On June 23, 2016, the U.S. Supreme Court issued a 4-4 decision in United States v. Texas, the case challenging expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The effect of the tie decision is that the ruling of the lower court upholding the preliminary injunction halting the implementation halting DACA and DAPA stands – thereby stopping these initiatives in their tracks. While this is certainly a disappointing result for those families that would have benefited from these initiatives, the original 2012 DACA program remains intact and in effect and, furthermore, immigration advocates continue to seek permanent and comprehensive immigration reform.
On November 5, 2015, the Department of State implemented a change allowing consular officers abroad to prudentially revoke nonimmigrant visas for visa holders who have been convicted or arrested on a charge of driving under the influence. This change constitutes one more step in a government-wide trend to treat foreign national DUI convictions more seriously. We would encourage those who have been arrested on a DUI charge since November 2015 to contact our office as soon as possible to discuss the possible visa or travel consequences.
For the first time since 2012, EB-1 China and India are subject to the backlog, with priority dates of 01Jan10 for both. The EB-2 category is also backlogged for all countries, with a priority date of 01Feb14 for all chargeability areas except China and India (01Jan10 and 15Nov04, respectively). EB-3, per usual, is backlogged across countries. The Department of State does anticipate that EB-1 and EB-2, all other categories will be current again in October when the new fiscal year starts. August 2016 VB
The lawsuit filed against USCIS demanding more transparency in the cap-subject lottery process is ongoing. As of July 7th, the law firm that filed the complaint has sought summary judgment arguing that the lottery is not authorized under current regulations. We are monitoring this case and will provide updates as they become available.
On June 30th, the Department of Homeland Security along with the Department of Labor and the Department of Justice announced their plans to increase fines imposed on employers who knowingly hire an unauthorized worker. The increased fines will apply to civil penalties assessed after August 1, 2016 for violations that occurred after November 2, 2015 in accordance with the Federal Civil Penalties Inflation Adjustment of 2015. The fines cover violations related to the H-1B, H-2A, and H-2B programs, the unlawful employment of immigrant workers, violations related to I-9 forms, and immigration-related discriminatory employment practices. In some areas the increase is significant, almost doubling. The minimum penalty of $375 imposed on first time offenders will increase to $539, while the maximum penalty will increase from $3,200 to $4,313. In cases where an employer faces multiple charges, the new maximum penalty will increase from $16,000 to $21,563. Fees are also imposed for any unfair immigration-related employment practices, which will increase from $3,200 to $3,563. The Immigration Reform and Control Act of 1986 (IRCA) requires all employers to verify employment eligibility by having all employees complete Form I-9. Current fines are available here.
Due to the increased wait times to make a visa appointment at many U.S. Consulates abroad, we are recommending employees make plans for the appointment about 90 days in advance. We are seeing unprecedented delays in many countries, including India, Australia, and Spain. Although summer is always a busy time for U.S. Consulates, we are seeing a particular increase this year due to new restrictions on the visa waiver program. We recommend that employees contact us about their travel plans as soon as possible to assist in preparing for the appointment and discussing third country options if necessary (though please note many U.S. Consulates impose restrictions on third country nationals applying for or renewing visas outside of their country of citizenship.) Please visit the State Department’s website for current wait times for a specific U.S. Consulate.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **