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 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.

Grant Godfrey is an immigration attorney at Parker Gallini.


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The Rescission of the DACA Program

On September 5, 2017, President Trump announced that the Deferred Action for Childhood Arrivals (“DACA”) program will be ending. DACA was put in place by the Obama Administration in June of 2012. It provided a period of deferred action from deportation for people illegally present in the United States who had entered the United States before the age of 16 — commonly called “Dreamers.” DACA also allowed eligible participants to apply for both Employment Authorization and special Travel Authorization called Advance Parole from the United States Citizenship and Immigration Services (“USCIS”). Over the past several years, almost 800,000 people have applied for deferred action under DACA. President Trump’s order provides for a phase out of the DACA program and the President has suggested that he would support Congressional action to provide permanent protection for Dreamers. That being said, given the inability of Congress over the past decade to come together on any immigration legislation, the likelihood of a legislative DACA replacement is not high.

The following is a list of the key components of the phase out of DACA:

1. If You Do Not Already Have DACA or a DACA Application Pending, then as of September 5, 2017, You Can No Longer Apply.

Effective as of the end of the day on September 5th, USCIS will no longer accept new applications for DACA. Note, however, under certain circumstances, USCIS will accept DACA extensions, as described below.

2. If You Have DACA and Employment Authorization That Expires on or Before March 5, 2018.

If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017. Note, however, that in the absence of a legislative fix or some other action by the President, there will be no further renewals of your DACA or work permit after this 2-year extension. Note also that as described below, USCIS is not accepting applications for Advance Parole and will only process the applications for DACA and a work permit.

3. If You Have DACA and Employment Authorization That Expires After March 5, 2018.

If your DACA and work permit expire after March 5, 2018, you are not eligible for an extension. Absent a legislative fix your DACA, work authorization, and protection from deportation will expire on the date shown on your existing DACA approval notice and work permit.

4. If You Have a DACA Application Pending By the End of Day on September 5, 2017.

If you have a new DACA application or extension that was received at USCIS on or before September 5, 2017, your application will continue to be processed. This means that you will get a 2-year grant or extension of DACA and your work permit, but in the absence of a legislative fix or some other action by the President, your DACA and work permit validity will end at that point. Additionally, as will be described below, if you have a pending application for Advance Parole, processing will be closed and the filing fee will be refunded.

5. If You Have DACA and a Valid Advance Parole Travel Document.

If you have DACA and have a currently valid advance parole document, you may still use the document to travel and return to the U.S. as long as you return BEFORE the Travel Document expires. However, even with a valid Travel Document, CBP can still refuse to let you in under certain circumstances. Traveling on DACA Advance Parole is risky and before doing so, you should speak to a qualified immigration lawyer.

6. If You Have an Advance Parole Travel Document Application Pending.

USCIS will no longer process or approve applications for Advance Parole Travel Documents for DACA recipients. If you have an application for DACA-based Advance Parole pending as of September 5, 2017, USCIS will close the application and return the filing fees to you.

The future for Dreamers is not clear at all. The President suggests he supports some form of legalization or permanent deferred action and has stated that the deportation of Dreamers is not a priority, but his positions both on the campaign trail and on other immigration issues would suggest otherwise. While Congress could pass legislation that would help, the time frame for this (essentially March 5, 2018) is short. Finally, an important open issue is whether the Administration will use the information that has been gained from DACA registrations to aggressively seek to deport Dreamers even though the DACA program promised not to use the information in this way.

To discuss this issue further, please contact Donald Parker, immigration attorney with Parker Gallini LLP.

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U.S. Supreme Court Allows Portions of President Trump’s Travel Ban

On June 26, 2017, the Supreme Court of the United States (the “Supreme Court”) issued an order (the “Order”) granting certiorari to hear the Administration’s appeal of several lower court injunctions against President Trump’s revised Executive Order (the “Executive Order”) that was originally to go into effect on March 16, 2017. The Executive Order (which replaced an earlier Executive Order also blocked by the Federal courts), sought to: (a) institute a 90-day travel ban to prevent nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Six Affected Countries”) from entering the U.S. (the “Travel Ban”), and (b) both suspend the U.S. Refugee Admissions Program (“USRAP”) for 120 days and then cap the number of refugees admitted to the United States to 50,000 for the Government’s fiscal year 2017 (the “Refugee Ban”).

See: Full text of Supreme Court Order.

The Executive Order was blocked by the lower courts, and the above provisions were prohibited in their entirety. Two Circuit Courts of Appeals upheld the lower courts’ rulings and the Trump Administration appealed to the Supreme Court.

The Supreme Court’s Order states that it will hear arguments during its first session in October.

Additionally, the Order removes the injunctions of the lower courts in part. Specifically, the Supreme Court finds that the lower courts’ injunctions will be lifted and limited versions of the Travel Ban and Refugee Ban will apply only for individuals “who lack any bona fide relationship with a person or entity in the United States.” In contrast, the injunctions by the lower courts on the Executive Order will remain in place for individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States” – in other words, this group of individuals will not be subject to the Travel Ban. This same standard will apply to the Refugee Ban, so the Government can in theory allow more than 50,000 refugees to enter the United States before the fiscal year ends provided that these refugees have a credible claim of a bona fide relationship with an individual or entity in the United States.

The Supreme Court’s Order also defines what it means by a “bona fide relationship with a person or entity in the United States.” In order for an otherwise affected foreign national to claim a bona fide relationship with a person, it must be a close family relationship (e.g. entering the U.S. to live with or visit a family member such as a spouse or mother-in-law). Where an otherwise affected foreign national is claiming a bona fide relationship with an entity, it must be a formal, documented relationship that was formed in the ordinary course (e.g. students who are coming to attend University, workers who have accepted offers of employment, or lecturers who have been invited to address an American audience).

Note that the Trump Administration issued a Memorandum on June 14th which clarified that if the injunctions preventing the Travel Ban or Refugee Ban were lifted, the Bans will go into effect three days after the injunction is lifted, i.e. June 29, 2017.

The Supreme Court’s Order is clearly a win in part for President Trump. Under the Order he can ban the subset of individuals from the Six Affected Countries who do not have the right kinds of connections with U.S. persons or entities from entering the United States until September 27, 2017. Similarly, President Trump can prevent certain refugees who do not have any connections to the United States from entering the U.S. until October 27, 2017. But the Order does acknowledge that the Federal government’s interest in securing our borders may not necessarily extend to persons from the Six Affected Countries who have a bona fide relationship or basis for traveling to the United States. It is also important to note that this Order applies only until the Supreme Court reaches a final decision on the injunctions sometime after October 1st.

In a concurrence that was issued along with the Order, three of the Justices have already signaled that they will side with the Trump Administration’s argument that it has close to plenary authority to block the entry of foreign nationals to the United States. The other six Justices have not expressed which position they support.

Lastly, a final decision by the Supreme Court on the legality of the Executive Order may depend on whether the Trump Administration seeks to extend or make permanent the provisions contained in the Executive Order. One of the stated reasons for the Executive Order was to give various Administration agencies the opportunity to investigate the risk to U.S. security of allowing people from the Six Affected Countries to travel to the U.S. as well as the USRAP. The Supreme Court’s Order notes specifically that this partial lifting of the injunction should allow the Administrative the time that it originally said it needed to make these assessments. In the event that the Administration, after performing its assessment, concludes that some or all of the provisions contained in the Executive Order should not be extended, it would arguably render moot the legal fight at the Supreme Court over the validity of the injunctions by the lower courts.

Please contact any of the immigration attorneys at Parker Gallini LLP to discuss questions you have concerning this important Supreme Court Order and the future of President Trump’s Travel and Refugee Ban Executive Order.


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