January 2018 Newsletter
In This Issue
ABIL Commentary: Threats, Opportunities for Employers in 2018
After a tumultuous, difficult year in 2017 with respect to immigration and border issues, attorneys from the Alliance of Business Immigration Lawyers (ABIL) shared their thoughts on what employers can expect in 2018. Below is a summary of their responses and reports from the field.
Where Things Stand Now
The Trump administration appears to be attempting to keep various campaign promises on immigration and border enforcement that mesh with the President's (and his supporters') overall dim view of foreign people entering the United States. Before he was elected, President Trump made a wide range of anti-immigration promises couched in national security terms. Those promises included, among other things, building a massive wall along the southern border and making Mexico pay for it; immediately deporting undocumented migrants; barring Muslims from entering the United States; "extreme vetting" of immigrants; and creating a "deportation force." The President has waffled on Deferred Action for Childhood Arrivals (DACA) “Dreamers,” verbally expressing his support and understanding of their plight and then canceling the DACA program with an exhortation for Congress to handle it.
Executive orders issued since his inauguration have included various entry/travel bans, limits on refugees, and threats to sanctuary cities to pull their federal funding. The first travel ban on people entering from several predominantly Muslim countries was announced seven days after his inauguration with no apparent advance process, discussion, preparation, warning, or guidance to the Department of Homeland Security. The result was chaos and protests at airports. Various court challenges and subsequent travel bans ensued.
Arrests for "noncriminal immigration violators" are up, with 31,888 noncriminal arrests during the first eight months of the Trump administration, according to U.S. Customs and Immigration Enforcement. On the other hand, deportations have actually decreased by about 14,000 this year, reports say, but Attorney General Jeff Sessions has called for a "concerted effort" by immigration courts to speed up processing of pending immigration cases.
Concerns for 2018
Current concerns for 2018 include:
In addition to those noted above, future concerns include:
Although no one has a crystal ball and things look bleak overall for the foreseeable future on the immigration front, there are a few positive indications on the horizon. For example, according to reports, after conferring with President Trump, leaders in Congress are seriously considering introducing a measure in January 2018 to allow DACA "Dreamers" to stay in the United States. As of September 4, 2017, there were 689,821 people with valid DACA status in the country. Sen. Lindsey Graham (R-SC) was quoted in late December following a meeting with President Trump: "He wants to make a deal. He wants to fix the entire system."
Also reportedly under serious consideration is meaningful EB-5 reform legislation, such as the Fairness for High-Skilled Immigrants Act, which would allow some EB-5 investors to obtain immigrant visas more quickly because their place in the waiting line would no longer depend on the nation of chargeability. And USCIS began accepting applications again under the International Entrepreneur Rule in December, albeit temporarily while the agency drafts a notice of proposed rulemaking to quash it permanently.
Otherwise, some court challenges are either already working their way through the system (e.g., on the latest travel ban) or may be filed in the future.
In general, ABIL recommends that employers and employees consider:
The U.S. Embassy in London is Moving
The U.S. Embassy in London will be moving to a new location in Nine Elms and will open to the public on January 16, 2018.
The postal address of our new U.S. Embassy in London is as follows:
Embassy of the United States of America
33 Nine Elms Lane
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REAL ID Act: New Security Measures Start January 22
Starting January 22, 2018, passengers who have driver's licenses issued by a state that does not yet comply with the REAL ID Act and that has not received an extension will need to show an alternative form of acceptable identification for domestic air travel. Passengers who have licenses issued by a state that is complying or that has an extension to become compliant with REAL ID requirements may continue to use their licenses as usual.
Starting October 1, 2020, every air traveler must present a REAL ID-compliant license or another acceptable form of identification for domestic air travel. A REAL ID compliant license is one that meets, and is issued by a state that complies with, the REAL ID Act’s security standards.
The Department of Homeland Security (DHS) noted that REAL ID allows compliant states to issue driver's licenses and identification cards where the identity of the applicant cannot be assured or for whom lawful presence is not determined. Some states currently issue such noncompliant cards to undocumented individuals. These cards must clearly state on their face (and in the machine-readable zone) that they are not acceptable for official purposes and must use a unique design or color to differentiate them from compliant cards, DHS said. DHS cautioned against assuming that possession of a noncompliant card indicates the holder is an undocumented individual, given that several states issue noncompliant licenses for reasons unrelated to lawful presence.
Many states are already REAL ID compliant. DHS reportedly has granted the following states and territories an extension until October 2018 to meet federal standards and make their state-issued IDs compliant: Alaska, American Samoa, California, Guam, Idaho, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Missouri, Montana, Northern Mariana Islands, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, U.S. Virgin Islands, Virginia, and Washington.
States under review for a renewed extension include New York, Michigan, and Louisiana.
Travelers can check DHS's website for additional information and can check with a state's driver's license-issuing agency about how to acquire a compliant license.
Visit the DHS's REAL ID webpage.
Read the DHS's Transportation Security Administration's list of acceptable forms of identification for airport checkpoints.
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DHS Implements New VWP Security Measures
Secretary of Homeland Security Kirstjen M. Nielsen announced on December 15, 2017, that the Department of Homeland Security (DHS), in consultation with the Department of State and other federal agencies, is implementing new security requirements for the Visa Waiver Program (VWP). VWP allows citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. Each year, the United States allows more than 20 million visitors to travel to the United States under the VWP.
The new measures include requiring VWP countries "to use counterterrorism information to better screen travelers," assessing VWP countries "to ensure they implement safeguards against the aviation sector," and requiring certain VWP countries "to initiate public information campaigns to reduce overstays."
Specifically, DHS is introducing the following measures applicable to all countries in the VWP:
DHS is also asking Congress to codify existing VWP requirements to bolster efforts in the following areas:
DHS also said that travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:
Read DHS Secretary Nielsen's statement here.
Read additional information on the VWP, including a list of participating countries.
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USCIS Announces Restrictions on TN Economist Status
U.S. Citizenship and Immigration Services (USCIS) recently published policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for Trade NAFTA (TN) nonimmigrant status as an economist. The policy guidance states that financial analysts, marketing analysts, and market research analysts are not eligible for classification as a TN economist.
North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the United States to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, which USCIS said has resulted in inconsistent decisions about whether certain analysts and financial professionals qualify for TN status as economists.
USCIS said the new policy is consistent with the Department of Labor's (DOL's) Standard Occupational Classification (SOC) system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations, USCIS said.
With respect to the occupation of financial analyst, USCIS said it recognizes that economists and financial analysts are related occupations and that there may occasionally be some similarity in the activities of these two occupational categories. As differentiated from economists, however, financial analysts "primarily conduct quantitative analyses of information affecting investment programs of public or private institutions," USCIS said. Recognizing that these types of positions are not the same, the SOC separates these occupations into two categories. Therefore, to be consistent with the SOC, USCIS said it is clarifying that economists and financial analysts are two separate occupations for the purposes of qualifying for TN nonimmigrant status pursuant to NAFTA.
Some attorneys warn that TN Economists—even those who were previously approved—could experience increased scrutiny when returning to the United States. Strategies may include arguing that a position meets the definition of an economist, amending the position description, avoiding international travel, or considering nonimmigrant alternatives. Contact your Alliance of Business Immigration Lawyers attorney for advice in specific situations.
Read the USCIS policy memo.
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EB-5, Special Immigrant Religious Worker Categories Extended to January 19
The Department of State's Visa Bulletin for January 2018 states the following with respect to scheduled expiration of two employment-based visa categories. Both have been extended at least until January 19, 2018, with passage of a short-term continuing resolution in Congress:
Employment Fourth Preference [EB-4] Certain Religious Workers (SR):Read the January 2018 Visa Bulletin.
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USCIS Reaches H-2B Cap for First Half of FY 2018
U.S. Citizenship and Immigration Services (USCIS) recently announced that it has reached the congressionally mandated H-2B cap for the first half of fiscal year 2018.
December 15, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2018. USCIS will reject new cap-subject H-2B petitions received after December 15 that request an employment start date before April 1, 2018.
USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:
U.S. businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 through September 30).
USCIS encourages H-2B petitioners to visit the H-2B fiscal year 2018 cap season webpage.
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Cuba News: USCIS Rescinds Matter of Vazquez as Adopted Decision; U.S. Embassy in Havana Temporarily Suspends Operations
U.S. Citizenship and Immigration Services (USCIS) has made several announcements recently with respect to Cuba, including issuing a new policy memorandum that rescinds Matter of Vazquez as an Adopted Decision, and temporarily suspending operations at its field office in Havana.
Rescission of Matter of Vazquez as an Adopted Decision
A new policy memorandum rescinds Matter of Vazquez as an Adopted Decision. The new memorandum supersedes all prior guidance regarding the determination of Cuban citizenship for purposes of adjustment under the Cuban Adjustment Act. Read the memo.
Temporary Suspension of Operations in Havana
U.S. Citizenship and Immigration Services (USCIS) announced that due to staff reductions at the U.S. Embassy in Havana, Cuba, USCIS will temporarily suspend operations at its field office in Havana, effective immediately. During this time, the USCIS field office in Mexico City, Mexico, will assume Havana's jurisdiction.
USCIS says that individuals who live in Cuba must follow the filing instructions, read the announcement.
Visit The U.S. Embassy website for Cuba.
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USCIS is Accepting Applications under International Entrepreneur Rule (IER) But Plans Proposed Rule to Eliminate IER
U.S. Citizenship and Immigration Services (USCIS) announced on December 14, 2017, that it is taking steps to implement the International Entrepreneur Rule (IER) in accordance with a recent court decision. USCIS noted that while the agency implements the IER, the Department of Homeland Security (DHS) will also "proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM."
USCIS explained that although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because DHS issued a final rule on July 11, 2017, delaying the IER's effective date until March 14, 2018. USCIS said this "delay rule" was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations. However, a December 1, 2017, ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS's final rule to delay the effective date.
The IER was intended to provide international entrepreneurs a new avenue to apply for parole, enter the United States, and invest in establishing and growing start-up businesses, USCIS noted. The rule established new criteria to guide the adjudication of parole applications from certain foreign entrepreneurs, providing them with temporary admission. The rule did not afford a path to citizenship.
Read the instructions and form.
Click here for The IER.
Read the vacated final rule.
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Supreme Court Allows Trump Travel Ban to Proceed; State Dept. Issues Guidance
On December 4, 2017, the U.S. Supreme Court granted the Trump administration's motions for emergency stays of preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland. The preliminary injunctions had prohibited the government from fully enforcing or implementing the entry restrictions of Presidential Proclamation 9645, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats" to nationals of six countries: Chad, Iran, Libya, Syria, Yemen, and Somalia. The Supreme Court's orders allowed the government to implement those restrictions fully beginning December 8, 2017, until related litigation is resolved. The District Court injunctions did not affect implementation of entry restrictions against nationals from North Korea and Venezuela. Those individuals remain subject to the restrictions and limitations listed in the Presidential Proclamation. The Proclamation does not restrict the travel of dual nationals as long as they are traveling on the passport of a non-designated country.
The Department of State (DOS) issued a statement on December 4 providing guidance on several details related to the travel ban. Among other things, the statement said:
We will not cancel previously scheduled visa application appointments. In accordance with the Presidential Proclamation, for nationals of the eight designated countries, a consular officer will make a determination whether an applicant otherwise eligible for a visa is exempt from the Proclamation or, if not, may be eligible for a waiver under the Proclamation and therefore issued a visa.The DOS provided the following details on the travel restrictions by country:
Nationals of the eight countries are subject to various travel restrictions contained in the Proclamation, as outlined in the following table, subject to exceptions and waivers set forth in the Proclamation.
The DOS statement provides the following list of exceptions:
The following exceptions apply to nationals from all eight countries and will not be subject to any travel restrictions listed in the Proclamation:Meanwhile, the 9th and 4th Circuits held arguments on the travel ban on December 6 and 8, 2017, respectively. Both courts are likely to issue rulings relatively quickly. The cases are then likely to go to the Supreme Court.
Read the Supreme Court's brief orders here and here.
Read The DOS statement, which provides additional details about qualifications and procedures, along with frequently asked questions (FAQs).
Read The related Presidential Proclamation.
Read a related Department of Homeland Security FAQ released in September 2017.
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USCIS Issues FAQ on Rejected DACA Requests, Resubmissions
U.S. Citizenship and Immigration Services (USCIS) recently released frequently asked questions (FAQ) on rejected Deferred Action for Childhood Arrivals (DACA) requests, and resubmissions.
The FAQ notes that the due date for new, initial DACA requests was September 5, 2017. The due date for DACA renewal requests was September 5, 2017, for recipients whose DACA status expired before that date and was October 5, 2017, for recipients whose DACA expired or will expire between September 5, 2017, and March 5, 2018.
For those whose DACA requests were delivered by the deadline but were not officially "received" by USCIS until the following day and were rejected and returned to applicants for that reason, the FAQ states that USCIS "will identify you and send you a letter inviting you to resubmit your DACA request. You will have 33 days from the date of the letter to resubmit your request. You may wish to keep a copy of all materials included in your resubmission. USCIS expects to be able to identify and send letters to all persons in this situation."
Those in the situation noted above who have not yet been contacted by USCIS may contact Lockbox Support before resubmitting their DACA packages for reconsideration. Email Lockbox Support.
Read The USCIS FAQ, which includes additional details about who may resubmit and why.
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U.S. Mission in Canada Implements New Appointment Scheduling System for E Visas
On December 5, 2017, the U.S. Mission in Canada (E Visa Unit, American Consulate General, Toronto) sent an alert announcing a new appointment scheduling system for E visa applications. The Mission said this is "strictly a processing change that will allow us to receive and review E-visa applications before the applicant schedules an in-person interview (as opposed to the old system, which permitted applicants to schedule an appointment before submitting an application or supporting documentation)."
Under the new system, the U.S. Mission explained, E visa applications will be sorted into two processing streams based on the time needed to review the required documentation:
New Publications and Items of Interest
A new SAVE newsletter, SAVE Verifier, is intended for benefit-granting agencies, stakeholders, and benefit applicants for the Systematic Alien Verification for Entitlements program.
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News
As we return to our office after a restful holiday break, we wish all of our clients, friends and colleagues a happy, healthy and peaceful new year.