August 2017 Newsletter
In This Issue
Sens. Graham, Durbin Introduce Bipartisan 'Dream Act'
On July 20, 2017, Sens. Lindsey Graham (R-SC) and Dick Durbin (D-IL) introduced the "Dream Act," a bipartisan legislative effort that would allow immigrant students who grew up in the United States to earn lawful permanent residence. As of press time, co-sponsors also included Sen. Jeff Flake (R-AZ) and Sen. Charles Schumer (D-NY).
"These young people have lived in America since they were children and built their lives here," said Sen. Graham. "There is support across the country for allowing Dreamers—who have records of achievement—to stay, work, and reach their full potential. ... [T]his may be an area where both parties can come together."
Sen. Durbin said, "I'll do everything in my power as a United States Senator to protect these Dreamers and give them the chance to become American citizens so they can contribute to a brighter future for all Americans. I first introduced the Dream Act 16 years ago and I'll continue fighting until it becomes the law of the land. I thank Senator Graham for partnering with me in this bipartisan effort."
The Dream Act would allow eligible young people to earn lawful permanent residence, and eventually U.S. citizenship, if they:
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Supreme Court Allows Temporary Exemption for Grandparents, Others from Travel Ban, But Not for Certain Refugees
On July 19, 2017, the U.S. Supreme Court allowed a temporary exemption of grandparents and other relatives (grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, and sisters-in-law) of those in the United States from President Donald Trump's temporary travel ban to stand. However, the court continued the temporary travel ban for certain refugees, at least until the U.S. Court of Appeals for the Ninth Circuit can review the related appeal. The people affected are from Iran, Syria, Sudan, Libya, Yemen, and Somalia. Also exempt from the travel ban, per a Trump administration list, are parents, spouses, fiancé(e)s, sons, daughters, sons-in-law, daughters-in-law, and siblings.
The Supreme Court also denied the Trump administration's motion to clarify its order of June 26, 2017. Read the Supreme Court's brief order.
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USCIS to Resume H-1B Premium Processing for Certain Cap-Exempt Petitions
U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for certain cap-exempt H-1B petitions as of July 24, 2017.
USCIS explained that the H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual "master's cap" of 20,000 petitions filed for beneficiaries with a U.S. master's degree or higher. Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:
Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization, or entity.
Cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker. The I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.
USCIS previously announced that premium processing resumed on June 26, 2017, for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.
USCIS said it plans to resume premium processing for other H-1B petitions "as workloads permit." USCIS plans to make additional announcements with specific details related to when the agency will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907s 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.
Read the USCIS announcement.
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USCIS Announces Return of All Unselected FY 2018 H-1B Cap-Subject Petitions
U.S. Citizenship and Immigration Services (USCIS) announced on July 19, 2017, that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected by the agency's computer-generated random selection process. USCIS previously announced that it had completed data entry for all selected cap-subject petitions.
USCIS said that those who submitted an H-1B cap-subject petition between April 3 and April 7, 2017, but have not received a receipt notice or a returned petition by July 31 may contact USCIS for assistance.
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USCIS Revises I-9 Employment Eligibility Verification Form
On July 17, 2017, U.S. Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification. USCIS said employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16N through September 17, 2017. On September 18, employers must use the revised form with a revision date of 07/17/17N. The revised form includes the changes summarized below.
Revisions to the Form I-9 instructions:
Revisions related to the List of Acceptable Documents on Form I-9:
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DHS Delays, Plans to Propose Rescinding International Entrepreneur Rule
As expected, the Department of Homeland Security (DHS) has delayed the effective date of the International Entrepreneur Rule that was scheduled to take effect July 17, 2017. The Federal Register notice, published on July 11, 2017, states that this delay "will provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, 'Border Security and Immigration Enforcement Improvements.' "DHS said it will issue a Notice of Proposed Rulemaking soliciting public comments on the proposal to rescind the IE Final Rule.
The new effective date for the final rule, with one exception, is March 14, 2018. In the final rule, DHS added the Department of State Consular Report of Birth Abroad (Form FS-240) to the regulatory text and to the "List C" listing of acceptable documents for Form I-9 verification purposes. As part of the final rule, DHS also revised the accompanying form instructions to reflect this change. As this provision is unrelated to entrepreneur parole under the final rule, this one provision will go into effect on July 17, 2017, as originally provided, the notice states.
The final rule amended DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security's discretionary case-by-case parole authority as applied to international entrepreneurs. Specifically, the notice states, it applied to international entrepreneurs who can demonstrate that their parole into the United States under § 212(d)(5) of the Immigration and Nationality Act (INA) would provide a significant public benefit to the United States. In accordance with the final rule's criteria, 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. In addition to defining criteria for the favorable exercise of the Secretary's discretionary parole authority, the final rule established a period of initial parole 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.
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I-94 Arrival/Departure Info Now Available Online for Air and Sea Travelers
U.S. Customs and Border Protection (CBP) recently announced that foreign visitors arriving to the United States via air or sea no longer must complete the paper Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record. Such travelers who need to prove their legal-visitor status to employers, schools and universities, or government agencies, can now access their CBP arrival/departure record information online. CBP said it is gathering travelers' arrival/departure information automatically from their electronic travel records. Because advance information is transmitted only for air and sea travelers, CBP will still issue a paper I-94 at land border ports of entry.
If travelers need the information from their I-94 admission record to verify immigration status or employment authorization, the record number, and other admission information, CBP encourages them to obtain the I-94 number here.
Upon arrival, a CBP officer stamps the travel document of each arriving nonimmigrant traveler with the admission date, the class of admission, and the date until which the traveler is admitted. If a traveler would like a paper I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting, CBP said.
Upon leaving the U.S., a traveler previously issued a paper I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.
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USCIS Issues Policy Guidance on H-1B Master's Degree Cap Exemption Case
U.S. Citizenship and Immigration Services (USCIS) recently published a policy memorandum designating Matter of A-T- as an "Adopted Decision," which establishes policy that applies to and binds all USCIS employees. "USCIS personnel are directed to follow the reasoning in this decision in similar cases," the memo states. The decision clarifies that to qualify for an H-1B numerical cap exemption based on a master's or higher degree, the conferring institution must have qualified as a "United States institution of higher education" at the time the beneficiary's degree was earned.
In Matter of A-T- Inc., Adopted Decision 2017-04 (AAO May 23, 2017), the California Service Center director denied the H-1B petition, concluding that the beneficiary did not qualify for the claimed master's cap exemption because the degree-conferring institution was not accredited when it awarded the beneficiary's master's degree. The petitioner asserted that a master's degree does not need to be from a U.S. institution of higher education when the degree is awarded to qualify for the master's cap exemption, but rather that a beneficiary may qualify for the exemption if he or she earned a degree from an entity that qualified as a U.S. institution of higher education at the time of adjudication. The Administrative Appeals Office (AAO) disagreed, noting that the degree must have been earned from an institution that has either been accredited or granted preaccreditation status. Among other things, the AAO noted that if a beneficiary could qualify for the master's cap exemption based on accreditation or preaccreditation that happens long after the degree was earned, this would not necessarily reflect the quality of the beneficiary's education. Conversely, the beneficiary subsequently could become ineligible for the exemption if the institution ended up not being accredited. Thus, the AAO noted, the petitioner's proffered interpretation introduces uncertainty for graduates seeking immigration benefits over time. In contrast, the AAO said, under its interpretation, an individual who earns a degree from an accredited or preaccredited institution may continue to qualify for the master's cap exemption even if the institution later closes or loses its accreditation status. Therefore, the AAO said it interprets the statute as requiring that the institution's qualifications be established at the time the degree is earned, and the date the beneficiary earned his master's degree is critical.
Read the USCIS policy memorandum.
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New Publications and Items of Interest
The E-Verify User Manual has been updated to include the latest system enhancements and policy updates. Some sections have been reorganized and consolidated.
Travel ban FAQ, by David Isaacson of Cyrus D. Mehta & Partners PLLC, updated July 19, 2017.
Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
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
It seems that our normal July/August business slow down while clients take their summer holidays is not happening this year. We continue to be as busy as throughout the rest of the year assisting our clients to achieve their U.S. immigration goals.