chef-cooking-1383480-300x199On July 19, 2017, the U.S. Department of Homeland Security (“DHS”), along with the U.S. Department of Labor (“DOL”), published a final rule increasing the number of H-2B visas available for the 2017 fiscal year by 15,000 visas. H-2B visas are non-immigrant visas which allow United States businesses to hire non-agricultural workers for temporary or seasonal employment. Currently, there is a statutory limit of 66,000 H-2B visas (33,000 visas for the first half of the year,  and 33,000 visas for the second half of the year) which can be issued each fiscal year. Certain H-2B workers are exempt from the cap such as workers who change employers or extend their employment.

As part of the FY 2017 Consolidated Appropriations Act passed by Congress, DHS Secretary John Kelly was given the authority to increase the number of H-2B visas to be issued during the 2017 fiscal year. On July 19, it was announced that an additional 15,000 H-2B visas (on top of the 66,000 visas already allotted) would be issued. In order for businesses to take advantage of these additional H-2B visas, there are several stipulations.

First, like all H-2B petitions subject to the cap, U.S. Citizenship and Immigration Services (“USCIS”) will review petitions for these 15,000 visas on a first come first served basis. Because there is a high demand for H-2B visas, employers looking to hire H-2B workers should get their application into USCIS as soon as possible.

people-1-1163730-1-209x300President Trump ran his presidential campaign on a pledge to protect the jobs of American workers. As part of this pledge, President Trump routinely on the campaign trail said that he wanted to limit legal immigration to the United States. President Trump further, routinely stated that he wanted to make sure that current paths for workers to immigrate to to the United States were not being abused by employers.

On April 3, 2017, the Trump administration took its first steps towards limiting business immigration by stepping up enforcement efforts against company’s seeking to employ foreign workers on H-1B visas. The H-1B visa category allows American employers to temporarily employ foreign nationals in jobs that normally require at least a bachelor’s degree (known as speciality occupations).  Individuals who enter the United States on an H-1B visa are allowed to stay in the United States for up to six years.

On April 3, 2017, USCIS and the Department of Justice announced new enforcement efforts to prevent what the Trump administration perceives as “fraud and abuse” of the H-1B visa category. Since 2009, USCIS has conducted random site inspections of H-1B employers. On April 3, USCIS announced that while it will still continue to conduct random site inspections, USCIS will now focus on making site inspections in three situations.

waiting-1476663-225x300On January 27, 2017, President Trump signed an executive order banning individuals from seven predominantly Muslim countries (Sudan, Somalia, Iran, Iraq, Libya, Yemen, and Syria) from entering the United States. On February 3, 2017, a federal judge in Washington issued a temporary restraining banning the Federal Government from enforcing the order. The temporary restraining order was later upheld by the Ninth Circuit Court of Appeals on February 9, 2017.

Based on the Ninth Circuit’s ruling, President Trump withdrew the executive order, and signed a new executive order on March 6, 2017. Among other things, the new order bans foreign nationals from six of the original countries listed in the first order (Iraq is excluded), from entering the United States if they do not currently have a valid visa to enter the United States. In addition, unlike the first order, which had a blanket ban against travel from citizens of those countries, citizens of the six affected countries may travel to the United States if they: (1) are U.S. lawful permanent residents; (2)  are traveling on a diplomatic visa;  or (3) are traveling after already being granted asylum in the United States, withholding of removal, or protection under the Convention Against Torture.

On March 8, 2017, the State of Hawaii, along with a United States citizen of Egyptian descent, filed a motion with the U.S. District Court in Hawaii, seeking a temporary restraining order against enforcement of the travel ban. In their filing to the Court, Plaintiffs claimed that the travel ban discriminated against Muslims, in violation of the Establishment Clause of the First Amendment.

brussels-airport-1458203-300x207On January 27, 2017, President Trump signed an executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States”.  On February 3, 2017, a federal court in the State of Washington, issued a temporary restraining order prohibiting the federal government from enforcing the executive order. The temporary restraining order was later upheld by the Ninth Circuit Court of Appeals on February 9, 2017.

On March 6, 2017, the President withdrew his previous executive order, and signed a new executive order (“The Order”). Unless a federal court issues a temporary restraining order against the O it is slated to go into effect on March 16, 2017.

The Order Bans Entry into the United States of Foreign Nationals from Six Predominantly Muslim Countries:

pexels-photo-40120-300x200On March 3, 2017, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will temporarily suspend its premium processing service for H-1B petitions. The suspension of premium processing takes effect for all H-1B petitions filed on or after April 3, 2017. At the present time, USCIS expects the suspension to last six months.

Premium processing allows for expedited processing of certain USCIS petitions or applications. By paying a processing fee of $1225.00, a petitioner or applicant can assure that USCIS will make a decision on their petition or application within 15 days. (USCIS guarantees that it will either: (1) approve a case; (2) deny a case; or (3) issue a Request for Additional evidence.)

The suspension of premium processing will apply to all H-1B petitions filed on or after April 3, 2017. This year, USCIS will not begin processing H-1B petitions subject to the H-1B cap until April 3, 2017. Therefore, USCIS will not be allowing any premium processing for H-1B petitions subject to the 2018 cap. In addition, USCIS will not allow premium processing for any cap exempt H-1B petitions filed on or after April 3, 2017. Examples include: (1) transfer petitions; (2) petitions filed by institutions of higher education or entities affiliated with an institution of higher education; or (3) petitions filed by nonprofit or U.S. governmental research organizations.

170127ny-2-nr-300x273On February 20, 2017, U.S. Department of Homeland Security Secretary, John Kelly, issued two memoranda dramatically changing how DHS treats foreign nationals illegally in the United States. Touching on numerous immigration issues, the memoranda will make it easier for foreign nationals to be quickly removed from the United States without going through normal immigration court procedures. The memoranda will also dramatically increase the number of foreign nationals that DHS will target for deportation. Below are some of the ways that the memoranda will dramatically affect foreign nationals illegally living in the United States.

Increased Use of Expedited Removal

Pursuant to U.S.C. § 1225(b)(1), any foreign national who arrives at a United States port of entry and is inadmissible under 8 U.S.C.§ 1182 (a)(6)(C) (misrepresentations and false claims to U.S. citizenship) or 8 U.S.C. § 1182(a)(7) (lack of valid entry documents), is subject to expedited removal. Expedited removal is a procedure which allows a DHS official to remove a foreign national from the United States without a hearing before an immigration judge. Foreign nationals facing expedited removal, usually do not have access to an attorney, and are usually removed from the United States within days (or even sometimes hours) of their entry into the country.

On October, 26, 2016, U.S. Department of Homeland Security Secretary, Jeh Johnson, announced the extension of Temporary Protected Status (“TPS”) for certain Nepalese nationals in the United States nepal-pokara-1475073through June 24, 2018. Prior to Secretary Johnson’s announcement, TPS was only available to Nepalese nationals through December 24, 2016.

On April 25, 2015, Nepal was struck by a devastating 7.8 earthquake. The earthquake left thousands dead and devastated the capital city of Kathmandu and nearby towns and villages. In response to the earthquake, on June 24, 2015, Secretary Johnson designated Nepal for TPS. This designation allowed Nepalese nationals in the United States on June 24, 2015, to temporarily remain in the country, with work authorization, through December 24, 2016.

On October 26, 2016, Secretary Johnson extended Nepal’s TPS designation through June 24, 2018. Secretary Johnson also automatically extended work authorization for Nepalese nationals on TPS through June 24, 2017, in order to give U.S. Citizenship and Immigration Services (“USCIS”) time to issue new Employment Authorization Documents (“EAD”). Until a TPS beneficiary receives their new EAD, they may work for any employer by providing their employer with their old TPS-related EAD; and a copy of the Federal Register notice announcing the automatic extension.

sunlight-behind-clouds-1331154On October 4, 2016, Hurricane Mathews, a category 4 hurricane, devastated southern Haiti. To date, close to 1,000 Haitians have been confirmed dead. In addition, much of the crops and buildings in the southern part of the country have been destroyed. Based on the large scale humanitarian crisis, on October 12, 2016, U.S. Department of Homeland Security Secretary Jeh Johnson, announced that the United States would temporarily suspend all deportations to Haiti.

On January 10, 2010, Haiti was struck by a devastating 7.0 earthquake which killed at least 160,000 people and displaced another 1.5 million people. In the aftermath of the earthquake, the U.S. Department of Homeland Security (“DHS”) took steps to help Haitians in the United States. On January 13, 2010, DHS announced that it would be suspending deportations to Haiti. In addition, on January 15, 2010, DHS announced the designation of Temporary Protected Status (“TPS”) for Haitians who were in the United States as of January 12, 2010. TPS allowed Haitians who qualified to remain and work in the United States for a temporary amount of time, until conditions in Haiti improved.

In the years following the earthquake, DHS continued to extend TPS for Haitians, and continued to suspend deportations to Haiti for Haitians who had not been convicted of a serious crime and did not pose a national security threat. However, on September 22, 2016, DHS Secretary Johnson announced that deportations to Haiti would immediately resume. Secretary Johnson made clear that Haitians in the United States on TPS may remain in the United States until their current TPS status expires July 22, 2017.

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On September 30, 2016, U.S. Citizenship and Immigration Services (“USCIS”), announced the publication of a new form, Form I-131A, Application for Travel Document (Carrier Document). The purpose of the new form, is to make it easier for lawful permanent residents whose travel documents are lost, stolen or destroyed, to obtain carrier documentation which will allow them to board an aircraft bound for the United States.

Form I-131A will allow lawful permanent residents to obtain carrier documentation if:

  • They are returning from temporary overseas travel of less than one year, and their green card has been lost, stolen or destroyed; or

On September 22gavel-3-1236445, 2016, Judge Michael H. Simon, of the U.S. District Court of Oregon, ruled that Tenrec, Inc. v. U.S. Citizenship & Immigration Servs., a class action lawsuit challenging the annual H-1B lottery process, may proceed.

The H-1B visa allows United States companies to employ foreign workers in jobs that require at least a bachelor’s degree. It is the most popular non-immigrant visa for bringing foreign workers to the United States.

While the demand for H-1B visas is always extremely high, there is currently a statutory cap on the number of new H-1B visas that may be issued each fiscal year. Currently, only 65,000 new H-1B visas are available each year. There are an additional 20,000 H-1B visas available for foreign nationals with a master’s degree (or higher) from a United States university.