September 5, 2017

Trump Administration to Rescind DACA Protections

The Trump Administration announced that it intends to rescind the Deferred Action for Childhood Arrivals program, known as “DACA.” The program, established by Executive Order in 2012, affects approximately 800,000 undocumented immigrants who were brought to the U.S. as children and were granted protection from deportability and issued valid work authorization. In today’s announcement, the Administration indicated it would pursue an “orderly, lawful wind down” of the program. Further specifics on the near-term effects on the approximately 800,000 current DACA beneficiaries were not made immediately clear. However, the Administration has noted that it will no longer accept new DACA applications.

Although there are reports that lawmakers are drafting a bill that would provide a pathway to permanent residence to individuals without status who came to the U.S. as children, whether Congress will enact such legislation is uncertain. Over the past decade, Republicans, who now control the Congress, have repeatedly blocked similar legislation from passing. Many employers, industry groups, and business leaders are urging Congress to act to protect the program. If Congress does not take remedial action, once DACA authorization expires, the approximately 800,000 individuals affected will lose work authorization and protected status, and will be placed at risk of deportation.

What Employers and Foreign Nationals Should Expect

Employers should be aware that employees with DACA status may lose work eligibility and/or the ability to remain in the U.S. Employers may also wish to consider working with legislative advocacy partners to support legislation. Foreign nationals with DACA status should consult with immigration counsel to discuss possible alternative immigration options and plan for program termination.

All DACA benefits are provided on a two-year basis. USCIS has indicated that individuals who currently have DACA will be allowed to retain both DACA and their work authorizations (EADs) until they expire. USCIS has also announced that it will adjudicate DACA submissions on a case-by-case basis, including:

  • Properly filed and already pending DACA initial requests and associated applications for employment authorization documents (EADs) that have been accepted as of September 5, 2017.
  • Properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.
  • Individuals who have not submitted an application by September 5, 2017, for an initial request under DACA may no longer apply. USCIS will reject all applications for initial requests received after September 5, 2017.

For more details, see the USCIS website here.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

August 29, 2017

Enhanced Immigration Vetting Being Implemented

In April 2017, President Trump signed an Executive Order entitled “Buy American, Hire American,” which instructed the U.S. Department of Justice, Department of State, Department of Labor, and Department of Homeland Security to propose new rules, guidance, and reforms to ensure stricter enforcement of all current laws, “protect the interests of U.S. workers,” and prevent fraud and abuse within the U.S. immigration program. In August 2017, the Foreign Affairs Manual was updated to provide guidance to consular officers administering the issuance of U.S. visas.

Over the past few months, clients have reported a significant increase of the number of Requests for Evidence (RFEs) issued on immigration filings with the U.S. Citizenship & Immigration Services (USCIS) including H-1B specialty occupation petitions (cap-subject and change of employer) and L-1B specialized knowledge intracompany transferee petitions. Some clients have also reported an uptick in visa refusals and denials at consular posts abroad, as well as more difficult screening questions, for various non-immigrant visa types including L-1 intracompany transferees and E-2 treaty investors.

Additionally, the USCIS will begin requiring in-person interviews for employment-based Adjustment of Status (aka green card) applicants starting October 1, 2017.  Current USCIS policy allows for waivers of in-person interviews for the majority of employment-based non-immigrant visa holders.

What Employers and Foreign Nationals Can Expect

Employers should work with counsel to ensure that current company immigration programs are compliant with all legal requirements. Visa applicants should consult with counsel to thoroughly prepare for visa interviews in advance, and expect longer consular processing times. Adjustment of Status applicants should also be prepared for longer green card processing times.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

August 22, 2017

US Embassy in Russia to Suspend Nonimmigrant Visas Starting August 23

The Department of State (DOS) announced that as a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa operations across Russia will be suspended beginning August 23, 2017.

Nonimmigrant visas (NIV) include temporary business visitors and common temporary work visas.

What Employers Can Expect

  • Visa operations will resume on a greatly reduced scale.
  • Beginning September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.
  • NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice.
  • The reduced personnel and other changes are likely to result in ongoing delays in visa issuance at US consulates in Russia.

For more information regarding embassy operations, visa processing and next steps for those with previously scheduled visa appointments, view the full Fact Sheet published by DOS.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

August 2, 2017

Trump Administration Endorses RAISE Act Immigration Reform Bill

On August 2, 2017, President Trump announced his support of the proposed American Immigration for a Strong Economy (RAISE) Act. Proposed changes under the immigration reform bill include:

  • Establish a skills-based immigration system. If approved by Congress, the plan would institute a merit-based system to determine who is admitted to the U.S. and granted legal residency green cards. The system would award points based on a number of factors, including age, education, English proficiency, U.S. job offers, record of achievement, and entrepreneurial potential, among others.
  • Limit family-sponsored immigration. The legislation would limit the kinds of qualifying relationships eligible for family-sponsored immigrant visas. Specifically, the plan would allow American citizens and legal permanent residents to sponsor spouses and minor children for immigrant visas, but would eliminate preference categories for other relatives such as siblings, adult children, and parents.
  • Limit refugees. The number of refugees admitted to the US would be capped at 50,000 per year.
  • Eliminate the Diversity Immigrant Visa Program. The bill also proposes eliminating the 50,000 immigrant visas currently allotted annually in a lottery to applicants.

What Employers Can Expect
If passed, this would have a significant impact on employers who sponsor green cards for their employees by limiting ability to sponsor certain temporary workers for permanent status and increasing backlogs. This proposal faces significant opposition from both parties and it is unlikely the legislation as drafted would be passed by Congress.

Gibney will continue to monitor these developments. If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

July 28, 2017

USCIS Resumes H-1B Premium Processing for Certain Cap-Exempt Petitions

On July 24, 2017, USCIS resumed premium processing for certain cap-exempt H-1B petitions.  Specifically, premium processing resumed for cases in which the H-1B petitioner is an institution of higher education; a nonprofit related to or affiliated with an institution of higher education; or a nonprofit research or governmental research organization.  Premium processing also resumed for petitions that may be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity as defined above.

We will continue to monitor the progress of the premium processing suspension that remains intact for other H-1B petitions. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

July 17, 2017

New Version of Form I-9 Released

Today, U.S. Citizenship and Immigration Services (USCIS) released a new version of Form I-9 that will become mandatory beginning Monday, September 18, 2017. Until Sunday, September 17, 2017, employers may choose to continue to use the prior edition of Form I-9.

With this new version, no changes have been made to the Form I-9 itself. Instead, subtle changes have been made to the Form I-9 Instructions and to the Form I-9 Handbook (M-274). For example, a Consular Report of Birth Abroad (FS-240) issued by a U.S. Embassy or Consulate overseas will now be considered a List C document.

For a complete list of changes to the I-9 Instructions and Handbook, please visit the USCIS website.

Contact your Gibney representative or email info@gibney.com for additional details regarding this announcement, or for information concerning the use of E-Verify or other immigration-related onboarding processes.

July 14, 2017

Department of Homeland Security Delays International Entrepreneur Rule

The Department of Homeland Security (DHS) announced that it will delay implementation of the International Entrepreneur Rule until March 2018 while it considers whether to rescind it. The rule was set to go into effect on July 17. The proposed rule would allow qualifying international entrepreneurs to seek temporary permission to stay in the U.S. as parolees for up to 5 years, to facilitate the growth of promising startups. To be eligible, entrepreneurs would be required to show that their businesses would provide a significant public benefit through the potential for rapid economic growth and future job creation in the U.S. The rule was finalized in January 2017 under the Obama Administration and was intended to expand the available immigration options for startups.

In the announcement, DHS cited President Trump’s January Executive Order, “Border Security and Immigration Enforcement Improvements,” which directed the agency to review procedures for granting parole. Going forward, DHS will publish a notice seeking public comment on a formal proposal to rescind the rule.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

June 29, 2017

Executive Order on Immigration to Take Effect on June 29

Following the Supreme Court’s recent ruling, the Department of State has issued guidelines for the implementation of a 90-day suspension of entry to the U.S. for certain foreign nationals who are citizens or nationals of: Iran, Libya, Somalia, Sudan, Syria, and Yemen, who lack a “bona fide relationship with a person or entity in the U.S.” The 90-day suspension of entry will be implemented at 8:00 pm ET on June 29, 2017.

The Travel Restrictions Do Not Apply To: 
  • Lawful Permanent Residents (green card holders) or U.S. citizens;
  • Dual nationals traveling on a passport other than a passport issued by one of the six countries noted above;
  • Foreign nationals who were in the U.S. as of June 26, 2017;
  • Foreign nationals already in possession of a valid visa or other valid entry documents as of June 29, 2017; and
  • Foreign nationals with a “bona fide relationship” with a person or entity in the U.S.
The Department of State’s guidelines also indicate that applicants (and their eligible derivatives) who have established eligibility for a nonimmigrant visa in a classification other than a B, C-1, D, I, or K visa, are exempt from the travel ban. Applicants (and their eligible derivatives) who have established eligibility for immigrant visas in the immediate relative, family-based, and certain employment-based classifications are also exempt from the ban.

In the guidelines, the Department of State also further clarified the criteria for determining whether a visa applicant has a “bona fide relationship with a person or entity in the U.S.”

Bona Fide Relationship with a U.S. Entity:

The guidelines provide that any relationship with a U.S. entity must be “formal, documented, and formed in the ordinary course,” rather than for the purpose of evading the suspension of entry. Examples of such relationships may include, but are not limited to:
  • Students who have been admitted to U.S. educational institutions;
  • Workers who have accepted an offer of employment from a U.S. company; and
  • Lecturers invited to address an audience in the U.S.

Bona Fide Relationship with a Person in the U.S.:

The guidelines provide that to fall within this exemption, there must be a close familial relationship between the visa applicant and a person in the U.S. Close familial relationships are defined as: parents, parents-in-law, spouses, fiancé/es, children, adult sons and daughters, son-in-law, daughter-in-law, and siblings (including half-siblings and step-siblings). Familial relationships with other family members such as grandparents, grandchildren, aunts/uncles, nieces/nephews, cousins and brothers/sisters-in-law do not meet the definition of a “close familial relationship.” Those that do not meet the criteria above may still be granted a waiver on a case by case basis. Foreign nationals from the six affected countries with plans to travel to the U.S. should consult with immigration counsel immediately. For more information, visit the Bureau of Consular Affairs site.Gibney is available to work with clients to document the above-described criteria, and prepare for increased scrutiny at U.S. Consulates abroad. Gibney will continue to monitor how the new guidelines are implemented at the border and at consulates.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

June 26, 2017

Supreme Court Reinstates Portions of Trump’s Executive Order on Immigration

In an unsigned opinion, the U.S. Supreme Court has agreed to allow a limited provision of President Trump’s Executive Order on immigration (the “Order”) to take effect. The Court decided to allow the suspension of entry for foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen who lack any “bona fide relationship with any person or entity in the United States.”

The Court cited examples of bona fide relationships, including “a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.” The Court stated that foreign nationals who wish to enter the U.S. to live with or visit a family member also meet the criteria for a bona fide relationship. With regards to entities, the relationship must be “formal, documented and formed in the ordinary course.”

What This Means for Foreign Nationals:

  • Foreign nationals of the six countries noted above with plans to travel to the United States, should consult with immigration counsel immediately.
  • Certain other persons from the six countries may be able to qualify for a waiver and should immediately consult with an immigration attorney to determine their eligibility.

The Executive Order Does Not Apply To:

  • Lawful Permanent Residents (green card holders) or United States citizens.
  • Dual nationals traveling on a passport other than a passport issued by one of the six countries noted above.
  • Foreign nationals already in possession of a valid visa or other valid entry documents as of the effective date of the Order (likely to be within the next 2-3 days).
  • Foreign nationals with a connection to the United States, such as a family member in the US or an affiliation with a US institution.

What to Expect:

  • The Executive Order is expected to go into effect within 72 hours and continue for at least 90 days. The Court will hear arguments on the case in October 2017 and will likely issue a final decision sometime during the fall.
  • At this time it is uncertain how the governing agencies will implement the Executive Order. We will continue to closely monitor issues relating to this Supreme Court decision.
  • Foreign nationals from the six affected countries that have plans to travel to the United States, should consult an immigration attorney.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

June 6, 2017

Trump Administration to Implement Enhanced Screening Protocols

The Trump Administration has confirmed that it will move forward with new enhanced screening protocols, including the completion of additional forms, as part of the application process for certain U.S. visa applicants.

According to the State Department, officials will request additional information when they determine that such information is required to confirm identity or conduct more rigorous national security vetting. The State Department confirmed that the tighter vetting would apply to visa applicants “who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.”

What Visa Applicants Can Expect
Under the new procedures, consular officials will have significant discretion in deciding who will be required to provide additional details. For selected applicants, consular officers can request all prior passport numbers; five years’ worth of social media handles, email addresses and phone numbers; and 15 years of biographical information including addresses, employment and travel history. The new supplemental visa application form has been approved for use for an initial period of six months.

We will be closely monitoring implementation, screening procedures, impact on consular processing timelines, and who is being selected for additional screening under these new enhanced protocols.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.