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.


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.

Small business ownerOn August 26, 2016, U.S. Citizenship and Immigration Services (“USCIS”) proposed a new rule to allow certain foreign national entrepreneurs to be considered for parole (temporary permission to be in the United States), in order to start or grow a business in the United States. On August 31, 2016, the proposed rule was published in the Federal Register, and the public was given 45 days (till October 17, 2016) to provide comment on the proposed rule. Once the 45-day comment period closes, USCIS will address the comments received and issue a final binding rule. USCIS currently hopes to have the final rule in place by the end of the year.

The proposed rule would allow the U.S. Department of Homeland Security (“DHS”) to use its existing authority to parole foreign nationals into the United States, to issue parole to foreign entrepreneurs of startup companies, whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation”.

Under the proposed rule, DHS may parole entrepreneurs into the United States if they meet the following eligibility requirements:

Picture of a happy family.On July 29, 2016, the U.S. Department of Homeland Security announced a final administrative rule that will significantly expand the availability of provisional unlawful presence waivers (commonly known as I-601A waivers). The new rule goes into effect on August 29, 2016.

Foreign nationals who enter the United States illegally, are barred from becoming lawful permanent residents (“LPRs”) through the adjustment of status process. Instead, in order to become LPRs, they must leave the United States and apply for an immigrant visa at an American embassy or consulate.

However, by leaving the United States, these individuals become inadmissible to the United States based on the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Under IIRIRA, foreign nationals who voluntarily depart the United States after being unlawfully present for more than 180 days, are barred from re-entering the country for a period of either 3 or 10 years. (The time period is determined based on whether or not the foreign national was unlawfully present for more than one year.)

Effective August 1, 2016, the U.S. Department of Homeland Security (“DHS”), significantly increased civil fines for employers who commit I-9 and other violations of the Immigration Reform and Control Act (“IRCA”). The increased fines are a direct result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (“the Inflation Adjustment Act”). The Inflation Adjustment Act, required all federal agencies to increase civil fine penalties to adjust for inflation.

Enacted on November 6, 1986, IRCA requires all employers to verify both the identity and employment eligibility of all employees. 8 U.S.C. § 274a.2 created Form I-9 as the way employers must document their compliance with IRCA. All employers are required to complete Form I-9 within three days of an employee’s first paid day of work.  In addition, employers are required to retain all Form I-9s for a period of three years after an employee is hired, or for one year after the employee is no longer employed (whichever is longer). Penalties for failing to comply with IRCA and 8 U.S.C. § 274.a.2 can range from civil fines, disqualification from government contracts, and criminal penalties.

Effective August 1, 2016, DHS increased civil fines for IRCA violations occurring after November 2, 2015. A breakdown of the new fines is set forth below: