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.