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Priority cutoff dates for India EB-2, China EB-2 and most EB-3 categories will advance modestly next month, according to the State Department’s March Visa Bulletin.
Key movements in priority cutoff dates:
Additional notes: All EB-1 categories will remain current. All EB-2 categories other than India and China will also remain current.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for March 2017. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless USCIS confirms it via a web posting. BAL will update clients once the State Department confirms whether the chart can be used in March.
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.
IMPACT – HIGH
A three-judge panel for the Ninth Circuit court of appeals heard arguments Tuesday on the Justice Department’s request to reinstate President Donald Trump’s executive order blocking entry to the United States to nationals of seven Muslim-majority countries.
The hearing followed a district court’s ruling Friday to place the executive order on hold pending further litigation.
August Flentje, who argued on behalf of the government, said the executive order “struck a balance” in attempting to allow foreign nationals to come to the U.S. while protecting the country from threats. He said the district court’s order “upset the balance,” overriding Trump’s assessment on the level of risk posed by nationals of the seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Noah Purcell, who argued on behalf of the states of Washington and Minnesota, which initiated the legal challenge, countered that it has “always been the judiciary branch’s role” to “serve as a check on abuses by the executive branch” of government.
“That judicial role has never been more important in recent memory than it is today,” he said. “But the president is asking this court to abdicate that role here to reinstate the executive order without meaningful judicial review and to throw this country back into chaos.”
The judges on the panel were Judge Michelle Friedland, Judge Richard Clifton and Judge William Canby, Jr. The judges peppered the attorneys with questions about what evidence the government had that nationals of the seven countries pose a threat to the U.S., whether the order was motivated by anti-Muslim sentiment and the proper scope of the relief for which the states have asked, among other issues.
Friedland closed the hearing by saying the judges appreciated “the importance and the time-sensitive” nature of the case and would endeavor to issue an opinion “as soon as possible.”
BAL Analysis: The Ninth Circuit has not yet ruled on the Justice Department’s request to reinstate Trump’s travel ban. For the time being, foreign nationals should be able to enter the U.S. under the rules that were in place before the executive order was signed. Employers should note, however, that a ruling from the Ninth Circuit could be issued at any point. Employers with personnel inside the U.S. who would be subject to the travel ban should advise affected employees against travel outside the U.S. at this point. BAL is closely monitoring developments and will update clients on any changes.
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.
Following a court order Friday evening, the State Department’s confirmed Saturday morning that it has “reversed the provisional revocation of visas” under President Donald Trump’s Executive Order banning entry to nationals of seven countries.
Affected travelers whose visa stamps were not physically canceled may now travel if the visa is otherwise valid, according to State Department officials. U.S. consulates have resumed processing of visas for nationals affected by the ban. U.S. Customs and Border Protection also confirmed late Friday night that they will allow travelers with valid visas to enter the U.S.
BAL Analysis: At this time, travelers may return to the U.S. if their physical visa stamp has not been canceled. Employers with personnel subject to the ban should be aware that the White House is seeking an emergency stay of the court ruling and the travel ban could be reinstated at any time without notice. BAL is closely monitoring developments and will further update clients on any changes.
A federal judge in Seattle has issued a temporary restraining order that blocks the government from suspending the entry of nationals from designated countries of concern under President Donald Trump’s Jan. 27 Executive Order.
The states of Minnesota and Washington brought the lawsuit seeking an immediate halt to enforcement of the Executive Order until the court can hear arguments on a preliminary injunction.
The White House has indicated that it will seek a stay of the court order. The government has not yet stated whether it will reinstate nonimmigrant visas that were canceled in connection with the Executive Order or whether it will issue new visas to those individuals.
Background: President Trump issued the Executive Order Jan. 27, suspending entry to the U.S. for nationals of seven majority-Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order took effect immediately and has stranded tens of thousands of travelers abroad and at U.S. ports of entry. Several federal courts around the country have issued emergency stays. The current court order operates nationwide and expressly prohibits enforcement of certain sections of the Executive Order at all U.S. borders and ports of entry pending further orders from the court.
BAL Analysis: BAL is reviewing the decision and carefully monitoring the government’s reaction, and will continue to provide updates on relevant developments.
The U.S. Labor Department has posted current processing times as of Jan. 31 for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM processing: Applications filed in December and earlier are currently being adjudicated, according to the Labor Department. Audit reviews are being conducted on applications filed in June and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in January:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in October and earlier for H-1B cases and PERM cases. Redeterminations are being considered on appeals filed in November and earlier for H-1B cases and PERM cases. Center Director Reviews are being conducted on appeals filed in November for H-1B and PERM cases.
Average time for issuance of prevailing wage determinations in January:
The Labor Department reports PERM and prevailing wage determination processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is essentially consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in late November 2016 or earlier and is awaiting prevailing wage determinations for requests filed in October 2016.
U.S. Customs and Border Protection has said foreign nationals traveling to the United States will be “treated according to the travel document they present,” a change that could make coming to the U.S. significantly easier for dual nationals covered by President Donald Trump’s temporary travel ban.
Trump signed an Executive Order last Friday suspending entry to the U.S. for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days.
In a question-and-answer section on its website, CBP stated that while the order does apply to dual nationals, travelers “are being treated according to the travel document they present.”
This means that people who are nationals of one of the seven countries and another country should be admitted to the U.S. if they present a passport for a country that is not covered by the order. “For example, if they present a Canadian passport, that is how they are processed for entry,” CBP’s website says.
This development marks the second time in just five days that the government has issued guidance to reduce the number of travelers subject to the order. The Department of Homeland Security said Sunday night that it would deem lawful permanent residents, i.e., green card holders, “to be in the national interest” and that “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”
The administration faced legal action almost immediately after the Executive Order was implemented. A federal judge in New York issued an emergency stay blocking portions of the order Saturday. Judges in several other courts have since issued injunctions as well. CBP says the government “immediately began taking steps to comply with the orders and did so with professionalism.”
BAL Analysis: The recently announced exception could make travel to the U.S. easier for dual nationals. Those affected by the order who have a passport from a country that is not listed should make sure that their passport is current.
Due to the speed of developments, nationals of the designated countries, including dual nationals or people who have traveled to those countries, should continue to consult with BAL before departing or returning to the U.S.
Lawful permanent residents and individuals who travel pursuant to a passport or other travel document from a country other than one of the seven designated countries of concern should be allowed to enter the U.S.
President Donald Trump is expected to sign an Executive Order on high-skilled workers and foreign students in a matter of days.
Unlike the Executive Order signed Friday that imposed an immediate travel ban on nationals from seven countries of concern, this order will not immediately suspend or terminate any individual’s work authorization or visa status. Instead, it is expected that the order will put in motion changes to the work and student visa categories that will unfold over the weeks and months ahead.
The text of the final order is not yet available, but after reviewing a draft version and through conversations with government officials, BAL expects that the order will direct the relevant government agencies to:
BAL Analysis: For additional information on each of these proposals and their impact, please read a two-page analysis BAL has prepared on the Executive Order. The final text of any Executive Order will not be made available until after the president signs it. The information above is advisory in nature and will be updated once BAL reviews the final version.
On Friday, Jan. 27, President Donald Trump signed an Executive Order suspending nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen from entry to the U.S. The Executive Order took immediate effect, stranding thousands of foreign nationals outside of the U.S. Throughout the weekend, multiple federal courts issued temporary stays blocking parts of the Executive Order. On Sunday night, the Secretary of Homeland Security issued a statement saying that the Department of Homeland Security will deem the entry of all lawful permanent residents (i.e., green card holders) to be in the national interest and will not suspend their entry into the U.S. solely on the basis that they are from a designated country.
Federal Court Litigation
Less than 24 hours after President Trump signed the Executive Order, a federal judge in New York issued an emergency stay blocking the Executive Order. Over the weekend, several other district courts issued stays, which largely mirrored the New York order.
In New York, the American Civil Liberties Union sued on behalf of two Iraqi citizens who were detained at John F. Kennedy International Airport, and asked the court to immediately block the Executive Order. U.S. District Court Judge Ann Donnelly ruled that the plaintiffs met the requirements to put a hold on the Executive Order, including the likelihood of success in proving that the Executive Order violates due process and equal protection. The court’s order enjoins DHS and U.S. Customs and Border Protection from detaining or removing nationals of the seven countries on the basis of the Executive Order.
“There is imminent danger that … there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order,” Donnelly wrote in a 3-page order.
Department of Homeland Security Position
Hours after the New York court issued the stay, DHS issued a statement that said “President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety.” Later in the statement, DHS indicated that it “will comply with judicial orders; faithfully enforce our immigration laws, and implement the president’s Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people.”
On Sunday night, the Secretary of Homeland Security issued a statement that said: “In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.” He added that “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”
Based on this statement, lawful permanent residents who are from designated countries should expect additional screening at time of entry, but DHS will deem their entry to be in the national interest and will not suspend their entry into the U.S. solely on the basis that they are from a designated country.
Increased Scrutiny Based on Travel to Designated Countries
On Sunday morning, White House Chief of Staff Reince Priebus was questioned on NBC’s Meet the Press about the scope of the Executive Order and how it was implemented. Priebus stated that “the executive order doesn’t affect green card holders moving forward,” but then went on to say that people who have “traveled back and forth” to those countries, including U.S. citizens, will be subject to additional screening upon their return to the U.S.
BAL Analysis: Due to the ongoing uncertainty surrounding the scope of the Executive Order, and the speed at which developments are occurring, nationals (including dual-nationals) of the designated countries, or people who have traveled to those countries, should consult with their BAL professional before departing the U.S. or seeking to return to the U.S. Lawful permanent residents from designated countries should be allowed to enter the U.S., but should plan on additional screening and delays at time of entry. This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
The executive order, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,”prevents nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for a period of 90 days.
Who is Affected
The ban applies to immigrants and nonimmigrants, including those who have dual citizenship. The ban does not apply to U.S. citizens. If one of the countries of interest considers a person to be a national of that country, it is expected that the U.S. will suspend the entry of that person.
The text of the Executive Order does not suspend the entry of an individual who has traveled to one of the designated countries but is not a national of one of the countries. However, foreign nationals who fall into that category should exercise caution and should consult with counsel before departing from or to the U.S. to evaluate potential risks and liabilities.
The Executive Order provides that other countries may be added to the travel ban in the future.
Duration of Travel Ban
The ban will remain in effect for 90 days from today. A draft version of the Executive Order had called for a 30-day ban, but the duration was extended to 90 days in the final version. It is unclear whether or for how long the entry ban will continue after that period of time.
Exemptions to Travel Ban
The Executive Order provides that the Secretary of Homeland Security and Secretary of State may, on a case case-by by-case basis and when in the national interest, issue visas or other immigrant benefits to nationals of the countries of concern. The order does not say how an individual may apply for an exception or what the standards will be for an exception.
President Donald Trump is expected to sign an Executive Order that will immediately suspend the current Visa Interview Waiver Program (IWP), which will likely cause delays for current nonimmigrant visa holders seeking to renew their visas.
The Department of State currently waives the visa interview process for certain nonimmigrants who are applying for a visa renewal and who have already submitted required biometric information in connection with their prior visa application. These applicants may use a “drop box” at the consulate and are not required to complete an in-person interview.
It is important to note that this Executive Order does not affect the Visa Waiver Program (VWP), which permits citizens of 38 countries to travel to the United States for business or tourism for up to 90 days without having to obtain a visa.
BAL Analysis: Suspending the IWP will require more visa applicants to appear for in-person interviews at the consulate in their home country, and will likely lead to delays in scheduling interview appointments. Applicants who now must complete an interview may need to allow for several weeks of additional time to obtain an interview appointment. BAL is continuing to monitor developments associated with the expected Executive Order.