On December 14, the Trump administration announced plans to eliminate a 2015 rule granting work permits to certain H-4 visa holders. The Department of Homeland Security explained that it is reviewing this rule in light of President Trump’s “Buy American, Hire American” executive order, and the agency plans to publish a notice of proposed rulemaking to eliminate the rule in February 2018. Until DHS publishes this notice, it is unclear how the elimination of the H-4 EAD will affect the processing of pending applications or the validity of current H-4 EADs. This is a developing story we will continue to follow, but our current approach is to continue to file such applications for two reasons – 1) we don’t know when any published rule to eliminate the H-4 EAD will become effective, and 2) once the rule is effective, there is the possibility that individuals holding the EAD will still be permitted to use it until its expiration.
The Trump administration also announced Friday that it plans to make changes to the H-1B program. It provided few details as to what those changes might be, beyond suggesting that it will re-evaluate and possibly narrow the eligibility rules for H-1B visas. It is unclear when these changes will be made and how they can be made without congressional action. As such changes have been hinted at earlier this year we will continue to practice as usual until we have more concrete proposals to judge.
In our news blast on December 5, 2017 we warned clients to pay attention to the possibility of a government shutdown on December 8th. Congress acted to avert the shutdown by passing a spending resolution to fund the government through December 22, 2017 – until end of the day this Friday. As we previously reported, it is important to monitor this issue as any shutdown of the U.S. government would have a dramatic impact on Consulates and the Department of Labor, and create various issues for our clients to contend with – namely cancelled visa appointments. We recommend everyone who has a planned visa appointment pay attention to media reports on this issue and to prepare accordingly. Hopefully no shutdown will occur and the government will continue to function without interruption.
On December 14, USCIS issued guidance and application instructions regarding issuing parole to certain foreign entrepreneurs under the International Entrepreneur Rule (“IER”). This rule was allowed to go into effect when on December 1st a federal judge ruled in favor of venture capitalists, entrepreneurs, and companies who had sued the Trump administration over the delay of the rule (please see our December 5th News Alert for further details regarding this decision).
Under USCIS’ guidance and instructions, if the foreign entrepreneur meets the IER’s eligibility requirements, he or she must complete the new Form I-941, Application for Entrepreneur Parole, and submit the necessary supporting documentation. The filing fee is $1,200 with a biometrics fee of $85. If the application is approved, the foreign entrepreneur will still be required to visit a U.S consulate abroad to obtain travel documentation before coming to the U.S. Spouses and children accompanying the foreign entrepreneur must submit the traditional Form I-131 parole application with supporting documentation. For further details on the IER and the application process, please see USCIS’ web page on International Entrepreneur Parole.
Unfortunately, at the same time USCIS issued its public guidance implementing this status it also announced that it will eliminate the IER and is currently drafting its notice of proposed rulemaking – a necessary step to eliminate this allowance. It did not indicate when this notice will be published, or when it will take effect. Given the administration’s efforts to kill the IER applicants should approach applications with caution. We will also follow developments in the IER.
On December 18, USCIS issued new clarifying policy guidance on what work activities should be considered in determining whether a foreign national is eligible for TN nonimmigrant status as an economist. While “economist” is a position under which foreign nationals may be eligible for a TN visa, NAFTA does not define the term “economist.” This guidance is meant to provide officers with a specific definition of “economist” in order to adjudicate applications more consistently, in compliance with the intent of NAFTA.
The policy guidance states that foreign nationals requesting TN status as economists must engage primarily in activities consistent with the profession of economist. This policy is intended to be consistent with the Department of Labor’s SOC system, which defines economists as individuals who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Significantly, USCIS noted that individuals working primarily in other occupations related to the field of economics, such as financial analysts, marketing analysts, and market research analysts, do not meet this definition and are therefore not eligible for TN visas as economists.
The policy guidance only addresses the definition of “economist” for TN visa eligibility, and USCIS did not indicate whether it will issue guidance regarding other professional classifications under NAFTA. However, given the current immigration climate as well as the Trump administration’s desire to re-negotiate NAFTA, one can predict that USCIS may issue guidance regarding other professional classifications in the future, as well.
The Department of State has released its Visa Bulletin projections for January 2018. EB-1 remains current for all categories. EB-2 China and EB-3 China both move forward over one month to August 8, 2013 and April 15, 2014, respectively. EB-2 India and EB-3 India both move forward two weeks to November 22, 2008 and November 1, 2006, respectively. EB-3 Philippines moves forward one month to February 15, 2016. All other categories for EB-2 and EB-3 remain current.
** 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 **