On May 18, 2018, after receiving a notice from the Government of Ecuador terminating that country’s bilateral investment treaty with the United States, the U.S. Department of State’s Office of Trade Representative announced the termination in the Federal Register. The treaty has been in force since 1997.
If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape. Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.
In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order. There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018. Here’s what to expect:
On December 4, 2017, the U.S. Supreme Court issued two orders (available here and here) that allow the Presidential Proclamation of September 24, 2017, otherwise known as the “Travel Ban,” to go into effect while appeals continue in the lower courts. The practical effect of SCOTUS’s actions is to reinstate this version of the Travel Ban fully. See our earlier blog entry, New Presidential Proclamation Modifies Travel Ban; SCOTUS Reacts, for a full explanation of which countries are targeted in the revised Ban and which citizens of those countries are subject to U.S. travel restrictions under the Ban.
In October, a federal judge in Maryland granted a temporary injunction preventing the revised Ban from going into effect against those who have a bona fide relationship with a U.S. person or entity. Another federal court, in Hawaii, also blocked implementation of the Ban. However, the government appealed those rulings to the federal appellate courts for the Fourth and Ninth Circuits, respectively, where the issues remain pending. In November, the government went higher still, asking the Supreme Court to allow full enforcement of the Ban while the Fourth and Ninth Circuits consider the government’s appeals of the lower courts’ injunctions. SCOTUS has now granted that request, although, as each order specifies, Justices Ginsburg and Sotomayor were not in favor of granting. Both federal appellate courts will hold oral arguments this week, and both have agreed to expedite their decisions so that the Maryland and Hawaii cases may move forward quickly.
If either or both Circuits eventually rule against the government, thereby leaving the lower courts’ injunction in place, the government could ask the Supreme Court to review those rulings. If that happens and SCOTUS refuses to hear the government’s request for review, then SCOTUS’s orders will automatically terminate, thereby putting the Travel Ban on hold yet again, until final decisions are made in the Maryland and Hawaii federal courts.
On Sunday, September 24, 2017, the White House identified eight countries as inadequately managing identity and security risk information for their citizens who seek admission to the United States or other U.S. immigration benefits and established the following restrictions for those countries:
- North Korea / Syria: All immigrant and nonimmigrant visas are suspended.
- Chad / Libya / Yemen: All immigrant visas and all B-1 business and B-2 tourist visas are suspended.
- Iran: All immigrant visas are suspended, as well as all nonimmigrant visas except F and M student visas and J exchange visitor visas, for which additional screening is required.
- Venezuela: All official and B-1/B-2 visas for employees of certain government agencies and their dependents are suspended. These agencies include the Ministry of the Popular Power for Interior, Justice and Peace; Administrative Service of Identification, Migration and Immigration; Scientific, Penal and Criminal Investigation Service Corps; Bolivarian National Intelligence Service; and Ministry of the Popular Power for Foreign Relations. Additional screening is required for all other types of visas.
- Somalia: All immigrant visas are suspended. Additional screening is required for all other types of visas.
- Iraq: No suspensions, but additional screening is required for all visas and entries.
The proclamation exempts the following classes of individuals, among others, from the above restrictions:
- Those who seek, or have already been granted, asylum or withholding of removal
- Those who seek admission, or have already been admitted, as refugees
- Those who already held valid visas on September 24
- Those who hold other travel documents – such as transportation letters, boarding foils, or advance parole documents – that were valid on September 24 or are issued after that date
- Those whose visas were marked canceled or revoked under the initial Travel Ban (January 27, 2017)
- Nationals of Iran, Libya, Syria, Yemen and Somalia who have a credible claim of a bona fide relationship with a U.S. person or entity, but only until October 18, 2017
- Dual nationals who are traveling on a passport from a non-designated country
Individual waivers are available if the restrictions cause “undue hardship,” if the waiver is in the national interest, and if the iindividual poses no national security or public safety risk. Subject to those criteria, the proclamation lists examples of potential waiver-worthy cases, including individuals who happened to be outside the United States on September 24, but had previously been admitted on long-term work or study visas and seek reentry to resume those activities; individuals who seek entry to visit or reside with an immediate relative who is a U.S. citizen, lawful permanent resident, or lawful nonimmigrant; infants, young children, adoptees, or individuals who need urgent medical care; dual nationals who hold Canadian permanent residence and apply for admission or visas inside Canada; and others.
Reacting to the proclamation on September 24, the Supreme Court announced that oral arguments on the Travel Ban cases, scheduled for October 10, 2017, were canceled. SCOTUS also set a deadline of October 5 for the parties in those cases (primarily the state of Hawaii and the International Refugee Assistance Project) to file legal briefs addressing the question of whether their challenges are now moot because of (a) the new travel ban; and (b) the upcoming expiration, on October 24, of the total refugee ban. SCOTUS could hear oral arguments at a later date or could decide the case on briefs only.
Despite earlier hints that the “Dreamers” – undocumented youth who were brought to the United States illegally or lost their status while they were underage – might be allowed to retain their work permits and reprieve from deportation, Attorney General Sessions announced today that the Obama-era Deferred Action for Childhood Arrivals (DACA) program will end on March 5, 2018. The six-month lag time is intended to allow Congress to codify DACA-like provisions into law.
U.S. Citizenship & Immigration Services (“USCIS”) announced today that it has now completed returning all petitions that were not selected in the Fiscal Year 2018 H-1B lottery. Employers who filed petitions should now have received either a Form I-797 receipt notice indicating the petition was assigned a receipt number, or the original rejected petition including filing fees. USCIS will take inquiries if employers believe they filed during the required period – April 3 to April 7, 2017 – and have not received either the receipt notice or the rejected petition by July 31, 2017.
U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.
The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section. In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment Eligibility:
- The Consular Report of Birth Abroad (Form FS-240) is now acceptable and is included on the drop-down menus in “smart” Form I-9 and in E-Verify.
- All certifications of report of birth that are issued by the U.S. Department of State (Forms FS-545, DS-1350 and FS-240) are now listed at #2 of List C.
- List C documents are now renumbered, except the Social Security card; for example, the EAD is now at #7 instead of #8
USCIS plans to update its “Handbook for Employers: Guidance for Completing Form I-9” (Form M-274) to include these revisions in the near future. Additional information is available at What’s New | USCIS.
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.
Continue Reading “Hire American, Buy American” Executive Order Not Likely to Change H-1B Landscape Significantly
On, March 31, 2017, U.S. Citizenship & Immigration Services rescinded a 17-year-old memorandum issued by the Nebraska Service Center regarding computer-related positions as H-1B “specialty occupations.” For the last 10 years, all H-1B petitions have been processed at the Vermont and California Service Centers, so the memo has not been in use. Since NSC recently began accepting H-1B extension petitions again, USCIS has rescinded the memo, stating it is outdated and inconsistent with the agency’s current approach to H-1B petitions for computer jobs.
The Ninth Circuit has just issued a unanimous opinion upholding the Temporary Restraining Order against the Trump Administration’s Executive Order known as the “Travel Ban.” The 3-judge panel unanimously recognized that without the TRO, the states of Minnesota and Washington were likely to be harmed as parens patriae (i.e., legal protector) for their citizens, and also by damage inflicted on “operations and missions of their public universities and other institutions of higher learning,” and their “operations, tax bases, and public funds.”