July 2017 Newsletter
In This Issue
Supreme Court Partially Lifts Trump Travel Ban Preliminary Injunctions
On June 26, 2017, the Supreme Court partially lifted preliminary injunctions that barred the Department of State from enforcing section 2 of Executive Order 13780, which suspended for 90 days the entry into the United States of, and the issuance of visas to, nationals of six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—and from enforcing section 6, which suspends refugee admissions from all countries for 120 days. The Supreme Court plans to hear arguments in the related cases in October brought against the Trump administration in the U.S. Courts of Appeals for the Ninth and Fourth Circuits.
The Department stated in a briefing that the travel ban for refugees will start July 6. Refugees scheduled to arrive before then are exempt from the temporary ban. The Department sent a cable to all diplomatic and consular posts implementing Executive Order 13780, in light of the Supreme Court's ruling on President Trump's travel ban, as of 8 p.m. ET on June 29, 2017. The cable notes that the Supreme Court's ruling allows the travel ban to be enforced only against foreign nationals who lack a "bona fide relationship with a person or entity in the United States." The cable states that applicants who are nationals of the affected countries who are determined to be otherwise eligible for visas and to have a credible claim of a bona fide relationship with a person or entity in the United States are exempt from the suspension of entry in the United States under section 2(c) of the order. Applicants who are nationals of the affected countries and who are determined to be otherwise eligible for visas, but who are determined not to have a qualifying relationship, "must be eligible for an exemption or waiver as described in section 3 of the [order] in order to be issued a visa," the cable states.
The cable notes that any such relationship with a "person" must be a close familial relationship," as defined in the cable. Any relationship with an entity "must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the E.O." "Close family" is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. "Close family" does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other "extended" family members, the cable states.
The cable notes the following examples of who may and may not be included in the exemption from the travel ban:
[A]n eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption [from the travel ban]. Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States. Similarly, a worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt. In contrast, the exemption would not apply to an applicant who enters into a relationship simply to avoid the E.O.: for example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their inclusion in the E.O. Also, a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States.The cable states that the travel ban does not apply to certain categories of individuals, such as those who were inside the United States as of June 29, 2017, who have a valid visa as of June 29, 2017, or who had a valid visa at 8 p.m. ET January 29, 2017, even after their visas expire or they leave the United States. The cable also notes:
No visas will be revoked based on the E.O. [Executive Order], even if issued during the period in which Section 2(c) was enjoined by court order or during the 72-hour implementation period. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and exemption provisions in the E.O. and the applicant's qualification for a discretionary waiver. Direction and guidance to resume normal processing of visas following the 90-day suspension will be sent [via separate cable].In a related statement issued publicly on June 29, 2017, the Department noted:
The Supreme Court's order specified that the suspension of entry in section 2(c) of Executive Order 13780 may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. Applicants seeking B, C-1, C-3, D, or I visas will need to demonstrate that they have the required bona fide relationship in order to be exempt, or they may qualify for a waiver pursuant to the terms of the E.O. Qualified applicants in other nonimmigrant visa categories are considered exempt from the E.O., as a bona fide relationship to a person or entity in the United States is inherent in the requirements for the visa classification, unless the relationship was established for the purpose of evading the order.The statement says that an individual who wishes to apply for an immigrant visa "should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is exempt from section 2(c) of the Executive Order." A consular officer "will carefully review each case to determine whether the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver," the statement says.
The statement also includes the following information with respect to students and short-term employees:
I'm a student or short-term employee that was temporarily outside of the United States when the Executive Order went into effect. Can I return to school/work?
USCIS Resumes Premium Processing for H-1B Petitions Filed for Conrad 30 Medical Doctors, Interested Government Agencies
U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. The Conrad 30 program allows certain medical doctors to stay in the United States on temporary visas after completing their medical training to work in rural and urban areas that have a shortage of physicians.
Eligible petitioners for medical doctors seeking H-1B status under the Conrad 30 program, or through an interested government agency waiver, can file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition, USCIS noted.
USCIS said it plans to resume premium processing of other H-1B petitions as workloads permit. "We will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions," the agency said. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS said it will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I 129 fees, USCIS will reject both forms.
International Entrepreneur Final Rule Expected to be Delayed, Scrapped
A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. According to new reports, the Trump administration has decided to delay the rule's effective date until March 2018, and ultimately to rescind it.
The final rule, intended to encourage entrepreneurs wishing to build companies in the United States, would have added 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. 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 (which may be extended by up to an additional 30 months) "to facilitate the applicant's ability to oversee and grow his or her start-up entity in the United States."
A group of investors and startup founders in 25 states recently sent a letter to President Trump encouraging him to allow the rule to move forward. Noting that immigrant entrepreneurs are a "critical driver of increased economic activity" in the United States, the letter states that the international entrepreneur rule would be a "job creation tool" and is "desperately needed at a time when U.S. entrepreneurial leadership is being challenged by other countries." Among other efforts, French President Emmanuel Macron recently announced a new technology visa for start-up founders, employees, and investors. "I want France to attract new entrepreneurs, new researchers, and be the nation for innovation and start-ups," he said. And the United States' next-door neighbor, Canada, offers an entrepreneur start-up visa program that grants permanent residence to immigrant entrepreneurs.
Bobby Franklin, president and chief executive of the National Venture Capital Association (NVCA), noted the contributions of immigrant entrepreneurship to the U.S. economy. He said that NVCA's research has found that a third of U.S. venture-backed companies that went public between 2006 and 2012 had at least one immigrant founder. He noted a recent study showing that immigrants started more than half of U.S. "unicorns," or privately held companies valued at more than $1 billion.
USCIS Redesigns Green Card Application
U.S. Citizenship and Immigration Services (USCIS) has revised the Application to Register Permanent Residence or Adjust Status (Form I-485). The new Form I-485 and instructions "have been substantially updated to reduce complexity after collecting comments from the public and stakeholders," USCIS said.
USCIS said that starting on June 26, 2017, there will be a 60-day "grace period" during which the agency will accept both the 01/17/17 and 06/26/17 editions of Form I-485 and Supplements A and J (which have also been revised). Beginning August 25, 2017, USCIS will only accept the revised form and supplements.
Changes to the form include:
USCIS noted that although both the revised Form I-485 and its instructions may look different from earlier versions, the process for filing the form and supplements A and J remains the same. Applicants must still submit their paper applications to the location listed in the form instructions. Back to top
Minor Lies Can't Be Used to Revoke Citizenship, Supreme Court Rules
On June 22, 2017, the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship. Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband's service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.
The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands "a causal or means-end connection between a legal violation and naturalization." The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, "a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law." The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.
Read the Supreme Court's opinion.
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State Dept. Releases Diversity Visa Lottery 2018 Results, Notifies Winners
In the July 2017 Visa Bulletin, the Department of State released the diversity visa (DV) fiscal year 2018 results. The Kentucky Consular Center has registered and notified the winners of the DV-2018 diversity lottery. Those selected will need to act on their immigrant visa applications quickly, the bulletin warns.
The DV lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Approximately 115,968 applicants have been registered and notified and may now make an application for an immigrant visa. The bulletin says that since it is likely that some of the first 50,000 persons registered will not pursue their cases to visa issuance, the larger figure is intended to ensure that all DV-2018 numbers will be used during FY 2018 (October 1, 2017, through September 30, 2018).
Applicants registered for the DV-2018 program were selected at random from 14,692,258 qualified entries (23,088,613 with derivatives) received during the 34-day application period that ran from Wednesday, October 4, 2016, until Monday, November 7, 2016. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, the bulletin notes, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.
Registrants living legally in the United States who wish to apply for adjustment of their status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the visa numbers have been used, the program for FY 2018 will end. Selected applicants who do not receive visas by September 30, 2018 will derive no further benefit from their DV-2018 registration. Similarly, spouses and children accompanying or following to join DV-2018 principal applicants are only entitled to derivative diversity visa status until September 30, 2018.
The bulletin notes that dates for the DV-2019 program registration period will be publicized in the coming months.
Read the July Visa Bulletin (includes a statistical country-by-country breakdown of those registered for the DV-2018 program)
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New State Dept. Form Asks Certain Visa Applicants 'Supplemental Questions' Regarding Social Media Usage
A new Department of State form, DS-5535, for visa applicants asks supplemental questions of "[i]mmigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities," according to a related Federal Register notice. A wide variety of organizations are expressing concerns about the new form and its use.
The form's questions include where the applicant has traveled outside his or her country of residence in the last 15 years, with "details for each trip, including locations visited, date visited, source of funds, and length of stay." The form also asks for information about any passports other than those listed in the visa application; full names and dates of birth of any siblings; children; current or previous spouse or civil/domestic partner; addresses where the applicant has lived during the last 15 years; phone numbers, including "primary, secondary, work, home, and mobile numbers," used over the last 5 years; email addresses used over the past 5 years, including "primary, secondary, work, personal, and educational"; usernames for any websites or social media applications used to create or share content, including photos, videos, and status updates, over the last 5 years (the form does not ask for passwords); and employers, job descriptions, and job titles over the last 15 years.
The Federal Register notice announcing the new form explains that most of this information is already collected on visa applications but for a shorter time period; for example, 5 years rather than 15 years. The notice states that requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is also new for the Department of State, although the Department of Homeland Security (DHS) already collects such information on a "voluntary basis" from certain individuals. The notice explains that applicants may be asked to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization. Applicants "may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation."
Reaction. A number of organizations sent a letter to the Office of Management and Budget (OMB) and the Department of State expressing their concerns about the new form. Among other things, the letter acknowledges the need to secure the United States, but cautions that there is also a need to remain open to those pursuing academic study and scientific research. The letter states that the notice is likely to have a "chilling effect" not only on those required to submit additional information but indirectly on all international travelers coming to the United States. According to the letter, the notice also provides insufficient information on the criteria for identifying those required to complete the supplemental form, the effect of unintentional incomplete disclosure, and remedies for correcting information initially provided. "These additional questions could lead to unacceptably long delays in processing, which are particularly harmful to applicants with strict activity timeframes or enrollment deadlines," the letter notes, adding that no information is provided about the longer-term use, retention, or privacy protections for the information provided. The letter asks that the State Department publish an additional notice with this and other information.
The letter notes that scientific exchanges, whether through long- or short-term visits or at professional society meetings, are vitally important to the United States. Many project collaboration meetings take place at conferences held in the United States, and not having the top international talent in attendance "would be a significant problem," the letter states. "Scientists must periodically meet in person, and if bureaucratic hurdles for entry into the United States are too high, they will hold their meetings elsewhere, hurting U.S. economic, technological, and scientific competitiveness." For example, the letter notes, the "American Geophysical Union and the American Physical Society both have strong international counterparts that hold regular conferences and meetings, and the collaborators could well turn to those venues instead."
Moreover, the letter notes, many U.S. professional societies have significant numbers of international members, and it is important for those individuals to be able to attend the U.S. societies' meetings. The letter cites a 2012 report by PricewaterhouseCoopers noting that nearly 1.8 million meetings (not all scientific) were held in the United States during 2009 involving "an estimated 205 million participants and generat[ing] more than $263 billion in direct spending and $907 billion in total industry output." The attendance of international scientists at U.S. meetings and conferences "is important in terms of the intellectual content they contribute, for the benefit to the United States from the formation and sustainment of partnerships with U.S. counterparts, and in terms of benefits to the U.S. economy," the letter notes.
The letter was signed by 55 U.S. professional associations and other entities, including the American Association of Collegiate Registrars and Admissions Officers, the American Society of Civil Engineers, the Association for Research in Vision and Ophthalmology, the Institute of Mathematical Statistics, NAFSA: Association of International Educators, and the Society of Engineering Science.
The OMB approved the new form on an emergency basis for six months.
Labor Dept. Announces Aggressive Anti-Visa Fraud Measures; White House Considers H-1B Overhaul
Secretary of Labor Alexander Acosta recently announced actions "to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse," according to a Department of Labor (DOL) press release. Secretary Acosta said these measures will include "heightened use of criminal referrals. The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs."
The announcement states that "it is now the policy of the department to enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs," including:
DOL will continue to work with the departments of Justice and Homeland Security to further investigate and detect visa program fraud and abuse, the announcement states.
In addition, DOL said it has begun "to prioritize and publicize the investigation and prosecution of entities in violation of visa programs." For example, the agency announced that it obtained a preliminary injunction under the H-2A visa program from the U.S. District Court for Arizona against G Farms for "illegal and life-threatening housing provided to agricultural workers." DOL said it "continues to investigate the violations at G Farms and has also been in contact with the OIG on this matter."
This announcement comes on the heels of President Trump's April 18, 2017, executive order ordering several agencies to suggest H-1B reforms. The Department of Homeland Security said it plans to issue new rules and guidance on the H-1B program. According to reports, the White House is also working with the Department of Justice to consider measures such as reducing the numerical limit on, and duration of, H-1B visas, among other actions.
Read the announcement here.
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July Visa Bulletin Notes Oversubscription of Employment-Based Green Card Categories for China EB-3 and India EB-4 Categories
The Department of State's Visa Bulletin for the month of July 2017 includes the following information:
CHINA Employment-based Third (E3) preference category: Readers were advised in item F of the June Visa Bulletin number 6, that it would be necessary to impose a date no later than August. The continued high level of demand for E3 numbers for USCIS adjustment of status applicants has required the establishment of a date for July. This has been done in an attempt to hold number use within the China E3 annual limit. The China E3 date will return to October 1, 2014 for October, the first month of fiscal year 2018.Click here to see the July 2017 Visa Bulletin.
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New Publications and Items of Interest
Travel ban FAQ, by David Isaacson of Cyrus D. Mehta & Partners PLLC, updated June 27, 2017.
USCIS Civics Test Study Tools, a new app, helps people prepare for the civics test during a naturalization interview. It includes a game to test civics knowledge, reminder notifications, and review of past tests. The app allows users to switch between English and Spanish. To get the official app, search for "USCIS" or "USCIS civics," then confirm that USCIS is the developer. The app is available on iTunes or Google Play.
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.
The latest E-Verify webinar schedule from USCIS is available.
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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
As the warm weather continues, we hope you are enjoying your summer time activities. For those of you heading off on holiday, safe travels and have fun.