USCIS now accepting H-1B petitions for FY2018

On April 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") began accepting H-1B petitions for Fiscal Year 2018 ("FY2018"). In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 3rd - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least a bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 236,000 H-1B petitions in the first five business days of April. 

For updates on when USCIS reaches the cap, the lottery, whether there will be a re-start date for premium processing (discussed in further detail below), and other H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Alternatives to H-1B visa

In light of the increase in demand for H-1B visas over the past several years, employers and foreign nationals should also be aware of other work visa options. A few possibilities that are not subject to annual quotas include:

• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quotabut that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

In addition, employers and foreign nationals may want to consider cap-exempt H-1B visas, which are available if the beneficiary will be employed at an institution of higher education or affiliated non-profit, or concurrently employed by a cap-exempt employer and a private employer. Some universities are assisting in this process by opening up incubator space on-campus, allowing cap-subject employers to station their employees at colleges and universities. This model is known as Global Entrepreneur In Residence ("GEIR") programs, and has become very valuable in the past several years due to the limited number of H-1B visas and the high demand for them. For more information about any of these visa categories or GEIR options, please contact us at info@iandoli.com.   

Reminder: USCIS has temporarily suspended Premium Processing for all H-1B petitions

As noted in one of our previous updates, USCIS announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times for H-1B petitions have increased significantly over the past 18 months -- from 2-4 months to upwards of 9-12 months -- many petitioners have used Premium Processing to facilitate quicker start dates for H-1B employees and for obtaining approval notices they may need for international travel. USCIS has not announced a firm end date for the premium processing suspension but did indicate it could last for up to 6 months. This suspension has a major impact not only on the annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates for foreign national employees.

As a reminder, USCIS accepts expedite requests on a case-by-case basis if a foreign national or an employer can demonstrate that one or more of the expedite criteria has been met. USCIS lists the following as criteria they will consider for reviewing expedite requests: severe financial loss to company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (note these requests must come from an official U.S. government entity and state the delay will be detrimental to the government); USCIS error; or compelling interest of USCIS. If you have a question about the premium processing suspension or need assistance with assessing an expedite request, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Temporary Restraining Orders and a Preliminary Injunction issued, halting Executive Order on Travel Ban

Several U.S. District courts issued temporary restraining orders related to the revised Travel Ban last month. Further, the U.S. District Court of the District of Hawaii in its Order found there was "unrebutted evidence of religious animus" and a "dearth of information indicating a national security purpose", and concluded that the plaintiffs were likely to succeed on the merits of their claim that the travel ban violated the Establishment Clause of the U.S. Constitution. The Court further held that no "constitutionally significant" changes were made to this rewritten order and that it therefore suffered from all the same failings of the first executive order (withdrawn by the government and replaced by the rewritten order). Many of these same findings were reiterated when the District Court issued its Preliminary Injunction on March 29, 2017. In response to the government's arguments that only the four-corners of the Executive Order should be reviewed and statements made by the President during the campaign and while in office leading up to the ban should be ignored, the Judge's Order states: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."  The U.S. District Court's Preliminary Injunction is binding on all federal agencies, including the Department of Homeland Security and the Department of State. The Executive Branch indicated it will again appeal to the Ninth Circuit Court of Appeals. We will bring you further updates as the travel ban litigation progresses.

Trump Administration to implement heightened screening of visa applicants

While the Executive Order authorizing the travel ban is tied up in litigation, the Trump administration has ordered all American embassies and consulates to increase the scrutiny of all visa applicants. Released as a series of cables within the Department of State, this new scrutiny could include detailed questions on applicants' backgrounds and mandatory checks of applicants' social media history if the applicants have ever been in territory controlled by Daesh (the Islamic State). Additional scrutiny could include review of all phone numbers, email addresses, and social media handles used by the visa applicant over the past five years. Another new review criterion, that of the visa applicant's work history for the prior fifteen years, has been held up pending approval of the Office of Management and Budget. 

This heightened scrutiny is likely to increase the typical waiting times for visa processing, which was acknowledged by Secretary of State Rex Tillerson who said that this extra scrutiny would cause "backlogs to rise." Accordingly, employers and visa applicants should be aware of the risk for delays for visa processing abroad over the coming months.

National Interest Waiver adjudications resume

On March 8, 2017, USCIS confirmed to the American Immigration Lawyers Association ("AILA") that it had resumed adjudication of National Interest Waiver ("NIW") petitions using the new standard imposed by a precedential decision, Matter of Dhanasar.  Adjudications had been temporarily halted while USCIS was awaiting further internal guidance before training its adjudicators and familiarizing them with the new standard. NIWs are a pathway to lawful permanent resident status if an applicant can show his or her work is in the national interest. Under Dhanasar, an NIW applicant must show that the proposed endeavor has both substantial merit and is national in scope, that the applicant is "well-positioned" to advance the proposed endeavor, and that on balance the U.S. would benefit from waiving the job offer and labor certification requirements of the EB-2 category. This new standard significantly eases the NIW process for many applicants, making this a more viable option than it had been under the old standards.

EADs for Salvadoran TPS recipients extended until September 9, 2017

On March 6, 2017, the Secretary for the Department Homeland Security automatically extended the Employment Authorization Documents ("EADs") of Salvadorans currently granted Temporary Protected Status ("TPS") for an additional six months. The new period of EAD validity runs until September 9, 2017. Note that this action does not extend the current validity period of TPS for El Salvador, currently set to expire on March 9, 2018. For additional information, please visit the USCIS TPS website.

USCIS will temporarily suspend Premium Processing for all H-1B Petitions

Last Friday U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy. 

This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.  

The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months: 

• H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.  
• Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals. and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
• H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
• H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved. 

USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.

Please contact Iandoli Desai & Cronin P.C. at info@iandoli.com if you or your organization has any questions regarding timing or if you need assistance in preparing petitions this month.

Revised Executive Order on Travel Ban released

On March 6, 2017, the new administration re-issued an Executive Order that halts all refugee admissions for at least 120 days and bans entry into the United States for at least 90 days for persons from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq, which had been included in the prior Executive Order, is not included in this updated version. The notable points of this latest Executive Order ("EO") include:

• The EO expressly states it revokes Executive Order 13769, originally issued on January 27, 2017. Executive Order 13769 was the subject of dozens of lawsuits and temporary restraining orders across the country: most notably, in Washington State and the Ninth Circuit Court of Appeals, which affirmed an injunction blocking key parts of that prior Order.
• Effective March 16, 2017, nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen are prevented from entering the United States for a period of 90 days, does not apply to the following:

  • lawful permanent residents ("green card holders") from those six countries;

  • persons from one of those six countries with a valid visa obtained on or before January 27, 2017;

  • A foreign national with a valid travel document other than a visa (for example, advance parole), valid as of the date of the EO or issued thereafter;

  • dual nationals of those six countries when traveling on a passport of a non-designated country (for example, a dual Iranian Canadian citizen seeking to enter the U.S. on a Canadian passport);

  • persons traveling on diplomatic visas, NATO, or U.N.-specific visas; and,

  • foreign nationals granted asylum, refugees already admitted to the U.S., granted withholding of removal, advance parole, or protection under the Convention Against Torture.
     

• The EO allows for consular officers or the Commissioner of U.S. Customs and Border Protection ("CBP"), in their discretion, to issue a visa or permit entry, on a case-by-case basis, for individuals affected by this order if the foreign national demonstrates that denying entry would cause undue hardship, his/her entry would not pose a threat to national security, and would be in the national interest.  The specifics of how to seek or request this waiver is unclear from the text of the EO, but the EO lists several examples of circumstances, including returning students or temporary workers outside the U.S. on the effective date of the order, foreign nationals seeking to visit or reside with a spouse, child, or parent who is a U.S. citizen, lawful permanent resident, or non-immigrant, persons needing urgent medical care, landed Canadian immigrants applying for U.S. visas in Canada, or U.S. government-sponsored exchange visitors.
• Additional countries may be added for restrictions or limitations based on input from the Secretary of State, the Attorney General, or the Secretary of Homeland Security.
• As of the effective date of the EO, all refugee admissions under the U.S. Refugee Admissions Program are suspended for at least 120 days, with admissions resuming only after the Secretary of State, Secretary of Homeland Security and the Director of National Intelligence have determined that additional procedures for screening refugees described in the order are adequate.
• Reduces the number of refugees in Fiscal Year 2017 to 50,000 (the Obama Administration had set the commitment figure at 110,000), with exceptions for admitting refugees to conform with international agreements or other limited circumstances.
• Directs the Secretary of State to examine existing law to determine the extent to which state and local governments "may have greater involvement" in determining the placement or resettlement of refugees in their jurisdiction.
• Suspends Visa Interview Waiver Program, requiring individuals from all countries who seek to renew their nonimmigrant visas to undergo in-person interviews.

In addition to posting this latest Executive Order, major media reports the Trump administration has also circulated a Fact Sheet and Q&A for implementation of the EO. We will bring further updates related to this new Executive Order as they become available.

The latest on the President's Executive Order impacting non-immigrants, immigrants and U.S. businesses

On Friday January 27, 2017, President Donald J. Trump signed an Executive Order that contained sweeping changes to processing arrivals at our nation's airports and land borders of non-immigrants with a variety of work and travel visas, immigrants, lawful permanent residents, and refugees. Although styled as imposing temporary measures, it is having a dramatic impact on thousands of individuals in the U.S. and abroad, and contains language that suggests long-lasting changes to the visa application process abroad and the adjudication of immigration-related applications within the U.S. This news release summarizes the Executive Order, the litigation that has followed, and the Order's effect on individuals and employers in the coming weeks.

What is in the Executive Order?

• Major items in the Executive Order include a temporary suspension of visa issuance abroad and entry into the U.S. for individuals from 7 countries, a temporary suspension of admission of all refugees, an indefinite suspension of refugees from Syria, and suspension of the Visa Interview Waiver Program for all non-immigrant visa renewals (by citizens of all countries).
• The Order covers "immigrants and non-immigrants" and includes anyone with a valid visa (including professional work visas, student visas, and tourist visas) and returning lawful permanent residents. The Department of Homeland Security ("DHS") later released a statement indicating the entry of lawful permanent residents would be considered in "the national interest" but it did not assure their entry. Rather, the statement included the caveat "absent derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
• Section 5 of Order directs the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP") for 120 days, and specifically states that the entry of nationals of Syria as refugees is suspended indefinitely, with exceptions for 1) if admitting the individual would be in the national interest; 2) if the person seeking admission is from a religious minority facing religious persecution; 3) to conform to international agreement; or 4) if the person is in transit and there would be undue hardship if he/she were denied admission to the U.S.
• Section 8 of the Order requires the Secretary of State to immediately suspend the Visa Interview Waiver Program ("VIWP"), a worldwide program which allows U.S. consuls to waive in-person visa interviews for nationals of any country who have been recently vetted for security clearances and who seek a visa renewal.

What is the status of litigation regarding the Executive Order?

• Attorneys with the American Immigration Lawyers Association ("AILA") and the American Civil Liberties Union ("ACLU") have filed lawsuits on behalf of affected individuals in federal district courts in New York, Massachusetts, Virginia, and Washington state. Judges in those federal courts have issued Temporary Restraining Orders ("TROs") based on plaintiffs' likelihood of success on Constitutional grounds.
• New York's TRO provides a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the Executive Order.
• Massachusetts' TRO has barred federal officials from detaining or removing anyone affected by the Executive Order for 7 days (until February 4), and further instructs Customs and Border Protection ("CBP") to notify international airlines that passengers flying into Boston's Logan Airport will not be subject to the Executive Order. Airlines had been refusing to board affected individuals.
• Virginia's TRO specifically orders federal officials to allow lawyers access to "all legal permanent residents detained in Dulles International Airport."
• Washington state's TRO bars federal officials from deporting two unnamed individuals in the U.S.
• Judges in the federal district courts in these jurisdictions will hold hearings this week on these pending suits to determine whether to extend, modify or cancel the TROs. The outcomes are difficult to predict. If the judges are persuaded on the merits of the case, it is possible the TROs may be converted into preliminary injunctions while awaiting further judicial review, effectively stopping the Executive Order or parts of it from taking effect until the matter can be argued and decided by the court. Alternatively, attorneys for the Trump Administration may succeed in their argument that the President's broad discretion on matters of national security permits the actions contained in the Order. If a judge permits the TROs to expire without issuing a preliminary injunction, the Executive Order would be in effect until either a successful appeal by the immigrants to a higher court or possibly an ultimate decision by the Supreme Court.
• In addition, Massachusetts Attorney General Maura Healey announced she is filing a lawsuit today to challenge the Executive Order as unconstitutional.

What are the consequences of this Executive Order on individuals and employers?

• Foreign nationals from one of the seven countries affected by this Executive Order -- either lawful permanent residents or holders of valid visas -- should not travel. There is no guarantee these individuals will be permitted back into the U.S. after travel abroad. This could have disastrous consequences for individuals, their families, and their employers, as they risk being unable to re-enter the U.S. for at least 90 days, if not longer based on how quickly they might be able to obtain a new visa (if needed). 
• For those foreign nationals affected by this Executive Order who are currently outside the U.S., they should consider returning to the U.S. immediately via a direct flight into Boston's Logan Airport if possible before February 4 when the TRO expires.
• If foreign nationals are asked to relinquish U.S. permanent residence, the returning lawful permanent residents should be aware they have a right to request a hearing before an immigration judge. Green card holders should not sign a Form I-407 to relinquish their residence if they desire a hearing.
• Credible reports indicate that applications by nationals from these seven countries for immigration benefits with U.S. Citizenship and Immigration Services ("USCIS") such as Adjustment of Status, Petitions for Non-Immigrant Workers, Applications for Employment Authorization, etc. have been suspended. Currently, issuance of visas abroad for these foreign nationals is also suspended, and sources indicate USCIS will accept but not complete final adjudication until further notice of applications filed by or on behalf of foreign nationals from those seven countries.
• Employers should be aware of both the risk for delays with adjudication of applications and the risk travel presents for any employee needing to apply for a visa abroad. The suspension of Visa Interview Waiver Program will affect students and professional visa holders across the globe, as appointments for visa renewals in all countries will likely experience increased wait times since all visas applicants are now required to attend an in-person visa interview. There is also a greater likelihood of administrative processing (security) delays, given the additional information the Department of State will be seeking as contemplated by the Executive Order.
• In addition, the broad language in Section 3 of the  Order states that the Secretary of DHS and the Secretary of State shall conduct a review to determine the information needed from any country to adjudicate any visa, admission or other benefit under the Immigration and Nationality Act ("INA"), including adjudications. This language suggests a full revisiting of the current processing procedures, which may also result in delays.

We will bring you further updates on this and other immigration-related news in our February newsletter next week.