This newsletter has been prepared on behalf of clients and friends of the Law Offices of Robert Nadalin. It provides general information on recent changes in immigration and emigration related laws and should not be considered as a substitute for specific legal advice. For case specific advice, we recommend retaining legal counsel. To add or remove an e-mail address from our system, or for any other questions or comments regarding this newsletter, please e-mail: email@example.com .
Supreme Court Continues to Uphold Injunction on President’s Travel Ban, Except for Persons Lacking Any Bona Fide Relationship with a U.S. Entity or Person Already in the U.S.
On Monday, June 26, the U.S. Supreme Court upheld the lower court injunction placed the President’s “travel ban,” except for persons who hold no current relationship with a U.S. entity or person, through its decision on the case of Trump v. Hawaii (consolidated with Trump v. International Refugee Assistance Project). The ban applies to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.
The court held that: “We grant the Government’s applications to stay the [lower court] injunctions, to the extent the injunctions prevent enforcement of §2(c) [of the travel ban] with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
However, the court also held that the injunctions remain in place and “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The court then went on to give certain specific examples of persons who should not be subject to the travel ban, including: students admitted to a U.S. university, a person coming to the U.S. “to live with or visit a [close] family member,” and “a worker who accepted an offer of employment from an American company.” The court also noted that such a relationship “must be formal, documented, and formed in the ordinary course, rather than for purposes of evading EO-2 [the executive travel ban order].”
The Court is scheduled to hear oral arguments on the case in October of this year, by which time the case could become moot given the many months that have passed since the time the ban was first announced in February of this year. The original purpose of the ban was to give the Department of Homeland Security 90 days to conduct a review of the adequacy of information sharing agreements between the U.S. and the listed countries, with an additional 30 days to review the decision processes that apply to refugees.
In a recent press release, the Department of Homeland Security announced that “[t]he implementation of the Executive Order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.” [See: https://www.dhs.gov/news/2017/06/26/dhs-statement-us-supreme-court-decision-president-s-executive-order-protecting ] Hopefully, the limitations left in place by the Court and DHS’s promise to provide clear and sufficient notice will go a long way towards avoiding the panic and chaos that resulted when the original order was first implemented.
Please note that even though the travel ban should not apply to persons who are already lawfully in the U.S. based on a connection to a U.S. employer or close family member, or who hold a passport from a non-listed country, other forms of “extreme vetting” may be encountered in the form of strict checks at U.S. ports of entry and at consulates abroad. Thus, it is still necessary for foreign nationals to carefully consider the importance of any proposed foreign travel prior to departing the U.S., and to balance any desire to travel with the risk of having to remain outside the U.S. for longer than planned due to processing challenges. This is especially true for persons who plan to apply for a new visa stamp at a U.S. consulate abroad.
H-1B Cap Season Update
At this time, any case that is in line for an H-1B cap number should have been issued a case receipt notice with a USCIS case tracking number. USCIS has begun returning petition documents for cases that did not receive a number under the most recent cap lottery. That process should be completed in the next few weeks. Possible options for persons who did not receive a cap number may include F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. USCIS will begin accepting petitions for Fiscal Year (FY) 2019 H-1B visas from April 1, 2018. The soonest these visas can be used for work authorization will be October 1, 2018, which is the start of FY 2019. As the available case options will be unique to each individual employee, we recommend that you contact our office for any specific questions that you may have regarding these matters.
Continuing USCIS Processing Delays and Premium Processing Update
Multinational Manager I-140 petition and National Interest Waiver (NIW) I-140 petitions are currently taking more than a year for USCIS to process. Unfortunately, neither of those categories is currently eligible for 15-day premium processing.
USCIS also suspending premium processing for most H-1B matters, but promises to slowly restore that option within the next 3-4 months. At this time, a very narrow exception exists for physicians who will work in medically underserved areas under the CONRAD 30 program. H-1B premium processing may next be made available to persons who will work at a university or non-profit research institute and who are cap exempt. It may be several more months before premium processing again becomes available for regular track extensions and change of employer matter. Prior to the suspension of H-1B premium processing, approximately 67% of H-1B petitions were being processed under premium processing.
PERM labor certification applications, which are the first step of the 3-step process used by employers to sponsor foreign workers for lawful permanent residence (green card status), are now being processed within as quickly as 3-4 months. These applications will likely begin to take longer after the start of the new fiscal year on October 1 when appropriations for the next fiscal year apply. At some future point in time, the DOL may move to assess a filing fee for PERM cases, but that will require a regulatory change which will take many months, or possibly longer, to implement. At this time, there is no indication as to how much the case processing fee will be, although it will likely not be any less than the fee for similar administrate processes adjudicated by sister agencies, such as USCIS or the State Department.
Enforcement/ Compliance Update
HSI (DHS Homeland Security Investigations), which is tasked with completing a majority of I-9 investigations, currently has approximately 6,000 officers. The President’s proposed budget requests funding for an additional 10,000 officers. Whether or not the proposed increase happens will depend on whether or not Congress chooses to appropriate that funding after considering and prioritizing new appropriation requests in the context of the budget as a whole.