EB-5 Program Is Extended Without Changes Until December 8, 2017

On September 8, President Trump signed into law H.R. 601 which will keep the U.S. federal government open through December 8, 2017.  As a result, the EB-5 Regional Center Program is now extended until such date without any changes.  Read more ›

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President Trump Issues New Travel Ban Expanding Countries Affected By Travel Restrictions

On September 24, 2017, President Trump issued a Proclamation enhancing the vetting capabilities and processes for detecting attempted entry into the United States by terrorists or other public safety threats.  The Proclamation suspended and limited, subject to categorical exceptions and case-by-case waivers, entry into the United States of nationals of Chad, Iran, Libya, Syria, Yemen, Somalia, and North Korea.

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This Year’s Diversity Visa Lottery Opens Oct. 3—For Possibly the Last Time?

The U.S. State Department recently announced that it will begin accepting applications for this year’s Diversity Immigrant Visa Program—commonly referred to as the diversity visa (DV) lottery system—starting on Tuesday, October 3. Applicants whose DV cases are among those selected in the lottery and are subsequently approved may apply for a green card beginning on October 1, 2018.

In an annual random lottery system, the State Department selects 50,000 immigrant visa applications from a pool of foreign national applicants who are citizens of countries with historically low immigration rates to the United States. However, foreign nationals considering applying in this year’s DV lottery are strongly encouraged to do so, as this year may be the program’s last. The Trump Administration as well as numerous prominent members of Congress repeatedly call for an end to the Diversity Immigrant Visa Program.  Read more ›

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Rescission of Deferred Action for Childhood Arrivals (DACA)

On September 5, 2017 DHS rescinded the June 15, 2012 memorandum issued by President Obama which established the “DACA” program. The “DACA” rescission requires individuals that are seeking an extension of their status to file on or before October 5, 2017 in order to extend their employment authorization and “DACA” status. The government will reject all applications to renew DACA that are filed after this date.

In light of the DACA rescission, employers should continue with their standard I-9 compliance protocols. Employers should not focus their attention merely on employees who possess an employment authorization document that was issued pursuant to DACA. Doing so could result in a discrimination lawsuit against the employer by the affected employee. Employers may wish to generally remind their employee population as a whole of the impending deadline. Employers may also look to implement a 60 or 90 day notice period for those requiring I-9 re-verification to provide employees with ample time to gather and present other List A, B, or C documents for re-verification purposes.

On September 14, 2017 President Trump announced that the he along with the Democratic minority leadership were working on legislation that would provide protection to “Dreamers.” The President stated in part, “We agreed to a plan to protect our nation’s Dreamers from deportation,” adding that there would be a “border security measure that does not include a wall” included in immigration legislation. It is hoped that an agreement is reached on this legislation in the coming days.

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USCIS Reinstates Premium Processing for H-1B Cap Subject Petitions

USCIS announced on Monday, September 18, 2017, that it will immediately accept premium processing requests of all H-1B visa petitions subject to the Fiscal Year (FY) 2018 cap.  H-1B cap petitions filed in April 2017, requesting a start date of October 1, 2017, can now be upgraded to premium processing.  This includes petitions filed for the 65,000 H-1B visas allotted per fiscal year, as well as the 20,000 additional H-1B visas set aside for workers with a U.S. master’s degree or higher educational degree.  Employers who have F-1 students/employees currently working under the “cap gap” protection, and whose work eligibility will expire as of September 30, 2017, should consider upgrading their petitions to premium processing.  Employers can file Form I-907 Request for Premium Processing with a $1,225 filing fee with the USCIS office where the H-1B petition is pending.

In addition to the resumption of premium processing for H-1B visa petitions subject to the FY2018 cap, USCIS previously resumed premium processing of H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and for certain H-1B petitions that are not subject to the cap.  Premium processing remains temporarily suspended for all other H-1B petitions, such as extensions of stay.  USCIS plans to resume premium processing for all other remaining H-1B petitions not subject to the FY2018 cap as agency workloads permit.

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New Form I-9 Takes Effect on September 18, 2017

As of today, September 18, employers must use the new Form I-9, Employment Eligibility Verification, for all new hires. The new form is available on the USCIS website and on most electronic Form I-9 software programs.

USCIS originally released the revised Form I-9 on July 17, 2017, which did not include any changes on the form or supplement itself. The only update is the addition of Consular Report of Birth Abroad (Forms DS-1350, FS-545, or FS-240) on List C of the Acceptable Documents list.

Employers who do not use the new Form I-9 may be subject to financial liabilities in the event of an audit.  The new form can be found here.

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President Trump, Senators Cotton and Perdue Introduce the RAISE Act

On Wednesday, August 2, 2017, President Trump, along with Senators Tom Cotton (R-Ark.) and David Perdue (R-Ga.) introduced The Reforming American Immigration for a Strong Economy Act (RAISE Act). The RAISE Act is proposed to create a skills-based immigration system, seeking to make America more competitive globally, raise wages for American workers, and create jobs to give Americans “a raise.”

“The RAISE Act ends chain migration and replaces our low-skilled system with a new points-based system for receiving a green card,” Trump said on Wednesday. “This competitive application process will favor applicants who can speak English, financially support themselves and their families and demonstrate skills that will contribute to our economy.”

According to Senator Cotton’s office, the RAISE Act would change the current visa system for employment-based immigration with a “skills-based points system,” where applicants would receive points based on things such as English language proficiency, education, age and job prospects.

The bill would eliminate family-based immigration categories such as adult sons and daughters, as well as brothers and sisters, and redefines “immediate relatives” to exclude parents. According to the government, this alters the current system as immediate relatives currently receive an immigration priority and aren’t made to wait for a visa number, which will no longer be available.

The RAISE Act would also cap refugee admittance to the U.S. at 50,000, while removing the diversity visa lottery that currently allocated 5,000 visas a year to residents of countries that do not send significant numbers of migrants to the U.S.

At this time we do not believe that the RAISE Act has enough support on the Hill or in the business community to become law.

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USCIS Resumes Premium Processing for Certain Cap-Exempt H-1B Petitions

On Monday, July 24, 2017, U.S. Citizenship and Immigration Services (USCIS) released an update detailing how it will resume premium processing for certain cap-exempt H-1B petitions. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

The processing detailed below from USCIS goes into effect immediately:

USCIS will resume premium processing for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

Starting today, those cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.

USCIS previously announced that premium processing resumed on June 26 for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.

USCIS plans to resume premium processing of other H-1B petitions as workloads permit. USCIS will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I-129 fees, USCIS will have to reject both forms.


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Department of State Updates “Close Familial Relationship” definition for Executive Order 13780 based on Hawaii District Court Ruling

On July 17, 2017 the Department of Homeland Security (DHS) and U.S. Department of State (DOS) announced updates regarding the implementation of President Trump’s Executive Order 13780, in response to a ruling by the U.S. District Court in Hawaii.

Last Thursday, July 13, 2017, the U.S. District Court in Hawaii issued a ruling regarding the definition of “close familial relationship,” as that phrase was used in the Supreme Court’s June 26, 2017 order on implementing Section 2(c) of E.O. 13780.  A close familial relationship for that purpose was previously defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships.  The District Court of Hawaii ruled that, in addition to those relationships, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, ‎nephews and nieces, and cousins also be included in the definition of “close familial relationship.”

As of June 29, 2017, DHS and DOS had begun implementing Trump’s Executive Order at United States embassies and consulates abroad in compliance with the Supreme Court’s June 26th decision that agreed to hear the travel ban case next fall and partially granted the government’s request to stay the lower court’s injunctions. Their website states that “implementation [of the Executive Order] is in full compliance with the Supreme Court’s decision.”


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Homeland Security Temporarily Delaying Effective Date of International Entrepreneur Final Rule

On Tuesday, July 11, 2017, the Department of Homeland Security published notice in the Federal Register delaying the implementation of the International Entrepreneur Rule. After last month’s prediction that the Trump administration would delay the rule from going into effect on July 17th, the DHS notice officially delays the effective date of the regulation until March 14, 2018, except for an amendment to an Aliens and Nationality Immigration Regulation relating to seizure and forfeiture of conveyance, which will still go into effect on July 17, 2017.

The DHS states that the reason for the temporary delay is to “provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order 13767, ‘Border Security and Immigration Enforcement Improvements.’”

On January 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, prescribing improvements to border security and immigration enforcement, requiring the DHS Secretary to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

DHS will issue a Notice of Proposed Rulemaking seeking public comments on the proposal to rescind the International Entrepreneur Final Rule. The delayed effective date will provide an opportunity for the notice and comment rulemaking to take place.

The comment period is open for 30 days, until August 10, 2017.

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About ABCs of Immigration Law
The global economy has become increasingly transactional and transcontinental. Since 9/11, there have been many amendments to immigration laws in the United States that have largely affected both individuals and businesses. Cozen O'Connor's immigration law blog, ABC's of Immigration Law, focuses on the interests and the challenges faced by those individuals and business impacted by immigration laws.
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