Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
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Supreme Court Says Certain Aliens May Be Held in Indefinite Detention, Remands Case to Ninth Circuit
On February 27, 2018, the U.S. Supreme Court remanded a case to the U.S. Court of Appeals for the Ninth Circuit that challenges the government’s authority to hold an alien in detention indefinitely without a bond hearing.
The Court said that certain aliens may be held in detention indefinitely while proceedings are pending, and that periodic bond hearings are not required. In this case, the Supreme Court was asked to interpret several provisions of U.S. immigration law that authorize the government to detain aliens in the course of immigration proceedings.
The Court said that because the Ninth Circuit “erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as ‘a court of review, not of first view,’ … we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.” The Court also noted several additional issues for the Ninth Circuit to address, such as whether respondents could continue litigating their claims as a class and whether the Court of Appeals continues to have jurisdiction.
The Court observed that all parties appeared to agree that the text of the provisions at issue, when read most naturally, did not give detained aliens the right to periodic bond hearings during the course of their detention. “But by relying on the constitutional avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue,” the Court noted, concluding that “[i]mmigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country.”
Justice Breyer dissented, saying he would find it alarming “to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.” He said, among other things, that given the “serious constitutional problem” of prolonged detention of noncitizens, he “would interpret the statutory provisions before us as authorizing bail.” He referred to the Declaration of Independence, which states that all have certain rights, among them the right to liberty, and that the Constitution’s Due Process Clause “protects each person’s liberty from arbitrary deprivation.” He also noted that for a long time, “liberty has included the right of a confined person to seek release on bail.” Justice Breyer said, “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”
The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/17pdf/15- 1204_f29g.pdf.
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USCIS Clarifies Policy on Requirements for Third-Party Worksite H-1B Petitions
U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.
USCIS said this clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. “This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location,” USCIS said. The guidance explains that for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:
- The beneficiary will be employed in a specialty occupation; and
- The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.
When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition, the guidance states. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in nonspeculative work and during which the petitioner will maintain the requisite employer-employee relationship.
USCIS said the updated policy guidance aligns with President Trump’s “Buy American and Hire American” Executive Order and directive to protect the interests of U.S. workers.
Reaction. Some immigration attorneys have noted that the new policy suggests that additional evidence may be needed in addition to contracts and work orders, such as more details in the work orders or in letters from the end client regarding the beneficiary’s work assignment. It appears that employers will need to provide more evidence to establish that the H-1B worker will be performing qualified duties under the H-1B program at the end client. If USCIS does not have evidence that this is the case, it could either deny the H-1B petition or grant it for less than three years. According to reports, requests for evidence in response to H-1B visa applications were up 45% (a total of 85,265 requests) in January to August 2017 over the same time period a year earlier.
The USCIS policy memorandum is at http://bit.ly/2BMRVt3. A related announcement is at https://www.uscis.gov/news/news-releases/uscis-strengthens-protections-combat-h-1b-abuses.
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SAVE Moves From Paper To Electronic Verification Request Submissions
U.S. Citizenship and Immigration Services (USCIS) announced that on May 1, 2018, the Systematic Alien Verification for Entitlements (SAVE) Program will no longer accept the paper G-845, Documentation Verification Request, or the paper G-845, 3rd Step Document Verification Request. As of that date, all verification requests must be submitted electronically.
In a separate email alert, USCIS said that “updates have only been made to the Additional Verification process at this time, and the Initial Verification process will be updated later this year.”
USCIS said questions may be emailed to [email protected]. The announcement is at https://www.uscis.gov/save/whats-new.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.