February 2017

Updates on Recent and Pending Executive Orders and Bills on Immigration February 6, 2017

In the past two weeks, President Trump has issued several executive orders related to immigration. In addition, drafts of other such executive orders have been leaked. Based on the content of the issued and leaked orders, the President clearly plans to follow through on his campaign promises to protect the U.S. borders and to protect jobs for U.S. workers.

In broad strokes, his first executive orders direct the building of a further wall along the southern border with Mexico, the increase of enforcement activities against illegal aliens throughout the U.S., a reduction in the number of refugees accepted by the U.S. in 2017, and a 90-day travel ban on individuals from seven Muslim majority countries. The question now is how these orders will be implemented. Many of his orders will take time to implement, and implementation may not occur. For example, the building of the wall will require Congressional approval for additional funding. Other orders have been implemented, but the implementation may change. For example, the 90-day ban was effective immediately upon the signing of the order, sending CBP & DOS to scramble to implement the order without any clear instructions. But, several law suits have been filed, and as of the writing of this memo, a Federal judge in Seattle has temporarily halted the travel ban.

The executive order relating to legal employment based immigration has not been issued, but the leaked draft shows that the President is looking at revising the non-immigrant H-1B and L-1 programs, as well as possibly F-1 OPT, B-1s, EADs, J-1 Summer programs and H-2As, with the goal of adding rules to further protect jobs for U.S. workers. The leaked draft also contains other language which may indicate the President is looking to revamp the entire immigrant visa system and change it to some sort of merit-based system. The majority of the changes he is considering requires the promulgation of rules for notice and comment, or new legislation from Congress, so even if the order is issued, we do not believe it will impact the process for filing cases under this year's H-1B cap.

In addition to the executive orders, three different bills have been introduced in Congress to change the H-1B regulations. Currently all three bills are in committee, and none are set for a vote. The content of the bills varies, but two of the bills include an increase in the minimum amount that H-1B dependent employers must pay to H-1B workers. One of the bills changes the allotment of H-1Bs, favoring those that offer the highest salary. Another of the bills would require that employers complete a test of the labor market prior to filing an H-1B petition. Currently it is unclear which of the bills, if any, has the momentum to get out of committee and on to a vote. As with the presidential orders, it is unlikely that these bills will impact the process for filing H-1B cap cases under this year's cap.

All of this activity has created a large number rumors and much speculation. Clearly, changes will take place over the next year, but it is too early to tell how those changes will play out. Based on what we know at this point, here are some basic recommendations:

  • Make sure you have your immigration paperwork in order and up to date, including a valid passport.
  • If you plan on traveling outside the U.S. and need to obtain a visa stamp in your passport prior to returning, check for consulate appointment availability before purchasing your tickets, as the wait times for appointments will increase (particularly at busy consulates such as those in India).
  • Be prepared for the potential of delays due to further security checks and after every entry into the U.S., please download and check your I-94 record for accuracy from CBPís website.
  • If your H-1B/L-1 will expire within the next 6 months, file for the extension as early as possible.
  • If you are currently working on a TN, file an H-1B as a backup if possible.
  • If you are a nonimmigrant from one of the seven countries listed in the ban, do not leave the U.S. until the ban is officially lifted.
  • If you are a US permanent resident returning from abroad and are asked to sign a Form I-407 to relinquish your green card, do not do so. If you do not sign, you will be issued a Notice to Appear (NTA) and will have the opportunity to present your case before a judge.
  • Check the official government web sites for announcements: CBP (for information on crossing the border), USCIS (for information on processing of pending petitions).

This memo is for informational purposes only, and does not constitute legal advice. Please contact our office if you need legal advice. 650-617-8888

January 2017

USCIS Will Accept H-1B Petitions for Fiscal Year 2018 Beginning April 1, 2017

USCIS Will Accept H-1B Petitions for Fiscal Year 2018 Beginning April 1, 2017

On April 1, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. masterís degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more than 65,000 petitions during the first five business days of this yearís program (last year USCIS received over 236,000 petitions). The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a computer-generated lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

Premium Processing for Cap-Subject Petitions

H-1B petitioners may still continue to request premium processing together with their H-1B petition. However, please note that 1) premium processing does not increase the chances of selection in the lottery and 2) USCIS may temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and begin premium processing for H-1B cap-subject petitions later in the year. Last year, USCIS began reviewing selected premium processing cases on May 16, 2016.

Please contact our office as soon as possible if you are interested in filing an H-1B cap case.

President Trump Executive Orders

This week, President Trump issued two executive orders relating to immigration and below are highlights of these orders:

  • Construction of Wall Along the Border with Mexico: Orders the construction of the wall promised in President Trump's campaign along the U.S.-Mexico border along with enhanced surveillance systems.
  • Hiring of Additional Immigration Enforcement Personnel: Orders the hiring of 5,000 additional Border Patrol agents, and 10,000 additional Enforcement and Removal officers.
  • Detention for Illegal Entry: Orders detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings.
  • Allowsfor Agreements with States: Alllows for state or local law enforcement officials to be authorized to perform the functions of federal immigration officers in relation to the investigation, apprehension or detention of aliens.
  • Stops Federal Funding to Sanctuary Jurisdictions: Orders Attorney General and the Secretary, in their discretion, to ensure that cities refusing to arrest or detain illegal immigrants do not receive Federal grants.
  • Bans entry to the U.S. for some countries: There will be a ban on entry for at least 90 days of all immigrants and nonimmigrants who are from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added to the list.
  • Screening of all Immigration Benefits: Adds requirements to screenings and procedures for all immigration benefits to identify fraud and detect intent to do harm. May also look at whether someone will contribute to society or the national interest.
  • Biometric-entry exit: Directs agencies to expedite completion of biometric entry-exit system.
  • Suspends the Visa Interview Waiver Program: All visa applicants must now attend an interview unless not required by statute.
  • Stops most refugee admissions for at least four months: 120-day pause in refugee admissions to the U.S. with exceptions permitted for those fleeing religious persecution if their religion is a minority in their country of nationality. Reduce refugee admissions for FY 2017 to 50,000 from President Obamaís goal of 110,000.
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