May 2017 Newsletter
In This Issue
President Trump Signs 'Buy American and Hire American' Executive Order
On April 18, 2017, President Donald Trump signed a "Buy American and Hire American" executive order. The order sets the policy of the executive branch as, among other things, rigorously enforcing and administering laws governing entry into the United States of workers from abroad. The order also calls for new rules and guidance to "protect the interests of United States workers."
Among other things, the order calls for the Secretaries of State, Labor, and Homeland Security, along with the Attorney General, to "propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate," to protect U.S. workers in the administration of the immigration system, "including through the prevention of fraud or abuse."
The order also calls for reforms "to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." U.S. Citizenship and Immigration Services (USCIS) recently released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers.
President Trump announced the executive order during a visit to Snap-On Tools in Wisconsin on April 18. He said, "The 'Buy and Hire American' order I'm about to sign will help protect workers and students like those of you in the audience today. This historic action declares that the policy of our government is to aggressively promote and use American-made goods and to ensure that American labor is hired to do the job. It's America first, you better believe it." He said the order declares that "Made in America content" will be maximized in all federal projects, and that U.S. trade agreements will be investigated accordingly. He said that "widespread abuse" in the U.S. immigration system "is allowing American workers of all backgrounds to be replaced by workers brought in from other countries to fill the same job for sometimes less pay. This will stop." That includes, he said, "taking the first steps to set in motion a long-overdue reform of H-1B visas." He said that H-1B visas are currently awarded in "a totally random lottery" but that instead "they should be given to the most-skilled and highest-paid applicants, and they should never, ever be used to replace Americans." President Trump also said the North American Free Trade Agreement (NAFTA) "has been very, very bad for our country," and that his administration was going to "make some very big changes" or "get rid of NAFTA for once and for all."
Read the order here. Read the related press statement here. Read the White House "Background Briefing" on the executive order here. Read the USCIS memo on computer programmers here.
Back to top
Congress Extends EB-5 Regional Center Program Until September 30, 2017
The U.S. Congress passed a funding bill to prevent a government shutdown and the expiration of the EB-5 regional center program. Which included the extension of the EB-5 Regional Center Program, without reform, until September 30, 2017, and U.S. Citizenship and Immigration Services will continue to accept Form I-526 petitions based on investments through EB-5 regional centers through that date.
Back to top
USCIS Says Employers Should Review Form I-9s for SSN Glitch
U.S. Citizenship and Immigration Services (USCIS) announced on April 17, 2017, that employers who used Form I-9, Employment Eligibility Verification, downloaded between November 14 and November 17, 2016, should review the forms to ensure that their employees' Social Security numbers appear correctly in Section 1. The agency said there was a glitch when the revised I-9 was first published on November 14, 2016, whereby numbers entered in the Social Security number field "were transposed when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security number field would appear as 123-34-6789 once the form printed." USCIS said employers using an I-9 that contains this glitch should download and save a new I-9 available here.
USCIS also said that employers who notice that their employees' Social Security numbers are not written correctly "should have their employees draw a line through the transposed Social Security number in Section 1, enter the correct Social Security number, and then initial and date the change." Employers should include a written explanation with the I-9 about why the correction was made.
USCIS said it immediately repaired and reposted the form on November 17, 2016.
Read the announcement here.
Back to top
Redesigned Green Cards, EADs to be Issued Beginning May 1
U.S. Citizenship and Immigration Services announced a redesign of the Permanent Resident Card ("green card") and the Employment Authorization Document (EAD) as part of the "Next Generation Secure Identification Document Project." USCIS began issuing the new cards on May 1, 2017. The redesigns use enhanced graphics and fraud-resistant security features.
The new green cards and EADs:
Some green cards and EADs issued after May 1, 2017, may still display the existing design format because USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new green cards and EADs will remain valid until the expiration date shown on the card.
Certain EADs held by individuals in temporary protected status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, see here and here.
USCIS noted that some older green cards do not have an expiration date; such cards remain valid. The agency said that individuals who have such cards may want to consider applying for a replacement card bearing an expiration date. "Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen," USCIS noted.
Read the announcement here.
Back to top
Visa Bulletin for May Discusses Expiration, Imminent Unavailability of Certain Visa Categories
Several visa categories are due to expire or become unavailable soon. The Department of State's Visa Bulletin for May 2017 includes the following information:
Scheduled Expiration of Two Employment Visa Categories
Employment Fourth Preference Certain Religious Workers (SR):
Pursuant to the continuing resolution signed on December 10, 2016, 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 prior to this date will only be issued with a validity date of April 27, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight April 27, 2017.
The final action date for this category has been listed as "Unavailable" for May. If there is legislative action extending this category for FY-2017, the final action date would immediately become "Current" for May for all countries except El Salvador, Guatemala, Honduras, and Mexico which would be subject to a July 15, 2015 final action date.
Employment Fifth Preference Categories (I5 and R5):
The continuing resolution signed on December 10, 2016 extended this immigrant investor pilot program until April 28, 2017. The I5 and R5 visas may be issued until 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 "Unavailable" for May. If there is legislative action extending them for FY-2017, the final action dates would immediately become "Current" for May for all countries except China-mainland born I5 and R5 which would be subject to a June 1, 2014 final action date.
Special Immigrant Visa Availability
The Department expects to exhaust the Special Immigrant Visas allocated by Congress under the Afghan Allies Protection Act of 2009, as amended, not later than 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, though the application deadline was September 30, 2014.
The FY-2017 annual limit of 50 Special Immigrant Visas in the SI category was reached in December 2016 and the Final Action Date remains "Unavailable." As included 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.
Read the May 2017 Visa Bulletin here.
Back to top
USCIS Reaches FY 2018 H-1B Cap
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017, that it reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the master's cap.
The agency said it will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. The agency noted that it suspended premium processing as of April 3 for up to six months for all H-1B petitions, including cap-exempt petitions.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, will not be counted toward the congressionally mandated FY 2018 H-1B cap. USCIS will continue to accept and process petitions filed to:
USCIS said it encourages H-1B applicants to subscribe to the H-1B cap season email updates available here. Read the announcement that the cap has been reached for FY 2018 here.
Back to top
USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers
On April 3, 2017, the first filing day for fiscal year 2018 H-1B petitions, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers. The memo, "Guidance Memo on H-1B Computer Related Positions," supersedes and rescinds a memo with the same title issued December 22, 2000.
The new memo states that petitioners may not rely solely on the Occupational Outlook Handbook (OOH) to prove that an entry-level computer programmer position is a specialty occupation: "[I]t is improper to conclude based on this information that USCIS would 'generally consider the position of programmer to qualify as a specialty occupation.' "Among other things, the new memo states that the earlier memo "does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique." The fact that a computer programmer may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job "is not sufficient to establish the position as a specialty occupation," the memo states. Thus, "a petitioner may not rely solely on the [OOH] to meet its burden" and must provide other evidence.
Many such H-1B applications presumably have already been filed, along with fees of several thousand dollars per application that the agency can keep whether it approves or denies the application. Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.
Read the USCIS memo here.
Back to top
USCIS Announces Multiple Measures to 'Deter and Detect' H-1B Visa Fraud, Abuse
On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures "to further deter and detect H-1B visa fraud and abuse." USCIS explained that the H-1B visa program "should help U.S. companies recruit highly skilled foreign nationals when there is a shortage of qualified workers in the country," but that "too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged." USCIS stated that it is prioritizing "combating fraud in our employment-based immigration programs."
Among other things, USCIS said it "will take a more targeted approach" when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The agency said it will focus on:
Targeted site visits will allow USCIS to focus resources "where fraud and abuse of the H-1B program may be more likely to occur," the agency said, and to "determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers." USCIS said it will continue random and unannounced visits nationwide. "These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system," USCIS said.
USCIS also has established an email address, "to allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse." Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution, USCIS said.
Read the announcement here.
Back to top
Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening
According to reports, visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond. The Department of State issued several related cables to diplomatic and consular posts that were publicly leaked, such as one issued on March 17, 2017, calling for increased scrutiny and consideration of security advisory opinions (SAOs) when additional checks may be warranted, along with generally limiting visa interviews to 120 per consular officer per day.
To support an SAO request, consular officers may ask visa applicants probing questions. It was also reported that those coming to the United States may be required to disclose their mobile phone contacts, social media passwords, financial records, and ideology. The March 17 cable's leaked text says that if a consular post determines that an applicant "may have ties to ISIS or other terrorist organizations or has ever been present in an ISIS-controlled territory, post must/must refer the applicant to the Fraud Prevention Unit for a mandatory social media review." The cable states that the post should scan the results of this review into the nonimmigrant visa case for consideration during the SAO process.
Read the text of the March 17 cable here.
Back to top
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.
The latest E-Verify webinar schedule from USCIS is available.
Back to top
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:
Back to top
Hodkinson Law Group News
As President Trump attempts to fulfil his promise to “make America great again”, many clients continue to express concern regarding the U.S. government’s focus on enforcement/compliance. Now, as never before, it is crucial to ensure that every applicant for admission to the U.S. has the appropriate visa or current/valid ESTA and is prepared for in-depth questioning by Customs & Borders Protection Officers. If you have any concerns, please feel free to ring or email us.