Tag: Immigration

U.S. Citizenship and Immigration Services (USCIS) will redesign the Permanent Resident Card (Green Card) and the Employment Authorization Document (EAD) starting May 1, 2017. New cards will have enhanced graphics and fraud-resistant security features. The updates are part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

New Green Cards and EADs Features:

• Display the individual’s photos on both sides
• Unique graphic images and color palettes
• Embedded holographic images
• No longer displays the individual’s signature
• Green cards will no longer have an optical stripe on the back

Guidelines to Determine if a Card Is Valid:

• Some Green Cards and EADs issued after May 1, 2017 may still display the existing design format during the transition. Either Green Card and EAD will remain valid until the expiration date on the card.
• Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE).
• Certain EADs have been automatically extended beyond the validity date on the card. To determine which EADs are covered, visit the Temporary Protected Status and American Competitiveness in the 21st Century Act pages on the USCIS site.
• Older Green Cards that do not have an expiration date remain valid, however those individuals should consider applying for a replacement card bearing an expiration date to reduce the risk of fraud.

On April 18, 2017, President Trump signed an Executive Order mandating a comprehensive review of the H-1B visa program used by companies to employ highly-skilled foreign workers. The Executive Order instructs the U.S. Department of Justice, Department of State, Department of Labor and Department of Homeland Security to propose new rules and guidance to “protect the interests of U.S. workers” and prevent fraud and abuse within the program.  The federal agencies are also charged with suggesting reforms to the H-1B program to ensure that H-1B visas are awarded to the “most skilled” or “highest-paid” beneficiaries.

What Employers Can Expect
The Executive Order does not change the current H-1B program, which is governed by federal law and regulations, nor does it impact the ongoing employment of H-1B workers pursuant to existing law and regulation. Rather, it calls for the strict enforcement of all current laws and directs the various federal agencies to propose program reforms.

The Executive Order is short on specifics and does not define “most skilled” or “highest paid” worker relative to any standard. It also does not address the number of H-1B visas awarded annually, which is set by statute.

Potential agency recommendations could include restricting the qualifying criteria for the H-1B visa, so that only top earners with a specific skill set may be considered.  However, such changes are speculative and likely to require statutory or regulatory change, through either legislative action, or the administrative agency rule-making process.

Gibney will continue to closely monitor these developments.  In the interim, employers should work with counsel to ensure that current company H-1B programs are compliant with all regulatory requirements, including record-keeping requirements, and to prepare for government audits.

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

 

On March 15, 2017, a Federal District Court in Hawaii granted a temporary restraining order preventing implementation of the two key provisions of the latest Executive Order impacting immigration, which was intended to go into effect on March 16th.  The court order halts implementation of Section 2 of the order regarding suspension of entry by nationals of designated countries for 90 days and Section 6 suspending refugee admissions.

Update: On March 29, 2017, the Federal District Court in Hawaii indefinitely extended the March 15^th order blocking enforcement, turning the earlier temporary restraining order into a preliminary injunction. The Administration has appealed this decision to the Ninth Circuit Court of Appeals.  Appeals are now proceeding in the Fourth Circuit and the Ninth Circuit Courts of Appeals, increasing the potential likelihood of the Supreme Court ultimately hearing the issue.

Gibney will continue to closely monitor any proposed changes to policy or procedure under the new Administration, and we will provide updates as needed.   For further details and forthcoming updates, please see Gibney’s Immigration Updates and FAQs page as well as Gibney’s Insights page.  If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The general information provided below is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

On Monday, March 6, 2017, the Trump Administration issued a new Executive Order which will take effect on March 16, 2017 suspending entry of certain foreign nationals of six (6) countries including Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days, subject to exemptions and waivers outlined below. The order also suspends the entry of all refugees for at least 120 days.

The new Executive Order is more limited in scope and specifically revokes an earlier Executive Order issued on January 27, 2017, which was suspended pursuant to a Temporary Restraining Order issued by the Ninth Circuit Court of Appeals in State of Washington and State of Minnesota v. Trump. The Administration also issued a new Memorandum issuing guidance for the U.S. Secretary of State, the Attorney General, and the Secretary of Homeland Security in relation to the new Executive Order. Many provisions of the Executive Order and the Memorandum call for increased scrutiny of all foreign nationals applying for entry, visa issuance or other immigration benefits. Additional screening or security protocols at consulates and USCIS may impact processing timelines of all applications.

We will continue to monitor the impact of the new Executive Order as agencies, border officers and consulates implement the new rules and policies.

Key Provisions of the New Executive Order Effective March 16, 2017

Enhanced Screening and Security Protocols: Directing agencies to implement additional screening standards and protocols for refugees and other foreign nationals seeking U.S. entry, visa issuance, and immigration benefits and to report on their efforts.

Suspension of Entry to U.S. by Nationals of Designated Countries: Iran, Libya, Somalia, Sudan, Syria, or Yemen. The order suspends the entry of nationals of the designated countries – by birth or citizenship – for at least 90 days starting March 16, 2017.

Exemptions: Nationals of the designated countries in following categories are not subject to the entry ban:

• U.S. citizens traveling with a U.S. passport;
• Lawful permanent residents (“green card” holders);
• Dual nationals including using the passport from a non-designated country;
• Diplomats;
• Persons already granted asylum, refugees already admitted to the United States and individuals granted withholding of removal, advance parole or protection under Convention Against Torture; and
• Persons applying for entry to the U.S. pursuant to a valid visa obtained prior to the effective date of March 16, 2017.

Waivers: The new Executive Order also provided for limited discretionary waivers to be evaluated on a “case-by-case” basis. Officers at the port of entry and consular officers may issue visas or allow entry of a national subject to the ban if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, entry would not pose a threat to national security and would be in the national interest. Section 3(c) of the order provides examples of circumstances where a waiver may be appropriate.

Suspension of All Refugee Admissions: The new Executive Order suspends admission and adjudication of applications by refugees into the United States under the United States Refugee Admissions Program (USRAP) for 120 days. The new order no longer singles out Syria and no longer prioritizes refugee claims based on individuals of a “minority religion.”

Suspension of the Visa Interview Waiver Program: The new order requires those applying for visas at U.S. consulates to attend an in-person visa interview.

Travel Precautions:

Due to uncertainties surrounding implementation of this new Executive Order, foreign nationals who may be impacted by the order should contact immigration counsel prior to departing the U.S. or making plans to enter the U.S. or apply for a visa. Travelers subject to the ban currently outside the U.S. should contact immigration counsel immediately and consider return to the U.S. prior to the effective date of March 16, 2017.

Since the release of the initial Executive Order, individuals have reported inconsistent application of rules, being denied entry onto international flights, extended wait times at U.S. Ports of Entry due to extra screening, as well as hours of detention and intrusive questioning (including separating family members and reviewing cell phones, laptops, and social media accounts) without allowing access to legal counsel. All travelers and visa applicants may be subject to increased scrutiny or delays.

Please contact immigration counsel for specific legal advice on your case.

Gibney will continue to closely monitor any proposed changes to policy or procedure under the new Administration, and we will provide updates as needed.   For further details and forthcoming updates, please see Gibney’s Immigration Updates and FAQs page as well as Gibney’s Insights page.  If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend Premium Processing for all H-1B petitions for a period of up to six months starting on April 3rd, 2017. The USCIS’s goal is to reduce overall H-1B processing times and prioritize adjudication of long-pending petitions.

Background on Premium Processing:

H-1B petitions filed under the regular processing method have been increasingly subject to lengthy adjudication times from six to eight months or longer.

Premium Processing is an expedited method of adjudication available for certain non-immigrant and immigrant visa petitions, including H-1B petitions. Premium Processing is requested by filing Form I-907 and including an additional government filing fee of $1,225.00. It guarantees a response by USCIS (either an adjudication or Request for Further Evidence) within fifteen (15) calendar days of a petition being submitted.

Impact on Non-Cap Subject H-1B Petitions:

• All H-1B petitions filed on or after April 3rd will be subject to significantly lengthier processing times than may otherwise be secured through the Premium Processing method.
• Eligible employees who have maintained H-1B status, and who are filing a timely extension or amendment of status with the same employer, may continue to work while the extension is pending, up to 240 days.
• Eligible H-1B beneficiaries of a change of employer petition filed on or after April 3rd may have to wait 2-3 weeks or more to obtain a receipt notice from the government to allow them to begin work for the new employer, whereas Premium Processing cases typically received email receipts within a few days.
• Some employees may have travel restrictions or increased risks, depending on the expiration of the I-797 approval and visa stamp in the passport.

Employers are encouraged to work with employees and counsel to file cases six months in advance when possible, and to work with employees to plan ahead for international travel.  USCIS may re-instate Premium Processing at or before six months.  If cases filed during the suspension period are not adjudicated by October or employment authorization is at risk, employers may need to evaluate options for expediting cases or ‘upgrading’ to Premium Processing once available.

Impact on Fiscal Year (FY) 2018 Cap-Subject H-1B Petitions:

The start of the H-1B cap submission period for FY2018 begins on April 3rd. No FY2018 cap-subject petitions will be eligible for the expedited Premium Processing request, and all will be processed through the regular processing method. If cases selected in the lottery are not adjudicated by October 1, there may be an impact on certain F-1 students and some companies may want to consider “upgrading” to Premium Processing once it becomes available again.

Other Considerations:

It is unclear whether the USCIS will continue to honor expedited processing for H-1B petitions submitted with Premium Processing that have not been adjudicated prior to April 3rd. USCIS has stated it may choose to adjudicate these petitions under regular processing, or reject any petitions submitted with joint government filing fee checks that did not separate out the filing fee for the Form I-907 requesting Premium Processing.

This suspension may further impact H-1B employees whose state driver’s licenses are expiring and must be renewed, if evidence of non-immigrant status is required for such renewal. H-1B employees may not be able to renew driver’s licenses, or renewals may only be for a temporary duration. Impacted individuals are encouraged to contact their local Department of Motor Vehicles (DMV) office to inquire regarding renewal requirements.

Expedite Options:

The USCIS has noted that discretionary expedite requests for processing remain available for certain petitions. However, these requests are only accepted in very limited situations, including a showing of severe financial loss to a company or person, emergency situations, or humanitarian reasons, among others. All expedite requests are reviewed on a case-by-case basis and granted at the sole discretion of the USCIS’s office leadership.

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