Breaking News 05.08.2017

Trump Administration Announces Plan to Initiate a "Reform" of the H-1B Program

On April 18, 2017, President Trump signed an Executive Order (EO) entitled "Buy American and Hire American," with a stated policy goal of "creat[ing] higher wages and employment rates for workers in the United States" by "rigorously enforc[ing] and administer[ing] the laws governing entry into the United States of workers abroad."

Beyond this brief policy statement, Section 5 of the EO contains the only two sentences that deal directly with foreign workers. In these two sentences, the EO directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to "propose new rules and issue new guidance" to "protect the interests of United States workers..., including through prevention of fraud or abuse." More specifically, the second sentence orders these same officials to "suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." Unlike other EOs which have set forth a certain number of days for a report or follow up, this EO commands the heads of these agencies to suggest reforms "as soon as practicable."

Thus, it appears that the Trump Administration has singled out the H-1B program in furtherance of his campaign message of making companies "Hire American" workers. It is important to note that there are no immediate changes or impact to the H-1B program; the EO only orders "suggested reforms" to be put forth by four different executive agencies: Departments of Labor, State, Homeland Security, and the Attorney General's office. We have no firm details as to what these reforms would look like, but the EO signals tighter restrictions on proving higher education, skill, or wage levels than currently required (which would require authorization by Congress), and perhaps raising fees to accommodate more rigorous fraud and abuse prevention. The H-1B process already requires a $500 fraud prevention and detection fee for all initial H-1B petitions or to switch employers.

H-1B Cap Reached in 5 days for Fifth Consecutive Year; DV Lottery Completed

On April 11, 2017 United States Citizenship and Immigration Services (USCIS) announced that it had received 199,000 H-1B petitions for Fiscal Year 2018 w ithin the 5-day filing window (April 3-7, 2017), and had completed its computer-generated lottery to select enough petitions to meet the 65,000 H-1B general-category cap as well as the 20,000 advanced degree cap. USCIS will reject and return all petitions (and their filing fees) that were not selected by the lottery. This is the fifth consecutive year that USCIS had to employ a lottery to select H-1B petitions under the cap. FY 2018's 199,000 petitions submitted marks a 15% decrease over FY 2017's 236,000 petitions.

Additionally, results for the 2018 Diversity Visa (DV) lottery, also known as green card lottery 2018 , were published by U.S. Department of State (DHS) on May 2, 2017. Those who entered the DV lottery program from October 4, 2016 to November 7, 2016, can check their results now on www.dvlottery.state.gov .

Employment-Based Updates to the Visa Bulletin for May 2017

The Department of State (DOS) has published its visa bulletin for May 2017, available here. There has been a "dramatic" increase in demand for first and second employment-based immigrant visa categories (also known as EB-1 and EB-2, respectively), which will likely cause the Department of State to institute a temporary waiting list in these categories.

First Preference (EB-1)

Due the increased demand for EB-1 petitions from China and India this year, nationals of both countries will face a "final action date" in the EB-1 category by July 2017, which was previously marked "C" for "current". A "final action date" means that an immigrant visa is unavailable to any beneficiary with an I-140 "priority date" after the final action date. This EB-1 final action date will go into effect at some point "in the near future". According to DOS, this is a temporary measure, and EB-1 visas for both countries will become current again when the Fiscal Year opens in October. This also appears to be preemptive advice, as DOS has said that it is possible the category may advance through September.

Second Preference (EB-2)

DOS announced that citizens of all countries will now face final action dates for the EB-2 category. Previously, only China and India had final action dates for EB-2 petitions, with China's final action date at 02/08/2013 and India's at 06/22/2008. DOS expects all areas of the world to become oversubscribed by July, and that a final action date will be established at that point. Like the EB-1 announcement, DOS has said that this category will become current again in October 2017, and that it is possible for the category to advance in the meantime.

USCIS Recommends TPS for Haiti Be Terminated

Haitian nationals with Temporary Protected Status (TPS) could lose these benefits by July. USCIS Acting Director James McCament issued a memorandum on April 10, 2017 recommending that TPS benefits for Haiti be terminated because "conditions in Haiti no longer support its designation for TPS." Haiti's current TPS designation, initially instituted on January 21, 2010 following the devastating 7.0 magnitude earthquake, is set to expire on July 22, 2017. Acting Director McCament further recommended that the effective date for TPS termination be delayed until January 22, 2018 to allow for a six-month extension for current beneficiaries and to provide for an "orderly transition." Over 50,000 Haitians could be affected. In response, many organizations have refuted USCIS's claim that Haiti is ready to receive a large number of new residents who have become extremely accustomed to live in a more developed country.

The Secretary of the Department of Homeland Security must publish a notice in the federal register 60 days prior to the TPS expiration if benefits are NOT to be extended, thus we should know the fate of Haiti's TPS designation by May 22, 2017. If you or someone you know could be affected, contact a qualified immigration attorney as soon as possible to evaluate legal options.

Worried about ICE? Know your rights!

Immigrant communities have faced a marked increase in anxiety and fear since the Trump Administration announced an increase in immigration enforcement. It is important that everyone know your rights in the event you face an encounter with police, immigration authorities (ICE), or the FBI. The ACLU and United We Dream have put together very helpful and practical "Know Your Rights" handouts available online in many different languages, along with instructions for reporting interactions with immigration authorities. The ACLU's presentation is available here. United We Dream's handout is available here.

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