April 2017 Newsletter
In This Issue
State Dept. Cable Calls for U.S. Embassies to Increase Scrutiny of Certain Visa Applicants
Reuters recently published a March 17, 2017, cable marked "sensitive" from Secretary of State Rex Tillerson on screening and vetting of visa applicants. The cable orders U.S. embassies to identify "applicant populations warranting increased scrutiny" and toughen their screening. The cable also orders a "mandatory social media review" for applicants who have ever been present in Islamic State-controlled territory. Also, notwithstanding the fact that Iraqis are exempt from the travel ban order (which is temporarily suspended by court order), the cable states that President Donald Trump "contemplate[s] additional screening for Iraqi nationals in addition to the robust vetting already in place." According to Reuters, two former U.S. officials said the effort would constitute a broad, labor-intensive expansion of screening procedures.
Among other things, the cable states that "all visa decisions are national security decisions," and notes that the measures being taken now are "preliminary" and that "[a]dditional screening measures will be introduced."
The text of the cable can be read here.
The Reuters article can be read here.
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Judge Extends Second Travel Ban Block, Trump Administration Appeals
On March 29, 2017, Judge Derrick K. Watson, of the U.S. District Court for the District of Hawaii, ordered that the temporary restraining order against sections 2 and 6 of President Trump's second executive order issuing a travel ban, "Protecting the Nation from Foreign Terrorist Entry into the United States," be converted to a preliminary injunction. The Trump administration filed an appeal the next day, to be decided by the U.S. Court of Appeals for the 9th Circuit.
Among other things, the Hawaii court noted that the Trump Administration urged the court not to look beyond the four corners of the Executive Order and to defer to the President in the national security context. The court noted that where the historical context and sequence of events leading up to the adoption of the challenged executive order are "as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context." The court declined to do so, stating, "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has. The Supreme Court and this Circuit both dictate otherwise, and that is the law this Court is bound to follow." The court said the requested nationwide relief from the executive order was appropriate in light of the likelihood of success of the plaintiffs' Establishment Clause claim, since "the entirety of the Executive Order runs afoul of the Establishment Clause" where the available information supports "a commonsense conclusion that a religious objective permeated" the order.
Following the court's ruling, Douglas Chin, Hawaii's Attorney General, said, "This is an important affirmation of the values of religious freedom enshrined in our Constitution’s First Amendment. With a preliminary injunction in place, people in Hawaii with family in the six affected Muslim majority countries—as well as Hawaii students, travelers, and refugees across the world—face less uncertainty. While we understand that the President may appeal, we believe the court's well-reasoned decision will be affirmed."
Sean Spicer, Press Secretary for the Trump administration, said after the ruling that the Department of Justice is reviewing the ruling and "is considering the best way to defend the President's lawful and necessary order. This ruling is just the latest step that will allow the administration to appeal. Just a week ago, the U.S. District Court in the Eastern District of Virginia upheld the President's order on the merits. The White House firmly believes that this order is lawful and necessary, and will ultimately be allowed to move forward."
Read Mr. Chin's statement, to which is appended the entire court order, here.
The second executive order that was the subject of the court action is available here.
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USCIS Reaches H-2B Cap for FY 2017
U.S. Citizenship and Immigration Services (USCIS) announced on March 16, 2017, that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year 2017. March 13, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2017. The H-2B visa category is for temporary non-agricultural workers.
Except as noted below, USCIS said it will reject new H-2B petitions received after March 13 that request an employment start date before October 1, 2017. USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:
Read the USCIS announcement here.
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State Dept. Reminds About Expiration of Two Employment Visa Categories
The Department of State's Visa Bulletin for the month of April 2017 included the following reminders about the possible expiration in late April of two employment-based immigrant visa categories, and an update on Special Immigrant Visa (SIV) availability.
Employment Fourth Preference Certain Religious Workers (SR) category. The non-minister special immigrant program expires on April 28, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight April 27, 2017. Visas issued before that date will only be issued with a validity date of April 27, 2017, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight April 27, 2017.
The final action date for this category has been listed as Current for April for all countries except El Salvador, Guatemala, Honduras, and Mexico, which are subject to a July 15, 2015, final action date for April. If there is no legislative action extending this category for FY 2017, the Department said, the final action date would immediately become Unavailable for April for all countries effective April 28, 2017.
Employment Fifth Preference (I5 and R5) categories. This immigrant investor pilot program had been extended by a continuing resolution until April 28, 2017. The I5 and R5 visas for EB-5 immigrant investors may be issued until the "close of business" on April 28, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.
The final action dates for the I5 and R5 categories have been listed as Current for April for all countries except China-mainland born, which is subject to a May 22, 2014, final action date. If there is no legislative action extending them for FY 2017, the final action dates would immediately become "Unavailable" for April for all countries effective April 29, 2017.
SIV availability. The Department expects to exhaust the SIV numbers allocated by Congress under the Afghan Allies Protection Act of 2009, as amended, by June 1, 2017. As a result, the Final Action Date for the SQ category for certain Afghan nationals employed by or on behalf of the U.S. government in Afghanistan will become Unavailable effective June 2017. No further interviews for Afghan principal applicants in the SQ category will be scheduled after March 1, 2017, and further issuances will not be possible after May 30, 2017.
The SQ category for certain Iraqi nationals employed by or on behalf of the U.S. government in Iraq is not affected and remains Current, although the application deadline was September 30, 2014.
The FY 2017 annual limit of 50 SIVs in the SI category was reached in December 2016 and the final action date remains Unavailable. As noted in the January 2017 Visa Bulletin, further issuances in the SI category will not be possible until October 2017, under the FY 2018 annual limit, the Department explained.
Read the Visa Bulletin for April 2017 here.
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USCIS Updates Report of Medical Exam and Vaccination Record
U.S. Citizenship and Immigration Services (USCIS) recently announced that beginning April 28, 2017, civil surgeons must use the 02/07/17 edition of Form I-693 (which shows an expiration date of 02/28/2019 at the top right corner of page 1). USCIS will not accept any previous editions (with an expiration date of 03/31/2017 or earlier) that a civil surgeon signed and dated on or after April 28, 2017.
The updated form and instructions are available here.
A page listing updates to forms chronologically, along with a brief explanation of the update, is available here.
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New Publications and Items of Interest
How to safeguard your data from searches at the border is the topic of several recent articles and blogs. Click here for an example, and click here for a second example.
Airport Lawyer is a free Web app that is intended to help ensure that immigrants are treated fairly at airports. Arrivals information can be securely passed along to large groups of volunteer attorneys who have been organized to monitor arrivals.
Listings and links to cases challenging executive orders, and related available pleadings.
What 60 Minutes got wrong about outsourcing, published by the Daily Caller.
An updated E-Verify handbook for employers is now available. The handbook gives employers detailed guidance for completing the Form I-9, Employment Eligibility Verification, and reflects revisions to the latest I-9 edition dated 11/14/2016. Click here for a table of changes to the handbook.
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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
March was a very busy month, assisting companies with immigration issues related to their expansion plans in the U.S. Many companies consider this a good time to open or expand their business in the U.S. We are still awaiting the results of the court proceedings relating to the Executive Orders and remain available to address any concerns you may have.