U.S. Immigration Alert - Changes to U.S. Employment-Based Immigration
U.S. IMMIGRATION ALERT
Changes to U.S. Employment-Based Immigration
- New Travel Ban Effective October 18, 2017
- Changes to H-1B Program
- Postponement of International Entrepreneur Rule
- Denials of I-131 Applications Subject to International Travel
- In-Person Interviews for All Employment-Based Immigrant Visa Applications
- Increased Administrative Processing
In carrying out the Hire American Policy formulated in his April 18, 2017 Executive Order, the President directed the Secretaries of the Department of State (DOS), Department of Labor (DOL) and Homeland Security (USCIS), as well as the Attorney General, to propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of the U.S immigration system. The response by federal agencies in carrying out this Executive Order has been swift, with USCIS working on a combination of rulemaking, policy memoranda and operational changes, the Department of State (DOS) making changes to its Foreign Affairs Manual (FAM) including new language referencing the Executive Order regarding the adjudication of H, L, O, P and E visas, and DOL and DOS increasing their monitoring and enforcement efforts of H-1B employers.
New Travel Ban Effective October 18, 2017
On September 24, 2017, the Trump administration issued new travel restrictions on foreign nationals seeking to enter the U.S. from eight countries which include Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, that goes into effect on October 18, 2017. While Iraq was not specifically included in this ban, nationals of Iraq will be subject to additional screening measures. Country-specific travel restrictions apply as follows:
Chad Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Iran Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they will be subject to enhanced screening.
Libya Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
North Korea Suspends the entry of all immigrants and nonimmigrants.
Somalia Suspends the entry of immigrants, and requires enhanced screening of all nonimmigrants.
Syria Suspends the entry of all immigrants and nonimmigrants.
Venezuela Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).
Yemen Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Changes to H-1B Program
President Trump specifically highlighted the H-1B visa program and directed the agencies to suggest reforms to help ensure that H-1B visas are awarded only to the most skilled and highest paid beneficiaries. Changes have already included the temporary suspension of premium processing for most H-1B petitions (although premium processes will fully resume on October 3, 2017) and petitioners have seen a surge in Requests for Evidence on H-1B cap petitions where a Level 1 wage was indicated on the Labor Condition Application.
Postponement of International Entrepreneur Rule
The International Entrepreneur Rule is a proposed regulation by USCIS to increase the presence of foreign entrepreneurship in the U.S. Under this rule, qualified foreign entrepreneurs would have been granted temporary parole to the U.S. in order to build and scale their businesses. Foreign entrepreneurs wishing to enter or remain in the country to build their business operations would need to meet certain criteria that would be reviewed on a case-by-case basis by the Department of Homeland Security (DHS). It was supposed to go into effect on July 17, 2017, but has been postponed.
Denials of I-131 Application Subject to International Travel
In a recent trend, USCIS has begun to deny advance parole (AP) applications (Form I-131) for applicants who have traveled abroad before their applications are approved. This is in stark contrast to the previous, longstanding policy which allowed an AP applicant to travel abroad while the case was pending, as long as the individual had other valid means of being readmitted to the United States, such as a valid L-1 or H-1B visa.
In-Person Interviews for all Employment-Based Immigrant Applications
Effective October 1, 2017, all applicants and beneficiaries of an employment-based immigrant visa petition (Green Card) will be subjected to a personal interview. Previously, applicants in this category did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.
Increased Administrative Processing
There has been a noticeable increase in visa application processing delays due to Section 221(g), otherwise known as "Administrative Processing." Such processing can be triggered by the following factors: applicants with intended occupations in targeted fields on the Technology Alert List; applicants or "namesakes" appearing in national security and law enforcement databases, such as the Interagency Border Inspection System (IBIS); or information found on Form DS-160. Visa processing delays due to additional administrative processing can last from a couple of weeks to several months. In most cases, Consular Posts will retain the application and the applicant's passport until the matter is resolved. It is important to note that the visa applicant will be prohibited from entering or re-entering the United States until the administrative processing has been completed.
We will continue to closely monitor developments in visa application processing and will provide updates as necessary.