Breaking News 01.05.2017
What the Election Means for Immigrants
In the weeks since the 2016 Election, immigration lawyers are getting asked the same question over and over again: “What does this mean for my case?” There is no easy answer, and to some extent we all have to wait and see what will happen. The President-Elect has frequently discussed immigration, including threatening to eliminate certain types of employment visas, doing away with DACA (benefits for persons who arrived in the US under age 16), banning Muslims from entering the country, and deporting any foreign national with a criminal record. As of yet, it is unknown which and how many of these policies Mr. Trump will try to push forward in earnest. Until we have a new President, however, nothing has changed.
Keep in mind that in the United States, the President cannot change the law on his own; Congress does that. He can only change the way the laws are enforced. Many forms of immigration relief are enumerated by federal statute, and others are purely creatures of federal regulations. Neither laws nor regulations can be changed overnight: the former requires an act of Congress, which would be publicly debated and discussed by our Senators and Representatives over some time, and the latter requires notice and comment rulemaking, which can take at least six months after the President proposes rule changes under the Administrative Procedures Act. If you have an application or petition pending, in general you have a right to have it adjudicated under the law and regulations in place at the time it was filed. Generally, any changes in the laws or regulations would only apply to FUTURE applications or petitions.
What can change overnight is how existing laws are enforced. For example, the most immediate changes we can anticipate could be: failure to continue extending deferred action programs in place such as DACA; declining to extend TPS designations to countries who have received it in the past (or terminating such designations altogether); and rescinding DHS policy memoranda on “enforcement priorities” (that is, whom the government decides to deport) and administratively closing cases in removal proceedings.
What can you do now? If you are eligible for a benefit that might disappear (TPS, DACA, Administrative Closure), you can still apply. Talk to your immigration lawyer about the risks and benefits of doing so. U.S. citizens can and should actively lobby their own Representative or Senator regarding these issues, and foreign nationals can encourage their U.S. citizen friends, neighbors, and employers to do so. Regardless of legal status or nationality, you can donate to the American Immigration Council, the American Civil Liberties Union, and local nonprofit organizations in your community that protect immigrant rights.
DHS Amends Worker Rules
On November 18, 2016, the U.S. Department of Homeland Security “DHS” adopted a final rule amending its regulations to codify and improve USCIS policies concerning certain employment-based immigrant and nonimmigrant visa classifications, including by making it easier to hire and retain nonimmigrant workers who have approved Form I-140 petitions and giving such workers additional career options as they wait for immigrant visas to become available. These improvements are increasingly important considering the lengthy waits and consistently growing demand for immigrant visas.
The new regulation (available HERE) is 95 pages long, but important highlights include:
- New guidelines for determining when nonprofit entities qualify as H-1B cap-exempt and fee-exempt employers. The new rule improves upon and codifies current policy, clarifying that nonprofit entities may qualify for the H-1B cap and fee exemptions if the entity can show that “a fundamental activity [as opposed to “a primary purpose”] of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” Nonprofit entities may now qualify for cap and fee exemptions even if they are engaged in more than one fundamental activity, any one of which may directly contribute to the research or education mission of a qualifying college or university. Furthermore, nonprofit entities may establish their affiliation with such institutions and thus exempt from the cap and fee exemptions by submitting formal written affiliation agreements with institutions of higher education as evidence that the nonprofit entities will directly further the educational or research missions of the affiliated institutions of higher education. DHS also clarified that nonprofits need not prove the absence of shared ownership or control between the nonprofit entity and the institution of higher education. Finally, DHS adopted a definition of “governmental research organizations” to include state and local government research organizations (in addition to federal organizations) for purposes of the cap exemption and fee exemption.
- “Compelling circumstances” employment authorization documents (EADs) for those stuck in employment-based immigrant visa backlog. The final rule provides that, to obtain a temporary grant of compelling circumstances employment authorization, an individual must (1) be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization is filed; (2) be the principal beneficiary of an approved Form I-140 petition; (3) establish that an immigrant visa is not authorized for issuance based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect on the date the application is filed; and (4) demonstrate compelling circumstances that justify the exercise of USCIS discretion to issue an independent grant of employment authorization. Such EADs may be renewed in one-year increments under certain limited circumstances. Whether or not “compelling circumstances” exist is a case-by-case determination, but DHS provided the following four illustrations that satisfy compelling circumstances: (1) serious illness or disability faced by the nonimmigrant worker or his or her dependent; (2) employer retaliation against the nonimmigrant worker; (3) other substantial harm to the applicant; and (4) significant disruption to the employer.
- Nonimmigrant grace periods. Grace periods allow qualified nonimmigrants who lose or leave their jobs to transition to new employment while maintaining nonimmigrant status, or seek a change of status, or prepare to depart the United States. DHS has for years offered very limited grace periods to nonimmigrants with H-1B, O, or P classifications, but has now expanded the grace period for those classifications to up to 60 days, and extended it as well to E-1, E-2, E-3, L-1 or TN classifications.
- Multiple H-1B petitions. The new rule enhances the ability of H-1B nonimmigrant workers to change jobs or employers by authorizing them to accept new or concurrent employment upon the filing of a nonfrivolous H-1B petition (“H-1B portability petition”). The final rule allows H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) on behalf of H-1B nonimmigrant workers. An H-1B nonimmigrant worker who has changed employment based on an H-1B portability petition filed on his or her behalf may again change employment based on the filing of a new H-1B portability petition, even if the former H-1B portability petition remains pending.
- Priority Date retention for approved I-140s. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.
New Options for Relatives of Certain Military Personnel and Veterans
On November 23, 2016, USCIS issued a new policy memorandum that clarifies and supplements guidelines for granting discretionary relief for family members of those who serve or have served in the U.S. military. In 2013, USCIS began issuing “parole-in-place” for spouses, children, and parents of active or past members of the military. Individuals who have obtained parole-in-place or deferred action are eligible to apply for work authorization for the period of parole or deferred action if they can demonstrate economic necessity, and may become eligible to get permanent residence without leaving the U.S. The new guidance provides that:
- The terms “child” and “children” are changed to “sons and daughters” so as to include adult, married children of service members;
- Individuals who “previously” served on active duty or in the Selected Reserve of the Ready Reserve includes former designated military personnel (who were not dishonorably discharged) whether they are living or deceased;
- USCIS may issue deferred action on a case-by-case basis for Department of Defense Delayed Entry Program (DEP) nonimmigrant enlistees through the Military Accessions Vital to the National Interest (MAVNI) program;
- USCIS may issue deferred action on a case-by-case basis for family members of certain MAVNI and other DEP enlistees who are present in the United States without authorized periods of stay;
- USCIS may issue deferred action on a case-by-case basis for military family members who would be eligible for parole under the guidelines in the 2013 policy memorandum but for the fact that they have already been admitted.
MAVNI Program Revised
On September 30, 2016, the Under Secretary for Defense issued a memorandum extending the Military Accessions Vital to the National Interest (MAVNI) pilot program until September 30, 2017. The memo also provided updates to MAVNI designed to “strengthen and improve the execution of the… program”. MAVNI provides for “case by case” acceptance of certain nonimmigrants into the armed forces if they either hold “medical specialties for which a [military branch] has a critical shortfall” or have “special language and associated cultural backgrounds” as “necessary to support current and projected future military operations”. Updates to the program include:
- Each Service is limited to the following maximum number of accessions (enlistments) each year: Army – 1,200; Navy – 65; Marine Corps – 65; and Air Force – 70.
- No more than 10% of each Service’s Reserve allocations can go to aliens who qualify under language/cultural skills.
- No more than 10% of all MAVNI accessions can be allotted to any one language/associated cultural skillset.
- No Category 2 language/culture applicant may ship to basic training or serve in active duty until the Service certifies in writing their ability to meet administrative, security, and suitability protocols.
- Enlistments must be for three years of active duty or six years of reserve service.
- Enlistees must demonstrate English language proficiency.
- Category 1 eligible languages are: Albanian, Bengali, Bulgarian, Cebuano, Czech, Dhivehi, Haitian-Creole, Hungarian, Malaysian, Polish, Portuguese, Sinhalese, Tagalog, Tamil, Thai.
- Category 2 eligible languages are: Amharic, Arabic, Azerbaijani, Burmese, Cambodian-Khmer, French (limited to citizens of African countries), Georgian, Hausa, Hindi, Igbo, Indonesian, Kashmiri, Kurdish, Lao, Malay, Moro, Nepalese, Pahari, Punjabi, Pushtu (Pashto), Serbo-Croatian, Sindhi, Somali, Swahili, Tajik, Turkish, Turkmen, Ukrainian, Urdu, Uzbek, Yoruba.
Drug Arrests Triggering Visa Revocation?
In November 2016, we received a report that a Colombian university student was notified by the U.S. Embassy in Bogota that his F-1 visa had been revoked. The consulate provided no reasoning for the visa revocation, but the student had recently been arrested for a marijuana-related driving offense. For some time, it has been the practice of the U.S. Department of State to revoke nonimmigrant visas following an alcohol-related DUI arrest under a discretionary practice called “prudential revocation,” regardless of whether or not the student was ultimately convicted of the DUI. But until now, drug-related offenses have not triggered prudential visa revocation. However, sources within the Department of State subsequently confirmed that consulates are now extending this “prudential revocation” to include driving offenses involving marijuana and likely any other drug. This means that a nonimmigrant who is arrested for a driving offense committed while under the influence of drugs can and likely will get a notification from the issuing U.S. consulate that his/her visa has been revoked. Any person who receives such notification should consult with an immigration attorney to advise them on the effect on their legal status in the U.S. as well as future international travel.
PERM Modernization Rule Withdrawn
The current PERM (permanent labor certification) regulations are 10 years old, and the Department of Labor has repeatedly and publicly recognized the need to update the labor certification process. DOL has been working on a modernization rule for several years, and most thought publication of the rule was nigh. However, on December 16, the Office of Foreign Labor Certification withdrew the PERM Notice of Proposed Rulemaking from review, effectively halting any progress on a new PERM modernization rule. Thus we will need to wait until after the inauguration to determine whether PERM reform is a dead letter, or is merely down for the count.
President Obama Dismantles NSEERS Program Before Inauguration
On December 23, 2016, the Department of Homeland Security announced effective immediately it would remove outdated regulations for the controversial National Security Entry-Exit Registration System (NSEERS) program. The NSEERS registry was created after the terror attacks of September 11, 2001 to capture information on visitors to the U.S. from countries with active terrorist groups. However, the program has not been in use since 2011, after DHS found the program offered no “discernible public benefit” because it was “redundant, captured data manually that was already captured through automated systems, and no longer provided an increase in security.” The President-Elect has suggested resurrecting the program as a potential tool for his so-called “Muslim registry” system. This largely symbolic move looks to be an attempt to distance the outgoing administration from the incoming one. See Federal Register, Vol. 81, No. 247, Friday, December 23, 2016.
Employment Authorization Extended for Certain Nepali F-1 Students
Effective December 27, the Department of Homeland Security has extended eligibility for employment authorization for F-1 students who are citizens of the Federal Democratic Republic of Nepal and are experiencing “severe economic hardship as a direct result of the earthquake in Nepal on April 25, 2015.” These students will continue to be allowed to apply for employment authorization and work an increased number of hours while school is in session until June 24, 2018, provided that they satisfy the minimum course load requirement, while continuing to maintain their F-1 student status. See Federal Register Vol. 81, No. 248, Tuesday, December 27, 2016.
USCIS Relaxes Rules for National Interest Waivers (NIWs)
On December 27, 2016, the USCIS Administrative Appeals Office (AAO) issued a precedent (binding) decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which vacates the government’s 18 year-old standard for determining when exceptional and highly-educated immigrants qualify to “self-petition” for permanent residency through a National Interest Waiver (NIW).
The new standard provides that USCIS may grant an NIW if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and labor certification. In Matter of Dhanasar, USCIS found the prior standard ( the NYSDOT framework) “confusing” and “subject to misinterpretation” by petitioners and adjudicators alike. The new standard should “provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”
DHS Extends AND Redesignates TPS for Yemen
On January 4, 2017, the Department of Homeland Security extended Yemen’s Temporary Protected Status (TPS) designation for 18 months, from March 4, 2017, through September 3, 2018, and redesignated Yemen for TPS for 18 months, effective March 4, 2017, through September 3, 2018.
This means that Yemeni nationals (or aliens having no nationality who last habitually resided in Yemen) who already have TPS may re-register under the extension, and apply for renewal of their Employment Authorization Documents (EAD) with USCIS. Previously, only individuals who had been continuously residing in the United States since September 3, 2015 were eligible for TPS under Yemen’s designation. However, the re-designation of Yemen expands eligibility for TPS to include individuals who have been continuously residing in the United States since January 4, 2017. Any such individuals may submit an initial TPS registration application under the redesignation and apply for an EAD.
This is the first update to Yemen’s TPS designation since DHS initially designated Yemen for TPS on September 3, 2015 based on ongoing armed conflict in the country that posed a serious threat to the personal safety of returning nationals.
USCIS to Hold Teleconference on Revised I-9 Form
Under U.S. immigration law, employers are required to use Form I-9 to verify any hire’s identity and authorization to work (whether the hire is a U.S. citizen or from another country). USCIS released an updated I-9 form in November, and the new version will be mandatory effective January 22, 2017. USCIS will be hosting a teleconference Form on Tuesday, January 31, 2017 from 2:00 to 3:30 p.m. (Eastern) wherein representatives from USCIS will review the enhancements included in the revised Form I-9, discuss employment eligibility verification best practices, and answer questions about each section of the form.
More information about the teleconference, including registration details, can be found HERE.
USCIS to Hold Teleconference on Revised I-9
Under U.S. immigration law, employers are required to use Form I-9 to verify any hire’s identity and authorization to work (whether the hire is a U.S. citizen or from another country). USCIS released an updated I-9 form in November, and the new version will be mandatory effective January 22, 2017. USCIS will be hosting a teleconference on Tuesday, January 31, 2017 from 2:00 to 3:30 p.m. (Eastern) wherein representatives from USCIS will review the enhancements included in the revised Form I-9, discuss employment eligibility verification best practices, and answer questions about each section of the form.
More information about the teleconference, including registration details, can be found HERE.
Attorney Speaking Engagements
Ware|Immigration attorneys frequently present at regional and national conferences. They also have speaking engagements at various universities and corporations across the nation.
Mr. Ware will be speaking at the following upcoming events:
Jan. 19-20, 2017
Oregon State University
Jan. 24, 2017
American Immigration Lawyers Association (AILA)
Webinar on Allied Healthcare Professionals
Feb. 10, 2017
Feb. 21, 2017
“The Sanctuary Campus and the Future of DACA”
Association of International Education Administrators
Mar. 9, 2017
“Intersection of Employment and Immigration Law”
Federal Bar Association
San Antonio, TX
May 28 – Jun. 2, 2017
NAFSA Annual Conference
Los Angeles, CA
Jun. 21-24, 2017
AILA National Annual Conference
New Orleans, LA
Mr. Ware also recently presented recently at the following engagements:
Nov. 1-5, 2016
NAFSA Region XII Conference
Rancho Mirage, CA
Nov. 6-7, 2016
NAFSA Region VI Conference
Nov. 8, 2016
Nov. 15-16, 2016
West Virginia University
Nov. 18, 2016
Hult International School of Business
San Francisco, CA
Nov. 21-22, 2016
Dec. 4, 2016
International Medical Graduate Taskforce Conference
Dec. 5, 2016
Dec. 8-9, 2016
AILA Solo and Small Firm Conference
Lake Buena Vista, FL
If you are interested in attending one of the presentations or inviting an attorney to speak at your business, please contact [email protected] to discuss possibilities.