President Donald Trump issued three Executive Orders regarding immigration during his first week in office. The following is an overview of these executive orders:
- Bans immigrant and nonimmigrant entries for at least 90 days for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. For those foreign nationals already present in the United States, immigrant benefits filed during this suspension period may also be delayed and impacted. (Please see below for additional details).
- Requires in-person interviews for most nonimmigrant visa applicants by suspending the Visa Interview Waiver Program (VIWP). In the past, the VIWP allowed consular officers to waive the interview requirements for applicants seeking to renew nonimmigrant visas within 12 months of the expiration of the initial visa in the same classification. The suspension of the VIWP is expected to significantly impact consular workloads and will extremely increase the processing times for nonimmigrant visa applications. This provision does not specifically affect the Visa Waiver Program (VWP) which allows certain nationals from 37 countries to enter the United States as visitors for business or pleasure for up to 90 days without first obtaining a visitor's visa after submitting certain biographical information through the DOS' Electronic System for Travel Authorization (ESTA).
- Directs all federal agencies to develop screening procedures and standards for all immigration benefits to identify fraud and to detect whether a person intends to do harm. These agencies are also directed to create a process to evaluate an individual's "likelihood of becoming a positively contributing member of society" and "ability to make contributions to the national interest." Because the standards are not required by law and can be extremely subjective, they may create significant and possibly insurmountable barriers for some foreign nationals to obtain immigration benefits.
- Directs agencies to expedite the completion and implementation of a biometric entry-exit system. DHS already implemented the biometric entry part in 2006. However, the biometric exit system has been delayed by numerous obstacles and logistical issues with airline carriers and airports and other ports of entry.
- Directs the hiring of an additional 10,000 Immigration and Custom Enforcement (ICE) officers and 5,000 additional Border Patrol agents to conduct enforcement, security and removal operations.
- Directs the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to ensure that cities, counties and states that limit their cooperation with DHS with its immigration enforcement activities are not eligible to receive federal grants, except as deemed necessary for law enforcement purposes.
- Directs DOJ and DHS to direct adequate funds to criminal prosecutions of foreign nationals crossing the border without inspection.
- Instructs DHS to issue regulations to collect all penalties authorized from "unlawfully present" non-citizens and "those who facilitate their presence" in the United States.
- Directs DHS to take immediate steps to allocate available funds to start constructing a physical wall on the southern border and to create a long-term funding plan for the wall.
- Directs DHS to immediately end "catch and release" of individuals caught entering the United States without inspection and to ensure that individuals in removal proceedings are detained to the maximum extent of law, whether they are merely awaiting their court hearing or have a final order of deportation.
- Directs DHS to immediately construct detention facilities at or near the southern border and to assign asylum officers and immigration judges to these detention facilities to conduct asylum interviews and removal proceedings.
- Directs DHS to expand "expedited removal" to the maximum extent allowed by law. Expedited removal allows DHS officers to deport individuals without ever seeing an immigration judge with no guarantee of legal counsel and little chance to obtain representation from detention.
- Directs the Attorney General to prioritize the criminal prosecution of any offense with a nexus to the southern border, including non-violent offenses such as unlawful entry.
- Suspends the U.S. Refugee Admissions Program for 120 days, except if it is the national interest and the foreign national does not pose a security risk.
- Reduces the number of U.S. refugee admissions from 110,000 to 50,000, which is the lowest level in a decade.
- Halts the processing and admission of Syrian refugees indefinitely until the President determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.
All of the Executive Orders will have to be interpreted by the affected federal agencies. However, agencies may implement the terms of the Executive Orders without notice to the public. During the weekend of January 28th, Customs and Border Protection (CBP) began to implement without notice to the public the part of the Executive Order banning immigrants and nonimmigrants born in Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for at least 90 days, regardless of whether they were citizens or permanent residents of other countries. CBP detained hundreds of immigrants (a.k.a. "green card" holders) and nonimmigrants who were born in Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen as they attempted to enter the United States. Four courts across the United States issued orders for these individuals who had valid green cards or nonimmigrant visas to be released. On Sunday, January 29, after major protests at airports across the country and significant negative media coverage, DHS issued a statement that green card holders will not be subject to the bar, subject to national security checks at the ports of entry that may delay entry. The U.S. Department of State (DOS) has also been cancelling nonimmigrant visa interviews for individuals born in the affected countries. Additionally, although not officially confirmed by DHS, there has been indication from United States Citizenship and Immigration Services (USCIS) officers that DHS issued a directive that the adjudication of immigration benefits (e.g. EAD cards, nonimmigrant petitions, etc.) for individuals from the affected countries is also suspended. Therefore, our firm is advising all nonimmigrants who were born in the affected countries and who are currently in the United States to not travel internationally during the 90+ day suspension period. If they do travel internationally during this period, they will be prevented from reentering the United States. Our firm is also advising green card holders who were born in these affected countries to not travel internationally. However, if green card holders who were born in these affected countries do travel internationally, they should anticipate a significant delay when reentering the United States as CBP may want to complete a national security check prior to admission.
Additional information about the interpretation and implementation of these Executive Orders that were released during President Trump's first week in office will be contained in our Firm's future Immigration Updates when they become available. Information about additional Executive Orders issued by President Trump affecting immigration will also be provided in our Firm's future Immigration Updates when the Executive Orders are released.
DOS recently released the February 2017 Visa Bulletin. As expected, there was very little movement in the Final Action priority dates for most of the employment-based categories. The most significant movement in the Final Action priority dates was in the EB-3 World category and the EB-3 Filipino category. The EB-3 World category advanced by approximately two months to October 1, 2016 and the EB-3 Filipino category advanced by approximately three months to October 15, 2011. However, the EB-2 Indian national category did not advance at all. USCIS has indicated that it will continue to use the Final Action priority dates in order to determine if applicants with employment-based cases are able to file for Form I-485 Adjustment of Status.
The following is a comparison of priority date movement over the past few years:
The USCIS published a new version of the Form I-9 on November 14, 2016. Employers must begin using the new version, dated November 14, 2016, by January 22, 2017. Employers must stop using the Form I-9 with a revision date of March 8, 2013 by January 21, 2017. The revised Form I-9 is easier to complete on a computer. Enhancements include: drop-down lists and calendars for filling in dates; on-screen instructions for each field; easy access to the full instructions; revisions to Section 1 requesting "other last names used"; streamlined certification for certain foreign nationals; prompts to ensure information is entered accurately; ability to enter multiple preparers and translators; a dedicated area for including additional information rather than having to add it in the margins; and a supplemental page for the preparer/translator.Additional information about the movement of the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates when they become available.
On January 12, 2017, USCIS reported that it has reached the H-2B cap for the first half of Fiscal Year 2017. The final receipt date for new H-2B petitions was January 10, 2017 requesting an employment start date before April 1, 2017. The USCIS will reject any new H-2B petitions received after January 10, 2017 with an employment start date before April 1, 2017 (which is the date on which the H-2B cap for the second half of Fiscal Year 2017 opened).
DHS has proposed amendments to the EB–5 immigrant investor classification and associated regional centers to reflect statutory changes and modernize the EB–5 program. In general, under the EB–5 program, individuals are eligible to apply for lawful permanent residence in the U.S. if they make the necessary investment in a commercial enterprise in the U.S. and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. This proposed rule would change the EB–5 program regulations to reflect statutory changes and codify existing policies. It would also change certain aspects of the EB–5 program in need of reform. DHS proposes the following major revisions to the EB–5 program regulations.
- Priority date retention - DHS proposes to authorize certain EB–5 petitioners to retain the priority date of an approved EB–5 immigrant petition for use in connection with any subsequent EB–5 immigrant petition.
- Increases to the investment amounts – DHS is proposing to increase the minimum investment amounts for all new EB–5 petitioners. The increase would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990.- The DHS proposes to initially increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million.- For those investors seeking to invest in a new commercial enterprise that will be principally doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million, which is 75 percent of the proposed standard minimum investment amount.
- Reforming the Targeted Employment Area (TEA) designation process.- The DHS proposes to allow any city or town with high unemployment and a population of 20,000 or more to qualify as a TEA.- The DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas. Instead, the DHS would make such designations directly, using defined standards.
- Changes to the process for removing conditions – The following additional proposals have been made:- An immigrant investor's spouse and children would be required to file separate Form I-829 petitions when they are not included in the Form I-829 filed by the immigrant investor.- USCIS would be permitted to schedule an interview at the USCIS office holding jurisdiction over either the immigrant investor's commercial enterprise, the immigrant investor's residence, or the location where the Form I-829 petition is adjudicated.
- Revisions to Form I-526, Immigrant Petition by Alien Entrepreneur.
MFEM's Immigration Group will hold its 2017 Annual Immigration Law Update Seminar on Friday, February 24, 2017 - Register Today!
MFEM's Immigration Group will hold its 2017 Annual Immigration Law Update Seminar on Friday, February 24, 2017 at the Doubletree Hotel in Arlington Heights, Illinois. Topics that will be covered during this year's seminar include:
- The transition from the Obama to the Trump administration and its effect on the U.S. immigration system;
- The H-1B quota for Fiscal Year 2018'
- Nuts and bolts of L, L Blanket and E visa processing;
- Employing international students on CPT, OPT and STEM OPT;
- New aggressive immigration worksite enforcement and the new Form I-9; and
- Crimmigration and visa revocations.