TRUMP EXECUTIVE ORDER

On Friday, January 27, 2017, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” 

Among other provisions, the Executive Order suspends entry of nationals from seven designated countries for 90 days from the date of the order.  These seven countries are:

-          Iran

-          Iraq

-          Libya

-          Somalia

-          Sudan

-          Syria

-          Yemen

The order does not define what “from” one of the seven designated countries means.  Due to the vagueness of the order, it is best to interpret “from” as including passport holders, citizens, nationals, and dual nationals from these seven designated countries.

There is an exception for refugees that were in transit to the US at the time the order was issued.  In addition, the Secretary of the Department of Homeland Security (DHS) announced on Sunday that Legal Permanent Residents (green card holders) would be able to enter the US, absent significant derogatory information indicating the green card holder posed a threat to US national security.

After the 90 day ban, travel is not automatically reinstated.  The US DHS is required to report whether countries have provided information needed to determine that the foreign national(s) is not a security or public safety threat. 

Several court cases have been filed challenging the President’s Executive Order.  These court cases have generally been decided against the order, but none of the cases have specifically struck down the order.  Reports indicate that each US airport is enforcing the President’s Executive Orders differently.

Please note that the situation is fluid and may change at any time.  If you have specific questions about your case please contact your MU attorney.

GRASSLEY, DURBIN REINTRODUCE H-1B BILL

Sens. Grassley (R-IA) and Durbin (D-IL) have reintroduced their H-1B bill.  They have introduced a version of this bill for the last several Congressional sessions.  The last version of the bill only attracted 5 co-sponsors, and never had any significant traction in Congress.  This term, competing and related House bills have been offered by Rep. Issa and Rep. Lofgren. 

It remains unclear how this one differs, if at all, from the last versions, since the text of the bill has not yet been released.  The last version of the bill included several significant changes to the H-1B process.  That bill creates a preference system for the H-1B lottery, which prioritized H-1B workers in this order:

• Masters (or greater) degree in STEM from a US university
• Companies who offer a Level 4 wage for that H-1B worker
• Masters (or greater) degree in any other major from a US university
• Companies who offer a Level 3 wage for that H-1B worker
•  Bachelor’s degree in STEM from a US university
• Bachelor’s degree in any other major from a US university
•  Schedule A occupation
• Good corporate citizens

Other components of the bill included:

• H-1Bs must pay at least a level 2 wage for all H-1Bs
• Require a posting on USA jobs.gov for 30 days prior to filing an H-1B
• Employer must certify that no US worker has been displaced and that the employer has attempted to recruit US workers
• 50/50 employers are barred from the H-1B process
• H-1B limited to 3 years, unless the H-1B worker has an approved I-140
• Additional burden for employers who place workers at third-party worksites.
• Increased investigative power for DOL
• Changes to the L-1 program

VISA BULLETIN: "CONSISTENT FORWARD MOVEMENT” EXPECTED FOR PHILS EB-3

The Department of State’s Visa  Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.  This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog.  Here are some highlights:

Philippine EB3 – Charlie again offered his most optimistic predictions for this category.  He said that he expects “consistent forward movement” in the EB-3 Philippines category.  While he does not expect the Philippines EB-3 to catch up to the Worldwide date, he expects Philippines EB-3 to “recover significantly”.  This is consistent with internal MU Law analysis, which sees this category progressing at least into 2013 by the Summer of 2017.  

India EB2 and EB3 – Unfortunately the news is not so rosy for Indian nationals.  Neither EB2 nor EB3 is expected to progress to any significant degree. 

Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future. It is our expectation that Worldwide EB-3 will continue to see a slight retrogression, consistent with the recent past.  The Worldwide EB-3 date may stall in the Spring/Summer of 2017, as the full allotment of numbers gets used.  It will then move quickly again into the next fiscal year.

China EB-2 and EB-3 - These categories are the most difficult to predict.  The DOS is trying to be conservative in the forward progression of these dates in an effort to stop the see-saw progression and retrogression of dates that we have seen in the recent past.

MU LAW, AAIHR, AILA SUCCESSFULLY RESOLVE MANILA POST PROBLEMS

For much of the second half of 2016, the US Embassy at Manila has been delaying Visa appointments because of a bad interpretation of law.  Through the combined effort of MU Law, AAIHR, and AILA, it appears that the Manila Post will no longer incorrectly interpret these visa applications, which should lead to speedier visa issuance.

The Manila Post was incorrectly readjudicating previously approved green card applications.  In some instances, these applications were several years’ old.  The Post would often ask for updated prevailing wage determinations, posting, and labor certifications.  MU Law and the AAIHR, through AILA and other communication channels spent much of the second half of 2016 explaining in detail why these readjudications were contrary to law.  These interpretations were limited to the Manila Post.  Other Posts were not readjudicating these types of applications.

The Post has confirmed that they agree with our legal position and will no longer readjudicate these applications.  The Post has also set out a framework to prioritize these types of matters.

In the last week or two, MU Law has noticed that visa application delays have ceased, which likely is the result of this Manila Post policy change.  MU Law commends the Manila Post on its willingness to dialogue on this issue.

H-1B & TRUMP ADMINISTRATION TELECONFERENCE FEB 15, 2017

MU VISA ADVISOR:   

In anticipation of the H-1B cap filing date of April 1, 2017, MU Law will be holding a free teleconference for our clients and friends on February 15, 2017 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2017.

We will also have a special update on the new Trump administration.  MU Law's Chris Musillo is traveling to Washington DC in early February.  On this call, Chris will provide an update on what potential changes will be coming to employment-based immigration in light of the new administration.

H-1B Teleconference Agenda

• H-1B Cap Basics and Projections

• H-1B Dependency

• H-1B issues for Staffing Companies and Third Party Placements
• What is Third- Party Placement v. In-House work?
• Employer-Employee relationships

• Hot issues:  
• Cap-gap for F-1s
• CPT / OPT maintenance
• NIV maintenance
• H-4 EAD rule
• H-1B amendments: lengthy processing times

• Top 10 things H-1B employers can do to stay compliant

• Legislative Update
•  What we can expect from the Trump administration and the Republican congress.

• Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

FEBRUARY 2017 VISA BULLETIN: ANALYSIS

The Department of State has just issued the February 2017 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2017.  This blog post analyzes this month's Visa Bulletin.

February 2017 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employ- ment based	All Charge- ability  Areas Except Those Listed	CHINA- mainland  born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15NOV12	15APR08	C	C
3rd	01OCT16	01OCT13	22MAR05	01OCT16	15OCT11

MU Law Analysis

All Other:  The EB-2 has been current for many years.  The EB-3 progression continues.  Consular processed EB-3 are effectively current.

China:   The China EB-2 date moved up one month. The China EB-3 date also progressed about one month.  The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.

India:  EB-2 India and EB-3 India stayed virtually the same, unfortunately.  

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead by another three months.  The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and much of the 2011 EB-2 visas in just five months.  This is what we have expected.  (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").  

ISSA OFFERS H-1B BILL AIMED AT H-1B DEPENDENT EMPLOYERS

Last week, Rep. Darrell Issa (R-CA) proposed the Protect and Grow American Jobs Act, which has been co-sponsored by Congressman Scott Peters (D-CA).  The bill is aimed at H-1B dependent employers. 

H-1B dependent employers are employers whose workforce is comprised of at least 15 percent H-1B workers.  The 15 percent rule is modified for H-1B employers with fewer than 25 employees. 

“H-1B dependent employers” must make two additional attestations to the USCIS in order to have an H-1B petition approved, above and beyond the usual H-1B requirements and attestations.   

The two attestations affirm that the employer has (i) taken steps to insure that no US workers are being displaced as a result of the H-1B petition and (ii) taken steps to recruit US workers for these positions. 

Under current law, H-1B dependent employers are exempt from these two attestations if they agree to pay the H-1B worker at least $60,000 per year and/or the H-1B worker holds at least the equivalent of a US master’s degree. 

According to his website, Cong. Issa’s bill makes two changes to the law.  The bill raises the first exemption to $100,000 per year and eliminates the master’s degree exemption.  The full text of the bill has not yet been released.