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The Obama administration has taken steps in recent days to re-establish diplomatic relations with Cuba and to ease travel restrictions for Americans wishing to travel to the island nation.
The actions follow the Dec. 17 announcement that the U.S. would work to normalize relations with Cuba, open an embassy in Havana and take steps toward easing travel and business restrictions on Americans..
“In Cuba, we are ending a policy that was long past its expiration date,” Obama said in his State of the Union address Jan. 20. “When what you’re doing doesn’t work for 50 years, it’s time to try something new.”
Assistant Secretary of State for Western Hemisphere Affairs Roberta S. Jacobson is currently in Cuba to discuss next steps, including embassy operations, staffing, and visa processing.
Travelers should be aware that most forms of trade with Cuba are still illegal, and general tourism is also off limits.
However, several changes took effect last week, making it easier for travelers in 12 categories to visit Cuba. The 12 categories are: family visits; government business; journalistic endeavors; professional meetings or research; educational activities; religious activities; public performances, exhibitions or competitions; support for the Cuban people; humanitarian projects; activities of private foundations and research or educational institutions; exportation or importation of information; and certain authorized export transactions. These changes were implemented Jan. 16 in published guidelines by the U.S. Treasury Department and Commerce Department.
Travel that was previously authorized only by “specific license” is now authorized by “general license,” meaning people can travel to Cuba provided they meet conditions specified in government regulations covering their type of travel. If travelers meet these conditions, they do not need to request permission to travel ahead of time.
Commercial airlines will be able to establish regular flights to Cuba. Travelers will be allowed to use credit or debit cards in Cuba and they will be permitted to import up to $400 worth of goods (including $100 of alcohol or tobacco) for personal use.
The changes announced last week also touch on business transactions with Cuban nationals, financial services and small business development, among other areas.
U.S. companies, including banks, can now provide goods and services to Cuban nationals located outside of Cuba, so long as their transactions do not involve exportation of goods or services from Cuba. In order to process authorized transactions, U.S. banks and other depositories will be able to open “correspondent accounts” with Cuban banks and other financial institutions. The regulations also allow for certain types of micro-financing projects and entrepreneurial and business training.
BAL Analysis: The Obama administration’s move toward normalizing relations with Cuba is a historic development. However, the Cuban trade embargo has not been lifted and many forms of trade and general tourism are still prohibited. Talks are underway to reestablish diplomatic relations, and new Treasury and Commerce regulations make it easier to travel to Cuba for those who fall into any of the 12 categories listed above. The regulations also expand banking and financial service opportunities and small-business development. However, people considering traveling to Cuba or doing business there should be extremely careful that their activity is legal. Contact a BAL attorney if you have any questions about what activity is – or is not – permissible.
Copyright © 2016 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.
Last week, the U.S. House of Representatives passed a Homeland Security spending bill (H.R. 240, the Department of Homeland Security Appropriations Act of 2015) that would continue to fund the department while rolling back executive actions that President Barack Obama has taken. This legislation, which passed by 236-191, is necessary because the “cromnibus” bill that passed in the last session of Congress to fund the rest of the U.S. government only funded the Department of Homeland Security through Feb. 27, 2015 in reaction to immigration executive action.
What is included in the DHS spending bill?
The bill provides $39.7 billion in funding for DHS for fiscal year 2015, which runs through Sept. 30, 2015.
The House also passed five amendments that attack parts of Obama’s executive actions. The Aderholt amendment, sponsored by Rep. Robert Aderholt, R- Ala., defunds immigration executive action by blocking all funding to carry out Obama’s most recent executive actions or to enforce the “Morton Memos,” which give Immigration and Customs Enforcement greater discretion in prioritizing which cases to enforce and prosecute. The Blackburn amendment, sponsored by Rep. Marsha Blackburn, R- Tenn., would eliminate the Deferred Action for Childhood Arrivals program by preventing funds from being used to consider any new DACA applications. The DeSantis amendment, sponsored by Rep. Ron DeSantis, R-Fla., would prohibit ICE from prioritizing the deportation of certain criminals using prosecutorial discretion. The Salmon amendment, sponsored by Rep. Matt Salmon, R-Ariz., discourages DHS from granting deferred action to undocumented immigrants because their exclusion from the Affordable Care Act could prompt employers to hire them over American workers who are entitled to health benefits. Finally, the Schock amendment, sponsored by Rep. Aaron Schock, R-Ill., urges U.S. Citizenship and Immigration Services to prioritize applications of immigrants who came to the U.S. within the existing legal framework over those who came here illegally.
What would this mean for my company if the bill becomes law?
As it stands, the bill would not have a substantial effect on the current visa processes for employers of high-skilled workers. However, the amendments could prove detrimental to current efforts on the agency’s regulatory agenda, including H-4 spousal work authorization and other proposed improvements for which the administration is seeking recommendations and input based on executive action.
If DHS is funded through Feb. 27, why did the House pass a bill for continued funding so many weeks in advance?
Funding for DHS as a whole is a major national security concern, especially in light of recent global terror threats. Congressional Republicans would like to express their displeasure at Obama’s executive actions, but they do not want departmental funding to lapse. Thus, they needed to start early in order to get some posturing out of the way and hammer out a deal with the Senate, which is unlikely to pass the measure in its current form.
What is going to happen with the bill now?
We may see a series of bills over the coming weeks that tie DHS funding to immigration executive action, much as we have seen in the House with efforts to repeal the Affordable Care Act. Ultimately, the House will need to pass a bill that is palatable to the Senate and can garner the necessary 60 votes for a filibuster-proof majority. Once a bill has passed the Senate, it will go to Obama to be signed into law. Obama has indicated that he will veto any bill that defunds his executive actions on immigration.
Are there any other options for DHS funding?
Congress will need to pass a funding bill in order for DHS to continue operations, but the final form of the bill is unclear. Although everyone wants DHS to be funded, Republicans find themselves in a politically difficult situation because they do not want to appear to condone immigration executive action in any way. If it is exceptionally difficult to find compromise on a funding bill for an entire fiscal year, the GOP may continue to express its dissatisfaction by passing smaller “clean” spending bills to fund DHS for only a few months at a time and keep the conversation alive throughout the year.
What happens if DHS funding lapses?
As with the government shutdown in October 2013, many DHS operations would remain running.
Since USCIS is a fee-funded agency, processing of applications and petitions for immigration benefits would not be affected. E-Verify access would be discontinued until funding is resumed, meaning that companies could not enroll in E-Verify and users could not verify employment eligibility or take action on any case. The CIS Ombudsman’s Office would likely close in the event of a lapse in funding, meaning that they could not accept any inquiries through their online case intake system.
Most CBP personnel would remain on the job; however, funding constraints could limit staff and cause delays. ICE detention and enforcement operations would likely continue during any shutdown.
BAL continues to pay close attention to this and other developments in Congress and will provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.
For additional information or questions:
Lynden Melmed, Partner Washington, D.C. Direct: 202.842.5830 lmelmed@bal.com
Christiana Kern, Legislative Analyst Direct: 202.842.5831 ckern@bal.com
The U.S. and Germany have implemented mutual trusted-traveler programs, streamlining airport clearance for citizens of the two countries, U.S. Customs and Border Protection recently announced.
German citizens are eligible for the Global Entry program, which is available at 42 U.S. airports and 12 preclearance locations. U.S. citizens are eligible for Germany’s EasyPASS, an automated border control system for third-country nationals.
“Global Entry and the German EasyPASS program allow our officers to focus more on travelers we do not know while at the same time efficiently and securely facilitating low-risk travelers,” said R. Gil Kerlikowske, commissioner of U.S. Customs and Border Protection, in a prepared statement.
Global Entry participants are able to bypass normal customs declarations and proceed to Global Entry kiosks that are equipped to scan their passports, take fingerprints, and accept customs declarations electronically. Global Entry is available to U.S. citizens and permanent residents; nationals of Mexico; and citizens of Germany, The Netherlands, Panama, and South Korea. Canadian citizens can participate through membership in the NEXUS program.
In order to participate, German citizens are required to preregister with the German Federal Police at the Frankfurt Airport before submitting their applications via the Global Online Enrollment System. Applicants will not qualify if they provide false or incomplete applications, have been convicted of a crime or face criminal charges, have been found to violate any country’s customs or immigration laws, are the subject of an ongoing law enforcement investigation, are inadmissible to the U.S., or cannot establish “low-risk” status with Customs and Border Protection.
Global Entry is now available to all qualifying German citizens after a limited pilot program for a small number of Germans was launched in 2013.
U.S. citizens interested in participating in EasyPASS can do so by traveling to an enrollment center at the Frankfurt or Munich airports. In order to be eligible, U.S. citizens must have an electronic passport and be at least 18 years old.
For more information, visit the Customs and Border Protection’s websites on Global Entry or EasyPASS.
The Department of Homeland Security recently announced it is considering a Known Employer pilot program to streamline employment-based immigration applications filed by eligible U.S. employers. The program is intended to make adjudications more efficient and less costly by reducing paperwork and delays for both DHS and U.S. employers who seek to employ foreign workers. It would be jointly implemented by U.S. Citizenship and Immigration Services, Customs and Border Protection, and Immigration and Customs Enforcement.
A Known Employer program has long been identified as an area ripe for collaboration by the U.S. and Canadian governments. In February 2011, President Obama and Prime Minister Harper issued a joint declaration, Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness, which led to an outline of various shared initiatives in the Beyond the Border Action Plan. As part of this plan, the U.S. and Canada agreed to explore the feasibility of incorporating a trusted-employer concept in the processing of business travelers between the two countries. As such, this pilot program would seek to expedite and facilitate legitimate cross-border business travel.
BAL Analysis: BAL has been working closely with DHS and the Beyond the Border working group over the years to move this and other critical business competitiveness initiatives forward. BAL applauds the pilot program as a major step toward increasing efficiency for low-risk employers doing business in the U.S. and Canada. Its success could potentially lead to a permanent program between the U.S. and Canada as well as possible expansion of the program to other countries.
The Known Employer pilot program is expected to commence by late 2015. The details of implementation are not yet clear, but BAL will continue working with DHS on this initiative and will provide further updates as they become available.
For additional information and questions:
Lynden Melmed, Partner Washington D.C. Direct: 202.842.5830 lmelmed@bal.com
An immigration bill that is very favorable to high-skilled immigration was introduced in the Senate today. The Immigration Innovation (I-Squared) Act of 2015 would increase the number of H-1B visas available annually and would eliminate the green-card backlog for most employment-based immigrants. The bipartisan legislation was introduced by Sen. Orrin Hatch, R-Utah, and co-sponsored by Sen. Amy Klobuchar, D-Minn., Sen. Marco Rubio, R-Fla., Sen. Chris Coons, D-Del., Sen. Jeff Flake, R-Ariz., and Sen. Richard Blumenthal, D-Conn.
Hatch introduced a similar version of this legislation in January 2013 (S. 169), which was subsequently incorporated into the Gang of 8 comprehensive immigration reform bill (S. 744) that passed the Senate in June 2013. The new I-Squared Act contains many of the same measures that existed in the previous version (S. 169) and which were passed as part of the comprehensive bill.
The 2015 version of I-Squared:
BAL has created a legislative analysis of the new I-Squared Act of 2015 and a comparative analysis of high-skilled immigration provisions in key Senate and House bills.
BAL Analysis: Substantively, the H-1B ceiling in I-Squared is lower than in the version introduced in 2013 (195,000 compared to 300,000). Nevertheless, the new proposed H-1B ceiling remains higher than either piece of legislation that advanced in the House or Senate in 2013. Furthermore, several provisions in I-Squared are stronger than the bills that advanced in 2013. These include measures to address the green-card backlog, make it easier for foreign graduates to remain in the U.S., and promote greater consistency in agency decisions. Finally, unlike the bill that passed the Senate, I-Squared contains no restrictive provisions that would limit access to high-skilled workers.
A bill that focuses on high-skilled immigration is an encouraging development, but passage remains a challenge.
BAL is working closely with the legislators sponsoring this bill and is monitoring all legislative developments in Congress. We will continue to provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.
A bill introduced Jan. 8 in the U.S. House of Representatives proposes to eliminate the per-country numerical limitations for employment-based immigrants. H.R. 213, the Fairness for High-Skilled Immigrants Act of 2015, was introduced by Rep. Jason Chaffetz, R-Utah, and co-sponsored by two outspoken immigration advocates, Rep. Zoe Lofgren, D-Calif., and Rep. Raul Labrador, R-Idaho.
Under current law, no more than 7 percent of green cards can go to foreign nationals from a single country, meaning that significant backlogs always exist for countries with high demand, such as India and China. The proposed bill would strike the 7-percent rule and enact a first-come first-served system that would not take into account country of origin. There would be no increase in the overall number of green cards available to employment-based immigrants. In addition, the bill would increase the per-country numerical limitation for family-based immigrants from 7 percent to 15 percent of the total number of family-sponsored visas.
The bill will now move to the House Judiciary Committee for review. H.R. 213 echoes prior versions of the Fairness for High-Skilled Immigrants Act, which was originally introduced in 2011 and reintroduced in 2013. In 2011, it passed in the House before dying in the Senate after an amendment was added by Senator Chuck Grassley, R-Iowa, that would have increased Labor Department oversight on the H-1B Labor Condition Application process. The future of the bill is uncertain and may be affected by piecemeal immigration measures, which are expected to be introduced in the days and weeks ahead and which could override it.
BAL is paying close attention to all legislative developments in Congress as the new session begins and we will continue to provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs twitter page.
All countries other than India will move forward significantly in the employment-based third preference (EB-3) category for professionals and skilled workers, according to the State Department’s February 2015 Visa Bulletin.
Priority dates for EB-3 Worldwide, Mexico and Philippines will advance by seven months from June 1, 2013 to Jan. 1, 2014. The priority date will move forward by six months for EB-3 China, from March 1, 2011 to Sept. 1, 2011. The EB-3 India priority date will again advance only marginally, this time by seven days to Dec. 22. 2003.
The priority date for workers in the EB-2 India category, by contrast, will move forward by 6 ½ months to Sept. 1, 2005. The significant advancement follows a retrogression of more than four years as reported in the November Visa Bulletin. The priority date for EB-2 China will advance 1 ½ months to March 15, 2010. All other countries will remain current in the EB-2 category.
All countries will remain current in the EB-1 category.
Summary of February 2015 Visa Bulletin:
EB-1 Current across all countries
EB-2 China: March 15, 2010 India: Sept. 1, 2005 All other countries: Current
EB-3 China: Sept 1, 2011 India: Dec. 22, 2003 Mexico: Jan. 1, 2014 Philippines: Jan. 1, 2014 All other countries: Jan. 1, 2014
The Department of Homeland Security recently added six countries – the Czech Republic, Denmark, Madagascar, Portugal and Sweden – to the list of those whose nationals are eligible for H-2A and H-2B visas.
The H-2A and H-2B are nonimmigrant visa programs. The H-2A program allows U.S. employers or agents to sponsor foreign nationals for temporary agriculture jobs. The H-2B program allows U.S. employers or agents to do the same thing for non-agricultural jobs. Under both programs, employers or agents must file a Form I-129, Petition for a Nonimmigrant Worker, on the employee’s behalf.
The H-2A and H-2B programs are available to nationals of countries the Department of Homeland Security has selected. Nationals from countries not specifically listed can only participate in the program if the Secretary of Homeland Security finds it in the U.S.’s interests for the applicant to receive an H-2A or H-2B visa.
Effective Jan. 18, 2015, nationals of 68 countries will be eligible without the need for special approval. Those countries are:
The Obama administration has issued a Notice of Request for Information on immigration policy in the Federal Register to solicit input from stakeholders on modernizing and streamlining the U.S. visa system. This follows President Obama’s November announcement on immigration executive action and subsequent memorandum to the secretaries of the Department of State and Department of Homeland Security, directing them to issue recommendations on improving the legal immigration system.
In the Presidential Memorandum, the secretaries of State and Homeland Security were instructed to lead an interagency effort with stakeholder involvement to develop recommendations on immigration reform by March 22, 2015. Specifically, the administration wants recommendations regarding:
The request in the Federal Register seeks thorough input from all stakeholders, including employers, visa applicants, policy advocates and the public at large in relation to the topics outlined above. A specific list of questions on each topic and instructions for submission can be found within the Federal Register announcement here. Comments must be submitted by Jan. 29, 2015 for consideration, prior to final recommendations to the administration.
BAL Analysis: Employers are encouraged to read the Federal Register request and submit input on any topics for which they feel they have valuable feedback. BAL continues to work with several of the leading business immigration trade associations, and will be advising companies and coalitions on the executive actions.
IMPACT – MEDIUM
What is the change? In the first action of its kind, the Ministry of Manpower (MOM) has banned an employer from hiring foreign workers after finding the employer breached the Fair Consideration Framework by discriminating against its Singaporean employees.
What does the change mean? MOM is enforcing the new framework that requires employers to consider Singaporean candidates fairly for jobs and to implement employment practices that are “open, merit-based and non-discriminatory.”
Background: On Dec. 29, MOM announced it curbed a company’s work pass privileges after an investigation revealed that the company laid off 13 Singaporean employees and then made their jobs available to foreign workers. MOM investigators said the company’s reasons for terminating the workers for poor performance and inadequate qualifications were not substantiated. The occupations included captains, officers, engineers and seamen. The company will be restricted from hiring foreign workers for two years.
“MOM has been investigating complaints against companies for not considering Singaporeans fairly for job and development opportunities, including if they resorted to discriminatory dismissal of Singaporeans,” said Roslyn Ten-Kong, Fair Consideration Department director, in a statement. “This is a case where we found the company to have retrenched Singaporeans unfairly.”
The Fair Consideration Framework took effect Aug. 1 and is intended to strengthen the Singaporean workforce.
BAL Analysis: Until now, employers may have focused solely on job advertising and hiring practices under the new framework. Employers should also make sure they implement non-discriminatory labor policies related to career development, disciplinary procedures and termination of employment.
This alert has been provided by the BAL Global Practice group in Singapore. For additional information, please contact singapore@bal.com.