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The Trump administration has reached a preliminary agreement in renegotiating the North American Free Trade Agreement (NAFTA), which will be renamed the United States-Mexico-Canada Agreement. A draft of the preliminary agreement has been posted on the Office of the U.S. Trade Representative website.
The mobility provisions that provide for temporary entry of business people in this draft remain largely the same as under NAFTA.
Key mobility provisions:
Background: President Trump originally promised to tear up NAFTA, but agreed to renegotiate its terms last year. Last month, the U.S. and Mexico announced that they had reached a tentative deal, but talks between the U.S. and Canada stalled in recent weeks over trade issues, particularly involving U.S. auto and dairy exports to Canada. The preliminary agreement does not address the administration’s steel and aluminum tariffs on Canada and Mexico or their retaliatory tariffs.
BAL Analysis: If ratified, the preliminary U.S.-Mexico-Canada Agreement indicates that designated professionals listed under the agreement will likely continue to be eligible for expedited mobility across North American borders on the same terms as NAFTA, including TN visas to the U.S. However, it is unclear how much support the administration has in Congress for the trade provisions, and ratification of the deal could face obstacles. Congress will not vote on the trade pact until 2019, and the mid-term elections next month could change the composition of Congress, potentially making passage more difficult. BAL is following these negotiations and will continue to update clients on any significant immigration developments. Because the NAFTA immigration provisions have been made part of immigration law and regulations, they would likely remain in place until the law and/or regulations are changed, even if the trade accord is terminated.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 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.
IMPACT – MEDIUM
What is the change? The Swiss Cabinet has agreed to raise the quota on work permits for non-EU/EFTA nationals by 500 permits to a total of 8,500 in 2019.
What does the change mean? The increase primarily affects long-term B permits for non-EU/EFTA nationals, which will increase from 3,500 in 2018 to 4,500 in 2019, while the shorter-term L permits will be reduced from 4,500 to 4,000. Quotas on work permits for EU/EFTA nationals will remain the same as 2018 (500 B permits, 3,000 L permits).
Background: Swiss voters called for curbs on immigration in a 2014 referendum, leading the federal government to lower quotas for B permits that are valid for five years, and L permits that are valid for up to one year. Since then, business leaders and cantonal governments, especially Basil, Geneva and Zurich, pushed for the quotas to be raised and warned of skills shortages. The 2019 quotas represent a return to the pre-referendum levels.
Analysis & Comments: The increase in permit numbers in 2019 should help address the pressure on quotas and oversubscription that has occurred in recent years.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
Last week, the Department of Homeland Security published on its website a draft Notice of Proposed Rulemaking titled “Inadmissibility on Public Charge Grounds.” The proposal defines “public charge” for purposes of a provision in the Immigration and Nationality Act that makes applicants ineligible for a visa or green card if they are likely to become dependent on government assistance. The proposal would broaden the types of public benefits DHS may consider in determining whether an applicant is likely to become a public charge.
BAL has produced a FAQ that answers questions regarding this proposed regulation. Read the FAQ here.
Congress has passed a spending measure that will fund the government through Dec. 7. President Donald Trump said he will sign the bill to keep the government open, but has also threatened to veto it because it does not include funding for a wall on the US-Mexico border. Funding of the federal government is set to expire Oct.1.
Key points:
BAL Analysis: The spending bill, if signed by the president, would avert a shutdown for now, but a budget fight—including potential funding for Trump’s border wall—would resume at the end of the year.
U.S. Citizenship and Immigration Services (USCIS) announced today that the agency will begin implementing its policy on the issuance of ‘Notices to Appear’ in cases involving inadmissible and deportable foreign nationals on Oct. 1, and will take an “incremental approach” to its implementation.
The policy memo was issued June 28 and establishes when a Notice to Appear, or NTA, will be issued to individuals whose petition or application with USCIS is denied. The NTA is a document USCIS issues as the first step in deportation proceedings that instructs the recipient to appear before an immigration judge. USCIS announced the new policy in July but then delayed its implementation.
Additional information on the teleconference is available on the Upcoming National Engagements page. USCIS will provide updates and information on the implementation of this policy memo on its new Notice to Appear Policy Memorandum page.
BAL Analysis: BAL is closely monitoring the implementation of this policy and will provide additional analysis following tomorrow’s teleconference.
The Department of Homeland Security released a draft regulation Saturday that establishes the standards the agency will use to apply the “public charge” ground of inadmissibility. The proposal defines public benefits that, when used, could make immigrants ineligible for a visa or a permanent resident card (green card). The draft regulation also proposes a new, complex calculation that includes factors used for determining whether applicants are likely to become a public charge and gives adjudicators greater discretion in making that determination.
The full proposed rule as published on the DHS website may be viewed here.
BAL Analysis: The proposed regulation has not yet been published in the Federal Register. There will be no change in law until a final regulation becomes effective, which will not happen for at least four months. Once DHS publishes the proposed rule—which is expected in the coming days or weeks—a 60-day period will follow during which businesses and individuals are encouraged to submit their comments to the government. The agency is then required to review all comments before publishing a final regulation. The final regulation will likely take effect 60 days after it is published. The complicated, novel, and controversial nature of some of these provisions make a court challenge likely if this moves to a final rule. BAL is continuing to review the proposal and will provide additional guidance regarding its potential impact.
U.S. Citizenship and Immigration Services has announced that in October it will follow the State Department’s Dates for Filing chart, as published in the October Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
The Dates for Filing chart contains more progressive cutoff dates that will allow many applicants to file for adjustment of status significantly earlier than the Final Action Dates that normally control filing eligibility. For example, the EB-1 category for all countries except China and India has a Dates for Filing priority-date cutoff of June 1, 2018 compared to April 1, 2017 under the Final Action Dates chart. Applicants with priority dates earlier than the dates listed in the chart below will be permitted to file their applications for adjustment of status in October.
Dates for Filing for Employment-Based Preference Cases:
Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the October Visa Bulletin.
BAL Analysis: Adjustment-of-status applicants who are eligible to file in October should prepare to file as soon as possible. USCIS’ adoption of the Dates for Filing chart in October is positive news for many employment-based immigrants who would otherwise not be eligible to file, in particular EB-1 executives who have recently experienced backlogs due to high demand.
Priority-date cutoffs for most employment-based categories based on Final Action Dates will advance significantly in October, the beginning of fiscal year 2019, according to the State Department’s October 2018 Visa Bulletin released Wednesday. All EB-2 categories, except China and India, will become current, and all EB-3 categories except China, India and the Philippines will also become current.
Key movements:
EB-1
EB-2
EB-3
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor program are scheduled to expire at midnight on Sept. 29 unless legislative action is taken to extend them.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for October. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services (USCIS) confirms that it does via a web posting in the coming days. BAL will update clients once the State Department confirms whether the chart can be used in October. In September, USCIS used the Final Action Dates for Employment-Based cases, and is likely to use that chart for the October numbers as well.
BAL Analysis: As predicted in September’s visa bulletin, all EB-1 countries will continue to have cutoff dates imposed in October, and, according to Charlie Oppenheim, chief of the Visa Control and Reporting Division at the State Department, it is unlikely that any of the EB-1 categories will see forward movement before December or possibly into the second quarter of fiscal 2019. The EB-2 China is expected to move slowly through the first quarter of the year and EB-2 is expected to advance by about two weeks each month. EB-2 Worldwide is expected to remain current for the foreseeable future. EB-3 China is expected to advance by three weeks at a time, and EB-3 India is predicted to move slowly in coming months in light of the rapid progression in October.
The Labor Department has posted processing times current as of Aug. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM processing: Applications filed in July and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in February and earlier, and appeals filed in July and earlier are being reviewed for reconsideration.
Average PERM processing times in August:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in June and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in July and earlier for PERM cases. Center director reviews are being conducted on appeals filed in July and earlier for PERM cases. The department reported that it had no redeterminations or center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in August:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in July and is awaiting PWDs for requests filed in June and earlier.
Copyright © 2018 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.
The government’s recent decision to suspend premium processing for H-1B cap petitions until February—effectively spelling the end to expedited service for most H-1B cases for the rest of this year and part of next—is more than a small processing tweak. It will exact a substantial toll on businesses and their employees by removing their ability to control an important tool for business planning: the timeline.
Not only will the current suspension on premium processing continue for H-1B cap petitions filed in April, but beginning Sept. 11, the suspension will be expanded to cover all H-1B cases, with only very limited exceptions. The suspension is expected to last until Feb. 19, 2019, and applies to all new H-1B cap-subject petitions as well as H-1B extensions involving a change of employer, or change of job terms or location with the same employer.
Premium processing is a widely used service that allows employers to pay an extra fee to guarantee a response from USCIS within 15 days. Without premium processing, an open-ended timeline creates instability for businesses and their employees. Employers who are understaffed and need to sponsor foreign nationals to fill those jobs may need to wait eight to 10 months for a decision and can no longer pay an extra service fee (currently $1,225) to ensure faster processing. The fee will increase to $1,410 in October, but for the next five months there will be no amount of money an employer can pay to hold USCIS adjudicators to a reasonable and predictable processing time frame in order to keep hiring on track and get a much-needed H-1B employee to start work.
The elimination of premium processing also creates anxiety and uncertainty for H-1B employees. The policy potentially boxes them into their current employment and inhibits their job mobility and ability to travel. Employees are less likely to switch to a better job before having an H-1B approval in hand and employers are unlikely to be able to wait months and months to hire or change the major duties or worksite of an H-1B employee. Many F-1 students on OPT cap-gap employment authorization will not receive a decision on their H-1B petition by Sept. 30, will lose work authorization on that date and will need to stop working until their petition is approved. Workers already in H-1B status who have filed for an H-1B extension may continue to work for the same employer on the basis of the petition, but only for 240 days, and they should not travel abroad while their extension petition is pending, potentially interfering with business and holiday travel.
It is hoped that the government’s stated reasons for the suspension of premium processing—to reduce backlogs and prioritize long-pending cases—prove true. In the meantime, employers and employees will need to work closely with their immigration advisors and plan carefully during this period of uncertainty to minimize disruption to business and to their employees’ careers.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.