USCIS WILL SUSPEND PREMIUM PROCESSING FOR ALL H-1B APPLICATIONS
On Friday March 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy.
This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.
The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months:
- H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.
- Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals, and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
- H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
- H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved.
USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.
NEW MEMORANDUMS HAVE SERIOUS CONSEQUENCES FOR UNDOCUMENTED IMMIGRANTS
On Tuesday, February 21st, 2017 two (2) guidance memorandums were signed by Homeland Security Secretary John Kelly implementing the President's Executive Orders on immigration enforcement. The new memos direct the Department of Homeland Security (DHS) to escalate immigration enforcement nationwide. The memos reveal that DHS intends to take a much more "enforcement-oriented" position with regard to U.S. Immigration law.
How do these memorandums affect foreign nationals?
1. AN END TO LONG-STANDING PROTECTIONS FOR CHILDREN. DHS intends to strip many children arriving alone at our border of basic protections and to penalize their parents for seeking to reunite with their children in the United States. DHS will do this by narrowing the definition of "unaccompanied alien child" in order to limit those protections and by launching either civil or criminal enforcement against the parents.
2. A MASSIVE EXPANSION OF DETENTION. The memos contemplate a massive expansion of detention, including a requirement that DHS officers detain nearly everyone they apprehend at or near the border. This detention space expansion will benefit the private prison industry-means that children, families, and other vulnerable groups seeking protection in the United States will end up detained, at great financial and human cost.
3. PROSECUTION PRIORITIES AND DISCRETION ARE GONE. The new memos rescind earlier policies on whom to prosecute and deport and whom to de-prioritize because they pose no threat to our communities. The new enforcement priorities are extremely broad and cover nearly all undocumented individuals in the United States. In fact, they even include individuals simply charged or suspected of having committed crimes.
4. CREATION OF A DEPORTATION FORCE. The memos order the hiring of 5,000 additional Customs and Border Protection (CBP) agents and 10,000 additional Immigration and Customs Enforcement (ICE) agents. They direct a massive expansion of 287(g)-a provision that allows DHS to deputize State and Local law enforcement officers to perform the functions of immigration agents. The memos reinstate Secure Communities [terminating the Priority Enforcement Program (PEP), which targeted only criminal foreign nationals or individuals who had an outstanding order of removal/deportation], which expand the ways in which local police collaborate with ICE.
5. PLANS TO BYPASS IMMIGRATION COURTS AND SHORT-CIRCUIT DUE PROCESS. The memos indicate that many people in the interior of the country - not just those at the border - could be subject to expedited removal or expedited deportation without going before an immigration law judge, the details of which DHS said will be forthcoming in a notice in the Federal Register. This expansion of "expedited removal," will allow the government to bypass the backlogged immigration courts in order to remove or deport people rapidly and with little-to-no due process.
FEDERAL JUDGE IN VIRGINIA SUSPEND THE APPLICATION OF TRUMP'S EXECUTIVE ORDER TARGETING PREDOMINANTLY MUSLIM COUNTRIES
On February 13, 2017, U.S. District Judge Leonie Brinkema granted a preliminary injunction barring the Trump administration from implementing its travel ban in the State of Virginia. This ruling comes after other restraining orders imposed by federal judges across the U.S. The ruling is significant from a legal standpoint because the Judge found an unconstitutional religious bias is at the heart of the travel ban, and therefore violates First Amendment prohibitions on favoring one religion over another.
In her 22-page ruling, Brinkema writes that Trump's promises, during the campaign to implement what came to be known as a "Muslim ban," provide evidence that the current executive order unconstitutionally targets Muslims.
"The president himself acknowledged the conceptual link between a Muslim ban and the EO (executive order)," Brinkema wrote. She also cited news accounts that Trump’s adviser Rudy Giuliani said the executive order is an effort to find a legal way for Trump to be able to impose his Muslim ban.
This ruling differs from others insofar as this order is a permanent injunction rather than the temporary restraining order issued in other courts and in the Washington state case. Nevertheless, this injunction is limited in scope and it applies solely to the State of Virginia and does not cover the portion of the executive order directed at refugees.
ICE RAIDS IN CALIFORNIA: 100 ARRESTED
Last night, Immigration Customs Enforcement (ICE) carried out raids throughout the State of California.
The targets were foreign nationals with outstanding removal/deportation orders and criminal records. ICE took into custody about 100 foreign nationals.
Rumor has it that President Trump will add the following countries to the immigration ban purproted by his Executive Order: Egypt, Lebanon, Afghanistan, Pakistan, Colombia, Venezuela, Philippines, Mali, and Indonesia.
This rumor is not confirmed! It is advisable to speak with an experienced immigration lawyer before traveling in-and-out of the U.S.
DEPARTMENT OF STATE REVOKES ALL IMMIGRANT AND NON-IMMIGRANT VISAS FOR FOREIGN NATIONALS OF THE 7 COUNTRIES
The State Department, upon request and advice of the Department of Homeland Security, has revoked all visas from the affected countries BOTH immigrant and non-immigrant visas.
THE CALIFORNIA DISTRICT COURT SUSPENDED THE REVOCATION OF IMMIGRANT VISA
The California District Court issued a decision last night, February 1st, suspending the revocation of immigrant visas pursuant to Trump's Executive Ban. This decision should be considered a National Order as it applied to President Trump and his agents.
THE NATIONAL VISA CENTER PROVIDES GUIDANCE ON CANCELLATION OF IMMIGRANT VISA INTERVIEWS PURSUANT TO THE RECENT EXECUTIVE ORDERS
The National Visa Center (NVC) announced that Department of State (DOS) has temporarily stopped processing immigrant visa applications for individuals who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen, pursuant to President Trump's January 27, 2017, Executive Order. The NVC has cancelled all immigrant visa interviews for these applicants that were scheduled for February 2017. In related news, the DOS Visa Office has confirmed with the American Immigration Lawyers' Association that the majority of interview waiver cases—specifically, cases covered by INA §222(h)(1)(A) and (B)—are still eligible to receive interview waivers.
DHS Reviews the Validity of the Executive Order
The Department of Homeland Security is reviewing the validity of the Executive Order. The review has been initiated in response to congressional request and whistleblower and hotlines complaints.
ARE ISRAELIS WHO WERE BORN IN THE DESIGNATED 7 COUNTRIES BANNED FROM ENTERING THE US?
The State Department said that the Ban does not apply if the Israelis do not have a valid passport from one of these countries or are not declaring themselves as nationals of these 7 countries. Most of these Israelis left due to persecution and do not have valid passports and are not claiming to be nationals . On the other hand, if an Israeli has 2 passports, one from Iraq and the other from Israel, then he would be subject to the Ban. So not all Israeli Citizens born in one of the 7 countries are exempt from the Ban.