Earlier this year the United States Citizenship and Immigration Service (USCIS) announced that it would suspend premium processing for all H-1B petitions.  The suspension was to allow USCIS to reduce its backlog of non-premium processing cases.   On September 27, 2017 the USCIS Service Center Operations informed the American Immigration Lawyers Association that it is “on track to resume premium processing for all H-1B petitions on or before October 3, 2017.”

Premium processing is a service offered by USCIS that promises a response in 15 calendar days.  A petitioner may submit its petition for a nonimmigrant employee to USCIS with a request for premium processing on Form I-907 and a fee of $1,225.  In 15 days USCIS will respond with an approval, a denial, or a request for additional evidence.  Premium processing is not available for all petition types, but has historically always been available for H-1B petitions.

On July 24, 2017 USCIS announced that it had resumed premium processing only for one type of cap-exempt H-1B petition.  Employers anxiously awaited similar news for all types of H-1B petitions.

Note: practically speaking, the suspension of premium processing had a limited legal affect on several types of H-1B cases.  H-1B cap cases were not affected significantly because those employee-candidates were not eligible to begin work pursuant to H-1B status until October 1, 2017.  Most cap cases were approved well before October 1 without premium processing.  Additionally, if an employee is already in H-1B status pursuant to a petition filed by one employer, he or she can usually “port” his or her H-1B status to a new employer.  This doctrine of H-1B portability allows the employee to start working for the new company as soon as the new company files its H-1B petition for that employee.  Since the new company does not need an approval notice — only to file the petition — the suspension of premium processing did not greatly affect the employee’s eligibility to start working.  However, in each of these cases, both employers and employees preferred to rely on the assurance afforded with a 15-day response.  Moreover, USCIS issues an emailed Receipt Notice for premium processing cases, which allows an employee to “port” his or her status to a new employer faster — often in one to three days.  Without premium processing, employers must wait for the paper receipt notice to arrive as proof that the new company has properly filed a new H-1B petition.  Paper receipt notices may arrive in one to three weeks (versus one to three days).  There are other forms of proof and you should contact yoru Immigration counsel to discuss special circumstances.

We are currently awaiting an official announcement and further details from USCIS.  We recommend employers, petitioners and interested parties check the USCIS website www.uscis.gov.

 

For decades versions of The DREAM Act were proposed in Congress with the intent of providing some relief for young people who entered the United States without express authorization as children, and who met certain requirements.  These “dreamers,” however, could get no relief as the proposed bills never passed.  On June 15, 2012 the Obama Administration published a memorandum announcing the DACA program, which provided relief the Dream Act could not.  On September 5, 2017, after urging by the Trump Administration, the Department of Homeland Security officially rescinded the DACA program.

What Is the DACA Program?

Deferred Action for Childhood Arrivals (DACA) is a program that provides temporary relief from deportation to certain under-documented individuals who were brought to the United States as children.  To be eligible for DACA an applicant must have:

  1. Been 30 or younger on June 15, 2012;
  2. Come to the United States at age 15 or younger;
  3. Continuously resided in the United States from June 15, 2007 through the date of their DACA application;
  4. Been physically present in the United States on June 15, 2012;
  5. Been in high school, graduated from high school or received a GED; or have been an honorably discharged veteran of the U.S. Coast Guard or armed forces;
  6. Been convicted for no felonies, no significant misdemeanors, and no more than three other misdemeanors – nor otherwise posed a threat to national security; and
  7. Had no lawful status on June 15, 2012.

DACA applicants were required to affirmatively apply for this benefit and the DHS reviewed and adjudicated each application.  Foreseeably, many of those who qualified for DACA feared that providing their information – including their address where other under-documented family members may have lived – to the government could lead to a deportation in future, even if that is exactly what DACA promised to protect against.  Many applicants waited until a year after the program’s inception to apply.  Today, nearly 800,000 people have been approved for DACA.

What Benefits did DACA Provide?

A DACA approval did not provide a path to citizenship, nor did it grant asylum or refugee status.  In fact, the government has been clear that recipients of DACA are technically still unlawfully present in the United States.  “Deferred action” means exactly what it implies:  the government may temporarily defer the action of deporting qualified applicants.  The 2012 executive action was an effort to allocate the enforcement resources of the Department of Homeland Security (DHS) more effectively.  If DHS officers were not arresting and deporting children, college students, and – otherwise – law abiding young adults, then they could focus on dangerous criminals who were in the United States without authorization.

In addition to a grant of deferred action from deportation, a DACA approval meant that the recipient could apply for authorization to work and travel.  The importance of work authorization meant that the dreamers could “come out of the shadows” to apply for a social security card, get a driver’s license, accept employment, and pay taxes.

What Has Changed?

On September 5, 2017 the Trump Administration announced the recession of the DACA program.  On that same day President Trump released a statement arguing that only Congress, and not the Executive branch, should  grant DACA-related benefits.  The President gave Congress a deadline of six months, until March 5, 2018, to pass a replacement bill.

How Does This Affect Current Workers and Travelers?

DHS released a series of Frequently Asked Questions and answers when it rescinded DACA.

After September 5, 2017 the DHS will no longer accept new applications for the DACA benefit.  DACA recipients with current work authorization may continue to work until their current employment authorization document (EAD) expires.

Until October 5, 2017, DHS will continue to accept renewal applications for anyone whose DACA or EAD expires between September 5, 2017 and March 5, 2018.  Those renewal applications are expected to be approved for two years.  DHS will still accept applications to replace EADs that have been lost, stolen or destroyed.

DHS will accept no new applications for travel authorization (called “Advance Parole”).  Pending applications will be closed (“denied”) and the application fee will be returned.  DHS will, however, recognize previously-granted travel periods so persons who are outside the United States with Advance Parole under DACA are urged to return to the U.S. before the authorization expires.  DHS has always maintained that Advance Parole does not guarantee admission into the United States, and the government may terminate or revoke that benefit at any time.  Therefore, even persons who have unexpired Advance Parole should carefully consider trips outside the United States.

Will Persons with Expired DACA be Deported?

Persons with unexpired DACA maintain deferred action protection and should not be arrested or deported by DHS unless a new criminal action or other factor makes that person ineligible for DACA.

DHS also states that information provided in DACA applications will not be proactively provided to the enforcement agencies of DHS (Immigration and Customs Enforcement or “ICE” and Customs and Border Protection or “CBP”) for the purposes of initiating deportation proceedings.  However, if ICE requests the information and the person meets the requirements for deportation, the DACA information may be provided to ICE.

What Options are Available for DACA Recipients?

Persons with expiring grants of DACA or EADs may reach out to their employers and immigration attorneys to review eligibility for the EAD extension or other forms of relief from deportation.

UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.

Canadians

  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

April 1, 2014, is the first day USCIS will accept H-1B petitions for quota/cap-subject cases for FY 2015, commencing October 1, 2014.  Only 65,000 H-1Bs are available nationwide per year for new jobs for foreign workers requiring Bachelor’s degrees, and only 20,000 for those requiring Master’s or advanced degrees. With demand for H-1B workers high, the quota likely will be filled quickly, leading USCIS to conduct a computer-generated random selection process, known as the ” lottery,” to randomly select which of cases will be receipted and adjudicated under the cap.  Information gleaned from USCIS regulations and recent press release postings yields a few tips:   

  • USCIS expects to receive a high volume of H-1B petitions this year. 
  • The quota is likely to be exceeded in the first few days of April.
  • Regulations require USCIS to accept petitions received the first five business days of April.  With April 1st a Tuesday, the fifth business day will be Monday, April 7, meaning petitions must be sent by Saturday, April 5.
  • Initial review will sort out multiple or duplicative H-1B petitions filed by an employer for one employer.  Regulations require USCIS to deny or revoke those multiple or duplicative petitions that an employer files for the same H-1B worker, and they will not return or refund the filing fees.
  • Master’s cap petitions will be sorted from non-Master’s cases and subjected to the random process to select the 20,000 that will be processed. 
  • All cases not selected as part of the U.S. Master’s lottery will be entered into the bachelor’s cap lottery, in which 58,200 cases (65,000 minus 6,800 carved out for Chile and Singapore H-1Bs) will be subjected to the random system to select those that will be adjudicated. 
  • Rejected petitions will be returned to the attorney or employer along with the filing fees (except for multiple or duplicative filings by an employer for an employee).
  • For H-1B cap petitions accompanied by the premium processing fee – an extra $1225 USCIS filing fee – requesting processing within 15 days of filing, USCIS will delay the start of the 15-day period, possibly until Monday, April 28.
  • Employers probably will not know whether a petition has been accepted and made it through the lottery until processing has begun and USCIS sends a receipt notice, or until the attorney or employer receives the rejected petition.
  • Premium processing does not increase the change of being selected in the lottery, but may enable earlier notification of whether the petition was accepted or rejected.
  • Petitions filed without premium processing may take several months to process, but should be processed before October 1, 2014.
  • Because of the five-business-day rule, a petition that USCIS received on April 1, 2, 3, 4, or 7 has the same chance of being accepted and the same risk of being rejected as a petition sent on March 31.

In the unlikely event that the quota is not filled during the first five business days in April, then USCIS will continue to accept petitions day-to-day until the H-1B quota is reached.