NEWSLETTER: November 15, 2016

Newsletter – Immigration Update: November 15, 2016

WHAT LIES AHEAD IN U.S. IMMIGRATION WITH PRESIDENT-ELECT DONALD TRUMP

The election of Donald Trump means that immigration enforcement is likely to take over as the core of immigration policy throughout the next four years. While it remains to be seen whether Mr. Trump will actually follow through with his radical campaign promises, there are two aspects of immigration that are likely to be swift: 1. The elimination of President Barack Obama’s deferred action for childhood arrivals (DACA) program that provides deportation relief and work permits to young, undocumented immigrants who came to the country as children; and 2. A dramatic reduction in the admission of refugees, particularly from Syria. However, broader immigration changes such as building a wall or extended fence along the southern border and conducting more deportations of undocumented immigrants will require congressional action, which will not only require Donald Trump to reconcile Republican and Democratic policy differences, but also differences within the Republican party itself. Recent polls have shown that 74 percent of the Republican electorate supports a pathway to legal status for undocumented immigrants, while 62 percent of Trump supporters do not want a border wall, according to American Immigration Lawyers Association Executive Director Ben Johnson. Nevertheless, Mr. Trump’s immigration campaign included a promise to “return to historic norms” in terms of both legal and illegal immigration. This will likely include adding more protection for U.S. workers against the disbursement of legal employment-based visas to foreign nationals such as the H-1B program that provides temporary visas to skilled foreign workers. This will nevertheless also require legislation. As recently reported in Tech Republic, “Trump’s opposition to H-1B visas has experts concerned about filing high-skilled jobs.” We will keep you posted as to any developments on this critical issue.

HOUSE SPEAKER PAUL RYAN ATTEMPTS TO CLARIFY PRESIDENT-ELECT DONALD TRUMP’S POSITIONS

House Speaker Paul Ryan has stated that despite Donald Trump’s campaign rhetoric, lawmakers are not prepared to form a deportation force to round-up and deport undocumented immigrants. Mr. Ryan stated, “I think we should put people’s minds at ease: That is not what our focus is. That is not what we’re focused on. We’re focused on securing the border. We think that’s first and foremost, before we get into any other immigration issue, we’ve got to know who’s coming and going into the country.” This aligns with Mr. Trump’s statements in a recent CBS “60 Minutes” interview where he retracted from his campaign promise to deport all undocumented immigrants, and instead pledged to focus on those who have committed crimes within the United States, a similar stance as the Obama administration. Mr. Trump stated, “after the border is secure and after everything gets normalized, we’re going to make a determination on the people that they’re talking about who are terrific people.” Mr. Trump, nevertheless, did insist that he still plans on building a U.S.-Mexico border wall though he did recognize that he would accept a fence instead of a wall in certain areas.

THOSE BENEFITING FROM ADMINISTRATIVE CLOSURE FEAR LENIENCY WILL NOT OUTLAST CURRENT ADMINISTRATION

The Obama administration has frequently used a tool known as “administrative closure agreements” to pause deportation proceedings of a non-criminal foreign national. For example, when a foreign national is denied asylum while in the United States unlawfully, she makes herself known to the American government as soon as she files the asylum application. Once denied, the government has frequently reached an agreement to pause proceedings rather than deporting the foreign national immediately. This “administrative closure agreement,” which nearly 24,000 immigrants have accepted this year, means that while the foreign national is not allowed to live in the United States, she is not forced to go either. However, the fate of these foreign nationals remain uncertain with the approach of the next administration as they have exposed themselves and their information to the U.S. government. Nawlaw will keep you posted on this important issue!

THE UNITED STATES CUSTOMS AND BORDER PROTECTION IS INCREASING AGENTS AT THE SOUTHERN BORDER

U.S. Customs and Border Protection has announced that it is sending 150 extra agents to the Rio Grande Valley in South Texas as authorities report a surge in the number of undocumented children and families trying to cross into the United States from Mexico. These numbers have been increasing as of late where 46,195 people were apprehended at the border in October, compared to 39,501 in September and 37,048 in August, according to Department of Homeland Security Director Jeh Johnson. There are currently 41,000 individuals in detention facilities, which typically fluctuates between 31,000 and 34,000.

REVISED EMPLOYMENT ELIGIBILITY VERIFICATION FORM I-9

Form I-9 has been required since November of 1986 when Congress passed the Immigration Reform and Control Act (IRCA) which prohibits employers from hiring people, including U.S. citizens, for employment in the United States without first verifying their identity and employment authorization. A new version of Form I-9 is now available which will be required by employers as of January 22, 2017. Among its changes, there is a streamline certification for foreign nationals as well as the addition of prompts to ensure information is entered correctly.

DATA SHOWS THAT THE NUMBER OF UNDOCUMENTED WORKERS IS NOW STABILIZING

The Pew Research Center indicates that the number of unauthorized immigrants in the U.S. working or looking for work is down slightly since 2009, the year the Great Recession officially ended. This includes 8 million unauthorized immigrants who were working or looking for work in the U.S. in 2014, compared to 8.1 million in 2009. While the reason for the stabilization of undocumented immigration remains uncertain, where speculation ranges from the recession to increased immigration enforcement, such data refutes the general impression that undocumented immigration is endlessly growing.

FIRST FEE INCREASE IN SIX YEARS TO TAKE EFFECT ON DECEMBER 23, 2016

U.S. Citizenship and Immigration Services (USCIS) has recently announced that the filing fees for most immigration applications and petitions will increase by a weighted average of 21%. These increases come as a result of USCIS being almost entirely funded by application and petition fees where USCIS is required by law to conduct fee reviews every two years to determine necessary funding levels. Applications postmarked on or after Dec. 23 must include the new fees.

USCIS AGGRESSIVELY REVIEWS F-1 STUDENT CHANGE OF STATUS APPLICATIONS

The American Immigration Lawyers Association (AILA) has been receiving reports of a trend with California Service Center (CSC) adjudications that routinely deny change of status applications from a nonimmigrant status (predominantly B-2 visitor status) to F-1 student classification. AILA has noted that while most of these reported applications were filed prior to the expiration of the applicant’s underlying nonimmigrant status, they were denied because of these applicants’ failure to maintain status until 30 days before the school program start date. This trend, however, is a departure from prior practice and AILA has raised the issue with USCIS and CSC.

MULTICULTURAL MARRIAGES ARE ON THE RISE

According to the United States Census Bureau, multicultural marriages (interracial, interethnic and interreligious) have been increasing over the past four decades. Currently, at least 7% of married-couple households now include one native and one foreign-born spouse.

Q&A ON TAXATION OF J-1 EXCHANGE VISITORS

How are J-1 visa holders classified for tax purposes?

  • J-1 visa holders are generally considered non-resident “exempt” aliens for U.S. income tax purposes. The Internal Revenue Service (IRS) uses the substantial presence test to determine if someone will be considered a U.S. resident for tax purposes. This means that one must be physically present in the U.S. for at least 31 days during the present year, and 183 days during the last 3 years including the present year, to be considered a U.S. resident for tax purposes. However, foreign nationals in J Exchange Visitor status are not subject to such residency formula and thus remain nonresident aliens for U.S. income tax purposes longer than other nonimmigrants. The same applies to spouses and other dependents on J-2 derivative status.

Are “exempt individuals” also exempt from filing returns and paying taxes?

  • The term “exempt individuals” does not refer to someone being exempt from U.S. tax law. Rather, it pertains to the exemption from the substantial presence test described above. Having substantial presence in the U.S. generally means you will be considered a resident alien for tax purposes.

Are J-1 visa holders required to pay employment taxes (Social Security and Medicare)?

  • J-1 visa holders who qualify as non-residents (i.e. exempt individuals) are exempt from paying employment taxes as long as their services are lawful within their nonimmigrant status, and the work is performed to carry out the purpose for which such status was issued. This exemption does not apply to spouses and children on J-2 status.

Please note that some J visa holders may be eligible for certain tax treaty provisions based on their country of origin.

SAMPLING OF RECENT NAWLAW ACCOMPLISHMENTS

  • H-1B Cap approval for an Indian national working as a Systems Analyst
  • H-1B Cap approval for a French national working as a Teacher
  • H-1B Cap approval for an Irish national working as a Project Manager
  • H-1B Cap approval for an Irish national working as a Systems Engineer
  • H-1B Cap approval for an Irish national working as a Law Clerk
  • H-1B Cap approval for an Irish national working as an Accountant
  • H-1B Cap approval for an Irish national working as a Marketing Account Specialist
  • H-1B approval for an Indian national working as a Business Development Specialist
  • H-1B approval for an Indian national working as a Physician
  • H-1B approval for an Indian national working as a Business Systems Analyst
  • H-1B approval for a U.K. national working as a Software Developer
  • H-1B approval for an Irish national working as a General Compliance and Operations Manager
  • H-1B approval for an Irish national working as a Materials Production Editor
  • H-1B approval for a Japanese national working as a Health Educator
  • H-1B approval for an Irish national working as a Cost Estimator
  • L-1A approval for an Indian national working as a Vice President of Operations and Product Development
  • O-1B approval for a Filipino national working as a Television Producer
  • O-1B approval for a French national working as an Architectural Designer
  • O-1B approval for a U.K. national working as an Executive Chef
  • O-1 approval for a Canadian national working as an Actor

RECENT CLIENT QUERIES

  1. O-1 writer from the UK asks, “I’m wondering how last night’s result will affect my visa renewal. Does it make sense to try and rush the application through before Trump’s inauguration? My current O-1 visa expires at the end of February.” Ans. We don’t expect to see any impact regarding these adjudications.
  2. Potential J-1 applicant from the UK asks, “is a J-1 still a realistic goal? I read Trump would scrap them if elected…do you think I could get one before that?” Ans. It is highly unlikely that he will scrap J-1s. In connection with his businesses, Mr. Trump has previously utilized legal immigration mechanisms such as the J-1, H-1B, O-1 and H-2.
  3. Green-card holder from Italy married to a foreign national from Scandinavia asks how can the election affect his and his wife’s status? Ans. It should not make things more difficult. We don’t believe that Mr. Trump will be tampering with the laws and regulations that have been in effect for many years regarding legal immigration.
  4. Client from Israel on an expired visitor visa asks if the window for him to get married and settle his affairs is about to be closed in January? Ans. No, we don’t foresee any change regarding “legal” immigration – he will most likely not change the entire system that has been in place for well over thirty years involving both family and employment-based immigration.
  5. Client from Israel asks whether Obama could sign some executive order regarding immigration before leaving? Ans. Highly unlikely since his last Executive Order in November 2014 was challenged in the courts and it reached the Supreme Court which was deadlocked in June and sent the case back to the lower court for further consideration.
  6. Foreign national from India married to a U.S. citizen for several years felt forced to separate from him because of spousal abuse asks if, in light of Donald Trump having been elected president, she should try to reconcile with him? Ans. Absolutely not – she is eligible for a green card under the Violence Against Women’s Act (VAWA) and should not compromise her safety out of fear.
  7. Columbia Master’s graduate holding an F-1 visa that is now expired was granted post-completion OPT but left the U.S. in June for several months and recently returned on ESTA asks if he can resume his unused OPT time? Ans. Students on post-completion OPT may have up to 90 days of unemployment. The problem is that by not using the OPT he has exceeded the 90-day limit. Therefore, he cannot now apply for a new F-1 visa.
  8. L-1A visa holder asks if he can send back one L-1 employee to India and replace him with another? Ans. Yes, provided the second employee has the requisite one year prior experience during the past 3 years and is presently employed as an executive or manager with the parent company in India. L-1 visas, however, are not simply interchangeable.
  9. H-1B visa holder from Canada asks how fast she can obtain a TN visa? Ans. If you are willing to return to Canada and apply at a port of entry you can accomplish this in a matter of days.