Immigration newsletter - Spring 2018

by Hogan Lovells

Hogan Lovells

Visa sanctions on Cambodia, Eritrea, Guinea, and Sierra Leone

Effective 13 September 2017, the Department of Homeland Security (DHS), in coordination with the Department of State (DOS), implemented visa sanctions on Cambodia, Eritrea, Guinea, and Sierra Leone. The sanctions are imposed pursuant to Section 243(d) of the Immigration and Nationality Act (INA), which provides that the Secretary of State shall order consular officers to discontinue granting certain visas to citizens or nationals of countries that do not cooperate in accepting their own nationals who are ordered removed from the United States. President Trump’s Executive Order 13768 (25 January 2017) directs DHS and DOS to work in coordination to enforce this section of the INA.

DHS recommended these sanctions because the governments of Cambodia, Eritrea, Guinea, and Sierra Leone have unreasonably delayed or refused to issue travel documents to their citizens who are subject to final orders of removal from the United States. In response, Secretary Tillerson ordered consular officers in these four countries to discontinue the issuance of certain visitor visas. The policy targets government officials in Cambodia, Guinea, and Sierra Leone and denies B visas (temporary visitors for business or pleasure) to all Eritrean citizens. These sanctions will remain in place until DHS notifies the Secretary of State that cooperation on removals has improved to an acceptable level. Detailed information regarding the sanctions imposed is available here.


CBP introduces policies and procedures for searching and seizing electronic devices at the border in bid to increase transparency

On 4 January 2018, Customs and Border Protection (CBP) published a new directive for searching and seizing electronic devices at the border. This directive, which supersedes a previous directive issued in August 2009, introduces policies and procedures that are intended to increase transparency and accountability for warrantless searches of electronic devices.
Specifically, the 2018 policy distinguishes between two types of searches: (1) “Basic” searches, where CBP conducts a search of an electronic device with or without suspicion and may only examine the device and its contents; or (2) “Advanced” searches, where CBP may connect external equipment to an electronic device and review, remove or analyze its contents based on reasonable suspicion of activity that (a) violates laws that CBP is authorized to enforce or administer, (b) implicates national security concerns, or (c) is authorized by supervisor. In both instances, CBP is only authorized to search information stored on electronic devices and may not review or extract information that is only remotely accessible.
Between fiscal year (FY) 2016 and FY 2017, CBP has reported a 58 percent increase in searches of electronic devices of inbound and outbound international travelers year-on-year. This has led to concerns about policies and procedures that protect the rights of individuals that interact with CBP officials and the handling of privileged and sensitive information, while recognizing the broad authority afforded to CBP in conducting warrantless searches at the border.


USCIS not considering changes toH-1B extension rules

Normally, an individual is limited to being physically present in the United States in H-1B status for an aggregate of six years. In October 2000, the American Competitiveness in the Twenty-First Century Act (AC21), established the ability for a person to obtain an extension of his or her H-1B status beyond the six-year limit if  certain milestones in the green card process have been reached.  Specifically, section 104 (c) allows for a three-year extension of H-1B status if the person is a beneficiary of an approved employment-based immigrant visa petition (I-140 petition) under the employment–based first, second, or third preference (EB-1, EB-2, or EB-3) visa category, and is eligible to be granted lawful permanent resident status but for per country limits on visa availability. The statutory language of section 104(c) provides that the DHS Secretary “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated. Such extensions have been routinely adjudicated by DHS in prior years based on that statutory provision and prior policy guidance.

Earlier this year, it was reported that DHS was considering changing its interpretation of the “may grant” language in the statute as a way to limit an applicants’ ability to obtain a three-year extension of H-1B status, beyond the six-year limit under section 104(c). On 8 January 2018, the McClatchy D.C. news service reported that the U.S. Citizenship and Immigration Services (USCIS) is not considering changing its interpretation of section 104(c). USCIS did indicate “that the agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including conducting a thorough review of employment-based visa programs." It remains to be seen whether DHS will change its prior approach to adjudication of these requests for a three year H-1B extension under section 104(c) that have been critically important especially for Indian and Chinese nationals who are subject to long delays in their green card process due to per country limits.


Clarification of TN nonimmigrant economist classification 

On 20 November 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum which seeks to clarify policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist. The new memorandum indicates that the determination of whether a particular job is that of an economist will be based on the primary activity, not on the title of the offered position. Under the new policy, a person cannot be granted TN status as an Economist if their position will primarily include the activities of another occupation, such as financial analyst, market research analyst, or marketing specialist, for purposes of the TN classification. 
Historically, if an applicant had a degree in economics, and their offered TN position required that they performed economic analysis and modeling or econometrics as a major responsibility of their position, they could be granted TN status. The new policy indicates that with respect to the occupation of financial analyst, USCIS recognizes that economists and financial analysts are related occupations and that there may occasionally be some overlap in the activities of these two occupational categories; however, USCIS indicated that financial analysts primarily conduct quantitative analyses of information affecting investment programs of public or private institutions, and as such are differentiated from the economist TN classification.


H-1B quota likely to be exhausted during the 2-6 April 2018 filing period

As of 2 April 2018, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2019 quota (also known as the “cap”), for employment with 1 October 2018 as the effective start date. The numerical limitation on H-1B petitions for FY 2019 is 65,000 under the “regular” cap (with certain visas specifically set aside for nationals of Chile and Singapore under respective free trade agreements). In addition, there are 20,000 H-1B visas available for individuals with U.S. master’s degrees or higher (the so-called “master’s” cap). We note that individuals with U.S.-awarded advanced degrees can qualify either under the master’s cap or the regular cap, assuming there is availability. USCIS anticipates that it will receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher within the filing period which covers the first five business days of April (2-6 April, this year). Last year, USCIS announced on 7 April 2017 that it had received enough filings to reach the H-1B cap and the master’s cap within the filing period, receiving over 199,000 H-1B petitions during the filing period starting on 3 April 2017. 
USCIS will monitor the number of petitions received this year and notify the public of the date on which the numerical limit of the H-1B cap has been met. Should the number of applications received exceed these allocated amounts, as it is currently expected, USCIS will, similar to its practice in the past, use a lottery system to randomly select the petitions that will be processed under the cap (up to the number required to reach the numerical limit under each of the caps). USCIS will reject petitions that are subject to the cap and are not selected in the lottery system, as well as petitions received after it has the necessary number of petitions needed to meet the cap.  
We note that on 20 March 2018, USCIS announced that it will suspend “premium processing” (expedited review) services for all cap-subject H-1B petitions (click here to read announcement). This temporary suspension is expected to last until 10 September 2018. USCIS indicated that it will continue accepting premium processing requests for H-1B petitions that are not subject to the annual cap (e.g., H-1B extension petitions as well as initial H-1B petitions involving cap-exempt employers).


USCIS revises Form I-9     

On 17 July 2017, the U.S. Citizenship and Immigration Services (USCIS) released a revised version of the Form I-9, Employment Eligibility Verification. The Form I-9 is the form used for verifying an individual’s employment authorization for employees of U.S. employers, including U.S. citizen and noncitizen employees. As of 18 September 2017, U.S. employers are required to use the revised Form I-9. The List of acceptable documents on the Form I-9 was revised to (1) add the newest version of the Department of State’s Consular Report of Birth Abroad (Form FS-240) to List C – Employment Authorization; (2) combine all the Department of State certifications of birth abroad (Form FS-545, Form DS-1350, and Form FS-240) under List C number 2; and (3) renumber all List C documents except the Social Security Card. The revisions also included non-substantive revisions to the instructions for the Form I-9 to update the name of the Office of Special Counsel for Immigrant and Employee Rights Section and to revise “the end of the first day of employment” to “the first day of employment” to align with the wording on the form. USCIS also updated its Handbook for Employers: Guidance for Completing Form I-9 (M-274) to reflect the revisions to the Form I-9 and instructions.       


USCIS requires use of new supplement J to Form I-485

The U.S. Citizenship and Immigration Services (USCIS) now requires the use of a new supplement to the adjustment of status application, Form I-485 Supplement J (Confirmation of Bona Fide Job Offer or Request for Job Portability Under INS Section 204(j)) to confirm that jobs offered to adjustment of status applicants in underlying I-140 petitions are bona fide job offers that the applicant intends to accept once the Form I-485 is approved. It also allows the USCIS to review job “portability” requests under specific provision of AC21 if the adjustment of status applicant wishes to move to a new job in the same or a similar occupational classification as the job identified in the approved I-140 immigrant petition. As such, Supplement J replaces the employer and applicant letters that traditionally have been sent to USCIS for claims of job “portability” under AC21. The employer must also provide the job title and Standard Occupational Classification (SOC) code of the new position offered to the applicant, a nontechnical description of the duties of and wages offered for the position, as well as confirmation that the position is a full-time and permanent one. Also required is a sworn declaration by the employer that it is a “viable employer” that is extending a bona fide job offer to the applicant, that the job offered is a full-time and permanent one, and that the employer intends to employ the applicant in the job offered upon the approval of his or her adjustment of status application.

Supplement J must be completed and signed by both the applicant and the employer and must be filed: (1) when an adjustment of status Form I-485 application is filed separately from an underlying I-140 immigrant petition; (2) when an adjustment of status application seeks to take advantage of the job portability mechanism provided in Section 204(j) of the Immigration and Nationality Act (INA) to move to a new job in an occupational classification that is the same as, or similar to, that of the position described in the I-140 petition; or (3) when USCIS issues a Request for Evidence or Notice of Intent to Deny asking for evidence of an existing job offer. In determining whether the new job is in the same or a similar occupational classification as the job specified in Form I-140, USCIS will consider factors, including but not limited to (1) the similarity of the job duties and responsibilities; and or (2) the similarity of the educational, experience, and or training requirements.


Senators Hatch and Flake introduce immigration legislation

On 25 January 2018, Senators Orrin Hatch and Jeff Flake introduced the Immigration Innovation Act of 2018. The bill would make several changes to the current immigration law regarding H-1B visas, employment-based immigration visas, and other provisions.
The law would affect the H-1B visa process in the following ways: it would increase the H-1B cap from 65,000 to 85,000, change the prioritization when enough petitions are received within the first five days of the filing period, provide for exemptions for U.S. master’s degree holders with employers beginning the green card process, and impose penalties for failure to withdraw. The bill would also prohibit employers from hiring with the “purpose and intent” of displacing a U.S. worker, provide work authorizations to persons in H-4 status where the H-1B beneficiary has a pending or approved I-140 petition, and reduce the circumstances in which an amended petition is required. Further, the bill would provide a grace period to H-1B beneficiaries whose employment ends prior to the end of the authorized period of admission, increase the burden on employers with more than 50 employees, and increase the base ACWIA fees.
The law also would implement changes to employment-based visas by eliminating per country limits, increasing family-based visa per-country limits by 15 percent, permitting employment-based immigrants with approved I-140s to file for adjustments, removing the 180-day temporal requirement, permitting portability to a same or similar occupation for certain individuals, and creating new employment-based conditional immigrant visas for certain categories of individuals. Other changes to immigration laws would include amending the INA to require the first level of wages to be no less than the mean of the lowest 50 percent surveyed, requiring a study to determine whether occupations in Schedule A should be modified, allowing dual intent for F-1 students, and streamlining procedures by requiring DHS to allow pre-certification procedures for employers who file multiple petitions, and allowing electronic filing.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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