October 2017 Newsletter
In This Issue
Trump Administration Implements New Travel Restrictions
On September 24, 2017, President Donald Trump issued a presidential proclamation on "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." The proclamation announces the following measures with respect to the countries of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, subject to "categorial exceptions and case-by-case waivers":
Exceptions. Among other things, the proclamation lists exceptions to these suspensions of entry for:
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Following Mysterious Attacks, United States Suspends Visas for Cubans, Withdraws Most Staff from Havana Embassy, Issues Cuba Travel Warning
Following still-unexplained attacks on U.S. personnel of the embassy in Havana, Cuba, that left some with severe health problems, the United States has suspended visa issuance in Cuba for all Cubans and ordered the departure of more than half of its staff from the embassy, along with their family members. The Department of State has also issued a travel warning advising U.S. citizens not to travel to Cuba.
The Department explained that at least 21 U.S. embassy employees have been targeted in attacks of unknown origin, resulting in significant injuries, including ear complaints, hearing loss, dizziness, tinnitus, balance problems, visual complaints, headache, fatigue, cognitive issues, and difficulty sleeping.
The Department said it is "looking at the possibility of [Cubans] being able to apply for visas at embassies or consulates outside of Cuba in other countries. But we haven't actually made definitive arrangements yet. We're continuing to look at that. But all of the kind of regular visas or ordinary visas would not be issued through Havana."
The travel warning notes that the attacks have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens. The travel warning also notes that due to the drawdown in staff, the U.S. embassy in Havana has limited ability to assist U.S. citizens. The embassy will provide only emergency services to U.S. citizens. The warning states that U.S. citizens in Cuba in need of emergency assistance should contact the embassy by telephone at +(53)(7) 839-4100 or the Department of State at 1-202-501-4444. U.S. citizens should not attempt to go to the U.S. embassy because it suffered severe flood damage during Hurricane Irma, the warning states.
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Employers Must Use Form I-9 with New Revision Date, USCIS Says
U.S. Citizenship and Immigration Services (USCIS) announced that beginning September 18, 2017, employers must use Form I-9, Employment Eligibility Verification, with the new revision date of 07/17/17 N, to verify the identity and work eligibility of every new employee hired after November 6, 1986, or for the reverification of expiring employment authorization of current employees (if applicable). This date is found on the lower left corner of the form. Prior versions of the form are no longer valid for use. Employers who fail to use the new form may be subject to penalties.
USCIS reminded employers to continue to follow existing storage and retention rules for each previously completed Form I-9. Read the storage and retention rules here.
Read the USCIS announcement about the new revision date.
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Lawsuit Challenges Postponement of International Entrepreneur Rule
The American Immigration Council (AIC) has filed a lawsuit, National Venture Capital Association, et al., v. Duke, challenging the postponement of the International Entrepreneur Rule (IER). The rule, which was supposed to take effect July 17, 2017, would have permitted foreign entrepreneurs to travel to or stay in the United States to grow new businesses. Less than a week before the IER was scheduled to take effect, the Department of Homeland Security (DHS) announced that its implementation would be significantly delayed and suggested that it ultimately intends to rescind the IER.
In announcing the lawsuit, AIC said, "Immigrant entrepreneurs, who bring their talents, ideas, and initiative with them to the United States often face significant barriers to obtaining permission to travel and work in the United States. The IER was promulgated to address these problems and was informed by extensive input from affected entrepreneurs, the business community, and the American people."
Plaintiffs are prospective entrepreneur applicants under the IER or companies founded by potential applicants.
AIC, in cooperation with the Washington, DC, office of Mayer Brown LLP, filed the lawsuit against the Department of Homeland Security. Plaintiffs include the National Venture Capital Association (NVCA), which is the largest organization of venture capitalists in the United States; foreign entrepreneurs; and startup companies. The complaint alleges that the government failed to comply with the Administrative Procedure Act's notice-and-comment requirement. Plaintiffs seek to compel the defendants to implement the IER and to begin accepting and adjudicating parole applications from international entrepreneurs. NVCA noted that its 2013 study "determined that a full one-third of U.S. venture-backed companies that went public between 2006 and 2012 had at least one immigrant founder." NVCA also cited a 2016 finding by a National Foundation for American Policy study that "immigrants have started more than half (44 of 87) of America's startup companies valued at $1 billion or more."
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President Orders End of DACA in Six Months, With Mixed Signals About Future for 'Dreamers'; Two Lawsuits Challenge Program's Termination
On September 5, 2017, President Donald Trump ordered the end of Deferred Action for Childhood Arrivals (DACA), an Obama administration program that allowed certain people who came to the United States as children to continue to live, go to school, and work in the country, known as "Dreamers." He said that his administration's position is that DACA was not statutorily authorized and therefore was an unconstitutional exercise of discretion by the executive branch. The order takes effect in six months. The rescission affects nearly 800,000 DACA recipients.
Based on "guidance from Attorney General Sessions and the likely result of potentially imminent litigation," the Department of Homeland Security's Acting Secretary Elaine Duke issued a memorandum on September 5 formally rescinding the Obama administration's June 15, 2012, memorandum that created DACA. Ms. Duke explained, "As a result of recent litigation, we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation, or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option." Ms. Duke said that "no current beneficiaries will be impacted before March 5, 2018, nearly six months from now, so Congress can have time to deliver on appropriate legislative solutions. However, I want to be clear that no new initial requests or associated applications filed after [September 5, 2017] will be acted on."
President Trump's statement about current beneficiaries not being affected for 6 months was slightly less absolute; he said that current DACA recipients "generally" will not be affected: "DHS's enforcement priorities remain in place. However, absent a law enforcement interest—which is largely the standard that has been in place since the inception of the program—the Department will generally not take actions to remove active DACA recipients." He said that renewal applications for DACA employment authorization documents (EADs) properly filed and accepted by October 5, 2017, for people whose current EADs expire between September 5, 2017, and March 5, 2018, will be processed. He also said that all pending applications for advance parole by DACA recipients "will be closed and associated fees will be refunded." In a related tweet on September 6, 2017, President Trump said, "Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can't, I will revisit this issue!"
Hinting that the end of the DACA program might not necessarily be the end of the line for the Dreamers, President Trump also tweeted on September 5, "Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can't, I will revisit this issue!"
On September 6, 2017, the attorneys general of more than a dozen states and the District of Columbia sued the government to stop the DACA program's rescission. The lawsuit argues that the repeal of President Obama's DACA order violates the Administrative Procedure Act, is motivated by discrimination against Mexicans, and violates due process. The University of California filed a similar suit on September 8, 2017, against the Trump administration for violating the rights of the university and its students by rescinding DACA on "nothing more than unreasoned executive whim."
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President Signs Legislation Extending Several Programs Under Disaster Relief Act
The U.S. Senate and House of Representatives recently passed the "Disaster Relief Appropriations Act, 2017" as part of an appropriations bill to increase the debt limit, fund the government through a continuing resolution, and provide emergency funding for hurricane relief. Among other things, the legislation extends the Religious Worker, Conrad State 30, EB-5, and E-Verify programs until December 8, 2017. President Trump signed the legislation on September 8, 2017.
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ICE Temporarily Suspends Unspecified Enforcement Actions in Wake of Hurricanes; DHS States That Immigration Status Will not be a Factor During Rescues
U.S. Immigration and Customs Enforcement (ICE) released a statement on September 7, 2017, that appears to temporarily suspend unspecified enforcement actions in areas affected by recent hurricanes:
While we generally do not comment on future potential law enforcement actions, operational plans are subject to change based on a variety of factors. Due to the current weather situation in Florida and other potentially impacted areas, along with the ongoing recovery in Texas, U.S. Immigration and Customs Enforcement (ICE) had already reviewed all upcoming operations and has adjusted accordingly. There is currently no coordinated nationwide operation planned at this time. The priority in the affected areas should remain focused on life-saving and life-sustaining activities.
For the safety and security of our communities, ICE fugitive operations teams will continue to target and arrest criminal aliens and other individuals who are in violation of our nation's immigration laws, in non-affected areas of the country, as part of routine operations.
A separate statement issued by the Department of Homeland Security (DHS) on September 6, 2017, states, among other things, that "DHS will not conduct non-criminal immigration enforcement operations in the affected area." The statement also notes, "When it comes to rescuing people in the wake of Hurricane Irma, immigration status is not and will not be a factor. However, the laws will not be suspended, and we will be vigilant against any effort by criminals to exploit disruptions caused by the storm." DHS also stated that ICE detainees from the Krome Detention Center, Monroe County Jail, Broward Transitional Center, and Glades Detention Center "are being temporarily transferred to various other detention facilities outside the projected path of the hurricane. In the event of transfers, the detainee's attorney of record is notified, the Online Detainer Locator is updated, and the transfer is temporary in nature."
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Ninth Circuit Rules Grandparents, Cousins, Others Exempted from Travel Ban; Supreme Court Intervenes
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled on September 7, 2017, that certain relatives from Iran, Libya, Somalia, Sudan, Syria, and Yemen banned by the Trump administration from entering the United States should be admitted while the ban is under legal review, contrary to the administration's interpretation of a June Supreme Court ruling. However, on September 12, the Supreme Court blocked the Ninth Circuit's ruling indefinitely.
The administration had interpreted the Supreme Court's June reference to close or bona fide family relationships as including immediate family members and in-laws but excluding grandparents, grandchildren, brothers- and sisters-in-law, aunts and uncles, nieces and nephews, and cousins. The Ninth Circuit panel observed, "Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court's prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not." Noting that the administration had relied on specified provisions of the Immigration and Nationality Act, the court noted, "The Government's 'cherry-picked' INA provisions recognize immediate family relationships as those between parents, spouses, children, and siblings, yet other provisions of the INA and other immigration laws offer broader definitions for close family." The court also said that the INA was implemented with the underlying intention of preservation of the family unit, and noted that the administration's "artificially narrow interpretation of close familial relationships directly contradicts this intention."
The Ninth Circuit panel also rejected the Trump administration's ban on refugees formally accepted by resettlement agencies. The court noted that it typically takes a refugee applicant 18 to 24 months to successfully complete the complex, lengthy application and screening process before he or she can be resettled in the United States. The court cited various hardships that would be faced by resettlement agencies, local affiliates, church congregations, volunteers, and landlords if formally assured refugees were barred. The court also noted that refugees' lives "remain in vulnerable limbo during the pendency of the Supreme Court's stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee's admittance."
The Ninth Circuit's order was set to take effect on September 12. However, on that date the Supreme Court indefinitely blocked part of the Ninth Circuit's ruling. For now, the Trump administration's travel ban remains in effect with respect to refugees who have formal assurances from resettlement agencies.
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EB-1, EB-3 Categories Show Progress in Visa Bulletin for October
Several developments in employment-based categories were announced in the Department of State's Visa Bulletin for the month of October 2017.
For the past several months, there has been a backlog for Chinese-mainland and Indian nationals for EB-1. With the new fiscal year, the EB-1 category is now current for all nationalities, and visa applications may be filed regardless of the applicant's priority date. It is unknown how long this category will remain current.
Also, the September 2017 Visa Bulletin included a cutoff date of January 1, 2012, for China-mainland born EB-3 applicants. It has advanced two years to January 1, 2014. The Department estimates that this cutoff date will move up approximately four months in the coming months.
Read the October 2017 Visa Bulletin.
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Registration for Diversity Visa Program for FY 2019 Begins in October
Registration for the Diversity Visa Program for fiscal year 2019 (DV-2019) will begin at noon ET on October 3, 2017, and end at noon ET on November 7, 2017. For FY 2019, 50,000 diversity visas will be available. There is no cost to register for the DV program.
For DV-2019, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
Applicants must submit entries for the DV-2019 program electronically here. The Department of State advises applicants not to wait until the last week of the registration period to enter, as heavy demand may result in website delays. No late entries or paper entries will be accepted. The Department noted that it "uses sophisticated technology to detect multiple entries. Individuals with more than one entry will be disqualified." Older browsers (Internet Explorer 8 and earlier) may encounter problems with the online system; the Department advises using an updated browser. Also, it is extremely important to retain the confirmation page and unique confirmation number. Without this information, applicants will not be able to access the online system that informs them of their entry status.
All DV-2019 entrants must go to the Entrant Status Check using the unique confirmation number saved from their DV-2019 online entry registration to find out whether their entry has been selected. Entrant Status Check will be available here beginning May 1, 2018, through at least September 30, 2019.
Entrant Status Check will be the only means by which the Department of State notifies applicants of their selection for DV-2019. The Department of State will not mail notification letters or notify selectees by email. U.S. embassies and consulates will not provide a list of selectees.
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State Dept. Changes Standard for Assessing 'Residence Abroad' for F-1 Nonimmigrant Students
The Department of State recently changed language regarding the way in which F-1 student visas are adjudicated. An amendment to the Foreign Affairs Manual at 9 FAM 402.5-5(E)(1) revises the "Residence Abroad Required" provision. The new provision states:
The old provision stated, in relevant part:
It is not yet clear how this update will affect future adjudications of the F-1 student visa. It will be important for applicants to emphasize their intent to leave the United States at the end of their studies or optional practical training.
Read the related section of the FAM.
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State Dept. Issues New 90-Day Rule for Misrepresentation
The Department of State recently updated the Foreign Affairs Manual at 9 FAM 302.9-4(B)(3) with a new 90-day rule on misrepresentation, related to those in the United States "who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to [the Department of Homeland Security] when applying for admission or for an immigration benefit."
The FAM now has an updated subsection titled “Inconsistent Conduct Within 90 Days of Entry” that states, "If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry..., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry." This appears to have discarded the prior "30/60-day rule with respect to adjustment of status after entry on a nonimmigrant visa. That prior rule held that if a person filed for adjustment within 30 days of entry, the government could presume that the person misrepresented his or her intention in seeking a visa or entry. A finding of misrepresentation or fraud could result in a lifetime bar to entering the United States. If the act occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation arose. However, if the facts showed the reasonable belief that intent was misrepresented, the person must present countervailing evidence. If the act occurred more than 60 days after admission into the United States, generally there was no basis for a misrepresentation or inadmissibility finding.
For purposes of applying the new 90-day rule, conduct that violates or is otherwise inconsistent with nonimmigrant status includes:
The section explains that if a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit," they are directed to "bring the derogatory information to the attention of the Department for potential revocation."
Immigration practitioners note the potentially devastating consequences of this new guidance. The Immigration and Nationality Act states that anyone who, by willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other immigration benefit is inadmissible and may be barred for life from entering the United States.
Read the related section of the FAM.
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New Publications and Items of Interest
The Alliance of Business Immigration Lawyers has published a press release on Deferred Action for Childhood Arrivals (DACA). The release notes, among other things, that "[w]hatever concerns or complaints Americans may have about immigration in general, we shouldn't threaten the future of this group of young people who are here through no fault of their own, who pose no threat, who are not taking away anything from the rest of us... Kicking them out won't lower the unemployment rate, or lighten anyone's taxes, or raise anybody's wages."
Advisories and tips:
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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:
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Hodkinson Law Group News
We are enjoying the change in season and have been spending a lot of leisure time outdoors. Kehrela successfully completed the Cotswold Way Walk, a 102 mile hike through gorgeous countryside from Chipping Campden to Bath. Sharon walked the Devon 2 Moors Way, a 102 mile walk across the moorlands of Dartmoor and Exmoor. This month Tasha will be participating in the Chicago marathon, fundraising for the Anti-Cruelty Society. Kehrela will be participating in the Royal Parks Half Marathon in London.