State Department Orders ‘Extreme Vetting’

State Department Secretary Rex Tillerson has directed all consular chiefs to determine which populations of visa applicants should be subject to additional “extreme” vetting.  The March 15 direction is in response to President Donald Trump’s March 6 “Travel Ban” Executive Order and Presidential Memorandum on “extreme vetting.” The Memo directed the U.S. Attorney General and the Secretaries of State and Homeland Security to put appropriate protocols and procedures in place and “vigorously enforce all existing grounds of inadmissibility.”

Tillerson suggested the following new areas of inquiry:

  • 15 years of travel history;
  • 15 years of address and work history;
  • 5 years of phone numbers, email addresses, and social media handles; and
  • Names of siblings, children, or former spouses not listed elsewhere on immigration applications.

Later on March 15, the U.S. District Court in Hawaii blocked the newly revised EO.  On March 16, the U.S. District Court in Maryland, in a less sweeping order, also enjoined the 90-day travel ban on individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Consular officials subsequently were notified that “extreme vetting” would have to be suspended for visa applicants from the six countries in the travel ban.

Oddly, this means that only visa applicants from countries that have not been targeted by the new EO could be subject to “extreme vetting” and additional delays. The new vetting procedures will not directly affect individuals from countries eligible for the Visa Waiver Program, but applicants from Iraq, no longer included in the travel ban, could be subjected to “extreme vetting.”

Trump has stated that he would appeal the rulings of both the Hawaii and the Maryland District Courts. The government’s first step was to seek clarification of the Hawaii court’s ruling, basically asking it to bring its injunction in line with the Maryland court’s ruling – perhaps contemplating a consolidated appeal strategy. The Hawaii court refused. Meanwhile, the government has filed an appeal of the Maryland court’s ruling in the Fourth Circuit Court of Appeals. Final briefs on the appeal will be due on April 5, with a hearing to follow.

We will continue to provide updates as they become available.

Future of H-4 Work Permits Uncertain

In 2015, the Obama Administration DHS issued the H-4 EAD Rule allowing certain spouses of H-1B holders to obtain EADs and work while waiting to become permanent residents.  Soon thereafter, a group of high-tech workers, Save Jobs USA, filed suit in the U.S. District Court for the District of Columbia arguing that the DHS lacked authority to issue the rule. The case was dismissed on summary judgment.

Late in 2016, Save Jobs USA filed an appeal. It fell to the new Trump DOJ to respond. Instead of filing a brief in support of the DHS rule, the DOJ, now headed by Attorney General Jeff Sessions, filed a “Consent Motion to Hold Proceedings in Abeyance for 60 Days.” The DOJ asked for and obtained a “pause” to “allow incoming leadership personnel adequate time to consider the issues.” Sessions reportedly referred to the H-4 Rule as a “change [in] immigration law in a way that hurts American workers.” Trump might well agree.

Perhaps seeing the writing on the wall, Immigration Voice, an advocacy group of high-skilled immigrants, along with two named individuals have filed a motion to intervene in the appeal arguing that the Trump DOJ may not zealously defend the Rule. The named intervenors are both entrepreneurs whose business plans are on hold due to the H-4 EAD uncertainty and any jobs for U.S. workers that they might have created are also on hold.

Beyond the possible loss of entrepreneurial activity, if the H-4 EAD is eliminated, U.S. companies that need to hire H-1B workers may find themselves at a competitive disadvantage internationally. Countries throughout Europe, Canada, the U.K., Australia, and others have routinely allowed the spouses of highly skilled workers to work. Because living as a one-income family in the U.S. can be difficult in today’s economy and because without the H-4 EAD spouses may not be eligible for work authorization for 10 years or more, its elimination may make global talent acquisition and retention more difficult. Today, 90% of H-4 visa holders are women and 80% of those are Indian nationals – many are the spouses of H-1B workers in the high-tech industry which may be particularly affected.

The 60-day pause in the legal proceedings in Save Jobs USA case will end in early April. At that time, the Trump Administration may end the uncertainty.

If you have any questions about strategizing around possible loss of the H-4 EAD Rule, please reach out to your Jackson Lewis attorney.

Restrictions on Personal Electronic Devices, including Laptops, on Flights from 10 Airports

No personal electronic devices (PEDs) larger than a cellphone or smartphone, such as a laptop computer or e-reader, can be carried into the cabin of airplanes flying directly to the U.S. from 10 airports in the Middle East, North Africa, and Turkey, the DHS and TSA announced on March 21, 2017.

Following are the airports:

  • Abu Dhabi International Airport, Abu Dhabi
  • Dubai International Airport, Dubai
  • Cairo International Airport, Egypt
  • Queen Alia International Airport, Jordan
  • Kuwait International Airport, Kuwait
  • Mohammed V Airport, Casablanca, Morocco
  • Hamad International Airport, Qatar
  • King Abdul-Aziz International Airport, Jeddah, Saudi Arabia
  • King Khalid International Airport, Riyadh, Saudi Arabia
  • Ataturk International Airport, Istanbul, Turkey

The carriers involved will have 96 hours, until early in the morning of March 25, to comply with this directive.

No American carriers are affected because none have direct flights to the U.S. from the 10 airports. Based on itineraries, the following carriers have been notified and will be affected:

  • Egypt Air
  • Emirates Airways
  • Etihad Airways
  • Kuwait Airways
  • Qatar Airways
  • Royal Air Maroc
  • Royal Jordanian Airlines
  • Saudi Arabian Airlines
  • Turkish Airlines

All passengers will be subject to these restrictions, including U.S. citizens, regardless of Trusted Traveler Status. Approved medical devices will be allowed on board, but only after additional screening is conducted. TSA advises passengers with connections through one of the 10 airports to place large electronic devices into their checked baggage at their originating airport.

The DHS states that it has put these restrictions in place because “[the agency’s] information indicates that terrorist groups’ efforts to execute an attack against the aviation sector are intensifying . . . .” These restrictions will remain in effect indefinitely “until the threat changes.” TSA emphasizes that it “continually assesses and evaluates the current threat environment and adjusts security measures as necessary to ensure the highest levels of aviation security without unnecessary disruption to travelers.”

In addition to the new PEDs process, all travelers to the U.S. should be prepared for the possibility that their electronic devices might be “detained” for examination and inspection upon arrival in the U.S. Indeed, in February 2017, after the issuance of the first travel ban, Sidd Bikkannavar, a U.S.-born NASA scientist who works at NASA’s Jet Propulsion Laboratory returning from Patagonia was held at the George Bush Intercontinental Airport in Houston until he agreed to unlock his phone.

Following the DHS announcement, the U.K. announced a similar restriction on direct flights to the U.K. affecting airports in Egypt, Jordan, Lebanon, Tunisia, Turkey, and Saudi Arabia. This restriction will affect British carriers including British Airways as well as foreign carriers. Canada may soon announce such restriction as well.

Please contact a Jackson Lewis attorney if you have any questions.

Revised Travel Ban Blocked

Late on March 15, Judge Derrick Watson of the U.S. District Court in Hawaii issued a nationwide injunction blocking the revised travel ban Executive Order that was scheduled to take effect on March 16.  In addition, on March 16, Maryland U.S. District Judge Theodore D. Chuang, in a less sweeping order, granted a nationwide injunction blocking the 90-day travel ban on nationals from the six listed countries.

President Donald Trump, speaking at a rally in Tennessee, stated the revised ban was a “watered down version” of the original ban and pledged “to fight the ruling as far as it needs to go” – including to the Supreme Court. The Administration’s legal strategy may hinge in part on the progress of the Senate hearings to put Judge Neil Gorsuch on the Supreme Court.

Please contact a Jackson Lewis attorney if you have any questions about the Executive Order or the court decisions.

Courts Hold Hearings on Administration’s Travel Ban

President Donald Trump’s revised Executive Order with its revised travel ban is scheduled to become effective just after midnight on March 16. While the revised Order regarding the travel ban is a bit of a retreat from the original, states have wasted no time trying to block the Order and hearings in two of these cases are scheduled for March 15.

The State of Hawaii was the first to file, arguing that the new E.O. has the same legal infirmities as the original. Hawaii provides evidence in more than 10 numbered paragraphs of alleged discriminatory statements made by Trump and his associates during and after the presidential campaign as proof that the E.O. is still a Muslim ban. Hawaii’s brief also outlines the chaos that followed the original E.O. and provides leaked intelligence reports as proof that there is no rational basis for the ban and that it is therefore unconstitutional.

Washington State Attorney General Bob Ferguson has asked that the previously granted injunction against President Trump’s original travel ban be applied to the revised ban. That request has been joined by California, Maryland, Massachusetts, New York, and Oregon.

Either of these cases could end up back in the Ninth Circuit Court of Appeals.

The ACLU, the National Immigration Law Centre, the Hebrew Immigrant Aid Society (HAIS), and a number of named plaintiffs also will have their motion to block the travel ban heard by a U.S. District Court in Maryland on March 15. This case focuses on the plight of refugees and individuals from the six countries who are in limbo abroad.

While the fate of the revised E.O. remains in question, non-immigrants from the six affected countries who would have to apply for new visas abroad may wish to reconsider their travel plans.

Gear Up for H-1B, L-1 Reforms

Aiming to reform and reduce fraud and abuse in the H-1B and L-1 visa programs, bipartisan bills have been introduced in both Houses of the Congress. Outsourcers are the top users of H-1B visas. These companies are known to flood the H-1B visa lottery and make it more difficult for other companies to obtain the H-1B visas they need to recruit and maintain top talent. Outsourcers have brought foreign nationals to the U.S. on these visas to be trained by the U.S. workers they are destined to replace. In light of this, other perceived abuses, and President Donald Trump’s promises to protect U.S. workers, reform bills are proliferating in Congress.

The H-1B and L-1 Visa Reform Act is a comprehensive bipartisan bill introduced in the U.S. Senate by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) with co-sponsors Bill Nelson (D-Fla.), Richard Blumenthal (D-Conn.), and Sherrod Brown (D-Ohio). This bill is a companion to another bipartisan bill introduced in the House of Representatives on March 2 by Representative Bill Pascrell, Jr. (D-N.J.) with co-sponsors Dave Brat (R-Va.), Ro Khanna (D-Cal.), and Paul Gosar (R-Ariz.). The sponsors of the House bill represent a particularly broad political spectrum from Tea Party members (Brat and Gosar) to the son of Indian immigrants who worked in the Obama Administration (Khanna) – perhaps an indication that momentum is building for this bill that would overhaul the H-1B and L-1 programs.

The “Grassley-Durbin-Pascrell” line of bills focus on outsourcing and the displacement of U.S. workers. The bills would:

  • Require employers to make a good faith effort to recruit U.S. workers by instituting a pre-application, 30-day job posting requirement;
  • Prohibit large companies from hiring H-1B workers if more than 50% of their employees are on H or L visas and prohibit restructuring to avoid the 50%-threshold;
  • Eliminate the random H-1B lottery and replace it with an allocation system that prioritizes those with the highest salaries and those with advanced U.S. STEM degrees;
  • Prohibit replacement of U.S. workers by H-1B or L visa holders for 180 days before and after hire;
  • Require a waiver to outsource H-1B and L-1 workers to other employer sites;
  • Raise H-1B wage requirements and establish L-1 wage requirements;
  • Redefine specialized knowledge to limit L-1B eligibility;
  • Clarify that a “specialty occupation” requires an actual bachelor’s degree – eliminating eligibility based upon equivalency evaluations;
  • Ensure that intercompany transfers do not involve shell corporations;
  • Eliminate the B-1 in lieu of H-1B visa category; and
  • Provide more authority for DHS and DOL to investigate fraud and abuse by sharing information and instituting higher penalties.

The bills also would protect H-1B and L-1 employees by:

  • Limiting H-1B status to three years, unless the beneficiary has an approved I-140 immigrant visa petition (thereby promoting Green Card sponsorship);
  • Requiring employers to provide petition or visa beneficiaries with all documentation filed on their behalf with the DHS and DOL – redacting only sensitive financial or proprietary information; and
  • Requiring USCIS and Consulates to provide beneficiaries with brochures outlining employer’s obligations and employee’s rights under the visa programs.

Changes of this magnitude obviously would affect those who use outsourcing services and require all employers to rethink their hiring practices and immigration strategies.

We will continue to follow these bills as they move through the legislative process and provide updates.

Revised Travel Ban Executive Order Targets Six Countries, Drops Iraq

The “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order (E.O.), issued by President Donald Trump on March 6, 2017, suspends processing of visa issuance for individuals from six designated countries until June 14, 2017, 90 days from the E.O.’s effective date, March 16, 2017.  The E.O. will supersede the Executive Order issued on January 27, 2017, that banned travelers to the U.S. from seven countries, including Iraq. That much-criticized Executive Order was blocked by the courts.  To read the full article, click here.

USCIS Suspends Premium Processing Service for H-1B Cases Effective April 3, 2017

USCIS has announced the temporary suspension of the Premium Processing service for all H-1B cases filed on or after April 3, 2017. This suspension applies to all H-1B cases filed – including those filed under the FY2018 regular H-1B cap, Master’s cap exemption, H-1B transfer cases, H-1B extensions, and cap-exempt H-1B filings.

The government, not indicating when the suspension would be lifted, noted only that this was intended to “help reduce overall H-1B processing times.” The suspension, according to USCIS, would allow officers to process long-pending petitions and prioritize the adjudication of H-1B extension of status cases that have been pending for nearly eight months.

The Premium Processing service is offered for fast-track processing in certain nonimmigrant and immigrant case filings for an additional government filing fee of $1,225. Premium Processing has been popular because it guarantees an initial adjudication within 15 calendar days of filing. Initial adjudications include the issuance of Requests for Evidence to require more information on the filing before a final adjudication can be made.

USCIS noted that petitioners still may request expedited processing (without an additional fee) if they can provide evidentiary proof that at least one of the following expedite criteria is met:

  • Severe economic loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Non-profit organization whose request is in furtherance of the cultural and social interests of the U.S.;
  • Department of Defense or national interest situation (these particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government);
  • USCIS error; or
  • Compelling interest of USCIS.

A determination for expedited processing is purely at the agency’s discretion, and expedited processing is rare.

This suspension’s most significant effect likely will be on initial H-1B filings for work with cap-exempt employers. These employers have not experienced timing restrictions with H-1B filings, since they are not subject to the “cap” and the inevitable visa lottery. Cap-exempt employers generally can sponsor employees throughout the year, and they benefit from use of the Premium Processing service when employees are needed with little notice. This suspension will require careful planning on the part of cap-exempt employers.

Expect H-1B cap receipt notices by the end of June 2017, and adjudications throughout the summer of 2017.

If you have any questions about your upcoming H-1B filing, please contact the Immigration Practice.

EU May Reinstate Visas Requirement for U.S. Tourists and Business Visitors

While the U.S. travel, tourism, and hospitality industries worry about deleterious effects from President Donald Trump’s clampdown on immigration, including the travel ban, the European Union has its own, similar concerns related to the possible temporary reinstitution of visa requirements on U.S. citizens entering the EU.

Under the U.S. Visa Waiver Program, nationals of 23 EU countries can enter the U.S. as tourists or business visitors for up to 90 days without a visa. But the Program does not include five of the EU member nations — Bulgaria, Croatia, Poland, Romania, and Cyprus. EU rules require equal treatment for all EU nations and, for years, the five excluded countries have been calling for full reciprocity.

Under EU rules, in April 2014, a warning was issued to Canada, Australia, Brunei, Japan, and the United States that if full reciprocity was not granted within two years (by April 2016), the EU would reinstate visa requirements for citizens of the noncompliant nations for a 12-month period. Australia, Brunei, and Japan have complied. Canada will comply by December 1, 2017. The U.S. is the only country that has not yet heeded the warning.

It has been almost a year since the April 2016 deadline set under the original EU warning and the EU Parliament, by a show of hands, urged adoption of strictures against the U.S. That vote, however, is not binding and EU Commissioners hope to resolve the issue at an upcoming EU-U.S. ministerial meeting scheduled for June 2017. What is the hold-up? The Commissioners fear that there would be grave economic costs to imposing visa requirements on U.S. tourists and business visitors even for a limited time.

We will continue to follow these negotiations and provide updates as they become available.

Trump EO Biometric Entry-Exit Section Raises Concerns of Lawmakers over Costs, Logistics

Members of Congress from states bordering Canada, the Northern Border Caucus, have focused on a section of President Donald Trump’s Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order directing DHS to expedite “the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States.” Calling it “unnecessary” on the northern border, representatives from New Hampshire, New York, North Dakota, Vermont, and Washington are concerned the system will lead to long lines and waits, interfere with commercial traffic, and damage tourism in their states.

In Buffalo, New York, there is bipartisan opposition to implementation of the biometric system. Representative Brian Higgins (D) believes the cost of implementation, $6.5 billion, will bring it to a halt when it comes to Congress for funding. In fact, that was where a similar proposal died two years ago. Representative Chris Collins (R) expressed particular concern about a reduction in sports tourism – reducing fan attendance at Buffalo Bills football and Buffalo Sabres hockey.

Because there is already a joint biometric entry-exit partnership agreement in effect between the United States and Canada, the Beyond the Border Action Plan, the Caucus has asked that the Administration do a careful cost-benefit analysis and coordinate with the Canadian government before instituting a costly enhancement.

The Canadian government, perhaps in reaction to Trump Administration policies, is considering legislation to expand preclearance at Canadian airports. Prime Minister Justin Trudeau suggested that Canadians would be better protected under the Canadian Charter of Rights if they cleared U.S. Customs on Canadian soil. But the measure would give CBP officers the right to question, or detain for hand-over to Canadian officials, any Canadian suspected of violating Canadian law. There is opposition. Canadian lawmakers are concerned about granting additional authority to CBP because the bill “does not address Canadians’ concerns about being interrogated, detained and turned back at the border based on race, religion, travel history or birthplace.”

Meanwhile, Canada is prepared to capitalize on the controversy swirling around the Trump Administration’s immigration policies. Trudeau has extended his welcome, and so has the City of Vancouver, just a two-hour flight from the Silicon Valley. Indeed, a Canadian start-up, True North, is introducing high-skilled foreign nationals and their companies to the advantages of having a back-up plan in Vancouver, providing introductions to Canadian immigration lawyers, and exploratory trips.

Please contact a Jackson Lewis attorney with any questions.