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  1. Employers Beware! New USCIS Memos Could Upend Legal Immigration

    In June and July 2018, the publication of 2 important USCIS memos puts US employers at risk. Never during my 40+ years of practicing immigration law have I seen such drastic changes to our immigration system promulgated by an administrative agency.


    Employers need to be aware of the content of these USCIS memos, how they could be impacted and how best to remain in compliance.

    USCIS Memo re: RFEs and NOIDs (7-13-18)

    On July 13, the USCIS published a memo regarding Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).


    When an employer sponsors a person for a temporary working visa or a green card, if USCIS needs more evidence in order to decide whether to approve or deny the benefit, they usually send an RFE to the employer.

    Typical RFEs either request additional information about the employer (Ability to pay prevailing wage, need for the employee’s services, etc.) or the employee (Justification for requiring a certain level of education or experience, etc.). In 2017, the number of RFEs for H-1B petitions increased 44% over the previous year.

    The employer is given time to respond to the RFE. After the response, the USCIS examines the original petition/application and the employer’s response to the RFE before deciding the matter. In some cases, the USCIS issues a NOID and grants the employer a chance to respond.

    The July 13th memo does away with many RFEs and NOIDs. It grants USCIS examiners, in many cases, with the power to simply deny requests for immigration benefits when they determine that the evidence is “insufficient” to grant an application.

    But if an application or petition for a temporary visa or green card is denied by the USCIS, couldn’t the employer simply refile for the benefit using premium processing?

    Even this may no longer be an option in many cases.

    USCIS Memo re: NTAs Where Person has No Status (6-28-18)

    What complicates this is an USCIS memo issued on June 28 stating that if a denial renders the person “out of status”, the USCIS will issue a Notice to Appear (NTA) which will place him in deportation proceedings before an Immigration Judge.

    This worst case scenario is to be avoided at all costs. The employer would be forced to terminate the employee who was being sponsored for a temporary working visa or a green card.

    What can Employers do to Avoid the Penalties Imposed by the New USCIS Memos?

    Below are a number of strategies to help you in sponsoring employees for temporary visas and green cards:

    1. If you are sponsoring an employee for a green card, make sure to keep renewing his temporary work status until his green card application is approved. This way, even if a problem arises with the green card application, the fact that he is in a temporary working status will prevent the USCIS from initiating deportation proceedings.

    2. Apply for extensions of H-1B, L-1, O-1 and other types of temporary working status 180 days before the status expires, and consider using premium processing. This way, should there be a problem in extending the temporary status, the employee will still be in proper status, and you can reapply for an extension.

    3. Temporary status is employer-specific. If Employer B is petitioning for H-1B status for an employee who is currently working for Employer A, it is a wise idea to use premium processing and not to have the employee change employers until after the petition and the application for a change of employers is approved.

    4. Always overdocument a petition or application. Clearly document that you have complied with the prevailing wage and posting requirements, that you have the ability to pay the employee and the reasons a particular university degree and level of experience are required for the job. In general, it is not a good idea to include the ability to speak a foreign language in the job requirements.

    5. Make sure that you choose an immigration law firm to represent your company whose lawyers have many years of experience working for employers and who have successfully obtained thousands of approvals of temporary work visas and EB green cards.

    6. Take a look at the following online resources:




    7. If you are an employer, feel free to call one of our employment-based attorneys, Cheryl Gertler or Que Hirschi for advice on how to avoid the penalties contained in the new USCIS memos.






    Updated 07-16-2018 at 01:22 PM by CShusterman

    Tags: employer, l-2 Add / Edit Tags
  2. Difference Between ICE Raid and ICE Audit

    By: Bruce Buchanan, Sebelist Buchanan Law



    In 2018, Immigration and Customs Enforcement (ICE) raids have returned to workplaces after being dormant for the past 10 years. ICE audits/inspections have been regularly taking place for the past 10 years though they are increasing at an accelerated rate in 2017-2018 under the Trump Administration. So, what’s the difference between an ICE raid (also called a targeted enforcement operation) and an ICE audit/inspection:

    An ICE raid is like it sounds – ICE, or actually a part of ICE called Homeland Security Investigations (HSI), shows up at the employer’s premises without warning – hoping to catch employers and employees off guard. Raids often occur after an ongoing investigation shows a number of undocumented workers are employed there, often with the knowledge and/or assistance of the employer. HSI may receive tips of this unlawful activity by the employer.

    When ICE arrives at the employer’s premises, its agents surround the building and usually have aerial presence. Then ICE agents enter the business with a criminal search warrant. The search warrant will have a detailed description of what and where agents are going to search and what they may seize. This list may include: payroll; I-9 forms and any supporting documents; bank records; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; and other financial or employee records. The employer should immediately contact its immigration legal counsel.

    Employers are not required to answer ICE questions during a worksite raid. If, during a worksite raid, ICE discovers unauthorized workers at the site, they may arrest and detain them. At the end of a raid, ICE agents should leave an inventory of the property they seized and a list of employees arrested.

    A recent example of an ICE raid and how it occurred is the April 2018 raid at Southeastern Provision, a meat-processing plant in Bean Station, Tennessee. The investigation began when the employer’s bank inquired of company officials why it was making very large cash withdrawals every week. The employer official said it was for payroll and its workforce was Hispanic. After the bank provided this information, the IRS subpoenaed the company’s bank records, which confirmed these large cash withdrawals. Later, a confidential informant was sent to Southeastern Provisions and hired without filling out an I-9 form. Based upon this evidence and other evidence gathered in the investigation, HSI and the IRS raided the employer’s facility and detained about 100 employees.

    In ICE audit is friendlier but can lead to damaging results. In this situation, HSI serves a Notice of Inspection (NOI)/subpoena on the employer, requesting all I-9 forms with supporting documentation as well as many other documents. Normally, the visit to the employer’s premises is unannounced, like an ICE raid. But there the similarities cease. Usually two agents will serve the NOI/subpoena on the employer and demand production of records within three business days or a little longer, such as within seven business days. HIS agent will ask if the employer wishes to waive the three days. Under no circumstances should an employer waive the three days. Upon receiving an NOI, the employer should contact its immigration legal counsel or hire one if the employer does not have one.

    Other records that will normally be subpoenaed include: copy of payroll, list of current employees, list of former employees for past one to three years; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; business licenses; and list of companies who were contracted work.

    The ICE agents have the right to receive and inspect the originals of the I-9 forms. The employer should copy all documents turned over to ICE. Once the employer provides the documents, an ICE auditor inspects the I-9 forms to determine whether they comply with the law. The ICE auditor is checking for substantive violations, such as incomplete or missing forms, and technical violations, which an employer will be given 10 days to remedy.

    It is clear that employer raids and ICE audits will be frequent tools of ICE. Every employer should be vigilant in their immigration compliance. I would advise employers to meet with their immigration counsel, or obtain immigration counsel, to conduct an internal I-9 audit and draft or review an immigration compliance policy.

    If you want to know more information on employer immigration compliance, 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.
  3. ICE Arrests 37 People in New Jersey Immigration Enforcement Surge

    by , 07-16-2018 at 09:33 AM (Matthew Kolken on Deportation And Removal)
    NEWARK, N.J. — U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) Newark Field Office arrested 37 individuals during a five-day operation that concluded Friday, as part of the agency’s ongoing public safety efforts. The operation targeted criminal aliens who were previously incarcerated at the Middlesex County Jail (MCJ), and who were subsequently released to the community by MCJ, without honoring the ICE detainer or advising ICE of their release. The operation also targeted other criminal aliens residing in Middlesex County.

    Of those arrested, 16 subjects had been previously released by MCJ without honoring the ICE detainer and 78% had prior criminal convictions or pending criminal charges.
    “ERO New Jersey will continue to enforce ICE’s commitment to public safety,” said Ruben Perez, acting Field Office Director of ERO in Newark. “Middlesex county, which aspires to be a ‘sanctuary county’ by protecting criminal aliens, in the process assists criminals in undermining federal law, and creates a dangerous environment in the community. It also overburdens local law enforcement. ICE will continue to execute its mission in such communities.”
    The individuals arrested as part of the operation were nationals of Brazil, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Ivory Coast, Mexico, Nigeria, Peru, and Turkey.

    These individuals range from 21 to 68 years old and all were previously arrested or convicted of a variety of offenses. Some of the arrests and convictions included: aggravated criminal sexual contact, aggravated assault, DUI, hindering apprehension, endangering the welfare of a child, battery, theft, burglary, possession of a weapon, forgery, domestic violence assault, disorderly conduct, and illegal entry.

    The 16 subjects that were released by MCJ and arrested during this operation include:

    A 68-year-old citizen of Mexico was arrested by the Perth Amboy Police Department on January 23, 2009, in Middlesex County for the crimes of murder–purposely and hinder prosecution-false info and was booked into the Middlesex County Jail. On June 14, 2011, he was convicted of aggravated manslaughter and hinder own prosecution-false info and was sentenced to 25 years imprisonment in state prison. On May 5, 2015, the subject was transferred from state prison back to the custody of the Middlesex County Jail as he appealed his convictions. On May 5, 2015, ICE issued a detainer to Middlesex County Jail. On May 22, 2018, the original charge was overturned and he was found guilty of a single felony charge of hindering-oneself-give false information and sentenced to time served. Even though an ICE detainer was previously issued he was released.

    A 21-year-old citizen of Turkey was arrested by the South Brunswick Police Department on May 10, 2017, in Middlesex County for burglary entering structure and theft by unlawful taking, and was booked into Middlesex County Jail. On May 10, 2017, ICE issued a detainer, but the detainer was not honored and he was released. On July 15, 2017, he was arrested for resisting arrest, obstructing the administration of law, and possession of marijuana. On October 12, 2017, he was arrested by ICE officers in Monmouth Junction, New Jersey and was subsequently released on bond by the Immigration Judge. On April 12, 2018, he was arrested for a third time for simple assault, harassment, and possession of a weapon for unlawful purpose, and was booked into the Middlesex County Jail. On April 13, 2018, ICE issued a detainer, but the detainer was not honored again and he was released.

    A 32-year-old citizen of Mexico was arrested by the New Brunswick Police Department on August 12, 2016, in Middlesex County for Aggravated Sexual Assault- Helpless Victim, Aggravated Criminal Sexual Contact, Sexual Assault-Force/Coercion, and Criminal Sexual Contact and booked into the Middlesex County Jail. On August 16, 2016, ICE issued a detainer. On May 18, 2018, he was convicted of Aggravated Criminal Sexual Contact and sentenced to 644 days’ time served, parole supervision for life and registration under Megan’s Law. On May 21, 2018, Middlesex County Jail refused to honor the detainer and he was released.

    A 26-year-old citizen of Mexico was arrested by the North Brunswick Police Department on February 17, 2017, in Middlesex County for driving while his license was suspended and on his court date of May 23, 2017, he was found guilty and sentenced to ten (10) days of incarceration at the Middlesex County Jail. On May 31, 2017, ICE issued a detainer, but the detainer was not honored and he was released. He also had a prior conviction for DUI.

    A 46-year-old citizen of Mexico was arrested by the Carteret Police Department on December 15, 2017, in Middlesex County for domestic violence/simple assault and booked into the Middlesex County Jail. On December 25, 2017, ICE issued a detainer, but the detainer was not honored by Middlesex County Jail and he was released. On June 28, 2018, he was convicted of Domestic Violence Assault.

    A 34-year-old citizen of Mexico was arrested by the Edison Police Department on May 29, 2018, in Middlesex County for aggravated assault and possession of a weapon and booked into the Middlesex County Jail. On May 30, 2018, ICE issued a detainer, but the detainer was not honored and he was released.

    A 42-year-old citizen of Honduras was convicted of illegal entry on November 10, 2009, and removed. On June 12, 2017, she was arrested by the Woodbridge Police Department, in Middlesex County for shoplifting, and released. On March 11, 2018, she was again arrested for shoplifting, and released. On April 21, 2018, she was arrested for a third time for shoplifting, and booked into Middlesex County Jail. On April 21, 2018, ICE issued a detainer, but the detainer was not honored and she was released.

    A 21-year-old citizen of Guatemala was arrested by the Green Brook Police Department on June 20, 2018, in Somerset County for driving under the influence of alcohol and by the Middlesex Police Department (later that same day) in Middlesex County, for burglary-entering structure, theft by unlawful taking, receiving stolen property and hindering oneself/ false information and was booked into Middlesex County Jail. On June 21, 2018, ICE issued a detainer, but the detainer was not honored by Middlesex County Jail and he was released.

    A 21-year-old citizen of Honduras was arrested by the New Brunswick Police Department on May 29, 2018, in Middlesex County for aggravated assault, possession of a weapon for unlawful purpose, unlawful possession of a weapon, and booked into the Middlesex County Jail. On May 29, 2018, ICE issued a detainer, but he was released.

    A 37-year-old citizen of Mexico was arrested by the New Brunswick Police Department on November 25, 2017, in Middlesex County for driving without a license, and booked into the Middlesex County Correctional Facility in North Brunswick, NJ. On November 25, 2017, an ICE detainer was issued but he was released.

    A 25-year-old citizen of the Dominican Republic was arrested by the Perth Amboy Police Department on May 25, 2018, in Middlesex County for harassment, hindering, and obstruction, and was booked into Middlesex County Jail. On May 29, 2018, ICE issued a detainer, but the detainer was not honored and he was released. He also has prior arrests for domestic violence and forgery.

    A 27-year-old citizen of the Dominican Republic was arrested by the Perth Amboy Police Department on January 25, 2018, in Middlesex County for aggravated assault - significant bodily injury to a victim of domestic violence, criminal restraint – hold victim, possession of a weapon for unlawful purpose, unlawful possession of a weapon and booked into the Middlesex County Jail. On January 30, 2018, ICE issued a detainer, but the detainer was not honored and he was released.

    A 41-year-old citizen of Honduras was arrested by the New Brunswick Police Department on September 18, 2017, in Middlesex County for driving with a suspended license and was booked into the Middlesex County Jail. On September 18, 2017, ICE issued a detainer, but the detainer was not honored and he was released. Subject has prior arrests for forgery.

    A 29-year-old citizen of Mexico was arrested by the Perth Amboy Police Department on March 12, 2018, in Middlesex County for aggravated assault on law enforcement and possession of CDS/analog and booked into the Middlesex County Jail. On March 13, 2018, ICE issued a detainer, but the detainer was not honored and she was released. She has prior arrests for assault by auto and DUI.

    A 28-year-old citizen of Peru was arrested by the Union City Police Department in Union City, New Jersey on May 08, 2018, for simple assault and booked into the Hudson County Jail (HCJ). At the time of his release from HCJ, it was discovered that he had an outstanding warrant for contempt from the Perth Amboy Police Department, in Middlesex County. He was transferred to the Middlesex County Jail on the warrant. On May 15, 2018, ICE issued a detainer to Middlesex County Jail but the detainer was not honored and he was released.

    A 29-year-old citizen of El Salvador was arrested by the Carteret Police Department on September 1, 2017, in Middlesex County for Endangering-Abuse/Neglect of a Child and booked into the Middlesex County Jail. On September 5, 2017, ICE issued a detainer, but the detainer was not honored and he was released. After his release, he was arrested for DUI and subsequently convicted on March 15, 2018 for the same offense.

    Those arrested will remain in ICE custody pending removal or immigration proceedings.

    ICE is focused on removing public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed, and immigration fugitives ordered removed by federal immigration judges.

    For the first two quarters of Fiscal Year 2018, ICE arrests comprise over 66 percent convicted criminals. Of the remaining individuals not convicted of a crime, approximately 23 percent have either been charged with a crime, are immigration fugitives, or have been removed from the United States and illegally re-entered, reflecting the agency’s continued prioritization of its limited enforcement resources on aliens who pose threats to national security, public safety and border security.



    Last Reviewed/Updated: 07/16/2018
  4. Letters of the Week: July 16 - July 20

  5. Trump Didn't Begin Private Immigration Prison Abuses Such as Using EPA Toxic Site. But he is Making Them Worse. Will Kavanaugh Help Him? Roger Algase

    Donald Trump has not hesitated to engage in the wildest forms of myth making and fantasy about the supposed differences between his regime and the administration of President Barack Obama, whom he accuses of having allowed "criminal" immigrants to "pour into" the United States through "open borders" policies.

    http://www.chicagotribune.com/news/o...629-story.html

    But when in comes to horrific abuses against immigrant detainees, Trump is firmly in the tradition of his two immediate predecessors, Presidents Obama and G.W. Bush, at least with regard to up to almost 1.500 immigrant detainees being held at a prison at a dangerous EPA toxic Superfund site in Tacoma, Washington which was initially opened in 2004,

    as ThinkProgress reports on July 13.

    https://thinkprogress.org/superfund-...-75ff16ad20d9/

    This article gives an idea about exactly how much care Donald Trump and his two immediate predecessors have been showing for the health and safety of immigrant detainees:

    "The detention facility, which essentially serves as a prison, is located within a Superfund site - the designation given to areas contaminated by hazardous waste and selected by the EPA for cleanup due to the danger they pose to both human health and the environment."

    The report continues:

    The facility is located within the Tideflats, and industrial district within Tacoma. For years, fossil fuel development polluted the soil around the area, prompting the EPA to take action almost 30 years ago. The area is still heavily polluted and is deemed unfit for residents."

    And also:

    "Comments given to the city of Tacoma regarding regulations for the Tideflats in 2017 reveal residents have detected strong smells in the area along with side effects like burning eyes and throats. The soil in that area contains hazardous substances that can cause cancer and other diseases.

    Such complaints go back years, but the Northwest Detention Center opened nonetheless in 2004, despite safety concerns. Both a methanol plant and a liquified natural gas facility are located near the facility."

    But environmentally related complaints are not the only ones that have been made against this immigration prison. The above report also states:

    "Residential construction is banned in the area and accusations of sub-par food and medical treatment have prompted more than a dozen hunger strikes over the years from detainees, according to CNN."

    According to this report, the private prison company GEO, which runs this particular hell-hole and many other private immigration prisons through the country, is also being sued for allegedly using detainee slave labor at the Tacoma facility. And since GEO also happens to be the largest company in America engaged in the private immigration prison business, it is instructive to see how both Trump and his immediate predecessor have handled the use of private prisons to detain immigrants.

    To no one's surprise, President Obama's administration tried to put at least some breaks in the use of private prisons to detain immigrants, but business for GEO and other similar companies is expanding under Donald Trump. See a November 21, 2017 NPR story:

    Big Money As Private Immigration Jails Boom

    https://www.npr.org/2017/11/21/56531...ant-jails-boom

    But locking up thousands of Central American and other brown immigrants in inhuman conditions which, as the above ThinkProgress article also points out, have been condemned by numerous human rights organizations, isn't just good business.

    Shouldn't it also be fun?

    Especially at one of Trump's Florida golf resorts, where GEO executives - and warders - this is a democratic country after all - celebrated a lucrative new private immigration jail contract from the Trump administration last October.

    https://www.denverpost.com/2017/10/2...-trump-resort/

    One can also assume that while the private immigration prison moguls and their favorite jailers enjoyed their golfing and feasting at Trump's resort, the quality of the food was better than the maggot-infested food that GEO allegedly provided to detainees at the Tacoma, Washington prison, according to the above ThinkProgress article.

    This raises the question whether Trump's latest Supreme Court appointee, D.C. Circuit Judge Brett Kavanaugh, will take the side of the immigrant victims of these abuses if their lawsuits, present or perhaps future, against ICE and/or the private prison barons ever reach the High Court; or whether he will take the side of the abusers and human rights violators against the victims, just as he did in a dreadful 2009 Circuit Court decision denying Iraqi torture victims relief against US military contractors at the notorious Abu Ghraib prison during the G.W. Bush administration.

    I have recently written about this terrible decision in more detail in my July 13 comment in Immigration Daily. See:

    http://blogs.ilw.com/entry.php?10701

    Roger Algase
    Attorney at Law
    algaselex@gmail.com





    Updated 07-16-2018 at 06:51 PM by ImmigrationLawBlogs

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