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Delay in NSC Processing of H-4/EAD Applications Filed with Premium Processing H-1Bs

Via AILA.org

The Nebraska Service Center (NSC) has advised that, due to the high volume of incoming premium processing requests, H-4 I-539 and H-4 I-765 EAD applications that are concurrently filed with premium H-1B petitions before the April 3, 2017, premium processing suspension may not be adjudicated concurrently with the I-129 and within the prescribed 15 days. Due to the rapid influx of premium requests, I-129 adjudicators are focusing first on the I-129 so that it can be processed in accordance with the premium requirements. When a decision is made on the I-129, any H-4 and EAD applications are sent to another team, which should adjudicate them within a week or two. Once the surge is over NSC expects to resume fully working all applications submitted concurrently with the I-129.

NSC has advised that if no notice has been received on a riding I-539 or I-765 by the end of April, applicants or their attorneys can contact the National Customer Service Center to place a Service Request.

Statement From Secretary Kelly On Recent ICE Enforcement Actions Via DHS.gov

Via DHS.gov

Release Date:
February 13, 2017

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON – Last week, U.S. Immigration and Customs Enforcement (ICE) launched a series of targeted enforcement operations across the country. These operations targeted public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.

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Federal Court Suspends President Trump’s Executive Order banning Muslims and Refugees, CBP & DOS to Resume Business as Usual

On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.

Customs and Border Protection: The American Immigration Lawyers Association has been advised that all CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

Department of State: DOS has confirmed that assuming there were no other issues in the case, provisionally revoked visas have been reversed and are valid again.

The Trump administration declared its intention to file an emergency stay of the order “at the earliest possible time.”

DHS OIG: Inspector General Announces Review of Implementation of the President’s Executive Order

The Department of Homeland Security Office of Inspector General (“DHS OIG”) announced late Wednesday that it will review DHS’ implementation of “Protecting the Nation from Terrorist Entry into the United Stated by Foreign Nations” and adherence to court orders and allegations of individual misconduct, initiated due to congressional request and whistleblower and hotline complaints.

Link to PDF

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Transcript of Media Availability on Executive Order with Secretary Kelly & DHS Leadership

Via DHS.gov

Release Date:

January 31, 2017

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON – Today Secretary of Homeland Security John Kelly participated in a media availability alongside U.S. Customs and Border Protection (CBP) Acting Commissioner Kevin McAleenan, U.S. Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan, and DHS Office of Intelligence and Analysis (I&A) Acting Undersecretary David Glawe to discuss the operational implementation of the president’s executive orders. Following is a transcript of their remarks:

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48 Hours Later, Where Things Stand on the January 27 Executive Order

Via AILA

On January 27, 2017, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” People all over the United States are rallying in opposition to this EO and showing their support for all of those individuals affected by President Trump’s EOs. AILA lawyers across the country are showing up en masse to provide legal support to those detained, as well as to families and friends waiting for their loved ones to be released.

Last night, lawyers filed actions across the country to halt the January 27 EO. A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. The next decision came out of a federal court in Massachusetts – it went a bit further and barred federal officials from detaining or removing individuals subject to the EO. Two other courts also issued rulings. In a case filed in Virginia, the court ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred officials from deporting covered individuals for the next seven days. In the case out of Washington State, the federal judge barred the federal government from deporting two unnamed individuals from the United States.

Lawyers in the New York case are seeking clarification from the court.

The Department of Homeland Security put out a statement early today stating only that the agency “will comply with judicial orders.”

More clarity was provided by Secretary Kelly of the Department of Homeland Security, who released a press statement this evening clarifying how the EO applies to LPRs: “I hereby deem the entry of lawful permanent residents to be in the national interest.”

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

Via USCIS.gov

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.

Among other things, DHS is amending its regulations to:

  • Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
  1. They are the principal beneficiaries of an approved Form I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

F-1 OPT I-765 RFE Issue: How a DSO can change students’ 17 month OPT extensions to 24 months

The Department of Homeland Security’s website notes that subsequent to USCIS changes to STEM optional practical training (OPT) regulations, the Student and Exchange Visitor Information System (SEVIS) Release 6.26 was deployed which, while not providing a fix addressing all of USCIS’ changes, will help solve some issues presented by the new regulations, including document generation for F-1 OPT students who have applied for an EAD/I-765 so they may respond to USCIS’ requests for evidence.  The update also:

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DHS, USCIS Office of Inspector General, Information Technology Management Report entitled “Progress and Challenges” covers IT recommendations for USCIS

via www.oig.dhs.gov/

DHS, USCIS Office of Inspector General, Information Technology Management Report entitled “Progress and Challenges”

U.S. Citizenship and Immigration Services Information Technology Management Progress and Challenges (PDF, 36 pages – 1.34 MB)

Spotlight (PDF, 1 page – 125 KB)

Infosys Fined an Unprecedented $35,000,000.00 by the U.S. Government for Employing B-1 Visas in Lieu of H-1Bs

The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.

By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.

In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:

“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:

(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”

(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily  be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be 
abroad…”

However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.

Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law.  It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.

AILA’s recommendations on filing H-1B, PERM and other applications while DOL’s iCERT and PERM Websites are Shutdown

Federal Workers Protest Government Shutdown

Federal Workers Protest Government Shutdown (Photo credit: cool revolution)

The American Immigration Lawyers Association (AILA) has indicated that they are trying to obtain guidance from USCIS and US Department of Labor (DOL) about how attorneys should move forward in filing applications like the H-1B and PERM/Labor Certifications which have been affected by the DOL’s shutdown (resulting from the Federal Government’s Shutdown).

AILA does not have official guidance from the USCIS and DOL yet and indicates that there are “conflicting reports” regarding DOL’s ability to even accept mail.  For now, however, AILA recommends the following:

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