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New Zealand nationals will become eligible for E-1 Treaty Trader and E-2 Treaty Investor visas on June 10.
Key Points:
Background: New Zealand was added to the U.S.’s list of treaty countries under the “Knowledgeable Innovators and Worthy Investors” (KIWI) Act, which President Donald Trump signed last fall. The U.S. Embassy in New Zealand announced this week that the visas would become available to eligible New Zealanders beginning June 10.
BAL Analysis: The addition of New Zealanders to the list of nationals who are eligible for E-1 and E-2 visas is intended to enhance business, trade and investment between the U.S. and New Zealand. While a nationality’s eligibility for E status was traditionally based on bilateral treaties, the new trend is to allow countries access to this status based on special legislation rather than a treaty.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 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.
The U.S. House of Representatives passed the American Dream and Promise Act of 2019 Tuesday, voting 237 to 187 to provide a path to citizenship for roughly 2.5 million immigrants who came to the U.S. as children or hold Temporary Protected Status. While similar legislation has been introduced in the Senate, it has not been voted on in committee and is not expected to pass in the upper chamber. The White House has indicated that President Donald Trump will veto the legislation if it reaches his desk.
Background: The status of DACA recipients and TPS and DED holders has been in limbo after the Trump administration moved to end the DACA program, terminated TPS designations for six countries and announced the end of DED for Liberians. Federal courts enjoined the administration from ending DACA and the TPS designations until lawsuits challenging Trump’s actions are decided. The administration also extended the “wind down” period for DED for Liberians amid ongoing litigation. The Supreme Court on Monday rejected a Trump administration request to expedite review of the DACA rescission cases, meaning the court is unlikely to consider the issue until its next term, which begins in October. The House’s vote Tuesday came after the bill passed out of committee last month.
BAL Analysis: While the Dream and Promise Act shows promising signs of a possible legislative relief for DACA recipients and TPS and DED holders, the bill is likely to face opposition in the Senate. Tuesday’s House vote does not change the status quo for DACA recipients or TPS or DED holders. The administration’s plans to end DACA and cancel TPS and DED designations remain on hold pending the outcome of litigation challenging the administration’s actions. BAL will continue to provide updates on the progress of this bill.
U.S. Immigration and Customs Enforcement has announced that it will increase fees for F and M international students, J exchange visitors and for schools seeking Student and Exchange Visitor Program (SEVP) certification.
The following fees will take effect June 24.
ICE will also institute new fees beginning June 24, including:
ICE also said that the Department of Homeland Security will keep its $655 fee for an initial school site visit and will extend the fee to cases where an SEVP-certified school changes its physical location or adds a new physical location or campus to a Form I-17, “Petition for Approval of School for Attendance by Nonimmigrant Student.
The agency said the fee increases and new fees will help the agency cover the “current and projected costs to fund SEVP operations, including the maintenance of technological systems, the employment of operational staff and ongoing program enhancements.” The full rule can be read in the Federal Register here.
BAL Analysis: Schools and international students may need to adjust their budgets to meet the June 24 fee increases.
U.S. Citizenship and Immigration Services (USCIS) said today that beginning Aug. 5, it will reject any Form I-129, Petition for a Nonimmigrant Worker that does not include the applicant or petitioner’s name and primary U.S. office address in Part 1 of the form.
The agency said the failure to include the right name and address on the correct part of the form leads to “unnecessary delays in the adjudication of Form I-129 and may result in its rejection.” USCIS specified that applicants and petitioners must not use the address of their outside counsel or clients instead of their own office address.
Federal regulations allow USCIS to reject any benefit request that is not filled out correctly. USCIS currently rejects forms that have the incorrect fees, lack a signature or have a signature by an unauthorized third party.
BAL Analysis: Employers are encouraged to work with BAL to ensure that all Form I-129 petitions are filled out and filed properly. Failure to do so may result in unnecessary delays or rejection.
The Department of Homeland Security (DHS) has asked the Office of Management and Budget (OMB) to review a plan to charge a fee for H-1B registrations, completing the first step in the federal rulemaking process.
DHS plans to implement a mandatory online registration system for cap-subject H-1B petitions next year. The agency announced its intent to include a new fee as part of the registration system when the government published its semi-annual regulatory agenda last week.
DHS has not yet indicated what the fee will be. OMB now has 90 days to review the proposed regulation. It will then be published in the Federal Register, and the public will be invited to submit comments.
BAL Analysis: Both the new registration system and the fee are expected to be in place before the beginning of the FY 2021 cap season. BAL will continue following the proposed fee as it moves through the rulemaking process and will provide additional information as it becomes available.
The U.S. State Department has recently added new questions to its online visa application form (Form DS-160) that require applicants to disclose their social media history. Applicants must provide information on all social media platforms they have used within the last five years, including all usernames or handles used on each platform.
Applicants must select social media platforms they have used from a drop-down list of 20 global platforms and then provide the username, screen name, handle or other identifiers used for each platform. Applicants who have not used any of the listed social media platforms must actively select “None” from the drop-down menu.
Passwords for personal accounts are not requested and should not be provided, and applicants do not need to list social media accounts designed for a business or organization.
BAL Analysis: Visa applicants should be aware of the new questions and that the State Department, U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection may be viewing their social media history and activity. While use of a particular social media platform alone is unlikely to trigger a visa denial or border stop, applicants’ online profiles and any information publicly available on their accounts, including employment details, could provide grounds for further questioning. Visa applicants should make sure their social media settings and profiles are up to date and be prepared to answer any questions regarding public information available on their social media accounts at their visa interview. Travelers entering the U.S. on a valid visa for business or employment should be sure that their online profiles are up to date and consistent with their intended purpose of travel and terms of their visa.
The Department of Homeland Security has formally published an announcement of its extension of Temporary Protected Status (TPS) for Honduras and Nepal in response to a court order. The announcement contains important information about the validity periods of employment authorization documents, or EADs, for employers who are reviewing documentation during the Form I-9 employment eligibility verification process.
Key points:
Background: The Trump administration moved to terminate TPS for six countries—El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal. A federal court in California temporarily blocked DHS from terminating the program, and DHS complied with the court order by extending TPS, but that lawsuit and court order only addressed the first four countries. A subsequent lawsuit challenged termination of TPS for Honduras and Nepal. DHS agreed to temporarily suspend its termination of TPS for the remaining two countries, while it appeals the California court’s ruling.
BAL Analysis: Employers conducting I-9 employment eligibility verification document checks should consult the Federal Register notice to determine which EADs are automatically extended for Honduran and Nepalese TPS beneficiaries, as well as how E-Verify and SAVE procedures are affected. Individuals presenting TPS-related EADs during the I-9 process must also present to their employer a copy of the Federal Register notice along with the relevant EAD and other required documents.
U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna has resigned and will leave the agency June 1. The move is the latest in a purge of top Department of Homeland Security officials that began last month with the resignation of DHS secretary Kirstjen Nielsen and withdrawal of the nomination of Ron Vitiello for director of Immigration and Customs Enforcement.
President Donald Trump has said he plans to take the agency in a “tougher direction.” An agency within DHS, USCIS oversees the legal immigration system and is responsible for adjudicating petitions and applications for employment- and family-based immigration benefits, including visa categories for high-skilled workers, green cards and naturalization, and also oversees refugee and asylum applications. Cissna, a career government official whose grasp of the intricacies of the immigration system enabled him to effectuate restrictive directives of the Trump administration, was reportedly pushed out by Trump senior advisor Stephen Miller for not implementing restrictive regulations and policies quickly enough.
Trump is reportedly eyeing Ken Cuccinelli to replace Cissna. A former Virginia attorney general turned combative TV commentator, Cuccinelli is an immigration hardliner but lacks Cissna’s policy experience, and the president of the American Federation of Government Employees, which represents USCIS employees, has publicly opposed the nomination. Cuccinelli’s nomination has not been officially announced, and, if he is nominated, Senate confirmation is not assured, as some prominent Republicans, including Majority Leader Mitch McConnell (R-Ky.), have reportedly indicated they oppose the pick.
BAL Analysis: BAL is following these changes and will update clients as information becomes available.
U.S. Citizenship and Immigration Services saw an 11% increase in the number of U.S. advanced-degree holders selected in this year’s H-1B lottery, according to agency figures.
This year was the first in which the order of the regular and advanced-degree lotteries was reversed as part of the agency’s efforts to give advanced-degree holders better odds of being selected. And while the effect was not as great as USCIS initially expected (the agency initially estimated it would see an increase of up to 16%), it was nonetheless a sign that USCIS’s plan worked as intended. “We are fulfilling the President’s mandate under the Buy American and Hire American Executive Order to ensure H-1B visas are awarded through a more meritorious selection process,” USCIS said on Twitter.
Even before this year’s change, advanced-degree holders were becoming an increasingly large percentage of H-1B holders. Media outlets cited USCIS data in reporting that for fiscal year 2020 advanced-degree holders made up 63 percent of petitioners who were selected in the lottery. That compares with 56 percent of those selected in fiscal year 2019.
The reversal of the lotteries was part of the USCIS regulation titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens,” which went into effect April 1. For fiscal 2020 H-1B cap cases, USCIS only implemented the lottery reversal portion of the rule, and delayed implementation of the electronic registration component. The Department of Homeland Security’s regulatory agenda released this week indicates that the agency plans to propose charging a fee for H-1B registrations, as well as continue to make changes to eligibility and wage protection.
BAL Analysis: Advanced-degree holders have always had better odds than bachelor’s-degree holders in the H-1B lottery, but never more so than now. Employers may wish to consider this when planning for the fiscal 2021 H-1B cap season. BAL will continue to provide updates about changes to the H-1B lottery as more information about new regulations become available.
There have been several developments related to the Deferred Action for Childhood Arrivals (DACA) program in recent days, including a House bill that passed out of committee and a second appeals court ruling against the Trump administration’s method of terminating the program.
Key developments:
BAL Analysis: The Dream Act shows promising signs of a legislative solution for Dreamers, but the bill is likely to face opposition in the Senate, in part because it does not contain new immigration enforcement provisions. The current status of DACA remains unchanged. The Department of Homeland Security continues to accept renewal applications from DACA recipients in accordance with the 9th Circuit’s injunction, but it is not required to accept new DACA applications.