Supreme Court Agrees to Hear Travel Ban Cases
On June 26, 2017, the Supreme Court issued an order regarding the pending travel ban cases. The Court agreed to hear the cases, granting the petitions for certiorari but also slightly modifying the lower courts’ injunctions.
In March, President Trump signed a second Executive Order (EO) as a follow up to his January EO which blocked citizens of primarily Muslim nations: Iran, Sudan, Somalia, Libya, Syria, and Yemen, from entering the United States for a 90 day period and called for a 120 day ban of all refugees. As a result of numerous legal challenges to the ban around the country, two Circuit Courts, the Fourth and Ninth, have blocked enforcement of the ban but on different grounds. The issue went before the Supreme Court after the Trump administration had appealed these Circuit Courts’ decisions and made an emergency request to put the measure into effect.
In its Order, the Court held that the ban may take effect for people who “lack any bona fide relationship with a person or entity in the United States.” The Court will consolidate the cases and hear arguments of both this fall during the October session.
USCIS Rescinds 2000 Memo on H‐1B Computer Programmer Positions
In March 2017, USCIS issued a policy memorandum rescinding 17-year-old guidance on H-1B eligibility for certain computer-related positions. The new memo discusses whether the position of “Computer Programmer” is a “specialty occupation” for purposes of the H-1B visa and distinguishes between entry-level programmers, which are generally not eligible for H-1Bs under the new guidance, and higher-level programmers which may be eligible. USCIS noted that the prior guidance was based on Department of Labor materials from the 1990s and had become obsolete.
This new guidance emphasizes that employers petitioning for H-1B visas must show that the position requires highly specialized knowledge and complies with the definition of “specialty occupation” spelled out at 8 CFR § 214.2(h)(4)(ii). USCIS maintains that entry-level Computer Programmers are generally not required to have attained at least a bachelor’s degree. As such, the position of an entry-level computer programmer in most cases would not qualify as a specialty occupation position for H-1B purposes. This guidance falls in line with USCIS’ general H-1B policies regarding the meaning of specialty occupation positions, and USCIS explained that it issued the March memo to prevent any inconsistencies in its policies. The 2000 guidance was issued to the Nevada Service Center, which shifted away from processing H-1Bs in the 2000s but has recently begun to adjudicate them again.
USCIS Reaches the H1-B Cap for FY2018
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017 that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2018. USCIS also announced that it had received enough H-1B petitions to meet the separate cap for holders of U.S. advanced degrees, commonly referred to as the “master’s cap.”
In particular, USCIS received approximately 199,000 H-1B petitions during the filing period, which began on April 3, 2017. This number includes petitions filed for the master’s cap. USCIS used a computer-generated random selection process to randomly select a sufficient number of petitions to meet the statutory cap of 65,000 visas and the additional master’s cap of 20,000. USCIS is in the process of rejecting and returning all petitions that were not selected through the lottery process. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. As a reminder, USCIS announced on March 3, 2017 that it has temporarily suspended premium processing for all H-1B petitions for up to six months, irrespective of whether they are subject to this year’s cap.
Executive Order - Buy American and Hire American
On April 18, 2017, President Trump issued a new executive order “Buy American and Hire American.” While this executive order specifically identified the H–1B visa program for additional scrutiny, there is no immediate impact or change to the H-1B program. Instead, the executive order asks Federal agencies to review policies related to all visa programs and recommend changes to root out "fraud and abuse," and asks that the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to “as soon as practicable” suggest reforms to help ensure that the H-1B visas are awarded to the most skilled and the highest paid beneficiaries.
Inspection of Electronic Devices
In the past six months, U.S. Customs and Border Protection (CBP) Officers reportedly have nearly doubled their searches of the electronic devices of people entering the United States at airports and ports of entry. Someone entering the United States is subject to an inspection for a variety of reasons including incomplete travel documents, having a name that matches a person of interest in one of the government’s enforcement databases, or having been selected for a random search.
All persons, baggage and merchandise arriving in, or departing from the United States are subject to inspection, search and detention. This means that CBP can ask to inspect your cell phone, laptop, or other electronic device. CBP can also ask you to provide the passwords to your various accounts, including social media. Although there is no specific requirement to disclose such passwords, CBP can “detain” your electronic device for further examination even if you do not provide your password, and may use other means to gain access to your device. If CBP detains your electronic device you will receive a written receipt (Form 6051-D) and information about the contact person who will facilitate the return of your property within a reasonable time, upon completion of the examination (which could take days or weeks).
CBP indicates that Officers will adhere to all constitutional and statutory requirements, including those that are applicable to privileged, personal, or business confidential information. For example, the Trade Secrets Act prohibits federal employees from disclosing, without lawful authority, business confidential information to which they obtain access to as part of their official duties.
Trump Administration Continues DACA Program, Rescinds DAPA
On June 15, 2017, the Secretary of the U.S. Department of Homeland Security (DHS) signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The DAPA program, which was never implemented due to a court injunction, set forth a path for illegal aliens with a U.S. citizen or lawful permanent resident child to be considered for deferred action. In rescinding the DAPA memorandum, the Secretary cited a variety of factors, including the nationwide injunction of the DAPA memorandum, the ongoing litigation, the fact that DAPA never took effect, and DHS’s new immigration enforcement priorities.
As set forth in an FAQ document posted to the DHS website on June 15, 2017, DHS has stated that the rescission of DAPA will not affect the terms of the original Deferred Action for Childhood Arrivals (DACA) program as outlined in the June 15, 2012 memorandum. The DACA “deferred action” program offers a two-year renewable deferral of removal action and a grant of employment authorization to qualifying persons brought to the United States as youths who are not in lawful status but who meet certain qualifications. Pursuant to the FAQ, DACA recipients will continue to be eligible as outlined in the June 15, 2012 memorandum. DACA recipients who were issued three-year extensions before the district court’s injunction will not be affected, and will be eligible to seek a two-year extension upon their expiration. No work permits will be terminated prior to their current expiration dates.
Redesigned Permanent Resident Cards and Employment Authorization Document (EAD) Cards
On April 19, 2017 U.S. Citizenship and Immigration Services (USCIS) announced that it had redesigned the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD). The new cards are part of a combined effort between USCIS, U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE) to enhance document security and deter counterfeiting and fraud. The new cards will contain enhanced graphics and fraud-resistant security features so that the new cards are secure and more tamper-resistant. The new Permanent Resident/Green card will be predominantly green and have an image of the Statue of Liberty. The new EAD card will be predominantly red and have an image of a bald eagle.
USCIS announced that it will begin issuing the new cards on May 1, 2017; however, they will continue issuing the current style of Permanent Resident/Green cards and EADs even after May 1, 2017, as they will continue using existing card stock until current supplies are depleted. Both the existing and the new Permanent Resident/Green cards and EADs will remain valid until the expiration date shown on the card and both the new and existing versions of the Green Card and EAD are acceptable for completing e-verify and I-9 employment eligibility verification.
Third Country Nationals Applying for U.S. Visas at U.S. Consulates in Canada
Once a U.S. visa has been issued by a U.S. consulate into their passport, visa applicants in Canada may retrieve their passport from a designated Post Office in Canada; however, this can cause problems for third country nationals (i.e., those who do not ordinarily reside in Canada and were visiting Canada just to apply for a new U.S. visa at a U.S. consulate). The Canadian Post Office imposes identification requirements for all items being picked up. The individual picking up their passport sent back by the U.S. consulate must present to the Canadian Post Office an identity document (like a U.S. driver’s license) along with documentation evidencing residence in Canada (utility bill, bank statement etc.). This identification rule imposed by the Canadian Post Office poses real problems for third country nationals applying for their U.S. visa in Canada when they need to pick up their passports if they instruct the U.S. consulate to send the passport back to them to be picked up at the closest Canadian Post Office.
To avoid these issues created by the Canadian Post Office identification rule, U.S. consulates in Canada now offer Premium Processing. Visa applicants can pay a $20 fee to have their passport delivered to them anywhere in Canada (to a hotel, a family member’s house, law office etc.)