USCIS Policy Change Regarding Deportation Proceedings for Visa Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a sweeping new policy, effective immediately, that instructs USCIS officers to initiate removal (deportation) proceedings if, upon denial of an application or petition, an individual is unlawfully present in the United States. This new policy requires USCIS to issue a Notice to Appear (NTA) – a document issued to a foreign national instructing them to appear before an immigration judge for removal proceedings – in the following circumstances:

  • Where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits;
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability;
  • Where USCIS denies an Application for Naturalization on good moral character grounds because of a criminal offense;
  • Upon the denial of an application or petition, when an applicant is unlawfully present in the U.S.

This new policy is expected to dramatically impact a wide range of foreign workers, students, and U.S. employers. While historically NTAs have rarely been issued to employment-based visa applicant’s after the denial of an application, this policy shift appears to fall in line with President Trump’s executive orders focused on immigration enforcement and prosecution

Examples of employer-sponsored foreign nationals who may now be subject to removal proceedings include:

  • Individuals who have their application to extend or change to H-1B, L-1, or other nonimmigrant visa status denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Individuals who have their application to change employers denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Students who have their applications to extend their F-1 status or applications to change status to H-1B denied, and who have now fallen out of status under their student visa.
  • Individuals who have their application for either employment-based or family-based adjustment of status to permanent residence denied, and who now no longer have any nonimmigrant status.

While it is not clear how USCIS will implement these new guidelines, this change will nevertheless likely affect the lives of many individuals who have lived and worked in the U.S. lawfully for years. Foreign nationals that receive an NTA are advised to speak to qualified counsel to handle this sensitive matter. For questions on this or any immigration matter, please feel free to contact me.

Potential Changes to High-Skilled Immigration Programs in 2018

The Trump administration’s future immigration intentions were recently announced in their semi-annual Unified Agenda. The Unified Agenda lists possible regulations under development by federal agencies for the coming year. The announcement indicates the administration’s plans to undo Obama administration immigration benefits and impose tighter restrictions on nonimmigrant visa categories, such as the H-1B, H-4, and Optional Practical Training (OPT) for F-1 students.

The agenda specifies the administration’s intent to make the following policy changes in connection with Trump’s “Buy American, Hire American” executive order:

  • H-1B Eligibility: Redefining what a “speciality occupation” is for H-1B visa purposes to “increase the focus on truly obtaining the best and brightest.” The proposal would also “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” This includes “additional requirements to ensure employers pay appropriate wages to H-1B visa holders.” The rule would also impose additional restrictions on H-1B dependent employers that rely on large H-1B workforces and those employers who have H-1B employees working off-site.
  • H-1B Lottery: Revising the H-1B visa lottery system to establish an electronic pre-registration program for cap-subject H-1B applicants, and tweaking the electronic lottery selection process to award visas to the “most skilled or highest-paid petition beneficiaries.”  
  • H-4 Work Authorization: Elimination of the regulation that allow H-4 visa holders (spouses of H-1B visa holders) to apply for work authorization. The Trump administration has previously indicated its intent to remove this Obama rule which has provided work permits to thousands of H-4 spouses.
  • OPT for F-1 Students: Reforming the OPT program for foreign students (which allows international students to work in the U.S.) in order to reduce fraud and improve protections for U.S. workers who may be impacted by employment of foreign students. Plans include limiting student work opportunities and terminating Obama’s STEM-OPT extension rule, which provides extended work authorization for foreign students with U.S. STEM degrees, from 17 months to 24 months.  

These announcements do not currently modify or rescind any of the above mentioned immigration programs, and any changes to immigration policy can only be accomplished through notice and comment of proposed rulemaking in the federal register. This means that individuals and companies that may be affected by potential policy changes will have an opportunity to submit comments to the government before the policy becomes effective. The notice/comment process can typically take in excess of 6 months, which means the administration may not have enough time to enact changes to the H-1B visa program in time for this year’s filing season (which begins on April 2, 2018). 

As always, individuals and employers who may impacted by any of these potential changes should contact us with questions on how to best prepare.

Guidance for Trump's New Travel Ban

President Trump has rolled out a new travel ban, after the previous 90-day travel ban expired yesterday.  This new policy continues the existing travel restrictions to the U.S. for most citizens of Iran, Libya, Somalia, Syria and Yemen, and now adds the countries of Chad, North Korea and Venezuela.  The new restrictions range from full travel bans on nationals from countries like Syria, Chad, and North Korea to more targeted restrictions for Venezuela, Iran, Libya, and Yemen.  For example, the suspension of nonimmigrant visas to citizens for Venezuela, applies only to senior government officials and their immediate families.  Iranian nationals will only be allowed to enter the U.S. using valid student and exchange visitor visas, but such visitors will have to undergo "enhanced screening and vetting requirements."

These news restrictions, which will take effect on October 18, 2017 and will be in place for an indefinite period of time.  The order does not apply to lawful permanent residents, existing visa-holders, or foreign nationals currently within the United States.  The Department of Homeland Security may also grant waivers on a case-by-case basis for students and workers with significant U.S. ties who happened to be outside the country when the order was enacted, among others.

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 countries listed in this new travel ban, do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of these countries.
  2. If you have a non-immigrant visa 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.
  3. Consideration should be given to accelerating any immigration planning (i.e. extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these policies may continue to become more restrictive.

As evidenced by the prior travel bans, the current administration is intent on restricting travel to the U.S..  Once again, I sympathize with the fear and uncertainty many 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.

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.

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.

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.

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.

Immigration Guidance for Trump's Executive Orders

Three Executive Orders were issued by President Trump last week – one related to the building of a wall along our border with Mexico, one related to enhanced immigration enforcement and one related to a travel ban for citizens of certain countries and limitations on refugees.  These actions have been drastic in terms of their impact as well as vague in terms of how they will be applied.  As a result of these actions, many in the immigrant community are confused and scared – I understand! 

I am writing this to help you navigate these turbulent waters.  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 “seven countries” listed on the Executive Order (Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen), do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of the “seven 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 you 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.

The Benefits of Obama’s Executive Order for Employment-Based Workers & Entrepreneurs

Amongst the details of President Obama’s executive order to improve the U.S. immigration system, we expect to see improvements affecting employment-based immigrants and entrepreneurs.  These improvements may include:

  1. The ability for employment-based immigrants to apply for adjustment of status (“green cards”) before an immigrant visa number is available for them under the annual immigrant visa quota;
  2. Increases in the employment authorization periods for STEM Optional Practical Training (OPT) graduates;
  3. Improvements to the PERM labor certification program for possibly “premium processing” and more modern recruitment methods and media;
  4. Employment authorization for H-4 spouses of H-1B holders;
  5. Guidance on L-1B specialized knowledge professionals;
  6. Guidance on the National Interest Waiver (NIW) program by entrepreneurs, inventors, and innovators;
  7. Parole opportunities and work authorization for entrepreneurs and inventors

Obama’s Immigration Order Will Benefit Millions of Undocumented Workers & Families

President Obama has announced a new “deferred action” program for undocumented aliens who have been living in the U.S. for at least five years, have at least on U.S. citizen or lawful permanent resident child, register with the U.S. government, pass a series of background checks and pay their taxes.  This executive order will likely provide work authorization for as many as five million undocumented aliens.

The details of this executive order will be released in the coming weeks and may include processes to speed up the permanent residency process for highly-skilled foreign workers and entrepreneurs, as well as work authorization for spouses of certain H-1B visa holders.