U.S. Supreme Court Grants Certiorari and Partially Allows Some Provisions of Executive Order No. 13780 (the “Travel Ban”)

Today, the U.S. Supreme Court granted the Trump administration two victories in connection with Executive Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” commonly known as the “Travel Ban.”
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USCIS Announces Return of H-1B Premium Processing

The USCIS announced on June 23, 2017, that it will reintroduce Premium Processing for H-1B petitions.  USCIS suspended this program for all H-1B petitions on April 3, 2017.  The reintroduction will be done incrementally, beginning today with H-1Bs filed under the Conrad 30 Waiver program for medical doctors working in underserved areas.   As the USCIS evaluates its workload, it will notify stakeholders when other H-1B petitions can be filed under (or, if already pending, upgraded to) Premium Processing.  Donald Neufeld, Associate Director, Service Center Operations, advised the attendees at the American Immigration Lawyers Association’s annual conference of Friday that 2-3 days of notice will be given for each new incremental restoration.  We will update this blog as we learn more information about this process.

Recent H-1B Visa Developments

March 2017 brought us a surprising suspension of the Premium Processing option for all H-1B petitions received by the USCIS on or after Monday, April 3, 2017, which led to an overwhelming number of H-1B extension filings in a short period of time.  The USCIS was unable to process most of the cases within the 15-day period, leading to the return/refund the $1,225 filing fees.  April 2017 brought us the H-1B cap petition lottery that, once again, demonstrated a high demand for H-1B visas by US companies.  In addition, while these events were taking place, the President and members of his administration continued to spread negative messages about the H-1B program and its future.  In light of these events, we report the following:

  • H-1B petitions not selected in the lottery in April have started to arrive in the mail.  While the USCIS should return the rejected petitions to the attorneys of record, some clients have reported receiving the rejected filings directly from the USCIS.  Those filings should be forwarded to the attorneys so that the filing fee checks can be properly credited, and so that support documents can be maintained and reused next year.
  • Attorneys are reporting an increase in requests for evidence (RFEs) for some H-1B positions relying on Level 1 prevailing wages, especially in the computer industry.
  • Due to the large number of H-1B cap cases, extension petitions, and amended petitions, the USCIS has been moving H-1B filings to other USCIS Service Centers for adjudication assistance.  This should help decrease processing times.
  • Hot off the Presses:  During the USCIS Ombudsman’s Teleconference on H-1B Petition Processing on 6/20/2017, representatives from that office indicated that Premium Processing would be reinstated “on an incremental basis”, but have not explained how this will work or when it will begin.  They are being cautious given the rush of Premium Processing cases it received in March that exceeded processing capacity.

We will continue to provide updates on these and any other issues affecting the H-1B visa program, including any proposed legislation or policy changes.

July 2017 Visa Bulletin – EB-3 China Retrogresses, while EB-3 India Slowly Advances

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the July Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China EB-1 remains at January 1, 2012, EB-2 advances three weeks to March 22, 2013 and EB-3 reverses course and falls behind EB-2, retrogressing more than two years to January 1, 2012
  • India EB-1 holds steady at January 1, 2012, EB-2 continues its slow forward movement advancing three weeks to July 22 2008 and EB-3 jumps ahead nine months to February 15, 2006
  • Philippines EB-3 leaps forward an entire year to May 15, 2014
  • Worldwide EB-3 moves ahead seven weeks to June 8, 2017

China EB-1 and India EB-1 are expected to become current again in October 2017.

PLEASE NOTE: USCIS has not yet announced if it will accept I-485 applications in July based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

Trump Administration to Review J-1 Programs

The Trump Administration may be moving towards revamping the J-1 exchange visitor program in ways that could be detrimental to universities, research organizations, businesses, hospitals, healthcare, families, and students.  J-1 nonimmigrant (temporary) visas are issued to: foreign students, scholars, researchers, postdocs, college work/study participants, medical students/residents/doctors, interns, trainees, au pairs, and more.  As part of his campaign’s immigration reform outline, President Trump singled out J-1 work/study programs, stating that he would terminate these programs and replace them with programs aimed at employing inner city youths in these part-time, limited duration (usually seasonal) minimum wage jobs.  While the Administration has been silent on changes to any of the J-1 programs thus far, some of our J-1 sponsor clients have received an email from a high-ranking State Department official hinting at what may be on the horizon for all J-1 programs.  The email references the appearance of “emerging Administration policies and themes”, which is causing the State Department to consider steps to ensure that the programs achieve the following objectives: 

  • Alignment with National Security
  • Asserting U.S. Leadership & Influence
  • Fostering Economic Opportunity for the American People
  • Ensuring Effectiveness and Accountability to the U.S. Taxpayer

Other than the email, the State Department has not commented publicly about the future of the J-1 program.  We will continue to monitor any proposed changes to the J-1 program and post on our blog.

DHS Extends TPS for Haiti, but Only for Six Months

The Department of Homeland Security (DHS) has announced that it is extending Temporary Protected Status (TPS) designation for Haiti through January 22, 2018 – a much shorter period than the normal 18-month extension. This announcement allows qualifying individuals to reapply for TPS and work authorization during a 60-day period starting May 24, 2017. If TPS designation for Haiti is allowed to expire in January 2018, as DHS warns may happen, the nearly 60,000 persons enrolled in the program will be forced to return to Haiti, change to another status if eligible, or remain in the United States unlawfully.

TPS allows qualifying persons inside the United States to remain temporarily until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations. Haiti’s initial TPS designation was granted within days of the devastating earthquake the country experienced in January 2010. [1] It was unclear whether the latest extension would happen at all, despite pleas by Haitian government officials, bipartisan members of Congress and others that an 18-month extension was the minimum time needed to plan for the safe and orderly return of citizens to Haiti. Advocates for a longer extension argued that Haiti continues to struggle to rebuild its infrastructure and economy after the 2010 earthquake and subsequent natural disasters, and that the relocation of such a large number of individuals will further erode economic and living conditions in Haiti.

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Individuals in TPS are only allowed to remain in the United States until DHS decides the temporary designation is no longer warranted. However, persons in TPS are permitted to change to another temporary status or seek permanent residence if they meet the relevant eligibility requirements. Citizens of Haiti who are in TPS should begin to plan for a return to Haiti in the event their TPS ends in 2018, or speak with an immigration attorney to determine if they qualify for a change to nonimmigrant status or obtain permanent residence.

Haitian TPS employment authorization documents that expire on July 22, 2017 are automatically extended through January 22, 2018, but only if applicants have timely filed to extend their TPS and employment authorization during the 60 day re-registration period. As explained in the Federal Register, employers are required to inspect several documents in order to complete or update their Form I-9 based on the automatic extension.

It is anticipated that DHS Secretary John F. Kelly will decide in late 2017 whether further extensions of TPS for Haiti are warranted. Hunton & Williams attorneys will continue to share information about this issue, in addition to monitoring the TPS for the nine other designated countries, many of which are up for review in late 2017 and early 2018.


Footnote:
[1] A team of Hunton & Williams lawyers, including Suzan Kern, were instrumental in obtaining TPS benefits for Haitian citizens in the United States immediately following the 2010 earthquake.

“Hire American, Buy American” Executive Order Not Likely to Change H-1B Landscape Significantly

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.
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June 2017 Visa Bulletin—Significant EB-1 Retrogression for China and India

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the June Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China EB-1 retrogresses to January 1, 2012, EB-2 continues a slow forward march advancing to March 1, 2013, and EB-3 is stalled at October 1, 2014
  • India EB-1 retrogresses to January 1, 2012, EB-2 moves ahead slightly to July 1, 2008 and EB-3 advances six weeks to May 15, 2005
  • Philippines EB-3 jumps ahead four months to May 1, 2013
  • Worldwide EB-3 moves forward one month to April 15, 2017

China EB-1 and India EB-1 are expected to become current again in October 2017.

PLEASE NOTE: USCIS has not yet announced if it will accept I-485 applications in June based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.

The Future of the H-1B Visa Program Under The Trump Administration

There has been a flurry of activity and uncertainty related to immigration issues since President Trump took office. Hunton & Williams partners Adam Rosser and Emily Burkhardt Vicente discuss the concerns faced by the business community and the future of the H-1B visa program in the US.

View the 5-minute video here.

FY2018 H-1B Lottery Held for 199,000 Petitions

The USCIS received 199,000 petitions for the FY-2018 H-1B visas that will become available on October 1, 2017.  The lottery was held on April 11, 2017, for both the master’s cap cases (20,000 H-1B visas) and the regular cap cases (65,000 H-1B visas).  The USCIS is in the process of sending receipt notices by regular mail to those whose petitions were selected in the lottery.  We expect that the process to mail all of the notices will take several weeks to complete.  Petitions that were not selected in the lottery will be returned (with the uncashed filing fee checks) over the next few months.

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