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.

www.parkergallini.com.

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Premium Processing Suspended for H-1B Petitions Beginning on April 3, 2017

uscisUS Citizenship & Immigration Services (“USCIS”) announced late last week that beginning on Monday, April 3, 2017, and continuing for a period of up to 6 months, it will not accept any new Premium Processing requests for a pending or newly-filed H-1B petition. Premium Processing is a filing option offered by the USCIS for designated types of nonimmigrant and immigrant visa petitions whereby the USCIS guarantees review of the petition within 15 calendar days for an additional filing fee of $1,225. It has been become an essential option for employers and highly-skilled workers given the extraordinarily long time the USCIS takes to adjudicate petitions.

What Types of Petitions Are Affected:

This suspension will apply to any H-1B petitions – including cap-exempt petitions – that are received or are pending on or after April 3rd, unless a Premium Processing request is was accepted for processing before April 3rd. Since April 3rd is a Monday, all H-1B-related Premium Processing requests will need to be filed by Thursday, March 30th and received by USCIS no later than Friday, March 31st.

April 3rd is significant because it is also the first date that a new fiscal year (FY) 2018 cap-subject H-1B petition can be filed. This means that no FY 2018 cap-subject H-1B visa petitions can be filed under Premium Processing.

What Types of Petitions Are Not Affected:

All other petition filings with the USCIS for an immigrant or a nonimmigrant benefit for which Premium Processing is available will continue to be able to utilize the Premium Processing service option. Only H-1B Petitions are affected.

Why Is This Happening:

Over the past year, USCIS has fallen significantly behind in its adjudication of H-1B visa petitions, status extensions and amendments. As they have fallen farther behind, more people have converted existing filings to Premium Processing, which has just made the backlogs and delays greater. USCIS hopes that by temporarily suspending Premium Processing for H-1B cases, it will be able to move more quickly through the backlog of old cases and get caught up within a six-month period.
Whether this interim measure is the first act by Trump Administration to make the H-1B visa program unviable remains to be seen.

Cases that Could be Negatively Impacted by this Suspension:

Foreign nationals with a pending H-1B extension or transfer that includes an extension, can continue to work after their existing status has expired and while the extension case is pending for up to 240 days. With the USCIS badly backlogged in the H-1B area, it is becoming increasingly common for foreign nationals to hit this 240-day mark and still not have their case adjudicated. Foreign nationals whose underlying H-1B status has expired and whose H-1B extension request has been pending for a prolonged period of time should work with their employers and consider converting their H-1B case to Premium Processing before March 31st.

Many States now tie the expiration of Driver’s Licenses to the expiration of a foreign national’s visa status. Foreign nationals who reside in a State that follows this rule should consider filing a Premium Processing conversion now if they have a pending H-1B extension and/or are within 6 months of expiration of their status.

Foreign nationals who are planning to travel internationally, and who have a pending H-1B extension and/or are within 6 months of expiration of their status, may want to consider filing for Premium Processing to ensure that they have a new approved period before they travel or should they need to travel for any emergent reason. Similarly, H-1B holders seeking extension of status who have an approved I-140 Immigrant Petition and whose spouses hold H-4 status, may want to consider filing under Premium Processing if the spouse will be seeking an EAD to undertake employment.

Given the short notice and unexpected suspension of this benefit, employers and H-1B employees have important decisions make. The March 31st deadline is fast approaching.

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The FY 2018 H-1B Cap to Open on April 1st

As has been the case in the past several years, with improving economic conditions and increased hiring, we anticipate that demand for the limited number of H-1B visas will again vastly exceed this year’s supply. Last April, the U.S. Citizenship & Immigration Services (“USCIS”) received approximately 233,000 cap subject H-1B petitions in the first week of April for selection under the Fiscal Year (FY 2017) quota. We are projecting that this year the cap will again be reached within the first week of April and that USCIS will hold another series of 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 the petition is received no later than April 7, 2017).

The H-1B “specialty worker” visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer. 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. 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 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. With a few exceptions that require the commencement by the U.S. employer of an application for U.S. permanent resident (or “Green Card”) status on their behalf, once a foreign national has completed six years of time in the United States in H-1B status, she will be required to leave the United States for at least a year before she may again be sponsored for an H-1B visa.

H-1B visas are available in a limited number (the “H-1B cap”) on October 1st of each year, the beginning of the fiscal year of the USCIS. Applications for the up-coming fiscal year can be filed starting April 1st.

H-1B visas are given out each year in two primary tranches – 20,000 visas for foreign nationals with a U.S. earned Master’s (or higher) degree and an additional 58,200 visas 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). Note that there are additional H-1Bs (6,800 in total) that are specifically allocated to nationals of Singapore and Chile and that are available throughout the year. If USCIS receives more H-1B visa petitions than the two tranche limits in the first week of April, they will accept all cases received during the first 5 business days of the month, assign all of the received cases a number, and randomly select those that will be processed through two separate lotteries. USCIS will first run a lottery for the U.S. earned Master’s (or higher) degree tranche. Any cases not selected in that first 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. Petitions that are not selected will be rejected and returned together with the filing fee checks.

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. The CIS 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 received her U.S. Master’s degree on or before April 1st, then she is not qualified for the H-1B based on the U.S. Master’s degree. This person would have to file for an H-1B in the 58,200-visa general tranche based on a foreign or U.S. Bachelor’s degree.
  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 from their date of graduation (May or June) for one year. So, current F-1 student employees who are on OPT will commonly have their OPT expire in May or June of 2017. If the H-1B visa petition for such an F-1 student is accepted for processing before their OPT grant expires, then their OPT employment authorization can be extended until October 1st, when their H-1B status is activated, so long as the student informs the school that they have been selected in the H-1B cap.
  3. F-1 students who are graduating in a program that is designated to be within the Sciences, Technology, Engineering or Mathematics (a “STEM”) Program and who will be working with a U.S. employer that is registered with the eVerify system, are eligible for a 24- month extension of their OPT after the initial 12-month period has run. Thus, F-1 students in STEM Programs will be able to take advantage of up to 36 months of employment authorization after graduation in OPT status and will have several opportunities to apply for an H-1B visa.
  4. President Trump has clearly indicated his hostility towards the North American Free Trade Agreement (“NAFTA”) which created TN status for nationals of Canada and Mexico in the United States. Specifically, he has stated that he might invoke the clause in NAFTA that allows any of the countries to withdraw from the agreement based on six-month’s notice so that he can gain leverage in renegotiating the agreement. Because of the possibility of the termination or alteration of the TN program, U.S. employers with employees in TN status, should consider sponsoring those employees for a new H-1B status in the H-1B cap.

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 a different analysis. It is thus crucial that you collect the necessary data 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 employees being able to maintain legal status and work authorization.

Please contact any of the members 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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Immigration Ban: Some Clarity, More Confusion

Full Impact of President’s Executive Order Provisionally Revoking All Nonimmigrant and Immigrant Visas Issued to Nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen Is Still Not Clear

On Friday, January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” which barred the entry to the U.S. of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “Affected Countries”) for at least 90 days. We previously provided an alert describing the Executive Order and its implications. Since we published our alert, a previously unreleased letter from the Deputy Assistant Secretary of the Department of State (“DOS”) dated January 27, 2017 (the “Letter”) has been made public as a result of one of the lawsuits challenging the Executive Order. This Letter provisionally revoked all nonimmigrant and immigrant visas that have been issued to foreign nationals from the Affected Countries. The Executive Order and the Letter have created a great deal of confusion, concern and anxiety, and they have led to very inconsistent enforcement.

If validly issued[1], the Letter has the immediate effect of not only prohibiting foreign nationals from the Affected Countries from being able to board a plane or other vessel to seek entry into the United States despite being in possession of a previously issued and unexpired nonimmigrant visa[2], but also of technically making deportable any of nationals of the Affect Countries who are in the U.S. pursuant to lawful nonimmigrant admission. While foreign nationals from one of the Affected Countries may be deportable, their underlying status and, if applicable, work authorization have not been revoked. Persons falling under this class of affected individuals should therefore be able to continue to carry on with all of the activities that their status allows, though under the unfortunate shadow of potential deportation.

We have not heard of any cases where the Department of Homeland Security (“DHS”) has initiated removal proceedings against any foreign national from an Affected Country based on the provisional revocation of their nonimmigrant visa by the Letter. We also do not anticipate that DHS will attempt to initiate mass deportations based on this ground for several reasons. First, this ground for deportation is at odds with the concepts of “status” and “lawful admission.” Second, the use of the word “provisionally” in the Letter also suggests that the revocations may be reversed after the 90-day travel ban has expired. Third, a foreign national who has been lawfully admitted to the U.S. with a valid visa and who is considered deportable must be given proper notice and has the right to contest removal before an immigration judge. If eligible, a foreign national also has the right to seek any relief from removal that may be available. Additionally, a foreign national has the right to seek federal court review after having exhausted his/her administrative remedies. Finally, a systematic effort to deport nationals from the Affected Countries would place an enormous administrative burden on our already overwhelmed immigration courts, and would allow nonimmigrants from the Affected Countries who are present in the U.S. pursuant to lawful admission to directly challenge the legality of the Letter and Executive Order in a manner that is not currently available.

As noted previously, the Letter also revokes immigrant visas of foreign nationals from the Affected Countries. There has been much confusion as to the reach of the revocation order with respect to immigrant visas. An immigrant visa and a Permanent Resident Card (which is issued on the Form I-551 and is colloquially referred to as a “Green Card”) are not the same thing. The Letter only invalidates immigrant visas for the limited subset of foreign nationals from the Affected Countries who have received an immigrant visa abroad, but have not yet entered the U.S. We now know that Green Card holders are unaffected by the Letter. On January 29, 2017 DHS issued a press release clarifying that the Secretary of Homeland of Security has deemed the entry of lawful permanent residents (Green Card holders) to be in the national interest and therefore excepted from the Executive Order’s travel ban (though DHS reserves the right to deny entry to any lawful permanent resident where there is “significant derogatory information indicating a serious threat to public safety and welfare”). Furthermore, on February 1, 2017, The White House, through its Counsel to the President, issued a “Memorandum to the Acting Secretary of State, Acting Attorney General and Secretary of Homeland Security” further clarifying that the provisions of Executive Order suspending entry of nonimmigrants and immigrants from the Affected Countries do not apply to Lawful Permanent Residents of the U.S. The Memorandum also instructs the Heads of these Agencies to convey the interpretive guidance to those responsible for enforcing the Executive Order.

There has been confusion as to what effect the Executive Order has on dual citizens from the Affected Countries. DOS has issued a press release confirming that U.S. “Embassies and Consulates around the world will continue to process visa applications and issue nonimmigrant and immigrant visas to otherwise eligible visa applicants who apply with a passport from an unrestricted country even if they hold dual nationality from one of the seven restricted countries.” Additionally, U.S. Customs and Border Protection (“CBP”) has confirmed in its Question and Answer section of its recently created special webpage that dual citizens with will be processed for admission if they present a passport issued by a country other than one of the Affected Countries.

The ongoing roll out of President Trump’s new immigration policies have been disjointed. It has also created chaos, family hardships and a wave of doubt and fear among temporary visa holders and Permanent Residents as to security of their status in this country and whether they can safely travel internationally and be readmitted to the United States. The President’s Executive Order has also caused needless disruption to U.S. employers, universities and research institutions. The Executive Order is the subject of multiple court challenges – several of which have resulted in court orders enjoining the Government from fully implementing it. It remains a fluid situation as the current court orders are temporary and continue to be litigated.

Until the dust settles, foreign nationals from one of the Affected Countries who are present in the U.S. under a nonimmigrant visa should not depart the U.S. Even foreign nationals from a predominantly Muslim country that is not on the banned list may wish to be conservative and only depart the U.S. in cases of emergency.

Parker Gallini will continue to up-date you as more guidance is issued and as we have a better sense of the impact these rules are having on legal immigration.

Footnotes.

1. The section of Immigration and Nationality Act that the Letter  relies upon requires that the revocation be performed by “the consular officer or Secretary of State.” The Letter’s signor does not appear to be either and therefore raises the question as to whether it has been properly issued.

2. Nonimmigrant visas exempted from this Executive Order are “A-1, A-2, G-1, G-3, G-4, NATO, C-2 and certain diplomatic visas.” Additionally, the Executive Order allows the Secretaries of State and Homeland Security to waive the travel ban on a case-by-case basis where it is determined to be in the national interest.

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Trump’s Immigration Ban and What Lies Ahead?

Trump Administration Issues Executive Order Temporarily Banning Admissions of Nationals from Certain Countries and Delaying and Limiting Refugee Admissions

On Friday, January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The provisions of the Order are broad in scope and appear to be designed to target people of Muslim faith. They will, however, likely have broader application. The Executive Order took effect immediately and has since created much chaos and consternation.

Below is a summary of the provisions within the Executive Order:

Ban on Entry of Nationals of Muslim-Majority Countries

The Executive Order bans immigrant and nonimmigrant entries into the U.S., for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban on “immigrant visas” was initially applied broadly to include to foreign nationals from these countries who hold U.S. permanent resident or “Green Card” status, but the Department of Homeland Security (DHS) appears to be retreating somewhat from this stance.

Over the weekend there were numerous reports of delays for admission at U.S. international airports as well as of detentions and removals. Several Federal Courts have issued temporary stays enjoining the Department of Homeland Security (DHS) from enforcing certain aspects of the Executive Order. At the same time, DHS has issued a press release stating that it believes that the Executive Order is lawful and will enforce it, within the confines set out by the judiciary.

There is a considerable amount of confusion as to the status of the Executive Order. For example, in a Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, the Head of the Department of Homeland Security appears to walk back the ban with respect to Green Card holders from the designated countries, when he stated: “I hereby deem the entry of lawful permanent residents to be in the national interest.” Yet, in the very next sentence Secretary Kelly calls it a “dispositive factor in our  case-by-case determinations.” What seems to be clear from the latter statement is that while the Department of Homeland Security won’t prohibit Permanent Residents from the affected countries from seeking admission, it will nonetheless subject individuals in this class to secondary inspection, more extensive questioning and delays, and potentially even detention or removal.

While this ban temporarily (i.e. for 90 days) affects nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, other countries may be added and adjudications of other immigration benefits (not just admission into the United States) could be impacted. The Executive Order also calls for the exclusion of people who “would place violent  ideologies over American law” or “who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own).” This language is vague and appears highly susceptible to discriminatory abuse generally and specifically against people of Muslim faith.

Requires In-Person Interviews for Most Nonimmigrant Visa Applicants

The Executive Order suspends the Visa Interview Waiver Program (VIWP), requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute. The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of  expiration of the initial visa in the same classification. This program was largely used by employment-based nonimmigrant applicants, such as H, O, P, and L, who are simply seeking a renewal visa. Suspending the VIWP will place enormous burdens on U.S. consulates and embassies (particularly high-volume posts) by increasing already extended interview wait times and processing times, wasting limited resources, and decreasing the quality of consular interviews. The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel.

Given these changes, any individual who may be in the process of applying or who is contemplating filing for a nonimmigrant visa should anticipate delays in the processing of their visas and the possibility of being stuck abroad for “administrative processing” due to background checks.

Screening of all Immigration Benefits

The Executive Order directs federal agencies to develop screening standards and procedures for all immigration benefits to identify fraud and detect whether a person intends to do harm. Agencies are directed to create a process to evaluate the person’s “likelihood of becoming a positively contributing member of society” and “ability to make contributions to the national interest.” These standards are not  required by law (except in very limited circumstances), are extremely subjective, and may create significant and often insurmountable barriers for many individuals.

Biometric-Entry Exit

The Executive Order directs agencies to expedite the completion and implementation of a biometric entry-exit system and includes reporting requirements. Since 1996, Congress has mandated that an automated entry-exit system be utilized and implemented at all air, land, and sea ports of entry in an attempt to track those who overstay their visas. While DHS implemented biometric entry in 2006, a biometric exit system has been held up by numerous obstacles and logistical issues. The completion of an integrated biometrics entry-exit system will require significant funding. The FY 2016 Consolidated Appropriations Act authorizes up to $1 billion for a biometric exit program, to be collected through fee surcharges over a period of up to 10 years. DHS has noted that a comprehensive entry-exit system at all ports of entry will require additional resources.

Some of these provisions will likely be fleshed out in subsequent Executive Orders and in proposed regulations. These provisions are  likely, at a minimum to create significant delays in visa applications by skilled workers applying in the common employment-based categories – H-1B, L-1, TN, E1/2/3 and O-1. There are also suggestions in some of these provisions of additional restrictions and limitations that could affect the adjudication of immigration benefits in the United States and not just travel.

Suspension of the U.S. Refugee Admissions Program (USRAP)

The Executive Order suspends the USRAP for 120 days. Exceptions can be made on a case-by-case basis if (i) it is in the national interest, (ii) the person would not pose a risk, and the person is a religious minority facing religious persecution, (iii) the admission of the person is required to conform U.S. conduct to an international agreement, or (iv) when a person is already in transit and denying admission would cause hardship. In addition, for the current fiscal year which expires September 30, 2017, the Order reduces the number of refugees to be admitted to the U.S. by more than half from an initial goal set by President Obama of 110,000 to 50,000, dropping U.S refugee admissions to the lowest level in a decade. Having already admitted 29,895 refugees as of January 20, 2017, the United States would only admit 20,000 more refugees for the remainder of the year. The Order also directs DHS to determine the extent to which state and local jurisdictions may have greater involvement in determining the placement or resettlement of refugees in their jurisdictions.

Ban on Syrian Refugees

The Executive Order halts the processing and admission of Syrian refugees indefinitely, until the President determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.

What lies ahead and to possibly prepare for

There has already been a great deal of backlash against the Trump Administration for the way it has carried out this Executive Order and it is already facing legal challenge in several federal courts across the country. Nonetheless, the reality is that it is in place and the DHS is following executive directive. It could easily be several months before we get a better picture of how our immigration system will be administered in light of this Executive Order.

Anyone holding a nonimmigrant visa or a green card who is a Muslim and is a national of one of the affected countries should not travel outside the U.S. That much is quite clear. Those of Muslim faith or from a predominantly Muslim country (yes – even one that is not on the banned list) may want to postpone travel outside of the United States – except in cases of emergency – until we have a better sense of the application of the Executive Order by U.S. Customs & Border Protection (CBP).

Any person who has to apply for a visa (nonimmigrant or immigrant) should anticipate delays in visa issuance and the possibility of being  unable to return to the U.S. for up to several months due to “administrative processing.”

Any person who holds a valid unexpired visa (whether it was issued under their current employer’s name or a prior employer’s name) should be well-prepared to document their employment with their new employer by carrying pay statements, the contact information of their company’s HR, and a letter confirming their employment and expected return to employment in the position listed in their visa petition.

Any person traveling to the U.S. for a temporary period on business should also carry back up documentation to support the purpose of their visit. This includes proof of confirmed lodging, business contacts, proof of employment abroad, and any other documentation that would tend to confirm one’s actual residence. This is not to say that every traveler can or should expect the third degree questioning from CBP, but given the current climate it certainly cannot hurt to be prepared.

Parker Gallini LLP will continue to up-date you as more guidance is issued and as we have a better sense of the impact these rules are having on legal immigration.

Please contact Parker Gallini LLP (www.info@parkergallini.com; 781-810-8990) if you have any questions about the latest Executive Order of President Trump.

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Immigration Alert: The Trump Effect

On November 8, 2016, Donald Trump was elected to become the next President of the United States.  Throughout his campaign President-Elect Trump railed against our country’s current immigration policies and promised radical changes – including swift deportation of those who did not enter the country lawfully and were present without status, and the building of a “big beautiful wall” which “Mexico will have to pay for.”  In this Immigration Alert, we will outline which of his “policies” are feasible in the short-term and in the long-term.  This discussion is limited to immigration issues that will affect employers.

While the President has wide-ranging authority, his powers are limited by the Constitution and he has limited ability to act unilaterally.  To enact most major changes, the President requires a willing and functional Congress to pass laws, to ratify actions on treaties, and to fund his executive proposals. While President-Elect Trump has articulated aggressive positions on immigration, economic realities and Congressional discord are likely to limit what he is able to accomplish.

Possible Short-Term Actions

Reinstating Special Registration for Foreign Nationals Who Are From, or Have Traveled Through, Certain Countries – In the wake of the September 11th terrorist attacks, regulations were promulgated that require foreign nationals who are from, or who had traveled through, certain designated countries, to only enter or exit the U.S. through specific ports and using special procedures (the “NSEERS Program”).  Those foreign nationals were also subjected to heightened scrutiny screening (including a lengthy interview), and were subject to ongoing requirements of keeping the Department of Homeland Security (“DHS”) informed of their whereabouts and plans.  Under these rules, the DHS can also request that specially registered foreign nationals appear at a designated office to provide additional evidence of their maintaining status on 10 days’ notice.  Failure to follow the requirements of the program would make the affected foreign national inadmissible (i.e. unable to return to the U.S., or unable to receive a green card from within the U.S.) and possibly deportable.

In 2011, the DHS determined that this system was redundant, and suspended the program by depopulating the database of foreign nationals who need to register.  However, the regulations creating the program are still in place, and President-Elect Trump could reinstate it on short notice.

Ending Deferred Action for Childhood Arrivals (“DACA”) – President Obama created this program in the Summer of 2012. DACA allows certain undocumented foreign nationals who arrived in the U.S. when they were children under the age of 16 and were under 31 when DACA was enacted, to apply for and receive Deferred Action and to also apply for an Employment Authorization Document (“EAD”) permitting the applicant to work.  The applicant must meet certain eligibility requirements, including a criminal background check. The grant of Deferred Action is acknowledgement by the DHS that the applicant does not hold lawful status in the U.S. and that the DHS will defer taking any enforcement action to remove the applicant to his/her home country.  An applicant who has been granted DACA relief can renew his/her EAD in two year increments as long as the program exists and as long as the applicant continues to remain eligible.

President-Elect Trump has stated that on his first day in office he will terminate this program.  Since the program was created by executive action, President-Elect Trump will be able to unilaterally end it once he assumes office.  However, current regulations do not allow the U.S. Citizenship and Immigration Services (“CIS”) to automatically revoke already issued and valid EADs.  Instead, CIS must follow a revocation procedure where it provides notice to the affected foreign nationals of its intention to revoke the EAD.  The foreign national then has a 15-day period to respond before CIS can issue a final letter notifying the foreign national that the EAD has been formally revoked. A DACA recipient that does not have another pathway to work authorization (such as being in a bona fide marriage to a U.S. citizen) will eventually lose employment authorization.  The only saving grace is that the notice requirement will at least give the foreign national, as well as the employer, a period of at least a few weeks to plan for and orchestrate the foreign national’s exit from the company.

Since DACA was created, over 840,000 foreign nationals have applied for and received EADs under the program.  Issuing such a high number of revocation notices will be time consuming and expensive.  As a result, it is possible that President-Elect Trump will decide to end the program going forward and let the EADs run their course.  However, given his strong rhetoric, employers should not plan on this happening.  It is also possible that a legal challenge to any action on his part will block the revocation for a period of time.

Ending Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) – In 2014, President Obama attempted to create a similar program to DACA for the undocumented parents of children who are U.S. citizens or have green cards.  However, a federal district court issued a restraining order preventing President Obama from implementing the program.  This past summer, the Supreme Court issued a 4-4 split decision that did not declare that President Obama’s actions were unconstitutional but left the restraining order in place. We expect that President-Elect Trump will end this proposed program and discontinue defending the lawsuit.

Suspending Issuance of Visas and Barring Foreign Nationals from Entering the United States – President-Elect Trump has made repeated statements about halting the flow of immigration, in particular: (i) that he will temporarily suspend immigration from regions that “export terrorism,” including in particular Syria, Iraq and Libya, (ii) that he will put in place an ideological screening test (called “extreme vetting”) to ensure that the foreign nationals “share our values and love our people,” and (iii) that he will call for a temporary and total ban on the entry of Muslims into the United States.

Immigration law allows the President to block the entry of any group of foreign nationals whom he deems will be “detrimental” to the interests of the United States.  He cannot, however, deport members of the blocked group merely because of their membership.  Current regulations only allow already issued visas to be revoked under limited circumstances, mostly in the situation of fraud or mistake.

President-Elect Trump’s first statement regarding nationals of Iraq, Libya, and other countries in conflict may be do-able, though as stated above, he cannot deport those foreign nationals who are already in the United States.  One option available to the President-Elect would be to reinstate the NSEERS program discussed above and apply it to nationals of those countries.  His second and third statements are more complex and, because they would change admission rules more broadly, likely would require regulatory or statutory amendment, both of which are lengthy processes.  We also suspect that any of the actions described above will be subjected to legal challenge, with each of the points in order having stronger arguments that they are unconstitutional or exceed his authority without Congressional approval.

Finally, there is the reminder that we live in a global economy and that immigration policies that we enact to abridge the entry of other country’s citizens will likely be met with similar restriction on U.S. citizens and U.S. companies seeking to or doing business in those countries.  Many U.S. companies that are important to our economy have substantial business interests in the regions that President-Elect Trump’s policies would affect and they would be quick to put pressure on the President to end his proposals if they harm their entry or position in these countries’ markets

Possible Longer-Term Actions

• Renegotiating Treaties and Trade Agreements – President-Elect Trump has stated that he will terminate and/or renegotiate a number of treaties and trade agreements.  However, most treaties and trade agreements cannot be unilaterally revoked by the President without prior Senate approval.  Some treaties and trade agreements contain withdrawal clauses, which Mr. Trump could trigger.  However, there is usually a notice period of at least several months before the U.S. could withdraw.  Economic analysis of his proposals to terminate treaties or trade agreements suggest that the potential for trade wars, increased costs of goods, and impediments to doing business overseas could have a significant negative impact on the U.S. economy.  Additionally, any treaties and trade agreements which replace existing ones will commonly require ratification by Congress, which means that President-Elect Trump is going to need to compromise.

President-Elect Trump has focused much of his criticism on the North American Free Trade Agreement (“NAFTA”), through to which the TN visa program for Canadian and Mexican nationals operates.  Were President-Elect Trump to end or re-negotiate NAFTA, that could eliminate or change the TN visa option.  Similar visas exist through the H-1B1 visa program (with Chile and Singapore), and the E-3 visa program (with Australia).  Given President-Elect Trump’s hostile rhetoric in particular to NAFTA, employers with TN workers may want to take affirmative steps to move them into another working visa, like the H-1B.

• Restricting Opportunities for Highly Skilled Foreign Workers –  President-Elect Trump has made inconsistent statements regarding visa programs for highly-skilled workers, including in particular H-1B visas, STEM students, and spousal EADs.  Any program replacing them will take months or more than a year to implement either through notice and comment rulemaking or Congress writing and passing new laws.  President-Elect Trump’s businesses specifically, as well as many U.S. businesses in general, have benefited from these programs, so we expect that programs to survive largely intact, though possibly with heightened restrictions placed on them in the coming years that will make them less appealing or useful.

Posted in Uncategorized

New STEM OPT Extension Rules Go into Effect on May 10, 2016

On March 11, 2016, the Department of Homeland Security (www.dhs.gov) (“DHS”) published a final rule that significantly revises portions of the work authorization process for F-1 students.  The new rule, which will go into effect on May 10, 2016, addresses extensions of F-1 post-completion Optional Practical Training (“OPT”) for foreign students who have completed U.S. degree programs in the fields of Science, Technology, Engineering, or Mathematics (“STEM”).  The rule replaces the current STEM OPT regulations that were invalidated by a Federal court decision in August 2015 on procedural grounds. To mitigate potential harm to foreign students and their employers, the court stayed its judgment twice for a total of nine months, i.e. until May 2016, to give DHS time  to promulgate new regulations in accordance with the Administrative  Procedures Act.   The STEM OPT regulations impose additional administrative burdens on sponsoring US employers and F-1 students, but they also are potential lifeline for foreign nationals who have graduated from U.S. universities and have been unable to secure an H-1B working visa.

The new STEM OPT Extension rule stays within the spirit of the original STEM OPT Extension rule that has been in effect, with several significant changes and in some cases improvements.  The changes made by the new rule are as follows:

  • The STEM OPT extension of work authorization is increased from 17 months to 24 months.
  • A student who uses the 24-month STEM extended OPT and then graduates with another, higher level degree in STEM field will be entitled to a second 24-month extended OPT (after the regular 12-month OPT that comes with that degree).  A student will, however, only be entitled to two separate 24-month STEM extensions for two degrees.
  • F-1 students who have graduated from a non-STEM degree field, but previously received a STEM degree in the U.S. within the past 10 years can qualify for a STEM OPT extension provided that that their job is directly related to that earlier degree field.
  • To obtain a STEM OPT extension, as was the case with the prior STEM rules, the employer must be registered with the E-Verify system (https://www.uscis.gov/e-verify) and must agree to notify the STEM degree school in the event that the student’s employment ends for any reason.
  • Unlike the prior STEM OPT rules, the new rules now require as a condition to an F-1 student receiving a STEM OPT extension, that the employer first adopt a Training Plan and provide it to the school. The Training Plan is completed on a Form I-983 – Training Plan for STEM OPT Students.  The student must submit the completed and signed Form I-983 to his or her school as a condition to being granted the STEM OPT extension.

The Form I-983 Training Plan contains attestations by the employer that (i) the employer has sufficient resources and personnel and is prepared to provide the training required in the Training Plan; (ii) the student will not replace a full- or part-time temporary or permanent U.S. worker; and (iii) the employment opportunity will assist the student in reaching the goals set forth in the Training Plan. The Training Plan must contain the following provisions:

  • The Training Plan must identify goals for the STEM practical training opportunity including specific knowledge, skills or techniques that the student will learn from the program and explain how those goals will be achieved through the STEM training program with the employer.
  • The Training Plan must describe the process by which the student will be evaluated and supervised during the course of the program.
  • The Training Plan must explain how the training is directly related to the student’s STEM degree.
  • The Training Plan must also describe (i) the duties, hours and compensation of the student and (ii) show they are commensurate with the terms and conditions of employment of similarly situated U.S. workers employed by the employer in the area of employment.
  • A student seeking STEM OPT extension must file a Form I-765, Application for Employment Authorization with the appropriate filing fee and supporting documentation within 60 days of the date that the Designated School Official (DSO) recommends STEM Extension OPT on the Form I-20 Certificate of Eligibility and enters it into the SEVIS record.  Note:  The 60-day rule only applies to STEM Extension OPT.  F-1 students seeking a 12-month period of post-completion OPT must file their I-765 within 30 days of the DSO’s recommendation and entry into the SEVIS record.
  • If a foreign student changes employers during the 24-month STEM extension period, then within 10 days of commencing the new employment, the student must submit a new Form I-983 with a new Training Plan signed by the new employer to their school in order to obtain the school’s approval of continued STEM extended OPT with the new employer.
  • As noted in the introduction, the new STEM OPT rules become effective on May 10, 2016. If a foreign student applied for the 17-month STEM extension prior to May 10th and that extension is pending on May 10th, then the USCIS will issue an RFE in the pending application requesting a newly issued SEVIS Form I-20 from the school covering the full 24-month period (the issuance of which by the school will require the provision of a Training Plan on Form I-983). Upon  receipt of the requested documentation, USCIS will then be able to grant the full 24-month extension period.
  • An F-1 student who received a 17-month STEM extension prior to May 10th may request an additional seven months of EAD validity provided that the F-1 student applies for the additional time between May 10th and August 8, 2016.  The F-1 student must have at least five months of validity remaining on their 17-month STEM extended EAD at the time of their application filing.  The application for the additional seven months must include a new SEVIS Form I-20 from the school (which can only be issued by providing the school with a completed Training plan on Form I-983).
  • An F-1 Student whose EAD expires while an application for STEM OPT Extension is pending review by the USCIS will receive an automatic extension of employment authorization of up to 180 days beyond the date of the EAD’s expiration.
  • F-1 students seeking a 24-month STEM OPT extension are allowed to have been unemployed for up to 90 days during their initial 12-month post-completion OPT and upon grant of STEM Extension OPT the unemployment limit is extended and additional 60 days for total not to exceed 150 days of unemployment during the entire (36 months) OPT period.
  • F-1 students who were previously granted a 17-month STEM OPT extension and are seeking a 7- month extension of STEM OPT must not have accrued more than 120 days of unemployment in the aggregate.  Upon grant of the 7-month extension F-1 students may not accrue more than 150 days of unemployment during the entire (36 months) OPT period.
  • The Student and Exchange Visitor Program (SEVP) revised its guidance on May 5th – Broadcast Message Number 1605-01 (Revised Guidance for SEVIS Workarounds and STEM OPT Transition) -to provide special filing instructions for those students who become eligible on May 10, 2016 for a STEM extension based on a prior degree or for a seven-month extension of approved STEM OPT and who must file their applications before May 23, 2016.  The new guidance instructs students in these categories to file a Form I-765 with USCIS no earlier than May 10, 2016 without the Form I-20 and to include one of the following statements:
    • For students whose filing deadline for a seven-month STEM OPT extension falls before May 23, 2016:
      Due to new regulations, I must apply for the seven-month STEM extension of my OPT before SEVIS supports it. I am eligible based on my prior degree. I will provide a Form I-20 with the extension recommendation after USCIS requests it.
    • For students eligible for a STEM extension based on a PRIOR degree and whose current post-completion OPT ends before May 23, 2016:
      Due to new regulations, I must apply for the 24-month STEM extension of my OPT before SEVIS supports it. I am eligible based on my prior degree. I will provide a Form I-20 with the extension recommendation after USCIS requests it.

A few additional notes about the final rule:

  • The Cap-Gap provision survived and continues to apply.  This provision grants automatic extension of status and work authorization under the EAD to an F-1 student whose EAD will expire any time between April 1 and October 1 (when new H-1Bs become available) if the F-1 student has been sponsored for an H-1B petition under the H-1B cap with a request to change status, and the filing occurs before the EAD’s expiration. As the H-1B cap has repeatedly been reached in the first week of April, this assumes a filing will have been made in the first week.  Under the Cap-Gap provision, the automatic extension of work authorization will continue until October 1 unless any of the following occur: (i) the F-1 student is not selected in the H-1B lottery; (ii) the sponsoring employer withdraws the H-1B petition before it is approved; or (iii) the F-1 student travels abroad before the H-1B petition has been approved.
    An F-1 student may travel abroad and seek readmission during the Cap-Gap period to recommence employment under the Cap-Gap provision if the H-1B petition and change of status have been approved before the F-1 student departs the U.S.   However, F-1 students need to have a Form I-20 validly endorsed for reentry by the DSO within the last six months and should also have a valid multiple entry F-1 visa.
  • An F-1 student is still not permitted have “dual intent” – i.e. seek permanent residence or otherwise have an intent to immigrate permanently to the U.S. without risking loss of F-1 status or readmission to the U.S.

These new STEM Extension OPT rules are complex. The USCIS has launched a very useful site – https://studyinthestates.dhs.gov – that provides guidance to employers, F-1 students and school officials to help them better understand these provisions and also tools to make navigating the intricacies of OPT and STEM OPT somewhat easier.  Nonetheless, USCIS will not hesitate to reject and return applications that are incomplete, untimely filed or improperly prepared.  With the H-1B cap selections now complete, Employers should carefully review all employees who are work authorized under F-1 post-completion OPT to determine what actions can and must be taken and by what given dates.  Parker Gallini LLP will be happy to assist employers who have questions about the new STEM rules and how they might apply to their foreign national employees.

Donald Parker (dparker@parkergallini.com)
John Gallini (jgallini@parkergallini.com)
Grant Godfrey (ggodfrey@parkergallini.com)

Posted in Uncategorized

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