On May 25, 2017, the 4th Circuit Court of Appeals upheld a ruling that blocked President Trump’s revised travel ban against six Muslim-majority countries. The first travel ban was issued in January, but that ban was also halted by an earlier court. The Executive Order (EO) that contained the revised travel ban was issued on March 6, 2017 and targeted travelers from Iran, Libya, Syria, Somalia, Sudan and Yemen. Had the EO gone into effect, Nationals from these six counties would have been blocked from entering the U.S. for 90 days and all refugees for 120 days. The revised EO did not block Nationals from Iraq, which had been listed in the earlier EO, and it removed a complete ban on Syrian refugees.
The 4th Circuit Court ruled 10-3 to uphold the lower court’s decision that barred the Trump administration from implementing its revised EO. In the ruling, Chief Judge Roger Gregory made it clear that any changes made to the revised travel ban that removed any mention of religion did not fix the fact that the order unfairly and illegally targets Muslims. Further, Chief Judge Gregory wrote that comments made during Trump’s presidential campaign do matter and cannot be ignored when looking at the revised travel ban. Gregory wrote, the EO “cannot be divorced from the cohesive narrative linking it to the animus that inspired it,” he wrote. “We find that the reasonable observer would likely conclude that [the EO’s] primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” It is likely that the case will now be appealed to the Supreme Court.
On April 26, 2017, the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) launched a new office for Victims of Immigration Crime Engagement (VOICE). This office acknowledges and serves the needs of crime victims and their families who have been impacted by crimes committed by removable criminal aliens. The office was explicitly called for in the President’s Executive Order titled, “Enhancing Public Safety in the Interior of the United States,” dated January 25, 2017. According to the Department of Homeland Security’s news release, the key objectives of the VOICE office are to acknowledge and support victims and their families; promote awareness of the services that are available; build partnerships with victims’ assistance groups; and provide quarterly reports studying the effects of victimization by immigrants. ICE has established a toll-free hotline who will give callers access to automated information about the custody status of the immigrant who committed the crime.
U.S. Citizenship and Immigration Services announced a redesign to the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.
In the announcement, USCIS states the redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use. Further, the new card designs demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud. They are also part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.
Please see the USCIS announcement for more detail.
The U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017 that the agency reached the congressionally mandated number of 65,000 visa H-1B Cap petitions for FY2018. USCIS reported on April 17, 2017 that they received 199,000 H-1B petitions during the filing period, which ran from April 3 to April 7, 2017. USCIS used a computer-generated random selection process – “lottery”– to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption – “Master’s Cap.” The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 cap. The number of petitions received this year represents a decrease from the 236,000 petitions USCIS received during last year’s filing period.
The news about the number of H-1B cap cases came a day before President Trump signed an Executive Order (EO), entitled “Buy American and Hire American.” This EO calls for a review of the H-1B visa program, with the goal of reforming the program. The EO does not take direct action, but instead calls for a series of reviews and assessments by federal departments.
Two weeks after the close of the FY 2018 H-1B Cap on April 7, 2017, members of the American Immigration Lawyers Association (AILA) are reporting they are receiving receipts for Cap cases. This is very good news, after this cap season ended without the option of premium processing. The U.S. Citizenship and Immigration Services (USCIS) announced that effective April 3, 2017, they would suspend Premium Processing for all H-1B petitions. The suspension is temporary, but means that employers cannot pay an additional fee ($1,225) to have an H-1B petition adjudicated within 15 calendar days for cases received by USCIS. This announcement included all Cap-subject cases that went into the “lottery,” so no Cap cases could be expedited as they could not be filed before April 3, 2017. Therefore, many believe it may longer to learn whether a company’s petition was selected through the “lottery” to receive receipt notices from USCIS for cases accepted for processing toward the Cap. According to the USCIS on-line status system, the agency’s current processing times for H-1B petitions under normal (not premium) processing is between five to nine months.
On April 11, 2017, the U.S. Citizenship and Immigration Services (USCIS) posted FAQs for B-1/B-2 visitors who want to enroll in school. The USCIS emphasized that it is not permissible to enroll in school if individuals are in B-1 or B-2 status. The USCIS further stated that individuals in B-1 or B-2 status who have violated their nonimmigrant status by enrolling in a course of study are not eligible to extend their B status or change to F-1 or M-1 status. Before enrolling in a course of study, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status. To change nonimmigrant status, individuals must file a Form I-539, Application to Extend/Change Nonimmigrant Status and include the required fee and documents listed in the instructions. The USCIS also stated that individuals whose F-1 or M-1 program start date is deferred to the following academic term or semester – because USCIS did not make a decision on their Form I-539 change of status application before the originally intended F-1 program start date – must file a second Form I-539 in order to bridge the gap in time between when their current status expires and the 30-day period before the new F-1 program start date.
On April 11, 2017, Attorney General (AG) Jeff Sessions issued a memorandum to federal prosecutors announcing a renewed commitment to criminal immigration enforcement. The memo outlines immigration offenses that should be given priority, including the transportation or harboring of undocumented immigrants, illegal re-entry, and aggravated identity theft. The memo also directs each District, even U.S. Attorney offices not near a border, to designate a Border Security Coordinator by April 18, 2017. The memo demonstrates the commitment by the Trump Administration to devote more time and resources to prosecuting immigration offenses. AG Sessions announced the memo to U.S. Customs and Border Protection personnel at the U.S.-Mexico border in Nogales, Arizona. Sessions also announced he will add 50 more immigration judges to the bench this year and 75 next year. The hiring of judges will be streamlined, in an effort to reduce the backlogs currently seen in immigration courts.
The U.S. Citizenship and Immigration Services (USCIS) reported on April 7, 2017, that the agency reached the congressionally mandated 65,000 visa H-1B Cap petitions for FY 2018. USCIS also received enough petitions to reach the 20,000 visa advanced degree exemption, known as the “Master’s Cap.” The USCIS had previously confirmed it would conduct a lottery if enough petitions were received to reach the statutory caps during the first week of April. This is the same process as with prior years. Also as in prior years, a random computer selection will be run for those petitions received under both caps. First, USCIS will run the Master’s Cap lottery, and any petitions not selected in the lottery for the Master’s Cap will then be included in the random computer generated selection process for the 65,000 regular cap. Thus, Master’s Cap candidates get two shots at the visa lottery.
On April 3, 2017, The U.S. Citizenship and Immigration Services (USCIS) announced multiple measures in an effort to deter and detect H-1B visa fraud and abuse. Starting this month, USCIS will focus on the following when making site visits to H-1B petitioners:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B dependent employers (those who have a high ration of H-1B workers as compared to U.S. workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off-site at another company or organizations’ location.
USCIS stated they want to focus resources where fraud and abuse of the H-1B program may be more likely to occur. The H-1B visa program recruits highly-skilled foreign nationals when there is a shortage of qualified workers in the country. USCIS believes too many American workers who deserve to work in these fields have been ignored or unfairly disadvantaged. The Agency has stated that the site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action, but rather to identify employers who are abusing the system. Since 2009, USCIS has conducted random site visits and referred many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.
A federal Judge in Maryland issued a ruling to block provisions of President Trump’s March 6th Executive Order. The Executive Order (EO) was a revision from a previously blocked EO, which bans foreign nationals from six countries identified as being state sponsors of terrorism. The EO was scheduled to take effect on March 16th, but first a Judge from the Federal District Court in Honolulu, Hawaii granted a temporary restraining order that enjoined the Trump Administration from implementing the EO. Then, U.S. District Judge Theodore D. Chuang in Maryland issued an injunction that enjoined the Trump Administration from barring entry into the U.S. by immigrants from six majority-Muslim countries. Like the Judge in Hawaii, Chuang cited Trump’s negative statements about Muslim immigrants during the campaign. The scope of each Judge’s ruling is different. In the challenge brought by Hawaii, Judge Derrick Watson blocked the federal government from enforcing its travel ban from the six majority-Muslim countries and its suspension of the U.S.’s refugee program. While Judge Chuang only blocked the travel ban.