US: Government Shutdown 2018

Posted by Immigration Law Team|US Immigration
Feb 18
7


In brief

On January 22th, 2018, the U.S. government reopened after shutting down on January 20th, due to funding issues.  Congress passed a spending bill that will keep the government funded until February 8th, 2018.  Currently, Congress is in negotiations to reach a long term budget that will keep the federal government funded until 2020. One of the issues that is currently being discussed as part of these negotiations concern legislation involving the future of Deferred Action for Childhood Arrivals (DACA). This alert will discuss recent development concerning DACA, and in the event there is another shutdown in February, this alert will discuss how a potential future government closure will affect immigration-related services.

Discussion

On January 20, 2018, the U.S. government shut down after the Senate was unable to pass a funding bill. This led to the closure of all non-essential and non-fee-based functions. On January 22, 2018, the Senate Democrats and Republicans re-entered into negotiations and came to an agreement that a vote should be held to temporarily reopen the government. In that afternoon, a vote was held and a funding bill was passed that would keep the government functioning until February 8, 2018. This vote gives all parties time to negotiate a new funding bill while the government continues its operations.

DACA

Recently, a federal district court judge ordered the Department of Homeland Security on January 9, 2018 to partially resume the DACA program. (see previous alert) Since then, the United States Citizenship and Immigration Services (USCIS) has issued guidance on renewal of DACA-based Employment Authorization Document (EAD). USCIS will mostly follow the same procedures to process DACA-based EAD renewal applications that were in place before DACA was rescinded. Only individuals who were previously granted DACA may request renewal of their DACA-based EAD. USCIS will not accept requests from individuals who have never been granted deferred action under DACA. USCIS will also not accept or approve advance parole requests from DACA recipients. (please see here for additional details on USCIS guidance)

A group of bipartisan Senators and President Trump have both expressed interest in finding a legislative solution that would provide DACA-recipients protection from removal by the Department of Homeland Security (DHS) and offer them lawful permanent residency with a pathway to citizenship currently not available under DACA. However, there are significant differences that need to be resolved before an agreement can be made. Under President Trump’s proposal, it would provide legal status along with a 10 to 12 year path to citizenship to 1.8 million DACA recipients and DACA eligible first-time registrants. In exchange, the proposal calls for creation of a $25 billion trust fund for border security improvements including a border wall system, restriction of family-based immigration to only the spouse and minor children of citizens and lawful permanent residents, and elimination of the diversity visa lottery. In comparison, the Senate bipartisan Graham-Durbin proposal would also provide legal status and a path to citizenship for DACA recipients and DACA eligible first-time registrants. In contrast with President Trump’s proposal, the Graham-Durbin proposal would add only $2.7 billion in border security spending, continue to allow citizens to sponsor their parents, siblings and unmarried adult children under family-based immigration, and grant renewable work authorization to parents of DACA recipients and DACA eligible first-time registrants.

There are still significant uncertainties with regards to the future of DACA, and PwC Law will continue to monitor and provide additional information as they become available. For current DACA recipients, please contact a member of our team to discuss how the recent USCIS guidance may impact you.

Impact

In the event that a new budget is not agreed upon by February 8th,  the U.S. government will shutdown again. From an immigration perspective, there are several government agencies and departments that will be impacted should this occur.

It is anticipated that the USCIS will continue operations since it is almost exclusively a fee-based agency.  Therefore, USCIS should continue to receive and process work permit petitions, such as H-1Bs and L-1s. United States Customs and Border Protection (CBP) will also remain open since it is considered an essential agency with jurisdiction over the entry through the US border. As such, all ports of entry will remain open. The United States Immigration and Customs Enforcement (ICE) will also continue to enforce immigration laws during any future shutdown.

E-Verify services, which allows employers to determine the eligibility of their employees to work in the US, are likely to become unavailable.  Employers will still be expected to complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements.

Department of Labor (DOL) services, which is not an exclusively fee-based department, will will be affected. Specifically, the DOL will not allow for the filing and processing of all PERM labor certifications and visa categories that have a Labor Condition Application (LCA) component, including H-1Bs, H1B1s, and E-3 petitions.

The Department of State (DOS) will continue to operate the overseas consulates in a limited capacity.   Passport operations will be unaffected however, the consulates may stop issuing visas, unless they are diplomatic visas, or visas required to enter the U.S. for emergent reasons.

The Social Security Administration (SSA) will limit its activities due to the government shutdown. From an immigration perspective, the SSA will not issue new or replacement social security cards.

In the event that another shutdown occurs in February, our office will continue to monitor and provide additional information.

For further details regarding Government shutdown or any other immigration matters, please contact a member of our team at PwC Law LLP.


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US: Federal District Court orders DHS to partially resume the DACA program

Jan 18
12


In brief

On January 9, 2018, a federal district court judge issued an order directing the Department of Homeland Security (DHS) to resume accepting renewal applications from Deferred Action for Childhood Arrivals (DACA) beneficiaries. This order does not apply to new applicants who have never applied for DACA and all DACA-related Advance Parole applications.

Background

On September 5, 2017, the Trump Administration announced its plans to terminate the DACA program on March 5, 2018. United States Citizenship and Immigration Services (USCIS) would reject any initial DACA requests received after September 5, 2017 and would only process renewal DACA applications received on or before October 5, 2017 for DACA recipients whose benefits would expire between September 5, 2017 and March 5, 2018. (see prior alert)

Despite repeated efforts, Congress has yet to reach a deal on the continuation of DACA. On January 9, 2018, a federal district court judge issued an order directing DHS to partially resume the DACA program. As part of the order, the DHS is required to “maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017” except with regards to applicants who have never applied for DACA and all applications for Advance Parole based on DACA. The DHS does not have to process applications relating to those two exceptions.

As part of the district court’s order, the DHS is required to post “reasonable public notice that it will resume receiving DACA renewal applications” and “prescribe a process” for accepting renewal applications. As of January 11, 2018, there have not been any further updates from DHS beyond noting that “more information is forthcoming”.

The Trump Administration has announced its intentions to appeal the ruling and could ask an appellate court to issue an emergency stay of the district court’s order. If a stay is granted, the DHS would not have to abide by the district court’s order.

Recommendations

In light of uncertainties on when and how the DHS will resume accepting renewal DACA applications, we recommend waiting to file DACA-based EAD extension applications until there is clearer guidance from the DHS.

For current DACA recipients, we recommend that they avoid international travel even with valid Advance Parole document. While the DHS has indicated they will honor the validity period for previously approved Advance Parole documents, Customs and Border Protection (CBP) has indicated Advance Parole does not guarantee admission into the US. Also, the DHS may revoke or terminate a grant of Advance Parole at any time.

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

For further details regarding DACA or any other immigration matters, please contact a member of our team at PwC Law LLP.


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US: Department of Homeland Security to Terminate H4 EAD program

Posted by Immigration Law Team|US Immigration
Dec 17
18


In brief

Earlier last week, The US Department of Homeland Security (DHS) announced several regulatory proposals it intends to impose for 2018. Among which, the most impactful changes to employers include termination of H4 EAD program allowing certain spouses of H-1B holders to seek employment, possible restrictions of F-1 OPT program and revising H-1B eligibilities and wages. While the announcement is not specific with regards to dates and details of how these rules will be implemented, we do anticipate that the change with regards to the termination of the H4 EAD program will be implemented in early 2018.

Background

The H-4/EAD Program

In February 2015, the DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who have approved I-140s (Immigrant Petitions).  The rule allowed for eligible H-4 dependent spouses to apply for an Employment Authorization Document (EAD) that would allow them to work.  Prior to this, H-4 dependent spouses from visa retrogressed countries who do not have a visa number available to file their adjustment of status/immigrant visa applications were not legally authorized to seek employment. For Indian-born foreign nationals, this could mean a wait time of around 10 years for a H-4 dependent spouse to seek employment from the time that the H-1B holder obtained an approved I-140.

Since its inception, this rule has been subject to numerous legal challenges. Currently, there is a case pending appeal in the U.S Court of Appeals on this issue. In February 2017, the Trump administration requested the U.S. Court of Appeals to place the case on hold while it reviews the regulation and considers its position. The DHS announcement last week is the clearest indication that it intends to terminate the H-4 EAD program. However, we do not have any details with regards to the time frame or how DHS intends to implement the program’s termination.  

F-1 OPT

Currently, a foreign national attending US schools under F-1 status have the ability to receive Optional Practical Training (OPT), a temporary employment that is directly related to a F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies and/or after completing their academic studies. In cases where students earned degrees in certain science, technology, engineering and math (STEM) fields, students can apply for an additional 24 months of post-completion OPT on top of the 12 months afforded to non-STEM students. The DHS announcement is vague as to the specifics of how F-1 OPT will be affected by the new regulatory changes beyond increased oversight of schools and students to ensure compliance with requirement of the program.

H-1B eligibility

The DHS announcement proposes revising the definition of “specialty occupation” for H-1B eligibility to “increase the focus on truly obtaining the best and brightest” foreign nationals, and revising the definition of employment and employer-employee relationship to better protect US workers and wages. While it is unclear how the new regulatory language will be revised, this announcement fits the pattern of higher scrutiny on H-1B petitions that we have been experiencing since the Trump administration came into office. Specifically, we are seeing a higher than usual number of Request for Evidence (RFE) issued by USCIS for standard H-1B applications which were rarely seen in previous years.   

Recommendations

With regards to employees working on H4 EAD, we recommend employers put these employees into alternative employment-based visa categories in anticipation of the H4 EAD program terminating in early 2018. Without an alternative employment-based visa, these employees will lose their work authorization following the formal termination of the H4 EAD program subject to any grace period. For foreign nationals working on H4 EAD that do not qualify to for L-1, TN, E-3, H-1B1 and O-1 visas, they should be placed in the FY 2019 H-1B cap lottery in hopes that they may be selected for the cap lottery to allow them to work sometime after October 1st, 2018.

With regards to employees currently working on F-1 OPT and H-1B, we do not currently have sufficient information to provide a detailed recommendation. We will closely monitor any new release from the US government and will issue a more detailed recommendation when we have further information.

For more information on the H-4 EAD, F-1 OPT and H-1B program, or any other immigration matters, please contact a member of our team.


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US: US Supreme Court allows enforcement of travel ban

Posted by Immigration Law Team|US Immigration
Dec 17
4


In brief

On Monday, December 4, 2017, the US Supreme Court issued orders allowing the third version of President Trump’s travel ban (see prior alert) to take effect until the appeals process has been completed. The orders stayed the prior October preliminary injunctions, which temporarily blocked the implementation of the travel ban.

Discussion

On September 24, 2017, President Trump signed a Proclamation imposing indefinite travel restrictions on citizens of Chad, Iran, Libya, Somalia, Syria, Yemen, and North Korea, and barring entry into the US by certain Venezuelan government officials and their immediate families. In October, Federal District Courts in Hawaii and Maryland issued nationwide orders against enforcement of the Presidential Proclamation. Today’s Supreme Court orders stayed the preliminary injunctions, thereby allowing the travel ban to be enforced.

The orders do not address the merits of the legal challenges to the travel ban, which will be addressed when two US Courts of Appeals hear arguments later this week. Specifically, the US Court of Appeals for the Ninth Circuit will hear oral arguments on December 6, 2017 and the US Court of Appeals for the Fourth Circuit will hear oral arguments on December 8, 2017.

Impact and Recommendations

Citizens of impacted countries who are already present in the US and are in valid immigrant or nonimmigrant status are advised to seek US immigration counsel prior to departing the US, since there may be restrictions from re-entering the US.

The country specific restrictions listed in the September 24 Presidential Proclamation are as follows:

 

            Country Nonimmigrant Visas    Immigrant and Diversity  Visas
            Chad No B-1, B-2, and B-1/B-2 visas    No immigrant or diversity visas
            Iran No nonimmigrant visas except F, M, and J student visas    No immigrant or diversity visas
            Libya No B-1, B-2, and B-1/B-2 visas    No immigrant or diversity visas
            North Korea No nonimmigrant visas    No immigrant or diversity visas
            Syria No nonimmigrant visas    No immigrant or diversity visas
            Venezuela No B-1, B-2, or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members    No restrictions
            Yemen No B-1, B-2, and B-1/B-2 visas    No immigrant or diversity visas
            Somalia Subject to additional scrutiny    No immigrant or diversity visas

Please note that there may still be additional scrutiny imposed on citizens of Iraq.

Waivers may be granted on a case-by-case basis. US immigration counsel should be sought for assessment of waiver eligibility.

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

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


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US: Presidential Proclamation on the Travel Ban – Courts temporarily block implementation

Posted by Immigration Law Team|US Immigration
Oct 17
18


In brief

Federal courts issue temporary restraining order blocking travel ban which would have restricted individuals from certain countries from entering the U.S.

Discussion

President Trump signed a Proclamation on 24 September 2017, imposing new indefinite travel restrictions on citizens of Chad, Iran, Libya, Somalia, Syria, Yemen, and North Korea.  The Proclamation also barred entry into the US by certain Venezuelan government officials and their immediate families.  The travel restrictions were set to take effect in full on 18 October 2017.

On October 17, 2017, Federal District Courts in Hawaii and Maryland issued nationwide orders against enforcement of the Presidential Proclamation.  Both judges found that the challengers to the Proclamation were likely to win their claim that the restrictions exceeded the President’s power.

The travel restrictions on certain Venezuelan government officials and on nationals of North Korea remain in place.

To learn more about the Proclamation, please visit our prior alert.

Impact and Recommendations

Citizens of Chad, Iran, Libya, Somalia, Syria, and Yemen can continue to apply for visas and apply for entry into the United States.  However, the Trump Administration is expected to appeal the District Court rulings which could lead to the restrictions being enforced.

Nationals of the countries listed still remain subject to higher scrutiny security checks under the Administration’s extreme vetting policies.

Caution is still advised to those from the affected countries, whether they are in the US and seek to travel internationally, or are currently outside the US and will be seeking re-entry.  US immigration counsel should be sought before any travel.

For further details, please contact a member of our team.


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US: USCIS has resumed Premium Processing for all H-1B petitions

Posted by Immigration Law Team|US Immigration
Oct 17
6


In Brief

As of October 3, 2017, USCIS has resumed premium processing for all H-1B petitions.

Discussion

USCIS’ premium processing service guarantees a 15 calendar day processing time for certain petitions filed at a Service Center, including H-1Bs, L-1s, and certain I-140 petitions. In April, USCIS suspended premium processing for all H-1B petitions for up to a six month period. At the 2017 AILA Annual Conference, representatives of USCIS confirmed that the reason for the suspension of premium processing was to allow adjudicators to focus on adjudicating backlogged H-1B extension cases. With 69% of H-1B petitions being premium processed, and therefore moved to the front of the line, USCIS adjudicators did not have the ability to focus on, and adjudicate, backlogged cases. Although premium processing offers a significant source of revenue for USCIS, the agency made the decision to temporarily suspend the service and then reintroduce it in a phased approach, to avoid an insurmountable surge in caseload. As a result, in June, USCIS resumed H-1B premium processing under the Conrad 30 Waiver program and, in July, it resumed premium processing for certain cap-exempt H-1B petitions. In September, USCIS resumed premium processing for H-1B petitions subject to the annual cap. Finally, on October 3, USCIS announced that it resumed premium processing for all H-1B petitions, including H-1B extensions, amendments, and change of employer petitions.

Impact

Premium processing has been a very important part of the H-1B program and its resumption is significant for employers and employees alike. Below are some examples of how the ability to premium process cases is beneficial to both employers and employees:

–  Premium processing allows for employers to know which cap-subject beneficiaries are approved well in advance of the October 1 start date, thus assisting with workforce planning
–  Cap-subject H-1B workers can know whether they have approved H-1B employment in advance of the October 1 start date
–  Employers can know whether an H-1B change of employer case is approved before having to accrue onboarding costs
–  H-1B workers can move to a new employer with some certainty that their H-1B change of employer case has been approved
–  H-1B workers with expiring driver’s licenses can apply for driver’s license renewals from those states that make it difficult to obtain a driver’s license without an H-1B approval notice
–  H-1B workers who have international travel plans can obtain an H-1B approval prior to departing the US, thus facilitating H-1B visa processing and re-entry into the US

For more information on how the premium processing service may be utilized, please contact a member of our team at
PwC Law LLP.


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US: Presidential Proclamation on the Travel Ban

Posted by Immigration Law Team|US Immigration
Sep 17
26


In brief

President Donald Trump signed a Proclamation on September 24, 2017, imposing new indefinite travel restrictions on citizens of Chad, Iran, Libya, Somalia, Syria, Yemen and North Korea.  Entry into the US by certain Venezuelan government officials and their immediate families is also barred.  The travel restrictions will take effect on October 18, 2017, with certain sections of the Proclamation already in effect as of September 24, 2017.

Background

In an effort to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with US immigration screening and vetting systems, President Trump has issued a new proclamation.  In order to support the US Government’s ability to confirm the identity of individuals seeking entry into the US as immigrants and nonimmigrants, a baseline of the necessary information required by foreign governments was established in a review produced by the Secretary of Homeland Security, the Secretary of State, and the Directory of National Intelligence.

The three categories that incorporate this baseline are: (1) identity-management information, (2) national security and public-safety information, and (3) national security and public-safety risk assessment. DHS collected information and evaluated each country against the baseline. DHS identified 47 countries as either “inadequate” or “at risk” and encouraged all foreign governments to improve their performance with respect to the baseline. After the 50-day engagement period, DHS identified the following countries as still being “inadequate” in respect to the baseline: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Somalia was also identified as a country that falls short of the baseline for identity-management information. It was also identified as a terrorist safe haven. On September 24, 2017 President Trump suspended entry for certain nationals of the 7 countries identified. For nationals of Somalia, entry as immigrants is suspended and applications for nonimmigrant visas will be subject to additional scrutiny.

These restrictions will be reevaluated against the baseline in 180 days from September 24, 2017 and every 180 days thereafter.

Impact

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

–  Foreign nationals from Sudan are no longer included in the travel restriction
–  The travel restrictions are indefinite
–  The restrictions are targeted at countries that the DHS says fail to share sufficient information with the US or have not taken the necessary security precautions
–  Citizens of Iraq will not be subject to the travel restrictions but will face enhanced screening and vetting requirements.

The following chart provides a country-by-country breakdown of the new travel restrictions:

Country Nonimmigrant Visas      Immigrant and Diversity Visas
Chad No B-1, B-2, and B-1/B-2 visas      No immigrant or diversity visas
Iran No nonimmigrant visas except F, M, and J student visas      No immigrant or diversity visas
Libya No B-1, B-2, and B-1/B-2 visas      No immigrant or diversity visas
North Korea No nonimmigrant visas      No immigrant or diversity visas
Syria No nonimmigrant visas      No immigrant or diversity visas
Venezuela No B-1, B-2, or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members      No restrictions
Yemen No B-1, B-2, and B-1/B-2 visas      No immigrant or diversity visas
Somalia Subject to additional scrutiny      No immigrant or diversity visas

Please note that the Proclamation does allow for the granting of waivers on a case-by-case basis. US immigration counsel should be sought for assessment of waiver eligibility.

Recommendations

Citizens of Chad, Iran, Libya, Somalia, Syria, Yemen and North Korea who already have travel plans to the US and a valid nonimmigrant visa or immigrant status are advised to enter the US before October 18, 2017. Citizens of these countries who are already present in the US and are in valid immigrant or nonimmigrant status are advised not to leave the US after October 18, 2017, as they may be barred from reentering. 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 Proclamation, or any other immigration matters, please contact a member of our team.


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US: Department of Homeland Security (DHS) will be winding-down the Deferred Action for Childhood Arrivals (DACA) program

Posted by Immigration Law Team|US Immigration
Sep 17
6


 

In brief

In a statement on September 5, 2017, President Donald Trump announced that the Department of Homeland Security (DHS) will be winding-down the Deferred Action for Childhood Arrivals (DACA) program.

Background

Enacted by former President Barack Obama in 2012, DACA granted two distinct benefits to foreign nationals who entered the US before the age of sixteen without valid status or who overstayed their valid status. Foreign nationals who were enrolled in high school or a GED program, have obtained a high school degree, or completed a GED program were eligible to request protection from deportation and employment authorization

Impact

Pending applications for initial DACA requests that were received by Tuesday, September 5, 2017, will continue to be processed.  Any applications received after this date will not be processed.

Individuals who have already been granted DACA benefits that will expire between September 5, 2017 and March 5, 2018 should submit DACA renewals before October 5, 2017 in order to extend their benefits for an additional two years.  Applicants who have already filed renewals should expect the benefits to be processed per the standard timeframes.

All existing DACA approvals and associated Employment Authorization Documents (EADs) will be honored until their date of expiration.

Recommendation

We recommend that eligible DACA recipients timely file extensions and all limit their international travel, regardless of whether they have an approved Advance Parole document. If international travel cannot be avoided, a consult with an attorney is highly recommended to discuss the risks.

In the meantime, President Trump has advised DHS that DACA recipients continue to remain a low enforcement priority, unless they are criminals, involved in criminal activity, or members of a gang. The President has asked Congress to legislate the question of DACA benefits within the next six months, and has subsequently announced that he will “revisit” DACA if Congress has not acted.

For further details regarding the recent change in policy regarding DHS and DACA, or any other immigration matters, please contact a member of our team.


Posted by Immigration Law Team » No Comments »