NEWSLETTER: January 16, 2017

Newsletter – Latest U.S. Immigration Update: January 16, 2015

DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) EMERGENCY ALERT

In light of the incoming Trump administration, Nawlaw believes it might be advantageous for DACA beneficiaries to consider applying for emergency advance parole travel permission prior to Mr. Trump’s Presidential inauguration on January 20, 2017. DACA recipients are permitted to request emergency advance parole for education, work and urgent humanitarian purposes such as visiting sick relatives abroad who are suffering from a medical emergency. We highly recommend any DACA recipients eligible to request an emergency travel document to do so immediately so travel may be completed on or before January 20, 2017 in the event of upcoming law and policy changes. President-elect Trump has stated in the past that he may cancel all of President Obama’s Executive Orders, although he has also expressed concern for early childhood arrivals.

USCIS ANNOUNCES PROPOSALS TO INCREASE THE MINIMUM INVESTMENT REQUIREMENT FOR EB-5 PROGRAM

The Department of Homeland Security (DHS) has released a Notice of Proposed Rulemaking that will dramatically change the EB-5 Immigrant Investor Program. This notice gives stakeholders until April 11, 2017, to comment on the proposals before DHS makes its final ruling. Among others, the proposals include increasing the minimum investment amount from $500,000 to $1.35 million (a 170% increase) for investors seeking to invest in a targeted employment area (TEA), as well as increasing the standard minimum investment amount from $1 million to $1.8 million (an 80% increase).

EFFORTS TO KEEP DACA PERSONAL INFORMATION PRIVATE

Outgoing U.S. Department of Homeland Security Secretary Jeh Johnson has told federal lawmakers that the personal information provided by hundreds of thousands of young immigrants in applications for the Deferred Action for Childhood Arrivals program should not be used to deport them except in extreme circumstances. Mr. Johnson’s letter to 110 members of Congress stated that the government made it clear to applicants for the 2012 DACA program, which deferred enforcement action regarding their immigration status and granted them work permits, that the personal information they provided would not be used as a basis for later deportation actions. The letter also specified that the only possible exceptions relate to a national security or public safety threat, fraud, criminal activity or where law requires that a person be issued with a notice to appear.

WHAT TO EXPECT UNDER ATTORNEY GENERAL JEFF SESSIONS

President-elect Donald Trump’s nominees for top Cabinet posts have been in the spotlight this week as the Senate holds confirmation hearings. One such individual who has appeared before the Senate Judiciary Committee is Jeff Sessions who has been nominated by Mr. Trump for the important Attorney General post. For over two decades in the Senate, Mr. Sessions led an anti-immigration crusade by raging against illegal immigration and the excess of foreign workers. He has often been on the losing side of immigration clashes in the Senate, adopting stances at times seen as too restrictive even for fellow Republicans. If confirmed as Attorney General, the Alabama senator would instantly become one of the most powerful people overseeing the nation’s immigration policy, with wide latitude over the kinds of immigration violations to prosecute and who to deport. As Attorney General, Mr. Sessions could find ways to choke off funding for “sanctuary cities,” where local officials decline to help federal officials identity undocumented immigrants so they can be deported. As such, some immigrant advocates have been extremely alarmed by the idea of a Justice Department led by someone seen as far outside the mainstream.

RECENT L-1 INTRACOMPANY TRANSFER VISA STATISTICS

  • Recent statistics from USCIS and the National Foundation for American Policy has reported that 56%, 22%, 21%, 19% and 16% of L-1B (intracompany transferees with specialized knowledge) Indian, Chinese, Mexican, French and British national applicants are respectively denied. The denial rate for India is extremely high.
  • In Fiscal Year 2015, Requests for Evidence (RFE) were issued in 44% of L-1B petitions at the California Service Center, while only 33% of L-1B petitions were issued RFEs at the Vermont Service Center.
  • In Fiscal Year 2013 and 2014, there was an overall 34% and 35% denial rate of L-1B petitons.
  • In Fiscal Year 2015, Requests for Evidence (RFE) were issued in 55% of L-1A (intracompany transferees in a managerial or executive role) petitions at the California Service Center (its highest level in 20 years), while only 29% of L-1A petitions were issued RFEs at the Vermont Service Center.

OBAMA ENDS EXEMPTION FOR CUBANS WHO ARRIVE WITHOUT VISAS

President Obama has announced the termination of a 22-year-old policy that has allowed Cubans who arrived on U.S. soil without visas to remain in the country and gain legal residency. The action came through a new Department of Homeland Security regulation and deal with the Cuban government which places the finishing touch on President Obama’s effort to end a half-century of hostility between the U.S. and Cuba, and to establish normalized relations.

PENNSYLVANIA DRIVER’S LICENSE WILL NO LONGER BE A VALID ID FOR AIR TRAVEL COME JANUARY 2018

Beginning January 22, 2018, Pennsylvania residents will need another form of identification than their driver’s license to board a domestic flight. A Pennsylvania driver’s license will therefore not be a proper form of identification for domestic air travel after such date.

YEMEN HAS BEEN REDESIGNATED FOR TEMPORARY PROTECTED STATUS (TPS)

U.S. Department of Homeland Security Secretary Jeh Johnson has extended Yemen’s Temporary Protected Status for an additional 18 months – from March 4, 2017, to September 3, 2018. TPS designation is allotted to nationals of certain countries whose conditions temporarily prevent the country’s nationals from returning safely, or where the country is unable to handle the return of its nationals adequately. Current TPS beneficiaries from Yemen must re-register during the 60-day re-registration period from January 4, 2017, through March 6, 2017. Yemen nationals who do not currently have TPS may apply for TPS during the 180-day initial registration period from January 4, 2017, through July 3, 2017.

AIRPORT WARNINGS

We have previously advised our clients to avoid LAX if possible (as well as Newark International and Miami International) based on negative reports received from other clients. We were recently advised of four incidents:

  • The first three took place at LAX. The first one involved a clothing designer from the UK who was refused entry, barred for five years and sent back to the UK – after being subjected to 3 rounds of questioning, analyzing her cell phone and conducting a Google search (detained for over 18 hours before being sent back to London); the other one involved an older Canadian national, born in India, who was refused entry, sent back to Canada, and barred for 5 years, seeking to enter the U.S. on a flight originating in India. Also, she was held for over 9 hours, questioned extensively, although she was not fluent in English, but provided an interpreter, and then forced to sign a damaging statement.
  • The third incident in LAX involved an Indian national holding a multiple entry B-1/B-2 visa who was stopped after traveling to L.A. for a trade exhibition. His visa was cancelled by the CBP officer in accordance with Section 22 CFR 41.122(H)(3) which permits a withdrawal of application in lieu of a 5 year bar. The officer checked the database and determined a previous overstay and subsequent denial of a change of status to L-1A as well as a failure to file for an extension of stay prior to the expiration of his I-94 authorized stay.
  • The fourth incident took place at Newark International Airport and involved a Canadian national born in India. The individual held a valid TN visa, was questioned extensively about the nature of the business that he works for, the nature of his position, and even asked if he was related to the owner.

We have also been advised of a Canadian national traveling by bus seeking to visit the U.S. whose stay was limited to one month.

EMPLOYEE DISCHARGE WARNING

The discharge of an employee could result in a federal I-9 audit. We were recently advised by a New Jersey company that a discharged employee most likely complained to the authorities which later resulted in a complete I-9 audit wherein the federal investigator requested I-9 forms and complete payroll data regarding all employees.

SAMPLING OF RECENT NAWLAW ACCOMPLISHMENTS

  • EB-1 approval for a self-petitioner Brazilian national working in International Finance
  • H-1B approval for an Irish national working as a Senior Interior Designer
  • H-1B approval for a Canadian national working as a U.S. District Management Analyst
  • H-1B approval for an Irish national working as a Project Manager
  • L-1A approval for an Indian national working as the President of the company
  • L-1A approval for an Indonesian national working as a Regional Controller
  • PERM (Labor Certification) approved for an Indian national working as an Accountant in a jewelry company
  • PERM (Labor Certification) approved for an Indian national working as an Accountant in a construction company
  • TN-1 approval for a Canadian national working as an Economist
  • I-140 approval for an Indian national working as a Vice President and Equity Researcher for an investment bank
  • I-140 approval for a Chinese national working as a Research Associate for an investment bank
  • I-140 approval for an Italian national working as a Project Manager for a television/ film production company
  • I-140 approval for a French national working as a French and Latin Literature Teacher for a school in NYC
  • I-140 approval for an Irish national working as a Project Manager for a construction firm
  • Many B-1/ B-2 approvals & extensions that were approved within 2-3 months of filing

RECENT CLIENT QUERIES

  1. Canadian national currently on a TN visa who is thinking of marrying a U.S. citizen asks: Is my visa status in serious jeopardy because of immigration law changes that may quickly follow the inauguration? Do I need to rush to get married? Ans. We don’t believe the new administration is going to scuttle the current system regarding “legal” immigration which has been in place for over 30 years. That would take an act of Congress and does not appear to be a priority – unlike “illegal” immigration and protection of the southern border with Mexico.
  2. Green card applicant from Bhutan, married to a U.S. citizen, who has been granted advance parole travel permission asks if it is safe to travel abroad based on President-elect Trump’s anti-immigration policies? Ans. Yes, we have no reason to believe that Mr. Trump will be altering the current adjudication system for green cards.
  3. Client from Turkey interested in the EB-5 investment green card asks: Do you have a list of businesses that could actually qualify for EB5? I heard that businesses such as gas station franchise, hotel franchise, manufacturing facility, etc. Since you mentioned it should be a brand new business, I guess, opening a site which is totally brand new is the option. Fast food restaurants such as McDonald’s, Arby’s or Dairy Queen is something I also have in mind. By the way, would a gas station(s) be good for investment? Ans. Yes, the ideal platforms are fast food restaurants such as McDonald’s, Burger King, Popeye’s, etc. – provided you can show 5 day-time employees and 5 later in the day – split shift. It all depends on the number of employees needed to operate the business. Dairy Queen and Seven Eleven, for example, can operate with only 2 employees per shift. Hence, that won’t work.
  4. Client from Australia currently on STEM OPT asks: What are my options if I leave my current employer, am currently on sick leave, and seek a position with a new company or set up my own company? Ans. In general, F-1 OPT STEM students may be permitted to remain in the United States while on paid administrative leave for 2-3 weeks, so long as the leave of absence is granted under an employer’s standard leave policy (e.g. vacation or sick days) and is authorized by the Designated School Official (DSO). The federal regulations strictly limit leave of absence for F-1 students. Hence, we strongly recommend that you contact your international student adviser to determine if your leave of absence will require that you submit an Application for OPT/STEM Extension Employment Update and a new Form I-983 Mentoring and Training Plan. Please note that volunteer and/or unpaid positions and self-employment are not allowed under STEM OPT extensions.
  5. Client from Australia asks: My three year O-1B visa renewal is coming up in November and although I’ve been reading the newsletters I’m just wondering if there is anything I should be aware of regarding the renewal being affected with the new President-Elect etc. Ans. We don’t believe that the President-elect and his new administration will seek to alter the existing nonimmigrant visa framework.
  6. Client from Australia asks: I am currently on STEM OPT but have recently resigned from my employer effective April 30, 2017. What are the requirements in accordance with federal regulations? Ans. According to federal regulations, when subject to a 24-month STEM OPT extension you are allowed 150 days of unemployment time. Although you have already resigned from your company the unemployment period will begin on the effective date of resignation which is April 30, 2017. Unemployment is generally considered to be a material change and should customarily be reported to USCIS. Therefore, you are permitted 150 days commencing from April 30th to be unemployed without forfeiting your STEM OPT status.
  7. Client from India currently on an H-1B visa seeking to revalidate the visa at a U.S. Consulate in Canada asks: will the change in administration next week have any effect on my revalidation application? Should I go before January 20th? Ans. No, we don’t anticipate that there will be any change in the current H-1B visa revalidation policy.
  8. Foreign national whose minor children are currently holding F-1 student visas issued in Moscow asks: If they change their home address is it now required, according to federal regulations, to amend the F-1 visas? Ans. No, federal regulations do not require that they obtain new F-1 visas based merely on a change of address.

CLIENT TESTIMONIALS

Testimonial from Indian national upon L-1A approval: “That’s great news! Thanks everybody, very much appreciate the work put in for me. Good start to the year already!”

Testimonial from Polish national: “I just want to tell you that I made it to the U.S. with no problems – as you said. Great thanks for advices and keeping me positive.”

Testimonial from Belgian national upon O-1B approval as a performer: “OMG OMG OMG!!! Yayyyyyyy! Thank you Thank you Thank you Thank you Thank you Thank you Thank you so much for you help and work!!!!!!Thank you!!!!”

Testimonial from client upon approved green card: “Thank you for guiding us through the Green card process this year- the interview last week was successful and we received a stamp”