Breaking news! Executive Order expected later today may affect travel for thousands of non-immigrant visa holders and immigrants

According to a draft Executive Order obtained by major media, including the New York Times and the Washington Post, President Trump seeks to suspend immigrant and non-immigrant entry into the U.S. by foreign nationals from countries referenced in the 2016 Consolidated Appropriations Act. That Act, passed in December 2015, included a provision that restricted the use of the visa waiver program by dual nationals of certain countries and by persons who had recently visited certain countries. According to CBP, the countries on the list (and those we expect to be affected by this Executive Order) include: 

• Iraq
• Syria
• Iran
• Sudan
• Libya
• Somalia; and,
• Yemen.

Accordingly, any foreign nationals from those countries, whether in the U.S. on temporary visas (including but not limited to F-1 students, E-1 and E-2 treaty traders/investors, E-3 Australians, H-1B professionals, J-1 exchange visitors, L-1 intercompany transferees, O-1 aliens of extraordinary ability, R-1 religious workers), or as permanent residents should be aware that if they travel outside the U.S., they risk not being re-admitted to the U.S. 

In addition to not granting re-entry into the U.S. for visa and green card holders from the countries listed above, the proposed Executive Order references the suspension of issuance of visas and other immigration benefits to nationals of those countries. It remains unclear how long delays will be for those seeking adjudication of a visa, admission to the U.S. or other benefit under the Immigration and Nationality Act ("INA"). 

Although it has been widely circulated in the press, the proposed Executive Order is not yet final. The wording could be changed and it is also possible that such an order ultimately may not be implemented. We share this information with you so can be prepared for the actions the new administration is considering taking imminently. We encourage you to visit our website for further updates and details. 

Revised Form I-9 & new regulations concerning re-verification

Effective January 22, 2017, employers must use the revised Form I-9, Employment Eligibility Verification, to verify the identity and work eligibility of every new employee.  Until January 21, employers may continue using the current Form I-9 last revised on March 3, 2013. U.S. Citizenship and Immigration Services ("USCIS") added several enhancements to the revised Form I-9 including:  

• A "smart" feature in the PDF version to help employers reduce technical errors when completing the form on the computer after downloading it from the USCIS website;
• Certain fields will now give an error message when the entered data does not have the correct number of characters (i.e., social security number or date of birth);
• Drop-down lists and calendars have been added for entering dates; and,
• A quick-response matrix barcode ("QR code") will be generated once the form is printed to assist in streamlining audit processes. 

Employers should also be aware that under new regulations by the Department of Homeland Security ("DHS") that became effective January 17, 2017, if an individual's employment authorization is due to expire, employers must re-verify their Form I-9 no later than the date of expiration of their current employment authorization to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment. For persons presenting employment authorization documents ("EAD") for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD and not the expiration date indicated on the face of the EAD. We expect DHS to issue further guidance on this issue soon in the form of a revised M-274, Handbook for Employers, Guidance for Completing Form I-9. Also, USCIS is hosting a teleconference on Tuesday, January 31, 2017 from 2:00 to 3:30 p.m. EST to discuss the revised Form I-9.  USCIS will review the form's enhancements, discuss employment eligibility verification best practices, and answer questions about each section of the form.  You may sign up for this teleconference on the USCIS website.

The Form I-9 is a notoriously difficult form to execute properly, and yet errors can result in hefty penalties for employers.  Iandoli Desai & Cronin offers internal I-9 Audits and training sessions to ensure your company is compliant.  If you would like more information and/or have questions concerning I-9 procedures and enforcement actions, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com. 

ACICS loss of accreditation: ESL Programs and OPT students must take immediate action

On December 12, 2016, the U.S. Department of Education announced that it no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. This decision to no longer recognize ACICS will affect more than 16,000 international students attending nearly 130 SEVP-certified schools and programs. While the majority of SEVP-certified schools are not required to obtain accreditation and can provide evidence in lieu of accreditation, there are two instances when SEVP-certified schools must be accredited:   

• English as a Second Language (ESL) programs; and,
• F-1 students applying for a 24-month Science, Technology, Engineering and Mathematics (STEM) Optional Practical Training (OPT) extension.

The Department of Education has issued an 18-month timeline for schools and students affected.  Schools must either obtain accreditation from a different Department of Education-recognized accrediting agency and update their Form I-17 or they will receive a notification to remove the ESL program from their Form I-17 petition. Affected students enrolled in a STEM degree should contact their school to find out if they plan to obtain accreditation elsewhere or should consider transferring if they wish to pursue an OPT STEM extension in the future.  For more information, please visit SEVP's website. 

New National Interest Waiver adjudication standard

In a recent precedent decision, the Administrative Appeals Office ("AAO") revised the analytical framework for assessing eligibility for national interest waivers ("NIW") thereby vacating the long-standing test set forth in NYSDOT (Matter of New York State Dept of Transp. 22 I&N Dec. 215 (Acting Assoc. Comm'r 1998).  According to the new decision (Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)), USCIS may approve an NIW if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

 The NIW category is a popular route for many foreign nationals to apply for lawful permanent residence (commonly referred to as "green card" status), provided they can prove they possess an advanced degree and their work meets the criteria outlined above.  Their field of employment may be in a variety of fields, including but not limited to business, entrepreneurialism, science, technology, culture, health, or education.  Notably, the NIW category is one of the few employment-based green card options for individuals to self-sponsor, meaning they may apply and demonstrate how they meet the criteria without an employer formally sponsoring them with an offer of permanent employment. If you would like to explore whether or not you qualify under this new standard, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

DHS publishes new International Entrepreneur Rule

On January 17, 2017, the Department of Homeland Security ("DHS") published a final rule in the Federal Register concerning regulations to implement new International Entrepreneur parole authority. DHS lists increasing and enhancing entrepreneurship, innovation and job creation as its goals for this new rule which is scheduled to become effective on July 17, 2017. The rule provides guidance for the use of parole - on a case-by-case basis - for entrepreneurs of start-ups who can demonstrate they would provide significant public benefit to the U.S. through evidence of "substantial and demonstrated potential for rapid business growth and job creation." Among the criteria adjudicators would consider are receipt of capital investment from U.S. investors with established records of successful investments and obtaining significant awards from certain Federal, State or local government entities. A foreign national who receives a grant of parole under this new rule would be permitted an initial stay of up to 30 months in the U.S., with the possibility of an additional 30 month extension to facilitate the applicant's ability to oversee and grow her or his start-up in the U.S.

We expect to bring you a detailed summary of this new rule in our February newsletter.

Visa Bulletin projections according to DOS's Charlie Oppenheim

In hopes of obtaining more in-depth analysis and insight into future immigrant visa availability than that provided in the monthly Visa Bulletin, each month the American Immigration Lawyers Association ("AILA") "checks-in" with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS).  From these discussions, AILA can provide practitioners, employers and foreign nationals better projections so all parties can strategize accordingly.  Highlights from the December 2016 discussions include:

• EB-1: Based on current demand, Charlie predicts that a "final action cut-off date" will need to be imposed for EB-1 India and EB-1 China later this fiscal year.  If this happens, Form I-140 petitions can continue to be filed with USCIS but Form I-485 Adjustment of Status application cannot be filed until the priority date for those preference categories is current.  This could result in several months of delay, as was seen in fall 2016, so applicants who may be affected by this potential retrogression should consider filing their applications as soon as possible. 
• EB-2 Worldwide: Charlie expects to impose a "final action cut-off date" for EB-2 Worldwide at some point due to sizeable demand.  Lingering demand from cases that otherwise would have been approvable in August and September 2016 is partly responsible for this surge in demand, as are EB-3 India upgrades.
• EB-2 China: China has already exceeded its EB-2 quarterly limit, so there is unlikely to be any major forward movement.
• EB-2 India: Charlie continues to hope that EB-2 India will recover to the November 22, 2008 final action date retrogression from May 2015. However, EB-3 upgrades could negatively impact that recovery.
• EB-3 Worldwide: Demand has declined, allowing Charlie to advance this category slightly in January 2017. However, at some point when EB-2 Worldwide becomes subject to a "final action cut-off date", we may see applicants filing petitions to downgrade from EB-2 to EB-3 which will increase demand.

Repeal of National Security Entry-Exit Registration System (NSEERS)

On December 23, 2016, DHS finally repealed its outdated and arguably discriminatory regulations relating to the National Security Entry-Exit Registration System (NSEERS), an obsolete special registration program that required immigrants from 25 Muslim-majority, Arab, and South Asian countries to register their presence in the United States. NSEERS was enacted in reaction to 9/11 and required certain foreign nationals in the U.S. to present themselves for fingerprinting, photos, and interviews at U.S. immigration offices, with further requirements to check-in at designated intervals. This program only applied to men over the age of 16 on non-immigrant visas (including tourism and work visas) from a list of 25 countries the Bush administration considered "havens for terrorists."

In 2011 the Obama Administration removed all 25 countries from the "special registration" list, which essentially suspended the program. In anticipation of the incoming Trump Administration, DHS officially repealed the program from the regulations. Only time will tell if the new administration will move to re-enact similar special registration rules, as the incoming president made campaign promises to that effect. Stay tuned for updates on our website at http://iandoli.com/newsandupdates/.

Reminder: USCIS filing fee increase and new regulations affecting high-skilled workers are now in effect

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from November 2016 with examples of the fee increases for some of the most common types of applications and petitions.

In addition, the U.S. Department of Homeland Security ("DHS") published a final rule in the Federal Register on November 18, 2016 announcing a number of important changes and codifying existing agency policy regarding high-skilled non-immigrant workers, EB-1, EB-2 and EB-3 immigrant workers and their employers. A detailed summary of this new rule, which went into effect on January 17, 2017, can be found in the News and Updates section of our firm's website.

DHS announces redesignation of TPS for Yemen & extension for Somalia

USCIS recently announced Temporary Protected Status ("TPS") for Yemen and Somalia will be extended for an additional 18 months. For Yemen, the extension is effective March 4, 2017 through September 3, 2018, and the re-designation allows eligible nationals of Yemen to register for the first time or to re-register for TPS. For Somalia, the extension is effective March 20, 2017 through September 17, 2018, and applicants can re-register for TPS during the 60 days registration period that runs until March 20, 2017.

For more information please visit USCIS's TPS website.

The future of DREAMers- Congressional Action and 14 Mayors urge President-Elect Trump to protect DACA

Unauthorized immigrants covered by DACA (Deferred Action for Childhood Arrivals) face an uncertain future under the new Trump administration.  According to USCIS, more than 750,000 young unauthorized immigrants have received work permits and deportation relief through DACA since it was created by President Obama's executive action in August 2012. On December 7, 2016, fourteen mayors joined Chicago Mayor Rahm Emanuel in sending President-elect Trump a letter urging him to continue the DACA program, which protects DREAMers and grows the economy, at least until Congress modernizes America's immigration system. In addition, on January 12, 2017 a bipartisan group of senators led by Dick Durbin (D-Ill) and Lindsey Graham (R-S.C.) reintroduced the "Bar Removal of Immigrants who Dream and Grow the Economy" or BRIDGE Act, to provide DACA-eligible individuals the chance to apply for "provisional protected presence" and employment authorization. A companion bill was introduced in the House the following day.

We will continue to bring you updates on our website and newsletter on any changes with DACA. In addition, Iandoli Desai & Cronin P.C. has been hosting "Know Your Rights Seminars" across the Boston metro-area. If you wish to host a similar seminar at your institution, please contact us at info@iandoli.com with "Know Your Rights" in the subject line.