On June 26, 2017, the Supreme Court of the United States (SCOTUS) decided to hear the Trump Administration’s appeals from the decisions of the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals, related to the administration’s second Executive Order regarding travel and refugee admissions (“EO-2”). SCOTUS will hear arguments from the parties in October 2017.
Ninth Circuit Decision on Travel Ban 2.0
News Release from Jewell Stewart & Pratt PC
On June 12, 2017 the U.S. Court of Appeals for the Ninth Circuit issued an order upholding the District Court’s decision to block President Trump’s second Executive Order regarding travel and refugee admissions (i.e., “Travel Ban 2.0”).
The Ninth Circuit’s order states that “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress” and that “the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination.” The court affirmed the lower court’s decision to enjoin the travel ban and prevent suspension or limitations to the refugee program. However, the court also vacated the lower court’s decision to prevent the government’s internal reviews of visa issuance procedures.
The Ninth Circuit’s decision follows on the heels of the Fourth Circuit’s May 25, 2017 decision also blocking the ban. The administration is already seeing U.S. Supreme Court review of the Fourth Circuit decision.
© Jewell Stewart & Pratt PC 2017
Update: State Department now using Form DS-5535, Supplemental Questions for Visa Applicants
News Release from Jewell Stewart & Pratt PC – June 5, 2017 As noted in our prior post, the Department of State recently published a Notice of request for emergency approval by the Office of Management and Budget (OMB) for its new form, Form DS-5535, Supplemental Questions for Visa Applicants. The form was designed to collect extra information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.
According to a news report from The Washington Post, Form DS-5535 was approved by the OMB and has been in use at U.S. embassies and consulates since May 25, 2017. A copy of the form is currently available on the U.S. Embassy and Consulates in Turkey website. The extra information it collects includes:
- Countries visited over the last fifteen years
- Email addresses used in the past five years
- Social media handles and aliases used in the past five years
Form DS-5535 is authorized on an emergency basis through November 2017, but as The Washington Post article notes, it is expected to be authorized on a permanent basis.
© Jewell Stewart & Pratt PC 2017
USCIS reports 27.7% increase in applications for U.S. citizenship
News Release from Jewell Stewart & Pratt PC – June 4, 2017 On April 30, 2017, U.S. Citizenship & Immigration Services (USCIS) released data related to the number of applications and petitions it processed in the first quarter of its 2017 fiscal year (October 1, 2016 to December 31, 2016). The number of N-400 applications for naturalization was 239,628, compared with 187,635 for the same period in the prior fiscal year – an increase of 27.7%.
Current and historical USCIS data on Form N-400 applications can be found at the USCIS website here. Further coverage of the spike in naturalization applications can be found in the May 30, 2017 edition of the Daily Journal legal newspaper, for which Jewell Stewart & Pratt PC principal Claire Pratt was interviewed and quoted.
© Jewell Stewart & Pratt PC 2017
Department of State plans to heighten screening and vetting of visa applicants: Update
As noted in our prior blog post, a Department of State cable sent by Secretary Tillerson on March 17, 2017 provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.
On May 4, 2017, the Department of State published a Notice of request for emergency OMB approval and public comment on a new Form DS-5535, Supplemental Questions for Visa Applicants. This form would collect information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.
Diversity Visa Lottery Program entrants can check status online now
News Release from Jewell Stewart & Pratt PC – May 2, 2017 From now through September 30, 2017, entrants in the DV-2018 Diversity Visa Lottery may check the status of their entries through the State Department’s Entry Status Check website.
Entry Status Check is the only means by which the State Department will notify DV-2018 entrants of their selection. It will give winners instructions on how to proceed with their application for U.S. permanent residence, and will provide them with the date, time, and location of their immigrant visa interview.
For general information about the annual Diversity Visa Lottery, visit the State Department’s Diversity Visa website.
© Jewell Stewart & Pratt PC 2017
USCIS policy memorandum regarding use of Computer Programmers occupation in H-1B petitions
On March 31, 2017, U.S. Citizenship & Immigration Services (USCIS) released a policy memorandum (hereinafter, “the new memo”) explicitly rescinding a prior memo on H-1B computer-related positions, and thereby reinforcing current USCIS practice related to the use of the Computer Programmers occupation code in H-1B petitions. This post provides background information and discusses how future H-1B petitions will be affected.
U.S. district court dismisses legal challenge to rule allowing 24-month STEM OPT extensions
News Release from Jewell Stewart & Pratt – April 21, 2017 On March 11, 2016, the U.S. Department of Homeland Security (DHS) published a Final Rule that provided for, among other items, 24-month extensions to Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT. See our blog post discussing the rule here.
On June 17, 2016 this new Final Rule became the subject of a lawsuit before the U.S. District Court for the District of Columbia. On April 19, 2017, however, the court dismissed the lawsuit. The court found that the plaintiffs failed to state a claim upon which relief could be granted.
The Final Rule therefore remains in force: 24-month extensions to post-completion OPT are still available in appropriate circumstances, and prior grants of such OPT remain valid. The plaintiffs have not yet announced whether they will appeal the decision.
© Jewell Stewart & Pratt 2017
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
USCIS announces new measures to detect H-1B visa fraud and abuse
U.S. Citizenship and Immigration Services (USCIS) announced new measures to detect H-1B visa fraud and abuse. In addition to its usual random and unannounced site visits, USCIS says that it will now make targeted site visits to:
- Employers whose basic business information cannot be validated through commercially available data.
- H-1B-dependent employers -- i.e. those with a high ratio of H-1B workers to U.S. workers, as defined by statute.
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
USCIS also announced that it had established an email address that will allow individuals to submit "tips, alleged violations and other relevant information about potential H-1B fraud and abuse."
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 29th]. 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.
© Jewell Stewart & Pratt PC 2017
State Department guidance to consular posts on heightened screening and vetting of visa applicants worldwide: "all visa decisions are national security decisions"
Following the issuance of Executive Order 13780 by President Trump on March 6, 2017 (banning visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen) and the associated presidential memo to the Secretaries of State, Justice, and Homeland Security directing their agencies to implement protocols and procedures on screening and vetting of visa applicants, Secretary of State Rex Tillerson issued a series of four cables to U.S. consular posts abroad.
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
Revised travel ban issued
An Executive Order signed by President Trump on Monday, March 6, 2017 suspends entry by citizens and nationals of six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen -- for at least 90 days from the new order’s effective date of March 16, 2017. The March 6, 2017 Executive Order (EO) expressly revokes and replaces EO 13769 of January 27, 2017, which banned travel by nationals of seven countries, including Iraq, which is not designated in the new EO.
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.
© Jewell Stewart & Pratt PC 2017
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.
© Jewell Stewart & Pratt PC 2017
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