Increased Scrutiny for Identified Populations & Social Media Review

Posted in Executive Order, Travel, Visas

We continue to see immigration as a moving target with recent news of four cables issued by Secretary of State Rex Tillerson guiding implementation of increased security protocols and vetting for consular posts around the world. Secretary Tillerson issued initial cables March 10 and 15 in anticipation of the new Travel Ban scheduled to take effect March 16. In response to the federal court action in Hawaii staying implementation of the new Executive Order, he followed these with a third cable March 16 rescinding large portions of his initial communications. Finally Tillerson sent a fourth cable March 17 providing final revised guidance on policy for vetting identified populations and increased social media checks.

The March 17 guidance directs consular officers to identify populations “warranting increased scrutiny” and also implements a “mandatory social media check” for certain individuals based upon time spent in Islamic State-controlled territories. Although we have seen a slight increase in review of social media in recent years, it is less common than one may believe. Consular officers have indicated that they rarely engage in deep screening due the large volume of social media available and the corresponding time it takes to review the information. In addition to new social media directives, the fourth and final cable also leaves in place direction to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” While a list of specific questions to ask of individuals from identified countries was rescinded with the March 16 and 17 cables so as to comply with existing law, the general directive remains.

With the exception of the two directives above, consular officials have indicated that the guidance provided in the most recent cable may not stray far from current practice, as visa applications already go through a demanding vetting process. That being said, we do anticipate these new directives will increase visa processing times in many countries. We encourage employers and those planning to travel for visa processing purposes to plan accordingly.

Greenberg Traurig’s Attorney Ian Macdonald Featured in NPR News Marketplace

Posted in Awards & Recognitions, H-1B, Visas

MACDONALDI

Greenberg Traurig shareholder Ian Macdonald was recently quoted by National Public Radio (NPR) for a story on the Marketplace Morning Report, which is part of the Marketplace portfolio of public radio programs. Macdonald provided an employer’s perspective on H-1B visas and challenges employers must face when sponsoring highly-skilled workers. To read the full article, click here.

 

EAD Validity Extended for Six Months for TPS El Salvador

Posted in Employment Authorization, Temporary Protected Status, TPS, USCIS

el salvador shutterstock_155055182The United States Citizenship and Immigration Services (USCIS) will automatically extend the validity of Employment Authorization Document (EAD) cards issued under Temporary Protected Status (TPS) for El Salvador. The automatic extension will be for 6 months, through Sept. 9, 2017.

Those who have an EAD issued under the TPS designation for El Salvador that expired Sept. 9, 2016 will automatically have the validity of the EAD extended until Sept. 7, 2017. This is because on July 8, 2016, DHS announced that it would extend EADs issued under TPS for El Salvador for 18 months, to March 9, 2017.

To prove continued valid work authorization, the employee can present the TPS-related EAD as well as a copy of the Federal Register notice announcing the automatic extension.

Greenberg Traurig Listed as One of New York City’s Top Immigration Law Firms by JD Journal

Posted in Awards & Recognitions

Greenberg Traurig’s Business Immigration & Compliance practice was recently listed by JD Journal as one of New York City’s top immigration law firms.  JD Journal is a recognized legal resource, providing legal news and law firm news for attorneys, lawyers, law students, paralegals, law firms, and other legal professionals. Greenberg Traurig’s Business Immigration & Compliance practice has nearly 100 legal professionals nationally. Led by Kate Kalmykov, our New York Immigration team has developed into one of the most recognized immigration practices in New York City.  To view JD Journal’s full list of top Immigration firms in New York City, please click here.

 

Two Temporary Restraining Orders Issued for the Executive Order on the Travel Ban

Posted in Executive Order, Temporary Restraining Order

On March 15, 2017, the day before President Trump’s new Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” went into effect, a federal judge in Hawai’i issued a nationwide temporary restraining order (TRO) blocking the implementation of the EO. This EO, issued on March 6, 2017, revoked and replaced the original EO issued on Jan. 25, 2017. The first EO was also temporarily halted by a federal court in Seattle, after which the Ninth Circuit stayed the ruling.

In the current case at hand, State of Hawai’i and Ismail Elshikh vs. Donald J. Trump, et al., Judge Derrick K. Watson of the U.S. District Court for the District of Hawai’i granted the Motion for TRO filed earlier in the week. The TRO was granted on grounds that the EO violated the Establishment Clause of the U.S. Constitution.

In his ruling, Judge Watson cited portions of the new EO that suspend U.S. entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, with certain exceptions carved out that were not explicit in the first EO, such as exempting lawful permanent residents and those who are already physically in the United States. The new EO also includes text that suspends the U.S. Refugee Admissions Program for 120 days.

The plaintiffs in the case, the State of Hawai’i and Dr. Elshikh, both cited to injuries that would occur to both the state and the family, respectively, if the EO was implemented, since it bans travel for nationals from one of the six designated countries who are abroad. The plaintiffs also stressed that the text of the EO effectively targets the Muslim religion, quoting statements made during interviews and campaigns by the administration.  As such, the plaintiffs sought to enjoin Sections 2 and 6 of the new EO.

Judge Watson found that the State of Hawai’i had standing, based on the fact that its university systems would suffer from both a cultural and financial burden, as would its tourism industry. He also found that Dr. Elshikh had standing due to the fact that he was able to show injury to his family if the EO was implemented.

As to the legal basis for granting the TRO, Judge Watson found that due to the background, history, and intent of the newly issued EO, the Plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

In addition, on March 16, 2017, a federal judge in Maryland also temporarily blocked the order.

Greenberg Traurig will continue to monitor events surrounding this TRO and provide updates relating to relevant agencies in connection with the newly issued EO.

New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries

Posted in Executive Order, U.S. Customs and Border Protection (CBP), Visas

The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.

Highlights of changes in the new EO include:

  • The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq has been lifted from the travel ban.
  • Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
  • Those who are in the United States will not have their visas revoked.

The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:

Section 2:  Suspension of Visa Issuance- Iraq Removed

The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.

In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.

Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.

Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress. Continue Reading

Effective April 3, 2017, USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Posted in H-1B, The U.S. Citizenship and Immigration Services, USCIS

Late Friday evening on March 3, 2017, The U.S. Citizenship and Immigration Services (“USCIS”) announced that it will temporarily suspend its premium processing service for all H-1B petitions, including CAP-subject H-1B petitions.  The temporary suspension will begin on Monday, April 3, 2017, and may continue for up to 6 months.  This procedural change is intended to help USCIS clear the backlog of long-pending H-1B petitions that USCIS has not yet reviewed. USCIS will give priority review to H-1B extension petitions that are nearing the end of the automatic 240-day work authorization extension period.  USCIS has made other efforts to alleviate the long-pending backlog of pending H-1B petitions with the Vermont and California Service Centers by directing petitioners to submit H-1B extension requests with the Nebraska Service Center, regardless of the H-1B worksite location.

USCIS will process all H-1B petitions filed with a premium processing request that are received before April 3, 2017.  Because April 3 marks the first business day of April, when the H-1B CAP opens, CAP-subject H-1B petitions will not be eligible for premium processing.

The temporary suspension will not impact employers’ ability to premium process other petitions that are eligible for premium processing after April 3, 2017.  This list includes other common Form I-129 petitions, such as L-1, TN, O-1, and H-3, and immigrant petitions, like PERM-based I-140, and EB-1 extraordinary ability petitions.

Effects on Employers

The suspension of premium processing for H-1B petitions will impact an employer’s ability to request adjudication of an H-1B petition in 15 calendar days. Common employer H-1B premium processing requests will be unavailable, such as:

  • H-1B change of employer petitions: Employees who are porting their H-1B petitions from one company to another will need to wait 3 to 5 months before they receive the final H-1B approval notice. So, even though H-1B-porting workers may start working when USCIS is in receipt of the petition (generally a couple of weeks after an offer of employment is accepted), some H-1B workers will be very concerned with the prospect of moving to a new employer and waiting several months or longer for USCIS to confirm that the H-1B is approved.  This may affect recruitment initiatives as employers will be unable to offer H-1B candidates the peace of mind of an approved H-1B petition prior to commencing employment unless both the employer and employee are willing to wait several months for the H-1B to be approved via regular processing.
  • H-1B change of status petitions:  Employees who have an H-1B change of status petition filed with USCIS will have to wait for USCIS to approve the H-1B petition before they may begin working for the employer in H-1B status.   Employees may continue working while an H-1B change of status petition is pending provided they have valid work authorization. Employees without valid work authorization will need to wait for the H-1B petition to be approved prior to working.  Employees should not travel abroad while an H-1B change of status petition is pending because USCIS may consider the employee’s international travel as an “abandonment” of the H-1B change of status request.
  • H-1B extensions: Whenever an employer timely files an H-1B extension request and the employee’s H-1B status expires while the petition is pending with USCIS, the employee’s work authorization is automatically extended for 240 days after the expiration date.  Employees should not travel abroad if they are in the 240-day automatic extension period.

Effects on H-1B Employees

The suspension of premium processing of H-1B petitions, particularly extension requests, may also impact an employee’s plans to travel internationally while the petition is still pending with USCIS.  As an example, if the employee’s H-1B status expires while the H-1B extension petition is still pending, the H-1B employee will not be able to reenter the United States or secure a new visa stamp if the old visa stamp has expired without a Form I-797 H-1B approval notice. The suspension of premium processing by USCIS may also impact an employee’s ability to renew a driver’s license if the employee cannot present a new Form I-797 H-1B approval notice as required by many states.

Actions Employers and Employees May Take

Premium processing will continue to remain available for all H-1B petitions until April 2, 2017, which is a Sunday.  To be safe, H-1B petitions requesting premium processing should be received by USCIS on March 31. Employers and employees should file H-1B petitions now, or upgrade pending H-1B petitions to premium processing if the employee resides in a state that will not extend a driver’s license without a Form I-797 H-1B approval notice, or if the employee needs to travel internationally after April 3, 2017.  Employers that are wishing to “port” an H-1B employee from a different company may also wish to file the H-1B petition under premium processing to ensure that USCIS adjudicates the H-1B petition within 15 calendar days.

Availability to Request Expedited Processing

During the temporary suspension period, USCIS will accept requests to expedite an H-1B petition so long as the expedite request satisfies one of the expedite criteria.  It is important to note that USCIS’s decision to expedite an H-1B petition is completely discretionary.  To support an expedite request, employers should be prepared to submit documentary evidence supporting their request.  The expedite criteria listed by USCIS are noted below:

  • Severe financial loss to the company or H-1B employee;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States
  • Department of Defense or a national interest situation – These particular expedite requests must come from an official U.S. government entity and state that the delay will be detrimental to the government;
  • USCIS error; or
  • Compelling interest of USCIS.

Examples of valid reasons that USCIS will accept to expedite the processing of an H-1B petition may include H-1B petitions filed as a change of status or for consular notification because these types of H-1B petitions do not permit the employee to begin working for the employer upon receipt of filing with USCIS under the 240-day rule.  The employees must first wait for the H-1B petition to be approved before they can begin working for the employer, or, if they are outside the United States, obtain an H-1B visa abroad and enter the United States.

Emergency situations may include urgent medical or family emergencies, such as undergoing surgery, visiting an ill family member, or attending a family member’s funeral abroad.  If the H-1B employee working under the 240-day rule has an expired H-1B visa stamp, and needs to travel abroad due to an emergency, the H-1B employee will not be able to obtain a new visa stamp and return to the United States until his or her pending H-1B petition is approved by USCIS.

Please contact your GT immigration attorney for further information.

Greenberg Traurig Attorneys Present at FEM Global Mobility Conference in Houston

Posted in Events

Greenberg Traurig Global Mobility/Immigration team attorneys Kristen Burke, Jordan Cowman, and Kristin Aquino-Pham recently attended the Forum for Expatriate Management (FEM) Global Mobility conference in Houston. Jordan Cowman, Kristin Aquino-Pham, and Megan Long presented “The future of US treaties under President Trump’s Administration,” providing an overview of key treaties for global movement of employees.  Cowman, Aquino-Pham, and Long addressed the new administration’s proposed changes to these treaties, practical implications of these changes, and a proactive approach to addressing the proposed changes that may impact your business.

Jordan Cowman (Greenberg Traurig), Megan Long (KBR) and Kristin Aquino-Pham (Greenberg Traurig) prepare to present at the FEM Global Mobility conference

Jordan Cowman (Greenberg Traurig), Megan Long (KBR) and Kristin Aquino-Pham (Greenberg Traurig) prepare to present at the FEM Global Mobility conference

Greenberg Traurig Global Mobility/Immigration Team – Kristin Aquino-Pham, Kristen Burke and Jordan Cowman

Greenberg Traurig Global Mobility/Immigration Team – Kristin Aquino-Pham, Kristen Burke and Jordan Cowman

Technical Error by USCIS Results in H-1B Approval Notices Incorrectly Listing Class as “1B1” Instead of “H-1B”

Posted in H-1B, USCIS, Visas

Due to a technical error, the United States Citizenship and Immigration Service (USCIS) recently began issuing H-1B approval notices on Form I-797 that incorrectly list the class as “1B1.”  This technical error affected H-1B approval notices for H-1B petitions that were filed with the Vermont, Nebraska, and California Service Centers.

The California Service Center confirmed on Feb. 28, 2017, that it is aware of the technical error and will begin to reprint and mail corrected H-1B approval notices that reflect the class as “H-1B” instead of “1B1.” These corrected H-1B approval notices will be mailed the week of Feb. 27; affected petitioners should allow for 10-14 days for receipt.  The Vermont and Nebraska Service Centers have not confirmed whether they will handle these technical errors in the same manner as the California Service Center.

Should a petitioner receive an H-1B approval notice that incorrectly reflects the class as “1B1,” the petitioner should place a service request with USCIS notifying the agency of the error and request that a corrected approval notice be reprinted and mailed.

“1B1” should not be confused with the class of “H-1B1,” which is a sub-set of the H-1B visa class reserved for Free Trade Agreement workers in specialty occupations from Chile or Singapore.  Before placing a service request for a corrected H-1B approval notice, petitioners should confirm whether the class listed on the Form I-797 approval notice is correct.

H-1B beneficiaries who have Form I-797 approval notices that incorrectly list “1B1,” and are obtaining visas abroad or traveling internationally, may receive questions about the incorrect class notation from U.S. Consulate officials, or Customs and Border Protection officers upon admission into the United States.  To help avoid unnecessary issues when traveling internationally, petitioners and beneficiaries should identify the affected H-1B approval notices and take steps to notify USCIS of the error as soon as possible.

If you have questions on how to request a corrected H-1B approval notice with USCIS, or concerns about impacted H-1B visa holders traveling internationally with an incorrect H-1B approval notice, contact your Greenberg Traurig attorney.

USCIS Reissuing Employment Authorization Document (EAD) Receipt Notices for Certain EAD Categories Filed Between July 21, 2016 and Jan. 17, 2017

Posted in Department of Homeland Security, Employment Authorization, Employment Verification, USCIS, Visas

work appBeginning Feb. 16, 2016, USCIS began reissuing receipt notices on Form I-797 to applicants who continue to have pending applications for renewed employment authorization (EAD applications) under certain categories that were originally filed between July 21, 2016 and Jan. 16, 2017. EAD applications that were filed during this window did not fall within the benefits of the finalized rules to modernize and improve employment-based non-immigrant and immigrant visa programs, published by the U.S.
Department of Homeland Security, and which
took effect on Jan. 17, 2017.

Specifically, USCIS began reissuing EAD receipt notices for the below categories because some of the receipt notices issued by USCIS between July 21, 2016 and Jan. 16, 2017 did not indicate the EAD category.  These EAD categories are:

  • (a)(3) Refugee
  • (a)(5) Asylee
  • (a)(7) N-8 or N-9
  • (a)(8) Citizen of Micronesia, Marshall Islands, or Palau
  • (a)(10) Withholding of deportation or removal granted
  • (c)(8) Asylum application pending
  • (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act
  • (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA
  • (c)(16) Creation of record (Adjustment based on continuous residence since January 1, 1972)
  • (c)(20) Section 210 Legalization (pending Form I-700)
  • (c)(22) Section 245A Legalization (pending Form I-687)
  • (c)(24) LIFE Legalization
  • (c)(31) VAWA self-petitioners

As part of the finalized rules that took effect on Jan. 17, 2017, USCIS indicated on the EAD renewal receipt notice the EAD category for renewal applications that were filed after Jan. 16, 2017. Under the finalized rules, applicants could present the EAD renewal receipt notice to their employer as a valid List A document for Form I-9, Employment Eligibility Verification, to show that they had continued work authorization for 180 days while USCIS reviewed their EAD renewal applications. By reissuing the receipt notices to EAD renewal applicants who filed applications between July 21, 2016 and Jan. 16, 2017 under the above-listed categories, these EAD renewal applicants can present the reissued receipt notice to their employer for Form I-9 and take advantage of the finalized rules providing 180-day extensions in employment authorization.

Absent from the above-listed EAD categories are dependents of popular employment-based nonimmigrant visas, such as the H-4, L-2, and E-3D, as well as EAD applicants who have Deferred Action for Childhood Arrivals (DACA), or Temporary Protected Status (TPS), which give applicants authorization to remain in the United States.

Applicants who file for an EAD renewal based on TPS already receive a 6-month extension through the Federal Register notice that extended their respective country’s TPS designation. For the other EAD renewal applicants, they must present the actual EAD to their employer to verify their continued employment authorization. The specific categories are noted below:

  • (a)(17) Spouse of an E nonimmigrant
  • (a)(18) Spouse of an L nonimmigrant
  • (c)(26) Spouse of an H-1B nonimmigrant
  • (c)(33) Consideration of Deferred Action for Childhood Arrivals

For more information please contact your Greenberg Traurig attorney.

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