USCIS Memo to DHS recommending termination of Haiti's TPS Designation

USCIS issued a memorandum to the Department of Homeland Security ("DHS") on April 24, 2017 recommending DHS terminate the designation for Temporary Protected Status ("TPS") for Haiti, as the agency concluded that the conditions in Haiti no longer support its designation. USCIS recommended that the effective termination date be set for January 22, 2018. The memo states "[USCIS] has concluded that the specific extraordinary and temporary conditions stemming from the 2010 earthquake which caused Haiti to be initially designated for TPS and to be redesignated in 2011 have been largely ameliorated. Those myriad problems remaining in Haiti are longstanding problems which have existed for many years before the 2010 disaster. Haitian nationals may safely return to Haiti ..."  

USCIS's memo included its recommendations to DHS on how to treat Haitian nationals in the U.S. on TPS: "If you determine that Haiti no longer continues to meet the statutory requirements for its TPS designation, you must terminate TPS for Haiti. Termination would end TPS benefits for existing Haitian TPS beneficiaries unless you provide for these benefits during a period for orderly transition. Upon the termination of TPS benefits, former beneficiaries without another immigration status or authorization to remain would no longer have permission to work and remain in the United States."

This recommendation from USCIS received a quick response from sixteen Democratic Senators, including Senator Elizabeth Warren of Massachusetts and Senate Minority Leader Charles Schumer of New York, urging DHS Secretary John F. Kelly and U.S. Secretary of State Rex Tillerson to extend the benefit despite USCIS's recommendation. DHS has not commented on USCIS's recommendation. Since the release of that memo, the Associated Press is reporting the Trump administration has begun hunting for evidence of crimes committed by Haitian immigrants as it decides whether to continue the TPS designation. In its report, the AP stated, "The request for criminal data for an entire ethnic community is unorthodox...Introducing new criteria is likely to cause consternation among law-abiding Haitians who may feel they are being penalized for the wrongdoing of others." We will continue to closely monitor the situation in the coming weeks and provide updates on our website.

USCIS will issue redesigned green cards & EADs

On USCIS recently announced a redesign for lawful permanent resident cards (commonly referred to as "green cards") and employment authorization documents ("EADs") as part of the Next Generation Secure Identification Document project. USCIS began issuing the cards on May 1, 2017 but will continue using existing card stock until depleted. Both existing and new cards are valid until the expiration date noted on the cards. Please visit the USCIS website's announcement for more information and to see images of the newly redesigned cards.

USCIS now accepting H-1B petitions for FY2018

On April 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") began accepting H-1B petitions for Fiscal Year 2018 ("FY2018"). In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 3rd - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least a bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 236,000 H-1B petitions in the first five business days of April. 

For updates on when USCIS reaches the cap, the lottery, whether there will be a re-start date for premium processing (discussed in further detail below), and other H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Alternatives to H-1B visa

In light of the increase in demand for H-1B visas over the past several years, employers and foreign nationals should also be aware of other work visa options. A few possibilities that are not subject to annual quotas include:

• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quotabut that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

In addition, employers and foreign nationals may want to consider cap-exempt H-1B visas, which are available if the beneficiary will be employed at an institution of higher education or affiliated non-profit, or concurrently employed by a cap-exempt employer and a private employer. Some universities are assisting in this process by opening up incubator space on-campus, allowing cap-subject employers to station their employees at colleges and universities. This model is known as Global Entrepreneur In Residence ("GEIR") programs, and has become very valuable in the past several years due to the limited number of H-1B visas and the high demand for them. For more information about any of these visa categories or GEIR options, please contact us at info@iandoli.com.   

Reminder: USCIS has temporarily suspended Premium Processing for all H-1B petitions

As noted in one of our previous updates, USCIS announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times for H-1B petitions have increased significantly over the past 18 months -- from 2-4 months to upwards of 9-12 months -- many petitioners have used Premium Processing to facilitate quicker start dates for H-1B employees and for obtaining approval notices they may need for international travel. USCIS has not announced a firm end date for the premium processing suspension but did indicate it could last for up to 6 months. This suspension has a major impact not only on the annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates for foreign national employees.

As a reminder, USCIS accepts expedite requests on a case-by-case basis if a foreign national or an employer can demonstrate that one or more of the expedite criteria has been met. USCIS lists the following as criteria they will consider for reviewing expedite requests: severe financial loss to company or person; 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 national interest situation (note these requests must come from an official U.S. government entity and state the delay will be detrimental to the government); USCIS error; or compelling interest of USCIS. If you have a question about the premium processing suspension or need assistance with assessing an expedite request, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Temporary Restraining Orders and a Preliminary Injunction issued, halting Executive Order on Travel Ban

Several U.S. District courts issued temporary restraining orders related to the revised Travel Ban last month. Further, the U.S. District Court of the District of Hawaii in its Order found there was "unrebutted evidence of religious animus" and a "dearth of information indicating a national security purpose", and concluded that the plaintiffs were likely to succeed on the merits of their claim that the travel ban violated the Establishment Clause of the U.S. Constitution. The Court further held that no "constitutionally significant" changes were made to this rewritten order and that it therefore suffered from all the same failings of the first executive order (withdrawn by the government and replaced by the rewritten order). Many of these same findings were reiterated when the District Court issued its Preliminary Injunction on March 29, 2017. In response to the government's arguments that only the four-corners of the Executive Order should be reviewed and statements made by the President during the campaign and while in office leading up to the ban should be ignored, the Judge's Order states: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."  The U.S. District Court's Preliminary Injunction is binding on all federal agencies, including the Department of Homeland Security and the Department of State. The Executive Branch indicated it will again appeal to the Ninth Circuit Court of Appeals. We will bring you further updates as the travel ban litigation progresses.

Trump Administration to implement heightened screening of visa applicants

While the Executive Order authorizing the travel ban is tied up in litigation, the Trump administration has ordered all American embassies and consulates to increase the scrutiny of all visa applicants. Released as a series of cables within the Department of State, this new scrutiny could include detailed questions on applicants' backgrounds and mandatory checks of applicants' social media history if the applicants have ever been in territory controlled by Daesh (the Islamic State). Additional scrutiny could include review of all phone numbers, email addresses, and social media handles used by the visa applicant over the past five years. Another new review criterion, that of the visa applicant's work history for the prior fifteen years, has been held up pending approval of the Office of Management and Budget. 

This heightened scrutiny is likely to increase the typical waiting times for visa processing, which was acknowledged by Secretary of State Rex Tillerson who said that this extra scrutiny would cause "backlogs to rise." Accordingly, employers and visa applicants should be aware of the risk for delays for visa processing abroad over the coming months.

National Interest Waiver adjudications resume

On March 8, 2017, USCIS confirmed to the American Immigration Lawyers Association ("AILA") that it had resumed adjudication of National Interest Waiver ("NIW") petitions using the new standard imposed by a precedential decision, Matter of Dhanasar.  Adjudications had been temporarily halted while USCIS was awaiting further internal guidance before training its adjudicators and familiarizing them with the new standard. NIWs are a pathway to lawful permanent resident status if an applicant can show his or her work is in the national interest. Under Dhanasar, an NIW applicant must show that the proposed endeavor has both substantial merit and is national in scope, that the applicant is "well-positioned" to advance the proposed endeavor, and that on balance the U.S. would benefit from waiving the job offer and labor certification requirements of the EB-2 category. This new standard significantly eases the NIW process for many applicants, making this a more viable option than it had been under the old standards.

EADs for Salvadoran TPS recipients extended until September 9, 2017

On March 6, 2017, the Secretary for the Department Homeland Security automatically extended the Employment Authorization Documents ("EADs") of Salvadorans currently granted Temporary Protected Status ("TPS") for an additional six months. The new period of EAD validity runs until September 9, 2017. Note that this action does not extend the current validity period of TPS for El Salvador, currently set to expire on March 9, 2018. For additional information, please visit the USCIS TPS website.

USCIS will temporarily suspend Premium Processing for all H-1B Petitions

Last Friday U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy. 

This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.  

The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months: 

• H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.  
• Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals. and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
• H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
• H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved. 

USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.

Please contact Iandoli Desai & Cronin P.C. at info@iandoli.com if you or your organization has any questions regarding timing or if you need assistance in preparing petitions this month.