Blog

Government Responds to California’s Continued Support of Immigrant Communities

The office of U.S. Immigration and Customs Enforcement (ICE) issued a press release in response to Governor Jerry Brown’s approval of California Senate Bill 54 (SB54), which makes California a sanctuary state for undocumented immigrants.  The California bill seeks to prohibit state and local law enforcement agencies, including school police and security departments, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes.  ICE’s press release is a stark response to this bill and should put undocumented communities and employers, alike, on high alert, as ICE intends to increase its worksite and community raids.

While the text of the California bill, also known as the California Values Act, stresses encouraging effective policing, community trust, and an efficient use of resources, ICE views the measure as a complete prohibition of any cooperation and communication with their law enforcement partners in the state.  As such, ICE has vowed to ramp up its efforts to remove undocumented immigrants, stating that it “will have no choice but to conduct at-large arrests in local neighborhoods and at worksites, which will inevitably result in additional collateral arrests.”  This response heightens the ongoing battle between the state of California and the Trump administration, as the state and federal government find their values and policies at odds.

Because ICE has warned about more regular and sweeping arrests, employers and undocumented immigrants should anticipate more immigration enforcement at worksites.  We encourage all of our clients to ensure that they have the most up-to-date records and information for their foreign national employees to ensure that no issues arise, should ICE come knocking. For general guidance on how to deal with ICE, please visit our Immigration Guidance page.  We will be adding additional guidance to this page soon.

Some Good News in Uncertain Times

Dayzad Law Offices is honored to share in the immigration success of one of our clients. We are blessed to be a part of such a wonderful outcome and we are privileged to be able to help.

“After being disappointed twice for H1B, my case was turned over to Dayzad Law Office by my current employer. Their approach in handling my case was far superior than other immigration law firms I had used in the past! Most importantly, they took time and effort to walk me through the process, preparing myself and the required documentation for my H1B filing. They were always present to answer any questions and or challenges I may have regarding the process. I would highly recommend, Navid and his team to be used for all Immigration needs. Thank You Navid and Team for taking me closer to my American Dream!”

Government Increases Scrutiny on Extensions of Already-Approved Temporary Work Status

The U.S. government recently issued a new policy memorandum  with guidance for U.S. Citizenship and Immigration Services (USCIS) in deciding petitions for extension of nonimmigrant status, such as H-1B, L-1, O-1, and TN. Previous guidance directed adjudicators to defer to prior approved petitions with the same underlying facts to establish eligibility while adjudicating extension applications.  The new policy has shifted so that officers are no longer required to defer to prior determinations. Instead, while adjudicating extension applications, they must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.

Where the default position was once for adjudicators to rely on the initial, approved petition as a starting point in determining eligibility, USCIS no longer follows this policy.  This shift in policy has occurred in an effort to remain consistent with the agency’s current priorities to supposedly protect the interests of U.S. workers. This is a reoccurring theme and policy shift that we have seen as a part of the Trump administration.

Therefore, it is as important as ever for employers to ensure that they not only file nonimmigrant petitions, such as H-1B’s, correctly the first time, but that the extension application is equally as comprehensive and consistent with the original filing.  In order to avoid Requests for Evidence, it is better to resubmit all supporting evidence on behalf of the petitioner employer and the employee, as USCIS adjudicators will no longer defer to an employee’s previous approval. Dayzad Law will continue to submit such thorough and complete applications on behalf of our clients, and will continue to update our clients regarding any future changes in the law or in immigration policy.

Departments of Justice and State Partner to Combat Fraud

The U.S. Departments of Justice and State recently announced that they have formalized a partnership aimed at protecting U.S. workers from discrimination and the misuse of employment visas. The partnership facilitates information sharing in order to accomplish these goals. Specifically, the departments will share information about employers that allegedly may be engaging in unlawful discrimination, committing fraud, or making other misrepresentations in their use of employment-based visas, such as H-1B, H-2A, and H-2B visas.  The Department of Justice has already filed a lawsuit against a Colorado company, alleging that the company discriminated against U.S. workers in favor of foreign visa workers.

Because of the continued heightened scrutiny of employment-based visas, it is as important as ever for employers to ensure that they remain in full compliance with immigration law.  The government continues to be hyper-vigilant for instances of discrimination or fraud in the employment visa context, so it is essential that employers be mindful of this throughout the recruitment and employment process. Dayzad Law continues to monitor any changes in immigration law, so that our clients will remain informed and can avoid any additional and unnecessary scrutiny from the government.

Actions during First 90+ Days May Result in Allegation of Misrepresentation

The U.S. government has always been mindful of the activities of certain foreign-nationals to make sure their activities are within the parameters of their immigration status.  However, The Department of State recently issued a new rule that puts a renewed focus on this principle.  Importantly, the new rule also expands the relevant period of focus from 60 days to 90 days following entry to the United States.  The rule states that the government may also consider actions even beyond 90 days.

Specifically, the government will look to the actions of certain foreign-nationals during at least 90 days to draw an inference on whether the foreign-national made a misrepresentation to the US government about his/her intention for that specific immigration status.  Foreign-nationals whom the government concludes made such a misrepresentation will have immigration difficulty in the future.

Examples

  • E-3, TN, Singapore/Chile H-1B1: Your intent must be to work in the US temporarily only —not apply for a green card within the U.S. to stay permanently.
  • Visitors/tourists (B visa or ESTA): You must be able to demonstrate that your intention upon entry was to be a tourist and return to your home country–not to apply for a green card within the U.S., work, or study.
  • Students (F-1, F-2): Your status allows you only to study in the U.S. – not to apply for a green card or to work (generally).
  • Cultural exchange individuals (J-1, J-2) You are authorized only for the specific purpose of your status, not to seek a green card to stay permanently in the U.S.
  • H-1B, L-1, O-1, TN: You must work for the specific employer on your approval notice—not work for another employer or be unemployed.

The Presumption is Against the Foreign-National

Under the new rule, the government will presume that foreign-nationals who act inconsistently with their status within 90 days of entry have willfully misrepresented their intentions for obtaining their immigration status.  Fortunately, foreign-nationals are given a chance to rebut the presumption with their own evidence.  If the government ultimately concludes there has been a misrepresentation, it will make obtaining future immigration benefits more difficult.  If a foreign-national engages in conduct inconsistent with his/her status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation, though it can still be questioned.

As the law continues to change, Dayzad Law will monitor these developments and keep our clients informed. In the meantime, clients should be sure they understand the terms and limits of their specific visas, so as to avoid any potential violations, especially during the first 90 days of their arrival into the U.S.