President Issues New Travel Restrictions

imagesOn September 24, 2017, the President issued a new Executive Order (“EO”) entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public Safety Threats”.  This new EO builds upon the last order, which was only valid for 90 days.  However, part of the old EO directed DHS to do a worldwide review to determine what additional information is needed from each foreign country to assess whether foreign nationals who seek to enter the United States pose a security or safety threat.  DHS completed that review and gave the President a list of seven countries that had “inadequate” information sharing practices.  The new EO implements certain types of restrictions against nationals of these seven countries (plus one additional country that the President felt posed security risks) in terms of their ability to get certain visas.

Who Does the Ban Affect?

The countries that are part of this new Executive Order are:

  1. Chad
  2. Libya
  3. Iran
  4. North Korea
  5. Syria
  6. Venezuela
  7. Yemen
  8. Somalia

As stated, the restrictions are not uniform for all the above countries.  The following table lays out what restrictions are placed on immigrant and non-immigrant visas for each country:

Country Non-Immigrant Visas Immigrant Visas
Chad No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Iran No non-immigrant visas except the F, M and J student visas No Immigrant or diversity visas

 

 

Libya No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

North Korea No nonimmigrant visas No Immigrant or diversity lottery visas

 

Syria No nonimmigrant visas No Immigrant or diversity lottery visas

 

Venezuela No B-1, B-2 or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and, the People’s Power Ministry of Foreign Affairs, and their immediate family members.

 

No Restrictions

 

Yemen No B-1, B-2 or B-1/B-2 visas No Immigrant or diversity lottery visas

 

Somalia No nonimmigrant visas No Immigrant or diversity lottery visas

 

Dual Nationals:  Dual nationals can still travel and get visas based upon another nationality besides the ones listed above (So, for example, a national of both Iran and Canada can still get any nonimmigrant visa or immigrant visa based upon their Canadian Nationality).

Those in the US at the time the travel ban takes effect:  They are not affected by the travel ban as they are already in the US.

Those Outside the US with valid visas:  Exempt from the restrictions

Permanent Residents of the US:  These people are exempt from the Travel Ban

There are other certain exemptions as well, please make an appointment if you feel you may be affected by the travel ban and we can review the waivers and exemptions with you.

When will the Ban take effect?

From 3:30 pm on September 24, 2017, until 12:01 am on October 18, 2017, Nationals of Iran, Libya, Syria Yemen and Somalia will remain under the previous Travel Ban (i.e. only those with close family ties can get visas).  Sudanese national will no longer be subject to any ban as of that date and time.

From 12:01 am on October 18, 2017, forward the above travel restrictions will be in force and will replace the previous Executive Order Travel Ban.

If you feel you may be affected by the new travel ban, please do call our office.  We can assess your case and let you know if the travel ban does affect you, and if you are eligible for any of the waiver/exemptions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Is USCIS going to request your Social Media IDs?

social media.jpgUSCIS published a proposed regulation that would allow them to ask for social media ids (Facebook, Twitter, etc.) for certain nonimmigrants seeking entry into the US.  It would affect those filing the online application for a visa waiver entry.  The “optional” question would be placed in the application so that USCIS could look at people’s social media pages to determine if there is a ground’s of inadmissibility that they did not report – most importantly, if they are involved in terrorist activities or in supporting terrorist groups.

This is an attempt by USCIS to ensure that those coming in through the visa waiver program, who are not required to go through the sometimes lengthy background checks that other non-immigrants are required to go through, are vetted in someway prior to entry.  In this way, USCIS is attempting to show that it is trying to secure our borders from undesirable foreigners.

While I certainly applaud USCIS for trying, I think that this is not really the way to go.  Why do I say this?  First, this is optional.  While many people may give the information as they feel that it could prejudice them if they did not, it is still not required and USCIS, therefore, cannot deny an application simply because someone failed to give the information.  In addition, at this point, terrorist organizations can simply make sure that those that will be entering the US do not put anything on their social media feeds.  Lastly, it also opens the door for USCIS to start requiring such information.  If they require this, maybe next they will want to “require” access to your cell phone, or access to private messages, etc.  Where will it stop in terms of what they can and cannot request from you whether or not you are accused of doing something or even suspected of doing something illegal?  It is a slippery slope and it would seem to only make sense to open up this Pandora’s box if the benefit outweighed the risks.  As I do not think that this is the case, I would not be in favor of this measure.

Apparently most of the 800 people who sent in comments on the proposed rule were of the same mind and castigated USCIS for even thinking of such a rule.  What do you think?  Leave a comment with your views below.

USCIS Changing Filing Location for Some H-1Bs

UnknownUSCIS just yesterday issued the following press release relating to where to file certain H-1Bs:

On July 1, 2016, the Nebraska Service Center (NSC) will begin accepting Form I-129 for H-1B and H-1B1 (Chile/Singapore Free Trade) petitions if the petitioner requests a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a requested action in Question 4 to:

  • Notify the office in Part 4 so the beneficiary can obtain a visa or be admitted. (Box a. on Part 2, Question 4, Page 2 of the current Form I-129);
  • Extend the stay of the beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129); or
  • Extend the status of a nonimmigrant classification based on a free trade agreement. (Box e. on Part 2, Question 4, Page 2 of the current Form I-129)

The NSC will also accept any:

If you are filing a standalone Form I-539 and/or Form I-765 for H-4 nonimmigrants, please refer to the Filing Addresses for Form I-539 page or the Direct Filing Addresses for Form I-765 page for proper filing addresses.

The California Service Center (CSC) and the Vermont Service Center (VSC) may continue to accept these petitions during the transition period, which ends Aug. 31, 2016.

These petitions should be mailed to:

USPS Mail: Courier (FedEx, UPS, etc.) Mail:
USCIS

Nebraska Service Center
PO Box 87129
Lincoln, NE 68501-7129

USCIS

Nebraska Service Center
850 ‘S’ Street
Lincoln, NE 68508

Petitioners should continue to file all other H-1B/H-1B1 petitions with the CSC and the VSC based on the instructions on the Direct Filing Addresses for Form I-129 page.

Additionally, petitioners who are statutorily exempt from the H-1B numerical limitation, or are filing a cap-exempt petition to employ the beneficiary at an institution of higher education, nonprofit entity related to or affiliated with an institution of higher education, a nonprofit research organization, and/or a governmental research organization should continue to file their H-1B cap-exempt petitions with the CSC.

To summarize, just H-1B’s in which the petitioner is asking for “Continuation of previously approved employment without change with the same employer” will be sent to Nebraska.  All other H-1Bs will be filed as normal.  This goes into effect on July 1, 2016, but the Vermont and California service centers will also accept these applications through August 31, 2016.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

AILA Sues USCIS over H-1B Lottery Data

UnknownThe American Immigration Lawyer’s Association (AILA) last week filed a lawsuit against USCIS to release the specifics of how they conduct the lottery on H-1B applications every year.  From the AILA press release:

 

Every year, USCIS approves 65,000 cap-subject H-1B visas and an additional 20,000 H-1B visas for candidates with advanced degrees. Every year for the past ten years, the number of applicants for these visas has exceeded the cap. When this happens, CIS initiates a lottery that utilizes a computer-generated randomized selection process to determine which petitions get reviewed and which get returned to the sender.

The H-1B lottery has always been shrouded in mystery. Despite claims of commitment to transparency, CIS has not been forthcoming with information about the mechanisms of this lottery. There is no way to hold CIS accountable for this process and possible flaws or unfairness resulting from it. There is no way to tell whether this process even holds up to statutory standards without the ability to see and review it. For this reason, a lawsuit has been brought against CIS and the US Department of Homeland Security by the American Immigration Council and the American Immigration Lawyers Association with the purpose to seek information about the inner workings of the H-1B lottery process.

While the process for the H-1B lottery may not change, and there is certainly every indication that more, not less, applications we be filed every year, at least the lawsuit will hopefully provide a level of transparency so that those whose application is accepted through the lottery and those whose applications are not accepted in the lottery will be assured that the process was fair and open.

We will certainly update you with USCIS’ response and if there are any other developments on this case.

If you have any questions leave a comment below or send me an email.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Meets H-1B cap – Lottery Will be held

UnknownAs expected USCIS announced today that it has received sufficient H-1B application to meet the H-1B cap as well as the Master’s Cap.  Therefore USCIS will conduct a lottery later this month to determine which cases will be accepted for the cap, and which will not, and will be returned with their fees.   All application received by the close of business today will be accepted into the lottery.  USCIS will finish processing all cases received before proceeding with the lottery.  Unfortunately, according to USCIS, because of the high numbers received, USCIS is not sure when they will finish processing the cases.   Here is hoping it will not take them to long.  We will update you as soon as we hear anything additional.

H-1B Extensions and RFEs

Maybe this scenario sounds familiar:  You file for an H-1evidenceB for an employee, and get it  approved for them to work for you for 3 years. At the end of the 3 years you file a renewal for your employees H-1B.  Instead of a straight approval this time, however, USICS requests additional evidence as, according to the Request, they do not believe that you qualify for the position or that the position itself is a specialty occupation.  We have seen this happen recently even and, whenever it does, we cannot but help feeling confused.  Why would USCIS approve the application once and then, all of a sudden and out of the blue on a renewal demand documentation about entitlement to the visa classification?  It makes little to no sense.

In fact, in the Field Officers Operating Manual, USCIS itself states:

Issues surrounding the alien’s original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office.

Despite this, some officers will still insist on revisiting entitlement to status in subsequent renewals.  What can you do if this happens to an application for one of your employees?  The most important thing to do is to immediately start collecting the documentation requested.  The reason for this is twofold:  Fipreponderance-of-the-evidencerst, USCIS does have the right to ask for additional evidence regardless of the above procedure manual.  You also have the responsibility to meet your burden of proof – and to show by a preponderance of the evidence that the beneficiary is qualified for the position.  Second, USCIS does not like to admit they made a mistake.  By requiring you to respond no matter what, they can sooth their pride by saying it was because of the new evidence that the case became approvable.  So assume that, no matter what else you try, you will have to respond.  That way you will always be able to get the documents in a timely manner and will not run out of time.

It should also be noted that the overall RFE and denial rate has dramatically increased for H-1Bs over the years.  In 2009 it was around 8-10%.  In 2012, the denial rate was approximately 29.5% – almost a third of H-1B cases submitted in 2012 were denied.  This is a huge increase in a short period of time.  It also means that a larger percentage of cases were RFE’d (if almost 1/3 were denied) as they certainly did approved some cases that received an RFE.

So what can you do to prevent RFEs and denials in the first place?  Plan carefully – include documents showing ability to pay, include documents such as a transcript, showing the employee has learned the specific skills needed for the position through their eduction, include documentation of the complexity of the job duties so there is no question regarding the need for a bachelor’s degree.  In short, do not skimp on documentation for the initial H-1B OR the H-1B renewal.  Include everything.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

H-1Bs: Can an Employment Contract Termination clause require the Employee to pay H-1B fees?

punitive-damages

Here is the scenario:  An H-1B employee works for Employer A.  The employee receives a better off from Employer B, and Employer B files an H-1B transfer for them.  When the employee informers Employer A about the new filing, Employer A tells them that, per their employment contract, since they left prior to two years expiring they need to reimburse Employer A for a certain sum of money.  Sometimes the employer specifically requires employees to repay H-1B visa fees, sometimes it is a more general liquidated damages clause.

The big question is, Is this Legal?

Before proceeding let me say that I am not an employment law attorney and, in general, I cannot tell you if a specific liquidated damages clause is valid or not.  What I can say is that any clause that would require the employer to pay back H-1B fees is, in almost every circumstance, invalid and illegal.  As stated in a previous blog post, the Employer is required to pay certain fees, no matter what.  This includes the training fee, which is usually $750 or $1500 depending on the size of the employer.  There is no doubt that this fee CANNOT be reimbursed to the employer in any way, shape or form.  If the clause includes reimbursement for that fee, it would be considered illegal.  What about the other H-1B visa fees and the attorney fee?  Could the employer get reimbursed for those?

It is good to recall here that the justification given by the DOL for requiring an employer to pay all fees is that such fees are a “cost of doing business” and, therefore, not a legitimate deduction from the employees pay.  Therefore, the payment of such fees could bring the salary of the employee below the required wage.  Therefore, I think it is clear that if the employees repayment of the fees brings their salary below the prevailing wage (this would be their yearly salary minus the amount they are repaying, not their entire salary for the entire time they worked), it is against the regulations and the DOL would have an action against the employer.

The trickier situation is where the re-payment of such fees would not bring the employees salary below the prevailing wage.  First, if the LCA lists just a static wage, and the re-payment of the fees would bring the wage below that level, I again feel that it is clear that the DOL would consider that a violation of the LCA as the employer is no longer paying the promised wage.  If the LCA lists a wage range, and the re-payment of the fees would keep the wage in that range, I still believe that the DOL and USCIS would both have issues with the re-payment of the fees.  DOL seems to think that there is no situation in which it is ok for the employer to require an employee to pay such wages.  It is certainly not worth the risk in my mind to tempt fate and try to enact or enforce such a provision.

As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.