With numerous executive orders and concern within the current administration that immigrants are somehow to blame for a host of societal ills, we already expect additional scrutiny of certain application types and spot audits of work sites to ensure what was previously approved by the government is being handled as originally intended. However, added to these concerns is the general issue of procedure. The government as a service provider is responsible for issuing visas, approving work benefits, and confirming employment of foreigners will not affect U.S. workers’ wages, among other services, and a timely performance of these functions is key to a working system. While we have seen some visa processing return to normal processing times, we’ve unfortunately seen no positive progress on expanding processing times for USCIS. With a combination of record filings and a federal hiring freeze, USCIS has too few workers and more work than ever before. We should expect processing time frames to generally get worse before they get better. And premium processing is no longer the answer as there is a current moratorium on H-1B premium filings until October. As a practice, we will do our best to deliver a timely and professional filing to USCIS or any other government agency, and we will give our clients a sense of what they can expect in terms of processing, but please know that unfortunately we are in an unusually busy time for USCIS and other agencies and even they aren’t promising a certain result anymore. So please bear with us as we all do our best to work with an unusually slow system.
USCIS announced on May 3 that they had completed entry of all cases accepted into this years’ H-1B lottery and would begin the process of mailing back rejected applications. Although USCIS would not commit to a time frame for having all rejected cases sent back, in our experience, it is typically mid-summer before we have back all rejected cap cases. We will be contacting employers and employees shortly with possible action plans for those who did make it into the lottery. As always, please let us know if you have any questions about your particular case.
A central part of now-President Trump’s campaign was the promise to conduct “extreme vetting” of visa applicants from certain areas connected to terrorist activity. In response to his March 6 directive to study additional visa requirements, the Department of State has issued a proposed rule that would require more detailed questioning of some seeking to enter the United States.
The proposed rule would require some visa applicants to provide 15 years of travel history, addresses, and employment history. This information is already requested, but usually only going back five years. Subject migrants would also be required to provide: all passport numbers and countries of issuance; names and dates of birth for all siblings, children, and spouses (current and former, including domestic or civil partners). Social media identifiers (handles) would be requested, but passwords for social media platforms would not be requested. All email addresses and phone numbers used in the last five years will also be requested.
All questions related to these additional demands for information will be asked during the consular processing and interview stage. Failure to answer any of the questions will not immediately bar admission into the United States, assuming the applicant has a satisfactory explanation for failure to provide requested information or documentation.
The State Department has not issued a definitive list of visa applicants who will be subject to these additional questions, but estimates only .5% of applicants (approximately 65,000) worldwide will be impacted. Generally, the consular post will have some discretion in whether an applicant population warrants increased scrutiny. In response to recent litigation over the so-called “travel ban,” the administration has made careful note that any additional screening will not be on the basis of an individual’s race, religion, ethnicity, national origin, political views, gender, or sexual orientation, but rather will be based on the concerns of the particular consular official conducting the examination. Processing delays should be anticipated.
For the first time this year, EB-1 for India and China is backlogged, with a January 1, 2012 priority date for each. This is a month ahead of when the Department of State predicted these two countries in this category to be backlogged, and we anticipate the EB-1 category for other countries will be backlogged starting in July or August. Once the new fiscal year starts on October 1, this category will go back to current for all countries. There was only a slight forward movement for EB-2 and EB-3 India, EB-3 Philippines, and EB-2 China (EB-3 remains stuck at October 1, 2014). We are unlikely to see any significant movement in any of these categories in the near future.
Amid controversial remarks made by individuals close to the Trump administration, the EB-5 visa program has come under increased scrutiny in the past month. The EB-5 program (created in 1992) provides green cards to individuals who invest heavily in the United States (at least $500,000 in some areas, $1 million in most) and create at least ten full-time jobs. The program was extended through September in the most recent government funding bill, but faces serious regulatory reform. Proposals include raising the required investment to $1.8 million, or $1.35M in underserved/rural areas. Job creation will remain a central requirement of the program. This increase in the required investment is simply an adjustment to reflect the present-day dollar value of the investment amounts established by Congress in 1990. Additionally, the methods by which the government designates underserved areas for preferential investment treatment will be altered to promote consistency and reduce fraud. These proposed changes will only impact new petitioners and will not threaten any pending EB-5 petitions.
Also included in the government funding bill are provisions allowing an increase in the number of H-2B visas that can be granted by the Secretary of Homeland Security. H-2B visas are granted to non-agricultural, temporary workers needed for work for which there are no willing, able, and qualified American workers. The bill allows the Secretary to grant additional visas in an amount equal to the number of H-2B workers who participated in the “returning worker program”: a program where workers who had come to the U.S. in at least one of the previous three years were not counted against the H-2B cap upon their return to the same job in the U.S. This has the potential to double the number of H-2B visas granted by the Department of Homeland Security.
Finally, the emergency spending bill extends the E-Verify employment verification program through FY 2017, and the dedicated visa program for religious workers. The bill also permits the Department of Homeland Security to waive the requirement that exchange visitors (J-1 holders) return to their home country for at least two years at the end of their exchange visitor program for foreign doctors who choose to practice in underserved places.
Earlier this month, Linda Klein, the President of the American Bar Association (ABA) penned a letter to the Department of Homeland Security urging for clarification and a standardized procedure for current border searches of lawyers’ electronic devices by the U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The law currently permits CBP and ICE officers conducting border searches to review the contents of lawyers’ laptops, cell phones, and other electronic devices without an individualized suspicion for doing so.
While the ABA acknowledged the critical role border officers serve in protecting national security, this is a major cause for concern for lawyers in an attempt to preserve attorney-client privilege, client confidentiality, and other similar legal principles. The directives at issue were implemented in 2009 and although Klein’s letter did not expand on the timing of this request, it may be inferred that with the change in administration and the recent spike in electronic device searches at the border, this issue has taken center stage. According to a CBP report issued last month, electronic device searches of people entering the U.S. within the last six months have doubled.
Both CBP and ICE’s provisions allow for special handling procedures if the information or materials appear to be “legal in nature” or an attorney asserts the attorney-client privilege; however, that does not mean those materials are necessarily exempt from a search. Rather, the only guidance specified is that officer must report the materials to a more senior officer and/or Chief Counsel before conducting the search.
The ABA believes that this protocol is “not sufficiently clear or comprehensive enough to protect [ones] fundamental legal rights.” Klein stresses the importance of taking proactive steps to prevent border search issues of privileged information by providing explicit guidance to say that privileged and confidential information on electronic devices cannot be read, seized, duplicated, or shared unless an ICE or CBP officer has first obtained “a subpoena based on reasonable suspicion or a warrant supported by probable cause.” The second revision the ABA strongly encourages is to redraft the directives detailing the exact procedures that must be followed when border officers encounter privileged information. Read the ABA’s the full letter here.
For the last ten years, the Department of Homeland Security (DHS) has treated all personally identifiable information equally under the Privacy Act, regardless of one’s citizenship status. As such, the protections under the Privacy Act were extended accordingly. One of Trump’s first acts as president was signing into effect the “Enhancing Public Safety in the Interior of the United States” executive order that strictly limits the Privacy Act protections to those who are U.S. citizens and Lawful Permanent Residents. Thus, DHS has changed its 2007 policy and will be administering privacy laws for all persons not holding U.S. citizenship or Legal Permanent Residency according to the Fair Information Practice Principle (FIPP). FIPP is guided by eight foundational principles including: transparency, individual participation, purpose specification, data minimization, use limitation, data quality and integrity, security, and accountability and auditing.
What does applying this new test mean? For starters, immigrants and nonimmigrants may only gain access to their personal records through the Freedom of Information Act (FOIA) as opposed to a second method previously offered in which someone could request to amend their records. Now, when DHS becomes aware and confirms information is inaccurate, it may choose to update the record or simply dispose of the outdated information, keeping in line with its data quality and integrity principle. Potentially the most alarming change comes from the ability for federal, state, and local law enforcement to share or disclose information about immigrants and nonimmigrants. While sharing must conform to FIPP principles and demonstrate consistency between the purpose and intended use of the information, this may allow for broad individual discretion within agencies on when and how to share.
Part of President Trump’s January 25, 2017 executive order attempted to ban cities from receiving certain federal grants if they refused to enforce federal immigration laws by designating themselves sanctuary cities. Two counties in California, Santa Clara and San Francisco, brought a lawsuit against President Trump to stop the enforcement of this part of the executive order. The two counties specifically asked that a preliminary injunction be granted against the enforcement of such order. The judge ultimately issued the injunction noticing several issues with the order, including that it was an improper method of using the exclusive spending power of Congress as well as a violation of the Tenth and Fifth Amendments. Additionally, the judge reviewed President Trump’s public comments as evidence that the scope of the order was much larger than President Trump argued it to be. Specifically, the judge commented that President Trump has called this order a weapon “to use against jurisdictions that disagree with his preferred policies of immigration enforcement.”
USCIS recently published a Policy Memorandum (PM) adopting the Administrative Appeals Office (AAO) opinion in Matter of O-A-, Inc. The PM will require USCIS to conduct a case-specific analysis to determine whether the date that a provisional certificate is issued is the date one has completed his/her degree program. The case specifically addressed whether the foreign employee beneficiary of an I-140 petition filed on behalf of a computer software business qualified under the EB-2, Advanced Degree category with five years of post-baccalaureate experience following the date the provisional degree was issued. The official degree certificate was awarded several months after the provisional degree and noted less than five years of experience when counting the later date. Ultimately, the AAO determined she met all requirements for EB-2 classification based on the provisional degree and supporting evidence showing that she had completed all substantive requirements of the degree program and the university approved her degree. Supporting evidence included going over the university’s program requirements, reviewing the beneficiary’s statement of marks, and recognizing the provisional certificate was evaluated as the equivalent of a U.S. bachelor’s degree. Thus, the PM clarifies that USCIS must consider evidence regarding the institute of higher education’s requirements in completing a degree program and whether all requirements were met at the time of issuing the provisional certificate.
Outside of this case decision, we do encounter cases where foreign workers complete all degree requirements but for personal reasons are delayed in attending graduation ceremonies or receiving the formal degree. We will continue to review an individual’s qualification for a position when filing a PERM based on when the degree program was completed, provided there is evidence to confirm our understanding. This case is obviously supportive of the approach we’ve taken over the years and ensures USCIS should apply a consistent standard in the future.
Late last month, U.S. District Judge Reggie Walton ruled that the Washington Alliance of Technology Workers, a technology union also known as “WashTech”, failed to “plausibly state claims that are entitled to relief.” WashTech claimed that the U.S. government had improperly expanded its Optional Practical Training (OPT) program, which allows foreign workers who have recently completed a U.S. degree program under an F-1 visa to work in the U.S. for 12 months. The program extends for an additional 24 months for those holding a U.S. degree in a STEM (Science, Technology, Engineering, Mathematics) field. WashTech argued that the program unfairly disadvantaged U.S. workers in STEM fields and that the Department of Homeland Security did not go through the proper administrative procedures to expand the OPT program. Ultimately the judge dismissed all claims, noting WashTech failed to show its members were directly harmed by the 1992 creation of the OPT program and that the Union failed to provide sufficient evidence to show DHS did not follow the rules in implementing the 2016 STEM Extension program.
This case may carry greater implications as DHS starts to review its current policies in relation to issuing EADs to various classes of nonimmigrant status holders, as the decision suggests such a benefit is clearly within the purview of DHS and permitted by the INA. Hopefully decisions like this one help DHS recognize their authority to expand this benefit to new nonimmigrant classes, thus avoiding some of the restrictive approach the Trump administration was hinting at in a recent executive order.
IMMIGRATION OPTIONS FOR STARTUPS – FOUNDERS AND OTHERS:
If you’re a founder or member of a startup company and looking to better understand your non-immigrant 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.
6/8/17 @ 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 **