We’ve all read the headlines regarding the fake news that was repeated through Facebook and other social media channels during the 2016 election. Since President Trump took office, it’s been difficult to know the direction of immigration policy. Between public pronouncements that haven’t always matched actual policy directions and the fact that the travel ban executive order has been temporarily stayed, it can be hard to sort out fact from fiction. But we do know that this administration is a change agent with respect to immigration and this creates certain unease for those who are foreign born and rely on stability in U.S. immigration policy to make key life decisions.
While we have concerns about President Trump’s interest in immigration law, he has done little yet to impact the vast majority of our clients. So while we share our clients’ concerns about the need to increase H-1Bs and immigrant visa numbers, and to reform the INA in meaningful ways, changes in other ways don’t necessarily hurt these other policy goals. We can all agree that targeting companies that abuse these programs and enacting reforms to make such abuse more difficult are worthwhile projects, assuming they are carried out in a meaningful and methodical manner. However, some of these recent pronouncements have been greeted by dire warnings and hyperbole. We suggest such news be read carefully, that people ask “what does this mean to me?” Or, put another way, “is this really important news?”
Recent guidance on computer programmers and news on additional inspections of H-1B dependent employers generally doesn’t impact any of our clients and represents reasonable steps to manage these programs. We’ve noticed that people report this news as the administration runs amuck – that to us is fake news, and is written to scare others into taking unnecessary actions, or to simply gain attention. Much of the recent announcements really fall under the “no new news” category for the vast majority of employers in the U.S. For our part, we’ll continue to update our clients on changes in immigration policy and practice, and do our best to clarify if something is a concern or a non-issue, so clients can pay attention to the issues that matter.
Some news that does matter – despite no update from USCIS on the Cap lottery having run, we are now seeing our checks cashed and will notify clients officially today on receipt of cases. We expect we’ll continue to hear about cases over the next 3-4 weeks.
On April 3, USCIS announced its high-priority goal to protect American workers “by combating fraud in our employment-based immigration programs.” USCIS plans to further its efforts to deter and detect fraud in all immigration programs by increasing and enhancing interviews, site visits, and investigations of companies who use the H-1B visa program.
Although USCIS has traditionally conducted random visits to H-1B employers’ work sites after petition approval and purposeful visits to employer sites of which they suspect fraud or abuse, USCIS will, in addition, now be conducting more targeted site visits. These site visits are orchestrated to verify that H-1B employees are performing the job duties, being paid the wage, and working at the location indicated on the H-1B petition. USCIS aims to target employers whom they suspect of fraud or abuse; employers who are H-1B dependent; employers who cannot be verified by commercially available data, such as by their Dun & Bradstreet number; and employers who employ H-1B workers who work off-site at either a different organization or company’s location.
Although the majority of interest appears to focus on H-1B dependent employers, and those who employ people off-site, we encourage all employers to ensure that there have been no changes in their H-1B employees’ wages (each employee should be paid at least the amount listed on their H-1B petition), job duties, and work site locations from those listed on their H-1B petitions. If any of your H-1B employees are now working at a different location or performing different job duties than those listed on their H-1B petitions, we encourage you to contact our office. Additionally, we encourage H-1B employers to check the information listed with their Dun & Bradstreet number here. Please ensure that your company is listed with the correct name and address. If your company is not listed with the correct information, please update the information on the website. If you have difficulty updating your company information, please contact our office.
USCIS recently updated its I-693, Report of Medical Examination and Vaccination Record form. Civil surgeons were expected to begin using this form on February 7, 2017. USCIS will no longer accept old editions of the I-693 form on or after April 28, 2017, unless the civil surgeon who performed the exam signed and dated the form prior to that date. If you have an upcoming medical exam, to ensure your doctor is using the most up-to-date form, please print off a copy of Form I-693, which can be found here, and bring it with you to your appointment.
As we previously reported, USCIS announced on March 3, 2017 that it is temporarily suspending premium processing services for H-1B petitions for at least six months. This suspension remains in effect for the time being and USCIS has yet to indicate whether or not it will be lifted after the first six months or be extended thereafter.
Employees most affected by the suspension are likely those wishing for a quick transition to a new employer. Although many individuals prefer to have a new approval before changing employers, those who are filing pursuant to AC-21 are eligible to begin working as soon as their new petition is received by USCIS. We understand the hesitancy to switch employers during the pendency of the new petition and to help eliminate misinformation and provide confidence in this process, we are happy to speak with possible candidates and confirm that our firm has never had an H-1B denied for a technology worker using AC-21 portability. We also note that as soon as the suspension has been lifted, we will have the option of upgrading any pending H-1B petitions to premium processing.
We also want to remind clients that there is an automatic 240-day extension of stay, starting the day after the expiration of your current H-1B, so long as an extension has been timely filed – so as to provide continued work authorization in the event the extension is not approved prior to the expiration of your current status. There are, however, certain travel restrictions to be aware of during that 240-day period, so we recommend contacting our office, should you need to rely on the 240-day extension of stay.
Lastly, we want to remind clients that the premium processing suspension only relates to H-1B petitions. All applications otherwise eligible for premium processing service may be filed as such.
Late last month, Secretary of State Rex Tillerson directed all U.S. Consular Officers to broadly increase scrutiny of visa applicants at U.S. Consulates. The instructions exempted 38 countries, including most European nations, Australia, New Zealand, Japan, and South Korea. Please note that this is a separate order than the Trump administration’s ban on visa issuances for people from six predominantly Muslim countries, which remains blocked by federal courts. The extra scrutiny would include asking more detailed questions of the applicants, including work history, travel history, and residences for the last fifteen years. This could also include checking social media history of the applicant, which remains an available option based on prior directives.
However, another order followed soon thereafter, telling consular officers not to implement the stricter scrutiny until they have received explicit authority from the Office of Management and Budget. Although the order is currently halted, we do recommend that our clients be aware that there may be longer delays in making visa appointments and in receiving the issued visas. Please contact the legal team member associated with your case to ensure you have all appropriate documents when making an appointment at a U.S. Consulate abroad.
On April 2, USCIS announced that they had received more H-1B cap visas for FY 2018 than available visas, and that there would be a lottery again this year, as anticipated. USCIS has not publically announced that they held the lottery, but in past years, they have conducted the lottery shortly after the filing window closed. As of Friday, we have confirmed that several of our Master’s cap cases had checks pending – meaning USCIS was seeking those funds and had receipted those cases. We expect receipts to start arriving as early as Wednesday and will notify each company immediately when we confirm a filing is receipted.
EB-1 and EB-2, “all other” and the Philippines, continue to remain current, while China and India remain backlogged. EB-3 China is once again ahead of EB-2 China (October 1, 2014 versus February 8, 2013). EB-2 and EB-3 India barely moved forward and are stuck in June 2008 for EB-2 and March 2005 for EB-3. EB-3 Philippines is sitting at January 1, 2013. May 2017 Visa Bulletin
Last month, federal district court judges in Hawaii and Maryland upheld their temporary restraining orders blocking President Trump’s second “watered down” executive order seeking to ban visa issuance to citizens from six majority-Muslim countries. As previously reported, both district court judges found the ban to have been issued with the discriminatory purpose of disfavoring Muslims.
Since then, the Trump team has appealed both cases and appellate oral arguments are quickly approaching. The United States 4th Circuit Court of Appeals, the district in which Maryland sits, will conduct an en banc hearing in Richmond, Virginia on May 8. Typically, appellate cases are heard by a panel of three judges; however, because the Court will be hearing the case en banc, as voted upon by the member judges, the session will be before the entire 4th Circuit bench, meaning all 15 active judges. Generally, en banc hearings are reserved for complex matters or cases considered to be of greater importance.
The 9th Circuit Court of Appeals, Hawaii’s district, is also gearing up to hear arguments on May 15 in Seattle, Washington. Currently, a three-judge panel is expected to hear the case as opposed to having an en banc review; however, following the Virginia Court’s decision to hold an en banc hearing, the state of Hawaii has requested an en banc session to be heard before 11 of the 9th District’s appellate judges.
As the current executive order stands, it seeks to stop all refugee settlement in the United States for 120 days and block citizens from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90 days. Regardless of the decisions issued by the federal appellate courts next month, it is anticipated that this matter may ultimately be adjudicated by the Supreme Court. We will continue to follow this matter and inform clients as the situation unfolds.
THE FIRST 100 DAYS OF TRUMP ON IMMIGRATION:
David will review any existing executive orders and the status of their implementation along with a review of all legislative initiatives under consideration by the House and Senate with an eye to advising clients on what the state of immigration law is now and what likely changes will happen over the course of 2017. David will speak on planning for immigration policy for the remainder of the year and help separate fact from fiction in terms of likely new immigration policy.
5/11/17 @ 1pm CST / 11am PST / 2pm EST
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **