EIG Dispatch | November 28, 2017

US Headlines: Department of State Announces Intention to Continue “Extreme Vetting” / ICE Joins Local Authorities to Enforce Immigration Law / H-4 EAD Program Update / SOC Code Revisions

Global Headlines: Qatar: New Procedure for Extending 30-Day Tourist Visa / Update-Europe: Entry-Exit System (EES) Approved, Implementation Slated for 2020

Feature Story:  The DOL Audited Our PERM Case – Why and What Happens Next?


Upcoming Events

November 28- An Uncertain Future: Dreamers, Tech, and a Changing Immigration Landscape

Today at 6 pm in San Francisco, join EIG Attorney Alejandra Zapatero and industry leaders at Microsoft’s San Francisco office for a night of cocktails and conversation on the current status of immigration reform in DC and how these changes are affecting the tech industry and Bay Area immigrants. Register here.

 


EIG in the News

Hiba Anver, Lead Attorney with EIG’s Immigrant Visa Practice Group provided Politico with analysis of the Department of State’sextreme vettingprocedures, noting these questions give consular officers “another tool through which they can apply their own personal biases.” The full article is available through Politico Pro.  


US Headlines

Department of State Announces Intention to Continue “Extreme Vetting.” The Department of State has issued a federal register notice announcing its intention to continue extreme vetting by expanding the scope of questions asked of some visa applicants during the non-immigrant visa application process. This proposed information collection will go in depth into the applicants’ personal and professional history. DOS has estimated that approximately 70,500 applicants will be requested to respond to this collection. The notice invites interested parties to submit public comments to help the Department

  • Evaluate whether the proposed information collection is necessary for the proper functions of the Department;
  • Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used;
  • Enhance the quality, utility, and clarity of the information to be collected; and
  • Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.

ICE increases Partnerships with Local Authorities to Enforce Immigration Laws. U.S. Immigration and Customs Enforcement (ICE), has increased its collaboration with state and local authorities to report arrestees suspected of residing illegally to be turned over to federal agents.

The 287(g) program permits ICE to delegate its enforcement authority to properly trained officers in local agencies, allowing them to enforce immigration laws under ICE supervision.

Under this provision, ICE’s collaboration with local law enforcement agencies has doubled in size under President Trump, now with over 60 participating law enforcement agencies in 18 states.

H-4 EAD Program Update. The Department of Homeland Security is currently awaiting a response from the U.S. Court of Appeals in D.C. following a grant of 180 days to review the H-4 Employment Authorization (EAD) Rule, and decide what action, if any, it will respond to the pending appeal in the case of Save Jobs USA v. DHS.

DHS previously suggested that if it were to make any changes to the current H-4 EAD rule, it would most likely go through the normal administrative process, allowing first for a notice and comment period to obtain input from the community.

Regardless, at this time the H-4 EAD rule remains unchanged. DHS’s request does not impact the ability for qualifying H-4 dependent spouses to apply for employment authorization, nor does it revoke previously approved and granted employment authorization documents. H-4 EAD holders can continue to work in the U.S. pursuant to their valid EAD cards.

SOC Code Revisions. Today, the U.S. State Department announced its final decision for the 2018 revisions of Standard Occupational Classification (SOC) System. The SOC system was designed to reflect the current occupational composition in the U.S. by classifying all occupations in the economy to facilitate comparisons across occupational data. In the latest revision, 70 new detailed occupations were added.  

Because many employment-based immigration filings require selecting an appropriate SOC code to classify the occupation, the revisions to the SOC system may cause concern in light of the increased scrutiny from USCIS this year. However, the SOC code list is updated periodically as new and emerging job categories need to be continuously adjusted to fit within current occupational classifications for visa applicants to reflect the current state of the U.S. workforce.


Global Headlines

Qatar: New Procedure for Extending 30-Day Tourist Visa. Qatar’s Ministry of Interior has launched an online portal for visitors to Qatar wishing to extend their 30-day tourist visa. As we previously reported, Qatar recently expanded its list of visa waiver eligible countries. Nationals of 46 countries, including the US, UK, and China, can obtain a visa on arrival that is valid for 30 days and can be extended for an additional 30 days. These extensions will now be processed exclusively through the online portal, and will no longer be processed by the Airports Passports Department.

Update – Europe: Entry-Exit System (EES) Approved, Implementation Slated for 2020. As an update to our earlier story, last week the European Council adopted the proposed regulations establishing an Entry-Exist System (EES) for EU member countries. Now that the European Council has adopted the regulation, the proposal is now headed for signature by the Council and The European Parliament. Once signed, the regulations will be published in the EU Official Journal and will enter into force 20 days later. The actual implementation of the EES is expected to begin in 2020. 


Feature Story: The DOL Audited Our Perm Case – Why and What Happens Next?

Last week, we gave you tips on drafting great EVLs for PERM Based I-140 applications. Today, we address another nerve wracking part of the Green Card process, PERM audits.

Nationally, the Department of Labor (DOL) audits about 1 in 3 PERM applications, most by random selection. An audit does not mean that a PERM application is any less likely to be certified.

What is a PERM audit?

A PERM audit is, essentially, a request for documentation. Since PERM applications are submitted online with no supporting documents, the DOL regularly issues audit requests asking the sponsoring employer to provide evidence they followed proper recruitment procedures. Some audits may also ask for additional information but these additional requests vary from case to case.

Why is a PERM application audited?

Most audits are the result of random selection. While some audits are triggered by specific fact patterns in a case, such as situations where there were layoffs in a particular position and location in the last six months, usually, there is no particular reason why any individual PERM application is audited.

What documents are required to respond to an audit?

The employer must provide evidence of the recruitment steps taken. The DOL requires job postings to be placed in specific outlets, such as in a newspaper of major circulation and with the State Workforce Agency. The DOL requests copies of these job postings, as well as a recruitment report that summarizes the recruitment steps taken, any applicants that applied and why they were not qualified.

What is the role of the employee?

Since PERM audits are all about recruitment efforts, there is no role for the employee. The individual sponsored by the PERM does not need to provide any documentation.

What is the role of the sponsoring employer?

The sponsoring employer works with immigration counsel to assemble all the documents required for the response.

What is the role of the attorney?

The attorney works with the sponsoring employer to assemble all the documentation requested by the DOL, prepares a recruitment report summarizing the recruitment efforts, and submits the audit response to DOL.

How long does it take?

Audit responses must be submitted within 30 days of receipt. A decision is usually issued about 4 months after DOL receives the audit response.


Contributors

Theresa Meehan, Attorney

Jenny T. Dao, Attorney

Christina Haines, Attorney

Editors: Lieselot Whitbeck, Christina Holtz, and Jeff DeCruz