• 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.

  • 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.