Sam Adair was recently quoted in Laura Francis’s Bloomberg BNA article “More Uncertainty for Businesses Now That Travel Ban Allowed.” In the article, Sam explains how businesses and employers will be impacted by the Supreme Court’s decision to put President Trump’s travel ban into effect, and discusses which countries will be affected the most. “This is really the first of the travel bans that’s going to be allowed to take essentially full effect,” he says.
Click here to read the full article.
The Supreme Court of the United States (SCOTUS) has lifted the injunctions on President Donald Trump’s travel ban, which targets people from six countries, while legal challenges continue in lower courts. The 4th and 9th U.S. Circuit Court of Appeals will be holding arguments on the legality of the ban this week. What is not clear today is whether previous exemptions for those with a significant tie to the U.S. (through employment or immediate family members) would be applicable in this case. We will be providing updates here as they become available.
Read our previous update for more information about the travel ban.
Sam Adair was recently quoted in Esha Sarai’s Voice of America article “Greater Scrutiny Set for Nonimmigrant Work Visa Renewals.” In the article, Sam discusses potential effects of the USCIS’s new policy that visa renewal applications must face the same scrutiny as the original applications.
“…I think what we’ll see is just an increase in the number of requests for evidence, an increase in the delays on the adjudication of these petitions, and really it’s going to just result in more costs for the employers who are filing these petitions,” Adair told VOA.
Click here to read the full article.
Sam Adair was quoted in the following article, which appeared in the Los Angeles and San Francisco Daily Journal on October 26, 2017.
US government tightens nonimmigrant work visa scrutiny
By Chase DiFeliciantonio
In a policy shift, the federal government announced that applications to extend certain work visas will now be scrutinized in the same way as the initial applications.
U.S. Citizenship and Immigration Services said the change would apply to certain nonimmigrant visas and is needed to combat fraud and protect U.S. workers.
According to Sharon Rummery, a spokesperson for the agency, the change was implemented Monday to comply with an executive order signed in April by President Donald J. Trump.
“The burden of proof is and should rightly be on the petitioner regardless of whether we’ve approved the request in the past,” Rummery said. “Our determination should be based on the merits of each case.”
Some business immigration attorneys decried the move as political and said it will create more work for them and increase expenses for their clients without real benefits.
Mitch Wexler, a Los Angeles- and Irvine-based partner at Fragomen, Del Rey, Bernsen & Lowey LLP, wrote in an email that the change is unnecessary and counterproductive.
“[It’s] ridiculous for the agency to no longer give deference to its previous adjudications,” Wexler wrote. “They get no additional filing fees for RFEs [Requests for Evidence] and will introduce even more uncertainty into the workforce of the biggest U.S. employers.”
The immigration service can ask for more information about an application through a Request for Evidence when it believes and application lacks required documentation or evidence.
According to a news release from the agency, the previous policy deferred to the findings of an already approved application, as long as the key elements were unchanged and there was no evidence of a material error or fraud.
Rummery said the change was needed to verify nothing had changed between an initial application and an application for an extension, adding in an email that the previous policy was outlined in an April 2004 policy memo and added to in a subsequent August 2015 policy memo.
“We think this is going to result in an increase in delays and an increase in expenses for employers who are filing these extension applications for their employees,” said Sam Adair, a business immigration attorney and an Austin, Texas-based partner at Graham Adair Inc.
Adair said L-1 intracompany transfer visas, O-1 extraordinary ability visas, TN visas based on the NAFTA treaty, and H-1B nonimmigrant work visas could be affected by the change.
“This will be especially true in O-1 and L-1 applications when there’s a fair amount of subjective evidence that’s going to be required for those petitions,” Adair said, adding he was less concerned about increased scrutiny of H-1B visas because they require a more objective standard for evidence.
“This is very much in line with previous efforts by the administration on immigration,” Adair added. “It’s going to create additional uncertainty for people who are already here.”
The Swiss Federal Council has released the following work permit quotas effective January 1, 2018:
Non-EU (European Union)/EFTA (European Free Trade Area) Nationals
- B Permits: 3500 long term permits (an increase of 500);
- L Permits: 4500 short term permits (no increase);
- B Permits: 500 long term permits (an increase of 250);
- L Permits: 3000 short term permits (an increase of 1000).
The above permits apply for assignments of greater than four months or 120 days.
In light of the increased and consistent demands for work permits in Switzerland, the increase in quota levels may still not be enough to meet the demand. Shortages are still expected towards the end of the next calendar year once the quota levels run low.
The United States and Turkey have both suspended all non-immigrant visas effective immediately on October 8, 2017. The indefinite suspension prevents Turks from traveling to the US, and vice versa, on non-immigrant visas, which include tourist, business, student, and official/diplomatic visas. This applies to all sticker visas, electronic visas, and border visas.
The suspensions were prompted by the recent arrest in Istanbul of a U.S. consulate employee, who is a Turkish national. The arrest was made in connection with the employee’s alleged ties to cleric Fethullah Gulen, who has been in exile from Turkey and living in the U.S. since 1999. The Turkish president has blamed Gulen for last year’s military coup attempt in the country, and has pushed for the US to extradite him.
On Sunday, September 24, 2017, the president, Donald J. Trump, issued a Proclamation that will have an impact on some of our clients. This Proclamation replaces the previous Executive Orders restricting admissions to the U.S. of citizens of certain designated countries.
Who is Impacted
The new Proclamation will restrict admission to the United States for an indefinite period for certain citizens of the following countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The travel restrictions under this proclamation vary depending on the country of citizenship and will be outlined in more detail below for each country.
- Chad: The entry into the U.S. of nationals of Chad is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
- Iran: The entry into the U.S. by Iranian nationals as both immigrants and nonimmigrants is suspended. One exception to this for Iranian nationals are those who are coming to the U.S. on valid student (F and M) and exchange visitor (J) visas.
- Libya: The entry into the U.S. of nationals of Libya is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
- North Korea: The entry into the U.S. of nationals of North Korea as immigrants and nonimmigrants is suspended.
- Syria: The entry into the U.S. of nationals of Syria as immigrants and nonimmigrants is suspended.
- Venezuela: The entry of certain government employees of the government of Venezuela and their immediate family members are suspended as well as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas. Other travelers from Venezuela will be subjected to additional security measures which will likely mean delays in visa issuance and secondary inspection upon arrival at the airport.
- Yemen: The entry into the U.S. of nationals of Yemen is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
- Somalia: The entry of nationals of Somalia as immigrants is suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants will be subject to additional scrutiny and delays. They are likely to face secondary inspection upon arrival in the U.S.
The order specifically exempts the following categories of people:
- Lawful permanent residents of the United States;
- Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
- Any foreign national holding a document other than a visa that is valid on the effective date of this order or issued at any time there after that permits travel to the U.S. (such as an advanced parole document);
- Any dual national of a designated country who travels to the U.S. on their passport from a non-designated country;
- Any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or anyone granted coverage under the Convention Against Torture; or
- Anyone traveling on a diplomatic or diplomatic-type visa.
The proclamation does list out possible waivers available in limited circumstances that may be available to those impacted by this travel ban, however, at this time it is not clear what the process will be to apply for a waiver and how regularly or freely they will be given. We will continue to monitor developments on this front and update clients accordingly. If you have questions about whether you are covered under this travel ban you should reach out to the attorney overseeing your case or Sam Adair for advice on next steps. Graham Adair is closely monitoring any new developments and we will release information as it becomes available. Please check back to our website for further updates and follow us on Twitter for real time updates as they become available.
It was announced on September 5, 2017 that the executive order on the Deferred Action on Childhood Arrivals (DACA) would be rescinded by the Trump Administration on March 5, 2018. This summary is provided to employers who may have employees currently working on Employment Authorization Documents (EADs) that were issued pursuant to DACA. This summary only addresses issues relating to employees who currently hold work authorization pursuant to DACA and not to any new potential applicants for DACA.
First, the rescission of DACA will go into effect on March 5, 2018. The USCIS will continue to accept DACA EAD extension requests until October 5, 2017. Any currently valid EAD cards will continue to be valid through their current expiration dates. Any applications that are filed and received by October 5, 2017 for extensions of previously approved DACA EADs should be granted for an additional two years. These applications for extensions can be filed 180 days prior to the expiration date on the current document.
We recommend that no one who has been granted DACA travel outside of the U.S. even if they are in possession of a valid Advanced Parole document that was previously issued. All pending Advanced Parole travel document applications will be administratively closed and refunded. The administration seems to be signaling that travel is not advisable and since we cannot control the risk here, we are advising against any international travel.
We recommend that you attempt to identify any employees currently working pursuant to DACA, and that they be informed that they can speak to one of the attorneys at Graham Adair about their status in order to determine what steps, if any, can be taken to protect their status going forward. This should happen as soon as possible to ensure that all eligible extensions are filed by October 5, 2017.
While this does give Congress some time to act and to legislatively protect the work authorization and status of these individuals, it is not a significant amount of time and therefore any employees currently working pursuant to DACA may be forced off of payroll when their EAD cards expire. We recommend that companies confirm that their I-9 re-verification processes are active and in place to catch any potential issues with expiring work authorization cards.
The USCIS announced that certain applicants for green cards will now be required to partake in an in-person interview. This new mandate will apply to anyone moving from an employment-based visa to permanent residency. Visa holders who are family members of refugees or people who receive asylum will also be subject to an in-person interview when they apply for provisional status, which must be met before a green card is distributed. This change is expected to significantly slow down the process of obtaining a green card.
Further details about this new mandate have yet to be announced, but Graham Adair is closely monitoring any new developments, and we will release information as it becomes available. Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, and follow us on Twitter for real-time updates as they become available.