The latest developments in U.S. immigration law - Nixon ...

The latest developments in U.S. immigration law
                                                                                                                                           October 2019

                                                                                                   Employers are facing an ever-
                                                                                                   changing and increasingly
                                                                                                   unpredictable immigration
                                                                                                   landscape. You can rely on Nixon
                                                                                                   Peabody to analyze all the latest
                                                                                                   developments in this active area of
                                                                                                   law, and deliver the guidance you
                                                                                                   need on a variety of immigration
                                                                                                   issues.

Global Entry: How to get it and keep it for faster entry into the
United States
Global Entry is a discretionary program offered by the U.S. Department of Homeland Security
(DHS) U.S. Customs and Border Protection (CBP) as part of their Trusted Traveler Programs,
allowing for an expedited immigration customs process upon entering the United States. CBP’s
Trusted Traveler Programs are risk-based programs to facilitate the entry of pre-approved
travelers. Global Entry is specifically geared towards “low-risk” international travelers. Instead of
waiting in a long customs line, Global Entry members proceed to designated kiosks, present their
machine-readable passport or U.S. permanent resident card, place their fingerprints on the
scanner for fingerprint verification and complete a customs declaration all at once, and within
seconds receive a transaction receipt and move onto baggage claim.

What constitutes a low-risk traveler?

CBP takes a hardline stance on what constitutes “low-risk.” All applicants must pass a rigorous
process including a thorough background check against criminal, law enforcement, customs,
immigration, agriculture, and terrorist indices to include biometric fingerprint checks, and a
personal interview with a CBP officer. Even meeting all of the eligibility criteria does not
guarantee approval or continued participation in the program. Once approved, global entry
membership may be revoked if your circumstances change. Specifically, you may be denied
membership in the Global Entry program or your approved membership may be revoked if you:

• Provide false or incomplete information on any visa or customs application;

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• Have been convicted of any criminal offense or have pending criminal charges or outstanding
warrants (to include driving under the influence);
• Have been found in violation of any customs, immigration, or agriculture regulations or laws in
any country;
• Are the subject of an ongoing investigation by any federal, state, or local law enforcement
agency;
• Are inadmissible to the United States under immigration regulation, including applicants with
approved waivers of inadmissibility or parole documentation; or
• Cannot satisfy CBP of your low-risk status.

Eligibility for Global Entry

In order to apply for Global Entry membership, you must be a U.S. citizen, U.S. lawful permanent
resident, or a citizen of the following countries:

• Citizens of Argentina
• Citizens of India
• Citizens of Colombia
• Citizens of United Kingdom
• Citizens of Germany
• Citizens of Panama
• Citizens of Singapore
• Citizens of South Korea
• Citizens of Switzerland
• Citizens of Taiwan
• Mexican nationals
• Canadian citizens and residents are also eligible for Global Entry benefits through the NEXUS
program

How to apply

Eligible individuals apply for Global Entry membership through CBP’s Trusted Traveler Programs
(TTP) online account system. Each applicant, regardless of age, must have their own account and
must submit a detailed application including travel, personal, family, and professional
information along with a $100 application fee. CBP will review each application and if
conditionally approved, an applicant will be required to schedule an interview at a Global Entry
Enrollment Center or through “Enrollment upon Arrival (EoA)” and interview during the
applicant’s next admissibility inspection when landing in an participating international terminal.
To complete the interview, an applicant must be in possession of the following documents:

• A valid passport. If you travel using more than one passport, please bring them all to the

interview so that the information can be added to your file. This provides you with the ability to
use multiple passports at the Global Entry kiosk.
• One additional form of identification (e.g., Driver’s License, National ID Card).
• Documents providing evidence of residency. Examples are: driver’s license (if the address is
current), mortgage statement, rental payment statement, utility bill, etc. This is not required for
minors.
• A permanent resident card (if applicable).

Denials or revocations

Because of the discretionary nature of admission into the program, revocations or denials of
Global Entry membership applications may be difficult to overcome and can take months to
process through government channels with little or no substantive response. However, if you
believe the decision was based upon inaccurate or incomplete information, you may request
reconsideration through the Trusted Traveler Program application website.

How we can help

Nixon Peabody has successfully helped our clients navigate this bureaucratic process, both to
ensure approval with initial membership applications and to overcome denials or revocations in a
time sensitive manner through strategic engagement with DHS and CBP authorities when
requesting review. Our unique experience at DHS creates a definitive advantage when
determining what issues or derogatory information may be impacting an applicant’s eligibility or
readmission. –Rachel S. Winkler

Bilateral deal between El Salvador and U.S. will extend Temporary
Protected Status, but perhaps at a cost
The Department of Homeland Security (DHS) may designate a country for Temporary Protected
Status (TPS) when conditions in that country prevent the safe return of its nationals. El Salvador
was initially designated for TPS on March 9, 2001, after a series of earthquakes struck El
Salvador, and that designation has been extended as a result of subsequent natural disasters.
However, on January 8, 2018, the Trump administration announced it was terminating the TPS
designation for El Salvador, effective September 9, 2019. The fate of beneficiaries under the TPS
designation for El Salvador has been in limbo ever since, but a bilateral deal between the U.S. and
El Salvador announced October 28, 2019 will extend the work authorization of El Salvadorans
with TPS through January 4, 2021. However, the deal may also represent the Trump
administration’s final push to terminate El Salvador’s TPS designation and further implement its
immigration policy in the region.

What was the status of the TPS designation for El Salvador before the bilateral deal?

As noted, the Trump administration had previously announced it was terminating the TPS
designation for El Salvador, effective September 9, 2019. That decision was quickly challenged in
court, and on October 3, 2018, a California federal judge issued a preliminary injunction against
the Trump administration’s decision to terminate TPS for nationals of El Salvador (as well as
Haiti, Nicaragua, and Sudan), finding there were “serious questions” about the administration’s
decision to terminate TPS for these countries. As of the date of this post, the injunction remains in
place and litigation in this matter remains ongoing.

As a result of the injunction, on March 1, 2019, DHS issued a notice announcing the TPS
designations for El Salvador (as well as Haiti, Nicaragua, and Sudan) will remain in effect pending
resolution of the court challenge, and work authorization would be automatically extended
through January 2, 2020. Furthermore, in the event the preliminary injunction is reversed, and
that reversal becomes final, the March 1, 2019 notice requires TPS beneficiaries to depart the U.S.
120 days from the effective date of the final reversal order.

What will happen under the bilateral deal?

As a result of the bilateral deal, the work authorization for El Salvadoran TPS beneficiaries will be
extended through January 4, 2021. Furthermore, the bilateral deal will provide El Salvadoran TPS
beneficiaries an additional 365 days to depart the U.S. after conclusion of the TPS-related
litigation (as opposed to the 120 days provided in the March 1, 2019 notice).

In addition, the bilateral deal provides for a number of joint arrangements between the U.S. and
El Salvador, or what DHS refers to as a “comprehensive approach to irregular migration” in the
region. For example, the U.S. will send officials from U.S. Customs and Border Protection (CBP)
and U.S. Immigration and Customs Enforcement (ICE) to “advise and mentor” their El
Salvadoran counterparts “to further enhance their current operation model and share best
practices.” Furthermore, the U.S. and El Salvador will implement an “expansion of biometric data
collection and information sharing” in order to “prevent and combat crime and other threats to
public security.” The joint arrangements follow a September 20, 2019 Asylum Cooperative
Agreement between the U.S. and El Salvador, which critics claim will provide the mechanism for
migrants seeking asylum in the U.S. to be sent to El Salvador instead (the U.S. has entered into
similar arrangements with Guatemala and Honduras).

Despite the ongoing litigation over the TPS designation for El Salvador (and other countries), the
bilateral deal’s intention is clearly to end the TPS designation for El Salvador and initiate a
process to repatriate El Salvadoran TPS beneficiaries to El Salvador. El Salvadoran TPS
beneficiaries should be sure to consult with immigration counsel regarding the deal’s impact. -
Jason Gerrol

DHS and DOS public charge rules on hold, for now
Section 212 of the Immigration and Nationality Act (INA) outlines several grounds of
inadmissibility, including health-related grounds, criminal- and security-related grounds, and
public charge grounds, which could render a foreign national ineligible for non-immigrant or
immigrant status.

On August 14, 2019, the Department of Homeland Security (DHS) issued a final rule that
significantly changes the standard by which DHS will determine if a foreign national “is likely at
any time to become a public charge,” and therefore inadmissible to the U.S. on public charge
grounds. In addition, on October 11, 2019, the Department of State (DOS) issued its own public
charge rule adopting a strict standard consistent with the DHS rule. Both the DHS and DOS rules
would have likely resulted in a significant increase in the number of foreign nationals deemed
inadmissible, and therefore ineligible for a U.S. visa or lawful permanent residency on public
charge grounds. Both rules were scheduled to go into effect October 15, 2019.

Why is the DHS rule on hold?

The DHS public charge rule was quickly met with several lawsuits, which in summary argue the
rule is arbitrary and capricious and exceeds DHS authority under the INA in violation of the
Administrative Procedure Act (APA), was motivated by discriminatory factors and
disproportionately impacts immigrant communities of color, presents a chilling effect on a state’s
ability to efficiently implement their respective public benefit programs, among other arguments.

On October 11, 2019, two federal courts issued nation-wide injunctions blocking DHS, and
specifically U.S. Citizenship and Immigration Services (USCIS), from enforcing the new DHS
public charge rule. The injunctions will remain in place while litigation proceeds, perhaps with a
final decision from the U.S. Supreme Court.

Importantly, the nation-wide injunction also blocks the use of several new USCIS forms that
would have presented a significant administrative burden on all applicants, including employers
and employer-sponsored foreign nationals who would be extremely unlikely to be found
inadmissible on public charge grounds.

Why is the DOS rule on hold?

The DOS rule has not been blocked by a federal court. Rather, on October 15, 2019, DOS
announced it was delaying implementation of the rule until after approval of its new DS-5540
Public Charge Questionnaire. In accordance with APA procedures, the new questionnaire will
undergo a mandatory review and comment period and will not be implemented in 2019. Whether
or not DOS will begin enforcing its public charge rule in 2020 will depend on a variety of factors,

including the final outcome of legal challenges against the DHS rule.

What’s next?

While both the DHS and DOS public charge rules are on hold, for now, foreign nationals should
nevertheless continue to consult with immigration counsel regarding the impact of the rule(s) on
their respective U.S. immigration process. Furthermore, U.S. employers and employer-sponsored
foreign nationals should continue to prepare for the administrative burdens that will result
when/if the DHS and DOS rules become effective.

President Trump’s Presidential Proclamation on the Suspension of Entry of Immigrants Who Will
Financially Burden the United States Healthcare System is still scheduled to go into effect
November 3, 2019. –Jason Gerrol

STEM OPT site visits: What to expect and how to prepare

DHS is now conducting site visits to employer locations where STEM OPT students are employed.

What is the STEM OPT Program?

International students studying in the U.S. are eligible to participate in Optional Practical Training
(“OPT”) in their fields of study at the conclusion of their degree programs. While typically OPT is
limited to one year, students who have completed a degree in an eligible STEM field can be authorized
for an additional two years of OPT, often referred to as STEM OPT or the STEM Extension. To qualify
for STEM OPT a student must be employed by an employer participating in the E-Verify program and
must submit an I-983 Training Plan signed by the student and the employer to their college or
university that outlines the employment-based learning opportunity offered to the student.

Why is DHS conducting site visits?

DHS conducts site visits in an effort to reduce fraud in several non-immigrant visa programs and the
STEM OPT is the most recent addition. DHS has stated that the purpose of these visits it to “ensure
that STEM OPT students receive structured and guided work-based learning experiences and reduce
the potential for abuses of the STEM OPT extension.” DHS officers will visit employers of STEM OPT
students to confirm that information reported on students’ Forms I-983 concerning their training
opportunities is accurate and that both the student and the employer are meeting their obligations.

Will employers have any notice of a STEM OPT site visit?

Yes. Unlike other types of site visits, DHS will provide employers with at least 48 hours’ notice.

What can employers expect during a STEM OPT site visit?

For starters, not all site visits will be conducted in person. Officers may first or instead contact
employers by phone or email to request information concerning compliance. In general, officers will
seek to confirm the details provided in the student’s Form I-983 Training Plan regarding the nature of
the student’s experiential learning opportunities and the supervision and evaluation that the employer
stated would be provided.

How can employers of STEM OPT students prepare for a site visit?

The best way for employers of STEM OPT students to prepare for a potential site visit is to review the
Form I-983 Training Plans for all STEM OPT students. The Form I-983 should accurately describe the
opportunity being offered to the student and the employer should confirm with the student’s
supervisor that the student is being appropriately supervised and evaluated.
Employers should consult immigration counsel regarding any concerns with respect to STEM OPT
compliance. –Courtney H. New

Trump proclamation will suspend entry of uninsured immigrants

On October 4, 2019, President Trump issued his Presidential Proclamation on the Suspension of
Entry of Immigrants Who Will Financially Burden the United States Healthcare System, which
will go into effect November 3, 2019. Under the proclamation, a foreign national applying for an
immigrant visa abroad will be required to demonstrate to the satisfaction of the adjudicating
Department of State (DOS) Officer they will be covered by approved health insurance within 30
days of their entry to the U.S., or that they have sufficient financial resources to pay for
“reasonably foreseeable medical costs.”

The proclamation does provide a list of plans and programs that qualify as “approved health
insurance.” The proclamation does not, however, define what constitutes sufficient financial
resources to pay for “reasonably foreseeable medical costs,” although the “Secretary of State may
establish standards and procedures governing such determinations” and related determinations
under the proclamation.

The proclamation applies to applicants for an immigrant visa abroad on or after November 3,
2019. It does not apply to non-immigrants (e.g., H-1B, L-1, etc.), current lawful permanent
residents, anyone issued a valid immigrant visa prior to November 3, 2019, and several other
categories of immigrants outlined in the proclamation. The proclamation also does not affect an
individual’s eligibility for asylum or refugee status.

Opponents of the proclamation claim it is yet another unlawful and unjustified attempt by the
Trump administration to curtail lawful immigration. The proclamation, however, states the new

measures are necessary to protect U.S. taxpayers who “bear substantial costs in paying for
medical expenses incurred by people who lack health insurance or the ability to pay for their
healthcare,” who “strain [f]ederal and [s]tate budgets through their reliance on publicly funded
programs,” and who use emergency rooms for non-emergency conditions, “causing overcrowding
and delays for those who truly need emergency services,” among other claims made in the
proclamation. The proclamation follows a controversial August 14, 2019 Department of
Homeland Security (DHS) “public charge” rule that will significantly increase the number of
foreign nationals deemed inadmissible to the U.S.

Legal challenges to the proclamation are likely, and individuals applying for their immigrant visa
abroad should consult with immigration counsel regarding the proclamation. –Jason Gerrol

For more information, please contact:

   Jason Gerrol at jgerrol@nixonpeabody.com or 617-345-1372
   Courtney H. New at cnew@nixonpeabody.com or 401-454-1116
   Rachel S. Winkler at rwinkler@nixonpeabody.com or 202-585-8027

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