USCIS has announced that Iranians in the U.S. will not be eligible for extensions of E-1 or E-2 visa status or changes to that status from another visa classification. The announcement comes more than a year after the U.S. Department of State notified Iran on October 3, 2018, of the termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights. Since there are no other qualifying treaties or any relevant specific legislation, there are no other options for Iranians to obtain E-1 or E-2 status.

Iranians currently in the U.S. in E-1 or E-2 status may remain until their current status expires and have the option of applying to change status if they are eligible for a different visa status. Those with pending E-1 or E-2 petitions that were filed after October 3, 2018 will receive Notices of Intent to Deny.

E-1 Treaty Traders are those who conduct substantial trade in goods, services and technology principally between the U.S. and the foreign country of which they are citizens or nationals. E-2 Treaty Investors direct enterprises in which they have invested or are actively investing a substantial amount of money in the U.S.

This announcement does not come as a surprise following the termination of the 1955 Treaty, Iranians are already subject to the Travel Ban, as visa and travel options continue to be restricted for them.

If you have any questions about available visa options for Iranian nationals, please reach out to a Jackson Lewis attorney.

The North American Free Trade Agreement (NAFTA), signed into law in 1993, eliminated trade barriers and increased investment opportunities between the three signatory countries, the United States, Mexico, and Canada. After more than 25 years, the agreement was seen to require revisions, particularly as to labor, digital trade, and data flows. A revision to NAFTA, called the United States, Mexico, Canada Agreement (USMCA), has passed both the House of Representatives and the Senate with broad bipartisan support.

The new treaty is expected to become effective in the spring of 2020, after ratification in Canada. A proposal to the USMCA would have changed the Treaty NAFTA visa (TN visa), but it did not materialize.

During the negotiations, in accord with the President’s “Buy American, Hire American” Executive Order, the Trump Administration reportedly wanted to reduce the scope of TN visa status by limiting the number of eligible professions and, possibly, capping the number of visas available. Canada and Mexico wanted the opposite – to expand the number of eligible professions and update the listed professions to bring them more in line with current technological demands. None of these changes were incorporated into the USMCA.

However, the Department of Homeland Security is applying a higher level of scrutiny to the TN visa category. New guidelines were issued regarding the economist category. Now, a broad range of other professions related to economists, such as financial analysts, market research analysts, and marketing specialists, will no longer qualify for TN visas. Credentials are being questioned and even those who already hold TN status may have renewals denied.

Canadians are seeing additional restrictions at Ports of Entry. Previously, it was possible for a Canadian citizen to obtain L-1 visa status, either for an initial approval or a renewal, at the border, without having to file an application with USCIS. However, in 2019, without issuing any policy memo, Customs and Border Protection (CBP) began refusing to adjudicate anything other than an initial L petition or applications for intermittent or commuter Ls at the border. All other categories of Canadian L visas now require costly filings by petitioning employers with USCIS. Employers can expect long processing times, or having to pay an additional $1,440 fee for expedited “premium processing,” not to mention dealing with the costs and delays of Requests for Evidence this type of visa has drawn lately.

In the meantime, Canada is taking advantage of stricter scrutiny of all U.S. work visas by “inviting” frustrated companies to move their offices, or just their employees, to Canada. Even during the USMCA negotiations, Canadian Prime Minister Justin Trudeau was encouraging companies to consider their new two-week fast track employment visa process. Whether this will affect U.S. policies, remains to be seen.

If you have any questions about TN or Canadian L visa statuses, or the USMCA, please reach out to a Jackson Lewis attorney.

President Donald Trump, while at the World Economic Forum Annual Meeting in Davos, Switzerland, announced that he planned to add countries to the Travel Ban which currently denies entry to certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen.  While he did not enumerate the countries, it has been reported that they include Belarus, Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan and Tanzania.  The ban apparently would not be a blanket ban.

It is also reported that the formal announcement of the additions to the ban will take place on the third anniversary of the initial travel ban – January 27, 2020.

Jackson Lewis will provide updates as they become available.

Since 2013, a growing number of states have been issuing driver’s licenses in one form or another to undocumented workers. New York and New Jersey are just joining the list that includes California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Oregon, Nevada, Utah, Vermont, Washington, and the District of Columbia. The trend is continuing in other states.

Following passage of the New York “Green Light” bill, the Trump Administration has decided to conduct “a departmentwide study of the effects of issuing state driver’s licenses to undocumented immigrants.” A DHS spokeswoman said the study (and possible litigation) is about national security, because these laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Most of the states that are issuing “driving only” licenses have large populations of undocumented immigrants. Granting driver’s licenses makes life much easier for undocumented immigrants. State legislators believe it also contributes to local economies. Undocumented immigrants will buy more cars, insurance, and gasoline and will pay more license-related fees. Because undocumented immigrants will still have to pass all required driving tests, states also believe that licensing these individuals results in safer drivers.

Driver’s licenses issued to undocumented immigrants will not be REAL ID-compliant. The REAL ID law, which will go into full effect on October 1, 2020, establishes security standards for the issuance of driver’s licenses and other identification that are needed to enter federal facilities and nuclear power plants and to board airlines – even for domestic flights. To obtain a REAL ID compliant driver’s license, an individual must be legally in the country, among other requirements. Under the REAL ID regulations, states may continue to issue licenses that are not REAL ID-compliant, but those must be marked prominently with annotations such as “not for federal identification purposes” or “driving only.” Because they are not valid for federal identification, licenses so marked should not be accepted as List B documents for Form I-9 or E-Verify purposes.

While undocumented workers in many states will be able to obtain driver’s licenses, some states continue to deny driver’s license renewals to foreign nationals who are legally in the United States in valid status and have valid work authorization, but are waiting for visa extension approval notices. Because of USCIS processing delays and because petition extensions cannot be filed more than six months in advance of expiration, many foreign nationals are forced to premium process cases to obtain the necessary documentation to timely renew driver’s licenses.

Jackson Lewis attorneys are available to assist you in advising employees regarding REAL ID and timely driver’s license renewals.

The peak H-2B filing season opened on January 2, 2020, and by the next day the Office of Foreign Labor Certification (OFLC) in the Department of Labor (DOL) had received approximately 5,000 applications for 87,000 seasonal workers. Only 33,000 are available for the spring/summer period, which starts on April 1, 2020. Another 33,000 are available for the winter season.

Once the 33,000 visas run out for the spring/summer period, DHS can decide to make more H-2B visas available if the agency finds that there are not enough willing, qualified, and available U.S. workers. The current demand seems to speak for itself. By January 4, 2020, the number seasonal workers whose employers were seeking visas grew to 99,362 – three times the number available. Last year, DOL announced that the applications would be accepted on a first come, first served basis. That led to the DOL website crashing within minutes of the “opening bell.” This year, to try to eliminate that problem, DOL transitioned to a new platform and announced it would conduct a randomized lottery of all applications submitted within the three-day filing window of January 2 to January 4. That lottery took place on January 6, 2020, and on January 8, 2020, DOL published on its website the lottery results and the five assignment groups (A-E).

The H-2B process consists of two adjudicatory steps: a labor certification filing with DOL followed by a petition filing with USCIS. DOL will adjudicate applications it has received on a continuous basis – starting with Group A. Once all the Group A applications have been issued a Notice of Acceptance of a Notice of Deficiency, they will move to the next Group as quickly as possible. Those with Notices of Acceptance can move to the next step – filing the H-2B petition with USCIS.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily by the tourist, hospitality, landscaping and construction industries. Certain workers are exempt from the cap: those who are already in H-2B status and are extending their stay, those who were previously counted against the cap in the same fiscal year, and individuals involved in fish roe processing. Despite those exemptions, demand has for years exceeded the number of visas available — especially for the spring season. Recognizing the problems that many businesses were having, for four years in a row, Congress has authorized the Department of Homeland Security to raise the cap. In the first two years, DHS allowed for an additional 15,000. Last year, it authorized an additional 30,000. We do not yet know how many additional visas will be authorized this year.

When and if additional visas become available, employers who wish to apply for them must attest that without the additional workers they will suffer permanent irreparable harm and maintain documentation to that effect, i.e., documents showing that without the additional workers they will not be able to meet contractual obligations or that they will suffer severe financial hardship.

If you have questions about how to successfully navigate through the H-2B process, Jackson Lewis attorneys are available to assist you.

U.S. firefighters coming to help extinguish the devastating forest fires were cheered when they arrived at the airport in Sydney, Australia. In the past, in what became a reciprocal arrangement, Australian firefighters have assisted U.S. firefighters.

A different sort of reciprocity has led to the sudden increase in visa fees for Australians coming to the United States. This increase was announced in response to President Donald Trump’s 2017 “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order, which, in part, directed the Department of State to review reciprocity arrangements for accuracy. Apparently, DOS found a mismatch between Australian and U.S. visa fees — likely a reflection of the work permit fees charged by the Australian government. Here are the changes that went into effect, without notice, on December 23, 2019:

H-1B:     From $105 to $1,295

H-4:        From $105 to $1,295

L-1:         From $105 to $1,790

L-2:         From $105 to $1,790

E-1:        From $105 to $3,574

E-2:        From $105 to $3,574

The visa reciprocity fee is paid to the U.S. Consulate after a visa is granted to an Australian national. The fee is separate and in addition to the usual DS-160 Online Visa Processing/Application Fee of $160. The reciprocity fee must be paid by each individual applicant. For a family of four applying for a U.S. H-1B work visa and three H-4 dependent visas, that means $5,180 in reciprocity fees at the Consulate plus $640 in application fees. Australians applying for U.S. E-3 “Specialty Occupation” visas will see no change — this category will continue to be exempt from the reciprocity fee. Those applying for U.S. B-1/B-2 visas will see the small reciprocity fee has been eliminated and the visa may be granted for up to five years, instead of the previous practice of only 12 months. The validity period for U.S. L-1/L-2 visas has however been lowered to 48 months.

Some employers pay the visa application fees for their foreign national employees, and even for family members, but many do not. This steep increase for Australian nationals is something that employers will need to keep in mind as part of the cost of on-boarding when bringing hiring foreign talent.

You can follow changes in the Visa Reciprocity Table at this link. If you have questions about the changes for Australian nationals or any other reciprocity issues, please reach out to a Jackson Lewis attorney.

 

While Deferred Action for Childhood Arrivals (DACA) beneficiaries await the U.S. Supreme Court’s opinion and most Temporary Protected Status (TPS) beneficiaries also are in limbo, Liberians have been given what appears to be a pathway to citizenship due to passage of the Liberian Refugee Immigration Fairness (LRIF) Act as part of the National Defense Authorization Act for FY 2020.

As of December 26, 2019, USCIS began accepting “Green Card” applications, i.e., applications to adjust to permanent residence, from Liberians who have been physically present in the United States continuously from November 20, 2014, (when there was an Ebola outbreak in Liberia) until the date on which they submit their applications. This window of opportunity will be open for one year only – until December 20, 2020.

There are some restrictions on applicants. Those who apply cannot have been convicted of an aggravated felony or two or more crimes involving moral turpitude. In addition, they must be otherwise eligible to receive an immigrant visa and be admissible to the United States. However, certain other grounds of inadmissibility will not apply to them:

  • Public Charge;
  • Labor Certification Requirements;
  • Aliens Present Without Admission or Parole; and
  • Documentation Requirements including a valid, unexpired passport.

Under the LRIF, spouses, unmarried children under 21, and unmarried sons and daughters 21 or older also are eligible for adjustment.

The Trump Administration decided to terminate Deferred Enforced Departure (DED) status for Liberians as of March 31, 2019. Then, in response to litigation and other protests, the President issued a Memorandum reversing course and extending the wind-down period to March 30, 2020, thus giving Congress a chance to act – and it did.

DED is similar to TPS. Currently, Liberians are the only nationals holding DED. President George Bush granted DED to Liberians in 2007 in response to a long period of civil war in that country. Senators Jack Reed (D-R.I.) and Tina Smith (D-Minn.) championed LRIF’s inclusion in the National Defense Authorization Act. Approximately 4,000 Liberians are DED beneficiaries, but many more are affected by this news because most of the DED beneficiaries have children and families in the U.S.

Perhaps this DED legislation will be a bellwether for legislation to secure the futures of many thousands more beneficiaries of TPS and DACA.

Please contact a Jackson Lewis attorney with any questions.

USCIS is starting the year with a growing backlog of processing delays.

In May 2019, a bi-partisan group of Senators wrote to USCIS requesting information on why the service-oriented agency adjudicating immigration benefits, such as work authorization, is disrupting American businesses through administrative inefficiencies.

Here are some of the facts:

  • For FY 2018, the gross backlog at USCIS reached 5,591,839, representing a 69% increase since 2014 and a 29% increase since 2016;
  • Case completion per hour rates declined for 81% of benefit types between FY 2016 and FY 2018; and
  • Case completion rates for Form I-129 petitions dropped from 0.97 per hour to 0.64 per hour.

This translates into the following processing times (for non-premium processed cases) averaged across USCIS Service Centers as of September 30, 2019:

Nonimmigrant Visa Petition (I-129)                           3.7 months

Application for Advance Parole (initial)                   4.5 months

Application for Advance Parole (renewal)             10.3 months

Immigrant Visa Petition (I-140)                                  5.3 months

Employment-Based Adjustment (I-485)                 9.5 months

Extend/Change Nonimmigrant Status (I-539)       4 months

Employment Authorization (I-765)                            4.5 months

Naturalization (I-400)                                                     9.9 months

Waivers (excluding I-601A)                                          31.6 months

Some of the Administration’s new policies that have led to these increased processing times include the dramatic increase in Requests for Evidence (now at least 60% for H-1B cases alone), increased length and complexity of forms, increased security checks, and the I-485 in-person interview requirement for all employment-based petitions. If the new Public Charge rule goes into effect, it is expected to further increase processing times overall because of the complex calculations that will be required.

At the end of May 2019, the Government Accountability Office (GAO) agreed to analyze the USCIS backlog. At that time, the GAO said that it would take at least five months to gather a team to do this work. In the meantime, Jackson Lewis attorneys are available to assist you in creating strategies for dealing with the ongoing delays and backlogs.

After receiving several H-1B approvals for periods shorter than requested, IT consulting services company Flexera Global has sued USCIS in the federal court for the Southern District of Texas requesting an order directing USCIS to approve H-1B petitions for the periods requested.

The Trump Administration has made it harder to onboard workers requiring an H-1B visa. RFE and denial rates for H-1B petitions have skyrocketed, and delays in processing are expected. The Administration has particularly targeted H-1B petitions from IT staffing and consulting firms. First, it has questioned whether computer programmers were working in “specialty occupations.” Then, it has demanded that these same companies prove they will be in a bona fide employer-employee relationship with the visa beneficiary, and work is available for the beneficiary throughout the H-1B period. This required documentation includes items such as detailed itineraries and letters from “end-users.”

Staffing companies have seen a 34% to 80% denial rate, and they have been receiving approvals that might as well be denials. Seeking three-year visas, some approvals are valid for very short periods of time – weeks or months. In addition, given the processing delays, some companies are receiving approvals that are valid retroactively for a period that has already elapsed before the approval arrives. Companies often must reapply almost immediately, producing an unending cycle of filings and associated costs. Filing fees for some heavy users of H-1Bs already include a $4,000 surcharge, and USCIS has proposed additional fee increases for 2020.

Several suits have been filed arguing that USCIS violates the Administrative Procedure Act (APA) by reducing H-1B validity periods. In Flexera’s suit, USCIS has filed a Motion to Dismiss arguing that, as a matter of law, the Agency has the right and ability to grant short-term approvals – with or without explanation. The court ruling could go either way and could be favorable to H-1B petitioners.

Jackson Lewis attorneys will provide updates on this issue. IT staffing and consulting firms should continue to monitor developments.

The federal government’s practice of designating individuals born in American Samoa as “noncitizen nationals” is unconstitutional, U.S. District Judge Clark Waddoups has ruled. Fitisemanu et al. v. U.S., No. 1:18-cv-00036-CW (D. Utah Dec. 12, 2019). Judge Waddoups has directed the government to recognize the citizenship of individuals born in American Samoa.

U.S. Citizenship can be either acquired at birth or after birth.

It is acquired at birth if a person is:

  • Born in the U.S. or certain territories within the jurisdiction of the U.S.; or
  • Born abroad to a parent or parents who were citizens at the time of the person’s birth.

After birth, citizenship is either:

  • Derived or acquired through U.S. citizen parents by simply applying for citizenship; or
  • Acquired through the naturalization process.

Often the terms “citizen” and “national” are used interchangeably – but they are not synonymous. While all U.S. citizens are U.S. nationals, a U.S. national is not necessarily a U.S. citizen. A person who is only a U.S. national:

  • Has the irrevocable right to remain in the United States or its territories;
  • Is entitled to a U.S. passport, but the passport will identify the individual as a national, not a citizen;
  • Is entitled to consular protection abroad;
  • May apply for naturalization after three months of residency;
  • May not vote in federal elections;
  • May not hold a federal elected office; and
  • May not be eligible for certain jobs that require U.S. citizenship.

This differs from legal permanent residence (“green card” status), because U.S.-national status is irrevocable while green card status is revocable. Another difference is that permanent residents generally must wait three to five years before they can apply for citizenship through the naturalization process while U.S. nationals only have to wait three months.

Currently, there are not many groups of people who are U.S. nationals. Puerto Rico, the U.S. Virgin Islands, and Guam started granting birthright citizenship in 1917, 1927, and 1952, respectively. Individuals born in American Samoa, however, are U.S. nationals and are not entitled to birthright citizenship. In Fitisemanu, Judge Waddoups ruled that three residents of Utah who were born in American Samoa were birthright American citizens.

Judge Waddoups ruled that individuals born in American Samoa were “subject to the jurisdiction” of the U.S. and should be entitled to birthright citizenship. He held that the section of the Immigration and Nationality Act (INA) declaring these residents to be only U.S. nationals was unconstitutional under the 14th Amendment.

This is not the first time that this issue has come to the federal courts. In 2015, the D.C. Circuit came to the opposite conclusion and the Supreme Court refused to review the case. If the 10th Circuit (which has jurisdiction over Utah) upholds Judge Waddoups opinion, that will set up a split in the circuits that might well lead to review by the U.S. Supreme Court. Judge Waddoups has stayed his ruling until the case can be appealed.

The government of American Samoa opposed the grant of birthright citizenship in court, arguing it threatens their traditional culture and deprives Samoans the ability to decide about their own status – since, even before this recent ruling, they could apply for U.S. citizenship.

Please contact a Jackson Lewis attorney with any questions.