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.


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US: Interviews to be required for all Employment-Based Green Card Applicants

Posted by Immigration Law Team|US Immigration
Aug 17
30


In brief

United States Citizenship and Immigration Services (USCIS) has confirmed that as of October 1, 2017, an interview will be required for all employment-based green card applicants. This includes applicants in the EB-1, EB-2 and EB-3 visa categories. Interviews will also be required for individuals requesting refugee and asylee status.

Background

The law currently provides that all green card applicants should be interviewed unless USCIS waives the interview.  For many years USCIS’s policy has been to waive interviews for employment-based green card applicants where: (1) the applicant is employed by the same petitioner who submitted the approved underlying employment-based visa petition; (2) the applicant has been approved as a person of extraordinary ability or exceptional ability; or (3) the applicant has been approved as a multinational executive/manager and has a continuing offer of employment from the same petitioner who submitted the underlying approved petition. This policy resulted in a majority of employment-based green card applicants having the interview requirement waived.

As part of President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States”, USCIS has confirmed that there is now a new directive whereby all employment-based green card applicants will be required to appear for an interview prior to the adjudication of their green card applications.

Impact

On October 1, 2017, USCIS will begin to schedule interviews for employment-based green card applicants and refugee/asylee petitions. USCIS is also planning on an incremental expansion of interviews for other types of green card applicants in the future.

The USCIS has not yet clarified whether the interview requirements will be mandated for existing cases, or whether the interview requirements apply only to new applications.  We expect further guidance from the USCIS will be released in the coming weeks.

This new directive will impact approximately 180,000 people a year and is likely to increase processing times for employment-based green card applications.  To mitigate the delay in processing times , USCIS plans to implement enhancements in training and technology, and transition certain aspects of case management.

Recommendation

Should you receive a notification that an interview has been scheduled for your permanent residency matter, applicants are encouraged to reach out to their legal counsel for support and further guidance.  While PwC Law should receive all notifications of scheduled interviews for applications it has filed, there is no guarantee that we will always receive them, so it is imperative for applicants to stay vigilant and let PwC Law know immediately when a notice has been received.  

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

For further details regarding the recent change in policy regarding green card interviews, or any other immigration matter, please contact a member of our team.


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US: Proposal for immigration reform receives endorsement from President Trump

Posted by Immigration Law Team|US Immigration
Aug 17
3


On August 2, 2017, President Donald Trump provided an endorsement of a new bill in the Senate intended to reform the current employment-based immigration system and reduce certain non-employment categories within the current immigration framework.

The Reforming American Immigration for Strong Employment Act (the RAISE Act) is a modified version of a bill previously introduced by Republican Sens. Tom Cotton (AR) and David Perdue (GA) which would replace the current employment-based immigration system with a skills-based points system.  President Trump heralded the RAISE Act as prioritising immigrants based on skills while safeguarding the interests of American workers.

The RAISE Act would eliminate the Diversity Visa lottery program and limit refugees offered permanent residency to 50,000 per year.  Family-based immigrant categories offering permanent residency to extended family and grown adult family members of US residents would also be eliminated under the RAISE Act, and a renewable temporary visa would be established for US residents who need to bring elderly parents to the US for care taking purposes.  Spouses and minor children of US residents would continue to be eligible to immigrate.The RAISE Act would also condition naturalisation on the immigrant fulfilling its obligation to reimburse the federal government for means-tested public benefits, as required under current law, and immigrant households arriving through the points system would be ineligible for federal means-tested benefits for a period of 5 years.

The RAISE Act would fundamentally change the current immigration system, and estimates project a 50% reduction in overall immigration levels over 10 years, primarily by slashing immigrants entering the US through family connections.  Though touted as prioritizing skills-based immigration, the proposal would maintain the current levels of employment-based immigration at 140,000 per year.  Modeled after the merit-based immigration system used by Canada and Australia, the RAISE Act’s immigration system would award points for education, age, English proficiency, extraordinary achievement, high-paying job offers, and entrepreneurial initiative.

Under the points-based system, applicants would require a minimum number of points to enter the pool of potential immigrants from which U.S. Citizenship and Immigration Services (USCIS) would invite the highest scorers to file applications every six months.  To be eligible to enter the applicant pool, immigrants without a degree higher than a bachelor’s would require a job offer with an annual salary of at least 150 percent of the median household income in the State in which the applicant will be employed.

Although the prospects of the proposed bill appear to be limited, the endorsement may draw increased attention to legislative efforts to modify the existing immigration laws.  While the RAISE Act would have the effect of increasing the proportion of employment-based green cards through cutting other family-based categories, actual employment-based immigration levels would remain largely unchanged.

As changes within the political and immigration landscape in the US continue to develop, PwC Law LLP will remain at the forefront of these changes and keep our clients informed. The reforms proposed in the RAISE Act face opposition from both parties in Congress, and in the unlikely event that the legislation succeeds, the implementation of such changes would not be immediate. Understanding the impact of future policy changes on businesses is essential to making strategic decisions from a global mobility perspective, and PwC Law will ensure clients are kept abreast of any developments.

For further details regarding the recent immigration proposals, or any other immigration matter, please contact a member of our team.


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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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