April 2017 filing period (compared with 236,000 petitions filed last year).

  The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.

  Although it was signed with ceremonial flair, the Executive Order will have no immediate impact on H-1Bs. Many of the changes to the H-1B program contemplated by the Administration would require legislative action or rulemaking and would take time to go through the necessary processes.

  As a prelude to the Executive Order, the U.S. Department of Labor recently announced plans to protect U.S. workers from H-1B program discrimination by providing greater transparency and oversight.  As to such point, it is important to keep in mind that so long as an employer does not discriminate against U.S. workers (e.g., having a policy to only hire H-1B workers to fill certain positions), an employer may choose to hire foreign workers despite U.S. workers being qualified and available for work – so long as the appropriate wage is paid to the foreign nationals and the employment of H-1B foreign nationals will not adversely affect the working conditions of U.S. workers similarly employed in the area of intended employment.

  The DOL, however, is now cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, and is supporting the U.S. Department of Homeland Security’s measures to further deter and detect H-1B visa fraud and abuse.

  DOL advises that it will protect American workers against discrimination through the following actions:

  • Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.

  • Consider changes to the Labor Condition Application for future H-1B application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.

  • Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.

  To further deter and detect abuse, U.S. Citizenship and Immigration Services (USCIS) has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Individuals also can report allegations of H-1B violations by submitting Form WH-4 to the department’s Wage and Hour Division.

  WHAT DOES THIS MEAN FOR U.S. EMPLOYERS WHO RELY ON THE H-1B PROGRAM?

  Employer compliance with the rules governing the H-1B program is now paramount.  In this regard, employers should adopt the following best practices:

  • Anticipate (and, thus, be prepared for) an increase in unannounced H-1B site visits by DOL and USCIS, especially if the employer is an H-1B dependent employer or places H-1B workers off-site at client locations, or if the government is unable to verify the employer’s business information using commercial sources such as the Validation Instrument for Business Enterprises (VIBE) Program.  Such site visits will most likely involve questioning of the H-1B worker to confirm employment in the position offered and salary paid as set forth in the H-1B petition.

  • Conduct a self-audit of your H-1B Public Access Files in anticipation of increased audits by DOL and/or USCIS.

  • Expect some changes to the Labor Condition Application (LCA) process.  The LCA is the form submitted to DOL which, among other things, contains the rate of pay, applicable prevailing wage, period of employment and work location.  It also contains attestations by the employer regarding working conditions of the H-1B worker.

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