PROVIDING IMMIGRATION AND
BUSINESS SOLUTIONS WHEREVER YOU ARE.
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In true presidential fashion, President Trump tweeted over the weekend that his administration will begin to conduct “extreme vetting” of visa applicants under the pretense of improving national security.  This vetting process will be implemented through the consular officers’ use of the new Form DS-5535, which the Department of State approved last month.

Form DS-5535

The new form is essentially a supplemental questionnaire that consular officers who review applications for U.S. visas may require visa applicants to complete.  The questionnaire is three pages long and requests that applicants provide their passports and travel history (i.e., countries to which the applicants have traveled) for the past 15 years.  The questionnaire also requires the applicants to disclose the source of the funds that they used to finance those trips.  In addition to the travel history information, the form asks for the applicant’s past 15 years of addresses, employment positions, and spouses.  Perhaps the most widely criticized part of the new questionnaire is that it also asks for the applicant’s user names or user handles that they have used in social media accounts in the past five years.

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Even in the absence of any newly signed executive orders, immigration topics continue to dominate the news cycle.  This week, Immigration and Customs Enforcement (ICE), the agency tasked with enforcing the nation’s immigration laws, released a report confirming that during the first 100 days of President Trump’s administration, arrests and detention of undocumented foreign nationals increased 38% when compared to the same time period last year.  The Acting Director of ICE, Mr. Thomas Homan, stated that his agency has refocused its enforcement efforts toward apprehending undocumented foreign nationals with criminal records.  But the numbers would seem to disagree.  The same report contains data that indicates the arrests of undocumented foreign nationals without criminal records rose 156% from last year.  Additionally, between January 2017 and April 2017, more than 10,000 people who were arrested had only immigration violations on their record.  This figure represents nearly triple the same type of arrests during the same period last year.

Policies Behind the Report

The Executive Director of America’s Voice, a pro-immigrant advocate group, commented that the President’s true goal for his administration is to carry out large-scale mass deportations. This sentiment may in fact be true because ICE agents have been empowered to arrest more non-criminal undocumented foreign nationals as part of the President’s January 25 executive order.  Amongst other controversial provisions, this order expanded the pool of deportation “priorities” to include undocumented foreign nationals.  In contrast, under former President Obama’s policy, a foreign national’s undocumented status was not enough to make them an enforcement priority.  Instead, the person needed to be a member of a gang or have significant misdemeanors or felonies on their record in order to be considered a priority.

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At around this time of the year, there is a split among foreign nationals and U.S. companies. Approximately one-third of them are celebrating the fact that their H-1B petitions were selected in the lottery, and the remaining two-thirds are either still anxiously awaiting notice that their petitions have been selected or bemoaning the fact that their petitions were not selected. If your H-1B was not selected in this year’s lottery (or last year or the year before that), do not panic just yet. There may be a multitude of other visa options available to you if you still want to live and work in the United States.stack of paper

Possible H-1B Visa Alternatives:  Other Work Visas

The H-1B visa, while very popular, is by no means the only employment-based visa available to foreign national workers. If the worker has been employed by a foreign company that also has a branch, parent, subsidiary, or affiliate operation in the United States, the worker may qualify for an L-1 visa. There are two types of L-1s:  L-1A visas for executives and managers, and L-1B visas for workers who possess specialized knowledge. The L-1A can also be used by an executive to come to the United States to open a new office for the foreign company.

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Next week, USCIS will begin to accept cap-subject H-1B petitions for the 2018 fiscal year.  Many immigration law firms, U.S. businesses, and foreign nationals have been preparing their petitions for several weeks in anticipation of the upcoming submission date.  To make sure you are ready to submit your petition to USCIS, go through the checklist below and confirm that all of your paperwork is in order.paper

H-1B Submission Checklist

1. All forms must be signed, and all correct fees must be submitted.  This may seem like a no-brainer, but it can be very easy for companies to accidentally forget to sign a form or to forget to include the correct fees with a petition, especially if that company is filing multiple petitions. (Some companies file more than 100 H-1B petitions each year.)  The following forms require a company representative’s signature (and an attorney’s signature if the company is using legal representation for the H-1B submission):  the Form G-28, the Form I-129, and the Form I-129 H Supplement.  It is important to note that the employer must sign the Form I-129 H Supplement in two places.  Additionally, a Form I-129 Data Collection must also be submitted but does not require a signature.

The Labor Conditions Application (LCA) must also be signed and submitted along with the aforementioned forms.  This document must be submitted to the Department of Labor (DOL) for approval before submitting it to USCIS with the H-1B petition.  It can take the DOL seven days to approve an LCA, so if you have not submitted the LCA for your case, you must do so immediately.

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GavelIn the wake of the Circuit Court panel upholding the stay on the implementation of his first executive order, President Trump issued a new order that was specifically drafted to survive the court’s scrutiny.  The biggest differences in the new order included the removal of Iraq from the list of banned countries, the removal of minority religions as a preference when deciding which refugee applications to approve, and the assurance that lawful permanent residents (green card holders) and foreign nationals who already held valid visas were exempt from the new order’s provisions.

However, this past week, a Hawaiian federal judge issued an order that once again blocked President Trump’s travel ban.  Shortly thereafter, a second federal judge, this time in Maryland, also issued an order to the same effect.

The Hawaiian Judge’s Opinion

In the Federal District Court in Honolulu, Judge Derrick K. Watson handed down his order, halting the implementation of the President’s new executive order.  In his opinion, Judge Watson stated that contrary to the President’s strategy in drafting the new order, any reasonable person would still take the position that the new order was issued in order to discriminate against those who participate in a particular religion or who are members of a specific religious group.

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stop signOne month after federal judges blocked the President’s first immigration executive order, President Trump has issued a second order aimed at preventing the entry into the U.S. of foreign nationals from six Muslim-majority countries (down from seven countries banned in the first order).

While the main point of both executive orders remains the same – to exclude foreign nationals from specific countries from entering the U.S. – there are key differences between the first order and this second one.

Differences Between the Two Executive Orders

Most notably, this second immigration ban does not take effect immediately but instead will go live on March 16, 2017.  The immediate effect of the first travel ban was one of the grounds on which it was challenged in the courts because foreign nationals and immigration enforcement officers alike were unprepared for how to handle the first ban.

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There is never a lack of surprises in the immigration world.  Recently, in addition to the unveiling of the President’s new executive order, USCIS announced that the agency would be temporarily suspending the premium processing program for H-1B petitions.  Beginning on April 3, 2017, and continuing for as long as six months, USCIS will not accept premium processing requests for H-1B petitions.

What is the Premium Processing Program?

Premium processing is an optional service offered by USCIS for certain eligible applications for immigration benefits.  To make use of premium processing, the petitioner must request the service using the Form I-907 and provide USCIS with an extra fee of $1,225, which is in addition to any other filing fee the petitioner may have already paid.  Once USCIS receives these materials, the agency will adjudicate the underlying application within 15 business days.  Since the normal processing time for some petitions is more than one year, the premium processing option has become more and more attractive in recent years.

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courtLately, most of the immigration-related news has been focusing on the federal government, specifically President Trump’s executive orders and immigration raids conducted by Immigration Customs Enforcement (ICE).  However, many of the states have also been very active and involved in immigration, from joining together to fight the aforementioned executive orders (successfully) in court to issuing executive orders of their own.  Read on to learn more about the actions the states are taking in the face of the rapidly changing immigration landscape.

Washington Governor Signs Own Executive Order

Perhaps the most talked about state action this week has been coverage of Washington Governor Jay Inslee, who signed his own executive order that reaffirms existing state policies that prohibit the state police from working with federal immigration agents to make arrests solely due to immigration status violations. The governor of Washington signed an executive order on Thursday, reaffirming policies that bar state police and corrections officers from making arrests purely on immigration status, a rebuke of the Trump administration.

The executive order likely came as a response to the Department of Homeland Security’s new memos that were issued this week.  These memos called upon the states to assist immigration officers with immigration enforcement efforts and also expanded the pool of foreign nationals who will be included in the Department’s deportation efforts.  The memos also call for adding 5,000 Border Patrol agents and 10,000 ICE agents.

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stop signThis entire week has been an series of ups and downs in the immigration world.  With the signature of multiple executive orders, President Trump has managed to turn U.S. immigration law, policy, and practice on its head in the very first week he has been in office.  The early results of his travel ban are in, and they do not look good.

Quick Recap: President Trump’s Travel Ban

As reported earlier this week, one of the President’s executive orders ban the admission of foreign nationals into the U.S. if they are from Iran, Iraq, Libya, Somalia, Syria, Sudan, or Yemen.  Additionally, U.S. consulates have been instructed to refuse to issue visas to nationals of these countries.  Supposedly, this ban will be temporary and last 90 days, but there is no way of knowing whether the President will decide to extend it, or if he will choose to add more countries to the list.

Result #1:  More than 100,000 visas have been revoked

According to the Department of Justice, more than 100,000 visas have been revoked as a result of the travel ban involving the aforementioned seven countries.  This statistic was revealed in a federal courtroom in Virginia, where a judge granted the commonwealth’s motion to join one of the many lawsuits that have been filed that seek to challenge the implementation of the travel ban.

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visaWe are not even one month into the new administration, and already our worst fears are being realized as every day brings news of another signed or drafted executive order aimed at limiting immigration to the United States.  Below is a summary of the executive orders that President Trump has already signed or has drafted and is expected to sign in the next few days.

Construction of the Mexico-U.S. Border Wall

President Trump seems bound and determined to make good on his promise to “build a wall” along the Mexico-U.S. border, even if it means costing the American taxpayers more than $1 million per mile.  In addition to the construction of the wall, this executive order also demands an increase in the number of Border Patrol agents by at least 5,000 and calls for an additional 10,000 officers to be hired by Immigration and Customs Enforcement in order to assist in processing deportations.

The actual construction of the wall will likely not begin for several months, but the administration has promised that the logistical planning and budgeting will begin immediately.

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