Visa Lawyer Blog

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Since President Donald Trump was elected to the office of the Presidency, a lot has changed in immigration law. From the very beginning, President Trump set out to shatter the status quo with his infamous campaign slogan “Make America Great Again” and immigration was one of the targets. With the help of his campaign advisers and his larger than life personality, President Donald Trump, defeated his biggest political rival, the famed career politician Hillary Clinton. Throughout his campaign it became clear that the Donald Trump persona was not simply made for TV. Whether you agree with his policies or not, Donald Trump has proven that he is a force to be reckoned with.

As Americans headed to the polls on that fateful morning on November 8th there was a tinge of uncertainty in the air—even an odd sense of silence. For those that disagreed with President Trump’s policies, the choice was clear, but for those that had endured eight years under Barack Obama, an unfamiliar face in politics was the answer. Everyone knew Donald Trump as a wealthy real estate mogul with an affinity for the spotlight, but few knew what Donald Trump would be like as a politician, let alone President of the United States. Despite the criticism, Donald Trump became a national phenomenon, capturing the hearts and minds of the American people with his no nonsense approach to politics, and his appeal to a large and growing conservative base. From the very beginning of his presidency, Donald Trump set out to become one of the most unconventional Presidents of the modern era, using his preferred method of Tweeting to reach the American people. Although his administration is only a year old, it has been marred with scandals, dozens of firings, resignations, and abrupt departures.

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To our loyal readers and clients, we wish you and your families very safe and happy holidays. We would like to take this opportunity to thank you for your continued trust and loyalty in our office. Our clients continue to inspire us with their stories of hope, courage, and innovation. Although it is a very challenging time for immigration law due to our current political climate, we believe that our executive and legislative branches will work together to find a solution to pressing issues that have remain unresolved for so many years. We hope that in the new year, members of Congress will begin talks to pass comprehensive immigration reform, including legislation to protect Dreamers from deportation. Whatever happens in the new year, we will be here every step of the way to help you achieve your immigration goals. See you in the new year!

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Much to our dismay, Congress was unable to pass the DREAM Act, or any comparable legislation to protect Dreamers from deportation, before going into recess for the holidays. During the last few weeks, members of Congress in the House and the Senate have been scrambling to pass a temporary spending bill to avoid a government shutdown. We hoped that during this time Democrats and Republicans would put their differences aside to lay the groundwork for an immigration deal that would solve the DACA problem once and for all. Instead, Republicans in Congress focused on passing a sweeping tax bill that is likely to be signed into law by the President as early as Friday. As a result, discussions about DACA were cast to the wayside, leaving these issues to be dealt with in 2018.

Unfortunately, Congress has now gone into recess and will not reconvene until January 3, 2018. This means that Republicans will have a very busy month in January. As you may recall, the President has given Congress until March 5, 2018 to pass legislation shielding Dreamers from deportation, because that is when DACA enrollment will begin to expire in large numbers. Congress must now work within a very tight deadline to begin DACA negotiations swiftly if they expect to meet the early March deadline. When Congress reconvenes after the holidays, the President will meet with Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan to discuss their legislative priorities for 2018. A DACA solution will undoubtedly be high on their list. Republicans have legislatively been more united than ever, so it is in the GOP’s best interest to resolve the issue by the deadline, instead of prolonging an issue that has been ignored for far too long already.

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Over the course of the last few weeks, our attorneys have uncovered a disturbing trend in the adjudication of H-1B petitions (both cap subject and cap-exempt) that were upgraded to premium processing service in late October through November.

As previously reported on our blog, the United States Citizenship and Immigration Services (USCIS) has been aggressively issuing requests for evidence across the board for all H-1B petitions regardless of occupation and regardless of whether the beneficiary is seeking an H-1B visa for the first time, or an extension of their status. This drastic change was prompted in part by the enforcement of the President’s executive order “Buy American, Hire” in which the President called on the service to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The result was that USCIS began to issue requests for evidence focusing on the beneficiary’s wage level, questioning the petitioner regarding why the beneficiary was being paid the entry level wage, instead of a higher wage if the beneficiary’s occupation was to be considered complex.

Premium Processing Upgrades

To add insult to injury, as of late, USCIS has been issuing a huge wave of denials for H-1B cases that were recently upgraded to premium processing. In the past, it was commonplace for H-1B petitions to be upgraded to premium processing, even where a response to a request for evidence was under review by USCIS. This fiscal year, however, was a bit different than previous years, because premium processing was suspended for all H-1B petitions on April 3rd. Premium processing finally re-opened for cap-subject petitions on September 18, 2017, and for all H-1B petitions on October 3, 2017.

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As Congress races to avert a government shutdown before December 22, 2017, the momentum is building for members of Congress to include the DREAM Act on one of the government’s spending bills which must be passed before Congress goes into recess for the holidays.

The House and the Senate voted last week to grant the government a two-week extension so that Republicans and Democrats would have enough time to pass a short-term measure that would keep the government funded until January. That two-week extension however expires on December 22nd. This means that members of Congress must quickly negotiate pieces of legislation that must be passed along with a temporary spending bill, before Congress goes into recess for the holidays on December 22, 2017. This scenario has opened a unique window of opportunity for the DREAM Act to be included among pieces of legislation that must be passed before the government goes into recess. Republicans are currently under extreme pressure to keep the government open, and as such must concede and negotiate important issues before December 22nd. While Republicans are focused on passing their tax bill before the recess, the momentum is building for the DREAM Act to be negotiated during this narrow window of time.

As it stands, nearly every Democrat in Congress has thrown their support behind the DREAM Act, while many more Republicans are putting pressure on their party to deal with the issue immediately. Twenty-Four Republicans have already fired off a letter to the speaker of the House, Paul Ryan, asking for the DREAM Act to be passed before the end of the year. Lawmakers, political organizations, and tech leaders are also helping to increase the momentum to get the Act passed once and for all.

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11176275396_fdf69cfd1e_zOn Monday, December 4, 2017, the United States Supreme Court issued an order allowing enforcement of the President’s latest travel ban in its entirety, pending legal challenges in lower courts. In its brief order, the Court signaled its desire for the appellate court to address any challenges to the travel ban, swiftly. Justices Ruth Bader Ginsburg and Sotomayor were the only justices who would have blocked the latest travel ban from going into effect.

The court’s order means that the Trump administration may enforce all of the provisions of the President’s latest travel ban, until the federal courts hand down rulings on the constitutionality of the ban. As you may recall, non-US citizens affected by travel ban 3.0 include nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

The travel ban DOES NOT affect lawful permanent residents of the United States (green card holders), foreign nationals granted asylum, refugees admitted to the United States, or dual nationals traveling on a passport from a non-designated country.

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On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

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On November 20, 2017 acting Secretary of Homeland Security, Elaine Duke, announced the Department’s decision to terminate the Temporary Protected Status (TPS) designation for Haiti, with a delayed effective date of 18 months, giving Haitians enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on July 22, 2019.

As you may recall, in May 2017, former Secretary Kelly announced that because the country of Haiti had significantly improved its condition since the 2010 earthquake, granting temporary protected status to Haitian nationals beyond January 2018 no longer appeared necessary. Secretary Kelly ominously concluded that Haiti’s designation of TPS status would likely not be extended past six months.

Acting Secretary Duke made the decision to terminate Haiti’s TPS designation after reviewing the country’s conditions and determining that those conditions were not extraordinary enough to justify continuing the TPS designation. Duke found that the extraordinary conditions caused by the 2010 earthquake that devastated Haiti, no longer exist, and that the government of Haiti is sufficiently equipped to adequately handle the return of their foreign nationals. After speaking with Haiti’s Foreign Minister, Haiti’s Ambassador to the United States, and other government officials, the United States determined that Haiti has taken steps since the 2010 earthquake to improve the quality of life for Haitian nationals, and that the Haitian government is prepared to receive Haitian nationals living under TPS status in the United States. According to DHS since the 2010 earthquake that ravaged Haiti, “the number of displaced people in Haiti has decreased by 97 percent.”

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According to an internal memorandum, Immigration and Customs Enforcement (ICE) has plans to conduct a targeted enforcement operation at a national food service chain within the coming weeks. An ICE official spoke with The Daily Beast, on condition of anonymity, telling the news organization that ICE plans to conduct this operation to discourage American employers from exploiting undocumented workers by paying them low wages. Officials told the news organization that the operation will be targeting multiple locations across the United States, and that employers will likely be charged with federal offenses including harboring illegal aliens.

This move is the Trump administration’s latest attempt to deter illegal immigration through worksite enforcement actions, described by the administration as targeted operations to prosecute individuals who employ undocumented immigrants. If all goes to plan, the operation will be primarily focused on prosecuting owners of franchises who illegally employ undocumented immigrants. Sources with knowledge of the investigation have said that a preliminary investigation has already been conducted and that targets have already been chosen.

The food industry has and continues to be an industry that employs thousands of undocumented workers due to the unskilled nature of the work, and the fact that employers are able to cut costs by paying undocumented workers very low salaries. According to a 2008 Pew report, at least 10 percent of the hospitality industry is supported by the labor of undocumented immigrants. Last year, Eater reported that over 20% of all cooks working in restaurant kitchens could be undocumented. Noelle Stewart, communications manager for Define American, said that undocumented immigrants make up a crucial part of our economy in that, “they cultivate our produce; they cook our food,” she says, “the food industry wouldn’t be possible in the way it is without them.”

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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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