New Executive Order to "Buy American, Hire American" requires government agencies to suggest reforms to “promote the proper functioning of the H-1B visa program”

News Release from Jewell Stewart & Pratt – April 18, 2017 An Executive Order signed by President Trump on April 18, 2017 directs the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to, among other items, (1) suggest reforms to help “promote the proper functioning of the H-1B visa program", including ensuring that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries; and (2) propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of the U.S. immigration system, "including through the prevention of fraud or abuse." However, the Executive Order makes no immediate changes to any nonimmigrant visa programs, including the H-1B program. It also does not provide a deadline for the agencies to produce their proposals, guidance, and suggested reforms.

© Jewell Stewart & Pratt PC 2017

H-1B cap update – USCIS reports 199,000 petitions received

News Release from Jewell Stewart & Pratt PC - April 17, 2017 Today USCIS announced that it received 199,000 H-1B petitions in the filing period that began on April 1. On April 11 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2017

H-1B cap reached for FY 2018, lottery triggered

News Release from Jewell Stewart & Pratt PC - April 7, 2017

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2018. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2018 cap or the advanced degree exemption after today.

USCIS is expected to use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2018 cap-subject petitions received through April 7, 2017. The agency typically conducts the selection process for advanced degree exemption petitions first, and includes all advanced degree petitions not selected in the random selection process for the 65,000 limit. The exact day of the random selection process has not yet been announced.

USCIS will likely provide more detailed information about the H-1B cap next week.

© Jewell Stewart & Pratt PC 2017

Travel Ban 2.0 Blocked Indefinitely

News Release from Jewell Stewart & Pratt – March 30, 2017 As reported on March 30, 2017 by Laura Jarrett, CNN, “A federal judge in Hawaii granted the state’s request for a longer-term halt of the revised travel ban executive order Wednesday [March 29^th]. U.S. District Court Judge Derrick Watson blocked the core provisions of the revised executive order two weeks ago, concluding that the order likely violates the Establishment Clause of the Constitution by disfavoring Muslims. But Watson’s earlier decision was only a limited freeze of the executive order through a temporary restraining order. As a result, the plaintiffs asked the judge to convert that decision into a longer-term preliminary injunction and Watson agreed Wednesday night, meaning that the President’s 90-day ban on foreign nationals from six Muslim-majority countries and the 120-ban on all refugees entering the country are now blocked indefinitely, unless any higher court changes Watson’s order or the state’s lawsuit is otherwise resolved.”

Update: The Trump Administration filed an appeal to the District Court's ruling on March 30.

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Temporary Restraining Order Issued for Travel Ban 2.0

News Release from Jewell Stewart & Pratt – March 15, 2017 On March 15, 2017, the U.S. District Court for the District of Hawaii issued a temporary restraining order prohibiting the federal government from enforcing the travel ban in the March 6, 2017 Executive Order (EO) on a nationwide basis. In his order, U.S. District Judge Derrick K. Watson stated that the EO was “issued with a purpose to disfavor a particular religion” and that “nationwide relief is appropriate in light of the likelihood of success.” The travel ban will therefore not take effect on March 16, and the government is prohibited from enforcing the travel ban until further ordered from the court. As with the previous litigation, there may be further hearings before a permanent order is issued.

Update: On March 16, the U.S. District Court for the District of Maryland separately issued a ruling barring the implementation of the EO. The Department of State also issued a statement of compliance with the court orders.

© Jewell Stewart & Pratt PC 2017

USCIS temporarily suspends Premium Processing Service for H-1B petitions

News Release from Jewell Stewart & Pratt – March 3, 2017 On March 3, 3017, USCIS announced that starting April 3, 2017, it will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, including all FY18 cap-subject H-1B petitions, including regular, master’s advanced degree, and cap-exempt cases.  While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet certain criteria. USCIS indicated that it needs the suspension to focus on reducing backlogs and processing times.

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Revised travel ban delayed again

News Release from Jewell Stewart & Pratt – March 1, 2017 According to reports on March 1, 2017, the White House has further delayed issuing its revised travel ban. News reports on February 28th and March 1st indicate that the new ban will exclude Iraq from the list of seven countries whose citizens are to be banned, and that the ban will not apply to U.S. permanent residents and existing visa holders. Reportedly, the revised ban will have a “phased-in” approach to minimize disruption to travelers in transit. These reports have not been confirmed or denied in official government statements.

© Jewell Stewart & Pratt PC 2017

New travel ban to be issued on Wednesday, March 1

News Release from Jewell Stewart & Pratt – February 27, 2017 As of February 27, 2017, a revised “travel ban” has not been released by the White House. Reports indicate that it may be released on Wednesday, March 1. To date, there are no confirmed reports of what the revised ban will entail. We are watching closely for developments.

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Immigration enforcement and travel ban updates

News Release from Jewell Stewart & Pratt – February 23, 2017 On Monday, February 20, 2017, the U.S. Department of Homeland Security (DHS) issued two memoranda to its sub-agencies concerning immigration enforcement and in particular the agency’s plans for implementing President Trump’s two Executive Orders related to U.S. border and interior enforcement. The DHS memoranda rescind and replace all previous agency guidance regarding enforcement priorities against undocumented immigrants (with the exception of President Obama’s Dreamer and DACA/DAPA orders), expanding the pool of persons prioritized for removal to include undocumented immigrants who have been charged with (not necessarily convicted of) any criminal offense, or who have “committed acts” that constitute a chargeable offense. The memoranda also end long-standing protections to children, massively expand immigration detention, and call for the hiring of thousands of ICE and CBP officers. Further commentary is available here.

As of February 23, 2017, a revised “travel ban” has not been released by the White House. Reports indicate that it may be released in the week of February 27th. To date, there are no confirmed reports of what the revised ban will entail.

© Jewell Stewart & Pratt PC 2017

White House intends to issue new travel ban

News Release from Jewell Stewart & Pratt – February 16, 2017 In briefing filed with the Ninth Circuit Court of Appeals on February 16, 2017, the White House indicated that it was not seeking further review of the travel ban that was part of Executive Order 13769. Instead, it stated that it intends to issue a new Executive Order intended to “eliminate . . . constitutional concerns” with the initial order. If a new Executive Order is released, it would likely moot the existing litigation.

We are watching closely for developments related to the litigation and any new Executive Orders related to travel. In the meantime, unless/until a new Executive Order is released and the litigation is vacated by a court, all U.S. land and air ports of entry are prohibited from enforcing Executive Order 13769 until further orders from a court.

Update: On February 16th the Ninth Circuit issued an order stating that en banc proceedings are stayed pending further orders of the court. President Trump stated in a news conference that the new executive order would be issued next week.

© Jewell Stewart & Pratt PC 2017

Next steps in the travel ban litigation

News Release from Jewell Stewart & Pratt – February 14, 2017 As noted previously, on February 9, 2017, the Ninth Circuit Court of Appeals, in a per curiam order, denied the federal government’s motion for an emergency stay. The order barring implementation of the travel and refugee ban therefore remains in place.

On February 10, a Ninth Circuit judge made a sua sponte request that a vote be taken as to whether the order issued by the three-judge panel on February 9 should be reconsidered en banc. Briefs on whether the matter should be reconsidered en banc are due by February 16. Therefore, February 16 is the earliest date on which a Ninth Circuit decision regarding re-hearing the February 9 panel decision would be issued.

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Next steps in the travel ban litigation

News Release from Jewell Stewart & Pratt – February 10, 2017 As noted previously, on February 9, 2017, the Ninth Circuit Court of Appeals, in a per curiam order, denied the federal government’s motion for an emergency stay, finding that it failed to show a likelihood of success on the merits of its appeal, and that it also failed to show that the lack of a stay would cause irreparable injury. Therefore, until further action by a court, the order barring implementation of the travel and refugee ban remains in place, and all individuals may apply for visas and admission to the United States without regard to nationality.

In terms of next steps, the U.S. District Court for the Western District of Washington has ordered all briefing associated with the State of Washington and State of Minnesota’s motion for preliminary injunction to be completed by Friday, February 17, 2017. A hearing on the preliminary injunction has not yet been scheduled. In the meantime, the White House may seek Supreme Court intervention although five of the current 8 justices would need to vote to overturn the Circuit Court’s decision (a 4-4 split would simply re-affirm the Circuit Court’s decision).

Update: According to reports, the White House won’t immediately appeal to the Supreme Court, but the Ninth Circuit may re-hear the case en banc.

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Ninth Circuit denies White House motion to re-instate travel ban

News Release from Jewell Stewart & Pratt – February 9, 2017

On February 9, 2017, the Ninth Circuit Court of Appeals denied the White House’s motion to re-instate the travel ban in Executive Order 13769.

The United States District Court for the Western District of Washington’s temporary restraining order, prohibiting the federal government from enforcing the travel ban on a nationwide basis, is still in place.  All U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.

© Jewell Stewart & Pratt PC 2017

Temporary restraining order prohibiting enforcement of Executive Order 13769 still in place

News Release from Jewell Stewart & Pratt – February 8, 2017

The United States District Court for the Western District of Washington’s temporary restraining order, prohibiting the federal government from enforcing the travel ban in Executive Order 13769 of January 27, 2017 on a nationwide basis, is still in place.

The White House’s motion for a stay of the District Court’s decision to lift the travel ban, before the Ninth Circuit Court of Appeals, is expected to be ruled on this week. In the meantime, all U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.

© Jewell Stewart & Pratt PC 2017

Temporary restraining order prohibiting enforcement of Executive Order 13769 still in place

News Release from Jewell Stewart & Pratt – February 6, 2017 As of Monday, February 6, 2017, the United States District Court for the Western District of Washington’s temporary restraining order prohibiting the federal government from enforcing the travel ban in Executive Order 13769 of January 27, 2017 on a nationwide basis is still in place.

The White House’s motion for a stay pending its appeal before the Ninth Circuit Court of Appeals is set for oral argument at 3:00 PM PT on Tuesday, February 7th in front of a three-judge panel. All U.S. land and air ports of entry are prohibited from enforcing the Executive Order until further orders from the court.

© Jewell Stewart & Pratt PC 2017

White House and USCIS clarifications regarding Executive Order banning U.S. entries by citizens of seven countries

News Release from Jewell Stewart & Pratt – February 3, 2017 As discussed in our prior posts, an Executive Order signed by President Trump on January 27, 2017 bans immigrant and nonimmigrant entries into the United States, for at least 90 days, by nationals of seven countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

In the days following the Executive Order, its ambiguous language and the inconsistent application of its provisions at U.S. ports of entry and in other parts of the U.S. government created confusion among foreign-born travelers to the United States.  In addition to several clarifications mentioned in this post, the White House and USCIS have issued further guidance, including the following:

• Lawful Permanent Residents: A February 1, 2017 White House memorandum to the acting Secretary of State, the acting Attorney General, and the Secretary of Homeland Security, stated that Sections 3(c) and 3(e) of Executive Order 13769 does not apply to lawful permanent residents (LPRs) of the United States. Therefore, LPRs who are nationals of one of the seven countries no longer need to receive a waiver to enter the United States.

• USCIS Benefits Requests: A February 2, 2017 memo from USCIS Acting Director Lori Scialabba to USCIS employees stated that Section 3 of the Executive Order does not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the U.S regardless of nationality.

© Jewell Stewart & Pratt PC 2017