United States: Business Immigration Monthly - February 1, 2017

PRESIDENT TRUMP ISSUES THREE EXECUTIVE ORDERS ON IMMIGRATION

President Donald Trump issued three Executive Orders regarding immigration during his first week in office. The following is an overview of these executive orders:

  1. Bans immigrant and nonimmigrant entries for at least 90 days for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. For those foreign nationals already present in the United States, immigrant benefits filed during this suspension period may also be delayed and impacted. (Please see below for additional details).
  2. Requires in-person interviews for most nonimmigrant visa applicants by suspending the Visa Interview Waiver Program (VIWP). In the past, the VIWP allowed consular officers to waive the interview requirements for applicants seeking to renew nonimmigrant visas within 12 months of the expiration of the initial visa in the same classification. The suspension of the VIWP is expected to significantly impact consular workloads and will extremely increase the processing times for nonimmigrant visa applications. This provision does not specifically affect the Visa Waiver Program (VWP) which allows certain nationals from 37 countries to enter the United States as visitors for business or pleasure for up to 90 days without first obtaining a visitor's visa after submitting certain biographical information through the DOS' Electronic System for Travel Authorization (ESTA).
  3. Directs all federal agencies to develop screening procedures and standards for all immigration benefits to identify fraud and to detect whether a person intends to do harm. These agencies are also directed to create a process to evaluate an individual's "likelihood of becoming a positively contributing member of society" and "ability to make contributions to the national interest." Because the standards are not required by law and can be extremely subjective, they may create significant and possibly insurmountable barriers for some foreign nationals to obtain immigration benefits.
  4. Directs agencies to expedite the completion and implementation of a biometric entry-exit system. DHS already implemented the biometric entry part in 2006. However, the biometric exit system has been delayed by numerous obstacles and logistical issues with airline carriers and airports and other ports of entry.
  5. Directs the hiring of an additional 10,000 Immigration and Custom Enforcement (ICE) officers and 5,000 additional Border Patrol agents to conduct enforcement, security and removal operations.
  6. Directs the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to ensure that cities, counties and states that limit their cooperation with DHS with its immigration enforcement activities are not eligible to receive federal grants, except as deemed necessary for law enforcement purposes.
  7. Directs DOJ and DHS to direct adequate funds to criminal prosecutions of foreign nationals crossing the border without inspection.
  8. Instructs DHS to issue regulations to collect all penalties authorized from "unlawfully present" non-citizens and "those who facilitate their presence" in the United States.
  9. Directs DHS to take immediate steps to allocate available funds to start constructing a physical wall on the southern border and to create a long-term funding plan for the wall.
  10. Directs DHS to immediately end "catch and release" of individuals caught entering the United States without inspection and to ensure that individuals in removal proceedings are detained to the maximum extent of law, whether they are merely awaiting their court hearing or have a final order of deportation.
  11. Directs DHS to immediately construct detention facilities at or near the southern border and to assign asylum officers and immigration judges to these detention facilities to conduct asylum interviews and removal proceedings.
  12. Directs DHS to expand "expedited removal" to the maximum extent allowed by law. Expedited removal allows DHS officers to deport individuals without ever seeing an immigration judge with no guarantee of legal counsel and little chance to obtain representation from detention.
  13. Directs the Attorney General to prioritize the criminal prosecution of any offense with a nexus to the southern border, including non-violent offenses such as unlawful entry.
  14. Suspends the U.S. Refugee Admissions Program for 120 days, except if it is the national interest and the foreign national does not pose a security risk.
  15. Reduces the number of U.S. refugee admissions from 110,000 to 50,000, which is the lowest level in a decade.
  16. Halts the processing and admission of Syrian refugees indefinitely until the President determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.

All of the Executive Orders will have to be interpreted by the affected federal agencies. However, agencies may implement the terms of the Executive Orders without notice to the public. During the weekend of January 28th, Customs and Border Protection (CBP) began to implement without notice to the public the part of the Executive Order banning immigrants and nonimmigrants born in Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for at least 90 days, regardless of whether they were citizens or permanent residents of other countries. CBP detained hundreds of immigrants (a.k.a. "green card" holders) and nonimmigrants who were born in Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen as they attempted to enter the United States. Four courts across the United States issued orders for these individuals who had valid green cards or nonimmigrant visas to be released. On Sunday, January 29, after major protests at airports across the country and significant negative media coverage, DHS issued a statement that green card holders will not be subject to the bar, subject to national security checks at the ports of entry that may delay entry. The U.S. Department of State (DOS) has also been cancelling nonimmigrant visa interviews for individuals born in the affected countries. Additionally, although not officially confirmed by DHS, there has been indication from United States Citizenship and Immigration Services (USCIS) officers that DHS issued a directive that the adjudication of immigration benefits (e.g. EAD cards, nonimmigrant petitions, etc.) for individuals from the affected countries is also suspended. Therefore, our firm is advising all nonimmigrants who were born in the affected countries and who are currently in the United States to not travel internationally during the 90+ day suspension period. If they do travel internationally during this period, they will be prevented from reentering the United States. Our firm is also advising green card holders who were born in these affected countries to not travel internationally. However, if green card holders who were born in these affected countries do travel internationally, they should anticipate a significant delay when reentering the United States as CBP may want to complete a national security check prior to admission.

Additional information about the interpretation and implementation of these Executive Orders that were released during President Trump's first week in office will be contained in our Firm's future Immigration Updates when they become available. Information about additional Executive Orders issued by President Trump affecting immigration will also be provided in our Firm's future Immigration Updates when the Executive Orders are released.

DOS RELEASES FEBRUARY 2017 VISA BULLETIN

DOS recently released the February 2017 Visa Bulletin. As expected, there was very little movement in the Final Action priority dates for most of the employment-based categories. The most significant movement in the Final Action priority dates was in the EB-3 World category and the EB-3 Filipino category. The EB-3 World category advanced by approximately two months to October 1, 2016 and the EB-3 Filipino category advanced by approximately three months to October 15, 2011. However, the EB-2 Indian national category did not advance at all. USCIS has indicated that it will continue to use the Final Action priority dates in order to determine if applicants with employment-based cases are able to file for Form I-485 Adjustment of Status.

The following is a comparison of priority date movement over the past few years:

Sept 2012 May 2013 Jan 2015 Feb 2016 Sep 2016 Oct 2016 Nov 2016 Feb 2017
EB-2 China U 05/15/08 02/01/10 03/01/12 01/01/10 02/15/12 07/15/12 11/15/12
EB-3 China 12/15/05 12/01/07 03/01/11 10/01/12 01/01/10 01/22/13 04/15/13 10/01/13
EB-2 India U 09/01/04 02/15/05 08/01/08 02/22/05 01/15/07 11/01/07 04/15/08
EB-3 India 10/08/02 12/22/02 12/15/03 06/15/04 02/15/05 03/01/05 03/08/05 03/22/05
EB-3 Other Workers 10/01/06 12/01/07 06/01/13 10/01/15 05/01/16 06/01/06 07/01/16 10/1/16

Additional information about the movement of the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates when they become available.

DEPARTMENT OF EDUCATION DE-RECOGNIZES SCHOOL ACCREDITATION AGENCY – ITS IMPACT ON IMMIGRATION PROCESSES

On December 12, 2016, the Secretary of the Department of Education (DOE) upheld a decision to cease the recognition of the Accrediting Counsel for Independent Colleges and Schools (ACICS). The ACICS has accredited approximately 200 post-secondary educational institutions that have more than 800,000 students enrolled, of whom approximately 16,000 are international students. The Secretary's decision is considered final and officially starts an 18-month time period for colleges and universities accredited by ACICS to find another accreditor. If ACICS challenges the Secretary's decision in court, the court challenge does not change the timeline for the ACICS accredited institutions to find another accreditor, unless a federal court stays the Secretary's decision or subsequently orders ACICS' accreditation to be reinstated.

The withdrawal of the accreditation of ACICS may affect international students who are attending or who have graduated from an ACICS accredited institution, unless the institution finds a new accreditor prior to the withdrawal of the ACICS accreditation, in the following ways:

  1. In order to be eligible for H-1B status, an individual must possess at least a U.S. Bachelor's Degree or its academic or work experience equivalent in a field that is related to the offered position. The individual's academic background must be from an accredited institution. Therefore, if an individual obtains his/her degree after the accreditation of the ACICS is withdrawn and his/her school has not obtained other accreditation, the degree will not be able to be used for H-1B purposes. However, if the degree was obtained while the school was still accredited but the school subsequently loses its accreditation, the degree may still be used for H-1B purposes.
  2. In order to qualify for the U.S. Master's or Higher Degree exemption from the H-1B quota (a.k.a. advanced degree exemption), the school where the individual obtained the U.S. Master's Degree or Higher Degree must be accredited at the time that the USCIS receives the H-1B petition requesting this exemption.
  3. If an F-1 student will be requesting STEM Optional Practical Training (OPT), the F-1 student's school where he/she obtained the degree that qualifies him/her for the STEM OPT status must be accredited on the date that the USCIS receives the STEM OPT application.

Additional information about the de-recognition of ACICS by the DOE and its effect on the eligibility for various immigration benefits will be contained in our firm's future Immigration Updates when it becomes available.

SEVP INFORMS SCHOOL THAT IT WILL WITHDRAW ITS SEVIS ACCESS

On January 18, 2017, SEVP informed officials at Westlake Preparatory School that the school's SEVIS access will terminate as of March 31, 2017. As of January 23, 2017, the school was no longer able to issue any new Forms I-20. The school's current F-1 students have until March 31, 2017, to take one of the following actions:

  1. Seek transfer to another SEVP-certified institution, if eligible;
  2. Change their status to another nonimmigrant status; or
  3. Depart the United States.

SEVP stated that if one of these actions is not completed within this time frame, the student's record will be terminated in SEVIS and the student will be considered to be out of status. Students in Initial Status who have not yet entered the United States will not be admitted into the United States with the Form I-120 issued by the school.

DHS RELEASES INTERNATIONAL ENTREPRENEUR RULE

Prior to the end of the Obama administration, DHS released a final regulation to implement DHS' discretionary parole authority in order to increase and enhance entrepreneurship, innovation and job creation in the United States. The final rule adds new regulatory provisions guiding the use of parole on a case-by-case basis with respect to entrepreneurs of startup entities who can demonstrate a potential for rapid business growth and job creation that would provide a significant public benefit to the United States. Such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments or obtaining significant awards or grants from certain government entities. The parole would be issued initially for a period of 30 months which may be extended by up to an additional 30 months.

The final rule is scheduled to become effective on July 17, 2017. However, the Trump administration has indicated through Executive Order that it wants to limit the authority of DHS to parole foreign nationals into the United States. The implementation of this final regulation may be affected by that Executive Order so that it is never implemented by USCIS. Additionally, Congress may seek to overturn this new regulation. Therefore, it is uncertain if this new regulation will be ultimately implemented.

Additional information about whether DHS will ultimately implement this regulation will be contained in our firm's future Immigration Updates when it becomes available.

DHS ELIMINATES A SPECIAL PAROLE POLICY FOR ARRIVING CUBAN NATIONALS

On January 12, 2017, DHS rescinded a special parole policy for Cuban nationals called the "Wet-foot/Dry-foot" policy. This policy generally refers to an understanding under which Cuban migrants traveling to the United States who are intercepted at sea ("wet-foot") are returned to Cuba or resettled in a third country while those who make it to the United States soil ("dry-foot") are able to request parole and, if granted, lawful permanent resident status under the Cuban Adjustment Act. Under the Cuban Adjustment Act of 1966, the status of any Cuban national may be adjusted to that of a lawful permanent resident if he/she:

  1. Was inspected and admitted or paroled into the United States;
  2. Has been physically present in the United States for at least one year; and
  3. Is otherwise admissible.

The DHS order ends this policy.

Additionally, DHS announced that it is modifying its long standing policy that Cuban nationals are exempt from being removed through expedited removal proceedings. DHS stated that in light of recent changes in the relationship between the United States and Cuba, DHS determined that such exemptions for Cuban nationals are no longer warranted. DHS stated that Cuban nationals who are now apprehended at ports of entry or near the border may be placed into expedited removal proceedings in the same manner as foreign nationals from other countries.

Finally, DHS indicated that it will no longer accept parole applications from medical professionals under the Cuban Medical Professional Parole Program. This program which has been in place since August 11, 2006, allows certain Cuban medical personnel in third countries other than Cuban or the United States to apply for parole. DHS indicated that it will no longer exercise its parole authority under this program.

EMPLOYERS MUST USE NEW FORM I-9

The USCIS published a new version of the Form I-9 on November 14, 2016. Employers must begin using the new version, dated November 14, 2016, by January 22, 2017. Employers must stop using the Form I-9 with a revision date of March 8, 2013 by January 21, 2017. The revised Form I-9 is easier to complete on a computer. Enhancements include: drop-down lists and calendars for filling in dates; on-screen instructions for each field; easy access to the full instructions; revisions to Section 1 requesting "other last names used"; streamlined certification for certain foreign nationals; prompts to ensure information is entered accurately; ability to enter multiple preparers and translators; a dedicated area for including additional information rather than having to add it in the margins; and a supplemental page for the preparer/translator.

USCIS REACHES H-2B CAP FOR THE FIRST HALF OF FISCAL YEAR 2017

On January 12, 2017, USCIS reported that it has reached the H-2B cap for the first half of Fiscal Year 2017. The final receipt date for new H-2B petitions was January 10, 2017 requesting an employment start date before April 1, 2017. The USCIS will reject any new H-2B petitions received after January 10, 2017 with an employment start date before April 1, 2017 (which is the date on which the H-2B cap for the second half of Fiscal Year 2017 opened).

USCIS PROPOSED RULE ON MODERNIZATION OF EB-5 PROGRAM

DHS has proposed amendments to the EB–5 immigrant investor classification and associated regional centers to reflect statutory changes and modernize the EB–5 program. In general, under the EB–5 program, individuals are eligible to apply for lawful permanent residence in the U.S. if they make the necessary investment in a commercial enterprise in the U.S. and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. This proposed rule would change the EB–5 program regulations to reflect statutory changes and codify existing policies. It would also change certain aspects of the EB–5 program in need of reform. DHS proposes the following major revisions to the EB–5 program regulations. 

  • Priority date retention - DHS proposes to authorize certain EB–5 petitioners to retain the priority date of an approved EB–5 immigrant petition for use in connection with any subsequent EB–5 immigrant petition.
  • Increases to the investment amounts – DHS is proposing to increase the minimum investment amounts for all new EB–5 petitioners. The increase would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990.

    • The DHS proposes to initially increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million.
    • For those investors seeking to invest in a new commercial enterprise that will be principally doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million, which is 75 percent of the proposed standard minimum investment amount.
  • Reforming the Targeted Employment Area (TEA) designation process.

    • The DHS proposes to allow any city or town with high unemployment and a population of 20,000 or more to qualify as a TEA.
    • The DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas. Instead, the DHS would make such designations directly, using defined standards.
  • Changes to the process for removing conditions – The following additional proposals have been made:

    • An immigrant investor's spouse and children would be required to file separate Form I-829 petitions when they are not included in the Form I-829 filed by the immigrant investor.
    • USCIS would be permitted to schedule an interview at the USCIS office holding jurisdiction over either the immigrant investor's commercial enterprise, the immigrant investor's residence, or the location where the Form I-829 petition is adjudicated.
  • Revisions to Form I-526, Immigrant Petition by Alien Entrepreneur.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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