A Restriction on Visitors from Six Predominantly Muslim Nations will be Enforced as the Supreme Court Prepares to Hear a Broader Challenge

On June 26, 2017, the Supreme Court lifted part of the injunction that prevented implementation of President Trump’s Executive Order, Protecting the National from Foreign Terrorist Entry into the United States. The Supreme Court also agreed to review legal arguments from the two federal court cases stemming from the Executive Order, which calls for a temporary suspension of entry of foreign nationals from six predominantly Muslim countries, this October.

The Supreme Court will allow the executive branch to implement the travel ban under strict limits, stating that the travel ban cannot be imposed on individuals who have “credible claim of a bona fide relationship with a person or entity in the United States.” On June 28, 2017, the State Department issued a cable to U.S. consulates and embassies on how to apply the limited travel ban that will go into effect this evening. The cable defines individuals having a bona fide relationship with a person in the United States as “close family.” The cable’s definition of “close family” encompasses the following individuals:

  • Parent (including parent-in-law)
  • Spouse
  • Child
  • Adult son or daughter
  • Son-in-law
  • Daughter-in-law
  • Sibling, whether whole or half, including step relationships
  • Fiancée

The cable goes on to say that “close family” does not include the following:

  • Grandparents
  • Grandchildren
  • Aunts
  • Uncles
  • Nieces
  • Nephews
  • Cousins
  • Brothers-in-laws and sisters-in-law
  • Fiancés
  • Any other ‘extended’ family members

The cable states that individuals claiming a bona fide relationship with a U.S. entity must have a formal, documented relationship with the U.S. entity, a relationship that was formed in the ordinary course rather than for the purpose of evading the Executive Order. The cable provides examples of bona fide relationships with U.S. entities, including the following:

  • An eligible I visa applicant employed by foreign media that has a news office based in the U.S.
  • Students who have been admitted to U.S. educational institutions
  • A worker who accepted an offer of employment from a company in the U.S.
  • A lecturer invited to address an audience in the U.S.

Precisely how this cable’s framework will be implemented remains to be seen. We will provide updates on this breaking story as it develops.

Chad Graham Speaks to San Francisco Chronicle About Stricter Visa Vetting

Chad Graham was recently quoted in Trisha Thadani’s San Francisco Chronicle article “For some U.S. Visitors, ‘Extreme Vetting’ is Here.” In the article, Chad discusses how increased visa vetting policies make personal information subject to inspection upon request, and expresses his concerns about how visa processing as a whole can become more subjective as a result.

Read the full article here.

Sam Adair Discusses Visa Vetting Questionnaire in Bloomberg BNA

Sam Adair was recently quoted in Laura Francis’s Bloomberg BNA article “‘Extreme Vetting’ Immigration Form Causes Delays, Confusion.” In the article, Sam discusses the State Department’s new visa vetting questionnaire and its potential impact on business immigration. 

Click here to read the full article.

Full article reproduced with permission from Daily Labor Report, 106 DLR A-7 (Jun. 5, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

U.S. Customs and Border Protection’s I-94 Website to Assist Visa Waiver Program Travelers

This week, U.S. Customs and Border Protection (CBP) began helping eligible Visa Waiver Program (VWP) travelers keep track of their last possible departure date through the I-94 website and via email. On the I-94 website, VWP travelers can now check how much longer they can remain in the U.S. without overstaying the terms of their admission by entering their name, birthdate, passport number and passport country of issuance. VWP travelers will also receive email alerts reminding them of their last possible departure date. CBP plans to expand the program to additional nonimmigrant travelers in the future.

The I-94 Arrival Record is important because it is a means to verify the immigration status and employment authorization of non-immigrant visitors. As a non-immigrant visitor, it is imperative that you check your I-94 record online for accuracy each and every time you enter the U.S. 

Australia to Abolish Most Common Temporary Work Visa

On April 18, 2017 Australia’s Prime Minister Malcolm Turnbull announced that the most commonly used temporary work visa program, subclass 457, will be abolished and replaced with a new visa stream.

Some changes are immediate, but the abolition is not. The subclass 457 visa will continue to be granted until March 2018. However, the Skilled Occupation List (SOL) will be replaced by the Medium and Long-Term Strategic Skills List (MLTSSL), and the Consolidated Sponsored Occupation List (CSOL) will be replaced by the Short-Term Skilled Occupation List (STSOL), effective April 19, 2017.

The new lists eliminated over 200 occupations eligible for employment visas to limit the visas to the most skilled and high-demand occupations. Occupation-specific restrictions also apply to job positions in customer service, marketing and sales.

Current 457 visa holders are unaffected and can continue working until the validity period of their visas. However, pending 457 visa applications are subject to the new occupations list and will be issued under the new rules.

The New Temporary Skill Shortage (TSS) Visa

In March 2018, the TSS visa will replace the subclass 457 visa. The TSS offers two streams: (1) Short-Term (2 years) and (2) Medium-Term (4 years). The applicable visa stream is not based solely on the length of assignment, but the type of occupation, the skill/qualifications of the candidate, salary, etc. The Labour Market Test will apply for both streams. In contrast, the Labour Market Test only applies to certain occupations under the 457 visa program.

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, check our website for further updates and follow us on twitter for real-time updates as they become available.

Sam Adair and Chad Graham Speak to Several Publications on Trump’s H-1B Executive Order

Sam Adair and Chad Graham spoke to several publications after President Trump released his “Buy American, Hire American” executive order.

Sam Adair was quoted in Cora Lewis’s BuzzFeed News article “Trump’s “Hire American” Order Could Be Good News For Silicon Valley,” Laura Meckler’s Wall Street Journal article “Trump Signs Order Calling for Changes in H-1B Visa Rules,” Matt Drange’s Forbes article “Trump Signals ‘America First,’ Silicon Valley Second With Work Visa Reform,” and Laura Francis’s Bloomberg BNA article “Trump’s Hire American Order Could Be Good for Employers.” 

Chad Graham was quoted in Sean Higgins’s Washington Examiner article “Trump calls for crackdown on foreign workers and products.”

Click here to read the BuzzFeed News article.
Click here to read the Wall Street Journal article.
Click here to read the Forbes article.
Click here to read the Washington Examiner article.
Click here to read the Bloomberg BNA article.

Trump Signs “Buy American, Hire American” Executive Order

On Tuesday, April 18, 2017, President Trump signed a new Executive Order that will likely impact the H-1B process in the coming months and years. The language of the Order instructs the Secretary of Homeland Security, Secretary of State, Secretary of Labor and the Attorney General to propose new rules and guidance in regards to the H-1B program to:  

  1. Protect the interests of U.S. workers and 
  2. Suggest reforms to ensure that H-1Bs are awarded to individuals who are the most skilled or highest paid. 

What does this mean for our clients? For now, there will not be an immediate impact. There was no specific time frame put on these proposed changes, so it is hard to anticipate how quickly the government will move on this. Further, for many U.S. based employers, this could result in an increase in availability of H-1Bs and the elimination of the H-1B lottery. It is not clear what would replace the lottery or how they would deal with demand for H-1Bs that exceeded the congressionally mandated numerical limits on the H-1B program. If reforms are aimed at the large Indian outsourcing businesses it could result in a significant reduction in demand for H-1B visas on an annualized basis. 

From what has been telegraphed by the administration, it seems they’ll be targeting low wage and entry level positions. There will be no immediate impact as any changes will have to go through an administrative rule making process at a minimum, and some changes would likely have to go through Congress. We anticipate that the intent of the Executive Order is really directed at the large IT outsourcing companies that use significant numbers of H-1Bs every year. 

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, check back here for further updates and follow us on twitter for real-time updates as they become available. 

Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions”

On March 31, 2017, USCIS issued a policy memorandum rescinding the “Guidance memo on H1B computer related positions” set forth by Terry Way, former Nebraska Service Center Director, on December 22, 2000.

The March 31, 2017 Policy Memo supersedes the 2000 memo which USCIS deemed to no longer be an accurate articulation of USCIS policy.

In particular, the Agency took issue with the 2000 memo’s reasoning that bachelor’s degrees are commonly required for the programmer position and the programmer position generally qualifies as a specialty occupation.

Terry Way based the analysis in the memo on the 2000-2001 edition of the Occupational Outlook Handbook, unpublished decisions of the Administrative Appeals Office, and the fact that computer related positions were in transition at the time that the memo was published.

USCIS calls the 2000 memo obsolete for the following reasons:

  • Computer related positions are no longer in transition and have evolved significantly since the 2000 memo was issued
  • Individuals with only an associate’s degree may enter programmer occupations and it is improper to conclude that USCIS generally considers the position of programmer to qualify as a specialty occupation
  • An entry level computer programmer position would not generally qualify as a position in a specialty occupation
  • Petitioners cannot solely rely on the Occupational Outlook Handbook, and must provide probative evidence to establish that the Beneficiary meets at least one of the criteria listed in 8 CFR 214.2(h)(4)(iii):
    • (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
    • (2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
    • (3) The employer normally requires a degree or its equivalent for the position; or
    • (4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

What this means for our clients:

More of the same. Although the 2000 memo was rescinded last week, USCIS has been moving away from the memo’s guidance for some time now. It is good that USCIS is clarifying its stance on the issue of specialty occupations in the programming field to promote uniform adjudications of H-1B petitions across service centers, but the standards set by H-1B regulations remain in place. All specialty occupations for H-1B purposes require at least a bachelor’s degree or its equivalent in the specific specialty.

 

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