After some earlier versions that encountered significant resistance and judicial challenge, President Donald Trump issued a Proclamation on Sept. 24 that restricts travel to the United States by nationals of eight countries – Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. (While not included in the ban, nationals of Iraq are to be subject to additional screening measures.) The restrictions differ from country to country. The Proclamation exempts nationals of these countries who were physically in the U.S. on the date of the Proclamation. Likewise, the Proclamation exempts nationals of these countries who had a valid visa on the effective date of the Proclamation and nationals of these countries who are lawful permanent residents of the U.S.It also does not apply to dual nationals of designated and non-designated countries when they travel on a passport issued by a non-designated country (including the U.S.). Notwithstanding these exceptions, travel for nationals of these countries will remain inherently risky and is likely to involve significant delays – both at U.S. consulates and at ports of entry into the U.S., especially since we do not know whether the exemptions in the Proclamation will be interpreted even more restrictively than they appear at first glance.
Heightened Scrutiny of H-1B Visa Petitions and Other Immigration Filings
USCIS has issued an unprecedented number of Requests for Evidence (RFEs) challenging the use of Level 1 (and in some cases) Level 2 prevailing wages for H-1B petitions. These RFEs likely stem from President Trump’s “Buy American, Hire American” policy which, in part, is focused on the Administration’s concern that foreign nationals are being paid less and therefore taking jobs away from U.S. workers. The challenges generally take the form of questioning whether the job associated with the H-1B petition is truly entry level and/or questioning whether a job with a Level 1 wage can be a “specialty occupation.” USCIS has also aggressively challenged H-1B petitions for occupational classifications that it believes are not sufficiently professional in nature. Most of the RFEs have been for “cap” cases but others have been for extension cases. Other types of petitions, including Immigrant Petitions (Form I-140) and Non-Immigrant Petitions for L-1 Intra-Company Transferees, also seem to be the subject of heightened scrutiny. USCIS’s increased issuance of RFEs was without warning and, in many cases, the petitioning companies are challenging vigorously the RFEs, although it is too early to know with what degree of success.
30/60 Day Rule Eliminated
For approximately 20 years, the State Department applied the “30/60 Day Rule” to determine when a misrepresentation by a foreign national has been made. Under the 30/60 Day Rule, if a person took certain action, such as applying to adjust status or engaging in unauthorized employment within 30 days of entering the U.S., the consular officer could presume that the foreign national had misrepresented his or her intention for seeking a visa or entry into the U.S. If the person had taken such an action within more than 30 but less than 60 days after entry, there was no presumption of misrepresentation but the officer could still question the foreign national’s intentions. Actions taken after 60 days were not considered misrepresentations. On Sept. 1, the State Department eliminated the 30/60 Day Rule and implemented a new rule that provides that any inconsistent conduct within 90 days of entry should be presumed a willful misrepresentation. After 90 days, no presumption of willful misrepresentation will arise, but the consular officer can still make a determination that misrepresentation has occurred and ask for an opinion from others within the State Department.
Interviews Required for Employment-Based Adjustment of Status Applications
While most family-based (e.g. based on marriage to a U.S. citizen) applicants to adjust status to lawful permanent residency (“green cards”) have always been required to have interviews, employment-based applicants to adjust status were rarely required to attend interviews. USCIS recently announced that employment-based applicants to adjust status (for cases filed on March 6 or later) will now require interviews at local USCIS offices.Spouses and children 14 years or older will also require interviews. This will almost certainly result in delays in adjudicating all adjustment of status applications. At this point, the precise scope of what will be covered in the interviews remains unclear.
Advance Parole Abandonment
Without any announcement, USCIS changed its handling of the impact of traveling after the filing of an application for advance parole but prior to its approval. The new policy is that if a person travels outside the U.S. while an advance parole application is pending, the advance parole application will be considered abandoned. While this position was included in the instructions to the Advance Parole application, USCIS routinely approved advance parole applications for individuals who traveled abroad with valid advance parole documents or valid H or L visas.
More Scrutiny at the Consulate and Ports of Entry
Our recent experience has made clear that applications for visas and attempts to enter the U.S., including through the popular Visa Waiver Program (commonly referred to as “ESTA”), which previously would have gone unchallenged, are being scrutinized more closely and, in many cases, denied for seemingly trivial reasons. Foreign business travelers who have relied for years on easy access to the U.S. to meet with colleagues or clients are now routinely being delayed, and in some cases denied entry.
In summary, changes to immigration law and procedure – both announced and unannounced – are modifying assumptions and processes that companies and foreign nationals may have taken for granted for many years. BakerHostetler’s immigration lawyers strive to stay on top of these changes and provide our clients with the best and most up-to-date advice and strategies for both attracting and protecting their vital foreign talent. For more information on any of the above topics or any other immigration questions, please feel free to call us.
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