On January 27, 2017, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The text of the order is alarmingly broad and carries potential to impact many more people than those suspected of terrorism including foreign nationals present in the U.S. in lawful nonimmigrant statuses, lawful permanent residents, and citizens of dual nationalities.  Many lawsuits have ensued across the country seeking to halt the January 27 EO.

A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. The next decision issued by a federal court in Massachusetts additionally barred federal officials from detaining or removing individuals subject to the EO. At least two other courts have also issued rulings. In a case filed in Virginia, the court ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred officials from deporting covered individuals for the next seven days. In a case out of Washington State, a federal judge barred the federal government from deporting two unnamed individuals from the United States.

The Department of Homeland Security has released a statement indicating that the agency “will comply with judicial orders.” This statement was clarified further by Secretary Kelly, who released a press statement clarifying that the entry of lawful permanent residents to the United States continues to be in the national interest. Federal agencies charged with enforcement of the EO continue to develop their own internal guidance to balance compliance with the EO and existing laws, however new developments continue to ensue by the hour.

As noted, due to the broad language of the EO there is potential for adverse impact lawfully present nonimmigrants, lawful permanent residents, and citizens with dual nationality for those nationals of the seven countries specifically listed in the travel ban – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Additionally, there is at least some associated risk for foreign-born travelers of other nationalities seeking entry to the U.S. as there have been discussions within the administration of updating the restrictions list of countries. Moreover, admission procedures at U.S. ports of entry and visa processing procedures at U.S. Consular posts throughout the world are likely to be significantly altered. The public is reminded that both the U.S. Department of State and the U.S. Customs and Border Protection have a wide latitude of discretion with respect to admissions procedures and visa processing. As a result, cancellation of all non-essential international travel is encouraged at this time regardless of nationality. Those who have essential travel needs necessitating U.S. departure are encouraged to contact immigration legal counsel to discuss any risks associated with international travel at this time.

michelle-garcia-photoMichelle joins Mehlman Barnes LLP as a first-year associate. Michelle has a passion for immigration law as her family members are from Buenos Aires, Argentina and immigrated to the United States 30 years ago. Michelle is the first-generation U.S.-born citizen and the first to pursue a higher education in her family. Prior to joining Mehlman Barnes LLP, Michelle worked in an employment-based immigration firm where she handled numerous matters for employers including H-1, L-1, TN, O, EB1 and PERM cases.

Michelle was raised in Redondo Beach, California and relocated to San Diego in 2010 to attend San Diego State University where she obtained her Bachelor’s Degree in Political Science. Michelle received her Juris Doctorate degree from Thomas Jefferson School of Law in 2015, graduating with magna cum laude honors. While in law school, Michelle worked at numerous law firms assisting foreign nationals in obtaining various family-based and employment-based visas. She was also a member of the Thomas Jefferson Law Review where she wrote a note advocating for the right to counsel in immigration removal proceedings. Additionally, Michelle participated in the ABA Immigration Justice Project’s Removal Defense Clinic and  interned at the U.S. Immigration Court in San Diego. Michelle is currently an active member of the American Immigration Lawyers Association.

smwagnerSandra comes to the firm with over 20 years of experience practicing immigration law.  Sandra is a member of the California Bar and an active member of the American Immigration Lawyers Association (AILA) on both the national and local chapter levels. She currently serves on AILA’s national finance committee and the San Diego AILA chapter advocacy committee. She previously served on the AILA national religious worker committee, California Service Center committee and transparency committee. She served two terms as San Diego AILA Chapter chair. She also belongs to the American Bar Association, the San Diego County Bar Association and the St. Thomas More Society.

Sandra frequently speaks to attorneys, professional associations and civic organizations on immigration issues. She has published articles on immigration matters such as religious workers and their employers as well as immigration practice in the San Diego District Office of U.S. Citizenship and Immigration Services. Sandra is an adjunct professor with the University of San Diego School of Law, where she teaches immigration law and supervises the Immigration Clinic.  In addition, she has also served as a panelist for the University of San Diego Immigration Reform Panel.

Sandra obtained her law degree from the University of San Diego, where she was a volunteer translator for a National City legal clinic, chief justice of the honor court, and a member of the San Diego Law Review. She received her B.A. degree with highest honors in Spanish from St. Lawrence University. She spent her junior year abroad studying at the University of Madrid.

Sandra plays bass clarinet and sax with the San Diego Concert Band, Pomerado Concert Band, JELLS woodwind quintet, and San Diego Clarinet Society. She is a merit badge counselor for Boy Scout law-related merit badges. She also serves on the finance council for her church.

The Department of Labor’s OFLC statistics on the PERM employment certification program and H-1B temporary worker program as of 6/30/16, reveal the number of applications received, top occupations, work site states and industries.  Topping the charts in both programs, are computer and mathematical occupations with California as the most requested work site. See PERM Statistics FY 2016 Q3 and H-1B Statistics FY 2016 Q3

Today, U.S. Citizenship and Immigration Services (USCIS) announced receipt of over 236,000 H-1B cap subject petitions during the one week filing period, which began April 1st. Among the 236,000 petitions received included sufficient filings to exhaust both the general-cap of 65,000 as well as the additional 20,000 eligible for the advanced degree exemption.

USCIS further confirmed that it conducted a computer-generated random selection process, or lottery, on April 9th, selecting enough petitions to meet the annual quota for the fiscal year. The selection process for the advanced degree exemption was conducted first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.  As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

It is important to remember that it may take several weeks for USCIS to issue receipt notices confirming assignment of a cap number and/or to complete the rejections process for unselected petitions.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

The Visa Waiver Program has historically been a critical facilitator of visa-free tourism and business travel to the United States for nationals of 38 program countries, spanning most of western and eastern Europe as well as select Asian countries.  Nationals of program countries seeking to travel pursuant to the Visa Waiver Program simply need to submit an application through ESTA, an online application system administered by U.S. Customs and Border Protection (“CBP”), pay a nominal application fee, and receive what is typically instantaneous application approval.

While the Visa Waiver Program no doubt effectuates certain travel efficiencies and promotes the U.S. economy through tourism and legitimate business, it also carries inevitable national security risks. These inherent risks were realized on November 13, 2015, when a series of terrorist attacks in Paris, France, caused approximately 130 fatalities. By December 18, 2015, with a clear recollection of the recent attacks, Congress passed H.R. 2029, “The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.” The Act incorporated a series of anti-terror amendments to the Visa Waiver Program.  Among the new changes include enhanced passport requirements as well as new rules that preclude certain classes of individuals from program eligibility moving forward, despite their possession of program country nationality. A summary of the Visa Waiver Program changes is provided below as well as recommendations for travelers impacted by the new law.

Enhanced Passport Requirements

Existing law already delineated a machine-readable passport requirement, however this requirement is now enhanced to mandate that all passports be electronic and fraud resistant with retrievable biographic and biometric information. All program countries are required to certify that these new requirements are met by April 1, 2016. Program countries are further required to certify implementation of commensurate passport requirements for entry into their own respective countries by October 1, 2016.

Physical Presence Bar

Among those travelers who are now restricted from Visa Waiver Program travel are any individuals who have traveled to or been physically present in Iran, Iraq, Sudan, or Syria since March 1, 2011. In instances when a traveler’s presence in such countries was to perform military service in the armed forces of a program country, or to carry out official duties as a full-time employee of the government of a program country, an exception may apply. Official guidance as to how to establish exception eligibility has yet to be released by CBP but should be expected to require the traveler to demonstrate that such travel was mandated by official government orders. The physical presence bar may also be waived on a case by case basis if the Secretary of Homeland Security determines that a waiver is in the law enforcement or national security interests of the United States. Travelers are advised that official guidance pertaining to the waiver process has yet to be released but is expected within the coming months.

Dual Nationality Bar

Travelers who possess nationality of a Visa Waiver Program country, as well as nationality of Iran, Iraq, Sudan or Syria, are also restricted from program travel. Travelers are cautioned that there are currently zero exceptions to this rule.  The official orders exception delineated under the physical presence bar does not apply. CBP has indicated that it will continue to explore whether and how waivers might eventually apply for dual nationals, but to date no such waiver basis exists.

CBP has issued an FAQ to assist Visa Waiver Program travelers in assessing possible implications of the reform in their specific circumstances. It is important to note, while it is CBP’s intent to notify current program participants of ESTA revocations triggered by the new law it is possible that delivery of notifications may be subject to delay and/or fail entirely. Accordingly, travelers who are aware that the physical presence bar and/or dual nationality bar applies are cautioned to take steps necessary to apply for a B-1/B-2 visa at a U.S. Consulate or Embassy well in advance of any planned U.S. travel that would have otherwise been facilitated by the Visa Waiver Program. Additionally, travelers who believe that an exception and/or waiver may apply in their specific instances should nonetheless consider applying for a B-1/B-2 visa pending official guidance from the Department of Homeland Security (“DHS”) pertaining to the exceptions and waiver processes.

Mehlman Barnes LLP will continue to provide updates pertaining to the Visa Waiver Program anti-terror reform measures as additional guidance becomes available from DHS.



14 Jan 2016
January 14, 2016

Play to Win the Lottery this H-1B CAP Season!

shutterstock_236228218It’s that time of year again where employers, management, human resources and talent acquisition teams, as well as foreign born employees, all enter a heightened stage of anxiety with the anticipation of the impending H-1B CAP season, which officially opens April 1st. In recent years, the cause for anxiety has increased exponentially due to the dreaded lottery that has left many foreign born employees without lawful status. Accordingly, I’ve assembled the following blog to help employers increase their chances of holding a “winning” lottery ticket this H-1B CAP season.

By way of background, U.S. employers use the H-1B visa program to employ foreign workers in professional occupations that require theoretical or practical application of a body of highly specialized knowledge, in occupations including, but not limited to, scientists, engineers, computer programmers, etc. Thus, employers in the high-tech, biotech, internet, and related industries are often left dependent upon the H-1B visa program in order to secure immigration status and employment authorization for foreign born employees.

The H-1B visa is capped at 65,000 visas per year, less the free trade visas reserved for Chile and Singapore, which leaves only 58,200 new H-1B visas each fiscal year. Since 2005, there are an additional 20,000 H-1B visas reserved for individuals in possession of a U.S. earned Master’s or higher degree. These additional 20,000 visas are often referred to as the “Master’s CAP”. Once the Master’s CAP is reached, any remaining petitions filed for beneficiaries with a U.S. Master’s degree or higher will count against the regular CAP.

The actual mechanics of the H-1B CAP very closely resemble a race to your television set every Wednesday and Saturday night, only to wait for the lottery drawing that will determine the fate of your financial wealth – as you hold your breath during the drawing you can’t help but wonder “Do I hold the winning ticket?” Unfortunately, in the instance of the H-1B lottery the wait is much longer than your average nightly telecast that reveals the winning ticket. The filing window for the H-1B CAP, or your race to the television if-you-will, opens on April 1st each year. The USCIS accepts all petitions filed within the first 5 business days of the CAP opening, and if during that period the demand exceeds the supply of H-1B visas, the USCIS will employ a random lottery to determine which petitions happen to hold a “winning” ticket. Whether or not there is an H-1B lottery is wholly dependent upon the economy and how much employers are hiring. In recent years, the stakes have been especially high, however, with a lottery drawing being required. I expect that this year will be no different.

So what does this all mean for you? How can you increase your company’s chances of holding the winning ticket this H-1B CAP season? Well, here are the top five tips that HR and talent acquisition teams must know as we enter H-1B CAP season.

#1 – Analyze your Company’s Workforce in Early January to Determine H-1B Hiring Needs

You might be surprised to find out how many employers are simply unaware of their H-1B hiring needs until it is too late. This is often the result of there being too many people involved in the hiring process and the lack of communication between management, HR and talent acquisition teams. For example, all too often managers hire nonimmigrant student interns who hold F-1 status and hold temporary unrestricted employment authorization as a benefit to their program of study. Because management often dictates the hiring of interns, HR and talent acquisition are not always apprised of management’s developing plans to retain that student over a longer duration following completion of the program of study. Plenty of other comparable examples exist, such as L-2 or E-2 spouses using EAD’s. These individuals are eligible to apply for employment authorization incident to status, however, it is not always wise to leave these employees in said status because their ability to work for your company is dependent upon the spouse’s maintenance of status and even dependent upon the continuance of the marital relationship between the employee and the spouse!

As a result of these types of unnecessary risks, employers should plan ahead and conduct a full scale data analysis to ensure that any current nonimmigrant employees are at least considered for the H-1B visa. If HR remains unaware of the need for longer term retention of nonimmigrant employees, regardless of whether F-1 Student, L-2/E-2 or otherwise, the H-1B CAP can pass by within a week of its opening only to leave management and employees in a state of disbelief that there may not be any other options available. To avoid this fate, HR teams must play an active role in proactively communicating with management regarding the staffing structure of their teams. Data analyses regarding the existing nonimmigrant workforce should be gathered and discussions with management regarding future hiring needs throughout the coming year should also occur. Moreover, it is also a good idea to review your company’s Form’s I-9 as a cross-check mechanism to help ensure that all nonimmigrant employees at your organization have been accounted for and considered for the H-1B visa.

Tip: If you are concerned that your Forms I-9 might not be useful in the cross-check, this concern flags a separate immigration-related need to consider retaining legal counsel to audit your Forms I-9 to ensure compliance.

#2 – Initiate H-1B CAP Petitions with Immigration Legal Counsel by Early February

I cannot stress that time is of the essence here. With the demand for H-1B CAP-subject visas exceeding the supply in recent years, employers must initiate H-1B CAP petitions early with immigration legal counsel in order to ensure that the petition can be fully prepared and filed with USCIS when the CAP opens the first week of April.

A common misconception that employers have regarding the H-1B visa petitioning process is that it can be quickly thrown together and filed overnight. This could not be further from the truth. There is a lot of information and document collection that occurs between immigration legal counsel and the petitioning employer such as collection of wage information and resolution of any wage issues, fulfilling posting and notification requirements, finalizing terms of employment, assessing job descriptions and requirements, etc. Additionally, there are reporting requirements and attestations that must be submitted to the Department of Labor (DOL) and certified by DOL prior to the petition being filed with USCIS. And, it is not unheard of for the DOL’s attestation system, iCert, to have system outages causing delays close to the opening of the April 1st filing window. Accordingly, all of these steps may require a number of weeks to complete and given the high volume of CAP petitions, the earlier the H-1B CAP petitioning process is initiated with your immigration legal counsel the better situated your company will be with regards to holding a “winning” ticket.

Tip: Information and/or documents that employers should be prepared to provide to immigration legal counsel might include, but is not limited to: job description for the H-1B position; information regarding the wage offered; wage/salary survey data used to determine the wage; FEIN assignment documentation from IRS; job site information; information regarding any third party placement and available work; ITAR or export licensing requirements; nonimmigrant worker statistics to support analysis of H-1B dependency and potential filing fee exemptions.

#3 – Discuss Contingency or Back-Up Plans with Immigration Legal Counsel in the Unfortunate Event of CAP Exhaustion

The whole point of this blog is to help employers to prepare for the winning ticket – but as with any lottery there are no guarantees. Lottery numbers are selected at random, and so the diligent employer must be prepared for the disappointment that their petition(s) might not be selected in the lottery. Sometimes, but not always, there are back-up options available that employers may not be aware of absent immigration legal counsel to assist with the development of a case strategy. For example, in the instance of F-1 students, at times there are extension options available for post-program completion employment authorization. At other times, there may be wholly separate employment authorized nonimmigrant statuses as available options, depending upon the employee’s qualifications and the nature of the position offered.

The point to take away here is work with your immigration legal counsel to develop a contingency plan immediately after initiating the H-1B CAP case. In the unfortunate instance where there are no remaining visa options available outside of the H-1B, at least you will know. This type of news is better to know up front and to be communicated with management early, so that all stakeholders involved are aware of the risks. This will prepare the company to reassess staffing needs come mid to late April, in the event that an H-1B lottery is implemented and the petition is not selected.

#4 – Direct Nonimmigrant Employee Beneficiaries to Communicate with Legal Counsel Promptly to Provide Information, Supporting Documents, and Disclose International Travel Needs

Early petition initiations, contingency plans, etc. are only useful if the employee beneficiary is ready and willing to cooperate and support the petitioning process. The H-1B petitioning process requires not only information and data collection from the employer, but also a great deal of similar collections from the employee. And, the strategy used by immigration counsel with regards to the manner of filing can be impacted by an employee’s international travel plans in the coming months, if such plans exist. Therefore, the expectation must be set by HR up front that if the employer is going to assume the burden of petitioning as a sponsoring H-1B employer, the employee must cooperate fully and disclose information and/or documents promptly to immigration legal counsel.

Tip: Information and/or documents that H-1B beneficiaries should be prepared to provide to immigration legal counsel might include, but is not limited to: copies of all immigration status documents including Forms I-797A and C, visa stamps, Forms I-20, EAD’s, passport, etc.; copies of educational documents including diploma(s) and transcript(s); educational equivalency evaluations (if available); recent paystubs; and information regarding upcoming travel plans; information regarding dependent family members (if applicable).

#5 – Be Flexible and Available throughout the Month of March for Petition Review and Signatures

Flexibility and availability of HR throughout the month of March is critical to ensure timely H-1B CAP filings. All too often I have seen instances where an appointed HR contact is, to no fault of his or her own, unexpectedly called out of the office and there is no back-up point of contact prepared to jump in and take the reigns over the H-1B CAP program. Accordingly, it is critical that each year during H-1B CAP season that a specific point of contact in HR be appointed for H-1B CAP purposes, and that a backup point-person be established in the event of unanticipated absences. These individuals will fill the vital role of coordinating with legal counsel to provide pertinent information and documentation, and will coordinate with the employee beneficiary as needed in order to ensure that all requirements for a timely petition filing are met.

Tip: In the event that the individual(s) authorized to sign petitions on behalf of the company is different from the designated HR point of contact, it is also wise to arrange a back-up signer to ensure that there are no delays in the attainment of signatures. There is nothing worse than an H-1B petition ready for filing with USCIS but lack of signatures prevent timely filing.

Summarily, despite the anxiety that typically accompanies H-1B CAP season and the risk of a lottery, cautious steps as simple as those listed above can make the difference between holding a “winning” ticket and missing the CAP completely.

If you have questions or comments regarding this blog, you may contact Shannon Napier Barnes, Partner & Attorney at Law with Mehlman Barnes LLP at shannon@mehlmanbarnes.com.

11 Dec 2015
December 11, 2015

Highway to Hell? California’s Motor Voter Law

HellA proverbial highway to hell, this New Motor Voter Program poses significant risk of criminal prosecution that could result in fines and imprisonment, as well as risk of triggering moral character grounds of inadmissibility and removal from the United States.

There were reportedly approximately 23 million eligible voters in the State of California as of February 2015, with approximately 18 million actually registered. This equated to approximately 72.73% of the eligible voting population already being registered to vote as of October 10, 2015, the date that Governor Jerry Brown signed AB 1461 into law. AB 1461, known as the “New Motor Voter Program”, is an Assembly Bill that was designed to increase voter registrations by administering an automatic voter registration upon completion of a driver’s license application. This legislation lacks safeguards that are essential to protect lawfully present foreign nationals whom reside in and carry driver’s licenses issued by the State of California. Penalties that could arise as a result of inadvertent false claims to U.S. citizenship are quite severe. A proverbial highway to hell, this New Motor Voter Program poses significant risk of criminal prosecution that could result in fines and imprisonment, as well as risk of triggering moral character grounds of inadmissibility and removal from the United States.

The language of the AB 1461 legislation provides the California Secretary of State nearly unbridled discretion with respect to how it will go about implementing the program in conjunction with the Department of Motor Vehicles (DMV).

The language of the AB 1461 legislation provides the California Secretary of State nearly unbridled discretion with respect to how it will go about implementing the program in conjunction with the Department of Motor Vehicles (DMV). The legislation merely requires the DMV to electronically release data to the Secretary of State for each person who is issued an original or renewal of a driver’s license or state identification card or who submits a change of address request. The data released will constitute a completed affidavit of registration, unless: i) the individual affirmatively declines to become a registered voter; ii) the record indicates that the individual declared he or she does not meet all voter registration requirements; or iii) the Secretary of State deems the individual otherwise ineligible to vote.

It is critical to understand that the legislation specifically precludes applicants from the AB 60 license program, also known as California’s undocumented licensing program, from inclusion in this New Motor Voter Program. Henceforth, by law there appears to be little risk that undocumented driver’s license applicants would be registered to vote. Irrespective of that issue, however, the problems posed by the legislation for the lawfully present foreign national community in California are significant.

There is a risk that erroneous registrations might occur as a natural consequence of the New Motor Voter Program. This is recognized by the legislation, which expressly provides that if a person who is ineligible to vote becomes registered to vote under the program to no fault of his or her own (i.e., not as a result of fraud or willful misrepresentation), that person’s registration shall be presumed to have been effectuated with official authorization of the government and not at the fault of the individual. The legislation also provides that if a person who is ineligible to vote becomes registered to vote as a result of the program to no fault of his or her own, and subsequently votes or attempts to vote in an election held after the effective date of the registration, that person shall also be presumed to have voted with official authorization and will not be accused of fraudulently voting or attempting to vote unless there is a finding of fraud or willful misrepresentation.

The legislation does not and cannot protect a lawfully present foreign national from criminal prosecution that might arise under federal law or the immigration-related consequences that may ensue as a result of erroneous voter registrations effectuated by AB 1461.

The gaping problem with this New Motor Voter Program for our lawfully present foreign national population is that these provisions, albeit well-intended, only protect from prosecution and criminal penalties that may arise under state law. The legislation does not and cannot protect a lawfully present foreign national from criminal prosecution that might arise under federal law or the immigration-related consequences that may ensue as a result of erroneous voter registrations effectuated by AB 1461. Erroneous voter registrations could conceivably occur in one of two ways: i) transposition during the electronic exchange of data between the DMV and the Secretary of State resulting in a contrary declaration record than that actually provided by the driver’s license applicant; or ii) inadvertent or accidental declarations of voter eligibility specifically made by the driver’s license applicant. Depending on which of the two scenarios occurs, some extremely severe criminal charges and/or immigration related consequences could ensue.

In the case of the former scenario, admittedly the risk of criminal prosecution and/or immigration-related consequences is probably relatively low. This is because each federal basis for prosecution and/or loss of benefits has some sort of element of intent attached to it. As a result, one would hope that the State of California’s acknowledgement of its own transposition error in the electronic exchange of data would prevent prosecution and/or immigration-related penalties that arise to no fault of the driver’s license applicant.

The greater concern, however, is the latter situation where a lawfully present foreign national appears at the DMV to complete a driver’s license application and inadvertently makes an incorrect voter eligibility declaration. The likelihood of this happening will depend greatly on the manner in which the DMV implements this voter registration procedure within the driver’s license application process. For instance, will the application set the voter registration information unambiguously apart from the remainder of the application? Will different font sizes, text colors, etc. be utilized within the application procedure to warn applicants to beware of the consequences of the data they are providing? The answers to these questions are unknown at this time, but regardless it is not difficult to believe that circumstances might arise when an applicant might provide an inadvertent declaration of voter eligibility on a form, no matter how pronounced the warnings are.

AB 1461 generally provides that the Secretary of State shall not release the information it acquires from the DMV. However, at least one potential scenario exists pursuant to pursuant California Elections Code § 2194, which could facilitate the release of information to the Department of Homeland Security (DHS).  This provision allows, among other scenarios, voter registration information to be released “…for governmental purposes, as determined by the Secretary of State.” Arguably, under this provision the DHS would be able to request and secure voter registration data as a means to identify instances of false claims to U.S. citizenship.

The foregoing provision could easily facilitate a means for DHS to request information regarding voter eligibility declarations from the Secretary of State. The penalties that could potentially ensue as a result under federal law are numerous and arise from several different sections of the U.S. Code. For starters, the U.S. Code provides that a person who falsely and willfully represents himself to be a citizen shall be fined or imprisoned. See 18 U.S.C. § 911. Furthermore, another provision collectively provides that knowingly making a false statement or claim of U.S. citizenship with the intent to vote is a crime. See 18 U.S.C. § 1015 (e) to (f). Prosecution under either of these sections is punishable by a fine and 3 to 5 years of imprisonment, depending on the provision under which the individual is charged. Separate from risks of criminal prosecution as a result of disclosures to the DHS are the immigration-related penalties that could ensue. Other sections of the U.S. Code provide that any person who falsely represents him or herself as a U.S. citizen for any purpose or benefit arising under the Immigration and Nationality Act (INA) or any other federal or state law, is both inadmissible (See 8 U.S.C. § 1182(a)(6)(C)(ii)) and removable (See 8 U.S.C. § 1227).

While liability under each of the foregoing provisions would require some sort of willful act on part of the driver’s license applicant, such willful act could easily be demonstrated by the mere fact that the individual made the declaration in the first place, albeit inadvertently. The retributive theory of justice that the punishment should fit the crime seems appropriate here. It is hardly just for a lawfully present foreign national to be subjected to such a highway to hell, where he can be subject to significant fines, criminal prosecution, loss of civil liberties by removal and loss of other prospective immigration benefits such as lawful permanent residency and citizenship, because of an inadvertent declaration made on a form.

The ugly truth is that the AB 1461 places the burden on lawfully present foreign nationals to “opt out” of committing a crime under federal law.

The ugly truth is that the AB 1461 places the burden on lawfully present foreign nationals to “opt out” of committing a crime under federal law. Since the AB 1461 has already been signed into law, minimally, the Secretary of State must exercise due diligence to implement the program in a way that is fair and just for all persons residing the State of California regardless of citizenship status. An extraneous showing of U.S. citizenship in order to complete the motor voter registration, separate from the mere electronic exchange of declarations between the DMV and the Secretary of State, seems appropriate given the severe consequences at stake.

18 Nov 2015
November 18, 2015

The Future of STEM OPT

semiconductorsOn August 12, 2015, the United States District Court in the District of Columbia ordered vacatur of the Department of Homeland Security’s (DHS) April 2008 regulation, which established the Optional Practical Training (OPT) STEM extension program for F-1 students (see Washington Alliance of Tech. Workers v. U.S. Department of Homeland Security, No. 1:14-cv-00529, ____WL____ (D.D.C. Aug. 12, 2015)). The court’s decision to vacate the regulation was the result of procedural deficiencies, namely, the agency’s failure to introduce the regulation for public notice and comment as required under federal law pursuant to the Administrative Procedures Act (APA) at 5 U.S.C. § 553.

Despite the court’s decision to vacate the regulation, the court recognized that immediate vacatur would not only devastate the high technology industry but also significantly detriment the lives of tens of thousands of foreign students currently pursuing studies and/or practical training in the U.S. Accordingly, the court decided to stay the vacatur until February 12, 2016 to allow the DHS sufficient time to introduce a new regulation for notice and comment in accordance with the requirements of the APA. The DHS introduced the new proposed regulation on October 19, 2015 as published in the Federal Register at 80 Fed. Reg. 63376 (Oct. 19, 2015).

The proposed regulation incorporates many of the requirements from the legacy regulation. The requirements retained from the original regulation include the requirement that STEM employers be enrolled in and utilizing E-Verify in conjunction with the I-9 employment verification process for all new hires. Additionally, the proposed regulation retains the requirement that STEM OPT students periodically report changes in name, address, employment information, etc. The proposed regulation also maintains the requirement that employers report changes in the student’s training (i.e., employment) activities. Finally, the proposed regulation also retains the CAP GAP provision, which facilitates the temporary extension of an F-1 student’s duration of status and any current employment authorization through October 1st of the fiscal year, provided the student is the beneficiary of a timely filed H-1B change of status petition.

Despite the retention of legacy program requirements, the proposed regulation also introduces a number of changes of which U.S. higher education institutions, STEM employers, and foreign students should all be aware. A summary of the major provisional changes is provided below.

Changes to the List of Acceptable STEM Fields. Under the current STEM program, the DHS has updated the acceptable STEM fields via the Student and Exchange Visitor Program (SEVP) web-site, without any formal public notice. The proposed regulation would require the DHS to more clearly define which fields of study may serve as the basis for a STEM OPT extension and to comply with a public notification process via the Federal Register when seeking to update the list of eligible STEM fields.

Lengthened STEM Extension Period. The proposed regulation anticipates extending the OPT extension period from 17 months to 24 months. When combined with the 12 months of initial post-completion OPT, foreign students would be eligible for up to 36 months of practical training. DHS believes that the proposed increase in length of the STEM program would better complement STEM programs of study by providing the student with complete iterations of the research, development, testing and other associated activities that typically align with the STEM fields. This proposed extension would not only benefit students, but would also benefit STEM employers who would be able to assign the trainees to more meaningful projects for contribution throughout the project lifecycle.

Subsequent STEM Degrees. The proposed regulation would allow students who previously completed a STEM OPT extension and whom later earn another qualifying STEM degree at a higher degree level to be eligible for one additional 24 month extension period. The subsequent degree program would not, however, allow for the two 24 month STEM extensions to be sought consecutively. The student would be required to first return to a qualifying academic program of study to pursue the subsequent STEM degree.

Previously Obtained STEM Degrees. Historically, the STEM program has mandated that the current program of study serve as the basis for the STEM OPT extension, regardless of whether the student was previously granted a qualifying STEM degree. The proposed regulation would implement a significant change by allowing a student currently participating in post-completion OPT to use a prior eligible STEM degree from a U.S. institution of higher education as the basis for a STEM OPT extension. Under this provision, the employment opportunity must be directly related to the previously obtained STEM degree. By way of example, this provision would essentially allow an individual currently attending an accredited university in pursuit of an MBA to use a prior STEM degree (e.g., Electrical Engineering) from the same or a different qualifying institution as the basis for a 24 month STEM extension of the post-completion OPT that is currently authorized for the MBA program.

Mentoring and Training Plan. The proposed regulation would require employers, in conjunction with the student, to establish a formal mentoring and training program for the STEM OPT training period. The mentor would need to be an experienced employee or group of employees with the STEM employer who would assume the responsibility of teaching and training the student. The Mentoring and Training plan would be submitted to the student’s DSO prior to the degree granting university’s recommendation of a STEM OPT extension in SEVIS. Additionally, students would need to evaluate their STEM OPT training every six months and provide the evaluation to the DSO. The regulation grants USCIS authority to request evidence of the Mentoring and Training Plan at the time that subsequent benefits are sought from the agency.

Protections for U.S. Workers. There has been an increasing level of public concern with respect to the high technology industry and whether STEM OPT employment detriments the U.S. labor market. DHS reports that there is a direct benefit correlated with the economy and the STEM OPT program, however is sympathetic to the raised concerns. As a result, the proposed regulation implements protections for U.S. workers and would require the terms and conditions of STEM practical training (including duties, hours, and pay) to be commensurate with the terms offered to similarly situated U.S. workers. Moreover, STEM employers would be required to make attestations pertaining to 1) compliance with the required Mentoring and Training Plan; 2) that U.S. workers would not be displaced by the student’s STEM OPT employment; and 3) that the training opportunity assists the student in reaching training objectives consistent with the qualifying STEM degree program.

School Accreditation. Under the current STEM program, school accreditation of the STEM degree granting institution is not a requirement. The absence of an accreditation requirement is consistent with current SEVP procedures that encompass an “in lieu of accreditation” policy. DHS explains in the preamble to the proposed regulation that less than one percent of STEM OPT extension requests have been from students who have graduated from a non-accredited school over the past 5 years. Nonetheless, the proposed regulation will require school accreditation by an accrediting agency recognized by the U.S. Department of Education. The DHS believes that this requirement will ensure the overall quality of the qualifying STEM educational programs.

Employer Site Visits. The proposed regulation clarifies that Immigration and Customs Enforcement (ICE), at its discretion, may conduct on-site reviews to ensure that employers are fulfilling program requirements, including requirements to comply with the attestations and the required Mentoring and Training Plan. DHS believes the on-site review procedure will assist in the detection and prevention of fraudulent use of F-1 student status during the STEM extension period.

Compliance Requirements. As a general matter, the proposed regulation encompasses the reporting and compliance requirements originating from the legacy regulation. However, the proposed regulation does increase the total allowed unemployment period from 120 days in aggregate under the current program (i.e., 90 days of unemployment during post-completion OPT and up to an additional 30 days during a STEM extension period) to 150 days in aggregate (i.e., 90 days of unemployment during post-completion OPT and up to an additional 60 days during the 24 month STEM extension).

The DHS’ proposed regulation as introduced in the Federal Register on October 19, 2015 officially closes the required notice and comment period today. Despite the timely introduction of a proposed regulation, the future of STEM is still questionable at best. The DHS must actually promulgate a regulation prior to February 13, 2016, in order to protect the STEM OPT program from the vacatur ordered by the court in Washington Alliance. Moreover, the plaintiff in Washington Alliance has filed an appeal and the final disposition of that case could potentially implicate the legality of even the proposed STEM extension regulation.

Mehlman Barnes LLP will continue to monitor the progress of the proposed DHS regulation as well as the Washington Alliance litigation to provide updates as they become available.

HopscotchIt has been an incredibly frustrating month for employment-immigration. Between the Department of State and the USCIS, employers and foreign national employees have been prodded three steps forward only to find themselves pushed three steps back. Today, for all practical purposes, determining when an individual is eligible to adjustment status returns to square one.

The new Visa Bulletin procedures were announced on September 9th, creating a short lived excitement that at least some of the pitfalls of immigrant visa delays would be resolved by allowing for early filing of adjustment of status applications prior to visa availability. As discussed in our prior blog, this would have meant ancillary benefits for those waiting visa availability. Sometimes this wait is upwards of 10 years or more.

By September 25th, the Visa Bulletin was retracted and a revised Visa Bulletin was issued. The revised Visa Bulletin significantly pushed back the eligible filing dates for October 2015. EB India, China and Philippines were all impacted. EB-2 China was moved back by 1 year and 4 months, EB-2 India moved back 2 years, and EB-3 Philippines moved back 5 years. On October 9th, the Department of State issued the November Visa Bulletin, which showed no movement from the revised October Visa Bulletin with respect to eligible filing dates for employment-based adjustment of status purposes.

Today, USCIS announced that irrespective of the Department of State’s new Visa Bulletin procedures, the application final action dates chart on the Visa Bulletin must be used to determine when to file an adjustment of status application with USCIS. The only exception is if USCIS otherwise indicates on its own web-site that visas are available.

We will have to wait to see the actual ramifications of this announcement. However, at face value it seems that we have returned to square one with regards to determining immigrant visa availability. Even more frustrating is that now instead of having to check one place to determine eligibility, one now has to cross check multiple government sources ranging from the Department of State to USCIS only as a means to return to the flawed legacy system.