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President Donald Trump is expected to sign, as early as this afternoon, an Executive Order that will immediately suspend entry into the United States for nationals of certain countries of interest.
The executive order, titled “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” prevents nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for a period of 30 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 is expected to remain in effect for 30 days from the date the executive order is signed. 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 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.
BAL Analysis: Companies should identify current employees who may be subject to the travel ban and work with counsel to develop appropriate legal strategies. Travel to the U.S. could be delayed, and employees already in the U.S. should exercise extreme caution before departing the country. BAL is closely monitoring any new developments and will provide additional information as it becomes available
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.
President Donald Trump signed executive orders Wednesday that the White House said would facilitate the construction of a wall on the southern border and penalize so-called sanctuary cities, among other measures.
The first executive order, Border Security and Immigration Enforcement Improvements, establishes a policy of securing the border with Mexico “through the immediate construction of a physical wall.” The order also calls for the hiring of additional border patrol, if funding is available, and directs the Department of Homeland Security to take action to ensure that inadmissible aliens are returned to their home country pending removal proceedings.
The second order, Enhancing Public Safety in the Interior of the United States, directs the Justice Department and DHS to ensure that, to the extent allowed by the law, sanctuary cities “are not eligible to receive Federal grants,” except as deemed necessary for law enforcement purposes. The term “sanctuary cities” generally refers to cities that violate federal law by refusing to share information with federal authorities.
Numerous media outlets, including the New York Times and Washington Post, reported that Trump was also moving toward signing an executive order that would halt refugee admissions to the U.S. for 120 days and ban entry for a month to anyone arriving from “countries of particular concern.” This executive order had not yet been signed, however, and is subject to change.
BAL Analysis: Trump’s executive orders represent steps toward fulfilling promises that were at the heart of his campaign for the presidency, but a number of questions remain as to the logistics of building and funding a border wall. Attempts to strip sanctuary cities—including Chicago, Los Angeles, New York and San Francisco—of funding could set up legal and political battles between the federal government and local jurisdictions. BAL will continue to analyze these orders and will provide additional information in the coming days. An in-depth look at how Trump’s presidency could affect high-skilled immigration is available on BAL’s website.
The Dates for Filing chart, published in the State Department’s February Visa Bulletin, will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine if 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 February.
Application Final Action Dates for Employment-Based Preference Cases:
This marks the second straight month that the Dates for Filing chart will not apply to employment-based filings. Family-based immigrants, however, will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which also is contained in the February Visa Bulletin.
Donald J. Trump was sworn in Friday as the 45th president of the United States.
His inauguration followed a campaign for the office that placed immigration at the heart of the national debate. He used his inaugural address to highlight his “America first” theme on immigration and other issues.
“Every decision on trade, on taxes, on immigration, on foreign affairs will be made to benefit American workers and American families,” Trump said. “We must protect our borders from the ravages of other countries making our products, stealing our companies, and destroying our jobs.”
During his campaign, Trump promised to build a wall on the southern border, conduct “extreme vetting” of immigrants from Muslim countries, deport “criminal aliens,” and cancel former President Barack Obama’s executive actions on immigration. His rhetoric on high-skilled immigration varied, but he has said since the election that he wants the Labor Department to investigate “all abuses of visa programs that undercut the American worker.”
Whether Trump makes good on his campaign promises remains to be seen. His appointment of Alabama Senator Jeff Sessions – an advocate of reducing both legal and illegal immigration – as U.S. attorney general could be a sign of significant shifts in immigration policy. The Senate Judiciary Committee is expected to take up Sessions‘ nomination next week.
BAL Analysis: Read BAL’s in-depth analysis of what the new administration means for high-skilled immigration here.
The U.S. Labor Department has posted current processing times as of Jan. 12 for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM processing: Applications filed in October and earlier are currently being adjudicated. Audit reviews are being conducted on applications filed in May and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in December:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in September and earlier for H-1B cases and those filed in August and earlier for PERM cases. Redeterminations are being considered on appeals filed in November and earlier for H-1B cases and those filed in October or earlier for 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 December:
The Labor Department reports PERM and prevailing wage determination processing time frames 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 November 2016 or earlier and awaiting prevailing wage determinations for requests filed in October 2016.
Beginning Jan. 22, employers must use the new version of Form I-9 for checking employment eligibility of new hires and reverifying eligibility of employees with expired employment authorization.
Key points:
Background: The new version of Form I-9, released by U.S. Citizenship and Immigration Services in November, contains drop-down menus and calendars, embedded instructions at each field, and additional prompts to verify that information is filled out correctly. Among other features intended to reduce paperwork errors, the button “Click to Finish” at the end of each page prompts the form to check to ensure that all fields were filled in. The form also automatically populates certain fields based on information entered in other fields.
Employers must complete Form I-9 each time they hire a person to perform labor or services in the U.S. in return for wages or other remuneration. Though employers do not submit this form to the government, they must retain a Form I-9 for each employee for three years after the date of hire or one year after the employee’s employment ends, whichever is later. U.S. Immigration and Customs Enforcement conducts audits of employers’ Forms I-9 and if errors are found, may impose significant fines ranging from $216 to $2,156 per employee.
BAL Analysis: The new version of the Form I-9 is available on the USCIS website. Human resources personnel should make sure their companies have transitioned to the new version. In addition to being easier to fill out electronically, the new version also removes the requirement that foreign nationals who are authorized to work provide both their Form I-94 number and their foreign passport in Section 1 of the form. However, the new Form I-9 does not require that employers or employees provide any new information and does not alter the list of documents an employee may present to demonstrate work authorization.
A new regulation published by the Justice Department on the enforcement of the anti-discrimination provisions of the Immigration and Nationality Act (INA) took effect Wednesday.
The anti-discrimination provision of the INA, section 274B, was enacted in 1986 as part of the Immigration Reform and Control Act and is intended to prohibit unfair immigration-related employment practices on the basis of citizenship status and national origin. Congress created the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) within the Justice Department to investigate violations and enforce discrimination prohibitions.
The new rule simplifies definitions of ambiguous statutory terms to provide greater clarity and eliminate obscurities; updates the procedures for filing, processing, investigating, and deciding INA-based discrimination claims; and renames the OSC and grants authority to the agency to act on its own behalf in some cases.
Key changes:
BAL Analysis: The new regulation will likely increase the risk that employers will be subject to immigration-related discrimination claims and give rise to increased liability. Those with questions about the changes or how to remain in compliance should contact their BAL attorney.
The Department of Homeland Security has released the final version of the International Entrepreneur Rule, which would grant qualifying foreign entrepreneurs permission to remain temporarily in the U.S. to grow their startups. Applicants must meet minimum capital investment or government grant requirements and demonstrate that their startup will provide a significant public benefit through rapid growth and job creation.
The final rule is scheduled to be published in the Federal Register Jan. 17 and take effect 180 days thereafter.
Key criteria:
Final rule v. Proposed rule
In response to more than 750 public comments, DHS revised and relaxed several provisions from the proposed version to the final rule. Some of the key differences are summarized here:
BAL Analysis: Though the final rule is generally a broader rule than the version proposed in August, the qualifying criteria remain high. Commenters to the rule expressed concerns that it does not provide a clear path for nonimmigrants currently in the U.S. to benefit from the rule. The final rule does not explicitly state that foreign nationals currently in the U.S. in nonimmigrant status, such as F-1 students, may apply for entrepreneur-based parole without violating their status. However, the comments section states that DHS believes it is “certainly realistic” that an F-1 student in the U.S. can start a business during the Optional Practical Training period and meet requirements to apply for parole under the regulation. BAL will be reviewing the final regulation and releasing additional analysis in the coming days.
President Barack Obama announced Thursday that the United States would end its policy of providing residency to Cubans who enter the U.S. without a visa.
The end of the decades-old “wet-foot/dry foot” policy, as it was called, came about after Cuba agreed to accept Cuban nationals who have been ordered to leave the U.S.
BAL Analysis: The changes described above are consistent with Obama’s broader efforts to open up relations with Cuba. Obama leaves office a week from today, however, and President-elect Donald Trump has signaled that he will take a harder line on Cuba. BAL will continue to follow immigration-related developments in U.S.-Cuba relations and will provide updates on any significant changes.
Priority cutoff dates for India EB-2 and all EB-3 categories will advance modestly next month, according to the State Department’s February 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.
The State Department also released its Dates for Filing chart for February 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 in the next week or so. BAL will update clients once the State Department confirms whether the Dates for Filing chart can be used in February.