USCIS Resumes Premium Processing for H-1B Cap Cases

U.S. Citizenship and Immigration Services (USCIS) has announced that starting today, it will resume “premium processing” for all pending H-1B visa cap-subject petitions.  USCIS temporarily suspended premium processing of all H-1B petitions in April 2017, however, this new announcement means that all pending petitions pursuant to both the 65,000 “regular” H-1B cap and the 20,000 “advanced degree” cap are now eligible to take advantage of premium processing.  Premium processing is, however, still suspended for other types of H-1B petitions, including H-1B extensions of stay and transfers of employers.

With premium processing, employers can pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  Employers seeking to expedite the processing of a pending H-1B cap-subject case, including cases which require responses to Requests for Evidence (RFEs) from USCIS, should contact an attorney to take advantage of this program.

What DACA Recipients & Employers Need to Know About The End of DACA

President Trump has announced his plans to terminate the Deferred Action for Childhood Arrivals (DACA) program, which provides “temporary relief from deportation” and work authorization for certain undocumented immigrants who arrived in the U.S. when they were minors. There are over 800,000 DACA beneficiaries across the country, the majority of whom are legally employed by U.S. employers.

As of September 6, 2017, U.S. Citizenship & Immigration Services (USCIS) will no longer be accepting new DACA applications, however, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization until they expire. Individuals who currently have an initial DACA request pending with USCIS will have their cases adjudicated on a case-by-case basis. Those individuals with their deferred action expiring before March 5, 2018 must apply to renew their DACA (for a two-year period) before October 5, 2017. After March 6, 2018 no more DACA renewal applications will be accepted by USCIS.

WORK AUTHORIZATION

Through the DACA program, beneficiaries receive Employment Authorization Documents (also known as “work permits” or “EAD” cards) which provide lawful work authorization with U.S. employers. These cards are issued for limited periods of time and have expiration dates. Despite this new policy which will terminate the ability to renew EAD cards, current valid EAD cards will continue to provide lawful work authorization for those beneficiaries, until the EAD expires. This means DACA beneficiaries are allowed to legally continue working for U.S. employers with their EAD card until the expiration date on the card. While employers may not be aware of their employees who are on DACA until it comes time to reverify an employee’s work authorization in the Form I-9, Employment Eligibility Verification process, employers are not legally obligated to terminate an employee until after their EAD card has expired. 

SOCIAL SECURITY NUMBERS, DRIVER’S LICENSES, AND ADVANCE PAROLE CARDS

Social security numbers for DACA recipients will remain valid and can continue to be used for banking, education, housing, and other reasons. Driver’s licenses should also remain valid until the expiration date of the card (but double check with your State’s motor vehicle department to confirm). While the Department of Homeland Security (DHS) has indicated they will still honor valid Advance Parole documents, which provide immigration officers with discretionary authority to permit an individual to return to the U.S. after foreign travel, DACA beneficiaries are advised not to travel internationally, due to the risk of being denied re-entry into the U.S. upon return.

IMMIGRATION ENFORCEMENT

Information which DACA recipients provided to DHS in their DACA applications will not be proactively provided to Immigration Customs Enforcement (ICE), Customs and Border Protection (CBP), or shared with other law enforcement entities for the purpose of immigration enforcement proceedings, unless an individual poses a risk to national security or public safety. ICE has said that it has no plans to target DACA holders as their permits expire and that they will continue to remain low enforcement priorities. 

OTHER IMMIGRATION OPTIONS

DACA recipients may be eligible for other immigration relief either through family or employment. Employers with overseas offices may be able to employ affected individuals abroad. DACA recipients may be able to obtain work authorization and/or lawful residence in another country and may even be able to do so from within in the United States. 

Individuals and employers should contact qualified legal counsel to understand their options. As always, we will continue to monitor this recent DACA update and continue to provide additional analysis as information continues to become available. If you have any questions, please feel free to contact us.

New Immigration Interviews for Employment-Based Green Cards

U.S. Citizenship and Immigration Services (USCIS) has announced that beginning October 1st in-person interviews will be required for individuals seeking to adjust from an employment-based nonimmigrant status (i.e. H-1B, L-1, O-1, etc.) to lawful permanent residence (or “green card”) status in the United States.  Interviews will also be required for family members of refugees or asylees who are seeking to join a principal asylee/refugee applicant.  While current policy generally waives interviews for employment-based adjustment of status applications, the new change is part of President Trump’s “extreme vetting” immigration policies.  

According to the USCIS announcement, immigration officers will interview employment-based green card candidates to verify the information provided in their I-140 applications and/or to discover new information and assess the credibility of the applicant in the interview.  In cases where an applicant may have ported his/her employment to a new employer, an immigration officer may seek to confirm whether the new employment is in the same or similar occupational category.

Employers and applicants should prepare for substantial delays in the adjudication of I-485 Applications to Adjust Status as local USCIS offices brace for the surge of now mandatory interviews.  Moreover, employers and applicants may soon see an increase in the costs associated with the permanent residency process, either in the form of increased application fees to cover the costs of hiring more USCIS officers to handle interviews, or through increased legal fees or employees needing to take leaves of absences to handle immigration processing issues.  

Applicants with pending I-485 or I-730 applications should anticipate being called into a local USCIS office for an in-person interview.  Applicants should be prepared in the interview to discuss the immigration benefit they are applying for and should have a complete understanding of the application that was filed on their behalf.  Employment-based green card applicants should be able to discuss the position they are working in, including where they work, what their pay is, and what their specific job duties are.  Family members of refugees/asylees should be prepared to prove their family relationship.  

This new change to the permanent residency process is expected to be onerous.  Employers and applicants should work closely with counsel to prepare for this interview process.  Our office will continue to monitor the rollout of this new policy.  For questions or help in preparing for these interviews, please contact us.

New Employment Eligibility Verification, Form I-9

U.S. Citizenship & Immigration Services (USCIS) has annouced the release of a new version of the Employment Eligibility Verification, Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. Employers and Human Resources staff may begin using this new Form I-9 or continue to use the current version of the Form I-9 (dated 11/14/16 N) through September 17, 2017.  Beginning September 18, 2017, employers must use the new form.  

The revised form includes some cosmetic changes, along with changes related to acceptable I-9 verification documentation, including Consular Reports of Birth Abroad.  USCIS plans to update its M-274 “Handbook for Employers: Guidance for Completing Form I-9” in the near future.

This change, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources departments, as all U.S. employers must ensure proper completion of Form I-9 for each individual they hire.  More importantly, as the workforce compliance landscape continues to evolve, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules.  As part of this process, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms;
  • Develop, implement, and maintain compliance policies for worksite raids.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.  

Supreme Court Allows Partial Travel Ban

The U.S. Supreme Court has ruled to partially unblock President Trump’s executive order temporarily banning travel to the U.S. from the following predominantly muslim countries: Iran, Syria, Libya, Somalia, Sudan and Yemen.  The ruling will keep in place part of the lower court injunction, but will reinstate a travel ban for foreign nationals “who lack any bona fide relationship” with any person or entity in the United States. 

The practical upshot of this is that foreign nationals of these 6 countries should expect that the travel ban will now be enforced against them, thereby barring their travel to the U.S. for a period of 90 days, unless they are able to demonstrate a relationship with a person (e.g., a family member) or an entity (e.g., school, employer, host organization) in the U.S.  In other words, the travel ban may not be enforced against individuals from these 6 countries so long as the individual can prove they have a family relationship with someone in the U.S. or a relationship with a U.S. entity, (i.e. attendance at a U.S. university or employment with a U.S. employer).  While other relationships may also qualify, none were specifically mentioned in the decision.

Foreign nationals traveling to the U.S. from Iran, Syria, Libya, Somalia, Sudan and Yemen should now plan to travel with evidence of their family relationships in the U.S. (i.e. affidavits, birth certificates, marriage certificates), or evidence of their enrollment in a U.S. school (i.e. student visa, Form I-20), or employment (work visa, visa petition approval notices, pay stubs, letters verifying employment).  Additionally, travelers from these countries should be prepared to answer questions about their U.S. family members or employment.

The Supreme Court will hear arguments on the merits of the executive order in October 2017.  In the meantime, if you have any questions on how this ruling may impact you or your employees, please feel free to contact us.

Department of Labor Announces Increase in Investigations of Employment-Based Immigration Programs

The Labor Department has announced plans to more aggressively enforce employment-based nonimmigrant visa programs and crack down on abuses of worker visa programs through increased investigations.  The statement, made two months after U.S. Citizenship & Immigration Services announced it would begin targeting certain H-1B visa employers, calls for:

  • Use of all tools (including audits and site visits) to enforce labor protections provided by visa programs, including H-1B and E-3 visas;
  • Development of changes to the Labor Condition Application, which is used by employers in all H-1B filings, to identify violations and fraud;
  • Coordination between departments to strictly enforce visa program rules and make criminal referrals.

While more specific enforcement details have yet to be outlined, employers should be prepared for increased scrutiny of all visa applications and more site visits.  These proposed enforcement activities are in line with President Trump’s “Buy American and Hire American” executive order and employers should be actively working to ensure they are in compliance with all Department of Labor visa regulations.

Department of State’s Plans for “Extreme Vetting”

The U.S. State Department has announced new visa vetting procedures it plans to put into effect on May 18th, as part of President Trump’s “extreme vetting” visa policies.  Applicants subject to the vetting provisions would be required to provide the following information:

  • Travel history during the last 15 years, including source of funding for travel
  • Address history during the last 15 years
  • Employment history during the last 15 years
  • All passport numbers and country of issuance held by the applicant
  • Names and dates of birth for all siblings
  • Name and dates of birth for all children
  • Names and dates of birth for all current and former spouses, or civil or domestic partners
  • Social media platforms and identifiers/handles used during the last 5 years
  • Phone numbers and email addresses used during the last 5 years

Furthermore, the State Department explained that individuals may be selected for additional screening based on “individual circumstances” that may “lead U.S. consular officers at posts around the world to conclude the applicant warrants enhanced screening that takes into account” information from the additional questions listed above.

These additional stricter screening requirements are likely to result in potential administrative processing delays for some applicants.  Additionally, these new directives will likely cause slowdowns in visa issuance and an increase in visa denials.

Diversity Visa Winners Annouced

The 2018 USA Diversity Visa Lottery winners have been announced. If you applied, confirm if you've won a "green card" and lawful permanent residence at dvlottery.state.gov.  You will need your entry confirmation number, last name, and year of your birth to check the results.

If you are selected in the lottery, you will be given instructions in Entrant Status Check about how to apply for your immigrant visa for yourself and family members.

The Diversity Immigrant Visa Program provides U.S. lawful permanent residence to 50,000 individuals each year from countries with historically low levels of immigration to the U.S.  Applications for the 2018 fiscal year were open from October 1 - November 3, 2016.

Alternative Work Visas to the H-1B

Just as it has done the past four consecutive years, U.S. Citizenship & Immigration Services (USCIS) has announced that it has received enough H-1B petitions to fulfill its annual H-1B quota and will no longer accept new cap-subject H-1B petitions until April 1, 2018.  This is to say, in the first week of April 2017, USCIS received in excess of both 65,000 general H-1B cap petitions for individuals with at least a Bachelor's degree and in excess of 20,000 U.S. Master's degree H-1B petitions.

USCIS will therefore conduct a computer-generated random lottery of those H-1B petitions received between April 1 - April 7, 2017 to determine which petitions will be selected for processing.  If selected and approved in this lottery beneficiaries may begin working in H-1B status for their employers starting October 1, 2017.  Petitions not selected in the lottery will be returned to employers along with the filing fees.

USCIS, however, will continue to accept H-1B petitions year-round from employers who are exempt from the H-1B cap, as well as petitions to extend H-1B status or change employers for those individuals currently in H-1B status.

Alternative visa options are available, though, for those employers and employees who fail to receive an H-1B visa.  The following visas are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • TN Visa:  For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment
  • L-1 Visa:  For intracompany transferees who have worked for a foreign entity for one year and seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity
  • E-1/E-2 Visa:  For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested
  • O-1 Visa:  For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor
  • H-3 Visa:  For foreign nationals coming to the U.S. to engage in a course of training
  • E-3 Visa:  For Australian citizens who will be employed in a specialty occupation in the U.S.

If you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

Trump’s “Buy American, Hire American” Executive Order 

President Trump signed an Executive Order on April 18th, which directs the Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security to propose new rules and issue new guidance to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”  The Executive Order also directs these agencies to suggest reforms to prioritize “the most-skilled or highest-paid petition beneficiaries” in awarding H-1B visas.

While the Executive Order does not provide any specific details or actions to change any visa program, it does indicate that the administration is considering such changes to the H-1B visa program as giving greater weight to H-1B applicants with advanced degrees and higher wages in the H-1B lottery and increasing application fees.

This Executive Order does not have any impact on this year’s H-1B visa process or lottery.

Increased Visa Scrutiny Announced

The U.S. Secretary of State has directed all U.S. consulates to take all possible steps to increase scrutiny of all visa applications and applicants themselves for security threats.  These diplomatic cables direct officers to ask more detailed questions about the background of all applicants and requires applicants whose nationality or background may raise security concerns to provide additional information, including: travel history over the last 15 years; names of siblings, children and former spouses not already recorded in the DS-160/260 or NIV/IVO case notes; addresses over the last 15 years; prior passport numbers; prior jobs and employers, including brief descriptions if applicable, for the last 15 years; any phone number the applicant has used in the last five years; email addresses and social media handles the applicants has used in the last five years.  The cables also will now limit consular officers to no more than 120 interviews per day, a change that will likely cause backlogs and processing delays.

These additional stricter screening requirements, along with the limits on interviews are likely to result in potential administrative processing delays for some applicants.  Additionally, these new directives will likely cause slowdowns in visa issuance and an increase in visa denials.

USCIS Announces Rules to Combat H-1B Visa Fraud & New Policies for Computer-Related H-1B Occupations

U.S. Citizenship and Immigration Services (USCIS) has announced that it will begin taking a “more targeted approach” in site visits to the workplaces of U.S. companies sponsoring H-1B visa employees.  The measures described in the USCIS announcement include focusing on-site visits on H-1B-dependent companies, employers that cannot be validated with commercially available data, as well as employers petitioning for H-1B workers who work off-site at another company or organization's location (i.e. outsourcing companies, who typically petition for workers of other organizations).  These site visits will allow USCIS "to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers." These random and unannounced visits will continue nationwide, except there will now be a clearer focus on making sure the employer is legitimate. 

The announcement also encourages people to report suspected fraud of abuse in the H-1B program, and provides a new hotline phone number and email address for people to report such things as wage disparities between H-1B workers and other workers performing the same or similar duties, and H-1B workers not performing duties specified in the H-1B petition.

These new initiatives follow USCIS’ recent policy memorandum narrowing the H-1B visa eligibility for certain computer-related occupations.  U.S. employers who filed H-1B petitions for employees in programming occupations described in the memo may receive a requests from USCIS to submit additional evidence showing that the position is complex or specialized and requires a professional degree.

Court Temporarily Blocks Trump’s Revised Travel Ban

A federal judge in Hawaii issued a temporary restraining order the practical effect of which is to put a stop to those portions of the presidents revised executive order that are keeping affected individuals from predominantly muslim countries (Iran, Syria, Libya, Somalia, Sudan and Yemen) from entering the United States.  Based on that temporary restraining order, U.S. Customs & Border Patrol (CBP) posts around the world are being authorized to notify airlines to allow such affected individuals to board aircraft bound for the United States. 

The practical upshot of all this is that there may now be a short window of opportunity for any affected individuals to enter the U.S.  To the extent this short window of opportunity may benefit any of your friends or employees, I urge you to communicate this information to them as soon as possible.  

This is clearly a fluid situation and subject to change on very short notice.  I will continue to keep you apprised of any developments.

In the interim, please call me if you have any questions.  

Guidance for Trump’s Revised Travel Ban

President Trump signed an Executive Order today, which has replaced the January 27, 2017 travel ban for citizens of certain countries and limitations on refugees.  The revised Executive Order will take effect March 16, 2017 and will temporarily suspend visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days.  The Executive Order now also contains the following revisions:

  • All visas that are currently valid (even if from one of the 6 countries) will remain valid.
  • U.S. Lawful Permanent Residents (“Green Card” holders) are exempt from the order.
  • A foreign national’s nationality will be determined based on the passport they present while traveling, which means dual nationals from one of the six countries should be admitted if they can present a passport from a country not covered by the order.
  • Iraq nationals are removed from the list of countries subject to the temporary ban.
  • The U.S. Refugee Admissions Program will be suspended for 120 days.
  • The new Executive Order does not give priority to religious minorities and does not specifically target Syrian refugees.
  • The Department of Homeland Security may grant waivers on a case-by-case basis if the foreign national can prove his/her entry is in the national interest of the United States, does not pose a threat to national security and that denying entry would cause undue hardship.  If the waiver is approved for visa issuance, it would remain in effect for the validity of the visa. 

Once again, as a result of these actions, many in the immigrant community are confused and scared – I understand!  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the “six countries” listed on the Executive Order, do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of the “six countries”.
  2. If you are a citizen of any other country which has a predominantly Muslim population, do not travel out of the U.S. without consulting with an Immigration Attorney first.
  3. If you have a non-immigrant visa (even if you are a citizen of a country which is not predominantly Muslim) and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  4. Consideration should be given to accelerating any immigration planning (eg; extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these may become more restrictive as the policies of the current administration continue to evolve.

It is my belief that more executive orders will be forthcoming - which are likely to add to the fear and uncertainty that many may be feeling.  I sympathize with what you may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

USCIS has announced that starting April 3rd, 2017 premium processing for all H-1B petitions will be temporarily suspended. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able request premium processing for H-1B visa cases.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017.  Meaning, this will apply to ALL petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

All H-1B petitions filed with a request for premium processing will be rejected.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

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.

The reason for the temporary suspension will allow USCIS to reduce overall H-1B processing times. 

Considerations for Applying for Naturalization

Based on the rapid changing immigration landscape many Lawful Permanent Residents (“green card” holders) are seeking to obtain the benefits of U.S. citizenship through the naturalization process.  Lawful Permanent Residents who are eligible for U.S. citizenship are afforded equal protection under U.S. laws regardless of their birth in another country.  

In order to be eligible for naturalization the applicant must:

  1. Be at least 18 years old at the time of filing;
  2. Possess Lawful Permanent Resident status (“green card”) for the last 5 years, or for the last 3 years if married to a U.S. citizen;
  3. Live in a state where you claim residence for at least 3 months prior to filing;
  4. Be physically present in the U.S. for at least half the time of the residency requirement (i.e. 30 of the last 60 months or 18 of the last 36 months if married to a U.S. citizen);
  5. Have no continuous absence of more than one year from the U.S., irrespective of the protection of a re-entry permit or SB-1 visa;
  6. Have filed U.S. income tax returns each year after becoming a lawful permanent resident;
  7. Have basic knowledge of U.S. history and government and the ability to read, write, speak, and understand basic English;
  8. Have good moral character (meaning you are not a habitual drunkard; polygamist; a person associated with prostitution, narcotics, or illegal entry of aliens; convicted of a crime of moral turpitude or of two or more non-political offenses for which the sentence imposed was 5 years or more; a gambler; committed an immigration fraud; convicted of murder or an aggravated felony; a non-support of dependents).

Demand For H-1B Visas This Year May Exceed 300,000

Starting April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2018 (FY2018).  As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process.  Based on the number of petitions received in the first few days of last year (over 236,000) and the market demand for high-skilled labor, our office anticipates USCIS receiving over 300,000 H-1B petitions in the first few days of April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission on April 3rd.  Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify.  Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed.  

Court Temporarily Blocks Trump’s Travel Ban, and Airlines Are Told to Allow Passengers

Late yesterday (Friday), a federal judge in Seattle issued a temporary restraining order the practical effect of which is to put a stop to those portions of the presidents executive order that are keeping affected individuals from predominantly muslim countries (Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen) from entering the United States.  Based on that temporary restraining order, earlier today (Saturday), the Port Director of U.S. Customs & Border Patrol (CBP) at JFK airport advised that all CBP posts around the world are being authorized to notify airlines to allow such affected individuals to board aircraft bound for the United States.  Late today (Saturday), the Department of Justice indicated that it intends to file an emergency stay of this order.  

The practical upshot of all this is that there may now be a short window of opportunity for any affected individuals to enter the U.S.  To the extent this short window of opportunity may benefit any of your friends or employees, I urge you to communicate this information to them as soon as possible.  

This is clearly a fluid situation and subject to change on very short notice.  I will continue to keep you apprised of any developments.

In the interim, please call me if you have any questions.  

The Future for U.S. Work & Student Visa Programs Under Trump’s Next Executive Order

In follow up to last week’s Executive Orders, President Trump may be gearing up for his next round of Executive Orders which look to tighten U.S. work visa programs (including the H-1B visa), impose stricter limitations on foreign students, eliminate the International Entrepreneur Rule, and enact measures that will severely curtail the options for U.S. employers (especially in the tech sector) to attract the smartest and most innovative minds to our country. These proposed rules do not appear to suspend or terminate any foreign national’s current work authorization or visa status, but it does direct the Department of Homeland Security (DHS) to review all immigration regulations that allow foreign nationals to wok in the United States. Let’s look at what this could mean for visa holders, employers, and all foreign travelers to the U.S. in the future:

How will this impact the H-1B work visa?

The Executive Order does not propose immediate changes to the upcoming (April 3, 2017) H-1B visa program, but it does indicate the administration’s intent to revise the H-1B work visa lottery system in the future to prioritize applications for those who are paid higher wages and/or have advanced education. 

How will this impact the F-1 OPT student programs?

The Executive Order directs DHS to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, … and improve monitoring of foreign students.” While this would seem to indicate that steps will be taken to curtail current Optional Practical Training (“OPT”) programs available to F-1 students, it is not clear how DHS will modify the regulations.

How will this impact current visa-case processing and/or Green Card priority dates?

The Executive Order directs DHS to “restore the integrity of employment based visa programs to better protect U.S. and foreign workers” affected by those programs. While this guidance is vague, this could signal an increase in Requests for Evidence and Notices of Intent to Deny in immigration cases, as immigration officers may begin to apply stricter adjudication standards. This may also mean the introduction of new employer obligations as it pertains to recruiting and/or prevailing wages. Any changes to the Visa Bulletin system could result in a retrogression in Visa Bulletin priority dates.

How will this impact the International Entrepreneur Rule?

While the proposed Executive Order does not single out the recently published International Entrepreneur Rule (set to go in to effect this summer), it does call for the elimination of any use of parole that “circumvents statutory immigration policy,” which essentially would end the rule.

How will this impact L-1 intra-company transferee visa holders?

The Executive Order directs DHS to conduct site visits to all places where L-1 visa holders (international executive and managers) work, including third-party worksites. It also directs DHS to begin conducting site visits for all visa categories within two years.

How will this impact business / tourist (B-1/B-2 visa) visitors?

The Executive Order directs DHS to clarify the types of activities that are and are not permissible for B-1/B-2 visa visitors. Individuals entering the U.S. on B-1/B-2 visitor visas, should anticipate more comprehensive scrutiny at all ports-of-entry.

 

These Executive Orders also direct the Department of Labor to investigate more abuses of work visa categories, and require more employers seeking to sponsor foreign workers to participate in the E-Verify employment authorization program.

Businesses, foreign workers, and international students considering filing for an H-1B work visa this year should begin preparing their H-1B visa petitions NOW. Demand for H-1B visas on behalf of foreign employees is expected to reach record levels this year. Due to lengthy prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS on April 3rd, employers should begin preparing their petitions NOW to ensure they are ready on time.

Employers, foreign nationals, and international students who may be impacted by changes to any of these proposed regulations should contact an Attorney immediately to begin evaluating legal strategies.  If you have any other questions, please contact me.