Travel Ban Explained

On Friday, January 31, 2020, President Trump issued a new set of travel restrictions for nationals of certain foreign countries. This is an expansion of the “travel ban” issued in 2017, as both draw their power from the Immigration and Nationality Act, Section 212(f).
The foreign nationals affected are those from Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria.
This does not affect nationals of those countries if they are already present in the U.S. For example, if you have a Nigerian employee on H-1B, they may remain employed. You are also perfectly fine to start or continue a permanent residency case (PERM, I-140, I-485) via employment-based sponsorship.
Non-immigrant visas, such as H-1b, TN, L-1, O, etc are not impacted.
Students are also unaffected. For example, you may continue to employ a Kyrgyzstani student on Optional Practical Training. Nationals from affected countries are also permitted to extend or change status in the U.S.—they may apply for a STEM OPT extension, and/or you may place them into the H-1B lottery.
The most heavily affected are those candidates who are outside of the United States and going through National Visa Center processing for an immigrant visa. Nationals of those four countries are no longer able to seek immigrant visas through U.S. embassies and consulates abroad, regardless of the location of the post. If you have candidates who are currently part of the offshore immigrant visa process, you need to inform the candidate as soon as you can that their case may continue to be processed, but that their case will be placed into administrative processing or outright denied if this ban remains in effect.
Dual citizens are unaffected so long as they seek an immigrant visa on their non-affected passport.
This set of restrictions will affect your employees’ family members who are not in the United States and seeking to immigrate under the follow to join rules. Permanent resident or U.S. citizen employees who are attempting to bring their family members—spouses, parents, siblings, and the like—are now unable to bring them here on an immigrant visa if the family member is a national of one of those four countries. H-1B or L-1A/L-1B employees may still bring their spouses and Under-21-Children on H-4/L-2 visas.
If you have specific cases, please contact your HLG atty. to discuss.

Trump Immigration Policy Cheered in Toronto !

With the denial rate of H-1b visas in the mid 30% over the past 2 quarters and inching closer to 40%, ever wonder where all of those talented engineers and computer professionals are going ? Looks like they are landing nicely in Canada. Check out this latest article from NPR.

S. 386 On Hold

Late last week, it was announced by the Senate that S. 386 is on hold and will not be brought up for consideration because it was assured to fail. Whether it will be revived before the fall 2020 election remains to be seen but, it is doubtful. It remains disturbing that Senator Durbin continues to allege that there are widespread abuses in the H-1b program. If there is major abuse in the program now, it is the USCIS that are the perpetrators. With a denial rate that has soared to 35% with no changes in the law, who is most apt to be ignoring the law and abusing the program ?

S. 386 Moves Forward

Late last night, Senators Lee and Durbin made other members of the Judiciary Committee aware that they had worked out a compromise on S. 386 and many of the provisions appear to be very positive however, they have included a 50-50 provision which many believe is a poison pill. The 50-50 provision would prohibit any company with more than 50 employees with a workforce made up of more than 50% H-1 and/or L-1 holders from being issued any new visas. Although at first glance, it would appear that this provision only targets larger dependent H-1b users, a more thoughtful analysis reveals that this would be a significant victory for companies wishing to off-shore IT projects. It is undeniable that the IT talent pool in the US is small. IT unemployment is almost non-existent, hence the use of H-1b tech workers. If the larger Indian IT houses are prevented from brining new tech talent into the US, where are US cos. going to get needed talent ? Many U.S. employers hire H-1b workers, not from off-shore directly, but, away from the large Indian IT houses using H-1b transfers. Which is more likely; US students are going to flock to computer science programs to immediately fill the need for software developers or that IT development project is going to be outsourced to India to where the talent is already in place ? Often what looks good on paper, has unintended consequences.

Great News !

The USCIS announced that the H-1b cap/lottery will be conducted via electronic registration in 2020 ! The initial registration period will be from March 1st through March 20th ! As announced earlier this month, the filing fee will only be $10.00 per registration. This is exciting news and will save a tremendous amount of time and money for US employers (and law firms). More details will be provided as they become available and we expect to do a free teleconference for our clients in mid January.

Proposed Fee Increases………. Plus More

In a recent proposed rule, the USCIS has proposed changes to filing fees for most immigration benefits. Some filings would actually go down eg. the I-140 would go from $700.00 to $545.00 and the biometric charges would be reduced from $85.00 to $30.00 however, most filing fees would increase. For example, the H-1b visa petition fee would increase from $460.00 to $560.00 and an L-1 petition would go from $460.00 to $815.00. Other significant changes proposed include the lengthening of the time the USCIS has to process a premium processing case from 15 calendar days to 15 business days. Also, in an effort that targets certain dependent employers, those with more than 50 employees who have more than 50% of their workforce made up on H-1b and/or L-1 workers, would be required to pay an additional $4,000(H-1) or $4500(L-1) fee, respectively, for extensions. At present, the additional fee is only imposed on new petitions. Given the current practice of the USCIS to illegally shorten approval notices for staffing/consulting cos. this would be a rather severe result. Comments on the proposed rule are due on Dec 16, 2019.

IT Talent Shortage

During a time of tremendous IT talent shortage, one has to wonder what is motivating the White House and the USCIS to curb the immigration of legal H-1b workers. The Wall Street Journal recently discussed the severity of the shortage.  

USCIS Delivers ! and Then is Stopped :)

The USCIS has released the new forms that seek information to comply with the new public charge rule.  Refer to Part 6 of the I-129 form here.  The new forms must be used for all filings as of Oct 15, 2019. It’s amazing how quickly the USCIS delivered with the threat of another Federal Judge chiding them and telling them to “get your act together” !

Update as of 10-11-2019, multiple Federal Courts have blocked the implementation of the Public Charge rule and the enw forms.

USCIS Admits Orders from the WH to Deny H-1b Visas

In an admission that surprises no one, documents which the USCIS was forced to release under FOIA litigation confirms that the USCIS was ordered by the Trump Administration to increase the denials of H-1b visas  and were advised that no legal or regulatory authority was needed to support the denials. The full story is published in Forbes with links to the incriminating documents. These documents are expected to be at the front and center of all federal litigation brought by U.S. employers seeking to overturn arbitrary and capricious denials. It is also expected that charges of bad faith will be brought.

Senate Bill Fails Again but ….

On Thursday, the Senate bill designed to eliminate the per country limits for green card cases failed again. This time, it was blocked by Senator Perdue from Georgia. The current concern centers around the negative impact that the bill would have on the recruitment of international RN’s from the Philippines. It is expected that Senator Perdue and Senator Lee will try and work out a compromise to protect this important industry. Whether or not a compromise can be achieved is unknown at this time but, it is believed by many to be closer to passage than it has in the past. More insight onto the current state of this bill can be found at the WSJ.  If you would like to follow the bill using the official Congressional web-site, you can access that here.