United States: Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States

Posted by Immigration Law Team|US Immigration
Jan 17
29


In Brief

On January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This Order has an impact on US corporate immigration in 3 main ways. Firstly, it suspends the travel of nonimmigrants and immigrants from Iran, Sudan, Syria, Libya, Somalia, Yemen, and Iraq into the US for a period of at least 90 days. Secondly, it requests the implementation of uniform screening standards for all immigration programs, including suspending the Visa Interview Waiver Program. Thirdly, it requests the expedited completion of the biometric entry-exit tracking system.

Discussion

Rationale for the Order

The Executive Order was issued out of concern that the visa issuance process is not sufficiently robust to catch those who may be a security threat to Americans. The President has requested that the Secretary of Homeland Security immediately conduct a review to determine what information countries should provide to the US so that US government officials can make a proper determination as to whether or not a visa applicant, or applicant for admission to the U.S., poses a threat to national security. The travel suspension is placed to reduce the investigative burdens during the review period from both a resourcing perspective, as well as from a risk perspective. The Executive Order aims to ensure proper security measures are in place before more immigrants and nonimmigrants from certain countries enter the US.

Suspension of entry into the US

The Order specifically states that the entry into the US of people “from” certain countries is detrimental to the interests of the US and suspends the entry into the US of such persons, whether as immigrants or nonimmigrants, for 90 days from the date of the Order. There is an exception for those who are traveling on certain official business, utilizing diplomatic, NATO, UN, or International Organizations visas.

Since the Order uses the term “from,” it is unclear exactly who is impacted by the Order and as of this publication, varying interpretations regarding the precise impact on dual citizens, as well as US green card holders, have been released. Until further clarification is provided, it is prudent for a broad interpretation of the term “from” to be utilized. As such, those who are citizens, nationals, dual nationals, and/or born in those seven countries should consider themselves impacted by the Order. This would include, for example, a person who is both a citizen of Iran and another country, even if utilizing the other country passport for entry into the US, as well as a person who was born in Iran (who has not held an Iranian passport for several years) who is seeking entry into the US on another country’s passport.

The Order specifically impacts “immigrants and nonimmigrants.” As such, anyone from one of the seven countries who holds nonimmigrant (such as B-1/B-2, H-1B, L-1, and TN) status or immigrant (permanent resident / green card) status is potentially affected by the Order. The Order impacts those who are currently outside of the US who may be banned from entering the US, as well as those who are currently in the US and were seeking to travel outside the US.

The Order does allow for the Secretaries of State and Homeland Security to issue visas or other immigration benefits to those from the seven countries on a case-by-case basis. It will be important to see whether certain populations, such as those with dual nationality who are green card holders, will be exempted from the ban. Over the next few days, more clarity will likely be provided by the Department of State and Department of Homeland Security as to how those departments will be implementing the Executive Order.

Implementation of uniform screening standards

The Order further discusses the implementation of uniform screening standards, across governmental agencies including the FBI, which will be able to better identify possible fraud within the immigration context. This could have various impacts on US corporate immigration including changes in USCIS forms and an increase in in-person interviews by both USCIS and the Department of State. The Order also requests the Secretary of State to immediately suspend the Visa Interview Waiver Program, thus requiring that all nonimmigrant visa applicants undergo in-person interviews. This impacts those planning to utilize the “drop box” method of visa application, available for certain nonimmigrant applicants at certain US Consular Posts. For example, certain Indian nationals who were previously able to renew their H-1B visas without an interview, will likely now have to attend an in-person interview at a US Consular Post.

Immigrant and nonimmigrant visa applicants, as a result of the Order, should be prepared for increased visa adjudication wait times and should plan their travel accordingly.

Expedited completion of the biometric entry-exit tracking system

The Order affects “all travelers” to the United States since it requests the completion and implementation of a biometric entry-exit tracking system. Although the Order does not define “all travelers,” it is possible that all nonimmigrants and immigrants may be required to undergo additional security screening, such as fingerprint scanning, when entering the US. The Department of Homeland Security is charged with completing and implementing this system.

Impact and Recommendations

Companies are advised to review their current employee population, specifically those with US immigrant or non-immigrant status, and those with upcoming travel plans.

Until further clarification is provided, it is recommended that those who are from any of the seven countries who are currently in the US in either a nonimmigrant or immigrant status NOT depart the US since they may not be able to re-enter the US for 90 days or longer. For those who may have an upcoming nonimmigrant status expiration (such as an expiring I-94), it is recommended that they discuss their particular situation with an immigration attorney. Also, for those who are currently outside of the US from one of those seven countries who were seeking to enter the US in a nonimmigrant or immigrant status, they should be prepared to make alternate plans should they be denied entry into the US.

It is important to note that the situation is in flux and may change at any time, given recent court decisions to stay parts of the Order as well as messages delivered to various governments worldwide.  We will be certain to provide updates, clarification, and guidance as this matter develops. Do note, however, that this practice alert is not legal advice. Attorneys and clients should discuss and make decisions based on their individual circumstances.

For further details regarding the Executive Order, or any other immigration matters, please contact a member of our team.


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United States: Travel warning for Nationals of certain countries

Posted by Immigration Law Team|US Immigration
Jan 17
27


In brief

Donald Trump is expected to sign an executive order that would suspend the immigrant and nonimmigrant entry of nationals from certain designated countries, which may include Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  The travel ban is anticipated to last 30 days from the date of the order, but may be extended.

Impact

President Trump’s administration has drafted an executive order relating to visa issuance, screening procedures and refugees.  Among other provisions, the draft order would suspend the immigrant and nonimmigrant entry of nationals from certain designated countries.

If the draft order is implemented without change, the “designated countries” would include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  As a result, nationals of these designated countries would be ineligible to enter the U.S., either as non-immigrants (B-1, H-1B, L-1A, etc.) or U.S. Permanent Residents, for a period of at least 30 days.

To complicate matters, the term “national” is not specifically defined in the draft order.  In light of the uncertainty, the executive order may apply to any foreign national who is a citizen, national, passport holder, or was born in a designated country, although there may be more clarity on this if the executive order is in fact signed.

It is important to note that the draft order has not been finalized, and that changes may occur from the draft to the finalized version.  However, as the executive order may be signed at any point this week by President Trump, and would become effective immediately upon signing, it is critical for nationals of the countries listed above to be aware of the potential travel restrictions into the U.S.

Recommendations

Nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who are physically present in the U.S. are advised not to travel out of the country at this time, as they may be barred from re-entry for a period of 30 days or more.  Further, nationals of the above mentioned countries who are currently outside the U.S., but who have immigrant or non-immigrant status in the U.S., are advised to return to the U.S. as soon as possible, before an executive order on the matter is signed.

For further details regarding the draft executive order, or any other immigration matters, please contact a member of our team.


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United States: H-1B Reform Proposal for Dependent and Willful Violator Employers

Posted by Immigration Law Team|US Immigration
Jan 17
23


In brief

Congressman Darrell Issa of California reintroduced H-1B legislation proposing to reform the requirements related to attestation exemptions for H-1B dependent and willful violator employers.  Specifically, the legislation aims to increase salary requirements and eliminate master’s degree exemptions, which currently allow H-1B dependent and willful violator employers to avoid Department of Labor attestation requirements.

Background

Currently, H-1B dependent and willful violator employers are exempt from Department of Labor attestation requirements if the beneficiary has a master’s degree or higher, or will earn a base salary of at least $60,000.  H-1B-dependent and willful violator employers which employ only exempt H-1B workers are relieved from the additional obligations with which they would otherwise be required to comply, such as non-displacement, recruitment, and hiring of US workers.

Impact

In the proposed legislation, Congress seeks to make it more difficult for H-1B dependent and willful violator employers to qualify for this exemption.  The legislation proposes to raise the base salary amount to $100,000, an increase of $40,000 from the current exemption amount.  Additionally, the legislation proposes to eliminate the master’s degree exemption, meaning that H-1B dependent and willful violator employers could only qualify for the exemption by paying the beneficiary a base salary of at least $100,000.

The proposed legislation was reintroduced just days before Donald Trump was inaugurated as the next president of the United States.  During his campaign, Trump stated that he would seek to reform the H-1B category, in part to make it more difficult for U.S. employers to employ foreign nationals over qualified U.S. workers.  Although the proposed legislation has not been passed by either branch of Congress, the transition to a Trump administration may result in the passing of this proposed legislation sooner rather than later.

For further details regarding the proposed reform to the H-1B category, or any other immigration matters, please contact a member of our team.


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United States: USCIS Publishes New Rule for International Entrepreneurs

Posted by Immigration Law Team|US Immigration
Jan 17
23


In brief

On January 17, 2017, United States Citizenship and Immigration Services (USCIS) published a new rule to welcome international entrepreneurs to the U.S.  This rule will allow certain international entrepreneurs to be considered for parole (i.e. temporary permission to enter the U.S.) in order to start and operate their businesses.

Discussion

Under this proposed rule, the Department of Homeland Security (DHS) will be able to parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

1. Who have a significant ownership interest in the startup (at least 10 percent) and have an active and central role to its operations

2. Whose startup was formed in the United States within the past five years, and

3. Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

– Receiving significant investment of capital (at least $250,000) from certain qualified U.S. investors with established records of successful investments

– Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities, or

– Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Impact

Individuals who qualify may be paroled into the U.S., which is discretionary permission to enter the U.S. granted by U.S. Customs and Border Protection.  Further, the entrepreneur’s dependents, including their spouse and unmarried children under 21, may be paroled into the U.S. as well. It is important to note that because parole is not considered an admission to the U.S., parolees are ineligible to adjust or change their status under many immigrant or non-immigrant visa classifications.

The rule is scheduled to take effect on July 17, 2017.  Nevertheless, there is uncertainty how long this new rule might remain in effect under the Trump administration.  President Trump may instruct his administration to rescind the regulation.  The Trump administration has not stated its intent with respect to this specific regulation.

For further details regarding the new rule for international entrepreneurs or any other immigration matters, please contact a member of our team.


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United States: EB-5 Green Card Program: Minimum Investment Amount Expected to Increase in April 2017

Posted by Immigration Law Team|US Immigration
Jan 17
18


In brief

The EB-5 program is up for renewal in Congress this April. There is a significant likelihood that upon renewal the minimum investment amount will be increased from $500,000 to $1.3 million or more.

Impact

The EB-5 program allows individuals to obtain a green card (become a US permanent resident) by making an investment of $500,000 in a government designated project. The anticipated changes to the EB-5 program will likely affect individuals who apply after Congress renews the program in April of this year. However, most observers believe that the changes will not apply to those who submit their petitions before the April deadline.

In light of the proposed increase to the investment amount that may take effect this April, those seeking a green card through the EB-5 program should commence their case as soon as possible so that they can file their petition before April and thus obtain a green card by making an investment of $500,000 as opposed to $1.3 million.

If you are interested in obtaining a green card through the EB-5 program, please contact PwC Law LLP.

 


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United States: DHS publishes new rule: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

Posted by Immigration Law Team|US Immigration
Jan 17
18


In Brief

On January 17, 2017, the Department of Homeland Security (DHS) published a new rule which amends its regulations related to certain employment-based immigrant and non-immigrant visa programs.

Impact

The new rule will benefit U.S. employers and foreign workers participating in certain programs, by increasing job portability and providing stability and flexibility for foreign workers. The new rule will also streamline some of the processes affecting non-immigrant workers seeking permanent residence status through employment.

Key issues addressed in the new rule include the following: Retention of priority dates, retention of employment-based visa petitions, new grace periods for non-immigrant workers, and automatic extension of certain Employment Authorization Documents (EADs) pursuant to a renewal application. DHS stated that these changes will codify and improve existing policies concerning various employment-based immigrant and nonimmigrant visa classifications.

For more detailed information on the changes that will occur as a result of this publication, please refer to our previous post on this matter, which discusses the upcoming changes in detail:


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Canada: Prime Minister Trudeau Announces new Minister of Immigration, Refugees and Citizenship Canada

Posted by Immigration Law Team|Canada Immigration
Jan 17
11


In Brief

On January 10, 2017, Prime Minister Trudeau announced changes to the Ministry, replacing several key Cabinet Members including the Minister of Immigration, Refugees and Citizenship. Mr. Ahmed Hussen was sworn in as the new Minister of Immigration, Refugees and Citizenship.

Discussion

Mr. Hussen is currently the Member of Parliament for the Toronto South – Weston riding. Mr. Hussen gained his seat in Parliament in 2015 as the first Somali-Canadian elect.

Mr. Hussen immigrated to Canada from Somalia in 1993 and has a history of political involvement, most recently serving as National President for the Canadian Somali Congress. Mr.  Hussen is also a community advocate, serving on the Boards of the Global Enrichment Foundation and Journalists for Human Rights, and co-founding the Regent Park Community Council.

As a Member of Parliament, Ahmed Hussen sits on the Justice and Human Rights Committee and the Canada-Africa Parliamentary Association.

It is anticipated that previous Minister of Immigration, Refugees and Citizenship, Mr. John McCallum, will assume a diplomatic position, potentially serving as Canada’s ambassador to China.

Impact

While this cabinet shuffle comes as a surprise to some, Mr. Hussen’s appointment as Minister of Immigration, Refugees and Citizenship demonstrates an ongoing commitment to ensuring Canada’s immigration policy continues to fuel industrial growth, while ensuring both that families remain united and that Canada honours its  humanitarian commitments.

For information on your Canadian immigration matters, please contact PwC Law LLP.


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