Newsletter: September 28, 2017

WHAT IS IT?

President Trump has recently announced new travel restrictions for permanent foreign nationals from Chad, Libya, Iran, North Korea, Somalia, Syria, Venezuela, and Yemen. This is a measure that replaced the previous controversial travel ban which expired this past Sunday.

Hearings for the previous travel ban in the U.S. Supreme Court were set to begin on October 18th, however, the Supreme Court cancelled oral arguments this past Monday, September 25 because of the new travel ban.

The replacement restrictions will be phased-in beginning next month and the restrictions will differ from country to country. No current validly issued green cards, visas, or travel documents will be revoked in light of the new restrictions.

Furthermore, U.S. consular officers will have the authority to waive the new restrictions on a case by case basis if a foreign national can prove that they do not pose a threat to national security and that denying entry into the U.S. would cause undue hardship.

WHAT ARE THE RESTRICTIONS?

The new restrictions vary between the following named countries. Immigrants and nonimmigrants from North Korea and Syria are now denied entry. Immigrants and nonimmigrants on certain business and tourist visas from Chad, Yemen and Libya are now denied entry. Somalian nationals are now denied entry as immigrants but can enter as nonimmigrants through heightened screening and vetting. Entry from Iranian nationals is now suspended, except those with valid student and exchange visas who will be subject to heightened screening and vetting. Lastly, entry of certain Venezuelan government officials and their family members as nonimmigrants for certain business and tourist visas is now suspended.

Republican Senators Thom Tillis, James Lankford and Orrin Hatch have unveiled their immigration reform effort to attempt to fix the now defunct DACA program.

Known as the SUCCEED Act (Solution for Undocumented Children through Careers Employment Education and Defending our nation), this program allows recipients to receive “conditional status” if they maintain gainful employment, are pursuing higher education or are serving in the U.S. military. Eligibility for this protective status requires recipients to have arrived in the U.S. before 16 years of age, hold a high school diploma or equivalent, pass an extensive criminal background check, submit biometric data to the Department of Homeland Security and be able to pay off any existing federal tax liabilities. Recipients will receive 5 years of protected status and would be eligible to apply for a green card in the future.

Secretary of State Rex Tillerson recently sent a memo to U.S. Embassies and Consulates around the world informing them that visitors who require a visa before entering the U.S must follow through with their stated itineraries for the minimum of 3 months. If within the 3 months the visitor has done something they failed to state in their interviews for the visa (eg. go to school, or apply for a job), officials will presume the visitor has deliberately lied.

This presumption would make it extremely difficult for an individual to get a new visa, change their status, or renew a preexisting benefit. If they are found to have deviated from their stated plans while in the U.S., the visitor will be eligible for deportation.

This policy shift is starkly different from the previous policy where changes in itinerary plans only within the first month of arriving to the U.S. were deemed as a misrepresentation.

The U.S. Department of Homeland Security (DHS) will be expanding the kinds of information it collects on immigrants to include social media information and search results. The new policy will take effect on October 18th and covers all immigrants including those who have obtained a green card and even naturalized citizens.

The Trump Administration is considering ending or limiting the J-1 Visa Program in the near future as it pushes to limit the number of foreign nationals from entering the United States. The J-1 Visa Exchange program helps bring in over 100,000 trainees each summer as part of an educational and cultural exchange with the U.S.

Furthermore, the J-1 Program provides smaller au pair programs that allow foreigners to live in American homes to support child care needs while having cultural exchanges with their hosts. In total, the J-1 program currently provides opportunities for 300,000 foreign visitors to experience U.S. culture and engage with local citizens.

Congress recently decided to extend the current EB-5 law through December 8, 2017, with no new changes. The current investment amount for a targeted employment area is $500,000. Congress took into account the need to fund Hurricane Harvey relief, national debt, and future budget changes in deciding to extend the EB-5 visa program.

Clients should be aware that there is still a possibility that an EB-5 compromise bill introduced by Senator Cornyn may still pass the future. Neil A. Weinrib and Associates will continue to monitor any changes to EB-5 Visa law.

Attorney Generals in 15 different states and D.C. have filed suit against President Trump over his decision to end the Obama-Era DACA policy. The lawsuit argues that racial prejudice was the primary motive for ending the program. The lawsuit also argues that the Trump Administration violated procedural regulations when they chose to end DACA. The lawsuit further emphasizes the effects that ending the program would have on the states. The states argue that eliminating the program would hurt their local economies by depriving the DACA beneficiaries’ ability to actively contribute to the states’ economy.

Effective October 1st, Immigration authorities will require an in-person interview for certain green card applicants. This will apply to anyone changing from an employment-based visa to lawful permanent resident status, and will likely cause a severe slowdown in processing times. Asylum visa-holders and family members of refugees will also require an in-person interview when applying for a provisional status.

The recent expansion of in-person interviews follows the Trump Administration’s pledge of extreme vetting for immigrants and visitors seeking to enter or stay in the U.S.

On Thursday, September 14th, a group of plainclothes ICE agents staked out a Brooklyn courthouse to arrest an individual they knew would be present for a court appearance. The agents refused to identify themselves to onlookers ahead of the arrest and ICE has confirmed that it arrested four undocumented individuals suspected of participating in gang activities. Nevertheless, these four individuals were only in court that day for charges of trespass.

Typically, New York State protocol requires that ICE officers inform courthouse staff of their intent to show up and make arrests. However, the agents did not inform the courthouse her nor did they show warrants before entering the courthouse.

According to a recent POLITICO/Morning Consult poll, approximately 58% of U.S. voters are against deporting DACA beneficiaries and want a legal pathway for Dreamers to become U.S. citizens if they meet a certain standards.

Support for DACA beneficiaries to stay in the U.S. extends across different political parties as 84% Democrats, 74% independents, and 69% Republicans agree that Dreamers should stay.

Several top corporate leaders have rallied against the Trump Administration’s recent decision to end the DACA program. JPMorgan Chase CEO Jamie Dimon, Facebook CEO Mark Zuckerberg, and Apple CEO Tim Cook are a few of the large number of companies enraged with the decision. Several corporations are concerned with the negative impact that removing DACA would have on the U.S. economy as hundreds of thousands of Dreamers are currently lawfully contributing to the national economy.

Executives are now urging Congress to pass legislation to protect Dreamers as a top priority. Mark Zuckerberg recently stated that “No bill is perfect, but inaction now is unacceptable.”

California lawmakers have recently voted to make California a sanctuary state. Known as the “sanctuary state” bill, the approved act would establish new protections for undocumented immigrants living in the country. The bill would also forbid state and local law enforcement agencies from sharing information or being deputized by federal immigration authorities. In direct opposition of the Trump administration’s tough policies, the bill also forbids police and sheriffs from asking an individual about their immigration status.

A federal judge based in San Antonio has recently blocked Texas from enforcing a ban on “sanctuary cities” citing constitutionality concerns. The ruling is only temporary and prevents the ban from being implemented until the lawsuit continues to be fought in court. The law at issue, known as S.B. 4, prohibited cities and counties from creating policies that would restrict immigration enforcement, would allow police to inquire about an individual’s immigration status, and would threaten officials who violate S.B 4 with fines, detainment, and removal from office.

Processing Delays – We are now observing minor delays in terms of USCIS processing of green card adjustment applications, obtaining work permits and obtaining advance parole travel permission. This is likely due to a surge in filings because of the “Trump” effect.

H-1B RFE’s – We are still experiencing many H-1B RFE’s (Requests for Further Evidence) on the basis of either Level 1 wage issue or specialty occupation issue. Level 1 wage issue RFE’s are divided into two subsets: 1) the Level 1 wage salary is inappropriate given the complexity of job duties; and 2) the job offer is not a specialty occupation because the Level 1 wage indicates an entry level position. The specialty occupation RFE’s target those whose salaries are above Level 1. The American Immigration Lawyers Association (AILA) has suggested that these RFE’s are a result of the “Buy American, Hire American” policy implemented by the Trump administration this April.

Heightened Scrutiny At Overseas Airports – Italian national married to a U.S. citizen waiting for his green card interview who has been granted advance parole travel permission was recently questioned very intensely while trying to board a flight from Paris to New York regarding his case.

New Security At Some U.S. Airports – Irish national who previously held a J-1 visa which expired in March and who then sought a change of status to B-2 visitor was questioned at Stewart Airport in Westchester County, NY. While about to board the aircraft he was asked whether he overstayed his J-1 visa!

Confusion as to Applicability of the Visa Bulletin – The Department of State publishes the Visa Bulletin monthly to track the priority dates currently being processed by USCIS. There are two charts for the family based green card applications and two charts for the employment-based green card applications. The first chart reflects the Final Action Dates and the other chart reflects the Dates for Filing. For October 2017, the chart for Dates for Filing shows a two-year jump in priority date which resulted in confusion especially for Chinese and Indian nationals who have been looking forward to their priority dates becoming current. Unfortunately, the chart for Dates for Filing is not yet applicable or controlling until USCIS says so. For October 2017, USCIS still follows the chart for the Final Action Dates. It is only when USCIS determines that the Dates for Filing chart can be used will the dates in such chart become relevant. Otherwise, USCIS will only refer to the Final Action Dates chart.

USCIS Is Now Making Connections – USCIS is now checking nonimmigrant visa applications to see if there is any connection with a green card (immigrant visa) application. For example, they have denied a B-2 visitor visa extension upon learning that the Indian national has a pending green card application.

Client from Bulgaria asks: “My wife is currently attending school pursuant to an F-1 visa and the school is now saying that she can take a semester off – is this permitted?”

Answer: F-1 regulations provide that a student is permitted to take leave either for health reasons or pregnancy.

Client from Canada asks: “I’ve just received my E-2 visa which is valid for five (5) years. But what do I do if my current passport is expiring before this time?”

Answer: You can carry the old passport containing the actual visa together with your new passport.

Client from Singapore asks: “I am boarding a flight back to the United States on Singapore Airlines, August 31st 11:10 AM arrival. I had left my I-20 in the United States but have pictures of it from my roommate who has already entered the country. It currently does not have a valid travel signature and told her to get it signed, but the school did not issue it because I was not present. I have faced this issue before many years ago, and went through a process whereby I entered with a B-1/B-2 Visa and changed my status by sending documents to DHS or USCIS. Is there a specific name to this process that I can mention to immigration?”

Answer: CBP can admit you as a returning F-1 student, without a properly endorsed I-20, but it is entirely in their discretion. That’s why they may deem it easier to admit you as a B-2 instead – easier and less paperwork. If the latter occurs you can simply take a trip to Canada or Mexico and seek re-entry with a properly endorsed I-20 at a later time. Or, you can try to explain the circumstances to the officer and they can hopefully admit you without incident on the pre-existing F-1.

Client from Italy asks: “On September 20th it will be 6 months since my last departure from the U.S. and the next weeks are so busy that I am having a hard time finding a way to fit in a trip to New York, to prevent my Green Card status from expiring – what do you advise?”

Answer: Federal regulations currently require lawful permanent resident (green card holders) to return to the U.S. within 6 months unless you have a very good reason as to why you were unable to return – i.e. serious health problem involving yourself or a close relative. CBP officers will certainly ask as to why the delay – especially now that they have been given greater power and authority since President Trump was elected and has authorized them to exert the same to better protect the nation’s borders.

U.S. citizen wife of green card adjustment applicant from Brazil who is involved in an altercation with an Uber driver and charged with criminal assault asks: Will this affect my husband’s pending green card application?

Answer: Yes, even if the criminal charges are dismissed it will show up on the federal FBI report and the USCIS officer will be aware of this at the time of the interview. Also, the applicant will be asked at the time of interview if he has ever been arrested? He must acknowledge “yes” even if the charges are dismissed.

H-1B visa holder from Georgia asks: Am I permitted to attend school while on an H-1B visa which is expiring shortly?

Answer: Yes, an H-1B visa holder is permitted to attend school on a part-time basis. However, if you wish to attend full-time you will need to seek a change of status to F-1 student – or, alternatively, apply for an F-1 visa at the U.S. Consulate in your home country.

H-1B visa holder from Ireland (with 2 years remaining H-1B time) who has an approved PERM labor certification and is about to file the I-140 immigrant visa petition and accompanying adjustment of status application asks: “I’ve got a potential offer from a start-up construction company and am wondering if I can transfer at this time?”

Answer: The basis USCIS portability rule permits you to change to the same or similar position after 180 days have elapsed from the filing of the I-140 petition and adjustment of status application. Therefore, we don’t recommend that you change jobs before that time. In addition, USCIS is now proposing interviews for AOS applicants so the issue may arise at a later time. Also, while on H-1B you can be an investor and/or owner of another business and derive dividends but you are not permitted to actually engage in day to day employment with the entity.

Client from Israel currently in the U.S. on a B-1/B-2 visa asks: “Is it safe for me to return to Israel and seek to return in 2-3 weeks and say that I am seeking to acquire a business? And, is it safe to arrive at Newark Airport?”

Answer: We strongly advise you to wait at least one month before seeking to return to the U.S. and recommend that you justify your return based on a combination of both seeking a business as well as travel for pleasure. We also suggest that you seek to return at JFK and not Newark airport since the latter has been known to be very strict.

Green card holder from Italy has received a jury Summons from New York County and asks: Am I required to serve on a jury?

Answer: No, only U.S. citizens are required to report for jury duty – not lawful permanent residents.

Danish national holding a multiple B-1/B-2 visa asks: I have been requested to perform services on behalf of a school based in Ghana with a Danish connection. What type of visa do I need?

Answer: Although the B-1 visa permits you to engage in business on behalf of your overseas employer, if in fact you are engaged in “working” in the U.S. you will require a proper visa to do so such as the H-1B but a U.S. based employer is required. However, if you are merely performing consulting services on behalf of an overseas entity such a visa may or may not be required. It really depends on the nature of the services being provided. Kindly note that the CBP officer may need to be convinced that you will not be engaged in formal employment in the U.S.

Dentist from India has an approved labor certification filed in 2015 and an approved I-140 petition which, according to federal regulations, permits an extension of 3 years but believes has been revoked. She then resigns and migrates to a new employer who files an H-1B on her behalf in June. She is concerned that the I-140, and asks, if revoked, could this interfere with my H-1B transfer?

Answer: There is no actual federal regulation addressing this issue but USCIS has recognized that you are eligible for a three (3) year extension even if the I-140 petition has been withdrawn. However, there is no guidance on what happens if the I-140 petition has actually been revoked.

F-1 student from Spain currently on OPT asks: If it’s okay that he receives a 1099 from the company?

Answer: Yes, a 1099 should not present a problem. Federal regulations governing students even permit self-employment on OPT.

Green card holder asks: How are the 180 days are counted in connection with returning to the U.S.? Do I need to stay in the States for at least 180 days within a calendar year, e.g. 2017 or 2018? Or it’s counted from the day I leave the country?

Answer: Essentially, the 180 rule is calculated based on a continuous amount of time – that is, remaining outside the U.S. for a full 180 days at a time – not broken up over the one year period. However, if you have a very good reason (i.e. close relative is very sick) and remain out of the U.S. for over 180 days you will generally be permitted to re-enter the U.S. without incident. But, it is still best to limit departures to under 180 days at a time. Also, being out 180 days or more can affect potential U.S. citizenship eligibility.

Swiss national previously on an F-1 visa who is now seeking a change of status to B-2 visitor asks: If I leave the U.S. while my application is pending what effect will this have on my application?

Answer: Your departure during the pendency of your application will automatically result in a denial of the same in accordance with standard USCIS policy.

Thai national who came to the U.S. on a temporary visa which has since expired says: “We just got this in the mail. It asks if my wife is a citizen & if no, we should mail a copy of a current visa & passport. Unfortunately, we do not have a current visa. With all the ICE activity happening lately, how do you think we should handle this?

Answer: I advise to answer that you are not a U.S. citizen and therefore not eligible to serve as a juror. I also recommend that you include a copy of the entry visa and return this to the sender. However, there is no liability on the part of non-citizens. Regarding the Trump administration and ICE, we have not seen any involvement on their part based on these matters since this is strictly a local matter and NYC is a sanctuary city.

Brazilian national married to a U.S. citizen who has applied for adjustment of status to green card and has been granted advance parole travel permission in the interim asks: “I still want to wait for my green card so I can leave without any risk to get back in the US. The paper says it doesn’t guarantee re-entry. What are your thoughts?”

Answer: If you have been granted advance parole travel permission there is really no risk in travelling abroad unless you have a criminal conviction or other serious issue in your background.

EB-1 green card approved for Medical Producer from the UK
O-1B approved for Pilates Instructor from Canada
Green card approved for Interior Designer from Ireland sponsored by a construction company.
Green card approved for Studio Director from Italy sponsored by a fashion company.
Green card approved for Controller from Israel sponsored by a real estate company.
Immigrant visa petition approved for Associate Designer from South Korea sponsored by apparel manufacturing company.
Immigrant visa petition approved for Computer Systems Analyst from India sponsored by IT solutions provider.
Immigrant visa petition approved for Vice President from Canada sponsored by investment bank.
PERM/Labor certified after DOL audit for General Superintendent from Ireland sponsored by construction company.
PERM/Labor certified after BALCA Motion for Senior Project Manager from Ireland sponsored by a construction company.
H-1B approved for Budget Analyst from Italy sponsored by a fashion company.
H-1B approved for Analyst from India sponsored by an investment bank.

“OMG!!!!!!! Could this really be? Thank you soooooo much!
(EB-1 green card approval for Canadian Graphic Designer)

“I simply informed her that her first and last call in this regard should go nowhere other than the hallowed chambers of NAWLAW – and that as commander-in-chief – you would initiate contact with your excellent firm, and outstanding acolytes. Mr Weinrib is the blackbelt, the master, the only port you need in the tempest of visa applications. I can add no more praise.”
(client recommendation from UK beneficiary of an O-1 visa)

“THANKS VERY MUCH FOR EVERYTHING!!! I will always be thankful and recommend your services!!!
(EB-1 green card approved for Brazilian national in Latin American finance)

Newsletter: September 28, 2017

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