International students at U.S. colleges and universities can feel a bit more secure now that a federal district court judge in North Carolina has permanently enjoined the government from enforcing its 2018 Policy Memorandum that changed how “unlawful presence” would be calculated.

Judge Loretta Biggs, in Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), found that the policy violated the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA).

In August 2019, DHS suddenly announced a policy change that reversed decades of previous policy and law. The new policy stated that foreign students would begin accumulating “unlawful presence” retroactively to the date when any sort of status violation occurred, whether the student had been aware of the violation or not. This meant that a student who, for instance, had inadvertently worked for too many hours or weeks or taken a course load that lacked the required numbers of credits or worked at a third-party site during a STEM OPT period could find they were accumulating unlawful presence and, thus, were possibly subject to three- and ten-year bars to admission to the U.S.

Before the new policy was unveiled, students could not accumulate unlawful presence unknowingly. A formal finding of a violation of status or a removal, deportation, or exclusion order were necessary precursors as due process measures.

Judge Biggs determined the government’s failure to conduct a formal Notice and Comment period violated the APA because the decision was “legislative,” not “interpretative,” in scope. Beyond that, perhaps hoping to preclude DHS from simply redoing the process and conducting Notice and Comment, she also held the new policy conflated a “status violation” with “unlawful presence,” thus, violating the plain language of the INA.

Sixty institutions of higher education across the country signed onto an amicus brief in Guilford College contending, among other things, that the new policy memo would have a chilling effect on international students planning to attend colleges and universities in the U.S.

In response to the permanent injunction, President Jane Fernandes of Guilford College stated:

International students and the campuses that depend on them are breathing a sigh of relief today . . . . Even though the policy was halted in May, campuses were already feeling the negative effects, with rising anxiety among international students and concerns that future students would be discourage from coming to study on our campuses.

President Fernandes also urged “the administration to not appeal this decision and instead recommit to restoring out nation’s competitiveness in regards to the international students.”

While the Administration has yet to respond, in its Regulatory Agenda, USCIS listed the “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions,” which may be its response to Judge Biggs’ efforts.

Please contact a Jackson Lewis attorney with any questions.

Approaching the three-year anniversary of the issuance of President Donald Trump’s “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States,” on January 31, 2020, Trump added six new countries to the list of affected countries: Eritrea, Kyrgyzstan, Myanmar (Burma), Nigeria, Sudan, and Tanzania.

Pursuant to the Executive Order, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, can determine that entry into the U.S. by foreign nationals from certain countries would be detrimental to the interests of the United States.

Beginning February 22, 2020, the additional six countries will be subject to restrictions that include:

Eritrea:                 Suspends entry on immigrant visas

Kyrgyzstan:         Suspends entry on immigrant visas

Myanmar:           Suspends entry on immigrant visas

Nigeria:                Suspends entry on immigrant visas

Sudan:                  Suspends entry on visas based on the Diversity Lottery

Tanzania:             Suspends entry on visas based on the Diversity Lottery

This expansion reportedly will affect more than 12,000 individuals. None of the new restrictions apply to non-immigrant temporary visas. The suspensions exclude individuals on Special Immigrant visas issued to people who have assisted the U.S. government, as well as individuals who have visas approved before February 22, 2020.

The new restrictions join those that were allowed by the U.S. Supreme Court and are still in effect:

Iran:                       Suspends entry of immigrants and non-immigrants, except those in valid student (F or M) or exchange visitor (J) status

Libya:                    Suspends entry of immigrants and non-immigrants in business and tourist status

North Korea:      Suspends entry of immigrants and non-immigrants

Somalia:               Suspends entry of immigrants

Syria:                     Suspends entry of immigrants and non-immigrants

Venezuela:         Suspends entry of certain government officials and their family members as non-immigrants in business or tourist status

Yemen:                Suspends entry of immigrants and non-immigrants in business and tourist status

Exemptions still apply, including those for lawful permanent residents (“Green Card” holders), dual nationals who are traveling on a passport issued by a non-designated country, individuals on diplomatic visas, asylees, and refugees. Waivers also may be granted, but they remain somewhat elusive.

The Administration stated that one reason for focusing on immigrant visas in the new ban is that it is “more challenging to deport someone who has emigrated to the US rather than a tourist or visitor.”

Jackson Lewis attorneys are available to assist you with developing strategies to deal with all these suspensions.

The long-promised new Form I-9 is now available for use and downloading from the USCIS website. Although it became available for use starting January 31, 2020, there is a grace period.  Employers have up to 90 days (until May 1, 2020) to start using the new form which has the Revision date 10/21/19 on the bottom corner. Failure to use the new form on and after May 1, 2020, will lead to penalties in case of an audit.

There are no changes on the paper form itself.  But there are a couple of changes to the online form and a few non-substantive changes to the instructions.

Here is what is new:

  • On the Online Version of the I-9
    • The addition of Eswatini (previously Swaziland) and North Macedonia (previously Republic of Macedonia) to the Country of Issuance field in Section 1 and the foreign passport issuing authority field in Section 2 on the online form
  • In the instructions
    • A new paragraph has been added to the Completing Section 2: Employer or Authorized Representative Review and Verification clarifying that the employer has wide discretion when choosing an authorized representative to complete Section 2 on employer’s behalf.  However, the new instructions also clarify that the employer remains liable for any violations their chosen representative commits.
    • The instructions clarify that when completing Section 2, the employer should not fill in empty boxes with “N/A.” In other words, if you enter a List A document, you can leave the List B and List C section blank.
    • USCIS has also updated various website addresses and other contact information (eliminating phone numbers for the Immigrant and Employee Rights Section), the process for requesting paper Form I-9s, and the DHS Privacy Notice.

It is important to remember that just because a new form has been issued, employers must not complete the new Form I-9 for current employees who already have a properly completed form on file.  In fact, doing so could constitute document abuse.  However, if the employer needs to do a reverification, the new form should be used and attached to the old form.

Jackson Lewis attorneys are available to assist you with any questions regarding the new Form I-9.

USCIS has announced the new Public Charge Rule will become effective on February 24, 2020, now that the U.S. Supreme Court has lifted the injunction.

This Rule affects legal immigrants (those who are legally in the United States and those who are seeking admission to the United States) and illegal immigrants (who have never been eligible for the benefits covered by the Rule).

The Rule will be felt primarily by lower-income legal immigrants, but it also will affect those with higher incomes who are elderly or who, due to illness, pregnancy, and other temporary disabilities, may have taken advantage of benefits, such as prescription drug subsidies, Supplemental Nutrition Assistance Program (SNAP), or housing assistance.

According to USCIS:

  • The Rule will apply to all applications and petitions postmarked on or after February 24, 2020. For applications and petitions sent by commercial courier, the postmark date is the date on the courier receipt.
  • USCIS will start to issue new forms that include public charge queries during the week of February 3, 2020.
  • “Old” forms submitted after February 24, 2020, will not be accepted and applicants and petitioners will be told to submit the “new” forms.
  • The Rule will not apply to benefits received prior to February 24, 2020.
  • The Rule does not apply in Illinois (at this point) where an injunction is still in place.

USCIS plans to issue guidance on the implementation of the Rule starting the week of February 3, 2020. The new forms that will need to be used have been released.

According to the Migration Policy Institute:

Taken as a whole, the public-charge rule stands to slow the integration of immigrant families, overturn state choices regarding the services they have opted to provide to their residents, and to alter the composition of future immigration to the United States—all without the benefit of endorsement or direction from Congress.

Jackson Lewis attorneys will provide updates on implementation as they become available.

The recent news of an outbreak of a new coronavirus first identified in Wuhan, Hubei, Province, China raises issues for employers and employees about the appropriate workplace responses. Please see our legal update and impact for employers and employees here.

In addition, the U.S. Department of State (DOS) has announced it is allowing all non-emergency personnel at US embassies and consulates in China to leave the country due to the coronavirus. DOS confirmed to the American Immigration Lawyers Association (AILA) that consular services will continue “as resources allow” but may be “significantly limited.”

If you have questions or  concerns about employees seeking visas in China, please reach out to your Jackson Lewis attorney.

The Trump Administration’s new Public Charge Rule can go into effect (for now, at least).

The U.S. Supreme Court, in a 5-4 ruling, has lifted the injunction that prevented DHS from enforcing its new Public Charge Rule despite New York’s argument that doing so would “inject confusion and uncertainty” into the process.

The Public Charge Rule is meant to limit the admission or immigration of individuals who are not basically self-sufficient. In the past, the Rule primarily affected individuals who accepted cash welfare benefits. The new Rule will make it harder for low-income immigrants and non-immigrants who might use even non-cash welfare benefits to obtain admission to the United States.

The new Rule, more than 400 pages long and complex, applies to:

  • Those applying for immigrant or nonimmigrant status abroad
  • Those seeking admission as an immigrant or nonimmigrant
  • Those applying for Adjustment of Status
  • Nonimmigrants seeking a change of status or extension of status

The benefits that may be subject to a Public Charge determination include:

  • Cash assistance for income maintenance
  • Most Medicaid participation
  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)
  • SNAP (Supplemental Nutrition Assistance Program), i.e., food stamps
  • Long-term care at government expense
  • Section 8 Housing Choice Vouchers
  • Section 8 Project Based Rental Assistance
  • Public Housing

Critics have argued that low-income immigrants will be intimidated into not accepting benefits that are not covered by the new Rule out of fear and that this will end up having a substantial financial impact on some states. Indeed the “chilling effect” of the Rule and the Rule itself could be particularly harsh on pregnant women and young children, including infants and pre-schoolers, who may forego health benefits and nutritional assistance in order retain all of their immigration options.

The Court’s Order, like the injunction, applies nationwide. The case below, State of New York et al. v. U.S. Department of Homeland Security, et al., will continue to be litigated in the Second Circuit. The litigation likely will result in a petition for writ of certiorari. Accordingly, the Court probably will hear the case again. In a separate, companion case in the U.S. District Court for the Southern District of New York, Make the Road New York et al. v. Ken Cuccinelli, the District Judge enjoined DHS from requiring the use of any updated forms related to the new Rule until further notice. Those forms, which themselves are more complex, may go into effect.

Justice Neil Gorsuch, joined by Justice Clarence Thomas, filed a concurring opinion with the Court’s brief Order. Judge Gorsuch expressed his general dislike for nationwide injunctions. These nationwide injunctions have frustrated the Trump Administration, and Attorney General William Barr expressed his desire to see them curtailed.

Jackson Lewis attorneys are available to assist you with your questions about the effects of the new Public Charge Rule.

 

The Trump Administration is turning its attention to birth tourism again. President Trump was reportedly considering trying to end the practice with an executive order or by way of a constitutional challenge. But accomplishing the goal through regulation has been on the Department of State’s (DOS) agenda. DOS published a final rule on January 24, 2020 that clarifies that an individual cannot obtain a B visa in order to enter the United States to give birth to a child who will automatically obtain U.S. citizenship.

This move can be seen as part of the Trump Administration’s “extreme vetting” efforts. According to one DOS official: “This change is intended to address the national security and law enforcement risks associated with birth tourism, including criminal activity associated with the birth tourism industry . . .” Officials have already made arrests and charged operators of birth tourism companies with conspiracy to commit immigration fraud and money laundering. The new regulation would do more to try to stem the tide at its source – making it illegal to enter the United States for the purpose of birth tourism. The Administration recognizes that this would not prevent women who already have B visas from entering the United States, at a later date after they become pregnant.  Despite that, the Administration sees this as a first step toward establishing that the practice is wrong. As a second step, such regulations could also be used by Customs and Border Protection (CBP) to deny admission to some pregnant women at the ports of entry if they are suspected of coming to the United States to give birth to a new U.S. citizen.

Birth tourism made it into the news in early January 2020, when Hong Kong Express Airways would not let a Japanese woman board a flight to Saipan because they suspected she was pregnant and wanted to give birth on U.S. soil. Saipan is the largest island in the Commonwealth of the Northern Mariana Islands, U.S. territory. It has become a popular birth tourism location in part because Chinese nationals can visit Saipan without obtaining a visa. Chinese tourists have been able to enter Saipan without visas since 2009. In 2009, 12 Chinese tourists gave birth on the island. By 2018, the number was 575.  Authorities in the Commonwealth have resolved to limit birth tourism. Due to health concerns and concerns about tourism in general, the length of stay for Chinese tourists has been cut to 14 days – down from 45 days.

Knowing that pregnant women might be turned back at the border and because airlines have the obligation to fly such passengers back to their departure locations, airlines themselves have initiated various pre-screening efforts. Hong Kong Express went quite far and required the Japanese woman to take a pregnancy test because she looked as though she might be pregnant. She was not. The airline apologized and has suspended this practice.

Under the new B visa regulations:

  • Travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B visa;
  • B visa nonimmigrant applicants who seek medical treatment in the U.S. must demonstrate that a medical practitioner or facility has agreed to provide treatment, the projected duration and cost of the treatment, and that arrangements have been made for payment for the treatment as well as incidental costs;
  • There is a rebuttable presumption that a B nonimmigrant applicant who a consular officer has reason to believe will give birth during her stay in the U.S. is travelling for the primary purpose of obtaining U.S. for the child; and
  • That rebuttable presumption may be overcome based upon specialized medical treatment or other reasons such as visiting a dying relative or a showing that the child has other access to the U.S. citizenship.

If you have questions about how the effect of this new Final Rule, please reach out to your Jackson Lewis attorney.

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.