In late June, USCIS teased that they would start resuming Premium Processing of H-1B petitions, but that they would do so in a measured way. On June 23, 2017 they announced that they would resume premium service on June 26 for Conrad 30 Waiver-based H-1B filings for doctors, as they recognized there was a timing element to these applications that could hurt hospital services and thus harm the general public. However, since first announcing they would resume premium processing service, they have only resumed premium for the Conrad-based petitions and have otherwise remained silent. We expect that they are monitoring their progress and are likely to implement it again for change of employers, followed by extension filings, and then new fiscal 2018 H-1B cap filings. It could potentially be weeks before we are in a position to upgrade any currently pending cases. As soon as we have definitive information on the resumption of this service, we will notify all clients of the update so that clients can plan to respond accordingly.
U.S. Department of Homeland Security Secretary John Kelly announced at the Center for a New American Security’s 2017 Annual Conference that the federal government will begin subjecting all US-bound flights from 280 airports in 105 countries to additional security screening measures. So far, it does not appear that the change in policy includes the proposed plan to ban electronics larger than cellphones from international flights (expanding the existing ban on flights from the 10 airports in the Middle East). Instead, the changes include: increased use of bomb-sniffing dogs, advanced next-generation screening technology, and increasing the number of TSA’s Pre-Clearance locations. Secretary Kelly and spokesmen did not elaborate on the plans or their timetables, but insisted that the increased burdens will fall on the airlines themselves, not the passengers.
Following the delay in raising the annual cap of H-2B visas from 66,000 to 135,000 (per the 2017 spending bill passed in May), the Department of Homeland Security announced on Monday, July 17 that it will allow an additional 15,000 H-2B visas in fiscal year 2017 beginning July 19. Those eligible for the additional visas must show that their businesses will be significantly harmed without the H-2B workers. H-2B visas are designated for seasonal, non-agriculture workers and are most common in the hospitality, tourism, and landscaping sectors. The annual cap of 66,000 (divided biannually at 33,000) was reached in late January, and a delay in legislation to increase the number of available visas has left many businesses shorthanded. In late June, DHS made the announcement that additional visas will be made available as early as July and businesses have been waiting anxiously for this final announcement noting when the additional visas would be made available and how many.
The decision to increase the number of H-2B visas has sparked controversy with some contending that the visas are displacing American workers. However, many businesses have noted that without the temporary workers, they have been forced to shut their doors, causing American employees to lose their jobs. Supporters of the expansion of the H-2B program explain that H-2B workers allow the creation of more jobs for American workers as a major contributor to the business’ success, including the creation of more upper-management positions that pay higher wages.
The Supreme Court recently issued a unanimous decision, with multiple concurrences, that naturalized citizens cannot lose their U.S. citizenship if they made false statements to immigration officials, when those said statements were unrelated to the naturalization qualifications. The Court held that the government must show an illegal act was a component in acquiring citizenship. In cases such as the one heard before the Court, in which the illegal act was a false statement, the government must demonstrate that the information that the applicant lied about would have been deemed significant by the immigration official.
Justice Kagan’s opinion distinguished the type of falsehoods that would not give rise to citizenship rescission. Those include lies based on “embarrassment, fear, or a desire for privacy.” These lies are contrasted against those expressed for the sole purpose of obtaining an immigration benefit. In the event that a misrepresented fact was stated to impede an immigration officer, the high Court established a new two-part test that must be administered. First, the government must show that the misrepresentation was “sufficiently related” to naturalization criterion that a “reasonable” official would have undertaken a further investigation. The second step requires establishment that a subsequent investigation “predictably” would have led to disqualification. Kagan recognizes this standard to be demanding yet still practicable.
Defendants may overcome disqualification by showing that they would have qualified for citizenship regardless of their prior misrepresentation. With this decision, the Supreme Court has created a new defense for naturalization applicants that reflects the real-world intricacies intending U.S. citizens face.
The Trump administration is delaying the implementation of an Obama-era International Entrepreneur (IE) Rule until March 14, 2018, despite the fact that as of March 2016, immigrants have started over half of America’s billion-dollar startups. The proposed rule was scheduled to go into effect Monday, July 17, 2017, but has been delayed for public comments surrounding President Trump’s proposal to rescind the rule pursuant to his “Border Security and Immigration Enforcement Improvement” Executive Order. For an individual to qualify under the current proposed rule, he or she must show that they had raised a minimum of $250,000 from American investors or at least $100,000 in grants from governmental entities. The foreign national would be granted up to a 30-month stay with the possibility of extending their visa for another 30 months, if additional criteria were met. The IE Rule was originally intended to aid startups and assist eligible entrepreneurs to enter the U.S. to cultivate their business. The Obama administration estimated nearly 3,000 entrepreneurs would be eligible for this benefit annually.
We only expect movement in a few categories as we look ahead to the projections for the August 2017 Visa Bulletin. Two of the most notable changes are in the second and third employment-based preference categories for the Philippines – EB-2, which is current for July, is expected to roll back to a priority date of April 1, 2015, whereas EB-3 will advance more than a year to a priority date of June 1, 2015. In addition, we will see pretty significant movement in the employment-based, second-preference categories for “All Chargeability Areas Except Those Listed” and Mexico – both of which are current this month, but will roll back to April 1, 2015 in August – and likely remain in this position until new visas are available in October. There will also be a slight advance for employment-based, third-preference Indian nationals, which is expected to move up five months to a priority date of July 15, 2006.
MASTERCLASS SERIES: THE LATEST ON IMMIGRATION LAW
In the current political and news environment, it can be difficult separating fact from fiction. There are nonstop headlines on immigration and it can lead to information overload and a feeling of powerlessness. At the same time, often what is not widely reported, may be the most important news. David will go into in-depth detail on the state of immigration processing and policy to help HR and employees get their bearings straight while preparing for future change. This year has already seen substantial change, and David will explain how to manage immigration processes in this period of relative uncertainty.
8/10/17 @ 2pm EST / 1pm CST / 11am PST
** 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 **