Immigration Newsletter
February 2017  |  Volume 9, Issue 1
Greetings!
 
It is only February, and 2017 has already brought many changes to immigration law as a result of case law, new USCIS regulations and, of course, the new presidential administration. Below are the most significant developments. Please note that our newsletter is primarily distributed to our employer clients, so we would appreciate if you would share this information with your employees.
Travel Advisory
 
On January 30, we issued a Travel Advisory indicating that RSST Law Group is advising all clients, regardless of their home country, to avoid international travel.  This is a precautionary measure while we continue to monitor the evolving situation.
 
While only passport holders from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are currently barred from entering the United States, there is no way of knowing if or when the Trump Administration might expand this bar. As of right now, non-U.S. citizens from other countries should not be barred entry, but that could change at any time. The decision of whether or not to travel internationally at this time should be weighed with these risks in mind.
 
For those individuals who do choose to travel, please note that we anticipate severe delays in visa issuance given the additional security screening procedures ordered by the EO, and the potential elimination of the visa interview waiver program.
 
Trump Administration Executive Orders
 
As you know, President Trump issued three Executive Orders (EOs) during his first week in office with regard to immigration. You can view our summaries of these orders here . The third order, "Protecting the Nation from Terrorist Entry into the United States", has caused quite a bit of chaos and confusion at U.S. ports of entry, and throughout the world. As of now, U.S. permanent residents from all countries are being allowed entry to the United States, absent significant derogatory information. However, passport holders from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen ("the 7 countries") who do not hold a U.S. green card will not be allowed entry until at least April 27, 2017, and possibly indefinitely.
 
With regard to the ban on refugee admission for 120 days, an exception was granted for refugees "in transit" at the time of the order. According to CBP, 872 refugees remain scheduled to arrive in the United States this week consistent with this exception.
 
While a number of courts have issued temporary injunctions against enforcement of some or all of this ban, and many additional lawsuits have been filed against the ban on these 7 countries, for the time being it seems the ban will continue to be enforced, and may even be expanded. RSST Law Group is committed to doing everything we can to assist our clients affected by this discriminatory ban and we will continue to support fair and reasonable immigration policies moving forward.
 
Current Information Regarding Ban on Entry
 
While we continue to hear reports that DHS, CBP and other agencies are enforcing the travel ban inconsistently, following is what we can tell you at the moment (but please keep in mind that this situation is continuing to evolve and these details could change at any time):
  • CBP Website: On Feburary 1, USCIS indicated that people should view the CBP website for ongoing updates regarding the EO.
     
  • Dual citizens: While DHS has indicated that the ban does include dual citizens from the 7 countries, CBP has stated (and anecdotal reports have confirmed) that it is processing people based on which passport is presented for entry into the U.S.
     
  • Legal Permanent Residents (LPRs): LPRs from the 7 countries should generally be allowed to board planes and enter the U.S., but will likely still be detained for secondary inspection prior to entry. According to CBP, as of 7am on February 1, only two LPRs were denied entry - one due to criminal history issues and another who withdrew his request for entry.
     
  • Visa Validity: On January 27, the Department of State (DOS) provisionally revoked all nonimmigrant and immigrant visas held by nationals of the 7 countries (with the exception of A, G, C-2, NATO and certain diplomatic visas). Furthermore, DOS has cancelled all visa interviews for nationals of these countries and will not issue further visas until the ban is lifted.
     
  • Non-LPR Entry to U.S.: Despite several court orders to the contrary, airlines are generally continuing to exclude passengers from the 7 countries from all flights to the U.S. because their visas have been revoked. CBP is continuing to refuse entry to any individual who arrives in the U.S. from these countries who is not a U.S. citizen or LPR. CBP does, however, have the authority to grant waivers on a case-by-case basis for admissions deemed to be in the national interest if they do not pose a national security threat, and reports that it has done so 87 times as of 3pm on February 1.
     
  • Pending applications and petitions: According to CBP, processing of N-400 applications for citizenship from the 7 countries will continue. However, it appears that USCIS has suspended adjudication of all other applications and petitions filed on behalf of people from the 7 countries until the ban is lifted.  Please note that this information has been reported by multiple sources although USCIS has not definitively confirmed this information, and we are not certain if any applications or petitions are exempt from this suspension. If true, individuals from these 7 countries will not be able to extend current status or work authorization, and will not be able to have permanent residence and related applications adjudicated during the ban.
  
How long will it last, and will other countries be added?
  
The travel ban for individuals from the 7 countries is initially in place for 90 days, or until April 27, 2017. However, a related provision of the EO instructs DHS within 30 days to establish a baseline of information needed from any country in order to adequately determine whether an immigrant or nonimmigrant individual from that country is who they claim to be and is not a security or public safety threat. DHS (in collaboration with DOS and the Director of National Intelligence) will then determine which countries do not provide adequate information, and those countries will be given 60 days to comply with the additional information requirements. Nationals of non-compliant countries will be excluded from entry until compliance occurs.
  
This means that, if any of the 7 countries is unable to meet these new security clearance guidelines, the travel ban will be extended indefinitely. Furthermore, it means that additional countries may be added to the list.

Trump Administration - Potential Impacts
 
Throughout his presidential campaign, Donald Trump promised to take several actions regarding U.S. immigration if elected. Based on leaked copies of draft EOs, we expect the following additional actions:
  • Elimination of Deferred Action for Childhood Arrivals (DACA): Established by the Obama Administration, this program provides work authorization and deferment of removal action against certain immigrants who arrived in the U.S. as children. While the Administration indicated on January 23 that the repeal of DACA is now a low priority, a leaked draft EO indicates the intention to eliminate DACA, leaving those current beneficiaries with work authorization that will end at the completion of the current validity period.
     
  • Review of all Existing Nonimmigrant Work Visa Regulations: Another leaked draft EO indicates the Administration's intention to order DHS within 90 days to review all regulations allowing foreign nationals to work in the U.S. and determine whether they are in the national interest or should be rescinded. It is important to note that most employment-based immigration programs are governed by regulations which require federal agency action in the Federal Register, or Congressional action, in order to be changed, so publication of this EO should not cause immediate changes. This draft EO also orders, among other things, that DHS immediately terminate all existing parole policies, initiate L-1 Site Visits, propose regulations to reform the F-1 OPT program, limit the use of B-1 and B-2 visas for business-related activities, review the H-1B lottery system.
Several other leaked draft EOs have also been circulated, but they should not largely impact our employment-based clients.

FY2018 H-1B Cap Season
 
The annual cap season for new H-1B petitions is here, with an initial filing window of April 1 - 7 for petitions with an October 1, 2017 start date. It is anticipated that demand for H-1Bs will once again exceed the cap of 65,000 (with an additional 20,000 for those employees holding U.S. Master's degrees), resulting in a random computerized lottery to determine which petitions are selected for processing by USCIS.
 
Due to the uncertain immigration landscape, we recommend that cap-subject employers review all non-H-1B nonimmigrant workers and consider sponsoring eligible employees for an H-1B this year.   This includes employees in the following statuses: TN, L-1, STEM EAD, E-3, H-1B1.  As you may know, there have been reports that the Trump Administration plans to make changes to the H-1B program that may involve higher filing fees and higher prevailing wages, and the Administration has also indicated plans to change or eliminate the NAFTA treaty which authorizes TNs.
 
Please contact the attorney you work with regarding any potential H-1B cap cases so we may begin work on the case as soon as possible, but preferably no later than the beginning of March to allow time for the petition to be prepared. 

USCIS Increases Filing Fees and Updates Forms
 
As detailed in our October 24 News Flash, effective December 23, 2016 USCIS increased filing fee amounts for the majority of petitions and applications by a weighted average of 21%.  In conjunction, on December 23 USCIS released previously unannounced updated versions of many application and petition forms. Although the new versions simply changed the filing fee amount in the form instructions, all applications and petitions must be filed on the new form versions beginning February 21.
 
In an unrelated update, on November 14, 2016 USICS published a revised version of Form I-9, Employment Eligibility Verification. Employers are required to use the new version starting January 22, 2017. The revised form adds new fields and areas for employers to indicate other names used by employees, identify multiple preparers and translators, and provide supplemental information if necessary. The form has also been updated to be more compatible with completing on a computer, rather than by hand.
 
Finally, on January 17, 2017, USCIS issued a new Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). This Supplement is being added to the I-485 application in compliance with the new regulation (discussed in the next section) which took effect that day. The form must be filed with all employment-based I-485 applications that are filed separately from the underlying I-140 petition to confirm that the job offered to an employee beneficiary on Form I-140 remains a bona fide job offer that the employee intends to accept once their I-485 is approved. The form will also be used to request job portability to a new full-time, permanent job offer in the same or similar occupation, which the employee intends to accept (or continue) with a new employer once their I-485 is approved (i.e. I-140 portability). The Supplement can be completed and submitted proactively when an employee with an approved I-140 and pending I-485 changes jobs, and will also be required prior to adjudication of the I-485 when USCIS issues a Request for Evidence regarding the bona fide job offer. A portion of the form must be completed by the employee and a portion must be completed by the employer extending the job offer.

Program Improvements Affecting High-Skilled Nonimmigrant Workers Take Effect
 
As described in our November 23 News Flash, USCIS issued a lengthy new rule affecting a number of immigration programs, which took effect on January 17. The rule is intended to improve processes and increase certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers; provide greater stability and job flexibility for those workers; and increase transparency and consistency in the application of DHS policy related to certain classes of immigrants and nonimmigrants. 
 
How the rule will be enacted in practice will take time to discern, but we know already that the EAD changes in particular are both helpful and problematic. Since the timely filing of an EAD renewal application now triggers an automatic extension of the existing EAD for certain applicants for 180 days from the date of expiration, those affected EAD applications no longer need to be filed so far in advance (previously, EAD holders must have already received the new EAD card in order to continue working when their previous EAD expired). On the flip side, the regulation eliminated the requirement that USCIS adjudicate all applications within 90 days of filing. We are already seeing the impact of this on initial EAD applications, which are sometimes taking longer to adjudicate and we no longer have regulatory recourse. Depending on USCIS adjudication resources, we may well see EAD adjudication times lengthen in the coming months - and even applicants for renewals should consider this when deciding the timing of filing renewal applications.

Parole for Entrepreneurs
 
On January 17, USCIS published a new rule to help international entrepreneurs work in the U.S. for up to five years as 'parolees'. Currently, foreign business founders must seek admission and work authorization in the U.S. under an existing visa category such as L-1A or E-2. The new rule, which takes effect July 17, would allow international entrepreneurs the potentially simpler option of seeking parole rather than visa status. Eligibility requirements and highlights include:
  • The entrepreneur must own at least 10% of a startup entity founded in the last five years and have an active and central role in the company.
     
  • The startup company must prove significant potential for rapid growth and job creation by demonstrating (1) an investment of at least $250,000 from established U.S. investors or (2) awards or grants of at least $100,000 from certain federal, state, or local government entities. The qualifying investment cannot be from the entrepreneur or his or her parents, spouse, sibling, or child, or any entity where the entrepreneur or relative has an ownership interest.
     
  • The initial parole is valid for up to 2.5 years and grants automatic work authorization, with an extension available for an additional 2.5 years if the startup retains potential for growth and job creation.
     
  • Spouses of international entrepreneurs can apply for work authorization.
     
  • Up to 3 entrepreneurs per startup can qualify for parole.
     
  • The parole does not offer a direct path to permanent residence.
Please note that several provisions of the Trump Administration's existing and draft EOs target the parole program, so this new rule may well be eliminated before it takes effect in July.

Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State, provides periodic analyses of current trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of January 2017:
  • Employment-Based First Preference (EB-1): Demand in the EB-1 category has been strong so far this Fiscal Year. As a result, EB-1 India and China are expected to retrogress at some point later this year, though likely not as far back as they did last year. Numbers would likely return to "Current" in October 2017 at the start of the new Fiscal Year. 
     
  • EB-2 India: Due to significant demand from EB-3 upgrades, EB-2 India is unlikely to advance for several months, and will not advance significantly until at least July or August. The priority date is unlikely to recover to last year's date.
     
  • EB-3 China: This date will likely remain the same for awhile in anticipation of demand from "downgrade" petitions. 
There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers.  For purposes of this newsletter, we are including only the categories most applicable to our business clients.  For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website. 

Employment-Based Preference Categories
  • First (EB-1):  Priority Workers.  Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
     
  • Second (EB-2):  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.  Also includes National Interest Waiver (NIW) applicants.
     
  • Third (EB-3):  Skilled Workers, Professionals, and Other Workers.
Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below.  "C" means current, i.e., numbers are available for all qualified applicants.    

Following are the relevant Visa Bulletin Final Action Dates for February 2017 (i.e. dates that allow an application to be adjudicated):
  
Employment-Based
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
1st
C
C
C
C
C
2nd
C
15NOV12
15APR08
C
C
3rd
01OCT16
01OCT13
22MAR05
01OCT16
15OCT11
Other Workers
01OCT16
01DEC05
22MAR05
01OCT16
15OCT11
  
  
Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
Family-Sponsored
All Chargeability Areas Except Those Listed
China - mainland born
India
Mexico
Philippines
F2A
15APR15
15APR15
15APR15
15APR15
15APR15

Processing Times

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received.  Based on reported processing times from those agencies and what we have been seeing recently, following are the current processing times for the most commonly-filed employment-based applications and petitions:  

Application /
Petition Type
Current Reported
Processing Times
H-1B
CSC: 6-8   months
VSC: 9-12+ months
NSC: 3-4 months
PERM
3-4 months
PERM Prevailing
Wage Requests
3-5 months
PERM audits
8 months from
initial date of filing
I-140
4-5 months
I-485
6-8 months
EAD
3-4 months
Advance Parole
3 months

Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).  
In the News: What's Happening at RSST Law Group
  • As part of our response to President Trump's Executive Order banning entry for individuals from certain countries, Howard Silverman and Ellen Driver have spent time at Logan Airport as resources for those entering and their families. Howard has also spoken with a number of news outlets. Following is a sampling of articles:
  • Heidi Snyder will be speaking on a PERM panel at the Massachusetts Continuing Legal Education (MCLE) Employment-Based Immigration Conference on April 14, 2017. 
     
  • Ellen Driver served as co-chair of the MCLE Immigration Basics Plus conference on December 14, 2016.
Please Note that this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 | www.rsstlawgroup.com