The media reported late January 8th that the Trump Administration, admidst strong pressure from the business and technology sectors, decided to back away from its proposal to remove the ability of Foreign Nationals to extend H-1B status past the six year limit. The U.S. Citizenship and Immigration Services (“USCIS”) confirmed that it is still conducting a through review of the legal employment programs for Foreign Nationals, but that it is no longer pursuing the idea to eliminate the ability for certain Foreign Nationals in the green card process to extend H-1B status past the six year limit, on which SPS previously blogged.
The H-1B classification has become increasingly more difficult and prolonged as evidenced through high levels of Requests for Evidence (“RFE”) compared to prior years. If you have questions about the administrative changes happening to the H-1B program, please contact SPS Immigration.
On January 4th, 2018, the United States Customs and Border Protection (“CBP”) announced that it updated its guidance on how it will conduct border searches of electronic devices. The directive defines electronic devices as “any device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, camera, music and other media players.”
CBP’s new guidance clarified that it may search electronic devices for information stored on the device, for either inbound or outbound border inspection. CBP confirmed that the search will only include examination of the information that is “resident on the device and accessible through the devices’s operating system or through other software, tools, or application.” CBP further confirmed that it will not search information that is stored remotely or not “otherwise present on the device.” CBP needs “reasonable suspicion” or a legitimate “national security concern” to review or analyze in more detail the contents of a device, which must be approved by supervisor review. CBP further clarified that travelers are “obligated” to present electronic devices for inspection, which means that travelers will need to unlock passcodes or encrypted devices for CBP review. If a traveler refuses to unlock the device, CBP may detain the device for up to five days.
If you have any questions on how this new CBP directive impacts your international travel, please contact SPS Immigration.
On December 30th, 2017, the media began reporting that the U.S. Department of Homeland Security (“DHS”) was working on changing H-1B laws that permit certain H-1B employees to extend their H-1B status past the six year limit, pursuant to the American Competitiveness in the 21st Century Act (“AC21”). A change of this nature would predominantly impact Indian H-1B employees who wait for years for the possibility of filing for permanent resident status.
This announcement has created a lot of uncertainty for law-abiding Employers and H-1B employees which is why it is important to remember that any type of legal change of this nature requires that DHS go through the required legal process that includes public notice, a comment period, and time for DHS to review and respond to comments received. Only then can DHS possibly make a change the legal landscape to no longer permit certain H-1B employees to extend their H-1B status past the six year limit. Further, another provision of AC21 still provides a legal pathway for H-1B employees to extend H-1B status past the six year limit, in one year increments, when certain legal criteria are met.
Please contact SPS Immigration PLLC should you have questions on your current H-1B status.
On Monday, December 18th, USCIS issued new guidance relating to the TN category for Economists which greatly reduce its applicability to qualifying Economist roles.
Foreign nationals working in financial analyst, market research analyst, or marketing specialist occupations have often been able to legally obtain TN status in the Economist category if they could show that they have a degree in Economics and rely on their economics education to perform the role. Under the new guidance, however, USCIS is now restricting this category to individuals doing pure economic analysis, such as people doing economic research or teaching economics. This new guidance will be applied immediately, and will apply to petitions to obtain TN status in the Economist category at USCIS, CBP, or at a U.S. Consulate abroad. Further, people who already hold TN status in the Economist category and who are traveling abroad and returning to the U.S. may experience difficulties re-entering the U.S. Individuals with approved TN status in the Economist category will need to be prepared to demonstrate that their role meets the revised definition, and should consider whether it is advisable to travel internationally at this time.
If you have questions about the new restriction to the TN Economist category, please contact SPS Immigration PLLC.
On December 14, 2017, the Department of Homeland Security (“DHS”) announced through notice in the Federal Register its desire to make two critical regulatory changes impacting employment-based immigration. Specifically, DHS focused on the H-1B and H-4 EAD programs:
Strengthening the H-1B Nonimmigrant Visa Classification Program – Here, DHS states that it intends to revise the definition of “specialty occupation” to increase focus on obtaining the best and the brightest foreign nationals. DHS also intends to revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. Finally, DHS announced that it will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
DHS’ clear focus moving forward is on “hiring American” and “obtaining the best and the brightest foreign nationals.” Currently we can only speculate on how DHS might redefine the H-1B program, but it is likely that the H-4 EAD program will end at some point in the future. If the H-4 EAD program is terminated, it remains unclear how DHS will treat valid H-4 EAD cards with authorization past the date it terminates the program.
It is also important to understand that any regulatory changes must go through the required legal process of notice and comment, so neither of these desired changes by DHS will be quick or immediate. Once DHS has determined its proposed changes, it will publish a notice in the Federal Register, which will be followed by a public comment period. Only then can DHS implement any changes. As such, nothing has changed in the current administration of these two programs other than DHS publicly announcing its policy goals moving forward.
Please contact SPS Immigration should you have any questions regarding how these changes might impact your U.S. immigration situation.
In a decision issued Tuesday, October 17, 2017, a Federal District Court Judge granted a nation-wide Temporary Restraining Order (“TRO”) on President Trump’s latest Executive Order (“EO”), set to take effect Wednesday, October 18th, that some call the Travel Ban version 3.0.
The latest EO imposed varying restrictions on eight countries, most of which are majority Muslim. The TRO grant means that the U.S. Department of State will continue regular visa processing for nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Restrictions still apply to North Koreans and certain Venezuelan’s, which take effect starting Wednesday, October 18, 2017. If you have questions on how this TRO impacts your immigration case, please contact SPS Immigration.
USCIS announced October 3, 2017 that it is resuming premium processing for all H-1B visa petitions. This means that employers may convert all pending H-1B petitions to the expedited review process by paying an extra $1,225 for each petition and filing the required form. Please contact SPS Immigration if you have questions on how this might impact your immigration case.