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U.S. Customs and Border Protection (CBP) has confirmed that President Trump’s latest travel ban on nonimmigrant work visas does not apply to Canadian nationals.
Key points:
BAL Analysis: The confirmation from CBP clarifies that Canadians seeking entry in H, L or J status are not prevented from entry under the ban, and may proceed to ports of entry as normal while the proclamation is in effect. However, CBP has not yet issued a formal announcement. Because it may take some time for the agency to disseminate guidance to ports-of-entry, Canadian workers should be advised that they may in the interim encounter delays when seeking entry from Canada. BAL has created an FAQ on the proclamation and will continue to provide updates and analysis regarding the government’s implementation of the proclamation.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
President Donald Trump has issued a proclamation that will restrict entry of certain foreign nationals on new nonimmigrant work visas. The proclamation also extends existing restrictions on immigrant visa applicants that were set to expire today.
BAL Analysis: Today, travel to the U.S. by foreign nationals remains extremely limited. U.S. consulates abroad have generally suspended routine visa services, making it difficult to obtain new visas to travel to the U.S. Under White House proclamations, foreign nationals who have been physically present for a 14-day period in Brazil, China, Iran, Ireland, Schengen Area countries or the United Kingdom may not enter the U.S. unless they fall under an exemption. These restrictions are in effect until terminated by the president. Non-essential travel across land borders from Canada and Mexico also remains restricted until at least July 21.
When U.S. consulates abroad begin to reopen, the new proclamation will significantly restrict legal immigration avenues for foreign workers who are not presently in the U.S. Though it is based on the authority to deny entry and does not impact U.S. Citizenship and Immigration Services (USCIS) adjudications within the U.S., the proclamation directs the immigration agencies to issue regulations that could affect eligibility for work visas. BAL is continuing to review the new restrictions and will provide additional analysis in the coming days.
U.S. Citizenship and Immigration Services (USCIS) has issued a policy memorandum that rescinds previous guidance related to the employment of H-1B workers at third-party worksites and announces additional guidance on H-1B adjudications.
Background: The adjudication guidance contained in the 2018 Contracts and Itineraries Memo and 2010 Employer-Employee Relationship Memo has faced increasing challenges through litigation. Recent court decisions, such as ITServe Alliance, Inc. v. Cissna, have found many of the policies in these memos to be invalid or unenforceable. The agency’s rescission of these memos and issuance of additional guidance is the result of this litigation and a related settlement.
BAL Analysis: The rescission takes effect immediately and applies to pending and new H-1B filings, including motions and appeals. The memo states that USCIS will no longer require certain types of evidence, such as a detailed itinerary when the H-1B worker will be placed in more than one worksite location, contracts between the petitioner and any end-client or clients, or detailed descriptions of the day-to-day assignments of the H-1B worker.
However, USCIS may still deny petitions for a variety of reasons, including not providing sufficient evidence that specialty occupation work exists for the worker. The new guidance also instructs USCIS officers to assess whether H-1B workers have been employed according to the terms and conditions of previous approvals, including time the worker spent in non-productive status or extended periods of training.
BAL continues to assess the new guidance and will provide additional analysis to clients in the near future.
EXECUTIVE SUMMARY
On June 18, the U.S. Supreme Court ruled that the Trump administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program was unlawful and must be vacated.
ANALYSIS
What is the immediate impact of the ruling?
In the near term, the ruling prevents the administration from ending the DACA program. Before the ruling, DHS was required to continue accepting renewal applications from individuals who had previously been granted DACA, but not new applications. The ruling means DHS will have to continue accepting renewal applications from DACA beneficiaries.
Will the government start accepting initial applications?
The ruling will likely require DHS to begin accepting initial DACA applications. However, it remains unclear whether this can happen immediately, or if additional procedural steps must be taken in the lower courts. DHS is expected to issue further guidance on this issue in the coming days.
Is the government allowed to terminate DACA?
Yes. The parties to the lawsuits, and the Supreme Court, agree that DHS had authority to terminate the program. However, the Court concluded that the termination was subject to review under the Administrative Procedure Act (APA). The subject of the lawsuit was whether the agency followed the proper procedure. The Court ruled that the agency violated the APA in its termination of the program.
Will the administration try again to end DACA?
Shortly after the decision was released, President Trump tweeted, “I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.” DHS could attempt to address the Court’s concerns and end the program in a different manner, but few are confident that the administration could achieve that result prior to the election.
Will Congress find a permanent legislative solution?
Only Congress has authority to provide a permanent solution for Dreamers that offers legal status in the U.S., and stakeholders have been encouraging lawmakers for years to find a bipartisan solution. It is impossible to predict at this time whether Congress will pass a law that grants some form of relief from removal to DACA beneficiaries, particularly in an election year.
Copyright ©2020 Berry Appleman & Leiden LLP. Government immigration agencies often change their policies and practices without notice. This document does not constitute legal advice or create an attorney-client relationship. Version: June 18, 2020.
The U.S. Supreme Court issued a ruling today against the Trump administration, holding that its termination of Deferred Action for Childhood Arrivals (DACA) in 2017 was unlawful.
Key Points
Background: Since it began in 2012 under the Obama administration, DACA has provided temporary protection from deportation and the opportunity to obtain work authorization for roughly 700,000 undocumented immigrants who were brought to the United States as children.
After the Trump administration announced its decision to terminate the program in September 2017, DACA recipients, immigrants’ rights groups, cities, states and universities sued to stop the administration’s efforts to end the program. Since 2017, the DHS has been enjoined from fully terminating the program and has continued accepting renewal DACA applications.
BAL Analysis: This is a significant win for Dreamers and their supporters. For the time being, DHS is still required to accept applications to renew DACA grants, and the ruling does not make immediate changes to the status quo. The matter has been sent back to DHS, and it is not yet known whether the agency will attempt before the November election to terminate the program again through the rulemaking process. The Court ruled on the way in which the administration terminated DACA, but not on the legality of the program itself. BAL is closely monitoring the administration’s response to the ruling and will provide updates and analysis as more information becomes available.
Hundreds of employers and business groups have signed letters to President Donald Trump highlighting the importance of high-skilled nonimmigrant foreign workers, as the administration weighs additional immigration restrictions amid the economic fallout from the COVID-19 pandemic.
The administration is considering restrictions to nonimmigrant (i.e., temporary) work visa categories after Trump issued a proclamation in April suspending the entry of most immigrant-visa applicants for 60 days. The proclamation called on the Secretaries of Labor, Homeland Security and State to review nonimmigrant visa programs and recommend other measures “appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
Business groups have said that restricting nonimmigrant visas would only further hurt the economy.
“We urge you to avoid outcomes, even for temporary periods, that restrict employment-authorization terms, conditions, or processing of L-1, H-1B, F-1, or H-4 nonimmigrants,” Compete America wrote in a May 21 letter to Trump and the relevant agency leaders that was signed by 324 employers and business groups, including some of the country’s largest companies. “Constraints on our human capital are likely to result in unintended consequences and may cause substantial economic uncertainty if we have to recalibrate our personnel based on country of birth.”
The U.S. Chamber of Commerce sent Trump a similar letter, focusing on the importance of the L-1 and H-1B visa programs. The Society for Human Resource Management (SHRM) urged the president and Congressional leaders to protect nonimmigrant visa programs. And 21 House Republicans wrote to Secretary of State Mike Pompeo and Homeland Security Acting Secretary Chad Wolf, asking them to take steps to protect the Optional Practical Training (OPT) program for foreign students.
“As countries like Canada, the United Kingdom, China and Australia bolster immigration policies to attract and retain international students, the last thing our nation should do in this area is make ourselves less competitive by weakening OPT,” the group of House Republicans wrote. “The program is essential to the many international students who desire not just to study in the U.S. but also have a post completion training experience.”
The Wall Street Journal editorial board similarly cautioned the administration against imposing additional restrictions, stating “If Mr. Trump wants high-tech jobs to stay in America, he can’t reject high-skilled workers.”
BAL Analysis: Despite strong opposition from the business community, the Trump administration continues to weigh possible restrictions to nonimmigrant visa programs as well as an extension of the 60-day suspension of entry of immigrant-visa applicants. The administration has not yet made any formal announcements or released any details on potential new restrictions. BAL continues to monitor these developments and will provide additional information as it becomes available.
The Department of Homeland Security has announced that it will extend current restrictions on nonessential travel at land ports of entry between the U.S. and Canada and the U.S. and Mexico until July 21.
Additional information: The measures were originally implemented on March 21, 2020 and have been extended in 30-day increments.
Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com
U.S. Citizenship and Immigration Services has announced that in July it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart.
The Dates for Filing chart published in the State Department’s July Visa Bulletin will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in July.
Final Action Dates for Employment-Based Preference Cases:
BAL Analysis: July will mark the fourth time this fiscal year that USCIS will use Final Action Dates for employment-based adjustment-of-status applications. The Final Action Dates chart is less progressive than the Dates for Filing chart in a number of categories. Family-based applicants must use the applicable Dates for Filing chart, except for F2A category applicants, who may use Final Action Dates.
Priority-date cutoffs will advance significantly in some employment-based categories and more modestly in others, according to the State Department’s July Visa Bulletin.
Key movements in the July Visa Bulletin:
EB-1
EB-2
EB-3
The State Department also released its Dates for Filing chart for July. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once officials confirm whether the chart can be used.
In April, President Trump issued a proclamation temporarily suspending the entry of immigrant-visa applicants for 60 days. Since U.S. consulates had already suspended routine visa operations abroad because of COVID-19, the order has had a limited impact. In addition, several categories of people are excluded from the suspension, including U.S. lawful permanent residents, spouses and unmarried children under 21 of U.S. citizens, foreign healthcare professionals performing research to combat the spread of COVID-19, those applying for EB-5 immigrant investor visas, members of the U.S. Armed Forces and those who would further U.S. law enforcement objectives or whose entry is in the national interest.
Immigration and Customs Enforcement (ICE) announced today that it is extending flexible measures regarding Form I-9 employment eligibility verification that were scheduled to expire June 19.
Background: ICE issued the original guidance March 20 for 60 days, and extended it for an additional 30 days before the current extension. The original guidance, including eligibility requirements, how to fill out Form I-9 if conducting remote verification of documents, and protocols once normal operations resume, may be viewed here.
BAL Analysis: Employers that are operating 100% remotely because of COVID-19 may continue to benefit from the temporary measures until July 19. As offices begin to reopen, employers who are using the temporary measures should make sure they remain eligible to do so. Employers who have conducted remote verification under the temporary policy should ensure that their Form I-9 procedures are compliant with all requirements in the guidance when normal operations resume, including following up with in-person verification of the documents within three business days.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.Copyright © 2020 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.