Visa Lawyer Blog

Articles Posted in Employment based visa

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As previously reported, on October 8, 2017, the United States announced the suspension of all non-immigrant visa services across U.S. Embassies and Consulates in Turkey “until further notice,” following news that a U.S. embassy official was placed under arrest without explanation and without access to counsel. This included the suspension of the issuance of: B-2 visas for temporary tourism or medical reasons, B-1 visas for temporary business visitors, F-1 student visas, E-1 treaty trader visas, E-2 treaty trader visas, and other non-immigrant visa types.

Since October 8, 2017 until just recently, no new non-immigrant visa applications were being processed in Turkey until the U.S. government could receive assurances form the Turkish government that embassy staff officials would not be detained or placed under arrest without cause, or access to counsel.

On November 6, 2017, the Department of Homeland Security and the United States Embassy in Ankara, Turkey, announced that the United States has received sufficient assurances from the Government of Turkey that employees under the diplomatic mission are not under investigation, that local staff of U.S. embassies and consulates will not be detained or arrested in connection with their official duties, and finally that the U.S. government will be notified in advance if the Turkish government plans to arrest or detain any local staff at U.S. embassies in Turkey. The announcement however provides that the United States “continues to have serious concerns about the existing cases against arrested local employees” of the Mission in Turkey and of “. . . the cases against U.S. citizens who have been arrested under [a] state of emergency.”

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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Just one day before Presidential Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” was set to go into effect, a federal judge in Hawaii issued a ruling blocking portions of the Presidential Proclamation from being enforced on a majority, but not ALL, of the countries, listed in the Proclamation.

The Presidential Proclamation, commonly referred to in the media as ‘travel ban 3.0’ set out to suspend the entry of foreign nationals from eight “countries of identified concern,” and the admission of foreign nationals from those countries was to remain limited until further notice.

The countries to be affected by travel ban 3.0 included: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. A federal judge from the state of Hawaii by the name of Derrick Watson has granted a temporary restraining order preventing the government from suspending the admission of foreign nationals from the following countries: Chad, Iran, Libya, Syria, Yemen, and Somalia, but DOES NOT prevent the government from suspending the admission of foreign nationals from North Korea and Venezuela, and from imposing stricter screening standards on Iraqi nationals. The restrictions on foreign nationals from North Korea, Venezuela, and Iraq will continue to be enforced according to the Proclamation, beginning today, Thursday, October 19, 2017. Restrictions on North Koreans and Venezuelans will likely remain indefinitely, given that the U.S. government has no formal diplomatic avenues for communication with those countries.

Judge Derrick Watson wrote in his opinion that the latest revision of the ban, “suffers from precisely the same maladies as its predecessor,” and “lacks the sufficient finds that the entry of more than 150 million nationals from [the] specified countries would be ‘detrimental to the interests of the United States,” and “plainly discriminates based on nationality.”

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Yesterday, October 8, 2017, the United States and Turkey announced the mutual suspension of all non-immigrant visa services, putting a damper on travel between the two nations, following the arrest of a Turkish citizen, employed at the U.S. Embassy in Ankara, on suspicion of espionage.

A statement released by John Bass, the U.S. ambassador to Turkey, explained the reasons for the United States government’s decision to suspend non-immigrant visa processing for Turkish citizens. According to the ambassador the suspension will allow the United States, “to minimize the number of visitors to our embassy and consulates while we assess the commitment of the Government of Turkey to the security of our diplomatic facilities and personnel.” He continued, “last week, for the second time this year, a Turkish staff member of our diplomatic mission was arrested by Turkish authorities. Despite our best efforts to learn the reason for this arrest, we have been unable to determine why it occurred or what, if any, evidence exists against the employee. . . our colleague has not been allowed sufficient access to his attorney.”

The actions taken by the government are thus in response to Turkish hostility toward U.S. consular employees and an ongoing rift between the two countries regarding U.S. support for Kurdish fighters in Syria, accusations of U.S. involvement in a coup against President Erdogan, and the U.S. government’s refusal to extradite former Turkish minister Fethullah Gulen, accused of masterminding the Turkish coup.

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Now is a good time to file your green card application. Significant wait times are expected given a new policy passed by the Trump administration that will require in-person interviews for LPR applicants filing based on employment sponsorship

In yet another controversial move, the Trump administration has recently adopted a new policy change that will require an in-person interview for individuals wishing to obtain lawful permanent residency based on employment sponsorship. The new policy will be implemented beginning October 1st.
Previously, foreign nationals applying for permanent residency, based on employment sponsorship, were not required to attend an in-person interview, although this allowance was discretionary. In recent years, the in-person interview requirement was typically reserved for individuals applying for permanent residency based on a qualifying familial relationship, and not for individuals applying based on employment sponsorship.

A USCIS spokesperson announced the new policy change on Friday August 25th, a change that will delay the process of obtaining a green card significantly, given the increased number of individuals that will be required to attend an in-person interview. According to USCIS this change in policy will apply to any individual adjusting their status to legal permanent residency from an employment-based visa category.

What’s more, family members of refugees or asylees, holding a valid U.S. visa, will also be required to attend an in-person interview when applying for provisional status.

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You have questions, we have your answers. Here are answers to 6 of your Frequently Asked Questions.

In this blog, we are answering 6 of your frequently asked questions in detail. Please remember that every case and every story is different and unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance on your immigration journey. For any further questions please visit our website or call our office for a free first time legal consultation. We thank you for your continued trust in our law office.

Q: Should I hire an attorney to file my green card application and go with me to the green card interview?

This will largely depend on the complexity of your individual case. For example, there are individuals that are eligible to adjust their status to permanent residence based on their marriage to a U.S. Citizen or based on a qualifying family relationship, but may be applying for permanent residence under special circumstances such as 245i or another special immigrant classification such as VAWA.

Still other individuals may be applying for their green card for a second time after being denied.

Individuals who are applying for their green card under one of these special immigrant classifications should absolutely seek the assistance of an immigration attorney to apply for permanent residence to avoid any mistakes in filing and to be well prepared for the green card interview. In these situations, any minor mistakes on the paperwork can result in major delays, or worse—require refiling the green card application altogether. In addition, for complex cases it is always important for an attorney to prepare the foreign national for the most vital part of the green card application which is the green card interview. An attorney’s presence at the green card interview is also important to ensure that the foreign national’s rights are not violated by the immigration officer.

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On August 02, 2017, Republican Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced a new Act called “Reforming American Immigration for a Strong Economy” before the U.S. Senate, otherwise known as the RAISE Act, which is a new piece of legislation that has recently been backed by President Trump.

The RAISE Act aims to overhaul the employment-based immigration system and replace it with a skills-based system that awards points to immigrants based on the immigrant’s level of education, age, ability to speak the English language, future job salary, level of investment, and professional achievements. In addition, the RAISE Act would terminate the Diversity Visa Program, which awards 50,000 visas to foreign nationals from qualifying countries, and would ultimately reduce the number of family-sponsored immigrants allowed admission to the United States. The Act intends to focus on the family-based immigration of spouses and minor children and would reduce the number of refugees allowed into the United States.

Among other things the RAISE Act would:

  • Terminate the Diversity Visa Program which awards 50,000 green cards to immigrants from qualifying countries;
  • Slash the annual distribution of green cards to just over 500,000 (a change from the current issuance of over 1 million green cards annually);
  • Employment-based green cards would be awarded according to a skill-based points system that ranks applicants according to their level of education, age, ability to speak the English language, salary, level of investment, and achievements (see below);
  • The issuance of employment-based green cards would be capped at 140,000 annually;
  • Limit the maximum number of refugees admitted to the United States to 50,000;
  • Limit admission of asylees. The number of asylees admitted to the United States on any given year would be set by the President on an annual basis;
  • Amend the definition of “Immediate Relative” to an individual who is younger than 18 years of age instead of an individual who is younger than 21 years of age;
  • Adult children and extended family members of individuals living in the United States would no longer be prioritized to receive permanent residence. Instead the focus would remain on the immediate relatives of U.S. Citizens and legal permanent residents such as spouses and children under the age of 18;
  • The Act would allow sick parents of U.S. Citizens to be allowed to enter the United States on a renewable five-year visa, provided the U.S. Citizen would be financially responsible for the sick parent.

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It’s official. The Department of Homeland Security has rolled out a plan to delay the effective date of the International Entrepreneur Rule, which was set to be enforced on July 17, 2017, to March 14, 2018, at which time the Department will seek comments from the public to rescind the rule, in accordance with Executive Order 13767, “Border Security and Immigration Enforcement Improvements” signed by President Trump on January 25, 2017.

Written comments from the public are due on or before 30 days from the date of publication in the federal register. It is strongly advised that all affected foreign entrepreneurs, business owners, attorneys, immigration advocates etc. leave a public comment identified by DHS Docket No. USCIS-2015-0006, online or by mail detailing the adverse effect that rescinding the rule would have on the U.S. economy and the expansion of jobs in the United States.

Public Comments

Online: Federal eRulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments.

This document is scheduled to be published in the Federal Register on 07/11/2017 and available online at https://federalregister.gov/d/2017-14619, and on FDsys.gov

By Mail: You may submit comments directly to U.S. Citizenship and Immigration Services (USCIS) by sending correspondence to Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, UCSIS, DHS, 20 Massachusetts Avenue, NW, Washington, DC 20529. Remember to reference DHS Docket No. USCIS-2015-0006 in all mail correspondence.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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