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As previously announced, temporary protected status for Nicaraguan nationals will be terminated Jan. 5, 2019, and temporary protected status for Honduran nationals will be automatically extended for six months through July 5, 2018. The reregistration period was announced for both countries in the Federal Register.
Key dates:
BAL Analysis: Nicaraguan and Honduran TPS beneficiaries are encouraged to file as soon as possible and not wait until the end of the reregistration period. DHS has advised Nicaraguan nationals to explore other visa categories for which they may qualify before the designation expires, or plan to leave the country by Jan. 5, 2019. Employers should be aware of the automatic extensions of employment authorization documents for Nicaraguan and Honduran TPS holders.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2017 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 January it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s January Visa Bulletin will not apply. Employment-based immigrants must follow the Application 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 January.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the January Visa Bulletin.
BAL Analysis: This will affect Chinese and Indian nationals in the second and third preference categories, and Philippine nationals in third preference category. For other nationalities, the categories are current in both the Final Action and Dates for Filing charts for employment-based first, second and third preferences.
The Department of Homeland Security has announced that it will review countries in the visa waiver program with additional screening criteria.
The following new requirements will apply to all 38 countries in the program:
Background: The visa waiver program allows nationals of participating countries, mostly in Europe, to be prescreened for an electronic system travel authorization instead of needing to apply for a visa at a U.S. consulate. The ESTA is valid for two years and allows stays of up to 90 days per visit. Visa waiver programs are reciprocal, allowing U.S. citizens to travel to those countries without a visa as well.
BAL Analysis: The visa waiver program remains available to nationals of 38 countries, but nationals from countries participating in the visa waiver program should be aware that the program is being scrutinized and could lead to changes as DHS reviews each country.
The Department of Homeland Security announced Thursday that it is taking steps to implement the International Entrepreneur Rule to comply with a court order. However, the agency simultaneously announced that it is in the final stages of drafting a notice of proposed rulemaking to repeal the rule.
Proposing and finalizing a regulation revoking the Entrepreneur Rule will likely take several months.
Key points:
Background: The International Entrepreneur Rule was promulgated Jan. 17, 2017 in the final days of the Obama administration and was scheduled to take effect July 17, 2017. The rule allows foreign nationals to apply for a form of temporary stay (parole) in the U.S. in order to establish and grow a business. Before the rule went into effect, the Trump administration issued a rule delaying implementation until March 2018, and in November it took steps to repeal the rule. Several individuals and companies sued, and on a court ruled Dec. 1 that the delaying rule had not been put through proper rulemaking procedures, such as a public notice and comment period. The court vacated the agency’s rule that delayed implementation of the Entrepreneur Rule.
BAL Analysis: The grant of parole is a discretionary decision by DHS. A grant of parole under the Entrepreneur Rule would be valid for 2½ years initially, with the possibility of renewal for an additional 2½ years. Individuals and entities seeking to apply under the Entrepreneur Rule should be aware that the agency is proposing to remove the rule via procedures that would take at least several months. Even if parole is granted under the rule, the discretionary nature of this form of relief means that the government may revoke a grant of parole upon a determination that it no longer provides a significant public benefit. BAL will monitor both the agency’s implementation of the rule and the regulatory process, and will provide updates as more information becomes available.
The Department of Homeland Security’s semi-annual regulatory agenda indicates the Trump administration will pursue plans to terminate work authorization for spouses of H-1B holders, overhaul the H-1B annual allotment process, revise H-1B eligibility and wage protections, and update the F-1 Optional Practical Training (OPT) program.
Notably, DHS signaled that the changes to the H-1B and F-1 OPT programs will be accomplished through notice and comment rulemaking in the federal register. That means the policy changes will not become effective immediately and companies and other affected parties will have the opportunity to submit comments to the government.
BAL Analysis: The DHS regulatory agenda seeks to roll back a number of remaining Obama-era immigration regulations and further tighten non-immigrant categories, in particular H-4, H-1B and F-1 student OPT. Because the notice and comment rulemaking process often takes six months or longer, it is not clear that the administration will have time to make substantial changes to the H-1B filing or allocation process before the FY2019 cap season begins on April 1, 2018. But because adjudication of those petitions will take months, companies could see new eligibility standards applied to next year’s H-1B cap filings. Employers are encouraged to work with BAL to plan for these changes, as well as to participate in the public comment period to help influence the direction of any new regulations. BAL will continue to provide clients with information on these and other regulatory changes as it becomes available.
Priority cutoff dates will advance modestly across EB-2 and EB-3 categories, according to the January Visa Bulletin.
Key movements in cutoff dates:
Additional notes: All EB-1 categories will remain current, as will all EB-2 categories other than China and India. The EB-3 categories for El Salvador, Guatemala and Honduras, Mexico and All Other Chargeability Areas will also remain current.
The State Department also released its Dates for Filing chart for January 2018. Applicants seeking to file for adjustment of status are reminded that the Dates for Filing 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 the State Department confirms whether the chart can be used in January.
The Department of Homeland Security is currently reviewing whether to extend a grace period given to some states to comply with the REAL ID Act. The Act requires that state-issued forms of identification, such as driver’s licenses, comply with criteria in the REAL ID Act.
Background: The REAL ID Act, which was passed by Congress and signed by President George W. Bush in 2005, requires states to issue driver’s licenses that contain a machine-readable data chip or magnetic strip. To date, 27 states are compliant under the Act.
BAL Analysis: Affected travelers should check the DHS REAL ID Act webpage for information before Jan. 22 to determine if they will need to use other accepted IDs for air travel.
Marijuana may be gaining recognition as a less dangerous drug—but in the immigration context, it’s still toxic.
A majority of states have now decriminalized the drug, making it legal to use small amounts for medical or recreational purposes. California, Maine, Massachusetts and Nevada voted in 2016 to legalize recreational marijuana use, joining Alaska, Colorado, Oregon, Washington state and Washington, D.C. In addition, Arkansas, Florida, Montana and North Dakota enacted medical marijuana laws in 2016, joining more than a dozen states that have decriminalized the use of marijuana to treat certain medical conditions.
While these state legalization laws may give foreign nationals a sense that drug activity in those states is also noncriminal for immigration purposes, the reality is that under federal law, marijuana remains an illegal substance that is subject to criminal prosecution and penalties. The conflict between state and federal laws can pose special risks and serious repercussions for foreign nationals applying for visas, permanent residency or other immigration benefits.
Foreign nationals should be aware of the consequences of admitting to drug activity and be prepared if border or immigration officers—including USCIS officers at now-mandatory green card interviews—ask questions about past or current drug use or activity.
How does immigration law treat marijuana? The federal Controlled Substances Act classifies marijuana as a Schedule I drug with high potential for abuse and no accepted medical use. Under immigration law, a violation of a controlled substance law (domestic or foreign) may result in a finding of inadmissibility which would impact foreign nationals’ ability to obtain a visa, apply for a green card, convert from one immigration status to another, and subject them to deportation. In the worst-case scenario, someone who has been convicted of a drug offense, or who admits to a violation of a drug law, may be deemed permanently inadmissible.
There is an exception for violations involving 30 grams or less of marijuana. There are also limited exceptions for individuals entering on nonimmigrant visas for drug violations that involve other types of drugs and quantities. A waiver, however, is not available if an individual is found to be a drug abuser or addict.
If I haven’t been convicted of a drug crime, can I still be found inadmissible? While a conviction will almost certainly trigger inadmissibility concerns, foreign nationals should be aware that a conviction is not required for a finding of ineligibility under immigration law. Anyone who admits to having violated a drug law, or admits to the essential elements of a crime, may be found inadmissible even if there have been no charges or convictions.
Is the Trump administration increasing scrutiny of drug crimes? Attorney General Jeff Sessions recently reiterated his opposition to marijuana legalization, claiming that it has contributed to the opioid crisis that President Trump declared to be a national public health emergency in November.
A recent change to the green card application process in June 2017 broadened questions about controlled substances to include whether the applicant has “ever violated (or attempted or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country.” Responses to the revised questions allow USCIS officers to gather more information on applicants and potentially follow up on them during green card interviews. The reference to a state, the U.S., or a foreign country suggests that USCIS may start asking more questions that could lead to an admission by individuals using marijuana legally under state law.
Federal law also authorizes immigration officers to bar individuals whom they have “reason to believe” have engaged in trafficking-related activity. This includes possession of certain amounts of a controlled substance or involvement with a state-approved cannabis business or dispensary, under certain circumstances.
I have a DUI citation—will this impact my application? Individuals who have a DUI citation on their records should be prepared for questions related to whether drugs other than alcohol were involved. State-issued medical marijuana card are also likely to trigger questions about drug use that could lead to a finding of inadmissibility and potential entry bans.
BAL Analysis: A finding of drug-related activity—even without a conviction or when conduct is legal under state law—can carry significant risks for those applying for immigration benefits, and the patchwork of laws can be confusing. Applicants should seek qualified legal counsel for further information and advice on the potential immigration consequences of marijuana use.
Congress passed a two-week temporary spending measure late Thursday, avoiding a shutdown of the federal government, but leaving several significant budget differences to be negotiated by Dec. 22.
The measure passed both the House and Senate, and President Trump said he will sign it. The resolution will keep the government funded at present levels through Dec. 22. While the bill averts a shutdown for now, Republicans and Democrats may find themselves facing a shutdown again in two weeks if they cannot come to terms on spending priorities. In the event of a shutdown, many government functions, including certain functions related to immigration, would be suspended.
The stopgap measure extends four immigration programs that would have sunset today at midnight: E-Verify, the EB-5 Immigrant Investor program, the Special Immigrant Religious Worker program and the Conrad 30 Waiver program for foreign doctors.
BAL Analysis: Congressional approval of the stopgap spending measure eliminates the possibility of a government shutdown for the time being. However, this short-term extension only postpones a difficult budget fight at the end of the year.
IMPACT – HIGH
On Dec. 6, President Trump announced that the United States will recognize Jerusalem as the capital of Israel and move the U.S. Embassy from Tel Aviv to Jerusalem. The State Department issued a worldwide travel alert on Dec. 6 adding information about the threat of violence against U.S. citizens traveling abroad. Trump later signed a waiver to delay the move of the embassy by six months.
In the past two days, several major news outlets have reported protests in Israel, Palestine, Malaysia, Indonesia, Syria, Iran, and the U.S. The United Nations Security Council held a special meeting on the Middle East on Dec. 8, following statements made to the press by UN Secretary-General Antonio Guterres in which he stressed the importance of the two-state solution and said that Jerusalem was an issue that must be resolved through direct negotiations between the parties.
Background: The status of Jerusalem is one of the central issues in the Israeli-Palestinian conflict, with both sides making claims to the historic city. The decision reverses decades of U.S. policy that the status of Jerusalem will be part of a negotiated two-state solution. Since 2006, no country has located its embassy in Jerusalem; 80 countries currently have their embassies in Tel Aviv. The U.S. and other countries do, however, maintain consulates in Jerusalem.
BAL Analysis: Employers should stay aware of the global protests and potential for violence since President Trump’s statement of Dec. 6. BAL encourages employers to relay safety concerns in the travel alert to U.S. citizens traveling abroad as well as to employees traveling to or located in areas of protest.