Early Summer 2017 U.S. Business Immigration Update

by Tarter Krinsky & Drogin LLP
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It has been a year of major policy shifts in U.S. immigration. In this alert, we provide an update on recent developments in business immigration in the United States.

The Supreme Court's Stance on Trump's Travel Ban

On June 26, 2017, the U.S. Supreme Court permitted portions of President Trump's travel ban to take effect. The Court ruled that citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen may be denied entry to the United States in the absence of a bona fide relationship with a person or entity in the United States.

A bona fide relationship might include a relative in the United States, employment with a U.S. employer or students enrolled in a U.S. school. Consular officials and U.S. Customs and Border Protection officers will be the government officials charged with determining the meaning of a bona fide relationship. The ruling is good news for refugees, as the majority of refugees selected by the U.S. government for resettlement in the United States already have family members in the country, and for those who do not, ties to U.S.-based refugee organizations would likely also be considered a strong connection.

The ruling further clarified that the ongoing refugee resettlement efforts will not be subject to the 50,000 person cap for this fiscal year proposed by the Executive Order. The Court confirmed it would hear the case in full in the fall of 2017. The decision appears to support an ultimate victory for the Trump administration on the merits given the language in the dissent by Justice Thomas, who stated, "Today's compromise will burden executive officials with the task of deciding - on peril of contempt - whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country."

Developments on H-1B Petition Submissions and Premium Processing

United States Citizenship and Immigration Services (USCIS) has commenced adjudication of H-1B petitions filed in the first five days of April 2017, and it has also started to mail out rejection notices for cases not selected in the random H-1B Cap Lottery. USCIS announced that 199,000 petitions were submitted this fiscal year for the 85,000 highly sought after visas. It also announced that it will reinstate H-1B premium processing for select foreign physicians - specifically those who already submitted H-1B petitions under the Conrad 30 Waiver Program for interested government agency waivers. This announcement serves to alleviate the anxiety for employers of foreign physicians that depend upon issuance of waivers to fill positions following residency and fellowship programs, typically commencing on July 1 each year.

In order to submit a request to update a pending H-1B petition to premium processing, a Form I-907 and filing fee of $1,225.00 is submitted to the appropriate USCIS Service Center.

Since April 3, 2017, USCIS has suspended premium processing for all H-1B petition submissions. The suspension is expected to last up to six months. USCIS stated that the suspension will permit it to improve processing times for H-1B pending petitions. Recently, USCIS announced that it does intend to resume premium processing in the H-1B visa category by petition types, which will be announced as available.

E Visa Summer Updates

Summertime brings delays at U.S. consulates worldwide that process the E-1 Treaty Trader and E-2 Treaty Investor visa applications. Given additional "extreme vetting" requirements, it would be appropriate for foreign nationals who are planning to submit E Visa applications at consular posts globally to check processing times located on the post's website prior to making plans to move to the United States.

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