February 2017 Newsletter
In This Issue
Latest Update on Executive Order
USCIS has indicated that despite the Executive Order signed by the President on January 27, 2017, it will continue processing applications and petitions regardless of the country of origin of the beneficiary. This is a departure from the previous information released.
On Friday, 2nd February, a federal judge temporarily halted the President's EO, thereby allowing individuals from these countries holding valid U.S. visas entry into the United States. On Saturday, February 3, 2017, Department of Homeland Security suspended "any and all" actions to implement the travel ban and resumed standard inspections of all travellers. On Sunday, 4th February, the Trump administration filed an emergency request to resume the travel ban, which was denied by the Ninth Circuit court of Appeals. Both the lawyers challenging the Executive Order and the Trump administration yesterday filed legal briefs for and against the restraining order. A three-judge panel will hear oral arguments on Tuesday, 7th February at 6:00pm EST.
Due to on-going litigation, changes surrounding the situation are likely. As such, we strongly advise that anyone affected by the EO, including refugees or U.S. visa holders from the seven designated countries, make immediate travel plans to return to the United States or continue to refrain from traveling outside of the U.S.
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Trump Era Begins with Tumultuous First Week, Entry Ban
President Donald Trump's tumultuous first week included a series of executive orders on immigration, refugees, and other issues. Among them was a temporary and immediate entry ban on people traveling to the United States from certain countries that resulted in unexpected detentions at U.S. airports; people blocked from boarding planes bound for the United States; confusion and contradictions among travelers, border agents, airline personnel, White House staff, and reporters; thousands protesting at U.S. airports; legal filings; and related court decisions.
Highlights follow of the immigration-related portions of the orders, and reaction:
Entry ban, refugee ban. President Trump signed an executive order on January 27, 2017, directing the Department of State to suspend refugee admissions for 120 days and impose an entry ban on individuals from certain countries. The order specifically suspends the entry of Syrian refugees as "detrimental to the interests of the United States," and orders the suspension to continue "until such time as I have determined that sufficient changes have been made" to the refugee program to ensure that admission of Syrian refugees "is consistent with the national interest." The order also cuts from 110,000 to 50,000 the number of refugees the United States will accept in this budget year, with exceptions for those claiming religious persecution who are of minority faiths in their countries. In the previous budget year, the United States accepted 84,995 refugees, which included 12,587 Syrians. The order allows some leeway for admissions "on a case-by-case basis."
The order also suspends for 90 days entry to the United States of individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. The order cites as a rationale "foreign-born individuals" who "have been convicted of or implicated in terrorism-related crimes since September 11, 2001," as a basis for the entry ban.
As a result of the order, dozens of people were initially detained at U.S. airports, including JFK International and others. Some received waivers to enter the United States, while others continued to be held, in what remained a fluid situation as of press time. Protests occurred at major airports around the country. There were reports of green card holders not being allowed back into the United States, and people with visas being stopped or turned back at international airports and not allowed to board their flights to the United States. On January 29, 2017, new Department of Homeland Secretary John Kelly issued a statement that green card holders from the seven affected countries would be granted waivers to return to the United States.
Emergency stay. One of those detained at JFK Airport was Hameed Khalid Darweesh, who had worked as an interpreter for the U.S. Army's 101st Airborne Division and "saved countless U.S. service members' lives," according to the American Civil Liberties Union (ACLU). The ACLU and other organizations challenged the executive order on constitutional grounds. Although Mr. Darweesh and another plaintiff were released, Judge Ann Donnelly of the U.S. District Court for the Eastern District of New York issued a decision late on January 28, 2017, ordering that individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who are in the United States not be removed who have approved refugee applications, valid immigrant and nonimmigrant visas, and other legal authorizations to enter the United States. She said this was because the petitioners had a strong likelihood of success in establishing that their removal and "others similarly situated" would violate their rights to due process and equal protection under the U.S. Constitution and that there was imminent danger that, absent the stay of removal, there would be "substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order."
The White House subsequently issued a statement in reaction: "Saturday's ruling does not undercut the President's executive order. All stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited. The executive order is a vital action toward strengthening America's borders.... The order remains in place." President Trump told reporters that the ban was going "very nicely."
Removal priorities, sanctuary penalties. President Trump signed a separate executive order on January 25, 2017, entitled "Enhancing Public Safety in the Interior of the United States." The order directs agencies to employ "all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens." The order prioritizes for removal those who have been convicted of, or charged with, any criminal offense; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; have "abused" any program related to receipt of public benefits; are subject to a final order of removal but have not complied; or, in the judgment of an immigration officer, "otherwise pose a risk to public safety or national security."
Reaction. Reaction to the executive orders worldwide, especially to the entry ban, was overwhelmingly negative. Twenty Nobel laureates and thousands of academics signed a letter of protest denouncing the executive order imposing the entry ban. Among other things, the letter says that the executive order "significantly damages American leadership in higher education and research." The letter notes that research institutes host a significant number of researchers from the nations subjected to the restrictions. From Iran alone, for example, more than 3,000 students have received PhDs from U.S. universities in the past three years, the letter states. The executive order "limits collaborations with researchers from these nations by restricting entry of these researchers to the U.S. and can potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the U.S.," the letter says, adding that the signers "strongly believe" that the immediate and long-term consequences of the order "do not serve our national interests."
Technology companies also reacted, including Google, Apple, and others. Apple CEO Tim Cook sent a memo to employees that was circulated widely. In the memo, Mr. Cook said the entry ban "is not a policy we support," and noted that Apple "reached out to the White House to explain the negative effect on our coworkers and our company." The memo also said that "Apple would not exist without immigration, let alone thrive and innovate the way we do." Netflix CEO Reed Hastings said on Facebook, "Trump's actions are hurting Netflix employees around the world."
Google CEO Sundar Pichai told employees to cancel travel outside of the United States and to get in touch with Google's human resources department if they are not in the United States. A Google spokesperson said, "We're concerned about the impact of this order and any proposals that could impose restrictions on Googlers and their families, or that could create barriers to bringing great talent to the U.S."
Reactions from governments worldwide continued to pour in. On January 28, 2017, Iran announced that all U.S. citizens, other than those with valid visas, would be barred from entering Iran. British Prime Minister Theresa May, who had just visited the United States and came under heavy criticism for not immediately denouncing the ban, said she did not agree with it. Canadian Prime Minister Justin Trudeau tweeted, "To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength." Ahmed Hussen, Canada's recently appointed Immigration Minister, came to Canada as a Somali refugee and is a dual national.
Read the Executive Order
Read the order from the U.S. District Court for the Eastern District of New York
Read President Trump's Executive Order on public safety
Read Trump's statement of policies related to immigration
For advice on specific situations, contact Hodkinson Law Group. For more general information, see the frequently asked questions and answers, below.
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Entry Ban: Frequently Asked Questions
The following is adapted from frequently asked questions (FAQs) published by ABIL member firm Maggio & Kattar in response to President Trump's executive order, "Protecting the Nation From Terrorist Attacks by Foreign Nations," banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. These FAQs reflect the situation as of January 31, 2017. New developments continued to rapidly change implementation of the order.
What are the key points of this Executive Order?
President Trump signed an Executive Order (EO) the afternoon of Friday, January 27, 2017, which, according to its introduction, is intended to "protect Americans." The EO became effective as of the date of signing. Among the EO's key provisions are:
What is an Executive Order? Can it be challenged?
Does the EO change the law or regulations?
While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.
Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.
On Saturday, January 28, 2017, U.S. federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency stay that temporarily blocks the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. Several other federal courts have issued similar stays.
The 90-Day Travel Ban
What exactly does the 90-day ban prohibit?
The ban halts visa issuance and entry to the United States for affected individuals.
The U.S. Department of State's (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO—both nonimmigrant (temporary) visas, such as Bs, Fs, and H-1Bs, and immigrant visas for those seeking to become U.S. permanent residents.
U.S. Customs and Border Protection (CBP) officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.
Who is affected by the 90-day ban?
This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
What does it mean to be a "national"?
A national is a citizen of a particular country, someone entitled to hold the country's passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.
Does the ban include "dual" nationals? What if the individual was born in one of the seven countries but is now a citizen of another country (e.g., Canada) and only holds that passport?
It is not entirely clear. The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that "country of birth" is listed on permanent resident cards and is usually listed on one's passport and that CBP and DOS consular officers review these documents.
However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a "temporary pause" on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her "dual national" status. Presumably, an individual presenting a passport from a non-designated country would not be impacted by the EO's restrictions, even if he or she also holds nationality in a designated country.
Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with Secretary Kelly's indication that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that "dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa." Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.
This "clarification," however, may conflict with a recent DOS cable to embassies and consulates worldwide in which the DOS provides the following guidance on who is considered to be a dual national: those who "possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national."
Also, as of press time, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets. Those traveling on non-covered passports may still be unable to get visas if they are known to be dual nationals of a covered country, and there is some risk that non-Canadian dual nationals with nonimmigrant visas (NIVs) might not be admitted if CBP realizes their NIVs have technically been provisionally revoked.
Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is amended guidance from the DOS, dual nationals should assume the ban could apply to them under the circumstances noted in the DOS cable discussed above.
Does the ban include permanent residents ("green card" holders)?
The Executive Order as written did ban the entry of affected lawful permanent residents (LPRs). As discussed below in the question about "exceptions" to the ban, the EO does include a provision that allows the issuance of "visas or other immigration benefits" to affected individuals on a "case-by-case basis, and when in the national interest." On Sunday, January 29, 2017, DHS Secretary John Kelly issued a statement that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, "Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
Click here to read the statement.
Does the ban apply to someone who has just traveled to a designated country?
No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the seven countries. Travel to one of the seven countries, however, may increase the likelihood of being questioned by CBP about the nature of the visit—why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act. Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.
Can an affected individual still board a plane and try to enter upon arrival at a U.S. airport?
There have been reports of airlines refusing to board individuals who appear to be affected by the EO's ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.
Should affected individuals travel outside the United States?
Individuals who are affected by this ban must understand that if they depart the United States during the 90-day period, they will most likely not be able to return. The temporary halt in enforcing portions of the ban, discussed below, could end at any time. We caution affected individuals not to rely on the court's temporary halt when making a decision to travel abroad.
What about individuals who are outside the United States and want to return?
Airlines may refuse to board anyone who appears to be affected by the ban. Those who are able to board a plane almost certainly will be refused admission (entry) to the United States on arrival at a U.S. airport. Anyone affected by the ban who is currently outside the United States should consult with an immigration attorney before attempting to return in order to understand the current state of affairs and the risks involved, and to develop a strategy based upon his or her individual circumstances.
What will happen to those who are refused entry by CBP?
Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. There is no right to an attorney for individuals who arrive at U.S. airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Keep in mind that CBP officers will be overwhelmed in the coming days in dealing with these arrivals and that it may be difficult—even for experienced immigration attorneys—to communicate quickly with CBP. Wherever possible, advance planning will be critical.
Are there any exceptions to the ban?
As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.
At least one of the stays, issued in the District of Massachusetts, may potentially allow future flights to the United States, since CBP has been instructed by the court in that case to advise airlines with flights to Logan Airport that travellers who would otherwise be allowed into the United States will not be refused admission on account of the EO.
The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a "case-by-case" basis and when in the "national interest." It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. Anyone seeking to make such a request is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.
Can CBP detain individuals?
Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.
At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. There are credible reports that CBP is still detaining LPRs notwithstanding the court cases and Secretary Kelly's statement of January 29, 2017. It is also possible that CBP may agree to defer the inspection of such individuals, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.
Click here to read the statement.
Any affected individual thinking of traveling to the United States should consult with an immigration attorney about his or her individual circumstances. The EO does not change the existing immigration law, including the right to apply for asylum.
How are the U.S. consulates implementing the ban on visas?
According to credible sources, the DOS issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.
Consulates will stop scheduling and conducting interviews of affected individuals. They also will stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services will be instructed to return the unadjudicated applications to the affected individuals. Consular posts are beginning to post alerts on their websites to advise individuals of the suspension of visa issuance "effective immediately and until further notification." It is unclear whether DOS will refund visa fees (which are normally valid for one year), although refunds appear unlikely.
The DOS, through this cable, has reiterated that the ban applies to "dual nationals," which DOS notes includes those who "possess a current passport from the restricted country, having been denied ESTA based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national." Please see item above on conflicting reports on the application of the ban to dual nationals.
With regard to immigrant visas for those affected by the ban, the DOS will cancel currently scheduled interviews and will not schedule immigrant visa interviews for March or April.
How will the EO affect applications pending before U.S. Citizenship and Immigration Services (USCIS)?
According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, DHS leadership received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. The Associate Director of Field Operations at USCIS apparently informed DHS employees that "effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen of [one of the named countries] ...Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made. At that point, cases shall be placed on hold until further notice and will be shelved ...Offices are not permitted [to] make any final decision on affected cases to include approval, denial, withdrawal, or revocation." This directive indicated that further guidance would be forthcoming on naturalization (citizenship) applications "in the coming days."
This hold on adjudications presumably includes asylum applications, adjustment of status applications (I-485), and applications for employment authorization documents (EADs, or work permits) (I-765), among others. While the directive appears to focus on applications pending at local USCIS Field Offices given its reference to "interviews," it would be reasonable to assume that it also prohibits adjudications at the USCIS regional service centers where the agency normally reviews and adjudicates applications for other benefits, including adjustment of status applications, applications or petitions to change or extend nonimmigrant status, applications for employment authorization, advance parole travel documents, and applications for temporary protected status (TPS).
What does the EO mean for the immigration status of someone who is in the United States?
The EO only affects those who are applying for visas (nonimmigrant and immigrant), seeking entry, or actively applying for an immigration benefit (e.g., change or extension of status, adjustment to permanent resident, naturalization, and other benefits noted above).
Might the ban be longer than 90 days?
The EO states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information "needed ... for the adjudication of any ... benefit under the INA ... to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat." If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.
Will the ban be extended to include other countries?
The EO's call for a DHS report based, in part, on information provided by other countries that the U.S. government says it needs to properly review and vet individuals appears to allow for DHS to recommend including additional countries in the ban, until they "comply" and provide the U.S. government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the U.S. government.
Suspension of the U.S. Refugee Admissions Program (USRAP)
Who is affected by the suspension of USRAP?
All refugees being processed abroad and seeking admission to the United States are affected.
For most refugees, the suspension is at least 120 days. For Syrian refugees, the ban on admission is indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed "sufficient" or "national interest." This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.
How long is the suspension of USRAP?
The USRAP is suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees "do not pose a threat to the security and welfare of the United States" and to implement those procedures. After the 120 days, DOS can resume refugee admissions only for nationals of countries that are found to have sufficient safeguards to ensure the security and welfare of the United States.
Are certain refugees or countries a priority?
The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee's religion is a minority religion in the individual's country of nationality. The EO does not address the issue of subsects or minority groups within a country's predominant religion.
How many refugees will be let into the United States?
The EO states that DOS and DHS may admit 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.
Are there any exceptions to this ban on refugee admissions?
Yes. As mentioned above, as of Saturday, January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This stay applies nationwide. Several other federal courts have issued similar stays.
The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.
Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.
Elimination of Mail-In Visa Applications or the "Drop-Box" Application
The EO eliminates the ability of some individuals who need visas to apply for their visas at a U.S. consulate without an in-person interview. Previously, some individuals—due to age, or the fact that they were repeat applicants—could mail in their passports to the U.S. consulate or use a "drop-box" system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a U.S. visa will be required to make an appointment at a U.S. consulate and appear in person for the visa interview.
The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. U.S. employers who await the arrival or return of employees may also be negatively affected given these anticipated slowdowns in the process to obtain U.S. visas.
Does the Executive Order change the Visa Waiver Program or ESTA?
No. The "visa interview waiver program" is different from the Visa Waiver Program (VWP), which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore), may still seek admission to the United States on the basis of their passports and an ESTA clearance.
Read the Executive Order
There may be further updates to these FAQs as the situation develops. Click here for more information.
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Reminder: USCIS Will Accept H-1B Petitions for FY 2018 Beginning April 1, 2017
On April 1, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2018 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
The congressionally mandated cap on H-1B visas for FY 2018 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master's degree or higher are exempt from the 65,000 cap.
The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.
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USCIS Issues Final Rule on International Entrepreneurs
U.S. Citizenship and Immigration Services (USCIS) issued a final rule on January 17, 2017, implementing the Secretary of Homeland Security's discretionary parole authority "to increase and enhance entrepreneurship, innovation, and job creation in the United States." The rule adds new regulatory provisions guiding the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities who can demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States. The rule states that such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain federal, state or local government entities. If granted, parole would provide a temporary initial stay of up to 30 months to facilitate the applicant's ability to oversee and grow his or her start-up entity in the United States. Extensions are possible for an additional 30 months.
An individual seeking to operate and grow a start-up entity in the United States generally would need to demonstrate the following to be considered for a discretionary grant of parole under the final rule: (1) the applicant has formed a new start-up entity; (2) the applicant is an entrepreneur; and (3) the applicant has received significant U.S. capital investment or government funding, which may include investments from established U.S. investors, government grants, or meeting alternative criteria. Under the alternative criteria requirement, an applicant who partially meets the above criteria related to capital investment or government funding may be considered for parole if he or she provides additional "reliable and compelling evidence" that he or she would "provide a significant public benefit" to the United States. "Such evidence must serve as a compelling validation of the entity's substantial potential for rapid growth and job creation," the final rule states, noting that USCIS adjudicators will consider the totality of the evidence.
Read about the final rule, which takes effect July 17, 2017
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USCIS Issues Guidance on Interpreters Brought to Domestic Field Office Interviews
U.S. Citizenship and Immigration Services (USCIS) issued new guidance on January 18, 2017, on the role and use of interpreters in domestic field office interviews, to be implemented May 1, 2017. USCIS said the policy memorandum is intended to help ensure that those who bring interpreters to certain interviews have competent language assistance.
USCIS said the guidance applies to interviews at domestic field offices except in cases where USCIS provides interpreters or has other policies, such as:
USCIS said it will introduce Form G-1256, Declaration for Interpreted USCIS Interview. Both the interviewee and interpreter must sign the new form at the beginning of the interview in the presence of the USCIS officer.
The memo states that the standards include being sufficiently fluent in both English and the interviewee's language; able to interpret competently between English and the interviewee's language; and able to interpret impartially and without bias. Those restricted from serving as interpreters include minors under age 18, except for good cause for those ages 14-17; witnesses, except for good cause; and attorneys and accredited representatives of the interviewee.
Read the memo
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USCIS Releases New Policy Guidance on Physicians of National or International Renown
U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum on January 4, 2017, that designates as precedent Matter of T-O-S-U-, a 2015 decision of the Administrative Appeals Office (AAO). The decision explains that physicians of national or international renown who are graduates of medical schools in foreign states are exempt from the U.S. Medical Licensing Examination (USMLE) requirement in the H-1B context.
In the new policy memo, USCIS noted that Matter of T-O-S-U- clarifies that a "physician of national or international renown" is a doctor of medicine or osteopathy "who is widely acclaimed and highly honored in the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States." USCIS noted that the decision also suggests, but does not mandate, what types of evidence may be persuasive in establishing eligibility for this exemption.
The AAO originally decided Matter of T-O-S-U- on February 20, 2015, as a nonprecedent case. The petitioner had filed a petition to classify the beneficiary, an "Assistant Professor—Clinical Physician," as an H-1B temporary nonimmigrant worker. The California Service Center (CSC) denied the petition, concluding that the evidence did not demonstrate that the beneficiary was exempt from the USMLE requirement as a "physician of national or international renown in the field of medicine." The AAO withdrew the CSC's decision and approved the petition, noting that regulations specifically provide a licensing examination exception for physicians of national or international renown in the field of medicine.
The AAO said that to satisfy this exemption, the petitioner must demonstrate that the beneficiary: (1) is a physician; (2) is a graduate of a medical school in a foreign country; and (3) is of national or international renown in the field of medicine.
To establish "renown" for purposes of adjudicating exemption claims, the AAO said that "national or international renown" could be restated as "widely acclaimed and highly honored within one or more countries." But the AAO noted that this cannot be interpreted to permit standards that may allow physicians from certain countries where renown in the field of medicine is more readily achieved—considering factors such as population size and available medical resources—to more easily qualify than those from countries where renown in the field of medicine is more difficult to achieve. Considering that physicians meeting the requirements for this exemption can provide patient care in the United States without passing the USMLE or establishing competency in English, the AAO said the standard for national renown "should be set at a level that requires achievements necessary to garner national renown in the United States and thus, applied consistently, would obviate potentially adverse effects on U.S. patients." The AAO said it "reserve[d] without answering the question of whether international renown must also be at a level comparable to that which would result in national renown in the United States."
The AAO provided the following "non-exhaustive list" of evidence that, depending on the qualitative nature of the evidence, may establish eligibility for the exemption:
Read the USCIS policy memo, which includes the original decision in Matter of T-O-S-U- -- The USCIS made the decision a precedent on January 4, 2017.
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DHS Proposes Changes to EB-5 Program, Regional Center Program
The Department of Homeland Security (DHS) has published a notice of proposed rulemaking on the EB-5 program in the Federal Register on January 13, 2017, and an advance notice of proposed rulemaking on the regional center program on January 11, 2017. Following are highlights of the notices:
Proposed Rule on EB-5 Program
Priority date retention. DHS proposes to authorize certain EB-5 petitioners to retain the priority date of an approved EB-5 immigrant petition for use in connection with any subsequent EB-5 immigrant petition. Petitioners with approved immigrant petitions might need to file new petitions due to circumstances beyond their control (for example, DHS might have terminated a regional center associated with the original petition) or might choose to do so for other reasons (for example, a petitioner may seek to materially change aspects of his or her qualifying investment). DHS proposes to generally allow EB-5 petitioners to retain the priority dates of previously approved petitions to avoid further delays on immigrant visa processing associated with the loss of priority dates. DHS said it believes that priority date retention "may become increasingly important due to the strong possibility that the EB-5 visa category will remain oversubscribed for the foreseeable future."
Increases in the investment amounts. DHS is proposing to increase the minimum investment amounts for all new EB-5 petitioners. DHS said the increase "would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990." Specifically, DHS proposes initially to increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million to adjust for inflation. For those investors seeking to invest in a new commercial enterprise that principally will be doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million. In addition, DHS proposes to make regular adjustments based on the Consumer Price Index for urban consumers (CPI-U) in the standard minimum investment amount, and conform adjustments to the TEA minimum investment amount, every 5 years, beginning 5 years from the effective date of the rule.
TEA designations. DHS proposes to "reform the TEA designation process to ensure consistency in TEA adjudications and ensure that designations more closely adhere to Congressional intent." First, DHS proposes to allow any city or town with high unemployment? and a population of 20,000 or more to qualify as a TEA. Currently, TEA designations are not available at the city or town level, unless a state designates the city or town as a TEA and provides evidence of such designation to a prospective EB-5 investor for submission with the Form I-526, Immigrant Petition by Alien Entrepreneur. Second, DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas. Instead, DHS would make such designations directly, using standards described in the proposed rule. DHS said it believes these changes would "help address inconsistencies between and within states in designating high unemployment areas, and better ensure that the reduced investment threshold is reserved for areas experiencing significantly high levels of unemployment."
Removal of conditions. DHS proposes to clarify that derivative family members must file their own petitions to remove conditions on their permanent residence when they are not included in a petition to remove conditions filed by the principal investor. In addition, DHS proposes "to improve the adjudication process for removing conditions by providing flexibility in interview locations and to update the regulation to conform to the current process for issuing permanent resident cards."
Written comments should be submitted by April 11, 2017.
Read the proposed rule
Advance Notice of Proposed Rule on EB-5 Regional Center Program
DHS said it is considering regulatory changes to the EB-5 immigrant investor regional center program and invites comments, data, and information. DHS seeks comments on: (1) the process for initially designating entities as regional centers; (2) a potential requirement for regional centers to use an "exemplar" filing process, explained in detail in the advance notice; (3) "continued participation" requirements for maintaining regional center designation; and (4) the process for terminating regional center designation.
DHS said that it has some information on these topics but seeks additional information that can help the agency "make operational and security updates to the Regional Center Program while minimizing the impact of such changes on regional center operations and EB-5 investors." DHS said it is particularly interested in data that would inform a quantitative and qualitative assessment of the costs and benefits of the potential changes described in the advance notice. DHS is also interested in receiving more information on how to identify the small entity status of EB-5 stakeholder entities, such as regional centers and new commercial enterprises. DHS specifically requests information on revenue or employment data sources on regional centers and new commercial enterprises.
Written comments should be submitted by April 11, 2017.
Read the notice
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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
2017 has certainly started as a very busy time for us. In addition to many clients following through on their New Year's resolution to explore options for moving to the U.S., we have been contending with the fall-out from the three Executive Orders issued by President Trump and the ensuing litigation. These are definitely uncertain times and we will send updates as we receive additional clarification. If you have any questions regarding the effect of the travel ban, please feel free to ring or email us.