• Trump Enjoys Partial Victory in Travel Ban

    Yesterday, the U.S. Supreme Court issued a decision to temporarily allow limited portions of President Trump’s Travel Ban to remain in effect.  Individuals who fail to demonstrate a “bona fide relationship with any person or entity in the United States” would be temporarily blocked from receiving a visa if they are citizens or nationals of the six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Bona fide relationships include individuals who are coming here for school, for work, or have substantial connections to existing family members in the United States.

    What does this mean for folks with no previously established connection to family, school or work in the U.S.?  If they are nationals from any of the above countries, there’s a good chance their visa applications would be halted for the time being.

    The unsigned Supreme Court opinion also provides a glimpse into the near future into the direction the Court may lean when making a final decision on the constitutionality of the President’s Executive Order.  The Court will hear oral arguments later this October but in its recent opinion yesterday, it indicated agreement with the lower courts so far.  If the travel ban remains in effect at that time, we’ll see a real show-down between the President and the Supreme Court. Stay tuned!

  • Why Every Immigration Case Needs a Good Credential Evaluation

    Today, we bring you a guest article authored by Shail Sturm, Manager at Park Evaluations, to discuss how credential evaluations are an important component in preparing successful immigration petitions to U.S. immigration.

    In the context of immigration, foreign academic credential evaluators are critical in evaluating higher education degrees obtained abroad. Some of the most popular work-based visas require educational degrees. A bachelor’s degree obtained in one country may not always equate to a bachelor’s degree obtained in the U.S. Today, we demystify the evaluation process by looking at the tools evaluators use to assess academic equivalency to a U.S. bachelor’s degree.

    UNITED STATES BENCHMARK

    In the U.S., primary and secondary school education starts with Kindergarten and lasts through 12 levels (or grades). The final four years (9th-12th grades) are called “high school.” Beyond that, students pursue secondary education at a two-year college, or four-year college or university.  The standard undergraduate bachelor’s degree usually requires four years of undergraduate study. Therefore, most foreign credentials are based on the four-year standard bachelor’s degree in the U.S.

    Foreign bachelor’s degrees that are a three-year program are usually not sufficient to be evaluated as the equivalent of a U.S. bachelor’s degree.  This is the common problem encountered with Indian bachelor’s degrees.  However, some three-year academic programs may equate to a U.S. bachelor’s degree.  For instance, a three-year degree from the United Kingdom, or Israel, can equate to a U.S. bachelor’s degree if you factor in the total requisite years of study for entry into the three-year program.  As foreign academic credential evaluators, we have precisely some of those tools at our disposal.

    AACRAO EDGE

    AACRAO (American Association of Collegiate Registrars and Admissions Officers) developed the Electronic Database for Global Education (EDGE). This database collects and analyzes data for degrees from around the world.  It categorizes the educational certificates and degrees from various countries around the world. Because USCIS has adopted the EDGE database, this tool has become indispensable to evaluators.

    CASE STUDY: AUSTRALIA

    In the U.S., the standard prerequisite for entrance to a college or university are entrance exams and/or completion of high school requirements.  In other countries, the requirements for entering university are different.

    For example, Australian students receive Technical and Further Education certificates (TAFEs). These certificates are designated by their levels: TAFE I, TAFE II, TAFE III, and TAFE IV and are the equivalent of a U.S. high school diploma.  However, because the certificates denote “further education” in its titling, it can lead to an erroneous conclusion by some that the certificates are the equivalent of a university-level degree.  While some of the certificates may reflect completion of undergraduate coursework, that alone would not normally equate to the equivalent of an undergraduate U.S. degree.

    In Australia, the length of a bachelor degree program can vary from three years to seven years of coursework. Some Australian bachelor’s degrees may even equate to a U.S. master’s degree, while other bachelor’s degree programs equate to a few years of college coursework in the U.S. It all depends on the length and robustness of the degree program.

    GENERAL TIP FOR EMPLOYERS AND FOREIGN CANDIDATES

    A common rule of thumb is that a bachelor’s degree with at least four years of continuous undergraduate study is usually considered equivalent to a U.S. bachelor’s degree.  If the degree program doesn’t meet this test, then accruing relevant work experience can also be helpful towards establishing the equivalent of a U.S. bachelor’s degree based on combined work and academic experience.

    ABOUT OUR GUEST AUTHOR

    Shail Shurm grew up in Canada.  His grandparents emigrated from both Germany and Hungary.  Immigration has been a steady focus in Shail’s life. He has been working with Park Evaluations for the past 3.5 years and has a passion for assisting attorneys and foreign nationals navigate the complexities of credential evaluation for U.S. immigration matters.  Shail can be reached at shail@parkeval.com.

  • Executive Order on H-1B Signed Despite Decreased H-1B Petitions Filings

    On April 17, 2017, USCIS announced it received just under 200,000 H-1B petitions.  Speculation is circulating this year as to why the significant decrease in H-1B petitions.  The most likely reasons are probably the most obvious: a shift in our economy and a shift in how companies are conducting business.  Notwithstanding, the President still signed an Executive Order yesterday highlighting the need to reform the H-1B program.

    Shift in Our Economy & Business Practices

    It’s no surprise that since the November election, the protectionist rhetoric stemming from the White House has been strong and increasing in volume.  No doubt this has had an effect on not just foreign job seekers, but also on U.S. companies considering how to balance their global workforce.  Should they stay in the U.S. and continue to struggle to hire high-skilled workers amidst this anti-immigrant sentiment coming straight from the administration?  Or should they develop subsidiaries in immigration-friendly countries (like Canada) and move a good portion of their workforce there, resulting in a loss of jobs in the U.S.?

    On the other hand, market forces may also be at play, forcing a significant dip in the number of H-1B petitions this year.  This may well be the harbinger of an economy that is downshifting gears.

    Executive Order “Buy American Hire American”

    Despite the changes in our economy, we hear the same resounding sentiment from this Administration: the H-1B Program Needs to Be Revamped.  Of course, anyone who knows anything about the H-1B program would agree; but many can’t agree on how to revamp the program.  Yesterday’s Executive Order “Buy American Hire American”, while grandiose in its release, lacked substance in its execution.  The order merely instructs various federal agencies to conduct research and make recommendations on changes to the program, as soon as possible.  In other words, a big snoozer, if you ask me!

    The interesting irony is that the company that hosted the signing of the Executive Order, Snap-On Inc., is actually a great example of how successful the H-1B program can actually be.  In fact, it is representative of many U.S. employers who employ a small fraction of high-skilled foreign workers as part of its U.S. workforce, in order to continue to innovate and grow.

    Almost 1,500 economists recently banded together to sign a letter about the critical benefits that immigration brings to the U.S.  This, coming from experts in how our market forces work and what will make our country prosperous!  And yet… it seems the cry has gone unheeded.

     

  • Can President Trump Unilaterally Change the H-1B Program?

    There’s a lot of chatter about changes to the H-1B program much of which are based on rumors and not facts; these include a rumor about a draft Executive Order that would alter this popular visa program, and various statutes introduced by Congress to revise the H-1B program.  However, as of today, nothing has actually changed about the H-1B program.  In fact, USCIS will be accepting H-1B petitions for the lottery this year starting April 3, 2017.  That’s less than a week away.  So why all the confusion and chatter?

    There’s uncertainty because there’s a grave lack of understanding as to how our immigration rules work, and what powers a President may have to change existing H-1B laws.

    Why the Law Matters

    The H-1B visa’s existence is because of a statute.  Congress passed multiple bills in the last century concerning immigration that eventually became laws of our land.  The last iteration on H-1B visas was revised in 2004, and provided for how many H-1B visas were to be issued, what types of fees would be paid, and what wage requirements would need to be paid to foreign workers.

    If the H-1B visa program exists because a statute was passed and signed into law, then the program shall too be altered or cease to exist by the same method.  Hence, that’s why you have various politicians angling to introduce bills that may someday get passed, signed into law and become a new statute to supersede the latest one.

    Congress creates.  Therefore, Congress must alter or destroy.  (Last time I checked, Congress had a really hard time agreeing on anything much….)

    Then Why the Talk about Presidential Executive Orders?

    Some might wonder why all the talk about Executive Orders if Congress controls what ultimately happens to the H-1B program.

    In any given statute, there will be certain portions that aren’t explicitly written in detail.  When this happens, the statute will typically and explicitly designate a federal authority to “fill-in-the-blanks” by empowering them to establish regulations that will help execute the intent of the law.  It is under this vein, that the U.S. President can provide guidance, priorities, and direction to those designated federal authorities.

    Under the current immigration statute, though, there’s not very much room for maneuvering by the President.  The statute requires employers to pay H-1B workers at least the prevailing wage.  Also, if the prevailing wage is made available to the public (which it is), then the prevailing wage must contain at least 4 levels of wages.

    Theoretically, there could be room to impose a filing fee for the Labor Condition Application (a prerequisite filing with the Department of Labor prior to submitting an H-1B petition to Immigration).  There could also be room for the Department of Labor to require an employer to conduct a labor market test (force employers to advertise to hire U.S. workers only), before it would agree to certify a Labor Condition Application.  Theoretically, the President could impose this in an Executive Order.  Though, both plans may fail if challenged in court, simply because it may exceed the authority of the Agency, since Congress did not contemplate these processes in the statute.

    Therein lies the challenge with the how much power a President could wield through an Executive Order.  The President’s primary role is to guide federal agencies in carrying out the law.  Until Congress can act to reform the laws, we may not see very much change with the H-1B program yet.

  • President Trump Issues Newly Revised Travel Ban

    President Trump signed a revised Executive Order, Protecting The Nation From Foreign Terrorist Entry Into The United States, March 6, 2017.  The Executive Order re-issued a new travel ban for international travelers.  This time, only six countries made it to the list.  Iraq was bumped off due to some heavy political diplomacy and maneuvering on the part of its leaders.

    What Purpose Does the revised Travel Ban Serve?

    The travel ban is meant to put a pause on certain foreigners entering the U.S. from various countries, in order to allow the government a chance to review existing security measures to determine if those measures are adequate to properly screen foreigners for terrorist related activities and their threat to the U.S.

    Which Countries Are Impacted by the Travel Ban?

    Six countries have been outlined to be impacted by the travel ban.  Individuals who are nationals (or citizens) of any of these six countries are impacted: Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    Iraq was removed from this revised travel ban.

    When Does the Travel Ban Go Into Effect?

    This new, revised travel ban goes into effect on March 16, 2017 at 12:01am Eastern Daylight Time.

    Which Individuals Are Impacted by the Travel Ban?

    Individuals who are nationals or citizens of the six countries who meet all three of the following criteria are subject to the travel ban:

    1. Is outside of the United States as of the Effective Date;
    2. Does not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and
    3. Does not have a valid visa on the Effective Date.

    Which Individuals Are Excepted from the Travel Ban?

    The following individuals are NOT impacted by this revised travel ban:

    • Lawful permanent residents in the U.S. (aka greencard holders)
    • Individuals who have been admitted to, or paroled into the U.S. on or after the Effective Date
    • Individuals who have received permission to travel to the U.S. (such as an advanced parole document) issued on or after the Effective Date
    • Dual-national individuals traveling to the U.S. using their non-designated country passports. (For example, an individual who holds a French passport and an Iranian passport who is seeking to enter the U.S. using the French passport is not subject to this travel ban.)
    • Foreign diplomats traveling on a C-2, G-1, G-2, G-3 or G-4 visas
    • Individuals granted asylum status, refugee status, or protection under the Conventions Against Torture are not impacted by this travel ban

    Waivers for the Travel Ban?

    This revised travel ban also carves out areas where consular and customs officers may grant visas/entries to individuals who would otherwise be subject to the travel ban, on a discretionary basis.  The individual must have been determined not to be a national security threat and a denial of entry would otherwise cause undue hardship to the individual.  The waivers may be applicable under the following circumstances:

    1. Previously admitted individuals who were working, studying or conducting other long-term activity in the U.S. prior to the Effective Date of the new travel ban
    2. Foreign nationals entering the U.S. to pursue work, study or other lawful activity
    3. Foreign nationals entering the U.S. to pursue significant business or professional obligations
    4. Foreign nationals entering the U.S. to visit or reside with close family members who are U.S. citizens, lawful permanent residents, or individuals otherwise lawfully admitted to the U.S. in non-immigrant status
    5. Foreign nationals who are young infants or children requiring medical care
    6. Foreign nationals employed by or on behalf of the U.S. government
    7. Foreign nationals traveling to the U.S. for purposes related to an international organization designated by the International Organizations Immunities Act (IOIA)
    8. Landed Canadian immigrants with a valid visa
    9. Exchange visitors sponsored by the U.S. government

    How Long Will the Travel Ban Last?

    The travel ban will last 90 days from the Effective Date.  (There are separate sections regarding refugees on this travel ban that suspends admission of new refugees into the U.S. for 120 days from the Effective Date.)

    Course-Correction For Previously Banned Individuals?

    Fortunately, the revised travel ban clarifies that any individual whose visa was previously revoked as a result of the first travel ban, would be entitled to a travel document to the U.S.  The Executive Order 13769 (the first travel ban) would essentially be revoked on the Effective Date of this revised travel ban.

    ***

    Stay tuned for more details on how Presidential executive power impacts immigration rules, laws, and regulations.

  • NPR Talks H-1Bs with Immigration Attorney Ann Cun

    The topic of H-1B Visas has been on the top of many lawmakers’ minds.  On Monday, February 13, 2017, National Public Radio’s All Things Considered Host Robert Siegel interviewed Immigration Attorney Ann Cun to discuss why U.S. tech employers opt to hire foreign workers.

    Listen to the broadcast below.

    One of the most interesting portions of the conversation, which did not air, occurred when NPR host Robert Siegel inquired about whether NPR had also hired H-1B workers and if there was a way to find this out.  After some research on the internet, it turned out NPR had indeed submitted a few applications in 2016 to the Department of Labor in connection with what would eventually become a part of any H-1B petition that would have been submitted to the U.S. Citizenship and Immigration Services.  This fact was eventually spliced into the segment airing at the very end.

    The ubiquity of the H-1B visa would actually surprise many of its critics.  While many critics bemoan a program that is [allegedly] wrought with abuse by U.S. employers, critics would also be surprised at how entrenched our society has become in our reliance upon technology, therefore necessitating high-tech workers, even if they are foreign-born. These industries include restaurants and hospitality, traditional retailers, news corporations, entertainment companies, as well as the service providers like consulting companies.  In fact, many of the news corporations that often report on the complexities of the H-1B visas also rely on H-1B workers themselves (i.e.: Viacom, CBS, Comcast, Fox, Time Warner, Time Inc., and Hearst).  That’s because technology plays a vital role in how consumers digest information.

  • Four Immigration Bills Impacting H-1B Workers

    The H-1B program as we know it may be changing in the near future but just how quickly those changes occur will depend largely on how quickly Congress can review and vote on the bills.  As of today, four bills have been introduced (and reintroduced) by various congress-people.  As a reminder, a bill has no immediate impact on existing visa programs until the bill has been signed into law.  That, is inherently the challenge with our government.  (Click here for details on how bills become law.)

    Bill #1: H.R.170 Protect and Grow American Jobs Act

    Introduced on January 3, 2017 by Rep. Darrell Issa (R – CA)

    The bill has a limited scope applicable only to H-1B dependent employers.  H-1B dependent employers employ

    • ≤ 25 full-time employees, of whom 8 or more are H-1B workers; or
    • 26 – 50 full-time employees, of whom 13 or more are H-1B workers; or
    • 51 or more full-time employees of whom 15% or more are H-1B workers.

    (Full-time employees are individuals who work 35 or more hours per week according to the rules set by the U.S. Department of Labor.)  Currently, employers who are dependent on H-1B workers must undergo additional recruitment of U.S. workers and attestations in order to continue to hire H-1B workers.  In order to bypass those additional requirements, H-1B dependent employers may attest to paying their H-1B workers $60,000 per year or more, or hire individuals who hold a master’s degree or a higher degree.  Under H.R. 170, the bill would raise the $60,000 minimum to $100,000 and eliminate the master’s degree option entirely.  The impact of the bill is aimed squarely at H-1B dependent employers and would have little impact on most U.S. employers generally.

     

    Bill#2: H.R. 392 Fairness for High-Skilled Immigrants Act of 2017

    Introduced on January 10, 2017 by Rep. Jason Chaffetz (R – UT) and 24 other co-sponsors with a total of 66 co-sponsors to date (as of February 12, 2017).

    Current immigration quotas (as set by Congress) dictate that no more than 140,000 greencard (visas) be issued per fiscal year for those being sponsored through employment, and no more than 226,000 greencards be issued for those being sponsored by family.  In addition, no country may be issued more than 7% of the quota total per fiscal year (this additional rule is called the per country limitation rule).  In practice, the per country limitation rule has created significant backlogs in the “greencard line” for many individuals emigrating to the U.S. from countries like China, India, Mexico and Philippines.  In fact, its not uncommon for a Canadian to be instantly eligible to apply for a greencard whilst their Indian counterparts must wait 8 years or greater for the same employment category.

    H.R. 392 seeks to remove entirely the per country limitations for individuals seeking a greencard based on employment sponsorship.  This would help to speed up the waiting periods for those immigrants who have been waiting for years.  Their ability to obtain greencards would also promote greater job portability.

    For individuals being sponsored by family members, the bill seeks to raise the per country limitation from 7% to 15%, which would also alleviate some of the waiting periods for individuals.

    The bill also removes caps for Chinese Students seeking to immigrate to the U.S.

    Although the bill does not directly seek to change the H-1B program, if passed, its impact would trickle over to H-1B visa holders.  It levels the playing field for all immigrants waiting for their greencards to be approved, regardless of which country they were born.  Rather than having to rely on one employer to sponsor an H-1B for multiple years (8+ years for Indian nationals), workers may have a much shorter waiting period for their greencards.  Faster greencard processing times means greater job mobility for workers means greater competition for skilled labor.

     

    Bill #3: S.180 H-1B and L-1 Visa Reform Act of 2017

    Introduced on January 20, 2017 by Sen. Chuck Grassley (R – IA), Sen. Dick Durbin (D – IL), Sen. Sherrod Brown (D – OH), Sen. Richard Blumenthal (D – CT)

    S.180, as introduced, would revise the H-1B program in many ways.

    1. It would impose priorities on how the H-1B visa is allocated with priority given to advanced degree holders in STEM fields.
    2. All H-1B workers would be required to obtain a U.S. degree (or a foreign equivalent).
    3. Employers would be required to pay a fee to submit a Labor Condition Application to the U.S. Department of Labor. (There is currently no fee.)
    4. The U.S. Department of Labor would be empowered to demand employers comply with the rules (or face penalties) and conduct investigations based on fraud or non-compliance (for both H-1B and L-1 workers) and provide U.S. Citizenship & Immigration Service with any documentation necessary to investigate employer non-compliance.
    5. The U.S. Department of Labor would be required to conduct annual audits of companies with 100 or more employees if more than 15% of those employees are H-1B workers.
    6. The U.S. Department of Labor may hire additional 200 employees to administer its H-1B program.
    7. The H-1B program would be reduced from 6 to 3 years. A 3-year extension would only be allowed for workers who can demonstrate extraordinary ability or have advanced degrees or who are professors.
    8. Consulting companies are specifically excluded from utilizing the H-1B visas for its workers.
    9. Employers would face stiffer penalties for displacing U.S. workers with H-1B workers and face additional penalties for employee lost wages and benefits.
    10. Employers would no longer be able to hire L-1B workers based on specialized knowledge for more than one year, if the worker will be placed at a third-party site rather than the employer’s worksite, unless a waiver has been obtained from the U.S. Department of Labor.
    11. Employers may not replace a U.S. worker with an L-1 worker.
    12. Additional rules will be imposed for L-1 workers, including work location, minimum salary rates, working conditions and employer penalties.

    Of the four bills indicated in our article today, this bill is the most ambitious in revising the H-1B program.  It imposes lots of penalties and changes to both the H-1B program and the L-1 program and seeks to eliminate an entire industry (consulting companies) from existence in the U.S.  Moreover, the attempts to remove as many business operating decisions from the discretion of employers.

    The bill, if enacted into law, would be prospective, but it doesn’t clarify what would happen to the hundreds of thousands of H-1B workers in the U.S. who had previously qualified for H-1B status based on years of experience in the field (or a combination of experience and education).  Moreover, it leaves open as to how foreign degrees would be determined to be the equivalent of a U.S. degree, when many countries operate on a three-year university degree whilst the U.S. uses the four-year standard.

    We’ll dig deeper into some additional questions this bill raises (more than it answers) so stay tuned to this blog.  If you have questions, feel free to leave us a comment.

     

    Bill #4: H.R.670 High Skilled Integrity and Fairness Act of 2017

    Introduced on January 25, 2017 by Rep. Zoe Lofgren (D – CA)

    H.R. 670 also attempts to raise the bar for employers seeking H-1B visas for their workers.  Unlike S.180, which whacks all business necessity rationale out of the H-1B and L-1 programs and imposes heavy-handed rules, H.R. 670 uses a market-based approach. If employers really want to hire a skilled worker, they must pay for it!

    1. Wages for H-1B workers will go up but a lot! Rather than use the 4-tiered system currently in place, the U.S. Department of Labor will be required to conduct a new survey using three tiers.  Based on those three tiers, employers who pay the most (i.e. X% of Tier 3 wages) will receive priority for hiring H-1B workers.  (I’m oversimplifying the math for brevity’s sake.)
    2. The bill also factors in much of what H.R. 170 (above) proposes, by raising the H-1B dependent-employers exemption from $60,000 to almost $130,000 and also eliminating the master’s degree allowance.
    3. The bill also factors in H.R. 392 (above) by removing the per-country limitations as well for employment-based immigrants.
    4. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employees) to ensure small businesses have a chance to compete for high-skilled workers.
    5. Removes hurdles to allow F-1 students to apply for a greencard.
    6. Requires employers to legally make available copies of the H-1B petitions to their workers as well as all approval notices.

     

    It will take a long time for Congress to convene and the bills to traverse its way through committees, subcommittees and debates.  In other words, it will be a while before the bills have any actual impact on H-1B workers or U.S. employers but don’t be surprised by surprises.  This year is proving to be very eventful.

    ***

    Some of you might also be pondering the big question of what would happen if President Trump issues an Executive Order that impacts that the H-1B program.  How quickly would the program be revised?  Would salaries be impacted?  Would it impact this year’s H-1B lottery?  Want to learn more?  Stay tuned for an update by subscribing to our blog.

  • Alert: Travel Ban for Citizens of 7 Countries

    [Scroll down to read updates to this post – Travel Ban temporarily halted nationwide by Seattle Judge and upheld by the Ninth Circuit on appeal.]

    On Friday January 27, 2017, President Trump issued an Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States.”  *** Update: As of 1/30/2017  17:00 PST – The EO was only recently made available on the White House website, available here, despite its January 27, 2017 date.***

    The EO is meant to “protect our citizens from foreign nationals who intend to commit terrorist attacks in the United States” and “prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”  One of its provisions suspends the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order.  Designated countries, thus far, include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

    The impact of this suspension means that individuals from those seven countries will not be allowed to enter the U.S. Reports from news organizations indicate the EO is impacting foreign travelers en route to the U.S.  The Department of Homeland Security has not issued any statements or guidance to the public to clarify the situation.

    The State Department posted instructions to embassies and consular posts worldwide to immediately suspend issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  Customs and Border Protection (CBP) is preventing entry of foreign nationals, including U.S. greencard holders who are citizens of those seven countries from entering the U.S.

    INDIVIDUALS “FROM” IRAN, IRAQ, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN.

    Lawful Permanent Residents (LPR or green card holders), nonimmigrant visa holders, immigrant visa holders, refugees, derivative (family member) asylees, or those with Special Immigrant Visas (SIVs), have been allowed to enter the U.S. on a case-by-case basis – but reports from various organizations and immigration attorneys indicate otherwise.

    DUAL NATIONALS

    Individuals who are nationals from one or more of the designated seven countries who hold citizenship to another country may still be barred from entering the U.S.

    GREENCARD HOLDERS

    There are varying reports of individuals who are legal permanent residents who are citizens of any of the seven countries being denied entry into the U.S.  DHS is providing conflicting reports at various airports on whether they are enforcing the EO with regards to greencard holders.

    INDIVIDUALS DENIED ENTRY AS A RESULT OF THE EO

    Foreign Visitors attempting to enter the U.S. on a temporary visa arriving at U.S. ports of entry will be allowed to withdraw their application to enter the U.S.  They may return to their countries on their own accord.  Those who refuse will be deported (aka processed for expedited removal).

    UPDATED AS OF FEBRUARY 4, 2017 (16:00 PST)

    On February 9, 2017, the Ninth Circuit issued a denied the President’s appeal to reverse the temporary restraining order imposed by Judge Robart.  The decision allows the travel ban to be halted indefinitely, until the lower District Court can substantively rule on the merits of the case brought by the States of Washington and Minnesota.

    On February 4, 2017, The Department of Homeland Security announced that it has temporarily suspended all enforcement of the Travel Ban imposed by President Trump’s Executive Order as a result of Friday’s ruling by U.S. District Judge James Robart.  Airlines have reportedly been allowing passengers to board flights again.  The Department of State also announced that it had electronically reinstated any visas that were previously revoked as a result of the Travel Ban.

    On February 3, 2017, U.S. District Judge James Robart issued a ruling halting the enforcement of the Travel Bank imposed by President Trump’s Executive Order of January 27, 2017 in the case filed by the State of Washington against the President (at 1:03:00 of the video, text available here.)  The ruling is effective nationwide but temporary.

    On January 31, 2017, DHS Secretary John Kelly is walking back his earlier statements, “clarifying” that the DHS was in full communication with the White House on the EO.  Also, the State of Washington has filed a lawsuit against the President for constitutional violations by this EO.  Its lawsuit is supported by Amazon and Expedia.  California tech giants Google, Netflix and AirBnB also considering filing lawsuits.  Acting U.S. Attorney General Sally had indicated she would decline to enforce the EO in court but was quickly fired by President Trump for these public remarks.

    On January 30, 2017, WhiteHouse.Gov finally published the text of the EO.  There are reports that Greencard holders are being pressured to give up their greencards and sign immigration forms.  It is recommended that greencard holders consult with an immigration attorney before signing any documents presented by U.S. Customs officers; or in the alternative, to refuse to sign any documents to which they may lose their rights.

    On January 29, 2017, DHS Secretary John Kelly confirmed that all Customs Officers will respect the orders from the courts and will allow all greencard holders to enter the U.S. despite the travel ban for individuals from those seven countries in the form of a waiver.  This was published on January 30, 2017

    On January 28, 2017, a federal judge issued an emergency stay, which prevented a portion of the EO from being enforced by DHS Customs Officers.  Essentially, Customs Officers may not prevent refugees, holders of valid immigrant and nonimmigrant visas and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen legally authorized to enter the United States who were en route to the U.S. at the time the EO went into effect.  At least two similar temporary court orders were by Federal District Courts in Massachusetts and the Eastern District of Virginia.

    The travel ban remains in effect for the next 90 days unless challenged in court.

  • Summary of Final Rule for Employment-Based Visa Programs Issued by USCIS on November 18, 2016

    USCIS recently issued a Final Rule on its employment-based immigrant and non-immigrant visa programs.  The Final Rule becomes effective on January 17, 2017.  Here are some highlights of the final rule for employers and foreign nationals:

    1. Priority Dates

    Clarified that priority dates are issued at the time it was properly filed. Also indicates that for retention of priority dates from EB-1, EB-2 or EB-3 petitions, employees may now use previously issued priority dates for porting to another employer. Finally, priority dates cannot be transferred to other individuals.

    2. Employment Authorization

    Employees in E-3, H-1B, H-1B1, O-1 and L-1 nonimmigrant status with an approved EB-1, EB-2 or EB-3 I-140 petition may request employment authorization for up to one year, if the priority date is not current, under compelling cases. Spouses and children may also apply. Renewals may also be permitted for both the principal employee and his/her family members.

    3. Revocations

    Approved I-140 petitions will no longer be automatically revoked by USCIS based on a withdrawal from the Petitioner, if the I-140 has been approved for 180 days or more. So long as there was no fraud, material misrepresentation or other invalidating purposes, the approved I-140 petition will be valid for job portability, retention of priority dates and extensions under AC21.

    4. Grace Periods

    E-1, E-2, E-3, H-1B, L-1, and TN nationals and their dependents now get a 10-day grace period. For those holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status whose employment has ended, they may receive a grace period of up to 60 days.

    5. Licensure

    For those H-1B applicants stuck in a catch-22 who cannot obtain a license to engage in the relevant occupation because of a lack of social security number or work authorization, DHS will issue the H-1B petition for up to one-year to facilitate the licensure rule.

    6. H-1B Cap Exempt Employers

    Clear definition for which organizations qualify as an “institution of higher education” and “related or affiliated nonprofit entity.”

    7. H-1B Extensions based on AC21

    Employees may request an extension beyond the six years of H-1B, in one-year increments, if the underlying labor certification application or employment-based immigrant visa petition has been pending for more than one-year. Extension requests may be submitted six-months in advance of the start date. The employee must file for their greencard applications within one year from the date the priority date is current, or they risk losing the ability to seek future H-1B extensions in one-year increments. Employees need not be in H-1B status to be eligible for extending their H-1B for three additional years beyond the six years.

    8. Retaliation

    For employees who reported LCA violations and switched employers, the new employer may attach documentation of these extraordinary circumstances to mitigate failure by the employee to maintain status at the prior job.

    9. Proof of Valid Job Offer

    All greencard applicants with an approved I-140 petition must prove their job offer is valid and pending at the time the application is reviewed by a USCIS officer.

    10. EAD Automatic Extensions

    Applicants of timely filed extensions for EADs requesting the same EAD category, unencumbered by other dependent status petitions or applications, will receive an automatic extension of their EADs for 180 days from the date of the initial EAD expiration. If the EAD application is denied, the 180 days is terminated. USCIS will issue a Notice of Action (Form I-797) granting an additional 180 days employment authorization. This document, along with the expired EAD, may be used as proof of work authorization for Form I- 9 employment verification. Employers should reverify upon expiration of the 180 days. USCIS will no longer be bound by the rule to issue EADs within 90 days.

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    The above summary is for educational purposes only and is not intended to be legal advice. Please be sure to touch base with an experienced immigration attorney for a discussion as to how the new rules may impact you or your company. Subscribe to our blog for more updates and articles!

  • Implications of Retired General John Kelly’s DHS Secretary Nomination

    On December 7, 2016, President-Elect Trump unofficially announced retired Marine General John Kelly as his nominee for the cabinet position of Secretary of the Department Homeland Security (DHS).  Who is John Kelly and what does this mean for immigration in the U.S. for the next four years if he is confirmed as the new Secretary?

    Who Is General John Kelly?

    General John Kelly served in the Marines for over 40 years.  He is a Gold-Star Father who lost his youngest son, Marine 1st Lt. Robert Kelly in 2010 while in Afghanistan during combat.  General Kelly’s last post was serving as U.S. Southern Command in 2012 managing security threats from South and Central America.  He’s also been at odds publicly with President Obama on the handling of Guantánamo Bay operations.

    Based on his history of managing security threats for the U.S. Southern Command, General Kelly is described as vigilant and familiar with the practical threats posed from the south.  He’s pursued strategies described as “soft power” rather than imposing overt military force on security threats like organized crime and drugs to protect the southern borders.  It is this expertise from which General Kelly can draw if he heads up the DHS.

    How Will General John Kelly Lead the DHS?

    The good news is that reports indicate General Kelly has been in contact with the current Secretary of Homeland Security, Jeh Johnson.  The bad news is if the General is confirmed, he’ll inherit a troubled agency comprised of seven different sub-agencies.

    Customs and Border Protection

    One of the promises Trump campaigned on was to build (or extend) a wall between the U.S. and Mexico.  As Secretary, General Kelly will have to explore how this campaign promise can be accomplished.  Which stretches of the U.S.-Mexico border will receive a “wall”?  The Customs and Border Protection agency has been faced with sagging morale and additional walls without strategic interior enforcement efforts may be an exercise in futility.

    Immigration and Customs Enforcement

    In his acceptance for the nomination, General Kelly said

    The American people voted in this election to stop terrorism, take back sovereignty at our borders, and put a stop to political correctness that for too long has dictated our approach to national security. I will tackle those issues with a seriousness of purpose and a deep respect for our laws and Constitution.

    While it is premature to be speculating, it does beg the question where a Muslim Registry would fit into the constitutionality of the laws of this country. Does General Kelly and President-Elect Trump see eye-to-eye with an ethnic registry?  When it comes to national security, would prosecutorial discretion have a place when Immigration and Customs Enforcement is out arresting individuals?  Would our deserts be propagated with an influx of detention centers as a means to house the millions of detained immigrants?  These are the issues General Kelly will inherit and must answer to voters and taxpayers.

    Immigration Benefits and Practices

    Perhaps, most curiously on our readers’ minds are how will existing immigration policies change, if at all, under Secretary Kelly?

    If the General is focused on border security and national security, will he have time to review policies that improve avenues for entrepreneurship; make it easier for foreign students and scholars to obtain greencards; allow employers wider latitude to recruit foreign workers when they have difficulty filling those positions with U.S. workers; and what will become of the nearly one million DACA recipients who may be left unemployed if DACA is disbanded?

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    Stay tuned for future updates on the immigration and how it might impact you, your company or your startup.  Subscribe to this blog to stay updated. Share this article with your friends or colleagues.