General Immigration News and Updates

The US Citizenship and Immigration Service (USCIS) announced today, July 24, 2017, that it will again expand its resumption of premium processing for certain types of H-1B petitions.

Effective immediately, H-1B petitioners who are (or have a sound argument that they are) exempt from the H-1B cap, are eligible to request premium processing.  This includes petitioners that are:

  • An institution of higher education,
  • A nonprofit related to or affiliated with an institution of higher education, or
  • A nonprofit research or governmental research organization.

In addition, USCIS stated that it will resume premium processing for petitions that may be exempt “if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.”

This welcome news comes about a month after USCIS resumed premium processing of H-1B petitions for physicians under Interested Government Agency (IGA) J-1 waiver programs such as the Conrad 30 waiver program for shortage area physicians.  Employer’s petitioning for H-1B status for IGA-Waivered physicians became eligible for premium processing on Monday, June 26, 2017.

You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  In today’s announcement, USCIS indicated that it will further “resume premium processing of other H-1B petitions as workloads permit.”  So it appears that USCIS is on its way toward meeting the October time-frame.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.  Petitioners who aren’t eligible for premium processing, may of course, seek expedited processing based on such things as humanitarian reasons.

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2017 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe the Immigration View blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. Our goal is provide crucial updates and valuable information on the U.S. immigration landscape. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on July 30, 2017. Thank you in advance for your support!

On 6/26/17, the Supreme Court granted certiorari, consolidated the 4th and 9th Circuit cases, partially lifted the lower court injunctions, permitting the government to ban U.S. travel by those nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who do not have a credible claim of a bona fide relationship with a person or entity in the U.S., even though the Supreme Court will hear the merits of the case when it reconvenes in the fall.

Immediately after the court’s decision, the Department of State (DOS) and the Department of Homeland Security (DHS) both issued Frequently Asked Questions (FAQs) regarding the implementation of Executive Order on June 29, 2017. Here is the summary.

Summary of DOS Cable and FAQs Regarding Implementation of EO-2

  • Individuals Subject to the Suspension of Entry: Foreign nationals from the six designated countries (Sudan, Syria, Iran, Libya, Somalia, and Yemen) who were outside the United States as of June 26, 2017; who did not have a valid visa at 5:00 p.m. Eastern Standard Time on January 27, 2017; and who did not have a valid visa as of 8:00 p.m. Eastern Daylight Time on June 29, 2017, are subject to EO-2.
  • Individuals exempt from the order:
    • Any applicant who has a credible claim of a “bona fide relationship” with a person or entity in the United States.
      • Any such relationship with a “person” must be a close familial relationship, as defined below.
      • Any relationship with an entity must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO 103780.
      • Eligible derivatives of principal visa applicants who are either deemed to be exempt from the EO’s suspension of entry or qualify for a waiver under the EO also receive the benefit of the exemption or waiver.
    • Any applicant who was in the United States on June 26, 2017;
    • Any applicant who had a valid visa at 5:00 p.m. EST on January 27, 2017, the day Executive Order 13769 was signed;
    • Any applicant who had a valid visa on June 29, 2017;
    • Any lawful permanent resident (LPR) of the United States;
    • Any applicant who is admitted to or paroled into the United States on or after June 26, 2017;
    • Any applicant who has a document other than a visa, valid on June 29, 2017, or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole.
  • Bona Fide Relationship With a Person in the U.S. – DOS defines a close family member as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or whole or half sibling (including step relationships). However, it does not include a grandparent, grandchild, aunt, uncle, niece, nephew, cousin, brother-in-law, sister-in-law, and any other “extended” family members.
  • Bona Fide Relationship with an Entity in the U.S.: The DOS cable provides the following examples of a “bona fide relationship” to a U.S. entity that will qualify:
    • An I visa applicant employed by foreign media that has a news office based in the U.S.;
    • Students from designated countries who have been admitted to U.S. educational institutions;
    • A worker who has accepted an offer of employment from a company in the U.S.; or
    • Lecturer invited to address an audience in the U.S.
    • The cable indicates that the following scenarios will not constitute a bona fide relationship with an entity in the U.S.:
    • A nonprofit group who seeks out clients from the designated countries, adds them to their client list, and then claims injury from their inclusion in the EO.
    • An individual whose only tie to the United States is a hotel reservation, whether paid or not.
  • Immigrant Visa Applicants: Certain self-petitioning employment-based immigrant visa applicants and diversity visa applicants may be covered by EO-2 and will need to establish they are exempt based on a bona fide relationship or qualify for a waiver.
  • Visa Revocation: DOS has confirmed that no visas issued before the EO’s effective date of June 29, 2017 will be revoked pursuant to the Executive Order. Any individual whose visa was marked or cancelled solely as a result of the original EO issued on January 27, 2017 (EO 13769) will be entitled to a travel document permitting travel to the U.S., so that the individual may seek entry. Any individual in this situation should contact the closest U.S. Consulate to request a travel document.
  • Visa Appointments at U.S. Consulates Abroad: Consulates will not cancel previously scheduled visa interview appointments and will continue to accept visa applications from foreign nationals from the designated countries. Consular officers will make a case-by-case determination on whether a foreign national is eligible for the requested visa classification before deciding whether he or she is exempt from EO-2. If not exempt, consular officers will determine whether the foreign national would qualify for a waiver. Consular officers can grant waivers on a case-by-case basis if the foreign national demonstrates that his or her entry into the U.S. is in the national interest and will not pose a threat to national security, and that denying the visa would cause undue hardship. If the principal applicant qualifies for an exemption or waiver, qualified derivatives would also get such benefit.
  • Waivers: Individuals who are not exempt from EO-2’s suspension of entry to the United States may seek a waiver. The EO permits, and the DOS further confirms, that Consular Officers are permitted to grant waivers and authorize the issuance of a visas on a case-by-case basis, if the applicant demonstrates to the Officer’s satisfaction that all of the following three criteria are met:
    • Denying entry under the 90-day suspension would cause undue hardship;
    • His or her entry would not pose a threat to national security; and
    • His or her entry would be in the national interest. “Unless the adjudicating consular officer has particular concerns about a case that causes the officer to believe that that issuance may not be in the national interest, a determination that a case falls under [any of EO-2’s criteria for when a waiver “could be appropriate”] is a sufficient basis for concluding a waiver is in the national interest. Determining that a case falls under some of these circumstances may also be a sufficient basis for concluding that denying entry during the 90-day suspension would cause undue hardship.”
    • Notably, Consular Officers are instructed to determine that if any individual falls under any of EO-2’s criteria for when a waiver “could be appropriate”, that individual should be granted a waiver. Specifically, the cable states:
  • Refugees: The U.S. Refugee Admissions Program (USRAP) is suspended for 120 days, except for cases where an applicant has a credible claim of a “bona fide relationship” with a person or entity in the United States. The “bona fide relationship” test set forth by the Supreme Court to establish whether one has a qualifying with a person or entity in the United States is the same for a refugee as it is for a nonimmigrant, immigrant, or diversity visa applicant.

Summary of DHS FAQs Regarding Implementation of EO-2

  • Foreign national from one of the six designated countries who was present in the U.S. on June 26, 2017, who was admitted on a single-entry or a multiple-entry visa will not be subject to EO-2 when applying for a subsequent visa.
  • Foreign national from one of the six designated countries who was present in the U.S. on June 26, 2017, but whose visa will expire during travel abroad, will not be subject to EO-2 when applying for a new visa in order to return to the U.S.
  • A U.S. lawful permanent resident who is a citizen of one of the designated countries and who is a member of the Trusted Traveler Program will not be subject to membership revocation based on the EO-2.
  • The EO does not apply to refugees who were formally scheduled for transit prior to 8pm EDT on Thursday, June 29, 2017.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

US Customs and Border Protection (CBP) announced yesterday that beginning on May 31, 2017, it will email reminders to Visa Waiver Program travelers notifying them of their “last possible departure date from the US”.  In addition, CBP added a feature to its website https://i94.cbp.dhs.gov/I94/#/home so that travelers may check their last possible departure date online.

 For now, only those admitted to the US under the Visa Waiver Program can benefit from the new features, but CBP indicated that it will incorporate additional nonimmigrant travelers with future updates. 

 To check their last possible date of departure, Visa Waiver Program travelers can enter the www.cbp.gov.  Then, click on Get Most Recent I-94.  From there, click on View Compliance. When I tried the system, sometimes the screen which included the View Compliance option appeared directly without having to click Get Most Recent I-94.  Either way, ultimately the option that is needed is View Compliance.  In the next screen after clicking View Compliance, a traveler may enter his/her name, birthdate, passport number and country of passport issuance to find the number of days remaining in the period of stay and end date of admission.  For Waivered Tourists, the next screen should indicate the number of days remaining before their last date of departure.

 

Today, Congress extended the EB-5 Program for 1 week through May 5, 2017.  The Program was extended as part of a continuing resolution (CR) funding the federal government through May 5, 2017, thus preventing a government shutdown.  The EB-5 Program would have otherwise sunset today.  The President has until midnight tonight to sign the CR.

This is welcome news for EB-5 industry stakeholders as the program is alive for another week and allows more time for negotiations with lawmakers, with the ultimate goal of reaching a deal that would reform the program with a long-term reauthorization.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (April 16, 2017), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories for the beginning of the next fiscal year (May 2017) and beyond.                                                                      

Check-in with DOS’s Charlie Oppenheim: April 16, 2017

FB-4 Worldwide. FB-4 Worldwide should be watched closely. Following aggressive movement of the final action date in April, this category is not expected to advance. The April movement seems to have stimulated applicants to take action, and increased demand may require a temporary retrogression in this category later this fiscal year. Should retrogression occur, the category would recover completely in October, the first month of the new fiscal year. The final action dates for all other family-based categories are expected remain stable.

EB-1 and EB-2 Worldwide. As noted in the May 2017 Visa Bulletin, EB-1 and EB-2 Worldwide demand at USCIS has increased dramatically over the past six weeks, signaling the possibility of a future correction to the final action date. Charlie explained that number usage in both of these categories for January and February was about 1,000 higher than earlier months and he expects that it will be at least that high, if not higher, in April. While this is positive in the sense that USCIS is clearing out and approving cases, it may limit the ability for the agencies to take final action on pending cases towards the end of the summer if a correction is required.

EB-1 India and China. Charlie has been predicting the imposition of a final action cut-off date for EB-1 China and India for several months and echoes that warning in the May Visa Bulletin. Charlie tells AILA that the only reason a final action cut-off date has not already been imposed is that thus far, India and China have been able to benefit from “otherwise unused numbers” not currently required for other countries. The use of “otherwise unused numbers” by these two countries will soon end in order to ensure that other countries who have not yet reached their EB-1 per country limit can remain “current.” The worldwide demand and heavy use of EB-4 and EB-5 numbers, which in earlier years had remained unused and had “fallen up” to EB-1, has resulted in the restriction of EB-1 number use strictly to those numbers available to that category on an annual basis.

Charlie predicts that a final action cut-off date will be imposed for EB-1 China and India no later than July. When that occurs, both countries will have the same final action date. While these categories will not technically become “unavailable,” the date that is imposed will effectively shut off the use of additional numbers.

EB-2 India. March demand for EB-2 India doubled from February. Based on this spike in demand, Charlie can no longer say with confidence that this category will recover to last year’s level. However, there may still be some room for the date to advance further, and based on current demand patterns, the absolute best case scenario would be for the final action date to reach December 2008. The wildcard factor is whether EB-3 upgrades will subside or continue at the same or faster pace. Charlie lacks visibility into EB-3 upgrade demand until a visa number is requested, and therefore cannot plan final action date movements with as much precision as he would like.

The China EB-3 Downgrade Phenomenon. The gap between EB-2 China and EB-3 China continues to widen in May, with EB-3 China advancing six months to October 1, 2014 and EB-2 China advancing less than one month to February 8, 2013. Consistent with this trend, AILA members should not expect any significant advancement in the final action date for EB-2 China this fiscal year. By contrast, we may continue to see a healthy advancement of EB-3 China until or unless the expected EB-3 downgrade phenomenon materializes.

Based on current data, Charlie predicts that the final action date for EB-2 China may advance as far as a date in spring or summer 2013 before the end of this fiscal year.

EB-4 Religious Workers and EB-5 Investors (I5 and R5). Both the EB-4 Religious Worker and EB-5 Investor Programs will sunset on April 28, 2017 unless reauthorized by Congress. As such, the May Visa Bulletin notes that both of these categories will be unavailable in May unless Congress acts. Should Congress reauthorize both programs, EB-4 will return to current with the exception of EB-4 El Salvador, Guatemala, Honduras and Mexico, which would be subject to a July 15, 2015 final action date. With regard to these countries, and despite healthy demand, Charlie maintains that it is still possible that the final action date may advance before the end of the fiscal year.

If the Investor Program is reauthorized, all countries except China would become current, with a final action date of June 1, 2014 for EB-5 China (I5 and R5).

You may access the May 2017 Visa Bulletin here, the April 2017 Visa Bulletin here, and the March 2017 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

During this time of increased unpredictability in US immigration law, it was good to see that the US Citizenship and Immigration Service had confirmed that the upcoming FY2018 H-1B random lottery will be conducted in the same manner as in past years.  Kudos to the American Immigration Lawyers Association (AILA) for publishing the following:

 USCIS confirmed that the process for receiving and receipting H-1B cap cases for Fiscal Year 2018 will be the same as with prior years, including a random lottery. Therefore, a lottery will be conducted if, during the period of April 3-7, 2017, enough petitions are received to reach the 65,000 statutory H-1B cap and the 20,000 cap for petitions filed under the advanced degree exemption, often referred to as the master’s cap. As in the past, a random computer selection will be run first for those petitions under the 20,000 master’s cap exemption. Any petitions not selected for the master’s cap will then be included in the random selection process for the 65,000 regular cap.

 

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 US 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.

USCIS published the updated M-274, Handbook for Employers: Guidance for Completing Form I-9. The Handbook for Employers provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification. This version, published on Jan. 22, 2017, replaces the previous version which was published on April 30, 2013. It reflects revisions to Form I-9, which was revised on Nov. 14, 2016. You can review highlights of the changes in the Table of Changes for Revised M-274.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

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