United States: New Executive Order signed, calling for review of the H-1B visa program

Posted by Immigration Law Team|US Immigration
Apr 17
20


In brief

President Donald Trump signed an Executive Order on April 18, 2017 with a strong message to federal agencies to review protections for American-made products and American workers. This message echoes that which he stated throughout his campaign. The Order, entitled “Buy American and Hire American,” calls for greater limits on visas issued to foreign skilled workers and advises federal agencies to produce preliminary reports to propose improvements to the H-1B visa program. Most notably, the President seeks to crackdown on fraud and abuse within the H-1B program, to strictly enforce existing H-1B rules, and to propose changes to the current H-1B requirements such that the highest skilled and the highest paid applicants are favored for visa selection.

Note: No changes in H-1B policy or regulations have taken effect. The Executive Order is a preliminary step calling only for a review of the existing regulations and policies. Extensive changes to the H-1B program, such as those proposed, can only be implemented by an act of Congress.

Background

The H-1B program allows US employers to temporarily hire highly skilled foreign workers in specialty occupations, generally requiring the minimum of a bachelor’s degree. Built-in protections in the H-1B program, such as wage and educational mandates, are meant to protect US labor while encouraging the flow of foreign ingenuity and expertise into the US. However, fraud and abuse within the H-1B program has raised concerns that US employers are replacing American workers with low-wage foreign workers, contrary to the spirit of the H-1B program. This is an issue which has drawn much attention in recent years, and earlier this month, the Departments of Justice, Labor, and Homeland Security announced measures to deter and detect H-1B visa fraud and abuse.

Impact

In an effort to curb fraud and abuse in the H-1B program, the Executive Order calls on the Departments of Justice, Labor, Homeland Security, and State to take the following actions:

– Rigorously enforce and administer existing immigration laws of the United States

– Propose new rules and issue new guidance to protect the interests of United States workers, including the prevention of fraud and abuse, and

– Suggest reforms to the H-1B program to ensure the H-1B visas are awarded to the most-skilled or highest-paid foreign workers.

– The executive order is not expected to impact this year’s H-1B cap lottery.

Recommendations

Employers with H-1B employees should reach out to immigration counsel to review internal procedures and ensure compliance with all H-1B rules and regulations. Employers should continue to maintain close contact with immigration counsel should these objectives become implemented through agency and congressional action.

PwC Law continues to monitor these developments and will be sure to provide updates as changes occur.

For more information on the H-1B category and the lottery selection process, please contact a member of our team.


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United States: USCIS reaches H-1B Cap for FY2018

Posted by Immigration Law Team|US Immigration
Apr 17
7


In brief

Earlier today, United States Citizenship and Immigration Services (USCIS) announced that it received sufficient H-1B cap petitions to commence the H-1B cap lottery selection process. USCIS received a sufficient number of H-1B cap-subject petitions for both the general H-1B filing category and the advanced degree exemption (US Master’s Cap).  USCIS will continue to accept H-1B cap-subject petitions received today, April 7, 2017, but will reject any such filings received on or after April 8, 2017.

Background

Each year, USCIS begins accepting new H-1B cap-subject petitions for the fiscal year on the first business day in April, subject to annual quotas of 65,000 visas for general petitions and 20,000 visas for petitions filed under the US Master’s Cap. During the initial filing period for Fiscal Year 2018, which began on April 3, 2017 and concludes on April 7, 2017, USCIS received more than enough H-1B cap-subject petitions to fill both the general and advanced degree quotas. As such, USCIS will not accept any new H-1B cap-subject petitions filed on or after April 8, 2017 for FY2018. The next filing period for H-1B cap-subject petitions is scheduled to begin April 2, 2018, barring any changes to the H-1B program under President Trump’s administration.

When USCIS receives more petitions than it can accommodate under the annual quotas, a lottery is conducted to determine which petitions will be adjudicated. In the coming days, USCIS will use a computer-generated lottery process to select enough petitions to meet the 65,000 general-category cap and the 20,000 US Master’s Cap. The agency will conduct the selection process for the US Master’s Cap first. All unselected US Master’s Cap petitions then become part of the random selection process for the 65,000 general-category cap limit. USCIS will reject and return all unselected petitions with their filing fees.

Recommendations

Employers that have filed H-1B cap-subject petitions for Fiscal Year 2018 should stay tuned for further information from USCIS regarding the date of the H-1B lottery, as well as the total number of petitions filed.

For more information on the H-1B category and the lottery selection process, please contact a member of our team.


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United States: Increased Oversight of the H-1B Category

Posted by Immigration Law Team|US Immigration
Apr 17
6


 

In brief

Three federal agencies, the Department of Homeland Security, the Department of Justice and the Department of Labor, have announced plans to provide greater oversight of the H-1B category in an effort to prevent abuses and protect US workers.

Background

The H-1B program allows US employers to temporarily hire highly skilled foreign workers in specialty occupations.  In recent years, there has been growing concern that some US employers have abused the H-1B system by choosing to hire foreign workers instead of US workers and, in some cases, replacing US workers with H-1B employees. The Immigration and Nationality Act prohibits US employers from discriminating against US workers in their hiring, firing, and recruitment efforts.

In response to this concern and in an effort to protect US workers, United States Citizenship and Immigration Services, the Department of Justice, and the Department of Labor, have all announced plans to increase oversight and scrutiny of the H-1B program.

Impact

In an effort to protect US workers from H-1B abuses, federal agencies will undertake the following actions:

– Increase scrutiny on all H-1B petitions
– Increase site-visits at the workplaces of H-1B holders specifically focusing on the following:
* Worksites of H-1B dependent employers – companies that have 15% or more of their US workforce on H1-B visas
* Worksites of H-1B employees who work at a different location from their employer, and
* Worksites for companies that do not readily have information about their business accessible through commercially available data
– ‘Rigorously’ use existing authority to initiate investigations of H-1B violations
– Investigate and prosecute H-1B abuses by ensuring greater coordination between federal agencies
– Consider changes to the Labor Condition Application in future H-1B cycles
– Seek improvements to the H-1B program by looking at legislative changes and existing statutory authorities

In addition, USCIS has established an email address to allow people to submit tips regarding alleged H-1B violations or cases of potential H-1B fraud or abuse.

Recommendations

Employers with H-1B employees should reach out to their legal counsel to initiate a review of internal procedures and processes and ensure compliance with all H-1B rules and regulations. Companies are also encouraged  to have a site visit preparation plan in place in the  event of a site visit.

PwC Law continues to monitor this matter and will be sure to update you as changes occur.

For further details regarding the recent H-1B announcements, or any other immigration matter, please contact a member of our team. 

 


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United States: H-1B Visa Program Update

Posted by Immigration Law Team|US Immigration
Apr 17
6


In brief

USCIS has started to accept H-1B cap-subject petitions for Fiscal Year 2018 and is expected to remain open to such petitions until April 7, 2017, assuming the available numbers are exhausted in the initial filing period. If the H-1B filing quotas are exceeded during this initial filing period, USCIS will conduct a random lottery to determine which petitions will move forward to adjudication.  Separately, USCIS’ temporary suspension of the Premium Processing Service for all H-1B petitions becomes effective April 3, 2017.

Discussion

Starting April 3, 2017, USCIS will begin accepting H-1B cap-subject petitions for Fiscal Year 2018 (“FY2018”).  USCIS will accept up to a maximum of 65,000 petitions under the H-1B general category for FY2018. Additionally, USCIS will accept up to a maximum of 20,000 H-1B petitions filed under the US advanced degree exemption. The H-1B cap filing window opened April 3, 2017, and will remain open for at least five business days, until April 7, 2017.

In the event that the H-1B quotas mentioned above are exceeded, USCIS will use a computer-generated selection process, or lottery, to randomly select the petitions which will be eligible for consideration.  Before running the lottery, USCIS will complete initial intake for all filings received during the filing period of April 3, 2017, to April 7, 2017.

If a lottery is required, USCIS will first run the lottery for petitions filed under the US advanced degree category. All US advanced degree petitions that are not initially selected will become part of the random selection process for the general category. Ultimately, if an H-1B cap-subject petition is not selected through the lottery, USCIS will reject the petition, and will return the filing fees unless it is deemed a duplicate filing.

Separately, USCIS’ temporary suspension of the Premium Processing Service for all H-1B petitions, including non-cap subject petitions, becomes effective April 3, 2017.  The length of the temporary suspension has not been formally announced, and as such, it is unclear when this option will re-open for H-1B petitions.  We will continue to monitor the situation and provide further updates as they are available.  For more information on the temporary suspension of Premium Processing on H-1B petitions, please refer to our prior Alert on this topic.

Recommendations

Employers using the H-1B visa category should ensure that their petitions filed from April 3, 2017 onward do not use the Premium Processing Service, until further notice.  Additionally, employers that have filed H-1B cap-subject petitions for Fiscal Year 2018 should stay tuned for further information from USCIS regarding the total number of petitions filed, and whether a lottery will be necessary to select petitions for adjudication.

For further details on the of H-1B visa category, or on any other immigration matters, please contact a member of our team.

 

 

 

 

 

 

 

 

 

 


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United States: President Trump’s Revised Travel Restriction Suspended by US Federal District Courts

Posted by Immigration Law Team|US Immigration
Mar 17
16


In brief

Federal District Court judges in Hawai’i and Maryland issued nationwide restraining orders which temporarily suspend enforcement of President Trump’s revised Executive Order, specifically Section 2(c). This section suspends entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who, on March 16, 2017 were both outside of the US and without a valid visa, and who did not have a valid visa on January 27, 2017, unless they qualify for a categorical exception or waiver. The Executive Order was scheduled to take effect today, March 16, 2017, and was to last 90 days, but is not currently enforceable due to the temporary restraining orders. However, the Department of Justice has stated its intent to appeal the rulings shortly.

Background

On January 27, 2017, President Trump issued an Executive Order suspending the entry of nationals of seven countries, with limited exceptions, into the United States as immigrants and nonimmigrants for 90 days. The initial travel restriction remained in effect until February 3, 2017, when the Federal District Court in Washington issued a temporary restraining order preventing the enforcement of the travel restriction. Despite a request for a stay of the temporary restraining order, the United States Court of Appeals for the Ninth Circuit unanimously denied such a request, thereby making the travel restrictions unenforceable. On February 16, 2017, the Trump Administration stated that the Executive Order would be replaced with a new one.

On March 6, 2017, a new Executive Order was signed, which revoked and replaced the previous Order, and which was to become effective today, March 16, 2017. The revised Order contained several changes that were supposed to address the deficiencies of the prior Order. Despite these changes, on March 15, 2017, Federal District Courts in Hawai’i and Maryland granted temporary restraining orders with nationwide effect, preventing enforcement of the travel restriction.

On March 15, 2017, at a Make America Great Again Rally in Nashville, TN, after learning about the temporary restraining order, President Trump stated: “We’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court.” At the March 16, 2017 Press Briefing, White House Press Secretary Sean Spicer confirmed the Department of Justice’s intention to appeal the rulings, specifically to appeal the Maryland ruling and to seek clarification of the Hawai’ian decision prior to appealing that ruling.

Recommendations

Despite the rulings issued by the Federal District Courts, affected nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who are physically present in the US are advised not to travel out of the country at this time (so long as they hold legal status), until the situation is further resolved. Those concerned that they are only eligible for entry as a result of the temporary restraining orders should seek counsel regarding entering the US as soon as possible. Additionally, affected nationals should closely monitor the situation over the coming days and weeks, as further developments unfold.

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


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United States: New Executive Order on travel restrictions has been signed – effective March 16, 2017

Posted by Immigration Law Team|US Immigration
Mar 17
6


In brief

President Donald Trump signed a new Executive Order on March 6, 2017 that suspends the entry of nationals from six designated countries including Iran, Libya, Somalia, Sudan, Syria and Yemen.   It does not include Iraq.  The travel restriction lasts 90 days from its March 16, 2017 effective date, but may be extended.

Background

On January 27, 2017, President Trump issued an Executive Order suspending the entry of nationals of seven countries, with limited exceptions, into the United States as immigrants and nonimmigrants for 90 days from the date of the Order. In response to the January 27, 2017 Executive Order, the State of Washington filed a lawsuit alleging the unconstitutionality of the Executive Order and on February 3, 2017, a Federal District Court in Washington issued a temporary restraining order preventing the enforcement of the travel restriction.  On February 9, 2017, the United States Court of Appeals for the Ninth Circuit unanimously denied the request for a stay of the temporary restraining order, thereby making the travel restrictions unenforceable. On February 16, 2017, the Trump Administration stated that the Executive Order would be replaced with a new one.

On March 6, 2017, President Trump issued the new Executive Order that takes effect on March 16, 2017 at 12:01 am EDT, which revokes and replaces the January 27, 2017 Order. The new Order suspends the entry of nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen into the US for a 90 day period from the March 16, 2017 effective date.

Impact

President Trump’s new Executive Order makes the following significant changes to the previous Order:

– Foreign nationals from Iraq are no longer included in the travel restriction.
– The Order will only apply to foreign nationals of the six designated countries who are outside the US on March 16, 2017, who did not hold valid visas on January 27, 2017 at 5 pm EST, and who do not have a valid visa on March 16, 2017.
– Foreign nationals of these six countries who are US lawful permanent residents (green card holders) will not be restricted from entering the US.
– Dual nationals of these six countries who are travelling on the passport issued by a non-designated country will not be restricted from entering the US.
– Waivers may be available on a case-by-case basis.

Recommendations

While nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen with valid visas are no longer subject to the travel restriction, they are still likely to be subjected to heightened scrutiny at US borders. As such, it is advised that foreign nationals from these countries exercise caution and do not travel outside of the US unless necessary.  US immigration counsel should be sought before any travel.

PwC continues to monitor this matter and will be sure to update you as changes occur.

For further details regarding the executive order, or any other immigration matters, please contact a member of our team. www.pwc.com/ca/law

 

 


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United States: USCIS suspends H-1B Premium Processing effective April 3, 2017

Posted by Immigration Law Team|US Immigration
Mar 17
5


In Brief

USCIS has announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium processing is the mechanism by which an H-1B petition can be adjudicated within 15 calendar days, which can shave months off the normal adjudication processing time, for an additional governmental filing fee of $1225.

Discussion

The H-1B category is used by employers who wish to hire foreign workers in specialty occupations who hold at least a Bachelor’s degree or equivalent, and who will be working in a position which typically requires at least a Bachelor’s degree. Under normal processing times, H-1B petitions typically take between two and six months to adjudicate. Currently, an employer can request premium processing of any H-1B petition, which requests that USCIS render a decision, or a Request for Evidence, within 15 calendar days. H-1B employers use premium processing for several different reasons. For H-1B cap cases that are filed no sooner than April 1 for an October 1 start date, premium processing typically allows for an employer to know whether the H-1B petition has been approved by May or June – rather than waiting until August, September, October, or even later, for a decision to be rendered. Employers opt for premium processing in order to have better visibility as to which of their H-1B cap cases have been approved, for workforce planning purposes.

This year, the first day that employers can file H-1B cap cases is April 3, 2017. By choosing April 3, 2017 as the start date for the suspension of H-1B premium processing, USCIS has indicated that H-1B cap cases are not eligible for premium processing this year. Please note that premium processing does not affect selection in the H-1B lottery. For employees who are currently working for a US employer in H-1B status, premium processing allows for them to quickly know whether their extension petitions have been approved, often prior to their current H-1B expiration date. For H-1B workers who are looking to change employers, premium processing of H-1B change of employer petitions allows for employees to have certainty whether their cases have been approved before starting work with the new employer. All in all, premium processing of the H-1B category has been extremely useful to employers and employees alike, both from a workforce planning perspective, as well as for rapidly providing employees with certainty as to their immigration status.

Impact

In light of the above, the suspension of H-1B premium processing will have a negative impact on both employers and employees. Employers will be delayed in knowing whether or not their H-1B cap and extension cases have been approved, which can cause challenges in workforce planning. From the employee perspective, employees often need an approved H-1B petition in order to obtain driver’s license renewals, and to obtain new H-1B visas at Consular Posts abroad. Without the ability to premium process cases, employees could be left without the ability to drive to work and may have to postpone international travel plans until a later date, if they were relying on premium processing for speedy adjudications. Finally, those with otherwise approvable pending H-1B extension petitions are only authorized to work for 240 days beyond their H-1B status expiration date.

Although USCIS has indicated the temporary suspension is to assist with the adjudication of cases nearing the 240 day mark, by removing the ability of employers to upgrade cases nearing the 240 day mark to premium processing, some employees may have to cease employment until their H-1B cases are approved, which will cause disruption to both employers and employees.

For more information on the suspension of H-1B premium processing, please contact PwC Law LLP.


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United States: 9th Circuit Upholds Suspension of President Trump’s Travel Ban

Posted by Immigration Law Team|US Immigration
Feb 17
10


In Brief

On February 9, 2017, The United States Court of Appeals for the Ninth Circuit denied an emergency motion from President Trump’s administration, meaning that citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen with valid travel documents may continue to enter the U.S. for the time being.

Discussion

Previously, President Trump’s administration issued an executive order which prevented citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from traveling to the U.S., regardless of whether they possessed valid travel documents. The travel ban remained in effect until February 3, 2017, when a Federal Judge in Seattle, Washington issued a nationwide restraining order that temporarily blocked enforcement of the executive order. President Trump’s administration appealed the restraining order, arguing that the travel ban should be reinstated until the court made a final decision on the case.

However, the Ninth Circuit Court of Appeals disagreed, and upheld the restraining order issued by the lower court. The decision was made unanimously by the three-judge panel, which discussed the public’s interest in free travel, avoiding separation of families, and freedom from discrimination. As a result, citizens of Iraq, Libya, Somalia, Sudan, Syria and Yemen are currently authorized to travel to the U.S. until further notice, provided they possess valid travel documents.

Recommendations

Despite the ruling of the Ninth Circuit Court of Appeals, citizens 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, until the situation is further resolved. Additionally, citizens of the above mentioned countries who are currently outside the U.S., but who have immigrant or non-immigrant visas, are advised to return to the U.S. as soon as possible, while the travel ban is temporarily suspended.

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


Posted by Immigration Law Team » No Comments »