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  1. CHECKING IN ON THE VISA BULLETIN

    by , 04-20-2018 at 09:35 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association. Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

    This month’s Check In With Charlie featured predictions about EB2 and EB3, which are the most popular categories for readers of this Blog. Here are some of this month’s highlights:

    Categories in which final action dates will remain the same include-
    EB-1 China and India;
    EB-2 India;
    EB-3 China and Philippines;
    EB-4 El Salvador, Guatemala and Honduras, and
    EB-5 China.

    Categories with modest advancements-
    EB-2 China will move forward one month to September 1, 2014;
    EB-3 India will advance three months to May 1, 2008;
    EB-3 Other Workers China and India will advance one and three months respectively, to May 1, 2007 and May 1, 2008; and
    EB-4 Mexico will advance roughly five weeks to October 22, 2016.

    It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July. What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS. The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

    _____
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.
  2. Trump's "Extreme Vetting" and Surveillance of Immigrants for Political Views is Bringing America Even Closer to Dictatorship. Roger Algase

    Again, I will begin this comment with an explanation to a few of my highly respected and well meaning friends who have been asking me why so many of my observations about immigration are focused on Donald Trump. To be sure, Trump does not personally write every USCIS guidance memo, adjudicate every petition or decide every Immigration Court case.

    In my experience at least, many, if not the great majority of immigration officials (in my practice, chiefly USCIS petition adjudicators) are still doing their jobs fairly and objectively (i.e. issuing approval notices!), without any noticeable interference from the top.

    To be sure, America is not yet at the stage of countries such as Russia, North Korea, or Hungary (whose right wing government - much admired by some of Trump's white nationalist supporters - is destroying democracy even as it builds a wall against African and Middle Eastern immigrants and engages in a nationwide propaganda campaign against a well-known Jewish financier, George Soros).

    But, just as no serious observer could get very far in writing about any aspect of government in the above three countries without mentioning Vladimir Putin, Kim Jong Un, or Viktor Orban, it is becoming increasingly difficult to write about any aspect of administration or policy in America today without mentioning America's president.

    This certainly applies to immigration policy as much as, if not even more than any other issue, given the prominence that Trump has given to this area of governance both as a candidate and as the nation's chief executive - and the fact that immigration law is the province of the federal government in any administration.

    Moreover, many of the attempts to limit the rights of immigrants in Donald Trump's America constitute a clear and present danger to the most basic democratic rights of American citizens as well - including the right to free speech.

    In an April 20 piece in The Guardian, Carrie DeCell, a staff attorney at the Knight First Amendment Institute, writes about the highly dangerous and disturbing surveillance that the Trump administration is conducting over the social media, cell phone messages and other communications of visa applicants from around the world, and the denial of visas or entry to people who have or might have views which are opposed to Trump's views on various issues.

    https://www.theguardian.com/commenti...ip-immigration

    The above article lists a number of recent incidents where civil rights (or in one case a trans rights) activists, especially those with Muslim names (though coming from countries not on the Muslim country banned list) were denied visas or turned back upon entry for unexplained reasons.

    Harassment at points of entry to the US has not been limited to foreign citizens. DeCell writes:

    "American activists, too, have confronted increased government scrutiny at the border. Also this month, border agents interrogated the journalist and civil rights advocate Shaun King upon his return from a family trip to Cairo. Along with his exhausted wife and children, King fielded questions about his reasons for traveling to Egypt and his role in the Black Lives Matter movement. King reported that the officer who questioned him had 'clearly been reading my tweets and knew all about me.'"

    The same article also mentions instances of non-citizen activists in the US who have been detained or threatened with deportation for speaking out against Trump's immigration policies. It continues:

    "These recent
    incidents are part of a broader government scheme to wield immigration authority to since activists both within and beyond US borders. CBP and ICE agents conduct suspicionless searches of travelers' electronic devices - including their text messages, emails, social media posts and photographs - when they cross the US border. Under the rubric of 'extreme vetting', the administration now plans to require immigrant and non-immigrant visa applicants to surrender their social media handles, including pseudonyms and aliases, in connection with their applications."

    The article concludes:

    "These extreme vetting measures threaten to chill the expressive and associative activities of any individual who may seek to enter or remain in the United States...

    Just as the travel ban effectively excludes individuals from this country on the basis of their religion, extreme vetting explicitly excludes individuals from this country on the basis of their statements and beliefs."


    In effect, immigration and visa officials are becoming something similar to an American thought police. There is an expression for this, and it is not "legitimate national security". The correct word is "fascism".

    Roger Algase
    Attorney at Law
    algaselex@gmail.com


    Updated 04-20-2018 at 02:32 PM by ImmigrationLawBlogs

  3. ICE arrests 33 with history of human rights violation across the US during Operation No Safe Haven IV

    by , 04-19-2018 at 05:50 PM (Matthew Kolken on Deportation And Removal)

    For Immediate Release
    For media inquiries about ICE activities, operations, or policies, contact the ICE Office of Public Affairs at (202) 732-4242.

    ICE arrests 33 with history of human rights violation across the US during Operation No Safe Haven IV


    • Photos and b-roll available here


    WASHINGTON — U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations arrested 33 fugitives sought for their roles in known or suspected human rights violations during a nationwide operation this week.

    During the three-day operation that concluded Wednesday, the ICE National Fugitive Operations Program in coordination with the ICE Human Rights Violators and War Crimes Center and the ICE National Criminal Analysis and Targeting Center (NCATC), arrested these fugitives via the ICE field offices of Atlanta; Baltimore; Boston; Chicago; Denver; Detroit; Houston; Los Angeles; Miami; New Orleans; New York City; Philadelphia; Phoenix; Seattle; San Francisco; and St. Paul, Minnesota.

    The foreign nationals arrested during this operation all have outstanding removal orders and are subject to repatriation to their countries of origin. Of the 33 known or suspected human rights violators arrested during Operation No Safe Haven IV, eight individuals are also criminal aliens with convictions for crimes including, but not limited to battery, weapons offenses, driving while intoxicated, and resisting arrest. This operation surpassed the number of known or suspected human rights violators arrested during the first nationwide No Safe Haven operation, which took place in September 2014.

    “This operation continues ICE’s work to ensure that the United States does not serve as a safe haven for those who commit human rights violations in their countries of origin,” said Thomas D. Homan, Deputy Director of ICE. “We will continue to pursue these individuals as priorities for enforcement— using our agency’s unique authorities to investigate criminal activity and to enforce immigration laws.”

    Those arrested across the country included:


    • Four Chinese individuals—some of whom were hospital employees—who assisted in or directly conducted forced abortions and sterilizations upon victims in China;
    • A former intelligence officer who surveilled and arrested dozens of targets subsequently tortured in Central America;
    • A soldier in Central America who guided the military to a specific village for the purpose of killing its residents;
    • A ranking intelligence officer from the Middle East whose surveillance information led to the arrest, torture, and murder of those his unit targeted;
    • A group leader in East Africa who used violence to force victims into Female Genital Mutilation.


    ICE is committed to rooting out known or suspected human rights violators who seek a safe haven in the United States. ICE's Human Rights Violators and War Crimes Center investigates human rights violators who try to evade justice by seeking shelter in the United States, including those who are known or suspected to have participated in persecution, war crimes, genocide, torture, extrajudicial killings, and the use or recruitment of child soldiers. These individuals may use fraudulent identities or falsified records to enter the country and attempt to blend into communities in the United States.
    Members of the public who have information about foreign nationals suspected of engaging in human rights abuses or war crimes are urged to contact ICE by calling the toll-free ICE tip line at 1-866-347-2423 or internationally at 001-1802-872-6199. They can also email HRV.ICE@ice.dhs.gov or complete ICE’s online tip form.

    The HRVWCC was established in 2009 to further ICE’s efforts to identify, locate and prosecute human rights abusers in the United States, including those who are known or suspected to have participated in persecution, war crimes, genocide, torture, extrajudicial killings, female genital mutilation and the use or recruitment of child soldiers. The HRVWCC leverages the expertise of a select group of agents, lawyers, intelligence and research specialists, historians and analysts who direct the agency’s broader enforcement efforts against these offenders.

    Since 2003, ICE has arrested more than 395 individuals for human rights-related violations of the law under various criminal and/or immigration statutes. During that same period, ICE obtained deportation orders against and physically removed 835 known or suspected human rights violators from the United States. Additionally, ICE has facilitated the departure of an additional 112 such individuals from the United States.

    Currently, HSI has more than 130 active investigations into suspected human rights violators and is pursuing more than 1,750 leads and removals cases involving suspected human rights violators from 95 different countries. Since 2003, the HRVWCC has issued more than 74,000 lookouts for individuals from more than 110 countries and stopped over 234 human rights violators and war crimes suspects from entering the U.S.

    The NCATC provided critical investigative support for this operation, including criminal and intelligence analysis from a variety of sources. The NCATC provides comprehensive analytical support to aid the at-large enforcement efforts of all ICE components.

    ICE credits the success of this operation to the combined efforts of the U.S. National Central Bureau-Interpol Washington, and U.S. Citizenship and Immigration Services.

    Updated 04-19-2018 at 05:55 PM by MKolken

  4. ABA President Calls for Restructuring of Immigration Courts to Increase Independence

    by , 04-19-2018 at 09:07 AM (Matthew Kolken on Deportation And Removal)


    Via The ABA Journal:

    ABA President Hilarie Bass called for an overhaul of the immigration court system in testimony Wednesday afternoon before a Senate subcommittee.

    ‘”We believe fundamental change is needed,” Bass said in her testimony before the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration.

    Bass outlined the ABA proposal in a prepared statement submitted to the subcommittee. In the statement, Bass said immigration courts should be restructured as independent Article I courts, and immigrants should be given increased access to counsel and legal information. An ABA press release has a summary.


    Click here for more.
  5. How does ICE Calculate Fines in an I-9 Inspection

    By: Bruce Buchanan, Sebelist Buchanan Law


    As Immigration and Customs Enforcement (ICE) conducts more and more I-9 inspections (the ICE director stated they would be increasing by 400 to 500%), employers need to know how ICE calculates any fines assessed against employers. AILA’s I-9 Verification Committee, through Rick Gump and Eileen Momblanco, recently drafted a fine Practice Pointer, which I encourage AILA members to read. For non-AILA members, this article will discuss the same concepts.

    It begins for an employer when ICE serves a Notice of Inspection (NOI)/subpoena to review the employer’s I-9 forms as well as many other HR-related records. The NOI gives the employer three business days to provide the subpoenaed documents. The ability to receive an extension of time to provide the I-9 forms and other documents seems to vary with what ICE office you are dealing. I have been successful in receiving extensions in almost all NOIs, but I never ask for more than one week and usually only five days. After the ICE auditor reviews the I-9 forms, the employer will receive a series of notices – Notice of Suspect Documents and Notice of Technical and Procedural Failures are the most common notices.

    If substantive paperwork, hiring, or continuing to employ (H/CTE) violations are found, ICE normally issues a Notice of Intent to Fine (NIF), although if the errors are less than 10%, ICE usually only issues a Warning Notice without a penalty. The fine/penalty amount in the NIF is determined by ICE attorneys and special agents in charge. Fines can be challenged by requesting review by an Administrative Law Judge (ALJ) of the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If litigated, the ALJ can adjust the fine amount.

    In November 2008, ICE issued a Memorandum, “Revised Administrative Fine Policy Procedures”, which contained a set of matrixes and required ICE to follow specific procedures for calculating paperwork and H/CTE fines. The Policy Procedures state the following to determine the level of fine within each matrix:


    • Use the number of violations of each type (paperwork or H/CTE) as the numerator and the number of total employees as the denominator; and
    • The percentage calculated above would be used to determine the percentage box in the fine matrix to start, and then fines could be adjusted up or down five percent for each of the five factors - business size, good faith, seriousness, employment of unauthorized aliens, and prior history with ICE/INS.


    However, ALJs can consider any factors it deems necessary to calculate an appropriate fine based on the case at hand. Cases with both paperwork and H/CTE violations sometimes produce higher fines for a greater number of paperwork violations compared to fines for a fewer number of H/CTE violations.

    To increase the level of penalties, ICE has begun to create a higher level of fine on each matrix by adding the number of paperwork violations to the number of H/CTE violations as the numerator, which in some cases dramatically increases the level of the fine in each matrix. Here are two examples:


    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10 + 20 = 30 to calculate 30% violations for each matrix. This would lead to a fine of $60,270 using the 2017 matrixes.
    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10/100 = 10% for paperwork and 20/100 = 20% for H/CTE violations for each matrix. This would lead to a fine of $40,560 without any aggravating or mitigating factors applied.


    In other words, instead of taking the number of paperwork violations and dividing them by the
    number of employees, and then calculating the H/CTE violations the same way, ICE adds the
    number of paperwork violations to the number of H/CTE violations when calculating the
    violation percentage from each matrix. This is resulting in a higher fine based on the matrix
    percentage of violations for each of the paperwork and H/CTE violations.

    ICE has defended this calculation method by pointing to language in the 2008 fine policy procedures, “The recommended base fine amount is determined by dividing the number of ‘knowing hire,’ ‘continuing to employ,’ and substantive verification violations by the total number of Forms I-9 presented for inspection to determine a violation percentage.”

    However, as the Practice Pointer states:
    On the next two pages, ICE instructs agents to “divide the number of ‘knowing hire’ and ‘continuing to employ’ violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage” and to “divide the number of substantive violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage.” Each instruction is paired with a separate fine matrix and no other ICE issued documentation instructs agents or attorneys to add the violations together. ICE’s I-9 inspection webpage also makes no mention of the double-dipping method of fine calculation.

    In evaluating NIFs, attorneys for employers should ask these questions:
    1. Are the fines calculated within the confines of the statute as updated by DOJ?
    2. What baseline and method did ICE use to calculate the fine in the instant case?
    3. What factors were used to aggravate or reduce the level of the fine?
    4. Were the factors appropriately used?
    5. Did ICE apply the 5% enhancement for employment of unauthorized aliens to only those violations as opposed to across the board?
    6. Did the NIF miscalculate the fines by double-counting violations? And
    7. Did ICE make other errors in its calculations?

    After evaluating these issues and trying to negotiate a settlement, one must assess the propriety of settling with ICE versus challenging the fine with an OCAHO ALJ.

    If you want to know more information on I-9 penalties/fines, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
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