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) 2019. 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 2019 cap or the advanced degree exemption after today.
JSP Principal Wendy H. Stewart Recognized by Who’s Who Legal
Jewell Stewart & Pratt is happy to announce that firm principal Wendy H. Stewart was selected by Who’s Who Legal in Corporate Immigration for 2018. Nominees are selected based upon a comprehensive, independent survey of both general counsel and private practice lawyers worldwide.
Only specialists who have met stringent independent research criteria are listed. According to Who’s Who, this year’s research features leading corporate immigration attorneys who come highly regarded for their experience in assisting corporate entities navigate the increasingly complex regulatory environments in jurisdictions around the world through sophisticated immigration planning and counselling advice.
Wendy is a Certified Specialist in Immigration & Nationality Law by the State Bar of California Board of Legal Specialization, and she leads the firm’s employment-based permanent residency practice group. Congratulations to Wendy!
© Jewell Stewart & Pratt PC 2018
USCIS Suspends Premium Processing Service for H-1B cap-subject petitions
On March 20, 2018, USCIS announced that starting April 2, 2018, it will temporarily suspend premium processing for all H-1B cap-subject petitions. This suspension may last until at least September 10, 2018. The temporary suspension applies only to FY19 cap-subject H-1B petitions (i.e., petitions submitted in the annual lottery). Non-cap-subject H filings, such as for extensions and change-of-employers, will be able to use premium processing. While premium processing is suspended, petitioners may submit a request to expedite an H-1B cap-subject 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 2018
Update on work authorization for certain H-4 dependents
The Trump administration was due to propose new regulations by the end of February 2018, eliminating the ability of certain H-4 dependents to work. Although it has not yet issued proposed regulations, there is now a potential timeline for that to occur. In ongoing litigation over the regulation allowing H-4 employment, the U.S. Court of Appeals for the District of Columbia Circuit ordered the case to be held in abeyance following a motion from the Department of Homeland Security (“DHS”) requesting time to issue a proposed “rescission” regulation in February 2018. Although DHS did not issue such a regulation in February, the Circuit Court order, issued February 21, 2018, gives the DHS 90 days, or until May 22, 2018, to provide an update on rulemaking.
New California Employers’ Requirements under AB 450: Immigration Worksite Enforcement Actions
California Assembly Bill No. 450 (AB 450) regarding California employers’ obligations when subject to federal immigration worksite enforcement actions was signed by Governor Brown on October 5, 2017, and took effect on January 1, 2018. As part of a group of immigration-related bills recently signed into law, AB 450 is hailed by advocates as solidifying California’s status as a Sanctuary State. The law introduces several requirements applicable to public and private employers in California. How the California Labor Commissioner or California Attorney General will enforce the law is still an open question, given that federal law ordinarily preempts state law in the area of immigration, and because there is uncertainty surrounding which federal immigration enforcement agents must be refused entrance or documents under the new California law. Below we detail a few of the new requirements for employers:
H-1B “cap” season and the government shutdown
Although many businesses have become accustomed to the seasonality of sponsoring H-1B visas, there is a new reason for employers to identify candidates and employees potentially needing H-1B sponsorship early this year: the looming government shutdown. Although U.S. Citizenship & Immigration Services (USCIS, the agency that adjudicates H-1B visa petitions) is fee-funded, and operates as usual during a shutdown, a government shutdown affects the issuance of a critical H-1B prerequisite document by the U.S. Department of Labor. Without this document, the H-1B “cap” case cannot be filed. Currently the government is funded until February 8, 2018, and future shutdowns appear possible before the April H-1B filing window opens. Therefore, it’s imperative to initiate cases, now, while the government is “open for business.”
As background, the H-1B visa is the U.S.’s workhorse visa for professionals. Not all jobs and all individuals are H-1B-eligible. In general, the job must be one that ordinarily requires knowledge and skills obtained by earning a Bachelor’s or higher degree in a specific field, and the individual must have the required degree or equivalent. For first-time H-1B applicants, there is a narrow application window in the first week of April for employers to submit H-1B petitions to USCIS. Depending on the issues in a case, it can take several weeks for an application to be ready to file.
© Jewell Stewart & Pratt PC 2018
USCIS Restricts Availability of NAFTA Work Authorization (TN Status) for “Economist” Category
On December 18, 2017, U.S. Citizenship & Immigration Services (USCIS) announced a policy change affecting the adjudication of applications for TN visa status under NAFTA.
Background on TN visa status
TN visa status allows citizens of Canada or Mexico to work legally in the U.S. if their employment fits within any of 62 occupational classifications and they have the corresponding educational and/or professional qualifications. One such occupational classification is “Economist.” The full list of eligible occupational classifications is found in Appendix 1603.D.1 of the NAFTA treaty, as well as in the federal regulations at 8 C.F.R. Section 214.6.
USCIS Accepts Applications Under the International Entrepreneur Rule, While Pushing Plans to Abolish the New Rule
On December 14, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the International Entrepreneur Rule (IER), in compliance with a federal court order. The IER regulations, 8 CFR § 212.19, allow qualifying foreign national entrepreneurs to enter the U.S. temporarily to develop and grow new businesses. At the same time it is accepting applications under the IER, however, the agency is preparing to publish a Notice of Proposed Rule-Making (NPRM) to rescind the IER. Thus, it is unclear whether individuals who apply to enter the U.S. pursuant to the IER will ultimately receive the benefits of the rule, or for how long.
DHS Publishes Proposed Rule to End Employment Authorization for Certain H-4 Spouses
On February 25, 2015, the Department of Homeland Security (DHS) published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.
Now, DHS has published a proposed rule to remove these H-4 dependent spouses from the class of aliens eligible for employment authorization. This would appear to reverse the 2015 H-4 EAD rule, and appears consistent with the Trump Administration’s aims under Executive Order 13788 (“Buy American and Hire American”). No details about how the reversal will be implemented have been shared at this stage.
Jewell Stewart & Pratt is monitoring developments and will post more information here when it becomes available. The U.S. Citizenship & Immigration Services’ Buy American and Hire American webpage can be found here. Our prior blog posts related to the beginning of the H-4 EAD rule can be found here, here, and here.
© Jewell Stewart & Pratt PC 2017
SCOTUS Allows Travel Ban 3.0 to Take Effect Immediately
Issuing two separate orders (here and here) on the Trump Administration’s Travel Ban today, the U.S. Supreme Court allowed the third iteration of the ban, issued via Presidential Proclamation on September 24, 2017, to take full immediate effect. We detailed the ban in our post here. The ban is pending litigation, but the Supreme Court’s ruling allows the ban to be implemented while the litigation is ongoing.
© Jewell Stewart & Pratt PC 2017
Ninth Circuit Reinstates Travel Ban 3.0
The Ninth Circuit Court of Appeals today issued an order reinstating the Trump Administration’s third version of a travel ban. The ban was announced in President Trump’s September 24, 2017 proclamation and is now in effect; affected are nationals of Chad, Iran, Libya, North Korea, Somalia, Syria and Yemen as well as some Venezuelan government officials and their families. The Court preserved an exception to the ban for applicants who can meet a “bona fide relationship test” (to certain family members or entities) similar to the test described by the U.S. Supreme Court regarding Travel Ban 2.0. The Court will hear substantive arguments on December 6, 2017.
© Jewell Stewart & Pratt PC 2017
Travel Ban 3.0 – On Hold by the Courts
In two separate Federal Court decisions issued on October 17, 2017, the majority of the travel restrictions set forth in President Trump’s September 24, 2017 proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” were blocked. As a result, nationals of Iran, Libya, Syria, Yemen, Somalia and Chad will not be restricted from traveling to the United States. However, all immigrants and nonimmigrants from North Korea and certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2) will continue to be restricted from travel to the U.S. The U.S. Department of Justice has stated that it will appeal these rulings.
© Jewell Stewart & Pratt PC 2017
USCIS Interviews of Applicants for Employment-Based Permanent Residence – Update
As discussed in an earlier post, U.S. Citizenship and Immigration Services (USCIS) announced on August 28, 2017 that it will cease waiving interviews of applicants applying for “adjustment of status” (AOS) to U.S. permanent residence (green card) based on employment. As part of the Trump administration’s plan to apply “extreme vetting” to would-be immigrants (and others), employment-based AOS applicants will be required to undergo an in-person interview at a USCIS field office. Approximately 130,000 applicants are expected to be affected per year.
USCIS Resumes Premium Processing Service for ALL H-1B Petitions
USCIS announced today that it would resume offering its Premium Processing Service (PPS) for all H-1B petitions. USCIS previously resumed PPS for all cap-subject petitions and for certain cap-exempt petitions.
© Jewell Stewart & Pratt PC 2017
Trump Administration Announces Travel Ban 3.0
On September 24, 2017 President Trump announced an extended and enhanced version of the travel ban that was previously in place under Executive Order 13780 (EO-2). The Presidential Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats,” a related Fact Sheet, and FAQs for the new ban are available on the White House website. As with EO-2, the ban affects immigrant and nonimmigrant visa issuance only. Therefore, nationals from the affected countries who already hold visas will not have those revoked. The U.S. Department of State has also announced that previously scheduled visa appointments will not be cancelled.
DHS Announces Visa Sanctions on Four Countries
The Department of Homeland Security (DHS) announced on September 13, 2017 that visa sanctions would be imposed on Cambodia, Eritrea, Guinea, and Sierra Leone due to lack of cooperation in accepting their nationals ordered removed from the United States. Some of the specific visa sanctions announced were:
USCIS resumes Premium Processing Service for pending cap-subject H-1B petitions
On September 18, 2017, USCIS announced that it would resume its Premium Processing Service (PPS) for all H-1B visa petitions subject to the Fiscal Year 2018 cap. The resumption only applies to pending cap petitions, not any newly-filed petitions such as for changes of employers or extensions of stay. USCIS previously resumed PPS for H-1B petitions for certain cap-exempt employers. To date, USCIS has not indicated when it plans to resume PPS for all H-1B petition types.
© Jewell Stewart & Pratt PC 2017
Instructions for the 2019 Diversity Visa Lottery Program now available
The U.S. Department of State’s instructions for the 2019 Diversity Immigrant Visa Program (DV-2019) are now available. Entries for the DV-2019 program must be submitted electronically between October 3 and November 7, 2017.
There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.
The congressionally-mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2019, 50,000 diversity visas will be available.
© Jewell Stewart & Pratt PC 2017
Statement on the rescission of DACA
Dear Clients, Friends, and Community –
Like many of you, we are dismayed at President Trump’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. DACA enabled 800,000 of our neighbors to come out of the shadows and be an unafraid part of the nation to which they already belong. We stand with them today in calling on Congress to enact a humane solution.
We are following legal developments and will carefully consider strategies and implications for our clients as information becomes available.
For those of you in the San Francisco Bay Area, DACA supporters are gathering at the San Francisco Federal Building at 5:00PM today.
In solidarity,
Jewell Stewart & Pratt PC
© Jewell Stewart & Pratt PC 2017
Trump Administration to require interviews for employment-based permanent residence applications
On Friday August 25, 2017, U.S. Citizenship and Immigration Services (USCIS) confirmed to Politico that certain permanent residence (green card) applicants must complete an in-person interview as part of the application process. The requirement will apply to anyone moving from a work visa to permanent residence, and is “part of President Donald Trump’s plan to apply ‘extreme vetting’ to immigrants and visitors to the U.S.”