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 firstname.lastname@example.org. 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.
EB-5 PROGRAM HAS BEEN EXTENDED THROUGH DECEMBER 9, 2016
The Continuing Resolution (CR) signed by President Barack Obama today officially extends authorization of the EB-5 Regional Center Program through December 9 which was due to lapse on September 30. The funding measure, passed both House and Senate earlier this week, takes effect immediately.
The EB-5 Regional Center Program has facilitated billions of dollars in direct foreign investment from countries such as India and China into a diverse range of development projects throughout the United States, generating over $15 billion from 2005-2015 and creating well over 100,000 new US jobs in that time.