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

Posted by Immigration Law Team|US Immigration
Jun 17
26


In brief

On Monday June 26, 2017, the U.S. Supreme Court allowed parts of President Donald Trump’s executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” to go into effect.  The Supreme Court will hear full arguments as to the order’s legality in October.  However, in the meantime the decision allows the Executive Order to go into effect for people with no strong ties to the United States.

Background

The Executive Order calls for a 90-day travel ban of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen and directs heads of executive agencies to review and determine the procedures that should be required for individuals seeking admission from these countries.  Furthermore, the Order seeks to reduce the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year.

On March 15, 2017 the Federal District Court of Hawaii granted a temporary restraining order with nationwide effect, preventing the enforcement of the travel restriction.  The District Court’s ruling was challenged by the government and upheld by The United States Court of Appeals for the Ninth Circuit on March 30, 2017.  The Ninth Circuit upheld the lower court’s ruling, completely blocking the Executive Order, on the basis that it was discriminatory and failed to provide sufficient rationale as to why the entry of foreign nationals from the designated countries would be detrimental to the United States’ interests.

On Monday June 26, 2017, the U.S. Supreme Court granted parts of the Trump administration’s request to put the order into effect while the legal battle continues.  The court narrowed the scope of the Ninth Circuit’s ruling and determined that the Order will go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”  The ruling indicates that people from the six countries and refugees who have family, business or educational ties would not be barred from entry.  But those seeking visas to enter the United States with no such ties could be barred.

The Supreme Court’s opinion explained that “for individuals, a close familial relationship is required.” For people who want to come to the United States to work or study, “the relationship must be formal, documented and formed in the ordinary course, not for the purpose of evading” the travel ban.

Recommendations

Although the travel ban remains suspended for U.S. workers with formal ties to the United States, nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who are physically present in the US are advised to either extremely limit their international travel or not travel out of the country at all.  Those concerned that they are not eligible for entry should seek counsel regarding entering the US as soon as possible. Additionally, affected nationals should closely monitor the situation over the coming months, especially since the Order’s legality is expected to be decided by the US Supreme Court this fall.

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

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: Ninth Circuit Affirms District Court’s Injunction Against Travel Ban and Refugee Program Limitations

Posted by Immigration Law Team|US Immigration
Jun 17
12


Ninth Circuit Affirms District Court’s Injunction Against Travel Ban and Refugee Program Limitations

 

In brief

The United States Court of Appeals for the Ninth Circuit has affirmed an earlier District Court order suspending enforcement of President Trump’s revised Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”  The revised order was to take effect on March 16, 2017 and was to reinstate a 90-day ban on travel of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen.  The order directed heads of the executive agencies to review processes in order to determine additional procedures that should be required for individuals seeking admission as refugees.  Furthermore, the Order reduced the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year.  The Ninth Circuit ruling continues to make the Executive Order unenforceable.  It is anticipated that the United States Department of Justice will appeal the decision to the US Supreme Court.

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 on 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 Hawaii and Maryland granted temporary restraining orders with nationwide effect, preventing enforcement of the travel restriction.

On March 30, 2017 the Government filed a notice of appeal for the Federal District Court of Hawaii’s ruling with The United States Court of Appeals for the Ninth Circuit, requesting that the court vacate the preliminary injunction.  Today the Ninth Circuit issued its ruling and upheld the District Court ruling.  The judges largely affirmed the District Court’s decision which found the core provisions of the revised executive order—namely the 90 day ban on travel for citizens from Iran, Libya, Somalia, Sudan, Syria and Yemen including all refugees—violated the Constitution because the Order’s primary purpose was to discriminate on religious grounds.  The court also held that the Executive Order failed to provide a sufficient rationale as to why entry of foreign nationals from the designated countries would be detrimental to the United States’ interests.  For these reasons, the Ninth Circuit ruled to affirm in large part the District Court’s order suspending enforcement of President Trump’s revised Executive Order.

Recommendations

The Ninth Circuit’s ruling today continues to suspend the enforcement of the Executive Order and consequently the enforcement of a “travel ban”.  Despite the rulings, nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen who are physically present in the US are advised to either extremely limit their international travel or not travel out of the country at all.  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 months, especially since it is widely anticipated the Ninth Circuit ruling will be appealed and ultimately decided by the US Supreme Court.

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

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 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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