Visa Lawyer Blog

Articles Posted in Trump administration

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Over the course of the last few weeks, our attorneys have uncovered a disturbing trend in the adjudication of H-1B petitions (both cap subject and cap-exempt) that were upgraded to premium processing service in late October through November.

As previously reported on our blog, the United States Citizenship and Immigration Services (USCIS) has been aggressively issuing requests for evidence across the board for all H-1B petitions regardless of occupation and regardless of whether the beneficiary is seeking an H-1B visa for the first time, or an extension of their status. This drastic change was prompted in part by the enforcement of the President’s executive order “Buy American, Hire” in which the President called on the service to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The result was that USCIS began to issue requests for evidence focusing on the beneficiary’s wage level, questioning the petitioner regarding why the beneficiary was being paid the entry level wage, instead of a higher wage if the beneficiary’s occupation was to be considered complex.

Premium Processing Upgrades

To add insult to injury, as of late, USCIS has been issuing a huge wave of denials for H-1B cases that were recently upgraded to premium processing. In the past, it was commonplace for H-1B petitions to be upgraded to premium processing, even where a response to a request for evidence was under review by USCIS. This fiscal year, however, was a bit different than previous years, because premium processing was suspended for all H-1B petitions on April 3rd. Premium processing finally re-opened for cap-subject petitions on September 18, 2017, and for all H-1B petitions on October 3, 2017.

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As Congress races to avert a government shutdown before December 22, 2017, the momentum is building for members of Congress to include the DREAM Act on one of the government’s spending bills which must be passed before Congress goes into recess for the holidays.

The House and the Senate voted last week to grant the government a two-week extension so that Republicans and Democrats would have enough time to pass a short-term measure that would keep the government funded until January. That two-week extension however expires on December 22nd. This means that members of Congress must quickly negotiate pieces of legislation that must be passed along with a temporary spending bill, before Congress goes into recess for the holidays on December 22, 2017. This scenario has opened a unique window of opportunity for the DREAM Act to be included among pieces of legislation that must be passed before the government goes into recess. Republicans are currently under extreme pressure to keep the government open, and as such must concede and negotiate important issues before December 22nd. While Republicans are focused on passing their tax bill before the recess, the momentum is building for the DREAM Act to be negotiated during this narrow window of time.

As it stands, nearly every Democrat in Congress has thrown their support behind the DREAM Act, while many more Republicans are putting pressure on their party to deal with the issue immediately. Twenty-Four Republicans have already fired off a letter to the speaker of the House, Paul Ryan, asking for the DREAM Act to be passed before the end of the year. Lawmakers, political organizations, and tech leaders are also helping to increase the momentum to get the Act passed once and for all.

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11176275396_fdf69cfd1e_zOn Monday, December 4, 2017, the United States Supreme Court issued an order allowing enforcement of the President’s latest travel ban in its entirety, pending legal challenges in lower courts. In its brief order, the Court signaled its desire for the appellate court to address any challenges to the travel ban, swiftly. Justices Ruth Bader Ginsburg and Sotomayor were the only justices who would have blocked the latest travel ban from going into effect.

The court’s order means that the Trump administration may enforce all of the provisions of the President’s latest travel ban, until the federal courts hand down rulings on the constitutionality of the ban. As you may recall, non-US citizens affected by travel ban 3.0 include nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

The travel ban DOES NOT affect lawful permanent residents of the United States (green card holders), foreign nationals granted asylum, refugees admitted to the United States, or dual nationals traveling on a passport from a non-designated country.

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On Friday December 1st, a federal judge for the U.S. District Court for the District of Columbia, issued a ruling in the lawsuit, National Venture Capital Association, et.al. v. Duke, et. al, in favor of the National Venture Capital Association, an association that brought the lawsuit to challenge the government’s delay of the international entrepreneur rule. Earlier this year, the Trump administration had postponed enforcement of the international entrepreneur rule and said that it was very likely that the Obama era rule would ultimately be rescinded. The Plaintiffs in the lawsuit argued that the Department of Homeland Security unlawfully delayed enforcement of the international entrepreneur rule by circumventing the notice-and-comment rule making procedure mandated by the Administrative Procedure Act.

As you may remember the international entrepreneur rule was first published in the Federal Register on January 17, 2017. Following its publication, a notice-and-comment period was expected to begin 30 days later. The government however failed to announce such a comment period, and instead, on July 13, 2017, just days before the rule was set to go into effect, the Department of Homeland Security issued a press release indicating that implementation of the rule would be delayed until March 14, 2018, at which time the government would seek comments from the public on its plan to rescind the rule.

Federal Judge James Boasberg dealt a blow to the Trump administration in his Friday ruling, in which he agreed with the National Venture Capital Association, and ordered the Department of Homeland Security to rescind its delay of the international entrepreneur rule. The court agreed that the government bypassed the procedures of the Administrative Procedure Act to block the rule from going into effect as expected on July 17, 2017.

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On November 20, 2017 acting Secretary of Homeland Security, Elaine Duke, announced the Department’s decision to terminate the Temporary Protected Status (TPS) designation for Haiti, with a delayed effective date of 18 months, giving Haitians enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on July 22, 2019.

As you may recall, in May 2017, former Secretary Kelly announced that because the country of Haiti had significantly improved its condition since the 2010 earthquake, granting temporary protected status to Haitian nationals beyond January 2018 no longer appeared necessary. Secretary Kelly ominously concluded that Haiti’s designation of TPS status would likely not be extended past six months.

Acting Secretary Duke made the decision to terminate Haiti’s TPS designation after reviewing the country’s conditions and determining that those conditions were not extraordinary enough to justify continuing the TPS designation. Duke found that the extraordinary conditions caused by the 2010 earthquake that devastated Haiti, no longer exist, and that the government of Haiti is sufficiently equipped to adequately handle the return of their foreign nationals. After speaking with Haiti’s Foreign Minister, Haiti’s Ambassador to the United States, and other government officials, the United States determined that Haiti has taken steps since the 2010 earthquake to improve the quality of life for Haitian nationals, and that the Haitian government is prepared to receive Haitian nationals living under TPS status in the United States. According to DHS since the 2010 earthquake that ravaged Haiti, “the number of displaced people in Haiti has decreased by 97 percent.”

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According to an internal memorandum, Immigration and Customs Enforcement (ICE) has plans to conduct a targeted enforcement operation at a national food service chain within the coming weeks. An ICE official spoke with The Daily Beast, on condition of anonymity, telling the news organization that ICE plans to conduct this operation to discourage American employers from exploiting undocumented workers by paying them low wages. Officials told the news organization that the operation will be targeting multiple locations across the United States, and that employers will likely be charged with federal offenses including harboring illegal aliens.

This move is the Trump administration’s latest attempt to deter illegal immigration through worksite enforcement actions, described by the administration as targeted operations to prosecute individuals who employ undocumented immigrants. If all goes to plan, the operation will be primarily focused on prosecuting owners of franchises who illegally employ undocumented immigrants. Sources with knowledge of the investigation have said that a preliminary investigation has already been conducted and that targets have already been chosen.

The food industry has and continues to be an industry that employs thousands of undocumented workers due to the unskilled nature of the work, and the fact that employers are able to cut costs by paying undocumented workers very low salaries. According to a 2008 Pew report, at least 10 percent of the hospitality industry is supported by the labor of undocumented immigrants. Last year, Eater reported that over 20% of all cooks working in restaurant kitchens could be undocumented. Noelle Stewart, communications manager for Define American, said that undocumented immigrants make up a crucial part of our economy in that, “they cultivate our produce; they cook our food,” she says, “the food industry wouldn’t be possible in the way it is without them.”

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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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At the end of September, recipients of DACA were in a frenzy to file for a final 2-year renewal of their DACA status. The deadline to file for the final 2-year renewal was October 5th, 2017. Only individuals currently receiving DACA, whose status was to expire before March 5th, were eligible to apply for a final renewal of their status, provided their application was properly filed and received by the United States Citizenship and Immigration Services (USCIS) by October 5, 2017.

Following the October 5, 2017 deadline, USCIS rejected nearly 100 renewal applications, even though the cause for their delay was the fault of the United States Postal Service (USPS). At least 74 of the applications received after the deadline were mailed from the New York area and Chicago. USPS has taken responsibility for these delays, stating that the packages containing the DACA renewal requests were rejected as a result of mail problems in Chicago. Last week, USCIS flatly denied any responsibility for these late petitions, and said that nothing could be done, and that the decision to reject petitions received after the deadline was final.

However, USCIS recently had a change of heart. Yesterday, November 16, 2017, USCIS released a statement notifying affected individuals that USCIS will accept DACA renewal requests from individuals who re-submit their DACA renewal requests, and provide individualized proof that their DACA renewal request was originally mailed to USCIS in a timely manner, and that the cause of the petition’s receipt after the October 5th deadline was the result of USPS mail service error.  

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As of today, lawmakers in Congress have 115 days to pass legislation allowing more than 800,000 undocumented immigrants, known as Dreamers, who were brought to the United States as children, the opportunity to remain in the United States lawfully.

If Congress does not act by the March 5th deadline terminating the DACA program, it is likely that the President will give Congress more time to pass such legislation. The President has reiterated that he wants the solution to come from Congress, and will not act unilaterally to shield Dreamers from deportation.

Attorney General Jeff Sessions has signaled to Congress that the future of DACA remains in their hands, recognizing that they have an “opportunity to do something historic.” Republican politicians have thus far shown their willingness to work with Democrats to pass legislation that would grant Dreamers not only protection from deportation and the ability to reside in the United States lawfully, but an opportunity to obtain citizenship. Notoriously conservative Republican Senator, Roy Blunt, along with others has said that he would be willing to support legislation granting Dreamers a path to citizenship, and said as early as Tuesday that deporting Dreamers to a country they did not grow up in would be “totally unreasonable.”

President Trump of course has said that he does not support legislation that would give Dreamers a path to citizenship, however a majority of Congress could override a Presidential veto should such a piece of legislation come to pass. Legislation to protect Dreamers from deportation would however come with certain conditions. The President, as well as Republicans, are pushing for provisions that would secure funding for the wall to be constructed along the U.S./Mexico border and enhance border security. Republican Congressman Dan Newhouse has said that the consensus among Congress is that “it is the responsibility of Congress, and not the administration to make immigration law.”

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Yesterday, November 6, 2017, the acting Secretary of Homeland Security, Elaine Duke, announced her decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua, with a delayed effective date of 12 months until the termination of that designation, giving Nicaraguans enough time to make preparations to either depart the United States or seek alternative lawful immigration status in the United States, before the designation officially terminates on January 5, 2019.

Furthermore, Duke announced that the TPS designation for Honduras will be automatically extended for six months “from the current January 5, 2018 expiration date to the new expiration date of July 5, 2018.” This automatic extension has been granted because additional information is necessary to determine whether conditions have changed in Honduras that would justify termination of  the country’s TPS designation.

According to Duke’s announcement, the decision to terminate the TPS designation for Nicaragua was made after it was determined that the conditions in Nicaragua have changed since the country’s original 1999 designation that no longer justify granting protected status to this class of individuals. Furthermore, because the Secretary received no formal request from the Nicaraguan government to extend TPS status, and there was no evidence to indicate that the Nicaraguan government could not adequately handle the return of Nicaraguan nationals, the TPS designation for Nicaragua was no longer justified.

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