FALLOUT OF TRUMP'S EXECUTIVE ORDER 'PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES
Since Friday Evening January 27th, nationals of the 7 designated countries (Iran, Iraq, Libya, Sudan, Somalia, Syria & Yemen) have been either (1)denied entry to the US, (2) had visa approvals revoked, (3) had visa interviews cancelled and (4) have been detained for long hours at the airport. This has provoked outcry from foreign nationals, immigration advocates and lawyers, which was promulgated through protests and lawsuit.
For the benefit of our clients and all foreign nationals affected by this order we have written an analysis of the order, its implications and the continuing developments within the immigration realm. We shall strive to keep this document up to date as the situation develops.
WHAT DOES TRUMP’S EXECUTIVE ORDER REALLY SAY?
Trump’s Executive Order states that all immigrants (Legal Permanent Residents, Refugees, Dual Nationals) and nonimmigrants (ESTA, B1/B2, F-1, H-1B, L, P, R, E, I etc. visa holders) cannot be admitted and/or renter the U.S. if they come from the 7 designated countries unless an exemption applies that applies to the US National Interest.
WHEN DID DHS START IMPLEMENTING THE ORDER?
According to the American Immigration Lawyer’s Association on the evening of January 27, 2017, all U.S. Embassies and Consular Posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. A, G, NATO, C-2 and C-3 visas are exempt from the suspension. In addition, contractors have been instructed to cancel visa interviews for affected individuals.
The U.S. Embassy in Khartoum, Sudan, stated in an email to a foreign national the following: “President Trump signed an Executive Order on January 27, 2017 temporarily suspending entry into the United States of foreign nationals from seven countries under section 212(f) of the Immigration and Nationality Act. The Executive Order imposes on nationals of certain designated countries a 90-day bar on entry into the United States. This bar also includes a 90-day prohibition on visa issuance. These countries, as designated by Congress or the Secretary of Homeland Security, are: Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen. Beginning January 27, 2017, travelers who have nationality or dual nationality of one of these countries will not be permitted for 90 days to enter the United States or be issued an immigrant or nonimmigrant visa. This executive order applies to all nationals of the above list regardless of the location of the interview or visa issuance. Those nationals or dual nationals holding valid immigrant or nonimmigrant visas will not be permitted to enter the United States during this period. If you are a national, or dual national, of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND your appointment as we will not be able to proceed with your visa interview. Immigrant or nonimmigrant visas will not be issued or printed for applicants who have previously interviewed. Additionally, as such travelers will not be admitted to the United States under the Executive Order, and at the request of the Department of Homeland Security, the Department of State is provisionally revoking valid visas previously issued to any affected nationals. Lawful Permanent Residents (green card holder) who are nationals of or hold dual nationality with a specified country also prohibited from entering the United States during this period should take notice of the travel bar and refer to the Department of Homeland Security and U.S. government websites as additional guidance becomes available. American citizen travel is not affected by this executive order.”
WHAT HAPPENED AFTER THE EXECUTIVE ORDER WAS PUBLISHED?
In one word: mayhem.
1. The Department of Homeland Security’s Response: Custom Border Protection Officers (CBP) immediately stopped admitting or allowing to re-enter any individual who was a national or citizen of one of the 7 designated countries. All visa interviews at US Embassies and Consulates were cancelled. As of January 30, 2017, immigration attorneys have been informed that United States and Immigration Services (USCIS) stopped adjudicating all the applications that are filed with forms starting with I; i.e. I-130. The forms denominated with the initial letter N are not affected; i.e. N-400, Application for Naturalization. The Chicago Asylum Office also indicated that forms I-589, Application for Asylum, are still being processed.
2. CBP strongly ‘suggested’ to Legal Permanent Residents (LPR) from the designated 7 countries to sign Form I-407, Record of Abandonment of Lawful Permanent Resident Status. LPRs should refuse to sign Form I-407 and instead demand that CBP allow their entry into the US as Green Card holders or serve them with a Notice to Appear (NTA) in front of the Immigration Judge. It is also important to note that LPRs, who have or plan to sign Form I-407, at a Port of Entry (international airport or land border) might trigger the exit tax even if the abandonment is subsequently reversed.
3. Immigration Attorneys across the U.S. successfully challenged the detention of LPRs by filing Habeus Corpus with local courts.
4. Certain Federal Courts issued an Order Restraining part of the Executive order:
a. New York City, New York: A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO;
b. Boston, Massachusetts: Attorneys went into Federal District Court in Boston to seek an emergency Temporary Restraining Order (TRO). The TRO was to immediately prohibit CBP officials from detaining or removing travelers entering the U.S. at Boston's Logan Airport who have a lawful right to enter the United States. This includes citizens, lawful permanent residents, visa holders, approved refugees and other individuals specified in the President's January 27, 2017 Executive Order, who are likely to suffer irreparable harm if they are not allowed into the U.S. Shortly after 2:00 am on Sunday, the United States District Court for the District of Massachusetts granted the relief requested by issuing a 7-day TRO with immediate effect. Among other things, the order requires CBP to notify airlines, with flights arriving into Logan Airport, that CBP officers will not detain or return individuals based solely on the Executive Order. And on Sunday evening, DHS finally agreed to admit LPRs from these countries on a case-by-case basis;
c. Alexandria, Virginia: the court ordered federal officials to provide lawyers access to "all legal permanent residents being detained at Dulles International Airport" and barred officials from deporting covered individuals for the next seven days.
It is important to note that DHS is not uniformly complying with these court orders and similar orders that have been issued in a handful of other states.
5. On Sunday January 29, the White House back tracked and announced that LPR and Dual Nationals will not be barred from entering the US & the Department of Homeland Security’s issued two statements in response to the Court Orders:
a. “Upon issuance of the court orders yesterday, U.S. Customs and CBP immediately began taking steps to comply with the orders. Concurrently, the Department of Homeland Security continues to work with our partners in the Departments of Justice and State to implement President Trump’s executive order on protecting the nation from foreign terrorist entry into the United States. We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law. We are also working closely with airline partners to prevent travelers who would not be granted entry under the executive orders from boarding international flights to the U.S.”
b. “The entry of lawful permanent residents (green card holders) is deemed to be in the public interest and absent the receipt of “significant derogatory information…, LPR status will be a dispositive factor in [the] case-by-case determinations.”
ARE DUAL NATIONALS ALLOWED TO TRAVEL TO THE U.S.?
There has been official “clarification” from the White House that the Executive Order will not apply to dual nationals. This past weekend (January 27 to January 29) while implementing the EO several statements were released by US Embassies and Pre-Clearance CBP Directors:
1.U.S. Embassy in London: over the weekend it posted on its website that dual nationals of the 7 designated countries, who are also UK citizens, were not allowed to travel to the U.S. and all nonimmigrant and immigrant visa processing had been halted. This statement contradicted UK Foreign Secretary Borris Johnson, who assured the British Parliament that the UK Government had received full assurances from the US Government and the US Embassy that British passport holders, regardless of possible dual nationality, would be fully welcomed in the US and NOT impacted by the recent Executive Orders. On January 29, 2016, the US Embassy in London released this statement:
“Dual nationals of the United Kingdom and one of these countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa. Additionally, those who have indefinite leave to remain in the United Kingdom and hold nationality of one of these countries are eligible to apply for U.S. visas…..”https://uk.usembassy.gov/updated-guidance-executive-order-protecting-nation-terrorist-attacks-foreign-nationals/
2. The CBP Port Director at Abu Dhabi confirmed the following:
a) County of passport issuance on which you are traveling should be controlling: If an individual has a valid passport, that is not from one of the 7 identified countries, and also has a valid visa - CBP Abu Dhabi is letting them through, regardless of where the person was born.
Example A: UK Citizen, born in Tehran, traveling to the US on a UK passport with a valid H-1B visa stamp. Individual should be admitted.
He further confirmed that even if an individual may have a claim to citizenship in one of the 7 countries, but that this may not be facially obvious on the passport and/or visa documents, again - provided that the person has a valid US visa and is traveling on a passport that was not issued by one of the 7 countries, the person should be admitted - in other words, CBP is not doing much digging in these instances to identify citizenship claims of one of the 7 countries.
Example B: UK Citizen, born in the UK, but has a claim/right to citizenship in one of the 7 countries through derivative status - i.e. parents born there - this person should be admitted based upon the fact that they have valid visa and are traveling on a valid passport not issued by one of the 7 countries.
b) LPRs: Confirmed that CBP Abu Dhabi is admitting LPRs even if they are born in one of the 7 countries or may have a claim to citizenship in one of the 7 countries.
c) Visa Waiver/ESTA: Confirmed officers are reviewing passport stamps for ESTA travelers as usual.
3. As of January 30, 2017, DHS posted an update declaring the ban will only apply if a foreign national travels with a passport from one of the 7 countries. https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entry-united-states
DOES THE EXECUTIVE ORDER TACKLE OTHER ISSUES THAT ARE PERTINENT TO ALL FOREIGN NATIONALS?
Section 4 of the Executive order directs DOS, DHS, Director of National Intelligence and FBI to implement as part of “the adjudication process for immigration benefits,” a program that will identify anyone entering on fraudulent basis with intent to harm or who are at risk of causing harm after admission.
It is to include a number of uniform procedures:
1. In person interview;
2. Database of docs to be sure duplicates are not used by multiple persons;
3. Amended application forms to ferret out fraud and intent to harm;
4. A mechanism to insure the applicant is who he says he is;
5. A process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and applicant’s ability to make contributions to the national interest; and
6. A mechanism to assess whether the applicant has the intent to commit criminal or terrorist acts after entering the US.
It is hard to foretell how a form will aid government officials determine fraud/intent to harm and how to create a ‘mechanism’ that will assess the foreign national’s intent to commit crimes or acts of terrorism. It is uncertain how criteria n. 5 can be imposed on visa applicants or petitioners without Congressional Action or the standard regulatory process for the issuance of new regulations. In addition, adopting the term “contributions to the national interest” references a substantive part of immigration law, pursuant to the Employment Based Category 2 (EB-2), which has generated hundreds of cases, appeals and detailed articles by many experts in the field.
WHAT ADVISE AND FUNDAMENTAL RIGHTS ARE AVAILABLE TO MIGRANTS AND REFUGEES FROM THE 7 DESIGNATED COUNTRIES?
· If you are already in the U.S. do not leave!
· If you are arriving at a U.S. Port and are denied entry, remember that you have rights and ask to speak to a lawyer. Sometimes officers may ask you uncomfortable questions to assess if you support terrorism or the establishment of a Sharia Law in the U.S. CBP may also want to know if you have travelled to your home country after being granted asylum or refugee status;
· If you are a Legal Permanent Resident you have certain rights:
o Upon entry to the US CBP will check if you were absent for more than 6 months. In addition, CBP will ask questions to assess whether you have abandoned your U.S. residency. It is important to demonstrate permanent ties to the US; i.e. job letter, payment stubs, federal tax returns, deeds of real property, family etc.;
o CBP is likely to scrutinize your Facebook and other social media to make sure you do not pose a threat. They may insist that you give up your green card by signing form I-407. Under no circumstances sign this form without consulting an immigration attorney. This is because you are entitled to argue in front of an immigration judge, with assistance of counsel, that you did not relinquish permanent residency in the US;
o You have a right to speak with an Immigration Attorney. You should travel with Form G-28, Notice of Entry of Appearance for Attorney or Legal Representative, with your attorney’s information and signature.
The American Immigration Lawyers’ Association (AILA): urged travellers to please use caution of course as we know this is not an absolute guarantee of the way in which travelers may be treated and can change at any time.
CALL OUR OFFICE AT 617-536-0584 BEFORE TRAVELING ABROAD
President Trump Executive Orders on Immigration
On January 25, 2017, President Trump issued the first in a series of Executive Orders (EO) on border security and immigration enforcement. Among other items, the President announced that he would:
1. Order the Department of Homeland Security (DHS) to construct a southern border wall;
2. Increase the size of the enforcement agencies, and
3. Require that states and localities engage in immigration enforcement to supplement federal efforts.
This EO will change Border Security and Interior Enforcement as follows:
Central American border crisis.
Increase number of CBP officers.
Access to federal land for border security.
Coordinating with local agencies on border enforcement.
Border prosecutions (e.g., Operation Streamline).
Transparency/statistics/aid given to Mexico.
ICE enforcement power (enforcement priorities?).
Identifying criminal aliens.
Increase number of ICE ERO officers.
Helping victims of crime by illegal aliens.
Collecting unpaid fines from illegal immigrants.
Today President Trump is expected to sign another Executive Order, Protecting the Nation from Terrorist Attacks by Foreign Nationals, which would:
1. Ban on Entry to U.S. for Certain Countries: Ban on entry for at least 30 days of all immigrants and nonimmigrants for designated countries, probably for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added, and adjudications of other immigration benefits could be impacted;
2. Stop Refugee Admissions for 120 days, with exceptions permitted for those fleeing religious persecution if their religion is a minority in their country of nationality. Reduce refugee admissions for FY2017 to 50,000 from President Obama's goal of 110,000. Halt Syrian refugee processing indefinitely;
3. Screening for All Immigration Benefits: Add requirements to screenings and procedures for all immigration benefits to identify fraud and detect intent to do harm. Can also look at whether someone will contribute to society or the national interest;
4. Biometric Entry-Exit System: Direct agencies to expedite completion of biometric entry-exit system;
5. Suspends the Visa Interview Waiver Program: All visa applicants will be required to attend an interview unless not required by statute.
THE OBAMA ADMINISTRATION TERMINATES RELIEF FOR CUBAN IMMIGRANTS
The Obama Administration days before the end of its mandate terminated immigration relief for Cuban nationals pursuant to the ‘Cuban Adjustment Act,’ also known as “Dry-foot, Wet-foot” policy. Moreover, the administration is terminating other three immigration policies that has been benefiting Cubans for decades:
1. Policy for Cuban medical professionals known as the Cuban Medical Professional Parole Program will end. As a result, Cuban doctors will not be able anymore to come to the U.S. to work;
2. Federal officials said the Department of Homeland Security is also eliminating an exemption that had prevented the use of expedited removal proceedings for Cuban nationals apprehended at ports of entry or near the border.
3. Cuba's government also agreed to accept Cuban nationals who have been ordered removed from the United States, just as they had accepted migrants intercepted at sea under the "wet foot, dry foot" policy, the White House said. This means that any Cuban who was has a final order of removal issued by an Immigration Judge is now facing deportation back to Cuba.
The only program that is unaffected is the existing Cuban Family Reunification Parole Program, which allows certain eligible US citizens and lawful permanent residents to apply for parole for their family members in Cuba.
TEMPORARY PROTECTED STATUS FOR CITIZENS OR RESIDENTS OF YEMEN HAS BEEN EXTENDED
Secretary of Homeland Security Jeh Johnson has redesignated Yemen for Temporary Protected Status (TPS) and extended the existing TPS designation for the country for an additional 18 months, from March 4, 2017, through Sept. 3, 2018.
This allows eligible nationals of Yemen (or persons without nationality who last habitually resided in Yemen) to register or re-register for TPS in accordance with the Federal Register notice published today.
Who is Eligible and When do File?
1.Current TPS beneficiaries from Yemen must re-register during the 60-day re-registration period that runs from Jan. 4, 2017, through March 6, 2017.
2. Yemeni nationals and persons without nationality who last habitually resided in Yemen, who have: Continuously resided in the United States since Jan. 4, 2017; and Been continuously physically present in the United States since March 4, 2017, and Do not have TPS may apply for TPS during the 180-day initial registration period that runs from Jan. 4, 2017, through July 3, 2017.
U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible. The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible Yemen TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of Sept. 3, 2018.
USCIS recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending the validity of current TPS Yemen EADs with an expiration date of March 3, 2017, for an additional six months. These existing EADs are now valid through Sept. 3, 2017.
To re-register, current TPS beneficiaries must submit:
a) Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);
b) Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
c) The Form I-765 application fee (or a fee-waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
d) The biometric services fee (or a fee-waiver request) if they are age 14 or older.
Individuals applying for TPS for the first time:
For Yemeni nationals (and persons having no nationality who last habitually resided in Yemen) who do not currently have TPS, the TPS redesignation may allow them to apply for TPS if they have continuously resided in the United States since Jan. 4, 2017, and have been continuously physically present in the United States since March 4, 2017. Applicants must meet all other TPS eligibility and filing requirements. To apply for the first time, individuals must submit:
a) Form I-821, Application for Temporary Protected Status;
b) The Form I-821 application fee;
c) Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
d) The Form I-765 application fee, but only if they want an EAD and are 14 to 65 years old (those under 14 or 66 and older do not need to pay the Form I-765 application fee with their initial TPS application);
e)The biometric services fee if they are age 14 or older. Individuals who still have a pending initial TPS application under Yemen’s designation do not need to submit a new Form I-821.
However, if they currently have a TPS-related EAD and want a new EAD, they should submit:
a) Form I-765, Application for Employment Authorization; The Form I-765 application fee, regardless of their age; and
b) A copy of the receipt notice for the initial Form I-821 that is still pending.
Applicants may request that USCIS waive any fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation. USCIS will reject the application of any applicant who fails to submit the required filing fees or a properly documented fee-waiver request.
NEW LAWS AFFECTING EMPLOYMENT BASED IMMIGRANT AND NONIMMIGRANT VISAS
On January 17, 2017, the following provisions will become law pursuant to DHS’s final rule “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”
· The priority date (the date on the receipt notice) for an initial EB-1, EB-2 or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, AND it may be used for purposes of portability, unless USCIS denies the initial petition or revokes the petition’s approval due to:
o Fraud or willful misrepresentation of a material facts;
o A determination that the petition was approved based on a material error;
o Revocation or invalidation of the labor certification associated with the petition
· EMPLOYMENT AUTHORIZATION IN COMPELLING CIRCUMSTANCES:
Employment Authorization can be granted in 1-year increments. Foreign national who have been convicted of any felony or 2 or more misdemeanors are ineligible to apply.
o An individual who is currently in the US in valid E-3, H-1B, H-1B1, O-1 OR L-1 status;
o The principal beneficiary of an approved EB-1, EB-2 or EB-3 petition
is subject to the IV retrogression;
o Can demonstrate compelling circumstances that justify the issuance of employment authorization.
Spouses and children can apply concurrently with the principal applicant but cannot be granted a EAD until the principal is granted.
· EMPLOYER CANNOT REVOKE I-140, IMMIGRANT PETITION FOR A FOREIGN NATIONAL WHEN THE PETITION HAS BEEN PENDING FOR LONGER THAN 180 DAYS
o Employment Based IV petitions (EB-1, EB-2, EB-3) that have been approved for 180 days or more (or when an associated adjustment of status application (Form I-485) has been pending 180 days or more, will no longer be automatically revoked based only on withdrawal of the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including:
§ Retention of Priority Dates;
§ Job Portability;
§ Extensions of status pursuant to AC21
· GRACE PERIODS
o Foreign nationals and their dependents who are in the US on a E-1, E-2, E-3, H-1B, L-1 and TN visa have a 10-day grace period. If the foreign national comes on February 1, 2017, than he will be eligible to stay 10 extra days after the visa’s termination date.
o Foreign nationals with a H-2B have a grace period of 10 days for both before and after the petition validity date.
o 60 days grace period, during the period of petition validity (or authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants whose employment has ended
DHS may approve an H-1B petition for a validity period of up to 1 year if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license due solely to the foreign national’s lack of a valid social security number or employment authorization, or failure to meet a similar technical requirement.
A foreign national who has been approved for a 1-year validity period may not obtain an extension of H-1B status for the same position without proof of licensure. The employer must include evidence the identity, physical location, and credentials of the individuals who will supervise the foreign national and evidence that the employer is complying with state requirements
· H-1B CAP EXEMPTION
The term “related or affiliated to a nonprofit entity is defined both for the ACWIA fee and cap exemption purposes as to include nonprofit entities that satisfy any one of the following conditions:
1. The non-profit is connected or associated with an institution of higher education through shared ownership or control by the same board of federation;
2. The non-profit is operated by an institution of higher education as a member, branch, cooperative, or subsidiary; or
3. The non-profit has entered into a formal written affiliation agreement with an institution of higher education for the purposes of research or education; and a fundamental activity of the non-profit is to directly contribute to the research or education mission of the institution of higher education.
The new laws allow an H-1B employer that is not itself a qualifying institution, organization, or entity to claim an exemption from the cap for a H-1B nonimmigrant worker if:
1. The majority of the worker’s duties will be performed at a qualifying institution, organization or entity; and
2. Such job duties directly and predominantly further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity (e.g. higher education, or nonprofit or governmental research).
· AC21 H-1B EXTENSIONS (1-YEAR INCREMENTS)
An H-1B worker may request time remaining in the 6 years statutory period, including recapture time, at the same time as requesting a 1-year AC21 extension. The H-1B employer does not need to be the same employer listed in the Labor Condition or Immigrant Visa petition. Qualifying Labor Condition or Immigrant Visa petition need not be the same as that used to qualify for the initial H-1B extension beyond 6 years but cannot aggregate the number of days multiple LCs or IVs have been pending to meet the 365 days requirement. It is important to note that only the principal beneficiary of the Labor Condition or Immigrant Visa may be eligible for an AC21 H-1B extension; spouse in H-1B status cannot piggyback.
A foreign national holding H-1B status is no longer eligible for AC21 H-1B extensions if he/she fails to file for adjustment of status or an immigrant visa within 1 year of an immigrant visa becoming available. There is an exception if failure to file was due to circumstances beyond the foreign national’s control. In addition, if the cut-off date retrogresses- per the published Visa Bulletin – during the 1 year period, a new 1-year period will begin when an immigrant visa becomes available once again.
· AC21 H-1B EXTENSIONS (3-YEAR INCREMENTS)
Current H-1B regulations authorizes approval of H-1B status beyond 6 years, in 3-year increments, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is over-subscribed (i.e. a retrogression in the Visa Bulletin). The foreign national does not need to be currently in H-1B status to qualify for an AC21 3-year extension (he/she must have previously been in H-1B status and worked for 6 years). An employer may filed for an H-1B extension beyond 6 years within 6 months of the requested start date. This means that it can request the time remaining in the 6 years at the same time as requesting a 3-year extension pursuant to AC21.
The new laws encourage an H-1B worker to report the employer’s LCA violation and do not punish the foreign national’s immigration status in the US. Pursuant to 8 CFR§§214.1 (c)(4) and 248.1(b) considers this information an “extraordinary circumstance” that justifies the grant of an extension of status notwithstanding the fact that the H-1B worker failed to maintain continuous status.
· AC21 PERMANENT PORTABILITY UNDER INA§204(j)
Pursuant to 8 CFR§245.25(a) a foreign national who has a pending application to adjust status based on approved I-140 petition, must have a valid offer of employment based on a valid petition at the time adjustment is filed and adjudicated, and he/she must intend to accept the offer. Prior to making a final decision on the adjustment of status application, USCIS may require the foreign national to demonstrate, using Form I-485 Supplement J and supporting evidence, that:
1.The employment offer from the petitioner employer is continuing; or
2.The application has a new offer of employment from the same employer, a different employer or based on self-employment, in the same or a similar occupational classification as the employment offer listed in the qualifying petition, provided:
a.The adjustment application has been pending for 180 days or more; and
b.The Immigrant visa petition has been approved and not revoked, or pending for 180 days or more after filing for adjustment and is subsequently approved.
CBP NOW REQUIRES EVUS ENROLLMENTS FOR CHINESE NATIONALS 10-YEAR VISA HOLDERS BEFORE TRAVELING TO THE US
U.S. Customs and Border Protection (CBP) implemented today, November 29, 2016, a requirement for all individuals with a passport issued by the People’s Republic of China and bearing a maximum validity (10-year), B1 (visitor for business), B2 (visitor for pleasure), or combination B1/B2 visa to have a valid Electronic Visa Update System (EVUS) enrollment before traveling to the United States. EVUS is the online system used by nationals of the People’s Republic of China holding these visas to update basic biographic information to facilitate their travel to the United States. EVUS enrollments are generally valid for two years or until the traveler obtains a new passport or visa, whichever comes first.
Travelers can submit a EVUS enrollment at any time at www.EVUS.gov and will typically receive a response from the online system within minutes after submitting their information; however, some responses may take up to 72 hours. CBP encourages travelers to enroll in EVUS when they begin planning their trip to the United States to avoid uncertainties as CBP cannot guarantee a maximum processing time.
As of November 29, nationals of the People’s Republic of China holding such 10-year visas will not be able to travel to the United States without a valid EVUS enrollment. For travelers taking more than one flight to reach the United States, the EVUS enrollment will be verified when they check-in for their first flight. Nationals of the People’s Republic of China who hold such 10-year visas for travel to the United States.
CBP will not collect a fee for an EVUS enrollment at this time, but anticipates that an EVUS enrollment fee will be implemented in the future. Until the fee is implemented, travelers can complete their EVUS enrollment free of charge.
CBP operates an EVUS call center with Mandarin-speaking operators that travelers can call or email if they have questions about their enrollment. Travelers can contact the call center at 1-202-325-0180 or via email at email@example.com. The call center is available 24 hours a day, seven days a week, but will be closed on U.S. federal holidays. Although the Call Center is available to answer questions travelers might have regarding EVUS, all EVUS enrollments must be submitted online.
To enroll in EVUS, visit www.EVUS.gov.
NEW REGULATIONS FOR EAD FOR CERTAIN EMPLOYMENT BASED & NONIMMIGRANT VISA PROGRAMS
USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
- Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
- Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
- Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
- Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
- Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
- They are the principal beneficiaries of an approved Form I-140 petition,
- An immigrant visa is not authorized for issuance for their priority date, and
- They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.
- Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
- Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
- Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
- Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
- Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
Temporary Protected Status Extended for Nepal
On October 26, 2016, Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status for nationals of Nepal (and those without nationality who last habitually resided in Nepal) for an additional 18 months, effective Dec. 25, 2016, through June 24, 2018.
Current TPS Nepal beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that runs from October 26, 2016 through December 27, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins.
The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of June 24, 2018.
It is important to note that some re-registrants may not receive their new EAD until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Nepal EADs with a Dec. 24, 2016, expiration date for six months. This means that these existing EADs are now valid through June 24, 2017.
Re-registering for TPS:
To re-register, current TPS beneficiaries must submit:
- Form I-821, Application for Temporary Status (re-registrants do not need to pay the Form I-821 application fee);
- Form I-765, Application for Employment authorization regardless of whether they want an EAD;
- The Form I-765 application fee (or a fee waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
- The biometric services fee (or a fee waiver request) if they are 14 years old or older.
DHS has increased Filing Fees by 30%
On October 24, 2016, U.S. Citizenship & Immigration Services announced that it is raising filing fees by about 30%. The new fees will be effective December 23rd. USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two (2) years to determine the funding levels necessary to administer the nation's immigration laws, process benefit requests and provide the infrastructure needed to support those activities.
Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions. This increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security (FDNS), customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
ASYLUM SEEKERS WILL GET WORK PERMITS THAT ARE VALID FOR TWO YEARS
Effective October 5, 2016, USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. Applicants with pending asylum claims file Form I-765, Application for Employment Authorization, under category (c)(8). This change applies to all (c)(8)-based applications that are pending as of October 5, 2016 and all such applications filed on or after October 5, 2016.