Immigration Law Blog

On April 18th, President Trump signed an Executive Order titled “Buy American and Hire American”. The Executive Order aims to discourage the use of foreign labor in the U.S. It directs federal agencies to review policies related to all visa programs and to recommend changes that would serve to prevent and address fraud and abuse in these programs. Specifically, the Executive Order instructs the Secretaries of State, Labor, and Homeland Security, and the Attorney General to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries” It also directs the federal government to more carefully enforce federal guidelines that prioritize the use of U.
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On April 7, 2017, USCIS announced that it had received a sufficient number of H-1B Cap petitions to reach the statutory cap of 65,000 visas as well as to meet the U.S. advanced degree exemption (Master’s Cap) which sets aside an additional 20,000 visas for applicants who have a Master’s degree or higher from a U.S. college or university.
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The Department of Labor (‘DOL”) recently announced plans to toughen regulatory enforcement of the H-1B visa program, which allows businesses to employ foreign “specialty occupation” workers on a temporary basis. It plans to take certain actions in an effort to ensure that American workers are not discriminated against by the H-1B program, including “rigorously using” existing authority to initiate investigations of H-1B program violators, considering changes to the Labor Condition Application for future application cycles, and continuing stakeholder engagement on how the program might be improved to provide greater protections for U.S workers. In addition, USCIS said it will focus work-site visits on companies that employ H-1B visa holders who work offsite and pay close attention to “H-1B dependent” businesses.
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The USCIS recently rescinded a memorandum issued in 2000 pertaining to adjudication of H-1B petitions for “Computer Programmers”. In its place, a new memo issued by the USCIS Nebraska Service Center offers clarity on USCIS’s approach to determining whether the position of “Computer Programmer” is deemed a “specialty occupation” that would be eligible for H-1B status. Companies petitioning for H-1B status for workers in computer programming positions will need to demonstrate that these jobs are complex or specialized and require professional degrees. Applications filed using entry-level wages will also receive more scrutiny. The change appears to target outsourcing companies, who typically employ lower-paid, lower-level computer programming workers.
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On Friday, March 3, 2017, USCIS announced that beginning April 3, 2017 it will temporarily suspend its premium processing service for all H-1B petitions for up to six months. During this temporary suspension, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129 requesting H-1B nonimmigrant classification.

The temporary suspension will impact H-1B petitions filed in the FY2018 regular and Master’s advance degree exemption cap as well as cap-exempt H-1B petitions. USCIS will continue to process Form I-907’s filed prior to April 3, 2017 and will notify the public prior to resumption of the premium processing program for H-1B petitions. During the suspension, petitioners may submit a request for expedited processing of an H-1B petition if they meet one of the expedite criteria listed on USCIS’ website (Read more . . .

Following the Executive Order signed on Friday, January 27, 2017 titled, “Protecting the Nation from Foreign Terrorist Entry into the United States”, the United States Department of State has announced that it has provisionally revoked all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen with the exception of the following nonimmigrant visa classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas, or any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Security pursuant to section 3(g) of the Executive order on a case-by-case basis and when in the national interest.

The full text of the revocation directive can be found at http://www.politico.
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On Friday, January 27, 2017, President Donald Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States”. This Executive Order had the effect of banning nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya, or Yemen from entering the United States for a period of at least 90 days (potentially longer). This travel ban includes foreign nationals who have dual citizenship with one of the listed countries as well as another foreign country not on the list. U.S.
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For undocumented immigrants, one of the biggest obstacles to living a mainstream life in the United States is the inability to obtain a driver’s license. This is troublesome for a number of reasons. In most parts of the country, it is nearly impossible to travel any distance without driving since public transportation is often unreliable and time-consuming. Other alternatives, such as walking and biking are only viable in good weather and for relatively short distances. Relying on others for transportation is not only undependable but requires a degree of indebtedness many travelers want to avoid.

A study by Temple University shows that laws preventing undocumented immigrants from holding a driver's licenses interferes with basic human rights. Without the ability to drive themselves to interviews or employment, most potential jobs are hopelessly out of reach. Moreover, children’s education is often compromised, and it becomes difficult to deal with medical emergencies. Inability to travel by car negatively impacts economic mobility, safety, and self-worth, and exacerbates the ever-present fear of deportation.

Immigrants who drive are, in some locations, pulled over more frequently than other drivers due of ethnic profiling, and are often forced to pay heavy fines. Not only do the fines have a negative economic impact on those already struggling financially, but such drivers, if found guilty, may have their licenses suspended indefinitely. This creates far-reaching problems for these individuals if and when they do obtain green cards and apply for driver's licenses. Repeat offenses can result in jail time which will adversely affect any attempt to obtain documentation through the legal process.

On the plus side, a valid driver’s license issued in the driver’s home country can be used legally in the United States. Some states require an International Driver’s Permit, a multi-language document. This permit should be issued by the applicant’s home country. Scam artists who sell false permits in the United States, however, are all too common. Immigrants need to be cautioned to be aware of such costly and dangerous swindles. 

Once the driver's license from a driver’s home country expires, the individual is expected to either apply for a driver’s license in his or her state of residence or stop driving altogether. Currently, only 11 states and Washington DC allow undocumented immigrants to apply for a license.  These states are California, Washington, Nevada, Utah, Colorado, New Mexico, Illinois, Maryland, Delaware, Connecticut, and Vermont. Each of these states has its own rules and regulations for individuals obtaining licenses without a social security number. Local attorneys are in the best position to provide guidance about current regulations and should always be consulted for up-to-date helpful advice. 

There have been recent reports of unprofessional, intimidating, and demeaning conduct by Customs and Border Patrol (CBP) Officers towards arriving nonimmigrants at airports and ports of entry around the United States. Arriving nonimmigrants have been subject to increased levels of questioning and to improper remarks. If this has happened to you, it is important that you report your experience to the CBP chain of command so that this trend can be properly addressed. You can report CBP misconduct to the Read more . . .

Fear of an Ebola outbreak in the United States renewed the debate over how open the country should be to people who are sick. Some people are prevented from immigrating to the United States because they are infected with a contagious disease, but illness is not typically the reason people are denied legal status.

All people who wish to immigrate to the United States (and people currently in the United States who want to adjust their status to permanent resident) must undergo a medical examination by a doctor certified by the U.S. Centers for Disease Control (CDC). Thinking about the medical exam often causes applicants undue stress because very few people are in perfect health. The United States does not, however, turn people away for minor issues such as the common cold.

The CDC is in charge of determining which diseases prevent people from being able to immigrate. Checking their website is the best way to learn which illnesses are currently considered disqualifying.

People who fail the medical exam because they have a disease that is on the CDC’s list are not permanently banned from entering the United States. Some of the diseases on the list can be cured, so reapplication after treatment is possible. Applicants who fail the medical examination can also apply for a waiver.

Waivers are granted on a case by case basis. The CDC reviews the waiver application and the applicant’s medical records, then makes a recommendation to the Department of Homeland Security, which makes the final decision. If the waiver is approved, the person is allowed to come to the United States.

It is important to keep in mind that the medical examination is just one small part of the application process. It is rare for applicants who are otherwise eligible to be denied entry to the country or a chance of status based on illness alone.

An experienced immigration attorney can help an applicant determine if they are likely to have difficulty passing the medical examination and what options are available if the applicant does fail the exam.

On November 18, 2016, USCIS published a final rule implementing the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) and the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”) which will go into effect on January 17, 2017. The new rule will modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. It will also amend existing regulations in order to make it easier for U.S. employers to hire and retain certain foreign workers who are the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.
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