The Office of Management and Budget has approved a new questionnaire to be distributed to visa applicants who are deemed to need “greater scrutiny” by individual officers. The Trump administration has made this request on an emergency basis amidst its second travel ban suffering an appellate court loss. The new questionnaire will be in place until the end of November with the possibility of a more permanent form to be implemented after the initial trial period and a determination by the Department of State as to the sufficiency/effectiveness of this additional step.
An estimated 65,000 applicants will be required to supplement additional personal information, including details such as 15 years of employment, home and travel history (including how the traveler paid for their trips), all previous passport numbers, names and birth dates of spouses as well as siblings and children, and all social media handles, phone numbers, and email addresses used within the last 5 years. One official has indicated that if flagged for further inspection, the information won’t be required to be given at the time of the interview, but would be submitted via email after the fact.
Experts and lawyers around the country anticipate the added vetting will result in lengthier delays in visa issuance at affected posts, even for those not required to complete the supplemental questionnaire, and cause a spike in visa denials. State Department officials have indicated no further guidance will be issued for the questionnaires, leaving officers and applicants with minimal instruction to deal with complications, should they arise.
The highly anticipated International Entrepreneur Rule that was set to take effect on July 17 will now be delayed as the Trump administration recently ordered a fresh review of the rule. The new rule would allow foreign-born entrepreneurs who qualify to enter the U.S. for up to 30 months in a work authorized parole status. Qualifying entrepreneurs must have at least a 10% ownership interest in a startup that has received a minimum of $250,000 in capital funding, or a minimum of $100,000 in government grants. An additional 30-month stay is available to individuals who could demonstrate yearly business revenues of at least $500,000, with an average annualized growth rate of 20%, and the creation of at least five full-time jobs for U.S. workers.
It is unclear at this point what will come of the Trump administration’s review, but it is likely to delay the rule significantly, as the administration cannot implement an alternative rule without first proposing a new rule, allowing for public comment, and undergoing a final legal review. In any event, if the Trump administration relents and allows the original rule to remain, we still lack any guidance and/or updated I-131 forms to permit a filing for this benefit. It is clear that if this rule does survive, its implementation will be significantly delayed.
It has been reported that high-level USCIS sources have confirmed they will soon be lifting its temporary suspension on Premium Processing for all H-1B Petitions. When lifted, petitioners will once again be able to submit an additional form and fee with their H-1B filing that requires their case to be adjudicated within 15 calendar days of receipt. Although we expect it to return soon, it will likely be in phases according to this representative, so we are waiting for an official announcement. One obvious exception may be those cases filed against the current H-1B Cap, as suddenly permitting premium processing of thousands of pending case at this point may create a problem of scale for USCIS. We will continue to update on this possibility as soon as we have more information.
Late last month, USCIS issued a new memo clarifying what qualifies as a U.S. master’s degree for purposes of the U.S. Master’s H-1B Cap. The six-page memo notes the Administrative Appeals Office (AAO) decision in Matter of A-T-Inc, which clarifies that to qualify for the Master’s Cap, the conferring institution must have qualified as a U.S. institution of higher education at the time the degree was earned. To qualify as a U.S. institution of higher education, the institution must be accredited by a nationally recognized accrediting agency or association.
In March, the U.S. Department of Homeland Security (DHS) announced its ban of large electronic items such as laptops, tablets, and e-readers aboard nonstop flights originating from 10 airports in Africa and the Middle East. This restriction applies to roughly 350 flights a week. The DHS created the restriction to avoid allowing any bombs concealed in electronic devices on planes. Recently, the DHS announced that it may be expanding this ban to encompass 71 additional airports in Europe, Africa, and the Middle East. This expansion would affect 400 flights on a daily basis and an estimated 30 million travelers annually. The DHS did note that it is exploring other options to solve the issue without expanding the restriction, such as an agreement with the countries who could be affected by the ban to improve their airport security procedures.
In written testimony to the House Appropriations Committee on June 13, Acting Director of Immigration and Customs Enforcement (ICE) Thomas Homan articulated that under directives by the Trump administration, ICE will no longer exempt noncriminal aliens from potential enforcement. Rather, he said “those in violation of immigration law are subject to arrest, detention, and, if issued a final order by an immigration judge, removal from the United States.” He went on to state that all aliens in violation of immigration law or the terms of their visa can pose a threat to the public safety and national security of the United States.
Homan also noted that since the start of the fiscal year, over 144,000 aliens have been removed from the United States, only 54% of which had been convicted of a crime. He requested that ICE be granted the funding necessary to hire an additional 850 deportation officers, as well as the funding necessary to expand detention capability to an average adult daily population of 48,000 and the related transportation costs. In the week following Mr. Homan’s statements, the Department of Homeland Security took steps to rescind Obama-era regulations implementing the DAPA and expanded DACA programs, while not touching the existing DACA program.
The biggest change projected for the July Visa Bulletin is the retrogression of EB-3 China, which will roll back more than 2.5 years from October 1, 2014 to January 1, 2012. On the contrary, EB-3 Philippines will advance a year from May 1, 2013 to May 15, 2014, which is somewhat unexpected for this time of year. It appears that the EB-1 preference category for China and India will remain backlogged to January 1, 2012 for the July, August, and September Visa Bulletins. We expect China and India EB-1 to become current again at the start of the new fiscal year on October 1, 2017.
As a general note – we remind clients that USCIS does not recognize the “Dates for Filing” chart, so be sure to only reference the priority dates in the “Final Action Dates” chart when monitoring the Visa Bulletin each month.
IMMIGRATION OPTIONS FOR STARTUPS – FOUNDERS AND OTHERS
If you’re a founder or member of a startup company and looking to better understand your nonimmigrant options and plan for future permanent residence in the U.S., this webinar will help you understand and explore potential options for green card aspirants employed at startups. David will go over real-life scenarios and the various options available for startups to hire and sponsor founders and employees.
6/22/17 @ 11am PST / 1pm CST / 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 **