Temporary Entry Provisions of NAFTA Appear to Emerge Unscathed in the Proposed Text of the USMCA

By Grant Godfrey

grant-godfrey17On October 1, 2018, the Office of the United States Trade Representative published the text of the proposed United States-Mexico-Canada Agreement (“USMCA”), which is meant to replace the North American Free Trade Agreement (“NAFTA”). Since it went into effect in 1994, Chapter 16 of NAFTA, has been used for Business Visitors, Traders and Investors, Intra-Company Transferees and Professionals who are citizens of the U.S., Canada, and Mexico to enter the member countries for temporary business purposes. Importantly, Chapter 16 of NAFTA includes provisions allowing citizens of the members countries to perform after-sale services (including on computer software) in other member countries and for Professionals to enter the member countries using a special status (called “TN Status” in the United States) if they are going to be performing services in a list of approved occupations.

The proposed text of Chapter 16 of the USMCA appears to leave the existing framework mostly untouched. The USMCA will still allow business people to perform after sales services, and will have a special classification for Professionals with an identical list of acceptable occupations as is currently allowed under NAFTA. The Toronto Star has reported that the intention was to leave the TN Professional Worker classification unchanged, so barring any new developments it appears that the three countries intended for there to be no major changes to the current agreements related to temporary business workers.

This should be of great relief to companies and workers who currently rely on Chapter 16 of NAFTA. However, we must caution that the USMCA is still in the process of being negotiated. Additionally, after negotiations end, the legislatures of the three countries must ratify the treaty, so changes may still be introduced or the deal may be scrapped in its entirety and a new one proposed.

In the meantime, please do not hesitate to reach out to our team of immigration attorneys should you have any questions or concerns.

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H-1B Premium Processing Update

USCIS Announces Extension and Expansion of the Suspension of H-1B Premium Processing and an Increase in the Premium Processing Filing Fee

By Grant Godfrey and Donald Parker

grant-godfrey17Donald Parker - Immigration AttorneyOn August 29, 2018, the U.S. Citizenship & Immigration Services (“USCIS”) announced that it was extending and expanding its suspension of premium processing services so that it will affect many more H-1B filings. On March 20, 2018 USCIS suspended premium processing service for all cap-subject H-1B filings until September 10, 2018. This August 29, 2018 announcement extends the moratorium on premium processing for cap-subject H-1B petitions until February 19, 2019.  

Furthermore, the new announcement also suspends premium processing for most other H-1B filings (with two exceptions) beginning on September 11, 2018 until February 19, 2019.  The only two types of H-1B filings that will be eligible to utilize premium processing during this period will be:

  • H-1B petitions filed by cap-exempt employers (e.g. colleges or universities, or nonprofits affiliated with them) with the California Service Center; and
  • H-1B petitions where petitioner is requesting continuation of previously approved employment with the same employer without change, requesting either an extension of stay or consular notification, and filing the petition with the Nebraska Service Center.

This additional suspension will primarily affect H-1B visa petitions filed by employers seeking to transfer H-1B sponsorship for a new employee from their prior H-1B sponsor.  The press release notes that USCIS will continue to accept requests for expedited processing based on merit.  Additionally, premium processing for other Form I-129 and Form I-140 based filings will be unaffected.

While USCIS calls this a “suspension” until February 19, 2019, the announcement clearly reserves the right of the USCIS to impose further suspensions on the use of premium processing after that date.

Finally, on August 31, 2018, USCIS announced that effective October 1, 2018 premium processing filing fees for all petition-types will increase to $1,410 from the current $1,225.  In making this announcement, USCIS noted that premium processing fees had not been adjusted since 2010 and that it will use the increased fee to hire additional staff and improve its information technology systems.

Please contact any of the member of the legal team at Parker Gallini LLP if you have any questions about the new H-1B visas that are becoming available.

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Will This Be the Last H-1B Visa Cap Craze?

By John Gallini and Grant Godfrey

H1_B_Work_Visa_ApplicationIt has been open season for attacks on the H-1B program and the Department of Homeland Security (DHS) under the Trump Administration is aiming to make U.S. employer sponsorship of foreign worker visas more difficult and less appealing. In the meantime, demand remains high for talent in highly-skilled positions, particularly in the IT, Telecom and life sciences fields where well-educated and experienced qualified workers remain in short supply. The H-1B “specialty worker” visa has become the standard working visa that U.S. employers utilize to employ foreign nationals to fill these positions. However, securing an H-1B visa is the challenge.

There are less than 85,000 H-1B visas made available each year and the supply of these visas is typically exhausted well before the date that a foreign national can commence employment under the H-1B; that is because new H-1B visas are made available annually at the beginning of the federal government’s fiscal year — which is October 1 — and employers are allowed to file for one of these visas up to 6 months in advance of the intended employment date (April 1st). With a steadily improving economy over the past several years, and increased hiring, the demand for H-1B visas has vastly outstripped the supply. Given this trend, and to ensure all potential employers an equal shot, the DHS designated the first five (5) business days of April as the filing window for H-1B cap subject petitions. H-1B cap subject petitions must be filed with one of two designated Service Centers of the United States Citizenship & Immigration Services (USCIS). These Service Centers then tally up the number of petitions received and the USCIS announces whether a sufficient number of petitions has been received to meet the quota. If at the end of the five-day period USCIS has received more petitions than there are available visas, it will announce that it is not accepting further H-1B petitions under that fiscal year quota, and that it will hold random lotteries (as is explained further below) to determine which petitions will be selected for processing.

As has been the case in past several years, we anticipate that demand for the limited number of H-1B visas will vastly exceed this year’s supply. Last April USCIS received approximately 200,000 cap subject H-1B petitions in the first week of April for selection under its fiscal year quota. We are projecting that this year the cap will again be reached within the first week of April and that USCIS will once again hold its lotteries. As a result, we are advising all employers who expect to sponsor an employee for a new H-1B visa to file within the first five (5) days of April (i.e. so that the petition is received no earlier than April 2, 2018 and no later than April 6, 2018).

H-1B visas are given out each year in two primary tranches – there are 20,000 visas reserved for foreign nationals with a U.S. earned Master’s (or higher) degree – i.e. the “U.S. Master’s degree tranche” – and an additional 58,200 visas under the general tranche for foreign nationals who qualify generally for the H-1B (by having a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a Bachelor’s degree or higher). Finally, the USCIS reserves 6,800 visas in that tranche to citizens of Singapore (5,400) and Chile (1,400) for H-1B1 visas. These visas have historically been under-utilized and remain available throughout the fiscal year. Unused numbers reserved for H-1B1s are added back to the next year’s quota.

Under the current system, the USCIS will receive and sort all H-1B cap-subject petitions filed during the first five (5) business days of April. Incomplete petitions (e.g. lacking required forms or unsigned or incomplete) or petitions lacking the correct filing fees will be sorted for immediate rejection. Those that clear the initial quality check will be sorted into two batches, one for petitions on behalf of individuals holding a U.S. earned Master’s (or higher) degree and the other, the general tranche. All petitions are then assigned a random number. Assuming that USCIS receives more petitions than there are available under the 20,000 U.S. earned Master’s degree tranche, it will first run a lottery to select winners under that tranche. Any cases not selected in the U.S. earned Master’s degree tranche will then be added to the general tranche, and USCIS will run a second lottery. USCIS will cash the checks and issue receipts for all petitions selected in the lotteries. In prior years, receipts for cases selected in the lotteries are received by the middle of May. Petitions that are not selected will be rejected and returned together with the filing fee checks. It typically takes the USCIS two or three months to mail back petitions that were not selected in the lottery. If USCIS receives more than one H-1B cap petition by an employer for the same foreign national beneficiary under the H-1B cap in the same fiscal year, USCIS will disqualify the petition if selected.

The H-1B visa is available only to foreign nationals who have a job offer in a position that customarily requires someone with at least a Bachelor’s degree in a specific specialty. A foreign degree that is deemed the equivalent of a U.S Bachelor’s degree will satisfy this requirement. Foreign nationals who cannot qualify based on their education alone may also qualify based on work experience, or a combination of work experience and education that is determined to be equivalent to a U.S. Bachelor’s degree. Employers may request H-1B work authorized status for an initial period of up to three years. After this initial period, the Employer may thereafter request an additional period of up to three years, for a total of six years. Generally, a foreign national who has completed six years of time in the United States in H-1B status will be required to leave the United States for at least a year before again becoming eligible to be sponsored for an H-1B visa for a fresh six years. Exceptions to this rule allow foreign nationals to receive extensions beyond their normal six-year limit in H-1B status where a PERM labor certification has been filed on their behalf at least a year prior to their 6th year limit on H-1B stay or where the foreign national is the beneficiary of an approved employment-based immigrant visa petition but is unable to adjust status to permanent residence in the U.S. due to the backlog of per country quotas on immigrant visas.

Employees who are subject to the H-1B cap are those who have not previously held H-1B status and who have not been counted against the H-1B cap within the past six years. Within this group typically are:

  • individuals who hold F-1 student status and are either graduating this spring or summer, or who will be reaching the end of their OPT employment authorization in the next year;
  • individuals in J-1 scholar or researcher status who are completing their programs this spring or summer;
  • individuals who are currently outside of the U.S.; and
  • individuals who have been employed in H-1B status but only with “exempt” institutions or organizations, such as universities, related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations.

Note that the H-1B cap does not apply to a foreign national who is currently in the U.S. in H-1B status and has already been counted against the cap.

A few important points to note:

  1. USCIS takes the position that the foreign national’s eligibility for H-1B status must be established at the time of filing. Thus, if the foreign national is hoping to apply in the U.S. Master’s degree tranche but has not completed all program requirements for the U.S. Master’s degree on or before April 1st, the foreign national is not qualified for consideration under the U.S. Master’s degree tranche. This person would have to file for an H-1B in the general tranche based on possession of a foreign or U.S. Bachelor’s degree or its equivalent.
  2. Most commonly, F-1 students have a period of Optional Practical Training (“OPT”) granted as part of their F-1 student status that runs no later than 60 days from their program completion date and is valid for up to one year. Current F-1 student employees who are on OPT will commonly have OPT that expires between May and August. Employees in F-1 status whose OPT will expire before October 1 can be granted a “Cap Gap” extension of their OPT if the H-1B visa petition filed on their behalf is selected for processing. To be eligible for a “Cap Gap” extension, their OPT must also have been valid on the date the H-1B petition was filed. An F-1 student employee whose OPT employment authorization will expire before October 1 must inform their school of their H-1B selection and obtain an endorsement for Cap Gap extension. Only H-1B petitions that are filed with a request for change of status from F-1 to H-1B are eligible under this rule.
  3. F-1 students who have graduated in a Sciences, Technology, Engineering or Mathematics (“STEM”) designated program field and who will be working with a U.S. employer that is registered with the e-Verify system are eligible for a 24-month extension of their OPT after the initial 12-month period has run. Thus, F-1 students in certain STEM designated degree programs may be able to take advantage of up to 36 months of employment authorization after graduation pursuant to F-1 OPT and will have several opportunities to apply for and secure an H-1B visa.
  4. During last year’s H-1B cap filing period, USCIS suspended premium processing for all H-1B petitions (including for non-cap cases) for approximately five months. Premium processing is a service offered by USCIS whereby employers can pay an extra $1,225 filing fee for guaranteed review of their petition within 15 calendar days of its receipt. USCIS has stated that it does not anticipate suspending premium processing of non-cap H-1B filings, though it may impose a short suspension of this option for H-1B cap petitions.
  5. As noted at the beginning of this article, the current Administration has signaled a desire to reduce legal, skilled immigration generally. This potentially puts at risk the current employment authorized status of several categories of foreign nationals working in the United States. As an example, in its annual regulatory agenda for 2018, DHS has indicated that it plans to propose regulations to eliminate the ability of certain foreign nationals holding an H-4 derivative visa to obtain employment authorization. Regulations on this issue have not yet been proposed, but it is likely that they will be at some point this year. Similarly, the Trump Administration has repeatedly threatened to terminate or renegotiate the North American Free Trade Agreement (NAFTA), which includes provisions for employment in the U.S. of Canadian and Mexican nationals in TN status. Finally, there have been reports that U.S. Consulates have been more readily denying E-2 visa for “essential employee” workers, a status that allows foreign nationals who have special skills to work for certain foreign-owned businesses in the U.S. where the U.S. has signed a special treaty with the foreign country. Accordingly, when thinking about which of your employees to sponsor for an H-1B this season, it may make sense to take a broader look at the employment visa status of others of your employees to see if an H-1B visa petition could provide greater stability for them in the long-term.

The H-1B filing window is just two months away and the window for filing is fleeting —  just five days. It is vital that employers determine which of their foreign employees or prospective employees to whom they have made offers will require an H-1B this year. The rules (as outlined briefly above) are complex and every case requires its own analysis. It is thus important that you collect the necessary data about possible H-1B candidates and begin a discussion with your immigration legal counsel as early as possible so that appropriate plans can be made to increase the chances of your foreign national employees being able to secure and/ maintain legal status and work authorization.

Please contact any of the member of the legal team at Parker Gallini LLP if you have any questions about the new H-1B visas that are becoming available.

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The Effect of the Government Shut Down on Immigration Matters

By Grant Godfrey and Donald Parker

Like the proverbial needle that is playing a broken record, we are again in a situation where Congress has waited until the last minute to try to pass a stopgap spending bill that will keep the government funded. If such a bill is not signed into law by midnight on Friday, January 19th, 2018, the government will be “shut down” until funding has been secured. The two major political parties appear to be at an impasse, with the Deferred Action for Childhood Arrivals (“DACA”) program posing the major stumbling block. The government was last shut down for approximately two weeks in October 2013 by a group of Republicans led by Ted Cruz attempting to defund or delay portions of “Obamacare.” The last shutdown had a major effect on government services that were not fee-based. Approximately 800,000 government workers providing non-fee-based services were furloughed during the last shutdown, as they were deemed to be “non-essential employees”. The only exception where non-essential employees were allowed to continue to work was in order to protect life or property. Fee-based government services on the other hand were mostly unaffected.

Given the continuing environment of political brinksmanship, it is worth revisiting the effect that a government shutdown would have on major government agencies involved in immigration matters, and on the immigration compliance obligations of HR or hiring officials.  The following is brief overview of main government agencies affected and the ripple impact of a shutdown (if history serves as any precedent):

U.S. Citizenship & Immigration Services (“USCIS”) – USCIS is the agency that adjudicates and administers petitions and applications for immigration benefits. USCIS charges a fee for these petitions and applications.  As such, USCIS would continue to accept and adjudicate applications and petitions during the shutdown. However, a shutdown could cause disruption to certain types of work visa petitions, such as for employment in or extensions of employment authorization of E-3, H-1B1, and H-1B status. These work visas must be supported by an underlying Labor Condition Application (ETA Form 9035/9035E) certified by the Department of Labor.  As noted below, the Department of Labor does not provide fee-based services.  In the last government shutdown, the Department of Labor had stopped processing Labor Condition Applications (“LCAs”).  Should this occur in a new shutdown, any disruption in the processing of LCAs could adversely impact the ability of workers to secure approval in one of these categories or extension of their status.

E-Verify, which is for the most part a voluntary program that allows businesses to verify the eligibility of new hires to work in the United States, would also go offline during any shutdown. E-Verify registered employers and users would not be able to access their accounts. During the last shut down, USCIS stated that the “three-day rule” for E-Verify was suspended for employers who utilize the system (though employers were still required complete the Form I-9 within three days of hire). Additionally, the period during which employees were required to resolve Tentative Nonconfirmations (“TNCs”) was extended, and days that the federal government was shut down did not count towards the eight federal government workdays the employee has to clear up TNCs with the Social Security Administration (“SSA”) or the Department of Homeland Security (“DHS”). During the shutdown, employers could not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case was in an extended interim case status.

Customs & Border Protection (“CBP”) – CBP is primarily tasked with securing the border and it inspects everyone who legally enters the U.S. Most of the CBP functions are essential and are for the purpose to protect life or property. During the last government shutdown, ports of entry remained open – although some had reduced staffing and as a result there were longer wait times to enter the U.S.

Department of Labor (“DOL”) – The DOL is not fee-based, and its immigration-related functions, including accepting and processing Labor Certification (“PERM”) applications, Prevailing Wage Requests and LCAs, are not essential or for the purpose of protecting life or property. As a result, all DOL immigration-related functions would be closed for the duration of the shutdown. Note that the websites that accept these applications became static during the shutdown so while users could navigate to the home pages, they did not allow users to access their accounts.

Department of State (“DOS”) – The DOS is responsible for managing international relations, including processing visa applications at embassies and consulates in foreign countries. Consular visa services, which are fee-based, would generally not be affected by the shutdown. However, any visa services that are performed in a government building that was otherwise closed would be stopped for the duration of the shutdown. One other important function that the DOS is also in charge of administering is the Green Card quota system. During the last shutdown, the DOS appeared to continue to authorize the issuance of new Green Cards for the duration of the shutdown.

We are monitoring the situation and will send further alerts on major developments. As always, you’re invited to contact any of our immigration attorneys to discuss your specific needs.

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H-1B Rumors: Proposed Change to Post-6th Year Extension Rules

By Donald Parker and Grant Godfrey

Donald Parker - Immigration Attorneygrant-godfrey17On December 30, 2017, the McClatchy DC Bureau news service reported that according to two sources in the Trump Administration, the Administration is investigating whether it can limit the current rules which allow post-6th year H-1B extensions for foreign nationals with pending applications for U.S. Permanent Resident (“Green Card”) status.

Under current law, a foreign national’s H-1B status can be extended beyond the normal 6-year maximum if either (i) a Labor Certification Application or an I-140 Immigrant Visa Petition was filed more than 365 days prior to the 6-year maximum and has either been approved or remains pending — in which case the foreign national’s H-1B status can be extended in 1-year increments until they receive their Green Card (the “1-Year Extension”), or (ii) an I-140 Immigrant Visa Petition was approved before the 6-year maximum is reached and the foreign national is subject to a backlog in the availability of Green Cards within the employment-based Green Card category for which they are being sponsored — in which case the foreign national’s H-1B status can be extended in 3-year increments until they receive  their Green Card (the “3-Year Extension”).  These provisions were part of the American Competitiveness in the Twenty-First Century Act enacted by Congress and signed into law in 2000.

According to the sources, the Trump Administration, in furtherance of its “Buy American, Hire American” mandate, is exploring whether these extension rules can be eliminated or amended, without passing new legislation.   The sources specifically noted that the statutory language of the 3-Year Extension provides that USCIS “may grant” the extension.  This suggests that the 3-Year Extension is at the discretion of the USCIS, which means that that the USCIS could promulgate a regulation that restricted or eliminated this extension.   Similar language is not part of the 1-Year Extension.  We believe that the proposed change is not a correct reading of the statutory language and we also note that how or even whether the Administration would seek to undo or limit these post 6th-year extension provisions is entirely conjectural at this point.

That being said, the impact of such a change, were it to happen, would be significant.  Green Cards are made available in a limited number each year and are also subject to per-country percentage limitations.  As a result, there are significant backlogs in the availability of employment-based Green Cards for the nationals of a number of countries including India and mainland China.  For Indian nationals in particular, these backlogs are far in excess of the normal 6-year maximum for H-1B status.  There are likely several hundred thousand foreign nationals with approved I-140 Immigrant Visa Petitions who could be affected by a change to the post 6th year H-1B extension rules.  Without the ability to continue to extend their H-1B status beyond the 6-year limit, these employees of U.S. companies would likely have to leave the United States for at least a year and then be subjected to the H-1B cap before they could return.

While this would be catastrophic for both foreign nationals and their U.S. employers, it is important to remember that these are still early days.  First, this is a rumor at this point and there has been no formal articulation by the Administration of a proposal or a process — just that they are investigating the issue.  Second, if the Administration proposes to change these rules by regulation, the regulatory process will take many months and will likely be delayed and may even be stopped by legal challenges in Federal court. Third, if the Administration determines, or the courts require, that changes to these rules can only be made by legislation, there is little likelihood that the Administration can get legislation passed through Congress on any immigration issue — particularly one as volatile as this — in the present political climate.

Please contact Don Parker or Grant Godfrey to discuss your business immigration concerns.

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Trump Administration Takes Aim at H-4 EADs

By Grant W. Godfrey

grant-godfrey17On December 14, 2017, the Trump administration filed its intention to promulgate a proposed rule with the Office of Management and Budget (“OMB”) to eliminate the regulation that allows certain H-4 spouses of H-1B workers to apply for and receive employment authorization documents (“EADs”)At this time, no specific rule has been proposed, however, this is a strong indicator that one will be forthcoming and that H-4 EADs will eventually be taken away.  The regulation that the Trump administration is proposing to eliminate was created by the Obama administration and finalized on February 25, 2015 and allows H-4 dependent spouses to apply for EADs when the principal H-1B worker either has obtained an approved Form I-140 Immigrant Petition or has been granted an extension of their H-1B status beyond their sixth year based on a filed Form I-140 Immigrant Petition or Application for Labor Certification (“PERM”).

Background About the H-4 EAD Rule and Ongoing Litigation

The rationale for allowing H-4 spouses to receive EADs is that it allows U.S. businesses to better attract and retain highly skilled foreign workers by encouraging workers who hold H-1B status to seek to permanently remain in the United States and continue to contribute to the U.S. economy as lawful permanent residents (“LPRs”).  The Obama administration took the position that these highly skilled workers make significant contributions to entrepreneurship and research and development, which in turn drives overall economic growth and job creation.  The H-4 EAD rule acknowledges that foreign nationals who were born in certain countries (mainland China and India, among several others) are subject to wait times to become LPRs that can last a decade or longer.  By allowing the spouses of those H-1B workers who had been sponsored for LPR status to obtain work authorization during this long wait period, those H-1B workers would be incentivized to pursue permanent residence.  Additionally, many spouses of H-1B workers have their own university degrees, as well as relevant work experience, which would be of use to the U.S. economy.

On April 23, 2015, a group of technology workers who had been replaced by H-1B workers filed a lawsuit styled Save Jobs USA v. U.S. Dep’t of Homeland Security seeking an injunction to block the regulation from taking effect.  The judge denied a motion for preliminary injunction, then in September 2016 dismissed the case stating that Save Jobs USA lacked standing to challenge the rule.  Save Jobs USA appealed the decision, and then in February 2017 the newly instated Trump administration intervened and was granted a motion to place a hold on the appeal while the government considers its options relative to the H-4 EAD rule.  The Trump administration’s justification for doing so is that it does not make sense for the court to issue an opinion related to a rule that is likely to be changed.

On April 18, 2017, President Trump issued his “Buy American and Hire American” Executive Order which directed the Department of Homeland Security to evaluate the existing immigration system and propose new rules and issue new guidance to superseded or revise previous rules and guidance, if appropriate, to protect the interests of United States workers.  Since then, the Trump administration has filed several requests to continue to hold the Save Jobs USA case, which the court has granted.

The Rulemaking Process

As previously stated, on December 14, 2017, the Trump administration formally filed a notice with the Office of Management and Budget, indicating that proposed rulemaking will be forthcoming.  Once the proposed rule is published, the public will have an opportunity to provide comments, which is typically a 60-day period (though it can be longer or shorter).  The government agency must then analyze the comments and draft a final rule, in which they must address the comments and explain why they acted on some comments and not others.  The government agency then issues a final rule, which typically only becomes effective at least 30 days or more after publication.  As a result, those who have spousal H-4 EADs will have advanced warning that their employment authorization could be revoked.

While no rule has yet been proposed, we expect that one will be in the coming days, weeks, or months.  The public in general will then be able to issue its comments, and those who may be affected, and their employers, will have the opportunity to make their opinions on the rule known.

What’s Next for Those with Spousal H-4 EADs

Unfortunately, it appears that the writing is on the wall, and that at some point in the future H-4 EADs will no longer be available.  When and how it will occur is still unknown. In the meantime, those who are utilizing Spousal H-4 EADs, or their employers, should immediately speak to immigration counsel to determine whether alternative options are available, such as changing into another working visa status, or beginning the process for obtaining LPR status on behalf of the H-4 spouse.

For more information about the proposed elimination of H-4 EADs, or to ask a specific question, please contact any of the immigration attorneys at Parker Gallini.

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Trump Administration Quietly Changes 25-Year-Old Rules Related To Misrepresentations

By Myra Mahmud* and Grant Godfrey

In September of 2017, the State Department quietly changed the rules that consular officers must follow when determining whether a foreign national has made a misrepresentation of a material fact. Consular officers are frequently required to evaluate foreign nationals’ activities in the United States that violated or were inconsistent with the status they used to enter the United States. The activities that foreign nationals most commonly engage in that violate their status includes working without employment authorization, engaging in unlawful study, and applying for a green card from a status that does not allow those activities. Under those circumstances the consular officer needs to determine whether the foreign national misrepresented their intentions when they applied for the visa or spoke to immigration control prior to entering the United States. If a foreign national is found to have made such a misrepresentation, then they are generally inadmissible to the United States.

In 1991, the State Department implemented the “30/60 Day Rule” which held that if the inconsistent activity occurred within 30 days of the foreign national’s entry, then there was a rebuttable presumption that the foreign national misrepresented themselves. If the inconsistent activity occurred between 31 and 60 days of their entry to the United States, then the presumption was that they did not misrepresent themselves, though a consular office could still make a finding of misrepresentation if they had a reasonable belief that the foreign national misrepresented their intent. If the inconsistent action occurred more than 60 days after their entry, then the consular officer generally would not consider that the foreign national misrepresented themselves based solely on the conduct unless there was compelling evidence that fraud or a misrepresentation actually occurred. This rule attempted to balance a sliding scale of presumption that also acknowledged that a foreign nationals’ plans may change after they enter the United States.

New 90 Day Rule

In September of 2017, the State Department amended the Foreign Affairs Manual to replace the “30/60 Day Rule” with a new “90 Day Rule.” Under this new rule, if the inconsistent activity occurs within 90 days of the foreign national’s last entry to the United States, then the consular officer may presume that the foreign national misrepresented themselves. If the inconsistent activity occurs more than 90 days after the foreign national’s entry to the United States, then the presumption is that the foreign national did not misrepresent themselves.

While this new rule can affect foreign nationals utilizing any temporary visa, it will likely have the largest impact on individuals who enter the United States on the Visa Waiver Program (VWP). The VWP allows nationals from certain countries to travel to the United States for business or pleasure for up to 90 days, without needing to first obtain a visa overseas. It is a very restricted status, and foreign nationals who enter the United States using it generally cannot work, study, receive an extension of their stay, or change into another classification. As a result, if a foreign national enters the U.S. on the VWP and then works or studies illegally, they will be virtually assured to have a presumption that they misrepresented themselves and therefore would be generally inadmissible to the United States. Under the old 30/60 Day Rule the same foreign national would not receive the same presumption, so long as the illegal employment began at least 31 days after they entered the United States.

While the new rule lengthens the time frame during which consular officers assume there was a misrepresentation, the question of whether there was actually a misrepresentation or not turns on the intent of the foreign national during the course of the initial visa application and interactions with customs and border agents.

Additionally, the presumption that the foreign national misrepresented themselves is rebuttable. If the foreign national can present compelling evidence that they really did not intend on violating their status and that circumstances changed dramatically after they entered the U.S., then the consular officer may not find that the foreign national misrepresented themselves (though there may be other ramifications from their activities). Under the new rule, the consular officer is required to request an official opinion from the State Department before they can enter their finding that a misrepresentation occurred.

Clarity Needed

It is important to note that while the 90 Day Rule at first blush appears to be a clear-cut amendment to a preexisting standard, important questions remain unanswered. For example, we do not know whether this new rule applies to situations that occurred prior to its enactment, or whether in these circumstances the old 30/60 Day Rule should be applied. The State Department issued a Cable memo on the 90 Day Rule on September 16, 2017 that contradicted itself by stating that while the new guidance should not be applied retroactively, the 90 Day Rule will apply to all adjudications that occur after September 1, 2017. We will provide updates should there be clarification relating to outstanding questions.

For more information about the 90 Day Rule, or to ask a specific question, please contact any of the immigration attorneys at Parker Gallini LLP.

* Myra Mahmud is a law clerk at Parker Gallini LLP. Grant Godfrey is an immigration attorney at Parker Gallini.

 

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