Trump’s Tougher Visa Screening Rules

March 27th, 2017

According to the NY Times, the U.S. Department of State (DOS) has sent four diplomatic cables to consular posts abroad instructing them to increase scrutiny for some visa applicants, implementing a memo that President Donald Trump signed along with his revised travel ban executive order. This increased scrutiny does not apply to citizens of 38 countries – including most of Europe, Australia, New Zealand, Japan and South Korea – who are eligible for the visa waiver program that does not require a foreign national to obtain a visa to enter the US. Citizens from countries from the Middle East or Africa may not benefit from the visa waiver program.

For people from six predominantly Muslim countries (Sudan, Syria, Somalia, Libya, Yemen and Iran), stricter security checks will be applied as well. Two travel bans affecting citizens from these countries have been suspended by US courts. The March 15th cable also noted that there should be increased scrutiny for applicants from Iraq.

The extra scrutiny will include questioning about a foreign national’s background and require information about one’s social media history if that person has ever been in territory controlled by the Islamic State. The March 15th cable states that the follow areas of inquiry may include the applicant’s travel history, addresses and work history for 15 years and all phone numbers, email addresses and social media handles used by the applicant in the last five years. The March 17th cable though provides that consular officials should not commence questioning about the 15-year travel and work histories until the DOS receives authorization from the Office of Management and Budget. It is not clear why such permission has not yet been granted.

The cables do not make clear who will be the focus of the extra scrutiny and the US DOS leaves it to the discretion of consular officials. Immigration advocates claim that they are concerned about people being profiled because of their nationality or name. Also, they are concerned that such enhanced scrutiny will increase the likelihood of visa denials and slow down an already backlogged approval process that can take months or even years in some cases.

Delay in Processing of H4/EADs Filed with H-1Bs via Premium Processing

March 24th, 2017

The Nebraska Service Center of USCIS has announced that there will be delays in processing Form I-539s requesting an extension of H-4 status and I-765s requesting the employment authorization document (EAD) filed concurrently with the H-1B spouse’s extension petition through premium processing. The NSC has been overwhelmed with premium processing (I-907) requests for H-1Bs (and attendant I-539s for extensions) because of the announcement of USCIS several weeks ago that it was suspending premium processing for all H-1Bs as of April 3, 2017. USCIS claims that it is taking such action to reduce its enormous backlog in pending H-1B petitions that were filed traditionally. My office has noticed that traditional H-1B petitions can take more than one year.

Federal Judge Upholds H-1B Visa Lottery Program

March 21st, 2017

A federal district court in Oregon upheld USCIS’s randomized computer lottery system for H-1B visas. It rejected arguments by the class-action plaintiffs that the lottery system violates immigration law by not providing a waiting list.

In addition to a waiting list, some have proposed a weighted lottery system whereby petitioners rejected in prior years get priority in the lottery. Petitioners can file multiple consecutive years and often do until the beneficiary runs out of nonimmigrant status and employment authorization in the US. An example is an F-1 student working pursuant to F-1 optional practical training (OPT). Such F-1 student may initially obtain one year of post graduation OPT and then may be eligible for two more years of OPT if they fall within one of the STEM fields. Once this OPT expires the F1 can try reenrolling an another F-1 program and requesting immediate curricular practical training that allows them to work while studying.

TN Status Remains for Nurses

March 21st, 2017

US Customs and Border Protection (US CBP) has not changed its policy on admitting nurses as TNs (Treaty Nafta). The following is a statement from US CBP issued on March 17, 2017:

U.S. Customs and Border Protection has not had any policy changes that would affect TN status. One of the most common issues CBP sees is improper paperwork presented by the traveler in relation to the position classification they are applying under. Another common issues is the lack of proper documents needed to grant a TN nonimmigrant classification. Each application for TN status is evaluated by the inspecting officer, and the decision is made on the totality of the evidence provided. Every application for TN status is a separate inspection, and the decision to approve or deny is based on the merits of that individual case. Under title 8 of the code of regulations (8 CFR) Part 214 appendix 1603.D.1 it lists Registered Nurse—with a state/provincial license or Licenciatura Degree as an acceptable classification to obtain a TN nonimmigrant classification as a Canadian or Mexican citizen. Below are a few tips for registered nurses for a smooth TN Processing:

Canadian citizens do not need a visa for the TN classification
Diploma showing related education
Letter from Employer for TN Applicants to include the following information:
Name of employer
Position in the company
List of the nature of the job duties
Length of stay in the U.S.
Amount they are being paid
Evidence of education qualifications
Must be on company letterhead with original signatures
For registered nurse TN applicants, they must present a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) – Often referred to as a VisaScreen

USCIS Announces Adjustment of Status Filing Dates for April 2017

March 19th, 2017

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for April 2017. Those applicants filing employment-based Forms I-485 should use the final action date chart while those filing based on an family immigrant visa petition (I-130) should refer to the filing date chart.

Trump’s Second Travel Ban Blocked by Two Federal Courts

March 17th, 2017

On March 15, 2017, a federal district court in Hawaii temporarily blocked Trump’s second travel ban finding that it violated the US Constitution’s Establishment Clause of the First Amendment and that the Trump administration failed to provide sufficient evidence of a threat to national security. In particular, Judge Watson held that a reasonable objective observer could find that the order was “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.”

Also, a Maryland federal judge on March 16, 2017, became the second to suspend the implementation of the latest immigration ban.

President Donald Trump signed a new executive order on March 6, 2017, that temporarily bars certain people from six Muslim majority countries and refugees from entering the US as of March 16, 2017. His first travel ban order was suspended in the federal courts. The essential points of the travel ban are the following:

• Prohibits citizens of Iran, Libya, Yemen, Sudan, Somalia and Syria from entering the US for 90 days;
• Bars refugees from entering the US for 120 days;
• Provides a waiver for some people on a case-by-case basis;
• Immediately suspends the visa interview waiver program; and
• Reduces the total annual number of refugees to 50,000 regardless of country of origin.

This travel ban differs from the first one in the following ways:

• Removes Iraq from the list;
• Does not suspend entry for current visa holders or legal permanent residents;
• Removes the facially discriminatory priority for Christian minority religions; and
• Allows travel for those whose visas were revoked under the first executive order.

This new executive order is still discriminatory, deleterious, ineffectual and unnecessary. Although the language of the executive order explicitly denies discriminatory intent, such intent still exists and will be subject to the same constitutional challenge as the first one. Also, there is no new screening mechanism that does not already exist in some form as a result of the enhanced digitization of the National Visa Center, President Obama’s enhanced screening. Furthermore, the order’s two examples of “terrorism” used to justify this ban include one act allegedly committed by a US citizen who came to the US as a child, and one act committed by two from Iraq, which is no longer on the travel ban list.

This executive order vilifies Muslims and will only exacerbate Islamophobia in the US. It will not make us any safer and will only add fodder to the fodder to the terrorists’ recruitment campaign. Also, it is inimical to our core values, since the US Constitution prohibits religious discrimination and freedom of religion.

Trump’s New Travel Ban Against Six Mostly Muslim Countries

March 7th, 2017

President Donald Trump signed a new executive order on March 6, 2017, that will temporarily bar certain people from six Muslim majority countries and refugees from entering the US as of March 16, 2017. His first travel ban order was suspended in the Federal courts. The essential points of the travel ban are the following:

• Prohibits citizens of Iran, Libya, Yemen, Sudan, Somalia and Syria from entering the US for 90 days;
• Bars refugees from entering the US for 120 days;
• Provides a waiver for some people on a case-by-case basis;
• Immediately suspends the visa interview waiver program; and
• Reduces the total annual number of refugees to 50,000 regardless of country of origin.

This travel ban differs from the first one in the following ways:

• Removes Iraq from the list;
• Does not suspend entry for current visa holders or legal permanent residents;
• Removes the facially discriminatory priority for Christian minority religions; and
• Allows travel for those whose visas were revoked under the first executive order.

This new executive order is still discriminatory, deleterious, ineffectual and unnecessary. Although the language of the executive order explicitly denies discriminatory intent, such intent still exists and will be subject to the same constitutional challenge as the first one. Also, there is no new screening mechanism that does not already exist in some form as a result of the enhanced digitization of the National Visa Center, President Obama’s enhanced screening. Furthermore, the order’s two examples of “terrorism” used to justify this ban include one act allegedly committed by a US citizen who came to the US as a child, and one act committed by two from Iraq, which is no longer on the travel ban list.

This executive order vilifies Muslims and will only exacerbate Islamophobia in the US. The US Constitution prohibits religious discrimination and freedom of religion is one of our core values.

USCIS Temporarily Suspends H-1B Premium Processing

March 4th, 2017

USCIS announced that as of April 3, 2017, it will temporarily suspend processing of H-1B petitions via premium processing and that this suspension may last for up to six months. This suspension will not affect premium processing cases pending as of April 3, 2017, and these will be processed within the 15-day calendar period (or later if a request for evidence is issued).

Since the FY18 H-1B cap petitions cannot be filed before April 3, 2017, this suspension will bar any H-1B cap cases from being premium processed. The suspension also applies to H-1B cap-exempt petitions, which include those filed by institutions of higher education, governmental research organizations, H-1B extensions and H-1B change of employer petitions.

Although premium processing is suspended, USCIS will still consider expediting H-1B petitions through its extremely challenging expedite criteria. Such criteria include:

1. Severe financial loss to a company or person;
2. Emergency situation;
3. Humanitarian reasons;
4. Nonprofit organizations whose request is furtherance of the cultural and social interests of the US;
5. Department of Defense or national interest situation (request must come from the government);
6. USCIS error; or
7. Compelling interest of the US.

Premium processing is extremely important to those beneficiaries who have pending extension petitions and want to maintain their employment authorization while the extension is pending. The current rule is that the employment authorization of the beneficiary will be extended for 240 days after the expiration of the beneficiary’s H-1B visa status. Therefore, if the beneficiary’s H-1B petition expires on August 1, 2017, and the petition was filed in March 2017, the beneficiary’s employment authorization would be extended for 240 days past August 1, 2017. Petitioners have been converting pending H-1B extensions to premium processing before the filed extension petition reaches that 240-day period but now they will have to wait for regular processing. This could result in a gap in the beneficiary’s H-1B employment.

US DHS Memo on Trump’s Executive Orders on Immigration and Removal

March 3rd, 2017

The U.S. Department of Homeland Security issued a memo implementing President Trump’s two executive orders issued in January 2017 on immigration and removal, which expand the administration’s enforcement targets, requests more border officers and alludes to a new policy on expedited removals.

The DHS prioritizes for removal aliens who:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense that has not been resolved;
• Have committed acts that constitute a chargeable criminal offense;
• Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
• Have abused any program related to receipt of public benefits;
• Are subject to a final removal order but have not complied with their legal obligations to depart the US; or
• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

What is extremely concerning about this new set of priorities is its glaring denigration of values serving as the bulwark for justice, fairness and democracy in the US. Agents are now able to seek to remove aliens who have “committed” criminal acts or who are charged with them before being found guilty by a tribunal. What happened to the presumption of innocence in our country? How are agents to determine if someone has committed an illegal act? Who are these agents who are making these critical decisions that will substantially impact a person’s life, and his immediate family’s lives? These priorities are ominous and foretell institutional abuse and lack of transparency.

The expanded use of expedited removal may be unconstitutional, since the US Supreme Court has held that the Due Process Clause applies to undocumented immigrants. Expedited removal has been used since 1996. It circumvents the immigration court system by allowing federal agents to determine if the person should be deported. If the undocumented immigrant claims a fear of persecution or torture then the immigrant is interviewed by US Citizenship and Immigration Services to see if there is a credible fear of persecution and the immigrant should be allowed to apply for asylum in the US. The undocumented immigrant has no right to an attorney and appeals are limited.

Expedited removal is usually only for those caught within 100 miles of the US-Mexican border and who appear to have entered the US within the previous two weeks, although the law allows for it to be used for removal of those who have entered the country within the past two years. Trump’s order increases the range. The Department of Homeland Security has not formally expanded the expedite removal process. It first must publish the policy in the Federal Register and give time for comment from the public.