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What’s in the new “Buy American, Hire American” Executive Order?

  • On April 18, 2017, President Trump signed a new Executive Order, “Buy American and Hire American.” In the “Hire American” portion of the order, Trump announced he was directing DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.

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AILA: Impact of “Hire American” Provisions in New Executive Order Remains to Be Seen

WASHINGTON, DC – Today, President Trump signed his latest Executive Order “Buy American and Hire American.” The American Immigration Lawyers Association (AILA) observed that while today’s announcement reflects the administration’s desire to move toward reforms to the H-1B program, there will be no immediate changes or impacts on H-1Bs. Simply put, it appears that the agencies are asked to review policies related to all visa programs and recommend changes to root out “fraud and abuse,” and to propose additional reforms so that H-1B visas are awarded to the most skilled or highest-paid applicants.

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Update on H-1B Cap Subject Petitions for FY2018: 199,000 Petitions Filed

  • On April 7, 2017, USCIS announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 H-1B visas and 20,000 advanced degree visas for FY2018.
  • On April 17, 2017, USCIS announced that it had received 199,000 H-1B petitions during the filing period, which began April 3. This represents a 15.7 percent decrease from the 236,000 petitions that USCIS received during last year’s filing period.

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It’s That Time of Year: the H-1B Fiscal Year Quota and the H-1B Haters

The Fiscal Year Quota for H-1B visas is, as usual, just opened on April 1 which elicits a bit more public interest about the H-1B program in particular and Business Immigration in general.  Unfortunately, Business Immigration is the orphaned step-brother of Family Based Immigration and the H-1B is not as publicly controversial a subject as most other immigration issues in the news though, so this public interest is invariably fleeting.

This is also about the time of year when anti-H-1B propagandists crawl out into the sunlight like xenophobic groundhogs to regurgitate their timeworn arguments against the visa program. They allege that the H-1B program as a whole fails to deliver the “best and the brightest” to America, that Americans are being displaced by foreigners earning “low wages“, that there are sufficient numbers of qualified American workers to fill the proffered jobs. Some of the slicker ones even feign an interest in the welfare of H-1B workers by claiming widespread abuse by H-1B employers (despite the fact that H-1B workers may transfer to another employer in 8 days whenever they’d like, and that they are protected by the DOL W&H and other agencies to a degree that would make a U.S. Citizen green with envy).

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Major Policy Shift: USCIS Rescinds Guidance on H-1B Computer Related Positions without Notice or Due Process on the Eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017 – the Eligibility of an H-1B Petition for IT Workers will now Increasingly be based on its LCA Wage Level (read: LCA Level 1 Wages=Problem)

On March 31, 2017 USCIS issued a policy memorandum that superseded and rescinded a 12/22/00 memorandum with guidance on H-1B computer related positions issued by the NSC.  This abrupt change coincidentally uproots established H-1B guidance and processes without notice or due process on the eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017.

The practical impact of this memo will be to increase Requests for Evidence and Denials on the thousands of H-1B petitions filed on behalf of IT professionals, and those with a Level 1 wage marked on their LCA/I-129 petitions are at heightened risk.  The memo is in line with USCIS’ desire to place a greater emphasis on requiring IT Petitioners to list a greater than Level 1 wage on the LCA.  The same concept seems to have been behind the holdings in several recent Administrative Appeals Office decisions denying IT positions on the basis of LCA Level 1 wages.  AAO Decision Examples 1, 2 and 3 (PDFs).

Though Petitioners are not prohibited from paying an H-1B employee more than what is listed on the corresponding LCA, and frequently do, their H-1B petitions may now be denied because the USCIS appeared to have suddenly recalled that “Prevailing Wage Determination Policy Guidance” issued by the DOL (which provides a description of the wage levels) indicates that a Level 1 wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. A Level 1 wage rate indicates:
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Fake News claiming President Trump Authorized Visa-Free Travel for Various Countries (including Afghanistan)

I was recently asked whether it was true that President Trump had authorized Afghanistan for Visa Free travel to the United States for visits of up to 90 days at a time.

It seemed a bit inconsistent with the tone of the Administration’s recent actions, and because all of the 38 countries and territories selected by the U.S. government for the Visa Waiver Program program are high-income economies with a very high Human Development Index.  As well, a Forbes article from 7 days ago noted that Afghanistan has the second highest B (visitor) visa refusal rate of 73.8% while a country must have had a nonimmigrant visa refusal rate of less than 3% for the previous year to qualify for the Visa Waiver Program. Visa Waiver Program. Alison Siskin. January 15, 2013, (PDF)

I wanted to give a definitive answer to the original question, so I, like anyone verifying an incredible “news story” these days, reviewed the source (in this case a suspicious website entitled “USA Television” that aped, perhaps not coincidentally, the same Old London font as “The Washington Post” and “The New York Times“.  I then turned to the ever reliable Snopes.com which had a direct reference to the Visa Free Travel article and to “USA Television” itself:

“The web site USA Television capitalized on that controversy by pumping out a series of nearly identical fake news articles, each holding that President Trump had “signed a visa-free travel policy” for residents of a given country, ostensibly to “strengthen trade” with that country.  For example, one such article claimed such a policy had been implemented for Pakistani nationals…But USA Television also ran an article that said the very same thing about Ghana. And Botswana. And Belarus.

In fact, in separate articles USA Television claimed President Trump had also implemented visa-free travel policies for citizens of Ethiopia, Haiti, Kenya, Jamaica, Malawi, Mauritius, Papua New Guinea, Russia, South Africa, Sri Lanka, Tanzania, Thailand, Uganda, Ukraine, Zambia, Zimbabwe, and the entire Caribbean…If USA Television and their ilk were to be believed, virtually anyone from anywhere in the world could now enter the U.S. for up to six months at a time without the need for obtaining a visa first.”

Thus, I can state that President Trump has not authorized Afghanistan (among many other countries) for Visa Free travel to the United States.  But the lesson we can learn here is that it is everyone’s responsibility to engage in some critical thinking and make an effort to vet a “news” story, else you breathe life to a lie.

Reuters Exclusive: US Gov’t orders Embassies to identify Certain Population Groups for Extreme Vetting including Mandatory Social Media checks

Reuters recently reported on an exclusive story regarding four diplomatic cables (links below) transmitted by U.S. Secretary of State Rex Tillerson in the last two weeks that call for heightened screening and vetting of visa applicants, including asking applicants detailed questions about their backgrounds and making social media checks mandatory for those who have ever been present in territory controlled by the Islamic State.

 Read the Diplomatic Cables (Via Reuters)

1) CABLE 23338 – Guidance to Visa-Issuing Posts; March 10, 2017

2) CABLE 24324 – Implementing Immediate Heightened Screening and Vetting of Visa Applications; March 15, 2017

3) CABLE 24800 – Halt Implementation; March 16, 2017

4) CABLE 25814 – Implementing Immediate Heightened Screening and Vetting of Visa Applications; March 17, 2017

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.

AILA: No Matter How Written, a Muslim and Refugee Ban Won’t Make U.S. Safe

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) denounced President Trump’s rewritten Executive Order, which is again based on the false premise that barring Muslims and refugees from coming to America will make the country safer. The ban was revised in an effort to get around the court orders that blocked the Administration from implementing the original order after it had wrought havoc throughout U.S. airports and around the world. Under the rewritten order:

  • The ban will be effective March 16, 2017.
  • Refugees are banned for a 120-day period, an effective chokehold that snuffs out the US refugee program.
  • The travel ban still impacts only individuals from predominantly Muslim countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), and still targets people based on their religion and nationality, though Iraq has been removed from the list of banned countries.
  • The ban does not apply to lawful permanent residents (green card holders) and dual nationals when traveling on a passport issued by a non-designated country. Those holding select other visas and statuses will not be affected, and waivers may be granted to others on a case-by-case basis.

William A. Stock, President of AILA noted, “Despite the administration’s assurances, this ban on refugees and nationals of these predominantly Muslim countries will not make America safer. Once again President Trump is elevating a xenophobic campaign promise over true national security protections and implementing a policy that national security professionals think is unnecessary and counterproductive. Further, refugees, other than those already approved and in transit, will remain locked out of the United States for at least 120 days, despite being extremely vulnerable and the most stringently vetted group of immigrants. Blocking thoroughly vetted families from seeking help does not befit our nation’s proud and long history of humanitarian protection and welcoming those fleeing persecution.”

Benjamin Johnson, AILA Executive Director stated, “Exempting lawful permanent residents (green card holders) and dual nationals will hopefully mean that these irrational policies will hurt fewer people, but the fact remains that this is bad policy, motivated by unfounded fear. Just like the last ban, this executive order will disrupt the lives of foreign nationals that live, work, and contribute to the U.S. and the citizen family members, community members, and businesses that depend on them. Many have already curtailed travel for scholarly research, to visit family abroad, attend a wedding, or see someone graduate because they are afraid they won’t be allowed to return. This new ban will hurt American families and businesses, and does not advance the promise of a better future for our nation.”

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

New State-by-State Interactive Shows How Much Federal Funding Sanctuary Cities Could Lose at the Hands of President Trump’s Administration

The American Immigration Lawyers Association partnered with the Center for American Progress and the National Immigration Law Center on a new interactive resource which answers the question of “How Much Funding for Sanctuary Jurisdictions Could Be at Risk?” by calculating the amount of funding in sanctuary jurisdictions in 32 states that could be targeted by President Trump’s January 25 executive order.

Link to Article

View Interactive Map

 

Summary of Second Trump Executive Order on Visa Issuance/Screening and Refugees

Via AILA.org

On March 6, 2017, the President signed a new executive order with the same title as the old Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The new Order takes effect on March 16, 2017 and expressly revokes the January 27, 2017 Order.

The new Order prohibits entry into the U.S. by immigrants and visitors from six predominantly Muslim countries without requiring any individualized determination based on specific intelligence that the individuals are a security risk. The Order exempts certain categories of people, including lawful permanent residents and dual nationals traveling on a passport from a country that is not one of the six designated countries. The American Immigration Lawyers Association does not believe the new Order will withstand judicial scrutiny since the targeted countries are majority Muslim, and the Order fails to provide evidence that nationals of the six countries pose a threat to national security. Courts reviewing the first order also gave serious consideration to the discriminatory statements directed at Muslims made by the President and his surrogates.

In addition, the new Order suspends refugee resettlement to the United States for 120 days and drastically reduces the number of refugees that the US Refugee Assistance Program (USRAP) will resettle in fiscal year 2017 from 110,000 to 50,000. Syrian refugees are no longer indefinitely banned under the new order, though they are subject to the 120-day suspension of the refugee program. The new Order no longer gives preference to individuals facing religious persecution who practice minority religions in their country of nationality. Despite the minor changes made in the new Order, it will have devastating consequences for the USRAP. The new Order will not make us safer as a nation, and thousands of refugees who have been screened for resettlement will be trapped in dangerous conditions.

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Indian Engineer’s Death could leave Wife Without Legal Status

Mr. Srinivas Kuchibhotla, the victim of a hate crime in Kansas City, appears to have held an H-1B professional work visa. Unfortunately, with his death, his wife’s H-4 Dependent visa (which Ms. Dumala appears to hold) would normally be terminated by U.S. Immigration. We should urge USCIS and Congress to offer her and anyone else affected by such a tragic situation a “Survivor” H-4 visa option to continue to reside in the U.S. following the death of an H-1B family member, if they wish to.

“I don’t know if this is the right platform to talk about this. But, the government has to make sure that I can come back to this country at my will to pursue his dreams of me being successful…me being successful in any field that I choose. And I have to fulfil his dreams, right here where he started.” – Ms. Sunayana Dumala

Further, because Mr. Kuchibhotla in his professional capacity as a Garmin Engineer was doing his part to “Make America Great Again”, we ask the @realDonaldTrump to issue a strong condemnation of the racist and xenophobic motivations that led to this violence.

Practice Advisory on Changes to Expedited Removal due to President Trump’s Executive Order on Border Security and Immigration Enforcement

The National Immigration Project of the National Lawyers Guild, the American Immigration Council, and ACLU Immigrants’ Rights Project provide a practice advisory on how expedited removal has changed since President Trump issued the Executive Order on border security and immigration enforcement. This Practice Advisory addresses the coming expansion of expedited removal, who likely will be impacted, and possible ways to challenge an expedited removal order.

Download AILF’s Practice Advisory (PDF)