1. All State Agencies under the “Direction” of the Office of the Governor.
2. All Contractors and their Subcontractors during a contract term with such agencies as to work performed under the contract.
The Executive Order was effective immediately.
As to the state agency mandate, it applies to all “current and prospective” agency employees. The Order would apply to current and prospective hires as well of contractors and subcontractors, if assigned to the state contract. The Executive Order also encourages state agencies not under the direction of the Office of the Governor to verify employment eligibility of “current and prospective” employees using E-Verify.
In 2011, Florida Governor Rick Scott signed such an Executive Order, which was modified subsequently to apply only to “new employees.” It appears that Governor Perry is attempting to impose something similar to what was done by President Bush back in 2008 based on his Executive Order 13465, which ended up imposing the use on E-Verify upon certain federal contractors and their subcontractors subject to the Federal Acquisition Regulation (FAR). Even in the federal context though, the imposition of the use of E-Verify upon current employees is very limited. Please refer to U.S. Citizenship and Immigration Services (USCIS) website, which provides detailed information regarding the federal FAR E-Verify rules. FAR was not imposed retroactively. We can only hope the State of Texas will not consider doing so on existing contracts.
Enrollment and compliance with E-Verify involves numerous additional obligations for employers and will require them to devote additional time and resources to training and compliance.
On December 3, our current Texas Attorney General and Governor to be in January, Gregg Abbott, announced that the State of Texas would lead a parade of 17 states (Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Mississippi, Maine, and North Carolina) in filing a Complaint for Declaratory and Injunctive Relief against President Obama’s deferred action program providing relief for certain undocumented immigrants. The bases of the Complaint are constitutional and statutory. The focus of the Constitutional violation is the Take Care Clause (U.S. Const. art. II, §3, cl. 5) and the statutory violation is of the Administrative Procedure Act (5 U.S.C. §§ 551 et seq.).
Article II, Section. 3.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The Complaint was filed with the Brownsville Division of the U.S. District Court for the Southern District of Texas. The District Judge for this Division is Andrew S. Hanen, who is currently entertaining a civil lawsuit filed by Dr. Orly Taitz, a conservative activist lawyer and dentist from California, seeking to stop the federal government from sending undocumented immigrants to other states and asking that they be deported or held in quarantine for two months because they allegedly pose a threat of spreading serious diseases and are thus a threat to national security and safety. In addition, Judge Hanen was also in the news in December of 2013 regarding federal immigration law enforcement. He issued an order in a smuggling case, which included the court’s concern about, “…the apparent policy of the Department of Homeland Security (hereinafter”DHS”) of completing the criminal mission of individuals who are violating the border security of the United States.” In his Order in the U.S. v. Mirtha Veronica Nava-Martinez case, he basically alleged that the DHS is rewarding criminal conduct by encouraging undocumented immigrant parents to smuggle their children illegally into the U.S., since DHS does not appear to prosecute the parents for their actions in paying smugglers for their services to violate U.S. laws.
It is this same court that has been selected by Attorney General Abbott to review the constitutional and statutory violation claims Texas and 16 other states are asserting against the deferred action program announced by President Obama. The selection appears potentially propitious. Of course, 135 legal scholars and several former general counsels of the Immigration and Naturalization Service (INS) or chief counsels of U.S. Citizenship and Immigration Services (USCIS) recently signed letters supporting the President’s authority to implement the announced deferred action programs. It would appear that we may be witnessing the state plaintiffs and the federal government in a Mexican stand-off on immigration policy in the RGV (Rio Grande Valley), which has been the focal point of the recent influx of unaccompanied minors and families fleeing violence from predominantly El Salvador, Guatemala, and Honduras.
Practical Points –
The Complaint was filed against Jeh Johnson, the DHS Secretary; R. Gil Kerlikowske, the Commissioner of U.S. Customs and Border Protection; Ronald D. Vitiello, the Deputy Chief of the U.S. Border Patrol; Thomas S. Winkowski, Acting Director of U.S. Immigration and Customs Enforcement; and Leon Rodriguez, Director of U.S. Citizenship and Immigration Services. The federal government typically has 60 days to respond to the Complaint. In addition, the Complaint does not currently state a demand for a preliminary injunction. It is also anticipated that there will be many procedural arguments made, etc. Since the first new deferred action program announced by the President on November 20, the Deferred Action for Childhood Arrivals (DACA) Expansion (DACA PLUS), is expected to commence on February 18, it would seem to be unlikely that we will have any injunctive ruling before then. The lawsuit though certainly causes additional concerns (e.g., start in 2015 of a Republican controlled House and Senate) about the longevity or viability, as applicable, of the prosecutorial discretion based programs announced. We will all need to stay tuned.
Deferred Action Programs for the Undocumented
Under the President’s Executive Action, eligible undocumented immigrants will have the opportunity to request temporary relief from deportation, if they come they apply with U.S. Citizenship and Immigration Services (USCIS) and pass criminal and national security background checks and pay a fee. They will also be eligible for work authorization and must start paying their fair share of taxes. Neither program provides a path to U.S. legal permanent residence or U.S. citizenship at present.
A. The Deferred Action for Parental Accountability (DAPA) Program
DAPA is a program administered by USCIS that can provide temporary relief from deportation, which is referred to as “deferred action” as well as work authorization to:
• parents of U.S. citizens or Lawful Permanent Residents (LPRs)
• who are not in the U.S. in lawful status.
Who - The program is available to individuals who:
• have a U.S. citizen or LPR son or daughter as of November 20, 2014;
• have continuously resided in the United States since before January 1, 2010;
• are physically present in the United States on November 20, 2014, and at the time of applying for the program;
• have no lawful immigration status on November 20, 2014;
• are not an enforcement priority, which includes individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and/or and terrorism, recent unlawful entrants to the U.S., and certain other immigration law violators;
• present no other factors that would render a grant of deferred action inappropriate; and
• pass a background check.
Benefit Period - DAPA grants may be approved for three years.
When To Apply - The DAPA program should be ready to receive applications within 180 days of November 20 - MAY 19, 2015
Filing Fee - Expected to be $465.00.
B. Expanded Program for Deferred Action for Childhood Arrivals (DACA PLUS)
DACA is another prosecutorial discretion program administered by USCIS that can provide temporary relief from deportation through a grant of deferred action. Applicants may also qualify for work authorization. On November 20, 2014, the Administration modified the DACA program by eliminating the age ceiling and making individuals who began residing in the U.S. before January 1, 2010 eligible. Previously, applicants needed to be under the age of 31 on June 15, 2012, and have resided in the U.S. continuously since June 15, 2007. The Administration announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two. While USCIS will continue to take applications and renewals under current eligibility criteria, those eligible under the new criteria should be able to apply within 90 days of the announcement.
Who - The program is available to individuals who:
• Those who as of November 20, 2014, entered the U.S. before their 16th birthday,
including those who were born prior to June 15, 1981;
• Have continuously resided in the U.S. States since January 1, 2010, up to the present time;
• Were physically present in the U.S. on June 15, 2012 and at the time of making his/her request for consideration of deferred action with USCIS;
• Had no lawful immigration status on June 15, 2012 ; (Applicants must have entered the U.S. without admission documents, or, if they entered lawfully, lawful immigration status must have expired before June 15, 2012; and (2) applicants must not have a lawful immigration status at the time of application for DACA Plus.);
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or were honorably discharged veterans of the Coast Guard or Armed Forces of the U.S.; and
• Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Benefit Period - DACA Plus grants may be approved for three years.
When To Apply - The DACA Plus program should be ready to receive applications within 180 days of November 20 - February 18, 2015
Filing Fee - Expected to be $465.00.
Examples of Documentation of Presence in the U.S.
Rent receipts, utility bills (e.g., gas electric, phone, etc.), receipts or letters from companies showing the dates during which for receipt of the service
Employment records (e.g., pay stubs, W-2 forms)
Federal or state income tax returns
Dated receipts for transactions at financial institutions
If self-employed: letters from customers, financial institutions, vendors, company tax returns
U.S. school records showing name of school and period of attendance
Military records (e.g. Form DD-214, certificate of release or discharge from active duty, NGB Form 22), other separation records, military personnel records, or military health records
Hospital or medical records with name of facility or doctor and date
Official records from religious entity in U.S. (e.g. baptism, first communion, wedding)
Money order receipts for money sent in or out of the country
Birth certificates of children born in U.S.
U.S. social security card
Automobile license receipts, title, registration, etc.
Mortgage or deeds
Rental agreements/receipts for payment
Contracts to which applicants are a party
Tax payment receipts
Insurance policies and payment receipts
Postmarked letters/correspondence to the applicant
Memberships (e.g. gym memberships are helpful especially if the gym tracks attendance)
Phone records / bills / call history
Social internet postings
Wire transfer receipts (e.g. Western Union, etc.)
Educational records for children and applicants
Financial records (e.g. bank statements, credit card statements, ATM receipts)
Photographs identifiable in the U.S.
From USCIS.gov (Nov. 2014)
The true scope of the President’s Executive Action Announcement on November 20 will only be revealed in the following months. Numerous questions remain and the programs could be replaced by legislative action next year. If not, the application process and changes announced will be implemented at the earliest in 180 days. U.S. Citizenship and Immigration Services (www.uscis.gov) will be posting updates as well as the White House.
Obviously, the devil and the true impact will be in the details of the implementation roll out. The Department of Justice is preparing for an onslaught of lawsuits by opponents. With these caveats, there are numerous potential beneficiaries of the proposal. The following is a limited outline (please note that the comments are very preliminary and subject to revision as announcements are made):
(Deferred Action for Parents - DAP)
Who: A. Parents of U.S. citizens or lawful permanent residents as of the date of the announcement, who have been in the U.S. since January 1, 2010 and who are not enforcement priorities. OR
(DACA PLUS, GRANDE, or whatever they will call it)
B. Those who arrived in the U.S. before turning 16 years of age AND before January 1, 2010, no matter what their age is today.
Applicants must have been in the U.S. for at least five years to qualify and must document their identity, relationship to a U.S. citizen or lawful permanent resident, and show that he or she has lived in the U.S. continuously for five years or more. Applicants must pass background checks and meet the other qualifications.
Benefit: Temporary relief from removal/deportation. Work authorization may be requested in three year increments and applicable taxes on earnings must be paid. No path to permanent residence or citizenship.
Business Based Immigration
1. High skilled workers (H-1B) waiting for immigrant visa numbers based on approved petitions - Workers will be able to port to other jobs with greater ease.
2. Certain H-4 spouses – They will be able to apply for work authorization if their H-1B spouse has an approved I-140 petition. (This is expected to apply in December or January via regulation.)
3. Foreign entrepreneurs – Qualifying foreign entrepreneurs meeting requirements for creating jobs, attracting investment, and generating revenue in the U.S. will be able to be paroled in the U.S. or paroled in place if in the U.S.
4. Entrepreneurs, Researchers, Inventors, and Founders – will be eligible for national interest waivers of a labor certification to seek permanent residence in the U.S.
5. Approved Employment Based I-140 Beneficiaries Waiting for Immigrant Visas – will be able to pre-register for adjustment of status (I-485) to be able to obtain advance parole for international travel and work authorization.
6. L-1B specialized knowledge interpretative guidance will be released.
7. PERM labor certification process will be modernized/ streamlined. There may be a provision to allow a harmless error exception on filings.
Optional Practical Training (OPT) – will be expanded and oversight by the university will apparently be increased for the OPT period. The STEM list of fields may be expanded for extended OPT. The term of OPT will also be increased.
Family Based Immigration
1. Spouses and Children of Legal Permanent Residents – will be able to obtain provisional waivers of the unlawful presence bar (I-601A). In addition, the definition of “extreme hardship” to qualify for the waiver will be expanded.
2. Families of those Desiring to Enlist in the Armed Forces – will be able to qualify to adjust to permanent residence via an expansion of the parole in place program for the military.
And of course –
1. Focus Revised - will focus Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) upon suspected terrorists, convicted felons, convicted gang members and those apprehended at the border. (Those who enter the U.S. illegally after January 1, 2014 and those who, after January 1, 2014, fail to leave the U.S. who are under a removal order or who return unlawfully after removal.)
2. Prosecutorial discretions guidelines will be revised.
Kathleen Campbell Walker is a shareholder with the Cox Smith law firm. www.coxsmith.com
(The contents of this publication do not constitute legal advice and are not guaranteed to be correct, complete, or up-to-date.)
Tomorrow evening on November 20 at 8 pm eastern, President Obama will announce the scope of his executive and agency action initiative related to immigration policy reform and then travel to Las Vegas to attend a meeting at Del Sol High School in support of the announcement. So, it seems what happens in Vegas does not stay there –- at least as to immigration policy. Congress will apparently receive details tomorrow, November 20, before the public announcement.
Also, the Washington Times released a report today entitled, “Immigration: Conservative and Economic Solutions to Act Now,” to encourage the passage of immigration reform legislation for the benefit of the U.S. economy.
As with the Deferred Action for Childhood Arrivals (DACA) initiative, it is expected that the broad policy statement announcement regarding the initiative will be followed by details and prospective implementation plans. We will find out if the various expected changes will be rolled out at once or based on some schedule. It is extremely important to remember that filing procedures, qualifying factors, potential benefits and risks, costs, and timing will all be unknown and develop as things progress. So, remembering the DACA process is important.
Those who may currently request DACA must meet the following requirements:
1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching his/her 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making his/her request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Rank Speculation and Rumor as to Content Topics:
1. Expand DACA eligibility perhaps to those who entered the U.S. before they were 16 years of age and advance the cut-off date from June of 2007 to January 1, 2010.
2. Provide temporary visas to undocumented immigrants whose children were born in the U.S. (no idea on time frames or other requirements). Does not appear that the action may include parents of children brought to the U.S. illegally (we don’t know).
3. Expand the STEM Optional Practical Training period for companies using E-Verify. Who knows if this expansion will include multiple new areas for degree programs and whether the extension will only available for work with companies enrolled in E-Verify.
4. Improve the ability of students receiving degrees in the U.S. to remain in the U.S. while pursuing legal permanent resident status.
5. Expand deferred action to protect more undocumented immigrants from removal/deportation from the U.S. The rumor currently is that those protected must be in the U.S. for either five or ten years. Obviously, the impact of this difference is tremendous as to those who might benefit.
6. Expand possible work authorization options for spouses of certain nonimmigrant visa holders (e.g. H nonimmigrants).
7. Modify an enforcement policy to prioritize the deportation of serious criminals.
8. Strengthen border security to address illegal immigration surges.
9. Expand provisional waivers for undocumented immigrants who are spouses and/or children of legal permanent residents.
10. Recapture unused immigrant visa numbers.
11. Incentive naturalization filings with a fee reduction initiative.
12. Allow adjustment of status applications for permanent residence to be filed in the U.S. for qualifying undocumented immigrants in the U.S. whose children are U.S. citizens. This option expands a parole in place policy for certain immediate relatives of U.S. military service men and women.
13. Increase pay for Immigration Customs and Enforcement (ICE) officers.
14. End the Secure Communities’ program which allows ICE officers to coordinate with local jails to check databases and take action as to those who may be subject to deportation/removal.
15. Allowing those with approved I-140 petitions to file for register for adjustment before the immigrant visa number is available via the State Department’s Visa Bulletin.
It is important to note that we will not know if any of these rumors is reality until the announcement tomorrow. In addition, it will be weeks and months before we receive clear guidance on process for whatever is announced. So, for those who will start to allege that new benefits can be applied for immediately or right away, their comments should be taken with many pounds of salt. In addition, the question remains as to what the Republicans will do when they take control of Congress next year in January after these announcements are made. Proceeding with caution will be necessary as we see what unfolds. More to come.
Download 20140701_USCIS Stamp On September 22, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a notice to the public after their blog posting in the Beacon on September 16 http://tinyurl.com/kaxkoc4 that employers should be aware that on July 1, 2014 USCIS and U.S. Customs and Border Protection (CBP) stopped using secure red ink for a number of stamps, which are used to document immigration status and/or work authorization.
Now, employers and state agencies should be seeing “blue” instead of “red” as to official USCIS and CBP stamps on passports concerning the following:
1. Department of Homeland Security (DHS) Parole Stamp
2. Temporary I-551 Alien Documentary Identification and Telecommunication (ADIT) Stamp
3. Refugee Stamp (Section 207)
4. Asylum Stamp (Section 208)
5. Initial / Replacement Form I-94 Stamp (Admission Record)
Employers are reminded by USCIS that they should be aware of this recent change when examining documents presented for I-9 compliance. http://tinyurl.com/oy5zu75 Employers are required to make sure that documentation presented for I-9 compliance purposes appears to be genuine on its face and relate to the person presenting the documentation. Employers of course may not specify to an employee which specific document(s) to present for I-9 completion purposes.
Examples of the new stamps are available on the document attached to this article in the first paragraph. Although this information has been added to I-9 Central, this sort of update is very difficult for employers to be able to keep track of day to day. There has to be a better way.
Good news! The international contract is awarded to your company, the deadlines are tight, but the increase in business will be critically important to the company’s financial success. Whether the sale is for services or goods, a recurrent conundrum is whether an actual visa approving “work” will be required. In the United States (U.S.) of course the issue is further complicated, because U.S. employers must determine the work eligibility and identity of employees within three business days of the date of hire for Form I-9 purposes. In some cases, a U.S. employer may try to categorize a worker to be an independent contractor to avoid visa requirements, but both the Internal Revenue Service and the U.S. Department of Homeland Security (DHS) may deem a contractor to be an employee based on the level of control that the U.S. employer exerts over the performance of duties of the worker in question among other factors. Similarly, in trying to determine the presence of duties meeting the definition of “work”, which would require a foreign contractor or a U.S. employer to obtain a certain type of visa for a worker, the analysis is challenging and critical.
In October of 2013, Infosys Limited, a consulting, technology, and outsourcing company located in thirty countries including the U.S. (Infosys), entered into a Settlement Agreement with the DHS, the U.S. Department of State (DOS), and the U.S. Attorney’s Office for the Eastern District of Texas for $34 million for allegedly:
• Knowingly and unlawfully using the B-1 business visitor visa for foreign workers to perform skilled labor in the U.S. and failing to use work authorizing visas, such as the H-1B specialty occupation visa.
• Providing instructions to B visa holders to omit using any words in interviews with DOS consular officers or Customs and Border Protection (CBP) inspecting officers mentioning activities that might be conducted in the U.S. that could be perceived as work.
• Changing time and materials contracts to fixed price contracts to avoid the disclosure of names and billing rates concerning those working on the contract.
The U.S. Attorney’s office alleged that Infosys took these actions to: increase profits, minimize costs for obtaining visas, increase the flexibility of employee movement, obtain an unfair advantage over competitors, and avoid tax liabilities.
Although Infosys denied these allegations, as a part of the Settlement Agreement Infosys agreed to provide a detailed description of any activities to be performed by future B-1 visa applicants at the time of their application for entry to the U.S. and to retain a copy of the description for three years to provide to the U.S. Attorney upon request. In addition, Infosys agreed to submit a report to the U.S. Attorney regarding its B-1 visa use policies, standards of conduct, internal controls, and disciplinary procedures regarding such policies to ensure compliance.
Another example of difficulties regarding the parameters of the B-1 business visitor and the potentially devastating results of a failure to translate them well is CBP’s refusal in 2011 to admit several Russian engineers from Boeing’s Moscow Design Center. According to a white collar union official at Boeing in the U.S, the Russian engineers were not Boeing employees but lower paid contractors entering the U.S. as B-1 business visitors to engage in productive employment. Since, this incident Boeing is apparently sending Russian engineers again using the B-1 visa after a thorough review by CBP.
In addition, Mexican workers on the U.S.-Mexico border who are employed by an employer in Mexico, often have their business visitor visas revoked for crossing the line of using their laser visas/business visitor visas to engage in what is deemed to be “work” in the U.S. The issue is a continual one due in part to the ease of cross-border travel. The determinations can cause the worker to be inadmissible to the U.S. for five years or more depending on the severity of the situation.
How to spot the line?
The B nonimmigrant visa category is used for foreign nationals who temporarily visit the U.S. for “business” under B-1 status or “pleasure” under B-2 status. The purpose of the B visa category is to encourage international travel by foreign nationals to the U.S. for cultural, social, and economic benefits. Since the B-1 visa does not require a petition as is typical for many U.S. nonimmigrant visas and since many nationalities are able to visit the U.S. as business visitors under the Visa Waiver Program for up to 90 days without obtaining a visa from the DOS prior to travel, the burden of determining the appropriate use of the visa category is often left to the CBP officers at U.S. land, air, and sea ports of entry. CBP officers are also aware that a higher percentage of visitors who violate their period of authorized stay granted by CBP officers are admitted in the B categories, which raises their collective level of concern.
CBP officers review a variety of data resources and a number of facts in their assessment of whether an applicant for admission is really visiting versus working or living in the U.S. For example, they will consider facts such as:
• How many days in the past six to twelve month period has the applicant been in the U.S.?
• What does the applicant’s cell phone, laptop, or documents reflect regarding the purpose of the visit, who employs the applicant, and where does the applicant reside?
• Is the applicant potentially displacing a U.S. worker?
• Is the applicant’s visit to the U.S. really temporary?
• Who or what entity is paying for the applicant’s services?
• Does the applicant have adequate funds to avoid unlawful employment in the U.S.?
• What is the itinerary for any duties to be performed in the U.S. and what entity benefits from the performance of these duties?
In some circumstances, a B-1 business visitor might actually be authorized to perform work in B-1 status. Determining if the applicant for admission actually falls in one of these limited and evolving categories is a difficult determination for all involved including, DOS consular officers, CBP officers, as well as legal counsel for employers.
The basic B requirements are that the applicant must:
1. Have a residence in a foreign country, which they do not intend to abandon.
2. Intend to enter the U.S. for a specifically limited duration.
3. Seek admission to the U.S. for the sole purpose of engaging in legitimate business or pleasure activities.
4. Receive no compensation from a U.S. source, but for an expense allowance or other reimbursement incidental the stay in the U.S.
What is acceptable work for business visitors?
The DOS as well as CBP have attempted to post guidance on travel permitted as a B-1 visitor. The DOS has long interpreted the appropriate use of a B-1 visa to allow an applicant to perform activities “necessarily incident to international trade or commerce , but not to include local employment of labor for hire.” Examples include, but are not limited to, the following acceptable practices:
• As to building or construction work, whether on-site or in plant, a B-1 visa has been found to be acceptable for work involving the supervision or training of others engaged in building or construction work, but not actually performing any such building or construction work.
• As to a foreign national coming to the U.S. to install, service, or repair commercial or industrial equipment or machinery purchased or leased from a company outside of the U.S. or to train U.S. workers to perform such services, the contract for sale or lease must require the seller or lessor to provide such services or training. In this situation, the visa applicant must have specialized knowledge essential to the seller’s contractual obligation to perform the services or training. The installation , maintenance, and repair of: utility services, any part or the fabric of any building or structure, and the installation of machinery or equipment to be an integral part of a building or structure requires further review by the agencies.
• While DOS may still issue B-1 visas for applicants who will provide services in the U.S. which would typically qualify as H-1B specialty occupations (B-1 in lieu of H-1B); as evidenced by the Infosys Settlement Agreement , the practice is a risky one and requires thorough review by the company and competent legal counsel. Although the job to be performed in the U.S. may require at least a bachelor’s degree, which the applicant possesses, and the applicant will remain on the foreign payroll during a short term assignment in the U.S., the B-1 visa does not have the wage protections that the H-1B category does which causes concerns for abuse. The employee must be customarily employed by the foreign firm, which has an existing foreign office. In addition, the services to be provided should typically be necessary to the integrated international production, marketing, and service system of the company, its subsidiaries and affiliates and is not a reassignment of the applicant to a U.S. employer.
In any attempt to utilize the B-1 visa for the provision of any service in the U.S., it is critical to analyze the ever changing interpretations of the acceptable uses of this category which are often subject to the repercussions of political and economic pressures. Thus, while finding the black line of compliance can be elusive for even the more experienced company; when used properly and with caution, the B1 category may be a pivotal reason for the success or failure of an international contract
The rule will expand the border zone enough to allow laser visa/BBBCC holders to travel on highway I-10 from Tucson, Arizona to Las Cruces, New Mexico, and El Paso, Texas without obtaining an I-94 (if the visit is for 30 days or less). Remember that Mexican citizens with just a B-1 or B-2 visa (no BCC visa) are limited to a 72 hour period of stay in the U.S. with no I-94 for a visit within the defined border zone.
Today, July 16, Customs and Border Protection announced that the new 55 mile rule is in effect for laser visa/border crossing card holders requesting admission for travel into New Mexico up to 55 miles from the U.S. Mexico border for a visit of 30 days or less. This admission does not give the visitor work authorization or the ability to change their residence to the U.S.
67 Senators tonight found the political will to vote in favor of cloture to allow S.744 regarding comprehensive immigration reform to proceed to a vote possibly this week. Of course, if the bill passes, there is still a long way to go as the House struggles with the immigration hydra.
The supporters of the Senate bill are focusing on a deadline they created of July 4 to pass the bill. Many senators are demanding more time for the ability to offer more amendments, but an agreement to move forward with this request would apparently require unanimous consent - which is not likely at present.
Senators Cornyn and Cruz of Texas have continued to oppose the bill, while 15 Senate Republicans voted to proceed with a vote on the substitute version of S. 744, which was amended by Senators Corker and Hoeven. The Senate Republicans voting in favor of cloture were: Senators Alexander (TN), Ayotte (NH), Corker (TN), Hoeven (ND), Chisea (NJ), Collins (ME), Flake (AZ), Graham (SC), Hatch (UT), Heller (NV), Kirk (Ill), McCain (AZ), Murkowski (AL), Rubio (FL), and Wicker (MS).
The Corker/Hoeven establishes triggers which must be met before qualifying undocumented immigrants for Registered Provisional Immigrant (RPI) status may apply for legal permanent residence, except for those granted blue card status. These triggers include:
1. Submission to Congress by the Secretary of the Department of Homeland Security (DHS) of the Notice of Commencement of Implementation of the Comprehensive Southern Border Security Strategy and its deployment to achieve "effective control" of the Southern border. Effective control is defined as the ability of the Border Patrol to achieve and maintain persistent surveillance and an effectiveness rate of 90% or higher. Of course, the term, "effectiveness rate," is still based on a by border patrol sector basis of the percentage calculated by dividing the number or apprehensions and turn backs in the sector during a fiscal year by the total number of illegal entries in the sector during that fiscal year. To date, we have never been able to determine the true "total number" of illegal entries, which makes this goal fairly impossible unless we find some new fail proof technology to ascertain the total number.
2. Construction of no fewer than 700 miles of pedestrian fencing along the Southern Border, which includes replacement of all currently existing vehicular fencing on non-tribal lands on the Southern Border with pedestrian fencing where possible.
3. Implementation of mandatory E-Verify on all employers.
4. Use by the Department of Homeland Security (DHS) of the electronic exit control data system at all international air and sea ports of entry within the U.S. where U.S. Customs and Border Protection (CBP) officers are currently deployed.
5. Deployment of no fewer than 38,405 trained full-time active duty U.S. Border Patrol agents along the Southern Border.
The Secretary of DHS shall permit qualifying RPIs to apply for adjustment to permanent residence, however, IF litigation has prevented 1 or more of the first four triggers from being implemented OR if the implementation of the triggers is held unconstitutional by the U.S. Supreme Court or the U.S. Supreme Court has granted certiorari to the litigation on the constitutionality of the implementation of the triggers and 10 years have elapsed from enactment. So, it appears that litigation is inevitable.
It is important to take note of the mandated minimum requirements of this new Comprehensive Southern Border Strategy (CSBS), which must be met. The CSBS must develop an operational capability to conduct continuous and integrated manned or unmanned, monitoring, sensing, or surveillance of 100% of the Southern border “mileage or the immediate vicinity of the Southern border”; the stationing of sufficient Border Patrol agents and CBP officers between and at the ports of entry along the Southern border; and the necessary and qualified staff and equipment to fully utilize available unarmed, unmanned aerial systems, and unarmed, fixed wing aircraft.
As to specifics, in the El Paso Sector it means the following minimum requirements:
A. Between the Ports –
• 27 integrated fixed towers
• 71 fixed camera systems with relocation capability, which include Remote Video Surveillance Systems (RVSS)
• 31 mobile surveillance systems, which include mobile video surveillance systems, agent-portable surveillance systems, and mobile surveillance capability systems.
• 170 unattended ground sensors, including seismic, imaging, and infrared.
• 24 handheld equipment devices, including handheld thermal imaging systems and night visions goggles.
• 1 communications repeater.
• 1 sensor repeater.
• 2 camera refresh.
B. At Ports of Entry, Checkpoints –
• 4 non-intrusive inspection systems, including fixed and mobile
• 23 fiber-optic tank inspection scopes.
• 1 portable contraband detector.
• 19 radiation isotope identification devices updates.
• 1 real time radioscopy version 4.
• 8 personal radiation detectors.
For our neighbor, the Big Bend Sector it means:
A. Between the Ports –
• 7 fixed camera systems (with relocation capability), which include
15 remote video surveillance systems.
• 29 mobile surveillance systems, which include mobile video surveillance systems, agent-portable surveillance systems, and mobile surveillance capability systems.
• 1105 unattended ground sensors, including seismic, imaging, and infrared.
• 131 handheld equipment devices, including handheld thermal imaging systems and night vision goggles.
• 1 mid-range camera refresh.
• 1 improved surveillance capabilities for existing aerostat.
• 27 sensor repeaters.
• 27 communications repeaters.
B. At Ports of Entry, Checkpoints –
• 7 fiber-optic tank inspection scopes.
• 3 license plate readers, including mobile, tactical, and fixed.
• 12 portable contraband detectors.
• 7 radiation isotope identification devices.
• 12 radiation isotope identification devices updates.
• 254 personal radiation detectors.
• 19 mobile automated targeting systems.
It appears that we need to get used to the humming of a variety of surveillance technologies. Due to the current questions regarding surveillance options used in the name of national security, it should give many living in border communities reason for concern. The DHS Secretary is also authorized reallocate the personnel, infrastructure, and technologies required for the CSBS to achieve effective control of the Southern border. Who knows what that means as far as achieving trade and travel efficiencies… The Secretary is also authorized to deploy alternate or new technologies at least as effective as those listed.
In addition, the southern border provisions provide for additional magistrate judges for southern border U.S. District Courts including 2 additional district judges for the Western District of Texas. National Guard units and personnel are also authorized to be deployed to secure the southern border as full-time duty under title 32 of the U.S. Code. There is also a provision for potential infrastructure projects, which would be a positive. The DHS Secretary and the Secretary of Transportation, in consultation with the governors of the States in the Southwest border region and the Northern border region, are to establish a grant program, which shall be administered by the Secretary of Transportation and the General Services Administration (GSA), to construct transportation and supporting infrastructure improvements at existing and new international border crossings necessary to facilitate safe, secure, and efficient cross border movement of people, motor vehicles, and cargo. The bill specifically prohibits, however, the imposition of any new border crossing fee at a land port of entry.
Again, the bill is a long way from becoming law, but border enforcement has been the central key to procedural progress for this bill and we need to continue to monitor the bill’s ever changing content with care.
Kathleen Campbell Walker is a shareholder at Cox Smith. She is internationally recognized for her experience handling the complex issues related to business immigration, consular processing, admissibility and immigration security issues.
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