Travel Ban Update: Grandparents and Other Close Relatives

In a one-paragraph ruling, the U.S. Supreme Court, disagreeing with the Administration, allowed the District Court’s injunction to stand with regard to relatives. Individuals from the six designated countries with grandparents and other close relatives in the United States will not be subject to the travel ban – for now.

The Court, however, put the District Court’s injunction regarding refugees on hold, allowing the government’s interpretation to stand. Assurances from a refugee agency will not qualify as a bona fide relationship – for now. The Justices sent the matter back to the Ninth Circuit for resolution. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have let the government’s limited interpretation to stand in total.

The Supreme Court plans to take up the full case in October.

 

15,000 Increase in H-2B Visas Comes with Strings Attached

An additional 15,000 H-2B visas will be released in response to industry demand. The USCIS will begin accepting petitions on July 19, 2017, for the fiscal year which ends on September 30, 2017. Petitions will be accepted until the 15,000 visas run out or until September 15, 2017, whichever comes first. This is only a one-time increase.

Although Secretary Kelly had been hesitant to release additional visas, Congress granted him the authority to increase the total number available in an effort to eliminate the hardship to U.S. businesses that have relied on these workers in the past, but were unable to fill temporary, seasonal positions because the visas ran out on March 13, 2017.

The additional 15,000 H-2B visas come with new requirements. In order to file the petition, the employer must:

  • Possess a certified Temporary Labor Certification (TLC) with a start date before October 1, 2017
  • Ensure the start date on the petition matches the start date on the TLC (if the TLC has a start date prior to June 1, 2017, a new recruitment must be conducted)
  • Submit an attestation stating the employer will suffer irreparable harm, defined as “permanent and severe financial harm” if it cannot hire all of the requested H-2B workers

Once the petition has been filed:

  • A job order must be posted with the State Workforce Agency for five days within one business day of the filing
  • One newspaper ad must be posted while the job order is running
  • Applicants must be interviewed and a recruitment report must be prepared and maintained

While evidence of irreparable harm is not required, submitting some documentation could be helpful. In any case, employers must maintain documentation of the harm for three years and present it if requested.

Once the petition is approved, the employee may need to obtain an H-2B visa before entering the U.S. Given the requirements, processing times, and the fact that new recruitments may have to be conducted, it can take up to eight weeks to put new H-2B workers on the payroll.

Although employers hoped for more, the 15,000 visas should provide some relief to those who are able to file quickly and satisfy the requirements of the new rule.

For help filing H-2B petitions, please reach out to your Jackson Lewis attorney.

State Department Guidance to U.S. Diplomatic Posts on Information Sharing Standards

President Donald Trump’s March 6th revised Executive Order directs the Secretaries of State and Homeland Security, the Attorney General, and the Director of National Intelligence to review information sharing and develop uniform screening and vetting standards and procedures for visas and other immigration benefits. In June, the Ninth Circuit Court of Appeals held this review could proceed, and the State Department issued its first guidance to all U.S. diplomatic posts on July 12, 2017. Eventually, there will be lists of countries that meet and not meet the new standards.

According to the guidance, within about 50 days, “posts must inform host governments of the new information sharing standards and request that host government provide the requested information or develop a plan to do so.” Countries that fail to comply may face travel sanctions. The Administration explained in the revised EO that the six countries currently subject to the travel ban were selected because they had “been significantly compromised by terrorist organizations, or contain[ed] active conflict zones” and that those “circumstances diminished the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.” Now, those six countries may have an opportunity to be dropped from the list of banned countries, while other countries might be added.

All countries, even visa waiver countries, will be expected to share information on identity management and security and public safety threats.

According to the July 12 cable to all U.S. diplomatic posts that was published by Reuters, through a series of questions, the posts must determine whether their host countries:

  • Issue or have active plans to issue electronic passports including biometric imaging
  • Will provide and update samples of all passports and national identity documents
  • Regularly report lost or stolen passports to INTERPOL
  • Are prepared to supply any identity information requested, including biometric or biographic details
  • Provide or will provide data on individuals it knows or has grounds to believe are terrorists, including foreign terrorists
  • Provide or will provide criminal record information
  • Will agree not to impede the transfer of information about U.S.-bound travelers to the U.S. government
  • Will agree not to designate individuals for watch lists solely on the basis of political or religious beliefs
  • Take measures or will take measures to ensure that the country is not and does not have the potential to become a safe haven for terrorists. For instance, posts will need to know: “[w]hat steps has your host government taken to deny terrorists space in which to operate? Are there ungoverned, under-governed, or ill-governed physical areas in the host country or bureaucratic practices that allow mala fide travelers to use host country passports to travel to the United States?”
  • Agree to repatriate their own nationals who have been removed from the United States

The U.S. government reportedly has made a preliminary determination about countries that do not currently meet the new standards and countries that are “at risk” of not meeting the standards. The State Department guidance also states that there could be “a presidential proclamation that would prohibit the entry of certain categories of foreign nationals of non-compliant countries.”

Visa waiver countries will be informed that much of information being required overlaps with the standards for the visa waiver program and that the United States “will continue to engage VWP countries on the requirements set forth in the ‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.’”

DHS Releases 15,000 More H-2B Visas for Temporary Seasonal Workers

DHS announced on July 17, 2017, a one-time increase of 15,000 H-2B visas – still short of the number Congress had authorized. Given visa processing times, it may already be too late for businesses that rely on the summer season.

The summer is half over and well-known vacation areas are in turmoil because companies have not been able to find enough seasonal workers to handle the influx of tourists. Restaurants and bakeries on Cape Cod, amusement parks in the Midwest, hotels on lake islands, and fisheries in Alaska have been looking for temporary workers to fill jobs usually taken by trusted, experienced workers who return to work for them seasonally, sometimes year after year, on H-2B visas.

The statutory limit on the number of H-2B visas available each year is 66,000. However, until last year, an exemption from the limit for “returning workers” allowed more. In 2016, Congress failed to renew that exemption. In March 2017, H-2B visas for seasonal workers ran out. This means that employers relying on such seasonal workers, particularly those that constitute the summer tourist industry, have been left in the lurch. Congressmen from states that need seasonal workers failed to gain enough support for legislation to reinstate the exemption. In May, however, a provision was added to the omnibus spending bill that authorized Secretary of DHS John Kelly to increase the number of visas available from 66,000 to as high as 129,000. Employers have been anxiously waiting for more visas, but, until July 17, none have been forthcoming, and time was running out for companies that need revenue from the summer season to stay in business.

In June, Congressman William Keating (whose district includes Cape Cod) reported Secretary Kelly stated that his sense of the omnibus resolution was that Congress did not want to expand the number. Keating responded that there was “huge bipartisan support for [the increase]” and that it would not come at the cost of any U.S. worker jobs.

Employers are continuing to struggle to find U.S. workers. Lacking sufficient staff, businesses have had to cut their hours of operation, creating a ripple effect among U.S. workers in the tourist industry who are losing hours as well. Some businesses are turning to overtime. For many, that is not a sustainable model.

At the end of June, DHS announced that Kelly would use the authority granted by Congress to increase the visa number limit. On July 11, Senator Thom Tillis (R-N.C.), who represents a state that uses more H-2B visas than any (besides Texas and Colorado), put a “hold” on President Donald Trump’s nominee for USCIS director, Lee Francis Cissna, until Kelly releases more H-2B visas.

If you are in need of H-2B workers, contact your Jackson Lewis attorneys for further information.

 

USCIS Releases New Form I-9 and New Handbook for Employers

On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.

  • The revised version may be used immediately but it must be used no later than September 18, 2017.
  • Employers can continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017.
  • Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The changes noted below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Revisions to the Form I-9 instructions:

  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).
  • The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”

 

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
  • The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

 

If you have any questions about the new form, please contact your Jackson Lewis attorney for assistance.

Travel Ban Does Not Apply to Grandparents and Other Close Relatives, Hawaii Court Rules

Judge Derrick Watson in Honolulu has enjoined the federal government from using President Donald Trump’s partially reinstated travel ban to bar grandparents and other close relatives from entering the United States. He also has enjoined the government from banning refugees who are the beneficiaries of a sponsorship assurance from a resettlement agency.

When the U.S. Supreme Court partially reinstated the travel ban, it held that the ban could not be applied to individuals who have “a credible claim of a bona fide relationship with a person or entity in the United States.” Following that ruling, the government issued guidance interpreting what would constitute a “close familial relationship” for purposes of showing such a bona fide relationship. On the family side, the close relationship was limited to parents (including in-laws), spouses, fiancés, children, adult sons and daughters, sons-in-law, daughters-in-law, and siblings including step-siblings and other step-family. The government specifically excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law or other extended family. On the refugee side, the government concluded that assurances from resettlement agencies on their own would not exempt an individual from the travel ban.

The State of Hawaii, along with 15 other states and the District of Columbia, challenged the administration’s narrow interpretation of the Supreme Court’s ruling regarding family members and refugees. The exclusion of grandparents in particular had become a public flash point. In his ruling, Judge Watson noted that “the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”

All indications are that the government will appeal. Attorney General Jeff Sessions stated that “[t]he Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the executive branch’s duty to protect the nation.”

Jackson Lewis will provide updates as they become available.

Emails from clientverification@state.gov Are Legitimate

Emails from clientverification@state.gov are legitimate, the Department of State Visa Office has confirmed to the American Immigration Lawyers Association (AILA).

Emails from the address clientverification@state.gov are from government contractors requesting confirmation that a visa beneficiary will be working for the employer. Employers should take the requests seriously and respond.

If you have any questions about how to respond to such an email, please contact your Jackson Lewis attorney.

 

Personal Electronic Devices Ban Lifted for Some Airlines under New DHS Security Requirements

DHS Secretary John Kelly has released new enhanced security requirements for screening of personal electronic devices and passengers and for explosives for approximately 2,000 daily flights to the U.S. from 280 airports in 105 countries.  Airlines that meet the new requirements will not become subject to an expansion of the PED ban established in March.

Some airlines previously subject to the ban on personal electronic devices in airline cabins on direct flights to the U.S. have met those requirements and therefore are no longer on the restricted list. They include:

  • Etihad (Abu Dhabi)
  • Emirates (Dubai)
  • Royal Jordanian (Queen Alia)
  • Kuwait Airlines (Kuwait)
  • Qatar Airways (Hamad International)
  • Turkish Airlines (Ataturk International)

Please contact Jackson Lewis with any questions about this and other developments.

Nonimmigrant Visa Applicants May Have Longer Waits

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Since September 11, 2001, the State Department has given priority to security over quick visa adjudications. For many reasons, including heightened security, between 2001 and 2010, the U.S. share of the global tourism market had dropped markedly. The Obama Administration, concerned about the effect on the U.S. economy, took measures to “support a prosperous and secure travel and tourism industry in the United States.” The first steps were in 2010, when the National Export Initiative and the Travel Promotion Act became law. They mandated intergovernmental cooperation to work to establish a stronger brand identity for the U.S. and to promote exports. By 2012, President Barack Obama issued an executive order to continue the process of fostering more tourism and travel: Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness Order. One section ordered Consulates to “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, recognizing that resource and security considerations . . . may dictate specific exceptions[.]”

Although the Obama EO contained a security waiver, on June 21, 2017, Trump signed his own EO, striking the 80 percent/three-week goal. This is being done in conjunction with the travel ban partially reinstated by the U.S. Supreme Court and the extreme vetting procedures instituted by Secretary of State Rex Tillerson.

Pursuant to extreme vetting, if deemed necessary to determine eligibility, visa applicants may be asked to supply:

  • Travel history during the last 15 years, including source of funding for travel;
  • Address history during the last 15 years;
  • Employment history during the last 15 years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Names and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

Assessing this amount of information and data obviously will take time. A White House spokesman stated that the elimination of the “arbitrary” three-week goal was needed because “[t]he president expects careful, accurate vetting of visa applicants, not a rushed process . . . .”

Business groups already troubled about possible deleterious effects from the travel ban and extreme vetting have expressed concern about additional delays in visa issuance. According to State Department’s own data, the nonimmigrant visa issuance rate has been dropping. In March, 907,166 were issued and the number was down to 735,000 in April.

New Guidance on Trump’s Revised Travel Ban Effective June 29

New guidance explaining the criteria for visa applicants was issued by the Department of State to U.S. embassies and consulates late on June 28, 2017, according to reports. The guidance went into effect on June 29, at 8:00 p.m. EDT.

For our full article, please read here.

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