Immigration How the Screws are Tightening presented by
Immigration: How the Screws are Tightening presented by Robert C. Divine (Bio: www. bakerdonelson. com/robert-c-divine) at the UT-Battelle Labor & Employment Training August 15, 2019 Oak Ridge National Laboratory, Conference Center www. bakerdonelson. com
Stricter Agency is Lengthening Delays § Processing times surged 91 percent from FY 2014 to FY 2018 § Some processing times doubled or tripled. § Causes: more Requests for Evidence (RFE), non-deference to prior decisions, tighter substantive standards, interviews (all EB adjustments), site visits, more vetting, reduction in premium processing, longer data collection forms, more notices to appear, no Canadian border L-1 extensions § More coming: public charge test in nonimmigrant applications § Reduced service: Infopass phase out -> weird call-back system, service center mailboxes, online case status inaccuracies www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 2
Effect of Delays § I-129: 240 rule auto-extension for work, but problems for travel, drivers license, > 240 day authorization ending, and more need for premium processing filings § I-539 and L-2/E/H-4 EADs, now with biometrics: off track with principal worker, gaps in employment authorization (no 180 -day auto extension), lack of driver licenses, specter of violation immediately upon denial § Other applications: no authorization until § Adjustment: more renewals of interim work and travel documents, more chance for circumstances to change undermining eligibility § Advance parole: gaps in ability to depart and return on same AP document § Naturalization, removal of conditions on green card: more scheduling and trips to get I-551 stamps www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 3
Adjudication is More Demanding § Requires explanation and proof on obvious points § Exactly how a manager manages or specialized knowledge is needed and obtained § Why tasks require a bachelors degree or how equivalency of degree is obtained § How criteria for extraordinary ability and other factor standards are satisfied § TN: narrower alignment of profession and occupation § E visa company re-registration required more frequently www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 4
Waits for Visa Numbers are Growing § (Function of Congress, not agencies) § Visa Bulletin reflects wait of those in front, not of those to come § Estimates of India EB-2/3 at 50 -70 years going forward, drives EB-5 investment scramble § (note minimum investment near doubling as of Nov. 21) § Increases age-outs of children, need to obtain F-1 or other independent status www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 5
Increased Enforcement § ICE quadrupled I-9 inspections in FY 2018 § Worksite raids § On-site visits and verifications, especially of staffing arrangements § Fraud investigations are comprehensive and expanding www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 6
Risk Management Steps • Use competent/expert counsel • File at the first allowable time (usually 6 months ahead) • Document and articulate the obvious, and prepare to send even more on RFE • Mention FOIA exemption prominently on filings and watch for USCIS inquiries • Avoid or limit travel that could necessitate new visa to return • Be ready for unannounced site visits, especially re H or L workers • Self-audits www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 7
Questions? www. bakerdonelson. com © 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 8
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