Securities:
Three important cases pending before the United States Supreme Court – Three important cases are pending before the United States Supreme Court. What is at stake, observers say, is the legitimacy of the current U.S. immigration justice system and a long-standing previous ruling.
DOS Offers Updates to Au Pair Exchange Visitor Program – The Department of State proposes to amend the Exchange Visitor Program regulations governing the au pair category to “clarify and modernize” the program.
ICE launches online portal for non-citizens in removal proceedings – U.S. Immigration and Customs Enforcement (ICE) has launched the ICE Portal, a public website that centralizes communications between noncitizens who have been placed in deportation proceedings and the federal government.
CBP to temporarily close Arizona border crossing – Effective Monday, December 4, 2023, the U.S. Customs and Border Protection Office of Field Operations will temporarily suspend operations at the Lukeville, Arizona port of entry.
ABIL Global: Spain – Spain has partially implemented European Union Directive 2021/1883 regarding entry and stay conditions for high-skilled employment of third-country nationals.
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Three important cases pending before the United States Supreme Court
Three important cases are pending before the United States Supreme Court. What is at stake, observers say, is the legitimacy of the current U.S. immigration justice system and the long-standing previous ruling, Chevron c. Natural Resources Defense Council, and its standard of deference to the decisions of federal administrative agencies. Cases include:
- Securities and Exchange Commission v. Jarkesy, which raises two questions: (1) whether the SEC’s choice of enforcement procedure violates the nondelegation doctrine, and (2) whether removal for cause of administrative law judges (ALJs) violates the U.S. Constitution . Both of these questions are important to immigration lawyers. For example, observers note, a ruling in Mr. Jarkesy’s favor could lead to a conclusion that immigration judges do not have the authority to rule on the cases assigned to them. Plea in Jarkesy took place on November 29, 2023.
- Relentless, Inc. v. Commerce Department And Loper Bright Enterprises v. Raimondo, which include broader challenges to administrative law. Among other issues, the Supreme Court will consider whether to limit or overturn the Court’s previous 1984 decision in the case Chevron c. Natural Resources Defense Council. Cancelation Chevron would impact federal court challenges to decisions by U.S. Citizenship and Immigration Services, the Department of Labor, U.S. Immigration and Customs Enforcement, and of U.S. Customs and Border Protection. Plea in Tirelessly And Loper will take place in January.
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DOS Offers Updates to Au Pair Exchange Visitor Program
The Department of State (DOS) has issued a proposed rule to amend the Exchange Visitor Program regulations governing the au pair category to “clarify and modernize” the program. Among other things, the proposed rule would restructure the child care and education components, replace the EduCare program with a part-time option, improve au pair and foster care orientation requirements, formalize operational procedures standard for rematching au pairs with new host families, and proposing new requirements to strengthen au pair protections.
The DOS said it encourages public comment on the proposed rule, particularly on the restructuring of the au pair program and the calculation of weekly pay. The DOS initially said it would accept public comments on the proposed rule until December 29, 2023, but later extended the deadline to January 28, 2024.
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ICE launches online portal for non-citizens in removal proceedings
On November 30, 2023, the United States Immigration and Customs Enforcement (ICE) launched the ICE Portal, a public website that centralizes communications between noncitizens who have been subject to removal proceedings and the federal government. On the portal, non-citizens can schedule appointments, update their addresses, and check hearing information in one consolidated location.
Specifically, the portal integrates previous online features such as ICE’s Appointment Scheduler and Change of Address Tool, and allows non-citizens to search for information regarding upcoming court hearings in immigration before the Executive Office for Immigration Review. It also includes information about finding an attorney, including links to pro bono legal service providers and other resources; work in the United States; and find social support.
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CBP to temporarily close Arizona border crossing
U.S. Customs and Border Protection (CBP) announced that effective Monday, December 4, 2023, the CBP Office of Field Operations will temporarily suspend operations in Lukeville, Arizona. Northbound and southbound pedestrian and vehicle traffic at the Lukeville POE will be suspended until further notice. Travelers can enter or exit the United States via the Nogales Port of Entry in Nogales, Arizona, or the San Luis Port of Entry in San Luis, Arizona.
CBP said the temporary closure was a response to “increasing levels of migrant encounters at the southwest border, fueled by smugglers peddling disinformation to prey on vulnerable individuals, CBP is mobilizing all the resources available to process migrants quickly and safely. CBP will continue to prioritize our border security mission as necessary in response to this evolving situation.
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ABIL Global: Spain
Spain has partially implemented European Union (EU) Directive 2021/1883 regarding entry and residence conditions for high-skilled employment of third-country nationals.
This implementation is carried out through amendments to the Spanish Entrepreneurs Law 14/2013, establishing two programs for Highly Qualified Professionals (HQP) within the Large Business Unit. The most important features are:
National Residence Permit for Highly Qualified Professionals
This category already exists, but the permit requirements have been updated to include individuals with qualifications equivalent to at least Level 1 of the Spanish Qualifications Framework or with work experience of at least three years comparable to the required qualification. The labor market test does not apply.
The validity of the permit corresponds to the duration of the employment contract plus an additional three months, with a maximum duration of three years.
Residence permit for highly qualified professionals – European Blue Card
This category is intended for third-country nationals with a higher education qualification of at least three years (equivalent to level 2 of the Spanish Qualifications Framework or level 6 of the European Qualifications Framework) or of at least five years of relevant professional experience. For information and communications technology managers and professionals, the required experience is reduced to three years in the seven years preceding the European Blue Card application. The labor market test does not apply.
The salary threshold varies between 1.0 and 1.6 times the average gross annual salary, with the possibility of applying at 80 percent of the threshold in specific circumstances.
The validity of the permit corresponds to the duration of the employment contract plus an additional three months, with a maximum duration of three years.
Holders of an EU Blue Card from another Member State can stay up to 90 days in a 180-day period in Spain without authorization. To stay longer, they must apply for the EU Blue Card in Spain, with a simplified process allowing them to start working as soon as the application is submitted.
Dependents of EU Blue Card holders can apply for a residence permit in Spain unless they hold international protection status in Spain.
The implementation provides opportunities for highly skilled professionals to work and reside in Spain, with adjustments to existing permits and the introduction of the EU Blue Card system to facilitate mobility within the EU for skilled workers.
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Cyrus Mehta is a guest speaker at the 22sd AILA New York Chapter Annual Immigration Law Symposium, December 3, 2023, where he will speak on the complex issues of maintaining status in business immigration. Co-panelists are Rosanna Fox, Jeff Joseph, Anastasia Tonello and Lucy Cheung.