Hot Off the Press
In a State Department cable sent to U.S. Embassies on March 17, 2017, Secretary of State Rex Tillerson provides instructions on implementing immediate heightened screening and vetting of visa applications at U.S. consular posts, which will require additional scrutiny of certain applicants and likely will lead to delays for all applicants in obtaining interview appointments. That cable instructs Consular Chiefs to develop working groups, which will define a “list of criteria identifying sets of post applicant populations warranting increased scrutiny.” Once U.S. consular posts have documented these “population sets,” the cable instructs the posts to “direct adjudicating consular officers to attempt to identify individual applicants that fall within the population set during the course of a consular visa interview.” The cable further calls for mandatory social media checks for “applicants present in a territory at the time it was controlled by ISIS.” The cable also instructs U.S. consular posts to “generally not schedule more than 120 visa interviews per consular adjudicator/per day.” As a result of this limitation, the cable envisions that such limited scheduling “may cause interview appointment backlogs to rise.” Based on some indications, the White House is expected to issue an executive order (EO) on H-1B visas in the coming weeks. It is not clear at this time whether it would track the leaked draft EO from several weeks back that calls for a review of the H-1B program and possible implementation of new rules, or whether the new EO will go even further and impose additional restrictions. In the current environment, it is not likely that the new EO would advance positions favorable to employers who currently use the H-1B program to hire foreign nationals in specialty occupations. The employers should consider submitting H-1B extension petitions for existing employees as soon as such filings are possible.
USCIS Suspending Premium (Expedited) Processing for H-1B
USCIS recently announced that effective April 3, 2017, they would suspend Premium Processing for all H-1B petitions. This means that employers cannot pay the additional (US$1,225) fee to have an H-1B petition adjudicated within 15 calendar days for cases received by USCIS as of April 3 (including all cap-subject cases that are going into the “lottery”). According to the USCIS on-line status system, the agency’s current processing times for H-1B petitions under normal (not premium) processing is between five to nine months.
How will this impact H-1B filings in various scenarios?
Change of Employer (e.g., new hire who already holds H-1B status with another cap-subject employer): There should be limited impact on the new employer but the new hire’s ability to travel internationally may be impacted during a period of time.
If the foreign national currently holds H-1B status with another employer who is not exempt from the cap, under the "portability" provisions, the foreign national may be able to begin working for the new H-1B employer once the new employer’s petition is received by USCIS. However, if the new hire does take advantage of that authorization and starts while the petition is pending, he/she would not be able to travel internationally until the USCIS approves the petition.
Extension of H-1B status for an existing employee holding H-1B status: There should be limited impact on the new employer but the person’s ability to travel will be impacted.
As long as the petition to extend the foreign national’s H-1B status is timely filed (i.e., before their current H-1B status expires), the foreign national can continue to work for up to 240 days beyond the expiration of their current H-1B status (i.e., for 240 days beyond the end date of the existing I-797 approval notice documenting prior H-1B petition approval), while USCIS adjudicates the extension petition. The issue for this individual will be the impact on his/her ability to travel. The foreign national can continue to travel using a valid H-1B visa and H-1B approval notice which they already have, but only up until the validity of their current H-1B approval notice (Form I-797). After that date, he/she will not be able to re-enter the U.S. after international travel until the extension petition is approved. As a result, the employee may have a period of time (possibly months) when he/she cannot travel internationally.
H-1B CAP (quota-subject) petitions (e.g., filing for new hire or existing employee who does not hold H-1B status currently or who holds H-1B status with a cap-exempt employer and thus was not previously counted under the quota): Potentially greater impact on the company and the individual’s ability to start working and/or travel.
Cap-subject cases cannot be expedited as they cannot be filed before April 3, and the suspension of expedited processing starts on April 3. It will take longer to learn whether the company’s petition was selected through the “lottery” because it may take several weeks to a few months (May or June) to receive receipt notices from USCIS for cases accepted for processing toward the CAP.
If the person is not currently in the United States in a work authorized status, that person will not be able to start working for the company even if the case is selected through the lottery until after the H-1B petition is approved (and they obtain an H-1B visa from a U.S. consulate, as required), which can take months in a regular queue (even more than six months).
If the person is currently in the United States in a work authorized status (e.g., TN or F-1 OPT) and the company files its H-1B with a request for an automatic change of status, the foreign national should not travel internationally after April 3, 2017 because any such departure while the petition is pending would result in the abandonment of the change of status request, if the petition does get selected through the lottery. Such travel would have a detrimental impact on those in F-1 OPT status whose current OPT authorization expires before October 1.
Click here to access the USCIS notice regarding suspension of Premium Processing.
DHS Finalizes Rule Permitting Temporary Residence in U.S. for International Start-Up Entrepreneurs
On January 17, 2017, the U.S. Department of Homeland Security (DHS) finalized a new immigration rule that provides international entrepreneurs with the opportunity to temporarily reside in the United States under certain conditions, but it does not create a new visa status. This International Entrepreneurship Rule, which goes into effect on July 17, 2017, seeks to increase and enhance entrepreneurship, innovation, and job creation in the United States by permitting foreign entrepreneurs of start-up businesses who demonstrate the public benefit of their activities to temporarily enter the U.S.
To qualify for the International Entrepreneur Rule, entrepreneurs must demonstrate their ownership interest in the U.S. entity and their active and central role in the entity’s operations such that their abilities or experience would substantially assist the business’s growth and success. They must also show their business’s likely public benefit by demonstrating the significant potential for rapid growth and job creation in the U.S., particularly on the basis of the receipt of capital from successful U.S. investors and awards or grants from government entities. The new rule additionally provides for an entrepreneur who only partially fulfills the funding conditions above to demonstrate the company’s potential for growth and job creation through the submission of other “reliable and compelling” evidence.
Rather than under a specific visa, admission of entrepreneurs into the United States under this rule will be on the basis of discretionary parole. If the entrepreneur’s claim is successful, he or she will be initially authorized to stay in the country for 30 months (with possible extension of up to 30 additional months). As this is discretionary authority granted under executive powers, the Trump Administration may decide not to grant parole under this program announced in the last days of the Obama Administration.
Visa Reforms on the Congressional Agenda
With Congressional attention focused on immigration issues, legislators have proposed a number of potential changes to employment-based visa programs, including the H-1B and EB-5 programs. While it remains to be seen what action, if any, Congress will ultimately take, members have offered several proposals that would drastically reshape the H-1B system. These proposals include:
— The High-Skilled Integrity and Fairness Act of 2017 (H.R. 670), introduced by Rep. Zoe Lofgren (D-CA), would, among other changes, raise the annual salary requirement for H-1B dependent employers to US$130,000/year or higher;
— The Protect and Grow American Jobs Act (H.R. 170), introduced by Rep. Darrell Issa (R-CA), would raise the annual salary requirement for H-1B dependent employers to US$100,000/year or higher;
— The H-1B and L-1 Visa Reform Act of 2017 (S.180), introduced by Sens. Chuck Grassley (R-IA) and Dick Durbin (D-IL), would replace the current H-1B lottery with a qualifications-based system that would favor science, technology, engineering, or mathematics (STEM) graduates from U.S. universities.
These proposals expressly target certain H-1B dependent employers in the IT sector which have been criticized for allegedly replacing American workers with lower-paid H-1B holders.
Similarly, the EB-5 investor-based visa program, which currently requires foreign nationals to make a minimum investment of US$500,000 - US$1,000,000 in projects that will create at least 10 U.S. jobs, has been criticized as a “cash for visas” program that has not fulfilled its goals of spurring domestic employment. Sens. Diane Feinstein (D-CA) and Grassley have introduced S.232, which would eliminate the EB-5 program entirely and reallocate the visas allotted to that program to the remaining four employment-based categories.
DACA and the New Administration
Deferred Action for Childhood Arrivals (DACA) is an executive action initiated by the Obama Administration in June 2012. Under its provisions, undocumented immigrants who entered as minors and met certain conditions received deferred action from deportation and eligibility for work permits. As such, DACA does not provide legal status but rather a form of temporary protection. Since its initiation, more than half a million persons have enrolled. As part of this enrollment process, applicants registered with U.S. Citizenship and Immigration Services (USCIS), which is a part of the DHS. Accordingly, the Federal Government still holds detailed personal information about enrollees.
Given the Trump Administration’s focus on immigration policy, Hogan Lovells continues to monitor potential changes to DACA. During his campaign, President Trump promised to end DACA, and an early leaked draft of an executive order suggested that his administration would reverse the Obama policy. As DACA arrived through an executive action, President Trump has the authority to end the program through executive action as well, with no need for congressional approval. However, as of now, the Trump Administration has left DACA in place.
It is difficult to predict whether DACA will remain in place and whether enrollees’ information will remain protected from immigration enforcement authorities. In Congress, though, DACA-like legislation has recently come under consideration. The BRIDGE Act (Bar Removal of Individuals who Dream of Growing our Economy), introduced in both the House and the Senate, would provide a “provisional protected presence” for individuals who entered the country as minors without documents. Like DACA, it would not provide a pathway to citizenship, but it would protect certain individuals from removal proceedings. Given the changing landscape in immigration policy, we expect this situation to develop further and will continue to follow potential impacts for DACA recipients and similarly-situated immigrants.
Canadian Entry/Transit Requirements
Visitors to Canada from 52 visa-exempt countries who fly into or transit through Canada by air are now required to purchase an Electronic Visa Authorization (eTA) before entering the country. The eTA application, which can be applied for online, costs CA$ 7.00, can be valid for up to five years, or until the passport under which the eTA was applied for expires. The eTA entitles the holder to unlimited travel for short stays (generally up to 6 months at a time) while the eTA remains valid. The eTA requirement does not apply to U.S. citizens or persons holding a valid Canadian visa.
Persons traveling to Canada for business, including U.S. citizens, are also advised by Canadian authorities to carry letters of invitation or other indicia (e.g. conference materials) of the business purpose for entering Canada. Letters of invitation should be written on the Canadian company’s letterhead for which the business will be conducted and include the person’s name, employer, business purpose of the visit, and the duration of the person’s stay. A more complete list of what should be included in the letter can be found on the Government of Canada’s website.
USCIS Revises Form I-9, Used for New Hires in the U.S.
The United States Citizenship and Immigration Services (USCIS) has revised Form I-9, Employment Eligibility Verification, which employers are required to complete when hiring a new employee. Employers must now use the version dated 11/14/2016. No prior version of this form is accepted. The changes are designed to reduce errors and make the form easier to complete on a computer. One change is that the form asks for “other last names used” as opposed to “ other names used”. The revised Form I-9 also contains drop down lists, prompts and a quick response (QR) code generated when the form prints, which can be read by QR readers.
Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment In the United States without verifying their identity and employment authorization on Form I-9.