General Immigration News and Updates

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

On March 3, The U.S. Citizenship and Immigration Service (USCIS) announced that it will temporarily suspend premium processing for all H-1B petitions starting on April 3, 2017 until further notice. This suspension is anticipated to last for a period of up to 6 months. During this suspension, Petitioners are unable to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. USCIS has indicated that it will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, which is the date FY18 cap-subject H-1B petition filings begin.  Therefore, the suspension applies to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”) as well as to petitions that may be cap-exempt.

While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition. If the one combined check for both the Form I-907 and Form I-129 H-1B fees is included, both forms (i.e. the entire filing) will be rejected.

USCIS will continue to premium process H-1B petitions properly filed before April 3, 2017, however, USCIS will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.  It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request. USCIS will review all expedite requests on a case-by-case basis and requests will be granted at the discretion of USCIS leadership.

Why USCIS Is Temporarily Suspending Premium Processing for H-1B Petitions

According to USCIS, the temporary suspension will help it reduce overall H-1B processing times by enabling it to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

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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.

 

Statue of Liberty
Copyright: dvrcan / 123RF Stock Photo

On our Emerging Companies Insider blog, Fox associate Alex Radus provided an update on the new International Entrepreneur Rule by the U.S. Citizenship and Immigration Services (USCIS). The rule, which would grant limited entrée to entrepreneurs establishing stateside startups, has undergone a public comment period. Slated to become effective July 17, 2017, the rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S. As a result of public comments, USCIS generally made it easier for foreign entrepreneurs to establish startup companies in the U.S. via the program.

Alex outlines the changes made in the final rule since his previous discussion, including the timeframe for startup formation, the definition of “entrepreneur,” the minimum investment amount and other aspects. He also notes that with the change to the Trump administration, the future of the role, which was spearheaded by former President Obama, is uncertain. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion.

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.

On February 3, 2017, a Seattle federal court judge granted Washington State and Minnesota’s emergency motion for a temporary restraining order (TRO) in its challenge to President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals.”

In accordance with the court ruling, the Department of Homeland Security (DHS) has suspended any and all actions implementing the affected sections of the EO, including actions to suspend passenger system rules that flag travelers for operational action subject to the EO. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. Further, the Department of State (DOS) has lifted the provisional revocation of valid visas of nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

According to DOS, those visas are now valid for travel to the United States may travel if the holder is otherwise eligible. However, DOS also stated that “individuals whose visas are expired or were physically cancelled, must apply for a new visa at the a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry”. DOS has also resumed processing those immigrant and non-immigrant visa applications that were halted by the EO.

All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures, and that all airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

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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.

 The civics test is an oral test which is required in the Naturalization application process. The USCIS Officer will ask the applicant up to 10 of the 100 civics questions and the applicant must answer 6 out of 10 questions correctly to pass the civics portion of the naturalization test. On the naturalization test, some answers may change to reflect the result of federal and state elections and appointment or to clarify content and ensure consistency in terminology. After the Presidential Inauguration, USCIS updated the following answers to the questions which are effective immediately. Applicants must ensure that they know the most recent answers to these questions.

Question Update
20.  Who is one of your state’s U.S. senators now?

The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet.

 

Give the name of one of your state’s current U.S. senators. For a list of current members of the U.S. Senate, please visit www.senate.gov.

 

23.   Name your U.S. representative.

The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet.

 

Give the name of your current U.S. representative. For a list of current members of the U.S. House of Representatives, please visit www.house.gov.

 

28.  What is the name of the President of the United States now?
  • Donald J. Trump
  • Donald Trump
  • Trump

 

29.  What is the name of the Vice President of the United States now?
  • Michael R. Pence
  • Mike Pence
  • Pence

 

43.  Who is the governor of your state now?

The answer to this question may have changed depending on inauguration dates.

 

Give the name of your state’s current governor. For a list of current governors, please visit http://www.usa.gov/Agencies/State_and_Territories.shtml.

 

46.  What is the political party of the President now?

 

  • Republican (Party)

 

 

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.

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” (January 13, 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 (October 2016) and beyond.                                                                                                   

Check-in with DOS’s Charlie Oppenheim: January 13, 2017

QUESTION: What can we expect in terms of movement of FB-2 Final Action Dates?

ANSWER: All of the family-based categories will continue to move at a rate that is consistent with the current pace. I do not expect any dramatic forward movement or slowing down in the coming months. FB-2A should continue to move an average of three weeks each month.

The only family-based categories which may change in terms of the rate of forward movement are the Philippines categories. There is very low demand for FB-2B and F-4 Philippines. Cut-off dates for the other Philippines FB categories have advanced at a faster pace initially, but if demand for FB-2B and F-4 starts to increase, movement in the other categories may start to slow.

F-4 China will reach the F-4 Worldwide date in March.

F-4 India will continue to move but is not expected to reach the F-4 Worldwide date until summer. If there are unused numbers from the other preference categories that fall down to F-4 India, the cut-off date may advance more quickly.

Movements in the family-based Final Action Dates may start to slow in the second half of the fiscal year. Updated projections will appear in the next Visa Bulletin.

QUESTION: Can we expect to see any movement in the “filing” dates during the fiscal year, or is movement generally confined to the beginning of the fiscal year?

ANSWER: I monitor these dates throughout the fiscal year and there may be some updates in the coming months. Changes in the filing dates tend to be more dramatic at the beginning of the fiscal year, but changes are sometimes required in the second half of the year based on demand patterns and future needs.

GENERAL OBSERVATIONS. Number usage to date is higher than last year across the board.

EB-4 EL SALVADOR, GUATEMALA, HONDURAS AND MEXICO. Since our last column, Charlie has received information that potential demand for EB-4 El Salvador, Guatemala, Honduras and Mexico prior to the current Final Action Date could be significant. For example, there are more than 1,500 pre-adjudicated applications for EB-4 El Salvador alone. Because there is already enough pre-adjudicated demand beyond the current date to reach the annual targets, the Final Action Date will continue to hold. If the date were to advance now and there was a subsequent flood of demand with earlier priority dates, this could cause the date to retrogress.

EB-1. Demand in this category remains strong and a cut-off date for EB-1 India and EB-1 China will need to be imposed later this fiscal year. Charlie will hold off doing so for as long as possible, but is confident that it will happen. When it does, members should not expect the date to retrogress quite as far back as last fiscal year when the date rolled back to 2010. Charlie continues to expect that the imposition of a Final Action cut-off date in these categories will be relatively short-lived and that EB-1 China and India will return to “Current” in October when the FY 2018 numbers become available.

EB-2. Tremendous demand resulting from EB-3 upgrades means EB-2 India will not advance in February and will likely hold at the current Final Action cut-off date of April 15, 2008 in March. If demand for EB-2 Worldwide remains strong, it is unlikely that EB-2 India will be able to benefit from any unused numbers and may be restricted to its 2,800 per country limit. If the trend in demand continues, EB-2 India is unlikely to recover to last year’s date. Members should not expect any significant movement in this category until at least July or August. Charlie continues to monitor this very closely. If the current surge in demand is not sustained, and Worldwide demand, or India demand with early priority dates subsides, more forward movement than what is currently projected may be possible.

Unlike EB-2 India, EB-2 China did advance somewhat to November 15, 2012 since demand in this category is not currently exceeding the monthly target.

EB-3. EB-3 Worldwide demand has subsided. The decrease in demand that allowed Charlie to advance the Final Action cut-off date earlier this fiscal year continues, and allowed him to advance the date again to October 1, 2016. While this trend may continue, due to current USCIS processing times, additional forward movements after March are unlikely to impact number usage in this category this fiscal year.

EB-3 China downgrades have not yet materialized at the level which had been experienced in past years. Nevertheless, Charlie is not advancing the Final Action date in this category significantly in an effort to avoid retrogression if demand from downgrades materializes in the coming months as expected.

Members should expect consistent forward movement in the EB-3 Philippines Final Action Date. Charlie expects this category to recover significantly but does not expect it to reach the Worldwide date.

EB-5. The EB-5 China categories should continue to advance at the rate of 1 to 2 weeks at a time.

You may access the February 2017 Visa Bulletin here and the January 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.