Robert S. Whitehill

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It has been widely reported, including by the American Immigration Lawyers Association, that on February 20, 2019 the Department of Homeland Security (DHS) sent a proposal to the Office of Management and Budget (OMB) as per normal regulatory procedure to rescind the H-4 spouse employment authorization document (H-4 EAD) regulation. Reportedly, approximately 90,000 H-4 EAD-holders will be affected if the rule is rescinded.

According to procedure, OMB will first review the DHS proposal, the text of which has not yet been released to the public. The proposed rule will then appear in the Federal Register. After publication in the Federal Register, the public comment period is typically 30-60 days. Thereafter, DHS must review the feedback from the public before issuing a final regulation.

If not already done, it would be prudent for those with H-4 EAD work authorization to contact an attorney right away to consider other work-authorized immigration options. With the time for filing H-1B cap petitions quickly approaching, the sooner this is done the better or the possibility of an FY2020 H-1B cap petition may be foreclosed to H-4 EAD-holders for whom it would otherwise be available.

When the proposed rule is published in the Federal Register, we will provide further information.

 

Mark D. Harley is a Partner of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Mark at 412-391-2418, or mharley@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Catherine at 412-391-1334, or cwadhwani@foxrothschild.com.

Robert S. Whitehill is a Partner and the Immediate Past Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Bob at 412-394-5595, or rwhitehill@foxrothschild.com.

What’s a “Notice to Appear” (NTA)?  How about “unlawful presence”?  Phrases such as these may be a new for many following business/employment based immigration matters.  Because of new USCIS Policy memoranda, these removal terms are now added to our business immigration lexicon and concern.

 NTA is the charging document issued by an authorized agent of the US Department of Homeland Security initiating in adversarial proceedings.  Once an NTA is filed with the immigration court, jurisdiction vests in the Immigration Court and noncitizens enter into removal (fka deportation) proceedings to determine whether they may be removed from or stay in the US. The Immigration Court is part of the Department of Justice’s Executive Office of Immigration Review (EOIR)

 Neither an employer, nor the nonimmigrant whose employer is seeking an immigration benefit such as an extension or change of their status wants an NTA!

 On June 28, 2018, US Citizenship and Immigration Services (USCIS) issued a Policy Memorandum updating its policy on the issuance of NTAs consistent with the January 25, 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States.” 

Effective July 5th, :” USCIS , along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border  Protection (CBP), has legal authority under current immigration laws to issue NTAs.  This policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.  The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

..Cases in which, upon denial of an application or petition, an applicant is unlawfully present in the United States”

 USCIS is the part of DHS which adjudicates immigration petitions for benefits such as H-1B status, L-1 status, greencard applications, etc.  Until recently, USCIS was the “service” providing agency.  It did not issue NTAs only due to the denial of a petition and the start of unlawful presence for the beneficiary.  But, what is “unlawful presence” and what does it mean?

 “Unlawful presence” is a legal term defined under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA).  It refers to a person who is ”present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”  The consequence of being unlawfully present is that after 180 days of unlawful presence, a person who departs the US generally is barred from reentry for 3 years.  More is the pity for a person whose unlawful presence is for a year or longer—that person is barred for a decade.  There are possible waivers, but the 3/10 year bars have proven to be quite an effective deterrent against being “unlawfully present”. 

 Of course, the next question is: How does that phrase apply in the context of lawful, business/employment based immigration?  

 As a general statement, nonimmigrants entering the US lawfully are inspected and admitted into the US and are given a specific amount of time by the CBP officer to remain in the US in that visa category.   For example, an H-1B worker entering the US from a trip abroad would receive a stamp and an I-94 record would be created to indicate entry on a certain date in H-1B status until a fixed duration or end date.  After the expiration date (plus 60 days for the H-1b visa holder in our example), if neither employer, nor employee files an application to extend the H-1B status or to change to another status,  the unlawful presence clock would begin to run. 

 Until the most recent Policy Memorandum, USCIS would not begin removal proceedings against this person if, for some reason his/her visa request was denied and the denial was after the I-94 expiration date.  But if, unexpectedly an H-1B extension is denied and USCIS institutes removal proceedings, the worker can no longer work, apply for permanent residence or any other visa.  Moreover, the worker cannot even depart the country: failure to appear before the Immigration Judge results in an “in absentia” order of removal.  And, the employer loses a valuable employee who may not be able to return to the US for a decade.

 That’s not all: when “unlawful presence” became the law, it didn’t apply to most students.  F-1, F-2, M-1, J-1 and J-2s  generally enter the US with permission to remain until they have completed their education, not until a specific date, through the duration of their status.  Entry on “Duration of Status” or “D/S” did not trigger unlawful status if, for some reason, the nonimmigrant stayed in the US beyond the period authorized by their program or otherwise violated their status—for example, not being able to find constant employment during a period of Optional Practical Training.  As of August 9, 2018 –unless enjoined by a court—any time a nonimmigrant with “D/S” is out of status, he/she is unlawfully present—and is at risk of being placed in removal.

 As of May 31, 2018, there was a backlog of more than 700,000 removal cases. The Immigration Court is overwhelmed with a docket that will take many years to clear.  When a person is put into removal proceedings, when the NTA issues, as mentioned that person is not free to depart the US without a resolution of the removal matter.  These new Policies could dramatically clog the Immigration Court system that is already overwhelmed. Just as importantly, these policies intimidate students and workers from coming to the US, deter employers from hiring skilled foreign workers and discouraging foreign employers from investing in the US.

 

The American Competitiveness in the Twenty First Century Act of 2000 (AC21) has provisions that extend H-1B visas beyond the 6-year limit for those in the process of becoming US lawful permanent residents.  AC21’s Section 106(a) allows H-1B extensions in 1-year increments beyond the 6-year limit if a labor certification, immigrant visa petition (I-140) or employment-based adjustment of status (I-485) application was filed more than 365 days prior to the expiration of the H-1B status. Section 104(c) of the statute allows 3-year extensions for those whose I-140 has been approved and whose priority date precludes the filing of an adjustment of status application.

 Yesterday, January 3, the Times of India ran an article entitled:  “Trump administration considers proposal that may send back more than 500,000 Indian tech workers.” The article cites rumors that the Department of Homeland Security (DHS)  is considering a change in its interpretation of Section 104(c).  AC21 Section 104(c) is being used by employers of hundreds of thousands of Indian tech workers, as well as of other nonimmigrant workers caught in the priority date backlog, to extend their lawful stay so that they may continue to work  in the US while they wait to file the final set of paperwork in their green card applications.  Without the ability to extend their H-1B visas, many could be required to leave…preventing that is the reason Congress passed AC21 into law. Yet, the rumors reported in the Times of India and other news outlets are that the current administration is looking to reinterpret language in Section 104(c) which uses the words “may grant” rather than “shall grant” in order to discontinue the H-1B extensions in support of President Trump’s “Buy American, Hire American” initiative. 

 The reported rumors have caused a huge stir.  Interpretations of AC21, some of which predate USCIS’ existence, have not been codified by regulation, but can’t change by rumor.  The interpretation can be formalized, so this is an issue to watch closely.  There haven’t been any official government pronouncements that 500,000 Indian tech workers are being sent back home.  One has to wonder how doing so would enhance the competitiveness of American employers in the 21st century. 

 

This may be the last chance to participate in the lottery.  Not the Powerball Lottery that recently topped $700,000,000, but the Diversity Lottery that will provide 50,000 immigrant visas in fiscal year 2019.  The Diversity Lottery (DV) is for immigrants from countries with historically low rates of immigration to the US.

Although the proposed RAISE Act would eliminate the DV program, at least for now it is still alive and well.  On September 7, 2017, the Department of State announced that beginning noon EST (GMT-4) on Tuesday October 3, 2017 people from qualifying countries may apply online to be lucky.  Natives of Brazil, China, Colombia, Mexico, Nigeria and Viet Nam and other nations may NOT apply as their historic rate of immigration has not been low.  Natives of all other countries may apply electronically and only electronically at the Department of States lottery portal: dvlottery.state.gov.  Beyond having been born in an eligible country, the applicant must meet a rather modest education/work experience requirement. As with any other application to the government there are other details.  A full description can be found at: https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html

 Lottery applications are accepted until November 7, 2017 at noon EST (GMT-5) . Starting May 1, 2018 results will be available.  The application process is FREE and it is a true lottery.

 Applying for the lottery is not interpreted as “immigrant intent”. Those who are lucky may proceed to apply for permanent residency based on being a DV immigrant. So, you have to play to win…

 

In the last few days, there have been a number of government announcements concerning the popular H-1B Temporary Worker status. Of course, these announcements come after this year’s crop of new H-1B visa applications have been sent to USCIS. Some of the linked announcements are warnings and others are disquieting.

What does all of this mean?

The Department of Justice cautions that employers seeking H-1B visas may not discriminate against US workers. The focus is on H-1B workers whose employment intentionally displaces US workers.

USCIS announced that it will take measures to detect H-1B fraud and abuse. No one is in favor of fraud or abuse in the system. USCIS warns/advises that it will make site visits particularly where it can’t verify the employer’s business information, where the employer is H-1B dependent or where the H-1B will be working off-site at another firm’s location. The takeaway is that employers should have their I-9 Employment Verification records and Public Access files in order so that if someone wants to see them, they see that everything is in order and hopefully fines and other penalties are avoided.

In its March 31, 2017 Memo, USCIS announced that it rescinded a memo from 2000 that provided guidance on H-1B computer-related positions. Recognizing that the world of computer-related positions has changed dramatically in the last 17 or so years, the year 2000 guidance that recognizes most programmers are working in “specialty occupations” is declared obsolete. The memo raises the question of what will be required to secure H-1B visas for computer programmers and others in the computer field.

This memo restates the law that H-1B rules require that the beneficiary must be working in a position that is a “specialty occupation”; having a Bachelor’s degree and being a programmer just isn’t enough.

To quote: “…while the fact that some computer programming positions may only require an associate’s degree does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of “specialty occupation” requires in part that the proffered position have a minimum entry requirement of a U. S. bachelor’s or higher degree in a specific specialty or its equivalent…”

The memo goes on to explain that to prove that a computer programmer is in a “specialty occupation”, the employer: ”must establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at 8 CFR 214.2(h)(4)(iii)”.

These criteria are that a Bachelor’s or the equivalent is required to enter the field; that the degree requirement is common in the industry; that the employer normally requires the degree or that the duties are sufficiently complex that a Bachelor’s level education, at least, is required to perform them.

The American Immigration Lawyers Association (AILA) comments that the memo recites criteria that are the same for all H-1B applications, not just computer programmers. They also observe that : ” …the memo supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skill that are more complex and specialized.”

To make a long story short, petitioners may need to provide additional detail to satisfy the “specialty occupation’ requirement when seeking a computer programmer or computer-related H-1B worker. These memos also provide notice of what uses of H-1B workers will be scrutinized and not be tolerated.

Words matter. The words of President Trump as President of the United States and as candidate Trump have been heard by the Courts, not of public opinion, but of the U.S. District Court of Hawaii.  In the Court Order enjoining the implementation of the Administration’s second travel ban Executive Order, the words  “Muslim Ban” used by Mr. Trump and his surrogates were found to be a true and impermissible purpose of the ban.  That provides some relief for the citizens of the 6 countries targeted by the ban as does a decision in the District Court of Maryland, HIAS v Trump.  The HIAS case focused on the Order suspending all refugee resettlement for 120 days.  The Court enjoined the application of that ban as well.

The President’s response to the Court Orders in the Hawaii and HIAS cases has been stinging, with a vow to fight on.  There is some relief in the immigrant and refugee communities, but that may be short-lived as a level of unpredictability will likely remain.  Among business immigration attorneys, the relief from the ban eliminates one of the pressing issues with which we are dealing…it’s H-1B season!

This H-1B season is different than those of the past.  For now, natives of the 6 previously banned nations, Iran, Syria, Somalia, Sudan, Libya and Yemen, have a chance to be sponsored by US employers interested in employing them as cap-subject H-1B workers.  Of course, with the expected multitude of H-1B petitions, their prospective employers’ chances are no greater than any others racing to file on April 3, 2017.  Last year, in the “H-1B season” which lasts 5 business days, approximately 240,000 applications chased fewer than 85,000 visas.  Last year, the results began to trickle in by early May, then those lucky enough to be chosen would have their application adjudicated—many using Premium Processing which produced a result within 2 weeks.  Not this year.  Premium Processing has been suspended for all H-1B filings beginning April 3.   USCIS has said that the suspension may last up to 6 months.

Because the start date of a cap-subject petition cannot be earlier than October 1st regardless of whether Premium Processing is used or not, the lack of premium processing is of less concern to those filers whose cases are subject to the lottery than to those which are cap-exempt—filed by academic institutions, non-profit affiliated health care providers and others. The concern is that a professor or medical resident and others may not be start when the semester or residency program begins.  Aside from timing of adjudication, there is concern that applications from all employers will undergo greater scrutiny, which in turn further delays an approval. In addition, it is anticipated that personnel at the various government agencies will be reduced in number.  This includes agencies that process immigration and related applications—further reason for processing delays.  Fortunately, those waiting will include people from Iran, Iraq, Syria, Libya, Sudan, Somalia and Yemen who are eligible to be included among other highly skilled workers who have offers of professional employment that pay at least the prevailing wage.

The Trump Administration issued a revised Executive Order on travel with an apparent desire to survive a court challenge by modifying some of the elements that judges found troubling in the January 27 travel ban.

The White House - Washington D.C.
Copyright: pigprox / 123RF Stock Photo

Issued March 6, the new ban, captioned “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” has an effective date of Thursday, March 16 — allowing a 10-day window for foreign nationals, federal agencies and others to prepare for the changes.

The Executive Order imposes a 90-day “temporary pause” on entry into the United States by nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen. Notably, Iraq has been removed from the list, but “additional scrutiny” measures in the new ban will apply to those from Iraq.

Subject to certain “categorical exceptions and case-by-case waivers,” the new travel ban is narrower than the previous broad-sweeping measure and applies only to those from the listed countries who:

  • are outside the United States on the effective date, Thursday March 16
  • did not have a valid visa by 5 p.m. (U.S. EST) on Jan. 27, 2017
  • do not have a valid visa on Thursday, March 16.

Exceptions Recognized

In contrast to the prior Executive Order on travel (Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry into the United States), which this new Order revokes as of March 16, the revised ban also recognizes six categories of individuals from the listed countries:

  • Lawful permanent U.S. residents
  • Any foreign national admitted to or paroled into the U.S. on or after the effective date, Thursday, March 16
  • Any foreign national who has a document (other than a visa) that is valid on or issued on any date after the effective date, that permits the holder to travel to, and seek entry or admission to, the US such as an advance parole travel document
  • Any dual national of one of the six countries when travelling on a passport issued by a non-designated country
  • Any foreign national travelling on a diplomatic-type visa, NATO visa, C-2 for UN travel, or G-1 – G-4 visa
  • Any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Presumably, these exceptions will reduce concern by the larger group of travelers, including nationals of countries not listed in the Executive Order. Yet, the new Executive Order leaves open the possibility that restrictions may be imposed on nationals of additional countries at some point in the future.

Additional highlights of the Order include:

  • A call for enhanced vetting procedures during the adjudications process
  • 120-day suspension of the US Refugee Admissions Program for FY 2017, subject to waivers, and with a call for enhanced vetting
  • Expedited completion of the biometric entry-exit tracking system
  • Suspension of the “visa interview waiver program”
  • A review of visa reciprocity agreements
  • Making certain data available to the public
  • Clarifications regarding visa revocations, and more

A unanimous three-judge panel has rejected the Trump Administration’s bid to revive a travel ban that would have blocked most travel into the United States by natives of seven Middle Eastern and African countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

For businesses, universities, individuals and others potentially affected by Trump’s executive order, the situation remains far from certain because the government has vowed to take the fight to the U.S. Supreme Court.

In its Feb. 9 ruling, the Ninth U.S. Circuit Court of Appeals upheld a temporary restraining order (TRO) issued by a federal judge in the state of Washington. As a result, the lower court’s TRO – which restrains implementation of Trump’s executive order – continues in effect for now.

But the TRO is, by definition, only temporary, so travel abroad by noncitizens from these countries is still potentially dangerous, even for those who have dual citizenship.

The legal battle over the ban is far from over. The Trump Administration could pursue an immediate appeal to the U.S. Supreme Court or could opt instead to ask for a rehearing at the Ninth Circuit before a much larger panel of judges. However the courts rule at this stage, the case could ultimately find its way back to the trial judge in the U.S. District Court for the Western District of Washington for more in-depth hearings.

An executive order titled “Protecting the Nation from Terrorist Attacks by Foreign Nationals” is expected to be issued on Jan. 26, 2017 and will have the immediate effect of blocking entry into the United States by anyone born in seven named countries – including lawful permanent residents who are natives of those countries.

President Trump says in the draft text: “I hereby find that the immigrant and non-immigrant entry into the United States of aliens from (… Iran, Iraq, Sudan, Somalia, Yemen, Libya and Syria) would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or non-immigrants, of such persons for 30 days from the date of this order.”

Those to whom this “suspended entry” applies or may apply should beware. For some, this will delay a return to the United States; for others, this may force cancellation or delay of travel.

It isn’t clear what is meant by the term “aliens from,” but the tone of the order in general and the title of the section in which the phrase is found suggest it is meant to include all nationals of those seven countries being barred from entry into the United States for 30 days. A person is a national of the country in which he or she was born.

Permanent residents or non-immigrant visa holders who were born in Iran, Iraq, Sudan, Somalia, Yemen, Libya or Syria, regardless of current citizenship should expect NOT to be admitted or readmitted to the United States for at least the next 30 days.

The Executive Order goes on to “suspend the U.S. Refugee Admissions Program (USRAP) for 120 days,” to “cease refugee processing … and the admittance of nationals of Syria as refugees …” and “… to process and admit only a total of 50,000 refugees during fiscal year 2017.” The total authorized had been 110,000 for FY17, and approximately 30,000 have been resettled so far this fiscal year. .

The full extent of the implementation of this and other Executive Orders remains to be seen. There is an immediate effect upon non-citizens born in Iran, Iraq, Sudan, Somalia, Yemen, Libya and Syria and all refugees, especially Syrians, seeking admission to the United States.

One of the possible weapons that could have been used to target certain immigrants, especially Muslim immigrants, was removed from the Immigration Regulations of the Department of Homeland Security on December 23, 2016.

NSEERS, National Security Entry-Exit Registry System, was a post-9/11 reaction to terrorist attacks on our country.  Under the NSEERS program, approximately 90,000 non-immigrants in the US from 25 different countries were required to report to Immigration (then INS) and be personally interviewed to determine if they were in status or possibly a terrorist.  The program ran until 2011 and resulted in approximately 13,000 people being deported—none of whom were terrorists, virtually all of whom were Muslims who had merely overstayed their visas.  Of the listed countries, 24 of the 25 were predominately Muslim.

Since 9/11, technological advances have permitted Department of Homeland Security (DHS) authorities to keep closer tabs on immigrants entering and seeking to enter the US.  In announcing the Removal of the NSEERS Regulation, DHS stated: ‘DHS ceased use of the National Security Entry-Exit Registration System (NSEERS) program in 2011 after finding that the program was redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security in light of DHS’s evolving assessment of the threat posed to the United States by international terrorism.  The regulatory structure pertaining to NSEERS no longer provides a discernable public benefit as the program has been rendered obsolete.”  The removal of system removes a way to target Muslims in the US.

Other possible registration requirements that could be used to target certain immigrants are still on the books; the requirements that non-citizens (aliens) carry their “registration” documents with them at all times and that they timely notify DHS of a change of their address.

Section 264(e) of the Immigration and Nationality Act requires that every alien over the age of 18 or older “at all times carry with him and have in his personal possession” the “certificate of alien registration or alien registration receipt card”  issued by DHS. This act from 1940 imposes penalties for offenders including criminal misdemeanor charges with incarceration of up to 30 days.  There are many alien registration documents, most common are the “green card”, I-94 and employment authorization document.  Non–citizens are wise to carry their immigration documents with them, keeping color copies in a safe place.

Non-citizens are also required to notify USCIS of any change of residential address within 10 days of such change or possibly face misdemeanor criminal charges.  Aliens who are not in F-1, M-1 or J-1 status must file USCIS form AR-11 to update their address.  The AR-11 can be found and may be completed on the USCIS website.  F-1 students, M-1 students and J-1 exchange visitors also comply by reporting the change of address with their school’s or programs DSO or RO.

While DHS has additional means of checking on the status of non-citizens, one way for immigrants to protect themselves outside of their homes is to carry their registration documents, keeping a color copy  of the registration documents in a safe place, and by timely providing USCIS the required notice of residential address change.

Happy New Year !