Government Not Ending H-1B Extensions, USCIS Says

Reports about the possible elimination of AC-21 extensions (for H-1B workers awaiting green cards) are now being denied by the government. The USCIS is attempting to quell fears caused by rumors that the Administration would eliminate H extensions beyond the six-year limit for certain individuals unable to file the last step in permanent residency, adjustment of status, because of per-country limits.  The chief of media relations for the USCIS said that while the agency was considering regulatory and policy changes, “the USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States,” as long as their green card cases are pending. He noted, however, that even if the USCIS stopped granting the three-year extensions, most H-1B holders with pending green card cases would still be eligible for the one-year extensions under the current statute.

Elimination of these extensions was strongly opposed by many, including Representatives Kevin Yoder (R-KS) and Tulsi Gabbard (D-HI). In a letter to President Donald Trump, they argued the foreign nationals who would be affected “are working with the American immigration system, not against it.” The U.S. Chamber of Commerce opined that such a change would be a “tremendously bad policy” because it would “harm American business, our economy and the country.” And, advocacy groups for the especially vulnerable Indian tech industry mobilized lobbyists and others to argue against any such change.

Jackson Lewis will continue to follow these and other developments regarding the H-1B program.

Source: USCIS

DACA Must Remain in Place Pending Litigation, Federal Judge Rules

While Congress continues to try to find an acceptable solution for “Dreamers,” a federal judge in San Francisco has ruled that DACA must remain in place while litigation over President Donald Trump’s decision to wind down the program is pending. Judge William Alsup issued a nationwide injunction directing the Trump Administration to re-start the program. This means that any DACA recipients who were unable to submit status renewal applications by last fall’s deadline should have that opportunity now.

The case, one of several similar suits currently pending, was brought by California Attorney General Xavier Becerra and joined by others, including universities and the Attorneys General for Maine, Maryland, and Minnesota.  Janet Napolitano, Secretary of Homeland Security when the Obama Administration instituted the DACA program and current President of University of California system, is one of the lead plaintiffs in the case. Becerra vowed to fight for the Dreamers “at every turn for their rights and opportunities so they may continue to contribute to America.” Judge Alsup’s nationwide injunction is at least an initial victory for DACA proponents.

The court found the plaintiffs would suffer irreparable harm if DACA is terminated in March 2018, before litigation over the rescission is resolved. On the merits, Judge Alsup doubted whether DACA was put in place illegally, because DHS has the authority to grant temporary protections from deportation. In support of his decision, Judge Alsup referenced some of Trump’s recent tweets. He stated that the program’s benefits were summed up by Trump’s tweet saying, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!”

Devin O’Malley, a Justice Department spokesman, said the Department “will continue to vigorously defend [President Trump’s rescission] . . . and looks forward to vindicating its position in further litigation.”

Judge Alsup’s order does not require the government to accept new DACA applications. The government could still prevent DACA recipients from returning to the United States after travel abroad.

If you have questions about how to renew DACA status during this window of opportunity, please contact your Jackson Lewis attorney.


Source: USCIS

Temporary Protected Status for Salvadorans in U.S. to End in 2019

Ending all speculation, the Secretary of Homeland Security has announced the end of temporary protected status (TPS) for approximately 200,000 Salvadorans who have been in the United States since 2001, following two earthquakes in El Salvador.

The termination will be delayed for 18 months, until September 9, 2019, to allow for “an orderly transition.” This follows the Department of Homeland Security (DHS) recent termination of TPS for Guinea, Haiti, Liberia, Nicaragua, Sierra Leone, and Sudan. In her announcement, DHS Secretary Kirstjen Nielsen said DHS conducted extensive research and outreach before coming to its decision. Among other things, the agency held community forums and met regularly with Salvadoran government officials as well as with the El Salvadorian Foreign Minister, the Ambassador to the U.S., and the President of El Salvador to determine whether the “original conditions” caused by the 2001 earthquakes still existed. They concluded that these conditions “no longer exist” and, therefore, Salvadorans in the U.S. are no longer eligible for TPS. The Secretary further noted that El Salvador is now capable of having its nationals return, as evidenced by the fact that, over the last two years, 39,000 individuals have been repatriated to El Salvador.

The 200,000 Salvadorans in TPS represent the largest group of nationals currently in the U.S. The actual number of affected persons is much larger, because the 200,000 figure does not include spouses and U.S.-citizen children. It also does not include companies that have employed these individuals who have been in the U.S. for close to 20 years. Figures indicate that the largest number of Salvadoran TPS holders live in Washington D.C., with smaller numbers living in Los Angeles, New York, and Houston. “Nearly one-third own their homes, according to a 2016 survey, and more than 60 percent have at least one child who is a U.S. citizen.”

Immigration advocates have noted that not only are these individuals fully assimilated into the U.S., but that it is not safe for anyone to return to El Salvador. The country suffers from a high rate of homicide and gang violence. They also argue the country cannot re-absorb such a large number of people. According to a Pew study, the government of El Salvador has asked that TPS be extended.

Salvadorans in TPS status will need to re-register for TPS in order to remain in the U.S. throughout the termination period. They cannot re-register until instructions are published in the Federal Register.

Haitians who learned in November 2017 that their TPS would be terminated are still awaiting instructions.

In the meantime, in certain circumstances there may be other immigration statuses available to some TPS holders. Should you have any questions about the termination of TPS status and the possible options, please reach out to your Jackson Lewis attorney.

Source: USCIS

U.S. Expected To Add Restrictions on Visas in New Year

Uncertainty regarding employment-related immigration regulations has not ebbed with the arrival of the New Year.

Employers may be losing employees to the possible elimination of H-4 EADs and STEM extensions. Major changes in the H-1B cap process, including pre-registration and new eligibility standards, also are said to be on the horizon. The Trump Administration reportedly wants to eliminate H-1B extensions for employees with pending Green Card cases.

This last possibility would be particularly troubling because long-term employees and their dependent family members might have to leave the United States and work elsewhere while they wait for their Green Cards – a process that can take years for many employees, including Indian nationals.

While such changes are expected or possible during 2018, businesses will find it difficult to plan for them.

For-profit employers are not the only ones affected by the expected changes. Non-profit universities in the U.S. are already feeling a financial pinch from the drop of foreign students. Foreign students contribute $39 billion in revenue to universities, and many schools, particularly in the Midwest, have come to rely on the growth of their foreign student population. At some state institutions, foreign students pay twice the tuition of in-state students. Schools have used that extra tuition money to expand programs and improve their bottom lines. Moody’s Investors Service has changed the credit outlook for higher education to “negative,” from “stable.” That may make it more difficult for some schools to borrow money for expansion.

U.S. institutions have been losing out to schools in other English-speaking countries, such as Canada and Australia. These countries have been trying to attract foreign students of the sort who, up to now, have been coming to the U.S. Recognizing the economic and other benefits of attracting and retaining highly educated workers, Canada has created a special path to citizenship and Australia has made its visa process easier.

Meanwhile, the U.S.’s travel bans and extreme vetting have made it more difficult and less appealing for foreign students to attend a school in the U.S. The possible cutback or elimination of OPT and STEM extensions also has reduced foreign student enrollment. The ability to participate in training after completing a degree in the U.S. has been a great draw, but those programs now may be on the chopping block.

Jackson Lewis attorneys will continue to follow these developments to help clients be ready to plan and adapt in this time of uncertainty.


Source: USCIS

New Secretary of DHS Announces New Country Requirements for Visa Waiver Program

Department of Homeland Security Secretary Kirstjen Nielsen has announced new security measures applicable to all countries in the Visa Waiver Program (VWP).

The VWP allows citizens or nationals of 38 participating countries to enter the U.S. for business visits or tourism for stays of up to 90 days without obtaining a visa stamp in their passports.  Travelers must have a valid ESTA (Electronic System for Travel Authorization) approval in advance of their travel and (as of April 1, 2016) must have an e-Passport with an embedded electronic chip.

In 2015, under the Terrorist Travel Prevention Act, certain travelers were no longer eligible to use the VWP (but they could apply for B visas):

  • Nationals of VWP countries who traveled to or had been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen after March 1, 2011; and
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Now, the Trump Administration has announced further security enhancements. According to Nielsen, the following security measures will apply to all VWP countries:

  • Full implementation of all existing information sharing arrangements to screen travelers against U.S. counterterrorism information databases;
  • VWP countries must be judged to have effective safeguards against insider threats in aviation ; and
  • VWP countries with a two percent or greater rate of business visitor or tourism overstays will have to initiate public information campaigns to reduce violations.

DHS is also asking Congress to:

  • Bolster reporting of foreign terrorist fighter information to organizations, such as INTERPOL and EUROPOL;
  • Enhance systems to collect and analyze data on passenger travel (Advance Passenger Information/Passenger Name Records); and
  • Finalize efforts to allow U.S. Federal Air Marshals to operate onboard U.S. air carriers on direct flights to the United States from abroad.

To date, four countries have been identified as overstay violators: Greece, Hungary, Poland, and San Marino, a separate republic in Central Italy.

It has been reported that, overall, approximately 1 percent of travelers to the U.S. overstay their visas. Although the percentage is small, the Administration worries that some overstays represent a national security risk. Nielsen also stated in her announcement that “[t]hese enhancements will strengthen the program, and they are part of our continued efforts to raise the baseline for homeland security across the board.”

To date, there is no information on how these new restrictions will be enforced, but Nielsen is authorized to remove countries from the VWP.

VWP travelers from the four identified countries who already have ESTA approvals should check the status of their countries’ participation prior to traveling.

Source: USCIS

Department of Homeland Security to Tighten H-1B and Other Regulations

The Trump Administration’s Unified Agenda of Federal Regulatory and Deregulatory Actions for the DHS contains close to 60 items.

Published in the spring and fall, the Unified Agenda gives information about regulations that are under development. The latest iteration represents President Donald Trump’s promise to amend and eliminate “regulations that are ineffective, duplicative, and obsolete” in order to “promote economic growth and innovation and protect individual liberty.”

Here are some changes employers can be expected in 2018.

Strengthening the H-1B Nonimmigrant Visa Classification Program:

  • Revise the definition of a “specialty occupation” to focus on the “the best and the brightest”
  • Redefine the employer-employee relationship “to better protect U.S. workers and wages”
  • Impact: This might mean a further crackdown on outsourcers and new definitions that could make it more difficult to obtain visas in certain occupational categories

Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to the Numerical Cap:

  • Streamline the H-1B Cap process by introducing an electronic registration process
  • May include a modified selection process to focus on the “best and brightest”
  • Impact: This might mean a more hierarchical approach to the selection process based upon degrees and wages

Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

  • Eliminate the H-4 EAD Rule
  • Notice of Proposed Rulemaking is expected in February 2018
  • Impact: This might mean a loss of employment authorization for approximately 100,000 spouses

Practical Training Reform

  • Improve protections for U.S. workers who may be negatively impacted by students employed in F and M status
  • Reduce fraud and abuse and increase oversight of schools and students involved in the program
  • Notice of Proposed Rulemaking is expected in October 2018
  • Impact: This might make is more difficult to hire and retain students and could result in the reduction in enrollment of foreign students at U.S. institutions

Jackson Lewis will continue to monitor the progress of these proposals.

Source: USCIS

Status of International Entrepreneur Rule on Tenuous Ground, But USCIS To Begin Accepting Applications

The DHS is giving with one hand and taking with the other. In response to the December 1, 2017 federal court ruling in National Venture Capital v. Duke, the DHS is complying and implementing the International Entrepreneur Rule parole program (IER).  At the same time, the DHS is in the final stages of publishing a notice of proposed rulemaking to eliminate the program.

The requirements for IER eligibility are:

  • The entrepreneur must have a substantial ownership interest in the start-up entity
  • The entity must have been created within the past 5 years
  • The entrepreneur must have a central and active role in the entity and be well-positioned to substantially assist with the growth and success of the business
  • The entrepreneur will provide a significant public benefit to the U.S. by showing:
    • Significant capital investment from qualified investors;
    • Significant awards or grants for economic development, research and development or job creation from a government entity; or
    • Overall additional and compelling evidence of the entity’s substantial growth potential

The application process for the IER is:

  • File Form I-941, Application for Entrepreneur Rule, with USCIS
  • Once approved, the entrepreneur must visit a U.S. Consulate abroad to obtain travel documentation
  • In conjunction with the Form I-941, the entrepreneur may submit Advance Parole applications (Forms I-131) to allow their spouses and unmarried children to accompany them to the United States
  • Upon entry into the U.S., the spouse of the entrepreneur may apply for an Employment Authorization Document by filing a Form I-765
  • The forms will be filed at the USCIS Dallas Lockbox facility

How long it will take the USCIS to process these applications is unknown. And what if any grandfathering provisions there will be is yet to be seen.  Regardless, depending upon an individual entrepreneur’s specific circumstances, it may be advisable to take advantage of the current window of opportunity prior to the elimination of the program.

If you need help assessing your situation with regard to the IER, please reach out to the Jackson Lewis attorney. We will continue to monitor developments.

Source: USCIS

Guide for Individuals Traveling Outside of U.S. During Holiday Season

Extreme vetting, strict scrutiny, travel warnings, and the latest travel ban have made travel abroad more worrisome than ever this holiday season.

Reminders for individuals who will have to apply for new U.S. visas while abroad in order to return to the United States:

  • Consulates are dealing with new guidance and procedures. This means that delays may occur just as a matter of course especially because the holidays are busy times at the Consulates.
  • Make sure to check with the relevant Consulate and your airline to find out if you may need a transit visa to board your aircraft.
  • Make sure to book an appointment at the Consulate as soon as possible before leaving the United States. Consulates may not have appointments available and may have limited holiday hours.
  • Check processing times and documentary requirements on the Consular websites, but remember published times are not guarantees.
  • Carry a signed employment verification letter along with other required documentation.
  • Extreme vetting means more administrative processing. Administrative processing can result in delays of several days, weeks, or even months. Employees should inform their supervisors regarding their planned travel and have back-up plans for travel, lodging, and work should they experience a lengthy delay.
  • Under the U.S. Supreme Court’s new ruling, President Donald Trump’s Presidential Proclamation known as Travel Ban 3.0 is in effect (at least until the lower courts make additional rulings). Individuals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen may be affected.
  • Employees who have pending change-of-status or advance parole applications should not travel until after their case has been adjudicated. Under new guidance, travel during the pendency of an advance parole application can lead to a denial.

All travelers, particularly U.S. citizens, should:

If you are carrying electronic devices, remember that:

  • At many airports, all electronic devices larger than a cell phone have to be inspected at security and must be taken out of carry-on luggage. This can lead to delays.
  • Even U.S. citizens can have bags and electronic devices searched upon return to the U.S.
  • According to the ACLU, warrantless searches of electronic devices have increased by 125 percent since 2015. During the first half 2017, 15,000 such searches have been conducted. The ACLU has filed a suit in federal court in Massachusetts challenging these searches.

Finally, all travelers should remember the various strategies that can help to reduce the likelihood of delays or inconvenience when traveling. The Transportation and Security Administration has released a list of tips to keep in mind.

If you or your employees have questions about travel risks, please contact your Jackson Lewis attorneys for assistance.

Source: USCIS

New Secretary of DHS Confirmed: Kirstjen Nielsen

On December 5, 2017, Kirstjen Nielsen was confirmed as the new Secretary of Department of Homeland Security by the Senate on a bi-partisan 62-37 vote, with just 11 votes from the Senate minority for her confirmation. Nielsen is a close aide to John Kelly, White House Chief of Staff and former Secretary DHS.

Elaine Duke, who has served in an interim capacity for four months, has said that she will continue to work with Nielsen as her deputy.

As Secretary of DHS, Nielsen will be in charge of 240,000 employees in 22 sub-agencies with broad jurisdiction and a range of responsibilities, including immigration enforcement, border patrol, aviation security, disaster preparedness, domestic counter-terrorism, the Secret Service, and the Coast Guard. A lawyer and expert in cybersecurity, Nielsen is the first Secretary of DHS who has worked at the agency before. She was Kelly’s Chief of Staff. She also has experience working at the TSA and as an advisor for emergency preparedness and disaster relief during the Bush Administration.


Source: USCIS

Travel Ban 3.0 May Take Effect (For Now), U.S. Supreme Court Rules

The latest version of the Trump Administration’s travel ban may take effect pending decisions expected shortly from the Courts of Appeals for the Fourth and Ninth Circuits, the U.S. Supreme Court has ruled.

The third iteration of the travel ban (Travel Ban 3.0), implemented in late-September, restricts travel to the U.S. for individuals from Chad, Iran, Libya, Somalia, Syria, and Yemen.  Travel Ban 3.0 also limits travel for individuals from the non-majority Muslim countries of North Korea and Venezuela.

Travel Ban 3.0 was targeted to cover specific categories of visa travelers. Two federal court judges had issued injunctions limiting implementation of the revised travel ban. They indicated that individuals would still be eligible for visas if they had a “bona fide” relationship to someone in the United States, including grandparents, nieces, nephews, cousins, and brothers- and sisters-in-law, or to an entity in the United States, such as an employer or a university.

By a 7-2 decision, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting, a majority of the Supreme Court overruled the lower court injunctions, allowing the travel ban to be implemented in full. The Court noted that the Ninth Circuit and the Fourth Circuit courts are both hearing oral arguments on the substantive legality of the travel ban within a week, and the Court expects decisions will be issued “with appropriate dispatch.” A decision on the underlying merits is expected to be appealed to the Supreme Court, potentially to be decided this term.

Attorney General Jeff Sessions stated that the Court’s ruling allowing the President’s proclamation to go into effect was “a substantial victory for the safety and security of the American people.”

Omar Jadwat of the ACLU, which represents some of those challenging the ban, stated: “It’s unfortunate that the full ban can move forward for now, but this order does not address the merits of our claims. . . . We will be arguing Friday in the Fourth Circuit that the ban should ultimately be struck down.”

We will continue to follow developments and provide updates. Please contact Jackson Lewis with any questions.

Source: USCIS