Visa Lawyer Blog

Articles Posted in Work Visas

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As previously reported, on October 8, 2017, the United States announced the suspension of all non-immigrant visa services across U.S. Embassies and Consulates in Turkey “until further notice,” following news that a U.S. embassy official was placed under arrest without explanation and without access to counsel. This included the suspension of the issuance of: B-2 visas for temporary tourism or medical reasons, B-1 visas for temporary business visitors, F-1 student visas, E-1 treaty trader visas, E-2 treaty trader visas, and other non-immigrant visa types.

Since October 8, 2017 until just recently, no new non-immigrant visa applications were being processed in Turkey until the U.S. government could receive assurances form the Turkish government that embassy staff officials would not be detained or placed under arrest without cause, or access to counsel.

On November 6, 2017, the Department of Homeland Security and the United States Embassy in Ankara, Turkey, announced that the United States has received sufficient assurances from the Government of Turkey that employees under the diplomatic mission are not under investigation, that local staff of U.S. embassies and consulates will not be detained or arrested in connection with their official duties, and finally that the U.S. government will be notified in advance if the Turkish government plans to arrest or detain any local staff at U.S. embassies in Turkey. The announcement however provides that the United States “continues to have serious concerns about the existing cases against arrested local employees” of the Mission in Turkey and of “. . . the cases against U.S. citizens who have been arrested under [a] state of emergency.”

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personal-3108155_1280It did not take long for President Trump to capitalize on the terrorist attack which took place several days ago in New York City, to attack the Diversity Visa Program and the process by which US Citizens, and in some cases green card holders, can petition for extended family members to immigrate to the United States.

Following the terrorist attack in New York City, which claimed the lives of 8 Americans, the President fired off a series of tweets calling on Congress to terminate the Diversity Visa Program, claiming that the perpetrator of the attack, Sayfullo Saipov, had gained admission to the United States seven years ago through the diversity immigrant visa program, a congressionally mandated program made possible by section 203(c) of the Immigration and Nationality Act (INA). According to CNN, the Department of Homeland Security has said that Saipov came to the United States in 2010 on a diversity visa. Department of Homeland Security archives confirm that Uzbekistan was a country participating in the Diversity Visa program as early as 2007, and continues to participate in the Diversity Visa Program.

The Diversity Immigrant Visa Program

The Diversity Immigrant Visa program is a program enacted by Congress, which allocates up to 50,000 immigrant visas per fiscal year to a special class of immigrants known as “diversity immigrants.” Each fiscal year diversity applicants register for the visa program electronically at no cost. Applicant entries are selected at random through a computerized “lottery” system to allocate the 50,000 available immigrant visas for the Diversity Immigrant Visa Program. Only diversity immigrants who are natives of countries with historically low rates of immigration to the United States qualify for the Diversity Immigrant Visa program. In other words, to qualify for a diversity visa, essentially a green card, you must be a native of a country participating in the diversity visa program. Countries with historically high rates of immigration to the United States DO NOT qualify.

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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Just one day before Presidential Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” was set to go into effect, a federal judge in Hawaii issued a ruling blocking portions of the Presidential Proclamation from being enforced on a majority, but not ALL, of the countries, listed in the Proclamation.

The Presidential Proclamation, commonly referred to in the media as ‘travel ban 3.0’ set out to suspend the entry of foreign nationals from eight “countries of identified concern,” and the admission of foreign nationals from those countries was to remain limited until further notice.

The countries to be affected by travel ban 3.0 included: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. A federal judge from the state of Hawaii by the name of Derrick Watson has granted a temporary restraining order preventing the government from suspending the admission of foreign nationals from the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but DOES NOT prevent the government from suspending the admission of foreign nationals from North Korea and Venezuela, and from imposing stricter screening standards on Iraqi nationals. The restrictions on foreign nationals from North Korea, Venezuela, and Iraq will continue to be enforced according to the Proclamation, beginning today, Thursday, October 19, 2017. Restrictions on North Koreans and Venezuelans will likely remain indefinitely, given that the U.S. government has no formal diplomatic avenues for communication with those countries.

Judge Derrick Watson wrote in his opinion that the latest revision of the ban, “suffers from precisely the same maladies as its predecessor,” and “lacks the sufficient finds that the entry of more than 150 million nationals from [the] specified countries would be ‘detrimental to the interests of the United States,” and “plainly discriminates based on nationality.”

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Supreme Court Dismisses One of Two Travel Ban Cases

On October 10, 2017, in a one-page order, the U.S. Supreme Court dismissed the Maryland case, Trump, President of U.S., Et Al. v. Int’l Refugee Assistance, Et Al.,  which sought to block a key provision of Executive Order No. 13,780 temporarily suspending the entry of aliens outlined under Section 2(c). The Supreme Court has dismissed the case because the provision at issue expired on September 24, 2017 and no longer presents a “live case or controversy” for the court to resolve. Accordingly, the Supreme Court vacated the judgment and sent the case back to the lower courts to dismiss the case as moot.

However, the Supreme Court did not act to remove the case, Trump, President of U.S., Et Al. v. Hawaii, Et Al., from its docket, in which the state of Hawaii joined by other states, called on the court to issue an injunction, stopping the federal government from enforcing a travel ban on individuals from six Muslim majority countries as well as refugees. The travel ban at issue, in that case, began on June 29, 2017 and expired on September 27, 2017. The refugee provision of the act however will not expire until October 24, 2017. Given the Supreme Court’s dismissal of the Maryland case, it is likely that the Court will also dismiss the Hawaii case once the refugee provision has expired.

On September 24, 2017, the President revised Executive Order No. 13,780 for a third time adding Chad, North Korea, and Venezuela to its travel ban, and removing Sudan. The third revision of the travel ban will go into effect on October 18, 2017. The Supreme Court did not address the administration’s newly revised travel ban in its order.

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Today, September 18, 2017, the United States Citizenship and Immigration Services (USCIS), announced that the agency will be resuming premium processing for all H-1B visa petitions subject to the fiscal year 2018 cap. This means that petitioners who filed an H-1B cap subject petition or H-1B cap exempt petition (for the advanced degree exemption) subject to fiscal year 2018, may upgrade to premium processing starting today.

USCIS previously announced that the agency had resumed premium processing of H-1B petitions filed under the Conrad 30 waiver program, as well as interested government agency waivers, and certain cap-exempt H-1B petitions.

Premium processing for all other H-1B petitions including extensions of stay will remain temporarily suspended. USCIS will announce when premium processing will resume for other remaining H-1B petitions not subject to the fiscal year 2018 cap. Petitioners who cannot file for premium processing may request for their petitions to be processed expeditiously, however such requests will only be granted on a discretionary basis.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners who make use of the service. Applications that are not processed within 15 calendar days, receive a refund of the $1,225 premium processing fee, and are processed expeditiously. To make use of the service, petitioners must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision. The service is only available for pending petitions with USCIS.

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Given the recent termination of the Deferred Action for Childhood Arrivals (DACA) program and the controversy surrounding the immigration system as of late, in this post we address the numerous myths surrounding the DACA program and of immigration law in general. Although there are numerous studies and empirical research debunking the common myths attributed to the immigration system, as well as detailed economic reports published by governmental agencies corroborating the positive effects of immigration, Americans continue to hold a negative perception of immigrants and are increasingly skeptical of the immigration process. In truth, much of these perceptions are perpetuated by the unwillingness of Americans to obtain readily available information on the internet, to discover that the immigration process for individuals who entered the United States illegally is riddled with obstacles. More and more we are seeing Americans rely on news stations to accurately deliver the news and do the work for them. Unfortunately, the best way to understand the immigration process itself is to go straight to the source, and not rely on such sources for information.

The public needs to know the facts to better understand that the average immigrant actually has very few immigration options available to them under the current immigration system.

MYTH #1 It is easy to get a green card under current immigration laws

Most Americans believe that it is relatively easy to get a green card. This cannot be further from the truth. Immigration laws are highly complex and are designed to make it more difficult for extended family members, low-skilled workers, and undocumented immigrants to immigrate to the United States. Under current immigration laws, there are generally only two ways to immigrate to the United States and obtain permanent residency, outside of special immigrant categories specifically reserved for special categories of individuals including: asylees, refugees, certain witnesses of crimes, victims of abuse, and individuals who may qualify for withholding of removal. It is extremely difficult for individuals to qualify for permanent residency under one of these special categories.

Outside of these special categories, foreign nationals may immigrate to the United States and obtain permanent residency, only if they have a qualifying family member (such as a US Citizen or LPR spouse, child, etc.) who may petition for them or if the beneficiary works for a U.S. employer on a valid visa who is willing to sponsor the foreign national by petitioning for their permanent residency.

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Now is a good time to file your green card application. Significant wait times are expected given a new policy passed by the Trump administration that will require in-person interviews for LPR applicants filing based on employment sponsorship

In yet another controversial move, the Trump administration has recently adopted a new policy change that will require an in-person interview for individuals wishing to obtain lawful permanent residency based on employment sponsorship. The new policy will be implemented beginning October 1st.
Previously, foreign nationals applying for permanent residency, based on employment sponsorship, were not required to attend an in-person interview, although this allowance was discretionary. In recent years, the in-person interview requirement was typically reserved for individuals applying for permanent residency based on a qualifying familial relationship, and not for individuals applying based on employment sponsorship.

A USCIS spokesperson announced the new policy change on Friday August 25th, a change that will delay the process of obtaining a green card significantly, given the increased number of individuals that will be required to attend an in-person interview. According to USCIS this change in policy will apply to any individual adjusting their status to legal permanent residency from an employment-based visa category.

What’s more, family members of refugees or asylees, holding a valid U.S. visa, will also be required to attend an in-person interview when applying for provisional status.

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On April 18, 2017, the President signed the controversial executive order, Hire American, Buy American, “in order to promote the proper functioning of the H-1B visa program.”

The President’s executive order directs the heads of various departments to suggest reforms to the H-1B visa worker program, a lottery based work visa program reserved only for professionals working in specialty occupations. The EO specifically aims to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Since the President signed the executive order, no reforms or regulations have been passed by Congress to enforce the provisions of the order on the H-1B visa worker program, however enforcement of the provisions of the executive order are beginning to be seen through the adjudicatory measures of USCIS immigration officials.

As of late, the United States Citizenship and Immigration Services (USCIS) has become a lot tougher in adjudicating H-1B visa applications. This means that securing an H-1B work visa will become a lot more difficult going forward. For the last few months, USCIS has been aggressively issuing more numerous and more stringent “requests for evidence” in comparison to previous years. This phenomenon has manifested itself generally in response to work visa applications for highly skilled workers, and is not just reserved to H-1B work visa applications.

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On Thursday, August 10, 2017, the prestigious Wharton School at the University of Pennsylvania released a report which discusses the effect that the RAISE Act would have on the country’s economy. The RAISE Act is a Senate bill that was recently introduced by Republican Senators Tom Cotton (R-AR) and David Perdue (R-GA), which seeks to cut the legal immigration system in half. The President threw his support behind the bill shortly after it was introduced.

The Wharton report projects that if passed, the RAISE Act, would result in a loss of 4.6 million jobs by the year 2040, a reduction in GDP that will be 2 percent lower than the current rate by the year 2040, and a reduction in the country’s GDP by 0.7 percent by the year 2027.

On the flip side, the report projects that there will be “very little change” to individual per capita GDP, despite the fact that the RAISE Act would dramatically reduce the country’s population size, the number of jobs available, and the country’s GDP.

The report uses the Penn Wharton Budget Immigration Policy Model to make projections on the impact that the RAISE Act would have on the country’s economy.

Under the RAISE Act, legal immigration would be reduced by 50% while immigration would increase at a rate of 75% for immigrants with at least a college degree.

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Table 1 shows provisions included in the RAISE Act. Immigrant visas with employment preference would be awarded using a skills-based points system. Specifically, immigrant visa applicants would receive points based on education, English language skills, job offers, age, extraordinary achievements, and entrepreneurship. Family preferences for immigrant visas would be limited to spouses and minor children and the diversity lottery immigrant visa program would be eliminated. In addition, the number of refugees would be limited to 50,000 annually.

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