Update: President Trump's Revised Executive Order on Travel Ban Remains Blocked

by Clark Hill PLC

On June 12, 2017, the Ninth Circuit issued its ruling in Hawaii v. Trump, upholding the majority of the district court's preliminary injunction prohibiting the government from implementing the "travel ban" and refugee cap provisions within the March 6, 2017 Executive Order, entitled "Protecting the Nation From Foreign Terrorist Entry into the United States" (the "Order").

The Ninth Circuit upheld the injunction on statutory grounds and did not address the Establishment Clause claim, holding that the President exceeded his delegated authority under the Immigration and Nationality Act ("INA"). Notably, the court found that the government had not sufficiently evidenced that allowing the entry of foreign nationals from the six designated countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) would be harmful to the national interest, as required by the INA. The court also held that the Order likely violated the INA's prohibition on nationality-based discrimination. 

On June 1, 2017, the government filed their petition for a writ of certiorari ("cert") in the U.S. Supreme Court, as well as an application for stay of the injunctions in both Hawaii and International Refugee Assistance Project v. Trump ("IRAP"), pending disposition of the cert petition. On June 12th, the plaintiffs-respondents in IRAP filed their opposition briefs with the U.S. Supreme Court to the government's application for stay and the government's cert petition, respectively. On June 12th, the Supreme Court laid out a new briefing schedule allowing it to decide by the end of the month whether the "travel ban" can take effect immediately. 

For more information about the March 6, 2017 Order, please see Clark Hill's previous Immigration Law Practice Alert.

CAP H-1B Rejections Starting to Arrive

United States Citizenship and Immigration Services ("USCIS") has started rejecting H-1B petitions that were not randomly selected as part of the 2018 fiscal year H-1B lottery. On June 15, 2017, Clark Hill started receiving rejected H-1B petitions.

On April 7, 2017, USCIS announced that between April 3, 2017 and April 7, 2017, it received more than enough applications for new H-1B visas for the 2018 government fiscal year. Applications exceeded the quota, for both the regular 65,000 limit (also called a "cap") and the additional 20,000 limit for persons who have an advanced degree from a U.S. university. Because more applications than the quota permits were received for both Bachelor's and Master's cap cases in the first five business days of April, USCIS used a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject any petitions that were not randomly selected.

Fast-Track "Premium Processing" for Skilled Worker Petitions May Be Returning

In March 2017, USCIS announced that premium processing for all H-1B petitions would be suspended starting April 3, 2017. In their statement, USCIS indicated that the suspension could last up to six months. Premium processing allows employers to pay an additional filing fee to guarantee that their petitions are adjudicated within 15 days.

USCIS Associate Director for Service Center Operations, Donald Neufeld, recently announced that premium processing would be returning incrementally; however, he did not provide a specific date or further details. The Clark Hill team will continue to provide further updates when available.  

July Visa Bulletin

The July visa bulletin has been released. For China, the final action date for employment-based second category (EB-2) advanced slightly to March 22, 2013. Slow progress is expected to continue in this category. In contrast, EB-3 China retrogressed three years to January 1, 2012, as a result of a significant amount of EB-3 downgrades.

For India, EB-2 advanced slightly to July 22, 2008. This category is expected to advance minimally during the last three months of the fiscal year (which runs through September 30th). EB-3 India advanced slightly to February 15, 2006, and is expected to continue to advance. 

The final action date for EB-2 Worldwide remains current. A final action cut-off date will be imposed in this category in August and will be more dramatic than it would have been if a date had been imposed in July; however, this category will become current again on October 1, 2017. The final action date for EB-3 Worldwide advanced to June 8, 2017, effectively keeping this category current.

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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