Category: Immigration

Department of State Releases May 2017 Visa Bulletin

may visa bulletinExpect some retrogression in EB-1 and EB-2 cutoff dates in the coming months.

The US Department of State has released its May 2017 Visa Bulletin setting out per-country priority date cutoffs that regulate immigrant visa availability and the flow of status adjustments and consular immigrant visa application filings and approvals.

What Does the May 2017 Visa Bulletin Say?

The May 2017 Visa Bulletin includes both a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustments of status or immigrant visas, and the latter indicates when adjustment of status applications or immigrant visa applications may be approved and permanent residence granted.

If US Citizenship and Immigration Services (USCIS) determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications.

It is not yet clear which chart USCIS will select for May 2017 filings. To be eligible to file an employment-based (EB) adjustment application in May 2017, a foreign national must have a priority date that is earlier than the date listed below for his or her preference category and country (changes from last month’s Visa Bulletin are shown in yellow).

Application Final Action Dates

EB All Charge-

ability 

Areas Except

Those Listed		 China

(mainland 

born)		 El Salvador,
Guatemala,
and Honduras		 India Mexico Philippines
1st C C C C C C
2nd C 08FEB13 (was 15JAN13) C 22JUN08 C C
3rd 15MAR17 (was 15FEB17) 01OCT14 (was 15AUG14) 15MAR17(was 15FEB17) 25MAR05 (was 24MAR05) 15MAR17(was 15FEB17) 01JAN13(was 15SEP12)
Other Workers 15MAR17 (was 15FEB17) 08MAR06 (was 01MAR06) 15MAR17 (was 15FEB17) 25MAR05 (was 24MAR05 ) 15MAR17 (was 15FEB17) 01JAN13 (was 15SEP12)

Dates for Filing Visa Applications

EB All Charge-

ability 

Areas Except

Those Listed		 China

(mainland 

born)		 India Mexico Philippines
1st C C C C C
2nd C 01OCT13 (was 01MAR13) 01FEB09 (was 22APR09) C C
3rd C 01SEP15 (was 01MAY14) 22APR06 (was 01JUL05) C 01JUL14 (was 01SEP13)
Other Workers C 01JUN08 (was 01AUG09) 22APR06 (was 01JUL05) C 001JUL14 (was 01SEP13)

On the Application Final Action Dates chart, the cutoff dates for EB-1 will remain “current” for all chargeable countries, including India and China.

The EB-2 cutoff dates for the worldwide allotment as well as for El Salvador, Guatemala, Honduras, Mexico, and the Philippines will also remain “current.” Cutoff dates will advance by one month for EB-2 India and by three weeks for EB-2 China.

The EB-3 cutoff dates for the worldwide allotment as well as for El Salvador, Guatemala, Honduras, and Mexico will advance by one month to March 15, 2017. The cutoff date for EB-3 China will advance by six weeks to October 1, 2014 and the cutoff date for EB-3 India will advance by one day to March 25, 2005. The cutoff date for EB-3 Philippines will advance by three and a half months to January 1, 2013.

The EB-5 China cutoff date will advance by ten days to June 1, 2014.

On the Dates for Filing chart, the cutoff dates for EB-1 will remain “current” for all chargeable countries, including India and China.

The EB-2 cutoff dates for the worldwide allotment as well as for El Salvador, Guatemala, Honduras, Mexico, and the Philippines will also remain “current.” Cutoff dates for EB-2 China will advance by seven months to October 1, 2013. Cutoff dates for EB-2 India will retrogress by three months and three weeks, to February 1, 2009.

Cutoff dates for EB-3 China will advance by 16 months to September 1, 2015, but for “other workers” the cutoff dates will retrogress by 14 months, to June 1, 2008. Cutoff dates for EB-3 India will advance by nine months and three weeks, to April 22, 2006. Finally, cutoff dates for EB-3 Philippines will advance by ten months, to July 1, 2014.

The State Department projected that a Final Action date will be established in the EB-1 category for China and India in the near future. Visa numbers would advance slowly for the remainder of this fiscal year. Additionally, the EB-2 category for the worldwide allotment, El Salvador, Guatemala, Honduras, Mexico, and the Philippines is expected to retrogress no later than July. It is anticipated that this category will also become current at the start of the FY 2018 in October.

Read the May 2017 Visa Bulletin.

ARTICLE BYA. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP
Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

USCIS Issues Guidance on H-1B Petition Adjudication, Announces ‘Targeted’ Site Visits

H-1b petitionUSCIS issued a policy memorandum to increase scrutiny of H-1B petitions for computer-related positions and an announcement regarding increased H-1B employer site visits—what will these changes mean for foreign worker visa programs?

In a policy memorandum dated March 31, United States Citizenship and Immigration Services (USCIS) announced that it is formally rescinding the 2000 Immigration and Naturalization Guidance Memo on H-1B Computer Related Positions issued to Nebraska Service Center employees adjudicating H-1B petitions. USCIS considers the 2000 memo to adopt an “obsolete” view of the types of computer-related occupations that qualify as specialty occupations for H-1B purposes (based on the memo’s inaccurate reading of the Occupational Outlook Handbook) and also to not “properly” apply the regulatory criteria that govern qualification for H-1B status. Specifically, the policy memorandum calls attention to the fact that the rescinded memo, while observing that “most” computer programmers hold bachelor’s degrees, did not note in which “specific specialties” such degrees were held. The rescinded memo is also criticized for not mentioning that only “some” computer programmers hold degrees in computer science or information systems, and for inaccurately presenting the fact that some jobs held by computer programmers require only two-year or associate’s degrees. The memo is further criticized for not clarifying that entry-level computer programmers will generally not qualify for H-1B status. Thus, the policy memorandum concludes that an H-1B petitioner cannot rely on the Occupational Outlook Handbook to establish that a computer programmer position is a specialty occupation and that “other evidence” must be provided to establish the specialty occupation.

Several immigration lawyer groups have raised concerns that this new policy memorandum may constitute a first step by the Department of Homeland Security (DHS) to carry out the previously announced intentions of the presidential administration to make foreign worker visa eligibility more restrictive. The new memorandum, by withdrawing a little-known memo, may well make it more difficult for H-1B petitions filed for persons working in computer-related positions to be approved. Its practical effect is that companies in the IT industry seeking H-1B status for their employees will likely have to prove that the positions at issue are not entry-level computer programming positions and that the employees’ degrees and education are specifically related to such positions. Extensive Requests for Evidence (RFEs) seeking such proof are expected to become commonplace, as are denials for failure to offer such proof. As an indication of the scrutiny and limited focus that H-1B petitions for persons working in computer-related positions are now receiving, apparently a number of RFEs questioning the relevance of a degree in electrical engineering to a computer engineer position have been issued recently.

Since the policy memorandum took effect immediately, all H-1B petitions subject to the 2018 fiscal cap will be adjudicated under its provisions, even though no advance notice of its publication was provided.

USCIS Announces ‘More Targeted’ H-1B Site Visits

In a separate announcement issued April 4, USCIS stated that, effective immediately, it will embark upon a “more targeted” campaign of site visits to the worksites where H-1B beneficiaries are employed. Such site visits have been conducted by officers of the USCIS Office of Fraud Detection and National Security since 2009. Under the new initiative, H-1B site visits will focus on three categories of employers:

  • H-1B dependent employers (generally, employers with 51 or more employees with at least 15% of their workforce composed of H-1B beneficiaries)
  • Employers filing petitions for employees who will be assigned to work at the worksites of different companies
  • Employers whose business information cannot be verified through commercially available data (including, primarily, the Validation Instrument for Business Enterprises (VIBE) tool, which is based on a Dun & Bradstreet database

In addition, the announcement notes that “random” site visits will continue to occur.

The practical effect of this announcement may be that site visits to the workplaces of employers that do not fall into one of these categories will diminish, while site visits to employers that do fall into one of these categories will spike sharply and possibly be all but certain. All employers of H-1B beneficiaries are encouraged to adequately prepare for such site visits by ensuring that

  • information contained in H-1B petitions is at all times accurate and up to date, and
  • thorough site visit protocols that govern in detail how such visits will be handled are in place.

The announcement notes that the targeted site visit program is intended to identify employers engaging in fraud and abuse of the H-1B category, not to punish individual H-1B employees. To serve this purpose, USCIS has established an email address, reportH1Babuse@uscis.dhs.gov, that will allow both American and H-1B workers to notify the agency, presumably anonymously, of instances of such fraud and abuse.

What Do These Changes Mean?

On January 24, 2017, a draft executive order titled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” was publicly circulated. This draft executive order essentially mandates a top-to-bottom review of all foreign worker visa programs to make certain that such programs are not administered in a way that creates a disadvantage to US workers. Although the order has not been finalized to date, it would appear that the presidential administration has started the process of reviewing certain visa classifications, and it is likely that DHS will issue further guidance on other visa classifications in the near future.

ARTICLE BY A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP
Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Tips for Surviving in a Time of Immigration Uncertainty

immigration travel banWe planned to write a blog about the revised travel ban Executive Order as soon as it came out. That the revised order was delayed for several weeks until March 6 highlights the uncertainty we face in 2017.[1] Below we try to answer various questions we regularly receive about immigration issues.

  1. Is domestic airplane travel OK? This may sound like a simple question, but recent events suggest more caution may be wise. For example, Immigration and Customs Enforcement (ICE) agents recently met a plane landing at JFK Airport in New York City, and asked everyone about their immigration status.[2] The agents were looking for someone who had an old deportation order, but it is possible that anyone without evidence of status could have faced delays. This is a good time to remind ourselves that the law requires anyone who is not a U.S. citizen to carry evidence of status at all times (green card, Employment Authorization Document (EAD), Form I-94 or electronic I-94 printout, valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport, etc.).[3] Try to make it easy for a government officer.

  2. Isn’t that overreacting based on one incident? Maybe, but the bigger picture is that immigration enforcement agents have more discretion and wider operating room than before.[4] Two memos issued by the Department of Homeland Security (DHS) on February 20 allow for “expedited removal,” which is a fast track process that skips a hearing with an immigration judge.[5] Expedited removal now can apply to anyone who entered the country within the past 2 years (used to be 2 weeks), and anywhere in the United States (used to be within 100 miles of the border).[6] Expedited removal happens quickly, sometimes within a matter of days. Having a copy of a document showing status and that you have been in the United States more than two years could help avoid questioning and expedited removal.

  3. How about electronic devices? Can those be searched at the airport or border? The simple answer is “yes,” and this is happening more often.[7] We recommend that private information, such as a doctor with patient information, should be encrypted. According to the Customs and Border Protection (CBP) website,[8] CBP officers may search laptops, cell phones, or other electronic devices. CBP may not select someone for a personal search or secondary inspection based on religion, race, national origin, gender, ethnicity, or political beliefs. U.S. citizens may also be questioned and have their devices seized for refusal to provide passwords or unlock devices, but cannot be prevented from entering the United States. Noncitizens may, however, be denied entry. Adding to the uncertainty about how this will play out is a section in one of the January Executive Orders that directs federal government agencies to make sure they “exclude persons who are not United States citizens or lawful permanent residents” from Privacy Act protections concerning personal information.

  4. What does this mean for people from the six countries covered by the new travel ban? Will the court battle still continue? The new order clarifies that green card holders and Iraqis are NOT affected by the visa ban, and that people who had visas revoked or cancelled by the first order may be able to get a travel letter to return. The new order takes effect March 16, 2017, and lasts for 90 days. People with valid visas stamps in their passports can still use them, but new visa stamps will not be issued with very limited discretionary exceptions. The Visa Interview Waiver program is suspended for all countries, and the order states that DHS may add countries to the list after further review. People who are citizens of the six countries can still face additional questioning when they enter the United States as part of a general pattern of enhanced vetting. Travel for citizens of the six countries remains a calculated risk.

We expect that court challenges will continue. The ban still focuses on six predominently Muslim countries, which some see as a religious-based action.[9] There are still arguments about the negative effects on U.S. business and academic programs.

  1. What does this all mean for DACA recipients? The January Executive Orders state that the deferred action for childhood arrivals (DACA) program remains in effect, but that DACA “will be addressed in future guidance.” This is good news for the 750,000 plus people who have DACA. However, continuation of the program is not guaranteed. And the January Executive Orders call for greater enforcement against anyone with any kind of criminal issue or with a previous deportation order. Some DACA recipients have minor criminal issues – will they be able to renew? Some recipients have previous deportation orders – how will they be treated? DACA recipients should carry their DACA approval and work card with them, should keep investigating ways to get back into status, and talk to an attorney or legal service agency if they have ANY criminal issue, no matter how minor.

  2. What does this mean for undocumented parents of students who want to fly within the United States for their child’s graduation? Some of them have traveled before with no problems. President Obama’s “Priorities Memo” used the idea of prosecutorial discretion to give some level of comfort to those at the bottom of the priority list for enforcement. The new orders make clear that there is a top of the list, but no bottom. The law is the law, and anyone undocumented who is caught could be removed. Anyone who is undocumented who is considering traveling should talk to an attorney or legal service agency to evaluate their own particular situation. For example, immigrationlawhelp.org has a list of accredited agencies. Also, this is not a completely new situation. Every year we see family members abroad who do not receive tourist visas to come to the United States. For those situations, some schools have set up a Skype feed of the ceremony through someone’s cell phone, or sent the family a photo of the student graduating, or other clever ways of trying to include the family in the event.

  3. Speaking of DACA, can many of them really move beyond DACA now? It is certainly worth asking. Many filed for DACA on their own, and have never had a legal consultation despite the fact that their immigration histories can be incredibly complicated. Most interestingly, a growing number of DACA recipients got DACA under age 18½ and now have degrees. Those people MAY (emphasize “may”) not have what is called “unlawful presence,” and MAY be able to consular process an employment based visa or green card.

  4. Going beyond travel, are there any other ways campuses can prepare for new immigration enforcement priorities, short of declaring a “sanctuary campus”? Yes, there are some basic steps that campuses can take. One set of model guidelines focuses on interaction with government officials.[10] Campus response has varied but generally been strong in favor of international education and diversity. A Washington Post article found that the vast majority of schools have made some kind of statement.[11] Some schools have been concerned about the political effects of opposing the travel bans. They worry that if they declare themselves immigration sanctuaries they may put a target on their backs. While some schools may be less vocal in their responses, most are supporting students and scholars who are concerned, and connecting students with extra services including counseling and legal services.

  5. If I feel my school is not doing enough, what can I do? In immigration, stories matter. For example, an Iranian graduate student may be thinking of leaving the United States to do a post doc in another country, or cannot travel to present work at a conference abroad, or is simply not sleeping or eating well out of concern, or have a spouse is not still able to enter the United States. These stories help show the real impact of the travel ban. And facts matters – there are some good articles and websites that provide data on the basis of the travel ban and the effects, and also on the positive impact of immigrants on our economy.[12]

  6. I heard the Executive Orders canceled all of President Obama’s orders except for DACA. Does that include the “sensitive locations” memo that said enforcement should not take place at sensitive locations such as campuses, churches, and hospitals? It appears that the ban on enforcement at sensitive locations survives. This policy is still on the ICE website, and in a DHS Q&A.[13] We hope this will continue.

  7. Is it true that the Administration and Congress plan to cut back F-1 STEM OPT and the H-1B program, and raise the minimum salaries for H-1B workers? A lot of ideas and draft memos are floating around Washington how to “fix” immigration, including the H-1B system. Bills pending in Congress would amend the H-1B process. The White House may ask DHS to conduct a study of the visa process to determine which visa regulations may or may not be in the national interest, and to make recommendations on how to improve visa systems, including the H-1B system. Are we sure that nothing like this will happen quickly, surprising us the way the travel ban did? Not sure, but passing legislation in Congress and amending federal regulations are normally long-term projects. Remember, the Obama administration was successfully sued for trying to make big changes without formal procedures.

  8. That’s 11 questions – anything else I should know? We all need to remember the energy it takes to operate in uncertainty. In a recent presentation at a university, the director of the counseling center explained that uncertainty can be more tiring and emotionally challenging than bad news. At least with bad news, we can focus attention on how to address it. So hang in there!

ARTICLE BY  Steve Yale-Loehr of Miller Mayer LLP & Dan Berger of Curran & Berger, LLP
© Copyright 2013 – 2017 Miller Mayer LLP. All Rights Reserved.

[1] The new executive order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states (Mar. 6, 2017).

[2] https://www.theatlantic.com/politics/archive/2017/02/papers-please/517887/?utm_source=fbb.

[3] INA § 264(e) provides: “Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.” 8 C.F.R. § 264.1(b) lists the acceptable types of “registration” document that must be carried.

[4] https://www.nytimes.com/2017/02/25/us/ice-immigrant-deportations-trump.html.

[5] The DHS memos and accompanying fact sheets and Q&As are at https://www.dhs.gov/executive-orders-protecting-homeland.

[6] For an article discussing whether expedited removal is constitutional, see David Savage, Trump’s fast-track deportations face legal hurdle: Do unauthorized immigrants have a right to a hearing before a judge?, Mar. 3, 2017, http://www.latimes.com/politics/la-na-pol-deport-legal-20170302-story.html.

[7] For general information on the rights of travelers regarding social media accounts and electronic devices, see https://www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-airports-and-other-ports-entry-us. For an interesting NPR piece on this issue, see http://www.wbur.org/hereandnow/2017/02/16/border-agent-unlock-phone.

[8] https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states.

[9] https://www.washingtonpost.com/opinions/the-evidence-for-trumps-travel-ban-simply-isnt-there/2017/02/27/90e228ac-fd36-11e6-8f41-ea6ed597e4ca_story.html; http://wapo.st/2mZbkx8.

[10] https://www.nilc.org/issues/immigration-enforcement/campus-safe-zones-language-college/.

[11] https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/20/universities-overwhelmingly-objected-to-the-trump-travel-ban-here-are-the-values-they-emphasized/

[12] https://www.washingtonpost.com/graphics/national/visas-impact/; https://www.bloomberg.com/news/articles/2017-01-31/trump-s-immigration-ban-could-cost-u-s-colleges-700-million; immigrationimpact.org.

[13] https://www.ice.gov/ero/enforcement/sensitive-loc; https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order-border-security-and-immigration-enforcement (Question 28).

New USCIS Policy Announced at March 3, 2017 Stakeholders Meeting: Regional Center Geography

boardroom, EB5 Stakeholder Meeting immigrationAt the EB-5 Stakeholders Meeting in Washington DC on March 3, 2017, USCIS announced that I-526 petitions filed for a regional center project in an area not already within the regional center’s approved geography may be denied if filed on or after December 23, 2016.

Under the newly announced policy, a regional center must first have received approval of its expanded geography before I-526 petitions may be filed.  Petitions filed before geographic amendment approval will be deniable due to ineligibility at the time of filing.

The announced policy reverses the policy in the May 30, 2013 USCIS EB-5 Policy Memorandum which states that “formal amendments to the regional center designation, however, are not required when a regional center changes its industries of focus, its geographic boundaries, its business plans, or its economic methodologies” (emphasis added).   Notwithstanding, investor petitions filed in reliance upon this written guidance are subject to denial if filed after December 23, 2016.

Why did USCIS use December 23, 2016 as the effective date for this new policy?  According to Investor Program Office (IPO) officials present at the March 3 meeting, the instructions to new Form I-924 which became effective on December 23, 2016 should have alerted stakeholders of the change.   However, stakeholder surprise and dismay at the March 3 meeting indicate that a policy change announced by instructions on a form is insufficient notice for a full reversal of prior policy by memorandum.

Rather, filing fee increases, filing place address changes, or even changes in filing procedure are more in the vein of changes typically made in new form instructions.   Moreover, a form instruction that directly contravenes final written authority, such as the May 2013 Policy Memorandum, cannot itself be said to provide notice of policy change.  Finally, while the instructions state that an amendment must be filed to “change the geographic area of a regional center,” the instructions do not also state that associated I-526 petitions must wait until such an amendment is approved.   Neither is this requirement made in the instructions to the new Form I-526, also made effective on December 23, 2016.

USCIS may change its policy.  However, it must do so transparently. The integrity of EB-5 adjudication is compromised when USCIS changes its policy without notice and applies those changes retroactively, as it has done here.  Past examples of retroactive policy changes include denials based on findings of “indebtedness,” “tenant occupancy,” and “material change.”  Unfortunately, we now add “unapproved geography” to the list.  Hearing stakeholder feedback, USCIS will hopefully either revert to prior policy or at least rescind the December 23, 2016 effective date for a prospective one.

Stakeholder feedback on the March 3 meeting may be sent to ipostakeholderengagement@uscis.dhs.gov.

ARTICLE BY Carolyn S. Lee of Miller Mayer LLP

© Copyright 2013 – 2017 Miller Mayer LLP. All Rights Reserved.

Department of Homeland Security Elaborates on its Anticipated Request for Border-Wall “Prototypes”

border-wall DHS prototype

Last week, we reported that the Department of Homeland Security, Customs and Border Protection (CBP) had published a presolicitation notice announcing its intent to issue a solicitation “for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico.”  On Friday, March 3, CBP amended that notice “to provide additional information to interested bidders” and address “a revision in strategy.”  The revised solicitation includes several significant changes that will be of interest to contractors and other observers.

To begin, the amended notice provides more information about the actual requirements that CBP anticipates including in the solicitation.  According to the notice, CBP expects to request a design for a concrete structure, approximately thirty feet in height, which “will meet requirements for aesthetics, anti-climbing, and resistance to tampering or damage.”

The amended notice now explicitly invokes the “Two Phase Design Build Procedures” under FAR 36.3.  It also provides a revised timeline for the procurement allowing more time, for proposal preparation and evaluation:

  • On or about March 8, 2017: solicitation anticipated to issue

  • March 20, 2017: “vendors to submit a concept paper of their prototype which will result in the evaluation and down select of offerors”

  • On or about May 3, 2017: “down select of phase 1 offerors to submit proposals in response to the full RFP, including pricing”

Consistent with the original notice, the amendment states that CBP will likely issue multiple award Indefinite Delivery Indefinite Quantity contracts and provide options for additional miles of wall.

Indeed, the notice now explains that, although the procurement will “provide some initial construction of some wall segments,” it “is not intended as the vehicle for the procurement of the total wall solution for the border with Mexico,” perhaps in part because funding for the entire project has not yet been appropriated.  This statement signals that another solicitation will likely follow the one announced last week.

A number of questions raised in our previous post remain, and will hopefully be answered in the next few days in the full solicitation.  Observers also should keep watch for a subsequent solicitation at some point in the future that will address the completion of the border wall.

ARTICLE BY Jennifer L. Plitsch, Kayleigh Scalzo & Andrew Guy of Covington & Burling LLP

© 2017 Covington & Burling LLP

USCIS Temporarily Suspends Premium Processing for H-1B Petition

USCIS H1-B visa premium processingOn March 3, 2017, USCIS announced a temporary suspension of premium processing impacting all H-1B petitions received by USCIS beginning April 3, 2017.  The suspension will be in place for up to six months, supposedly to permit the agency to prioritize pending H-1B cases that are outside of their normal processing time and to reduce the backlog of pending H-1B cases filed in 2016.

The following case types will be impacted:

  • All H-1B petitions filed under the fiscal year 2018 H-1B cap;

  • All H-1B cap-exempt petitions; and

  • All non-cap H-1B extensions, all change of employer H-1B petitions, and all amended H-1B petitions.

The USCIS premium processing suspension does not impact a petitioner or beneficiary’s ability to request “expedited handling” of any kind of H-1B petition.  Such requests will be granted on a case-by-case discretionary basis, if the petitioner and/or beneficiary can establish severe financial loss to company or person, an emergency situation, a humanitarian situation, or governmental interest, amongst other criteria.

Please note that the premium processing program suspension applies only to H-1B filings.  Employers may continue to use the premium processing service for, among others, L-1, O-1, TN, and I-140 immigrant petition filings.

ARTICLE BY Katie P. Jacob & Gregory P. Adams of Dinsmore & Shohl LLP

© 2017 Dinsmore & Shohl LLP. All rights reserved.

Trump EO Biometric Entry-Exit Section Raises Concerns of Lawmakers over Costs, Logistics

fingerprints biometricMembers of Congress from states bordering Canada, the Northern Border Caucus, have focused on a section of President Donald Trump’s “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order directing DHS to expedite “the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States.” Calling it “unnecessary” on the northern border, representatives from New Hampshire, New York, North Dakota, Vermont, and Washington are concerned the system will lead to long lines and waits, interfere with commercial traffic, and damage tourism in their states.

In Buffalo, New York, there is bipartisan opposition to implementation of the biometric system. Representative Brian Higgins (D) believes the cost of implementation, $6.5 billion, will bring it to a halt when it comes to Congress for funding. In fact, that was where a similar proposal died two years ago. Representative Chris Collins (R) expressed particular concern about a reduction in sports tourism – reducing fan attendance at Buffalo Bills football and Buffalo Sabres hockey.

Because there is already a joint biometric entry-exit partnership agreement in effect between the United States and Canada, the Beyond the Border Action Plan, the Caucus has asked that the Administration do a careful cost-benefit analysis and coordinate with the Canadian government before instituting a costly enhancement.

The Canadian government, perhaps in reaction to Trump Administration policies, is considering legislation to expand preclearance at Canadian airports. Prime Minister Justin Trudeau suggested that Canadians would be better protected under the Canadian Charter of Rights if they cleared U.S. Customs on Canadian soil. But the measure would give CBP officers the right to question, or detain for hand-over to Canadian officials, any Canadian suspected of violating Canadian law. There is opposition. Canadian lawmakers are concerned about granting additional authority to CBP because the bill “does not address Canadians’ concerns about being interrogated, detained and turned back at the border based on race, religion, travel history or birthplace.”

Meanwhile, Canada is prepared to capitalize on the controversy swirling around the Trump Administration’s immigration policies. Trudeau has extended his welcome, and so has the City of Vancouver, just a two-hour flight from the Silicon Valley. Indeed, a Canadian start-up, True North, is introducing high-skilled foreign nationals and their companies to the advantages of having a back-up plan in Vancouver, providing introductions to Canadian immigration lawyers, and exploratory trips.

This post was written by Moni Gill.

ARTICLE BY Moni Gill and the Immigration Team at Jackson Lewis

Jackson Lewis P.C. © 2017

Immigration Fact and Fiction for the U.S. Employer: Know Your Rights – 5 Things to Tell Your Foreign National Employee in the Current Climate

foreign national employeeOn February 21, 2017, Department of Homeland Security (DHS) released two memoranda signed by DHS Secretary Kelly addressing immigration enforcement.  While a sitting President cannot independently modify laws or regulations without going through the normal rule making process, he/she can significantly alter policy and enforcement priorities.  These two memoranda are a clear example of a shift in focus.  While the memos largely address individuals who are undocumented, your foreign national employees may be collaterally impacted as a result of being inadvertently involved in an enforcement action, when encountering an emboldened DHS officer or even in dealing with local police officials, given their new immigration related authority.

We provide a brief overview of several issues one may encounter.  We will provide additional information in subsequent postings as these directives, and others, continue to evolve.

1. Fact or Fiction, Can Your Foreign National Employee be Detained by DHS?

The new Kelly memos make it clear that the previous administration’s “catch and release” program is over.  The administration vows to deter illegal immigration by aggressively detaining noncitizens and expanding the categories of individuals who are considered priorities for removal.   The broad language of the memos suggest that  a foreign national employee could be detained and deported if he/she is convicted of a criminal offense, charged with a criminal offense, or even has committed acts that could rise to a chargeable criminal offense.  Assuming your employee has proper visa classification and he/she has been maintaining status, all should be OK.

As the law requires, we recommend all foreign nationals carry with them, at all times, proof of immigration status.  This means if your employee is a nonimmigrant worker (H-1B, L-1B, E-3, etc.) he/she should carry his/her Employment Authorization Document, I-94 card, passport with entry stamp, or other proof of lawful presence (or at least a photocopy of the relevant documents and be able to access the original quickly if needed).  If your employee is a Lawful Permanent Resident, he/she should carry his/her greencard (or at least a photocopy and be able to access the original quickly if needed).  Employees should have handy the name and contact information of their supervisor or HR representative who can also verify their employment details.

2. Fact or Fiction, Can the Company Continue to Employ a Foreign National Worker Authorized to Work Pursuant to DACA (Deferred Action Childhood Arrivals)?

As per the Questions and Answers guidance provided by DHS subsequent to the release of the memos, DACA continues as a program.  That means that if your employee is a DACA beneficiary and is employed pursuant to a valid Employment Authorization Document (EAD), you can continue to employ him/her and they can continue to renew their work permit.   This may change in the near future but for now it stands.

Some leaked Executive Orders (EO) have included provisions to end “amnesty programs.”   If this should happen, a DACA beneficiary will lose his/her permission to work in the United States.  Short of marrying a U.S. citizen, most DACA participants have no other immigration relief or form of work eligibility.  We have some hope that when implementing any new executive orders, the government will allow the “Dreamers” to continue working at least through the expiration of their current EADs so that both employers and employees alike are not impacted suddenly.

3. Fact or Fiction, Can the Company’s Foreign National Employees Continue to Travel Abroad?

Yes, but customs officers at airports and other ports of entry may question the employee about their immigration status and underlying eligibility for that status.   If the employee is selected for a longer interview during the admission process, he/she will be sent to a “secondary inspection” area.  While United States citizens have the right to have an attorney present during questioning, non-citizens generally do not have such a right while the officer determines whether or not to admit the foreign national employee.

Please advise your employees that if a DHS officer’s questions have to do with anything other than the foreign national’s immigration status, he/she does have the right to an attorney but it is unlikely that such requests will be granted until after the questioning is completed.

Also, employers should be warned that we expect a new Executive Order (EO) re-implementing the “travel ban” will be issued next week.   While foreign nationals of the 7 countries noted in the previous EO, namely Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, will be surely impacted, it is possible the new EO will extend a “travel ban” to other countries.  As such, we recommend foreign nationals from these 7 countries not travel abroad at this time, and we will keep you updated as the new EO is released to warn potentially additional foreign national employees against travel.

4. Fact of Fiction, Can a Customs and Border Protection (CBP) Officer Review My and/or a Foreign Employee’s Personal Electronic Devices and /or Social Media Accounts?

Since 2008, it has been the position of CBP that it may, upon a “reasonable suspicion”, inspect electronic devices, such as phones and laptops.  Moreover, this can result in CBP confiscating the devices for several weeks or months.  As such, employees should take proactive steps to ensure the confidentiality of client, customer and proprietary information.   This means that phones and computers should contain only information that is needed for the business trip. Some employers may want to provide laptops and phones that are used solely for business trips and do not contain any sensitive information.   Basically, if the employee does not need the device or information for the trip – it should be left at home.

With respect to social media, CBP Officers have recently been requesting passwords to review an applicant for admission’s social networking activity.  In addition, social media questions – while not yet mandatory – have been added to the ESTA online application.  ESTA provides visa free travel to nationals of certain designated countries.  As such, it appears that the trend will continue so employees should continue to utilize social media judiciously and remember that no post in cyber space is confidential.

5. Fact of Fiction, Do These Changes Impact a Foreign Worker’s Privacy Rights?

The memorandum addressing this issue states that DHS will no longer afford Privacy Act rights and protections to individuals who are neither U.S. citizens nor lawful permanent residents.  Since 2009, DHS has treated personally identifiable information (PII) as subject to the Privacy Act. PII includes information that is collected, used, maintained, or disseminated and includes U.S. citizens and LPRs, as well as visitors and undocumented persons.

Non-U.S. persons have had the right of access to their PII and the right to amend their records, absent an exemption under the Privacy Act.   It is unclear whether the 2009 guidance will remain in place until the DHS Privacy Office develops new guidance and it is unclear what DHS intends as to the scope, purpose, and intent of the new guidance.   For example, if your foreign national employee commits a crime or is even suspected of committing a crime as determined by an immigration officer, the employee’s name may be placed on a list which DHS will be begin publishing and making public soon.

Conclusion

Most employers are committed to having a diversity of talent and to the fair and equal treatment of all employees, whatever their background, so perhaps this is a good time to share such a message with your employees.  It is probably beneficial to include that as an employer, the company will aim to support and protect colleagues, regardless of their race, country of origin, and religion or belief system, and that the previous (and perhaps future) executive orders, as well as memoranda are only likely to affect a small minority of employees but are still taken very seriously.  Confirming that impacted employees can reach out to local HR partners or managers if they have questions or concerns is highly reassuring to most employees.

ARTICLE BY David Grunblatt & Erica Loomba of Proskauer Rose LLP
© 2017 Proskauer Rose LLP.

DHS Announces Intent to Award Contracts for Border Wall “Prototypes” by Mid-April

border wall immigration DHS

On Friday, February 24, 2017, the Department of Homeland Security, Customs and Border Protection published a presolicitation notice announcing its intent to issue a solicitation “for the design and build of several prototype wall structures in the vicinity of the United States border with Mexico.” At least on the government procurement front, this notice marks the most concrete indication of the federal government’s intent to construct a wall along the U.S. border with Mexico.

The notice — issued under Solicitation No. 2017-JC-RT-0001 — indicates that the resultant contracts will be for the design and build of “prototype wall structures,” suggesting that the Government may not yet be asking for the design and build of the wall itself.  And while the notice is only one paragraph long, it is noteworthy in several respects.

As an initial matter, the notice sets out a dizzyingly fast timeline for the procurement:

  • March 6, 2017: solicitation anticipated to issue

  • March 10, 2017: “vendors to submit a concept paper of their prototype(s)”

  • March 20, 2017: “evaluation and down select of offerors”

  • March 24, 2017: remaining offerors “to submit proposals in response to the full RFP,” including price

  • Mid-April 2017: “Multiple awards . . . contemplated”

Even considering the Government’s desire to take rapid action, it is difficult to see how contractors, or government personnel, will be able to comply with these incredibly tight turnarounds or if working at this pace for a project of this magnitude is in the ultimate interest of the country.  In addition, no specific funds have yet been appropriated for this project, meaning that it is unclear how the federal government plans to pay for the work that, presumably, it intends to commence shortly after awards in mid-April.

Beyond timing and funding, many other questions remain that will hopefully be answered when the full solicitation is issued, including:

  • How prototypes will be evaluated in light of the variety of terrains and concerns at different areas of the border.

  • How potential domestic sourcing preferences may be incorporated — if at all — at this stage of the project, as such requirements have the potential to impact costs, supply chain, and design, among other things.

  • How pricing will be evaluated at this stage of the process and how costs will be taken into account in the project as a whole, in light of the broad range of estimated costs that have been reported by various sources.

  • How the option periods mentioned in the notice will operate — the notice states that “[a]n option for additional miles may be included in each contract award,” although the need for “additional miles” of wall at the conceptual stage of the work is not evident.

Contractors and non-contractors alike will be keeping a close eye on this procurement and marking their calendars for March 6 in the hopes that their many questions will be answered.

ARTICLE BY Jennifer L. Plitsch & Kayleigh Scalzo of Covington & Burling LLP

© 2017 Covington & Burling LLP

DHS Guidance Memos Chart Aggressive Course to Implement President Trump’s Executive Orders on Immigration Enforcement

immigration enforcementOn February 20, 2017, U.S. Secretary of Homeland Security John Kelly released two new policy memoranda aimed at implementing President Trump’s executive orders on enhancing the public safety of the interior and border enforcement of immigration laws.

The first memo, titled “Enforcement of the Immigration Laws to Serve the National Interest,” immediately rescinded President Obama’s Priority Enforcement Program, which prioritized deportation of criminals and recently-arrived undocumented individuals, and gives immigration officials broad authority to deport “all removable aliens,” including those who have “committed acts which constitute a chargeable criminal offense” and those who “pose a risk to public safety or national security.” These enforcement guidelines mark a major policy shift that aims to dramatically escalate deportations of undocumented immigrants, potentially encompassing individuals who commit minor offenses like traffic infractions or who receive government assistance.

Secretary Kelly’s second memo, titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” implements a dramatic expansion of expedited removal, a procedure that allows a U.S. Department of Homeland Security (DHS) official to remove a noncitizen from the U.S. without a hearing before an immigration judge. Prior to this memo, DHS limited its application of this summary procedure to inadmissible noncitizens who either arrived at a port of entry or were apprehended within 14 days of their arrival and within 100 miles of an international land border. Under the new guidance, DHS is now authorized to apply expedited removal to anyone who has not been continuously present in the country for the two years before apprehension and to individuals encountered anywhere in the United States.

The memoranda instruct DHS to immediately hire thousands of immigration enforcement officials, including 10,000 Immigration and Customs Enforcement (ICE) agents and 5,000 Border Patrol agents, as well as additional operational and support staff. Notably, the memos do not address how DHS will obtain the necessary funding for this hiring surge. Moreover, both memos call for a dramatic increase in the use of local law enforcement to act as immigration agents and enforce immigration law under Section 287(g) of the Immigration and Nationality Act.

While the memoranda do not rescind President Obama’s Deferred Action for Childhood Arrivals program, they make it evident that any undocumented immigrant who is charged with a crime, however minimal, is now eligible for deportation.

ARTICLE BY Anna F. Angel of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.