Many Cubans who were making the long and dangerous trek through jungles and other countries to the United States before the inauguration of President Donald Trump on January 20 are waiting at the U.S. border for word from the Trump Administration on how they will be treated.

For decades, under the Cuban Adjustment Act (CAA), a Cuban national in the U.S. was eligible for a Green Card after being lawfully admitted and physically present in the U.S. for one year. The U.S. “wet-foot/dry-foot” policy, an exemption preventing the expedited removal of Cuban nationals apprehended near the border, allowed Cuba migrants who made it to “U.S. soil” to request parole and adjust status under the CAA. The policy also required those apprehended at sea be returned to Cuba or resettled elsewhere. Under the Cuban Medical Professional Parole Program, Cuban medical professionals who were “conscripted” to study or work abroad (not in the U.S. or in Cuba) by the Cuban government also were eligible to apply for parole abroad with their family members and come to the U.S., where they would be able to adjust status based on the CAA.

On January 12, 2017, in the last days of the Obama Administration, however, the DHS rescinded special policies for Cuban nationals, including the “wet-foot/dry-foot” policy and the Cuban Medical Professional Parole Program. These policies were based on the assumption that all individuals leaving Cuba were victims of persecution and eligible for asylum, DHS said. The 2017 changes were made in recognition of the reestablishment of full diplomatic relations with Cuba and are intended to “ensure regular, safe, and orderly migration” between Cuba and the U.S.  The Cuban government has agreed to repatriate nationals who have attempted to enter the U.S. But Cubans who fear persecution will still be allowed to make claims of asylum. They will be treated in the same way as nationals from other countries in terms of parole.

The pre-January 20 policy changes caught Cuban migrants by surprise and many are still waiting at the border, waiting to hear whether Trump would undo the policy changes. During the presidential campaign, Trump criticized the Obama Administration’s attempts to improve relations with Cuba. On the other hand, Trump also has criticized the expanded use of parole.

We will continue to monitor the situation and provide updates.

USCIS’s new M-274 “Handbook for Employers with Guidance for Completing Form I-9” is now available.  In addition to detailed I-9 completion instructions, the Handbook contains guidance on Photocopying and Retention, Unlawful Discrimination and Penalties, E-Verify. It also contains FAQs as well as images of sample documents.

The new I-9 Form went into effect on January 22, 2017.  Electronic copies of the English and Spanish versions of Form I-9 are available on the USCIS website or may be ordered by phone at 800-870-3676. The USCIS provides customer support and resources at its anonymous Employer Hotline (888-464-4218) or at I-9Central@dhs.gov and E-Verify@dhs.gov.

Please also call your Jackson Lewis attorney for guidance should you have any questions.

After oral arguments on February 9th, the Ninth Circuit denied the government’s request to reinstate the travel ban EO. State of Washington v. Trump.

More than 135,000 people listened to the Ninth Circuit oral argument, which was conducted by phone and had no video, on the Court’s own live stream. News websites also carried the audio of the hearing, and CNN and MSNBC, in an unusual move, broadcasted the more-than-one-hour full hearing live. Over a two-day period prior to the hearing, more than a dozen amicus briefs had been filed by groups such as the Anti-Defamation League, SEIU, the U.S. Justice Foundation, HIAS (the oldest refugee resettlement organization in the U.S.), Constitutional Scholars, Law Professors, and the Washington State Labor Council.

In a rare joint effort, more than 100 companies, including high tech giants such as Apple, Akamai, Facebook, Google, Microsoft, Netflix, Twitter, and Uber, joined a single amicus brief against the ban. They argued that innovation and economic growth are tied to the contributions of immigrants and to the stability and predictability of U.S. immigration laws. CEOs at major tech companies, many of whom are immigrants themselves, also have taken to email and social media to express their concerns about the ban.

The effects of the Executive Order were felt immediately in Silicon Valley. Google apparently told its employees abroad who might have been affected to return home — “[w]e’re upset about the impact of this order and any proposals that could impose restrictions on Googlers and their families, or that could create barriers to bringing great talent to the U.S.”  Microsoft reported that it had at least 76 employees on visas from countries affected by the EO.  In light of concerns regarding immigration, Microsoft even has language in its January 26, 2017, securities filings for investors indicating that immigration restrictions “may inhibit our ability to adequately staff our research and development efforts.”

The amicus brief also had a “prologue” of sorts that addressed the role of immigrants in the U.S. and the companies’ economic concerns. It stated:

  • Immigrants have had a “tremendous impact” on the American economy, 200 of the Fortune 500 list of companies were founded by immigrants or their children, and “these companies generate annual revenue of $4.2 trillion, and employ millions of Americans.”
  • Whenever America has diverged from its ideals aimed at “attracting and incorporating” immigrants, these laws and policies, over time, have been discredited.
  • The EO harms the competitiveness of U.S. companies and “makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees” because it “disrupts ongoing business operations” and “deprives employees and businesses of the predictability they require.”
  • The EO disrupts the global mobility that “is critical to businesses whose customers, suppliers, users and workforces are spread all around the world.”
  • Retaliatory actions by other countries could “hinder the U.S. companies’ ability to do business or negotiate business deals abroad.”

In its order, the Ninth Circuit, which geographically encompasses Silicon Valley, did not cite directly to this brief.

In a unanimous opinion, a three-judge panel in the Ninth Circuit Court of Appeals upheld the stay of President Trump’s travel ban.  The Court found in favor of the State of Washington on all of its arguments and held that the Administration had not shown a likelihood of success on the merits of the case. Some commentators have noted that the President could address his national security concerns by rewriting the Executive Order to more specifically address the infirmities noted by the Court, including specifically eliminating lawful permanent residents (i.e., green card holders) from the ban. President Trump, however, upon hearing of the decision immediately tweeted: “SEE YOU IN COURT.” Still, the President – in conjunction with his new Attorney General, Jeff Sessions – will have to decide whether to appeal the request for an emergency stay to the Supreme Court by way of Justice Anthony Kennedy, request an en banc hearing before the Ninth Circuit or go back to the District Court for a hearing “on the merits.” In any case, the travel ban will remain paused until the next decision.

The Ninth Circuit Court of Appeals in San Francisco has denied the government’s request for an emergency “pause” of Judge James Robart’s TRO prohibiting implementation of the EO barring individuals from seven countries to enter the United States. The Court ordered briefs to be submitted on an expedited basis with the final brief due by 3:00 pm PST on February 6. After receiving the briefs, the Court may schedule a hearing or rule without a hearing on the case soon thereafter.

Individuals from the seven affected countries may enter the U.S. while we await a ruling from the Court. At least during this interim period, individuals with valid visas will be able to board airlines and enter the United States. Those 60,000 visas that were “provisionally revoked” have been restored.  It has been reported that individuals who tried to enter the country in the period after the January 27 EO and had their visas physically marked as “cancelled” as a result of the EO will not need to reapply for new visas. They will be able to file an Application for Waiver of Passport and/or Visa, Form I-193, upon arrival, absent any other admissibility issues. Airlines will receive CBP permission for such individuals to board. The I-193 filing fee is $585. It is unclear whether that fee will be waived.

The government’s basic argument to the Ninth Circuit is that the TRO “contravenes the Constitutional separation of powers,” “harms the public,” and “second-guesses the President’s national security judgment.”

Since the EO was signed, the Administration has itself revised the EO, explaining:

  • Green Card holders are not covered by the EO
  • Dual Citizens with a passport from a non-affected country will be treated as from the non-affected country
  • Iraqis with Special Immigrant Visas are no longer covered by the EO

The Ninth Circuit’s denial of the government’s emergency request was issued by Judge William C. Canby, a Carter appointee, and Judge Michelle T. Friedland, an Obama appointee. A third member of the Court, Judge Richard R. Clifton, a Bush appointee, will join the panel to review the government’s request. Judge Robart of the District of Washington also was a Bush appointee.

We will continue to follow the court action and provide updates.

Among the last rules issued during the Obama Administration, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers went into effect on January 17, 2017. One of its provisions allows for automatic extensions of the validity periods of certain Employment Authorization Documents (EAD) for up to 180 days if the EAD application is timely filed and in the same category as the previous EAD.

On January 30, 2017, USCIS issued a six-page Fact Sheet with guidance on automatic extensions of EADs and Form I-9 compliance. Highlights include:

  • The 180-day automatic extension begins the day the EAD expires and continues for 180 days, unless the application is denied.
  • Employees with a pending EAD application may qualify for the automatic extension even if the application was filed prior to the January 17th effective date of the rule.
  • “Timely filed” means the application is received by the USCIS before the expiration date.
  • The eligibility category code on the face of the EAD must be the same as the code on the receipt notice received for the renewal.
  • The expired EAD in combination with the Form I-797 receipt notice for the renewal showing it was timely filed and in the same category as the expired EAD is an acceptable List A document (unexpired EAD). The expiration date is 180 days from the date the card expired.
  • Current employees must update their I-9 Forms with the newly extended expiration date, but the automatic extension does not trigger a Section 3 Reverification.

The USCIS Fact Sheet has specific instructions about completing automatic EAD extension I-9 Forms, dealing with E-Verify and dealing with EADs based on Temporary Protected Status (TPS) along with annotated document samples.

If you have questions, you should reach out to your Jackson Lewis attorney.

 

The Department of State has confirmed to the American Immigration Lawyers Association (“AILA”) that there is no immediate plan to add any other countries to the current list of seven under President Donald Trump’s “Protecting  the Nation from Foreign Terrorist Entry into the United States” Executive Order signed on January 27, 2017.

In the chaos surrounding Trump’s executive order temporarily barring the entry of and cancelling the issued visas for nationals from seven countries identified as supporting terror (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), fears surfaced about the possibility of other countries being added to the list. The DOS’s confirmation follows in the wake of the White House Counsel’s guidance that U.S. Permanent Residents (“Green Card Holders”) were not part of the ban, and statements that dual nationals holding passports from a third country as well as from one of the affected countries would be allowed to enter the U.S. using their other passport. While subject to change, of course, this official confirmation should reassure the concerned travelers monitoring the situation.

Jackson Lewis immigration attorneys will continue to monitor developments closely and will provide updates to our readers as quickly as possible.

 

 

While daily governmental guidance for affected individuals, in the United States and abroad, has followed the signing of Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” on January 27, 2017, reports of inconsistent treatment of individuals abound. The following illustrates some of the confusion regarding individuals “from” Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

Please see our Travel Update.

 

 

Perhaps anticipating an Executive Order from the White House on business immigration reforms, Representative Zoe Lofgren (D-Cal.), who represents Silicon Valley, has introduced a bill that calls for many reforms.

The High-Skilled Integrity and Fairness Act of 2017, similar to a bill introduced by Representative Darrell Issa (R-Cal.), raises wage levels related to certain H-1B visas. For H-1B-dependent employers, it eliminates the Master’s Degree exemption and raises the minimum wage for exemption from $60,000 to $130,000 – essentially making it more difficult for H-1B-dependent employers to hire H-1B workers who are not highly skilled and highly paid.

The Act also raises prevailing wages by scaling back the levels of wages from four to three. It allocates limited H-1B visas on the basis of wage – putting the highest paid workers at the top of list, but also sets aside 20 percent for small employers (those with fewer than 50 employees).

A cost-reduction provision clarifies that a change in worksite would not require an amended H petition as long as a new Labor Condition Application (LCA) is secured.

Representative Lofgren’s bill also adds protections for H-1B workers: requiring employers to provide H-1B visa holders with copies of their petitions (absent confidential business information) and protecting employees from contractual liquidated damages provisions for early resignations.

For foreign nationals seeking permanent residence status, the bill provides portability and general employment and travel authorization (AP/EAD) to those who have approved I-140 immigrant visa petitions that have been approved for at least 180 days – even if they are not “current.” The bill also would change the per country percentage cap for employment-based preference visas over a period of years – making waits for Green Cards shorter for those from countries that are currently over-subscribed.

Senator Sherrod Brown (D-Ohio) plans to introduce a bill to improve the H-1B and L-1 programs that includes protections for U.S. workers, as well as visa holders. Senators Charles Grassley (R-Iowa) and Dick Durbin (D-Ill.) have introduced a bi-partisan H-1B Reform Bill.

We will provide update as these bills make their way through the legislative process.