Mid-May 2017 Immigration Update

Headlines:

  1. Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall – The Consolidated Appropriations Act of 2017 extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, but no funding for a border wall.
  2. USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions – USCIS has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process and has begun returning all H-1B cap-subject petitions that were not selected.
  3. DACA Recipient Files Suit Over Revoked Status – Jessica Colotl, a DACA recipient whose case has received publicity over the years, has had her DACA status revoked. Her attorney has filed a motion requesting a federal judge in Atlanta, Georgia, to reinstate her DACA protection.
  4. USCIS Implements New Interpreter Policy, Form – The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies.
  5. State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories – The Department of State’s Visa Bulletin for the month of June 2017 notes that continued high demand is resulting in cut-off dates being established in several categories.
  6. IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says – It can take months for ICE to determine a visa-holder’s status and whether that person may pose a national security threat, which contributes to a backlog of more than 1.2 million visa overstay cases.
  7. Firm In The News…

Details:

  1. Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall

The Consolidated Appropriations Act of 2017, passed by Congress and signed May 7, extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, among other things.

The spending bill was also notable for what it didn’t contain. For example, the bill did not include funding to begin construction of the border wall promised by President Trump.

Some observers believe that before that date, legislation could be enacted to change the EB-5 program, such as by raising the minimum investment amount, which currently is $500,000 in rural and high unemployment areas and $1 million elsewhere. The EB-5 program has received a lot of attention recently because of a particular EB-5 project in New Jersey being promoted by the Kushner Company. Jared Kushner, President Trump’s son-in-law and a senior advisor to the President, stepped down as chief executive of the Kushner Company in January and has sold stakes in several properties to help allay concerns about possible conflicts of interest.

A statement by President Trump on signing the legislation is at https://www.whitehouse.gov/the-press-office/2017/05/05/statement-president-donald-j-trump-signing-hr-244-law. For more on this case, see https://www.nytimes.com/2017/05/08/us/politics/kushner-china-visa-eb-5.html.

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  1. USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process. USCIS said it has begun returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS was unable to provide a definite time frame for returning these petitions. USCIS asked petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS is transferring some Form I-129 H-1B cap-subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. USCIS will notify by mail those whose cases are transferred.

USCIS also reminded petitioners that it has temporarily suspended premium processing for all H-1B petitions, including cap-subject petitions, for up to six months.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-completes-data-entry-fiscal-year-2018-h-1b-cap-subject-petitions.

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3          DACA Recipient Files Suit Over Revoked Status

Jessica Colotl, a Deferred Action for Childhood Arrivals (DACA) recipient whose case has received publicity over the years, has had her DACA status revoked. Her attorney has filed a motion requesting a federal judge in Atlanta, Georgia, to reinstate her DACA protection.

Ms. Colotl’s parents brought her to the United States from Mexico when she was 11. She was granted DACA status in 2013, which was renewed last year. In the intervening years, her parents moved back to Mexico but she stayed in the United States, graduated from college, and has been working as a paralegal with Kuck Immigration Partners, LLC. Last year, she wanted to travel to Mexico to visit her ill mother, but since she had an outstanding removal order, she filed a motion to reopen and administratively close her removal proceedings. An immigration judge denied the request but the Board of Immigration Appeals found in her favor and sent the case back to the immigration judge to administratively close her case. However, the immigration judge asked the government for its position in writing; in a supplemental filing in March 2017, the government said her case shouldn’t be closed and she was a priority for removal under a February 2017 Department of Homeland Security memorandum due to her criminal history (she was pulled over on campus for a traffic violation and driving without a license in 2010 and was charged with a felony false statement to a law enforcement officer when her address given didn’t match the record. At that time, she was detained for 37 days).

Kuck Immigration Partners filed a complaint on May 9, 2017, in Atlanta for declaratory and injunctive relief. “Trump promised that DACA kids were fine. Nothing’s changed in Jessica’s case.…They are simply in bad faith punishing her for exercising her rights under the policies enacted by the government,” said Charles Kuck. Now 28, Ms. Colotl said in her lawsuit that the government is using her as “a test case to revoke DACA, exceeding its discretionary authority in an arbitrary and capricious manner.” Calling the government’s action “completely outrageous,” she said she “felt shock because I didn’t know this could happen.”

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  1. USCIS Implements New Interpreter Policy, Form

U.S. Citizenship and Immigration Services (USCIS) announced the May 1, 2017, implementation of a policy memorandum issued on January 17, 2017. The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies, such as asylum and refugee interviews; credible fear and reasonable fear screening interviews; interviews to determine eligibility for relief under provisions of the Nicaraguan Adjustment and Central American Relief Act; and naturalization interviews, unless the interviewee qualifies for an exception to demonstrating adequate proficiency in reading, writing, and speaking English. The standards also do not apply to document translations or to interviews conducted at international field offices.

The guidance states that interpreters must be sufficiently fluent in both English and the interviewee’s language, able to interpret competently between English and the interviewee’s language, and able to interpret impartially and without bias. Those restricted from serving as interpreters include minors under age 18 (an exception for good cause may be granted for those age 14-17); attorneys and accredited representatives of the interviewee; and witnesses (unless an exception for good cause is granted). A witness is anyone who gives a personal account, orally or in writing, of something seen, heard, or experienced.

USCIS has introduced the new Form G-1256, Declaration for Interpreted USCIS Interview, as part of implementation of this guidance. Both the interviewee and the interpreter must sign the form at the beginning of the interview in the presence of a USCIS officer. The form includes a declaration stating that the interpreter must accurately, literally, and fully interpret for both the interviewee and interviewing officer, and requires the interpreter to agree not to disclose any personal information learned in the interview.

USCIS officers will receive training to implement the new policy.

The announcement is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews. The policy memorandum is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-17-1-RoleUseInterpreters-PM-602-0125-1.pdf. A related Web alert is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews.

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  1. State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories

The Department of State’s Visa Bulletin for the month of June 2017 notes, among other things:

  • Continued high level of demand for the China and India employment-based first preference (EB-1) categories has required the establishment of a cut-off date for June. The EB-1 date for these two countries will once again become Current for October, the first month of fiscal year 2018.
  • There has been an extremely large increase in China employment third preference applicant demand during the past month, due to the “downgrading” of status by applicants who had originally filed in the employment second preference. This has resulted in the third preference final action date being held for the month of June. Continued heavy demand for numbers will require a retrogression of this date no later than August.
  • There also is continued high demand in the India EB-4 and special religious worker categories, which is likely to result in the India EB-4 per-country limit being reached in June. Therefore, implementation of July EB-4 and special religious worker final action dates for India is expected. The India EB-4 and special religious worker dates should once again become Current for October.

The Visa Bulletin for June 2017 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-june-2017.html.

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  1. IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says

The Department of Homeland Security’s (DHS) Office of Inspector General (OIG) recently found that U.S. Immigration and Customs Enforcement (ICE) relies on information technology (IT) systems that are “fragmented” and “ineffective,” lacking in integration and information-sharing capabilities. As a result, OIG said, ICE personnel are forced to “laboriously piece together vital information from up to 27 distinct DHS information systems and databases to accurately determine an individual’s overstay status.” It can take months for ICE to determine a visa-holder’s status and whether that person may pose a national security threat, OIG said, which contributes to a backlog of more than 1.2 million visa overstay cases.

Further complicating ICE’s efforts to track visa overstays is DHS’s lack of a comprehensive biometric exit system at U.S. ports of departure to capture information on nonimmigrant visitors. In the absence of such a system, OIG reported, ICE must rely on third-party departure data, such as commercial carrier passenger manifests, which do not include biometric land departure information reflecting those who cross the border on foot or using their own vehicles.

OIG made several recommendations to the DHS and ICE Chief Information Officers (CIOs) to improve information sharing, provide training and guidance, evaluate data reliability, and implement a biometric exit solution.

A related press release is at https://www.oig.dhs.gov/assets/pr/2017/oigpr-050417.pdf. The full report is at https://www.oig.dhs.gov/assets/Mgmt/2017/OIG-17-56-May17.pdf.

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  1.   Firm In the News

Cyrus D. Mehta authored the article Representation of the Joint Sponsor on an I-864 is Both Permissible and Prudent that was published in Bender’s Immigration Bulletin, May 1, 2017.

Cyrus D. Mehta was a Panelist on two panels – Ethics – Falsus in Uno and Family Immigration, at the Immigration Law Conference, organized by the Federal Bar Association, in Denver, CO, on May 12-13, 2017.

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May 2017 Immigration Update

Headlines:

  1. President Trump Signs ‘Buy American and Hire American’ Executive Order – Among other things, the order calls for the Secretaries of State, Labor, and Homeland Security, along with the Attorney General, to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate,” to protect U.S. workers in the administration of the immigration system, “including through the prevention of fraud or abuse.”
  2. Congress Extends EB-5 Regional Center Program for a Week – USCIS will continue to accept Form I-526 petitions based on investments through EB-5 regional centers through May 5, 2017.
  3. USCIS Says Employers Should Review Form I-9s for SSN Glitch – Employers who used Form I-9, Employment Eligibility Verification, downloaded between November 14 and November 17, 2016, should review the forms to ensure that their employees’ Social Security numbers appear correctly in Section 1.
  4. Redesigned Green Cards, EADs To Be Issued Beginning May 1 – The redesigns use enhanced graphics and fraud-resistant security features.
  5. Visa Bulletin for May Discusses Expiration, Imminent Unavailability of Certain Visa Categories – Several visa categories are due to expire or become unavailable soon.
  6. Firm In The News…

Details:

  1. President Trump Signs ‘Buy American and Hire American’ Executive Order

On April 18, 2017, President Donald Trump signed a “Buy American and Hire American” executive order. The order sets the policy of the executive branch as, among other things, rigorously enforcing and administering laws governing entry into the United States of workers from abroad. The order also calls for new rules and guidance to “protect the interests of United States workers.”

Among other things, the order calls for the Secretaries of State, Labor, and Homeland Security, along with the Attorney General, to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate,” to protect U.S. workers in the administration of the immigration system, “including through the prevention of fraud or abuse.”

The order also calls for reforms “to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” U.S. Citizenship and Immigration Services (USCIS) recently released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers.

President Trump announced the executive order during a visit to Snap-On Tools in Wisconsin on April 18. He said, “The ‘Buy and Hire American’ order I’m about to sign will help protect workers and students like those of you in the audience today. This historic action declares that the policy of our government is to aggressively promote and use American-made goods and to ensure that American labor is hired to do the job. It’s America first, you better believe it.” He said the order declares that “Made in America content” will be maximized in all federal projects, and that U.S. trade agreements will be investigated accordingly. He said that “widespread abuse” in the U.S. immigration system “is allowing American workers of all backgrounds to be replaced by workers brought in from other countries to fill the same job for sometimes less pay. This will stop.” That includes, he said, “taking the first steps to set in motion a long-overdue reform of H-1B visas.” He said that H-1B visas are currently awarded in “a totally random lottery” but that instead “they should be given to the most-skilled and highest-paid applicants, and they should never, ever be used to replace Americans.” President Trump also said the North American Free Trade Agreement (NAFTA) “has been very, very bad for our country,” and that his administration was going to “make some very big changes” or “get rid of NAFTA for once and for all.”

The order is at https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american. A related press statement is at https://www.whitehouse.gov/the-press-office/2017/04/18/president-trump-promotes-buy-american-and-hire-american. A White House “Background Briefing” on the executive order is at https://www.whitehouse.gov/the-press-office/2017/04/17/background-briefing-buy-american-hire-american-executive-order. The USCIS memo on computer programmers is at https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf.

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  1. Congress Extends EB-5 Regional Center Program for a Week

The U.S. Congress passed a one-week stopgap funding bill to prevent a government shutdown and the expiration of the EB-5 regional center program. The continuing resolution will keep the U.S. federal government open through May 5, 2017, and U.S. Citizenship and Immigration Services will continue to accept Form I-526 petitions based on investments through EB-5 regional centers through that date.

It is unclear whether Congress will be able to resolve outstanding issues related to EB-5 program reform by May 5. It is possible that Congress will pass another continuing resolution extending funding until a later date. Stay tuned.

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  1. USCIS Says Employers Should Review Form I-9s for SSN Glitch

U.S. Citizenship and Immigration Services (USCIS) announced on April 17, 2017, that employers who used Form I-9, Employment Eligibility Verification, downloaded between November 14 and November 17, 2016, should review the forms to ensure that their employees’ Social Security numbers appear correctly in Section 1. The agency said there was a glitch when the revised I-9 was first published on November 14, 2016, whereby numbers entered in the Social Security number field “were transposed when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security number field would appear as 123-34-6789 once the form printed.” USCIS said employers using an I-9 that contains this glitch should download and save a new I-9 at uscis.gov/i-9.

USCIS also said that employers who notice that their employees’ Social Security numbers are not written correctly “should have their employees draw a line through the transposed Social Security number in Section 1, enter the correct Social Security number, and then initial and date the change.” Employers should include a written explanation with the I-9 about why the correction was made.

USCIS said it immediately repaired and reposted the form on November 17, 2016.

The announcement is at https://www.uscis.gov/i-9-central/whats-new.

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  1. Redesigned Green Cards, EADs To Be Issued Beginning May 1

U.S. Citizenship and Immigration Services announced a redesign of the Permanent Resident Card (“green card”) and the Employment Authorization Document (EAD) as part of the “Next Generation Secure Identification Document Project.” USCIS began issuing the new cards on May 1, 2017. The redesigns use enhanced graphics and fraud-resistant security features.

The new green cards and EADs:

  • Display the individual’s photos on both sides
  • Show a unique graphic image and color palette:
    • Green cards will have an image of the Statute of Liberty and a predominately green palette (green cards also will no longer have an optical stripe on the back)
    • EAD cards will have an image of a bald eagle and a predominately red palette
  • Have embedded holographic images
  • No longer display the individual’s signature

Some green cards and EADs issued after May 1, 2017, may still display the existing design format because USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new green cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals in temporary protected status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, see https://www.uscis.gov/humanitarian/temporary-protected-status#Automatic%20Employment%20Authorization%20Document%20(EAD)%20Extension and https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension.

USCIS noted that some older green cards do not have an expiration date; such cards remain valid. The agency said that individuals who have such cards may want to consider applying for a replacement card bearing an expiration date. “Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen,” USCIS noted.

The announcement is at https://www.uscis.gov/news/news-releases/uscis-will-issue-redesigned-green-cards-and-employment-authorization-documents.

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  1. Visa Bulletin for May Discusses Expiration, Imminent Unavailability of Certain Visa Categories

Several visa categories are due to expire or become unavailable soon. The Department of State’s Visa Bulletin for May 2017 includes the following information:

Scheduled Expiration of Two Employment Visa Categories

Employment Fourth Preference Certain Religious Workers (SR):

Pursuant to the continuing resolution signed on December 10, 2016, the non-minister special immigrant program expires on April 28, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight April 27, 2017. Visas issued prior to this date will only be issued with a validity date of April 27, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight April 27, 2017.

The final action date for this category has been listed as “Unavailable” for May. If there is legislative action extending this category for FY-2017, the final action date would immediately become “Current” for May for all countries except El Salvador, Guatemala, Honduras, and Mexico which would be subject to a July 15, 2015 final action date.

Employment Fifth Preference Categories (I5 and R5):

The continuing resolution signed on December 10, 2016 extended this immigrant investor pilot program until April 28, 2017. The I5 and R5 visas may be issued until close of business on April 28, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for May. If there is legislative action extending them for FY-2017, the final action dates would immediately become “Current” for May for all countries except China-mainland born I5 and R5 which would be subject to a June 1, 2014 final action date.

Special Immigrant Visa Availability

The Department expects to exhaust the Special Immigrant Visas allocated by Congress under the Afghan Allies Protection Act of 2009, as amended, not later than June 1, 2017. As a result, the Final Action Date for the SQ category for certain Afghan nationals employed by or on behalf of the U.S. government in Afghanistan will become “Unavailable” effective June 2017. No further interviews for Afghan principal applicants in the SQ category will be scheduled after March 1, 2017, and further issuances will not be possible after May 30, 2017.

The SQ category for certain Iraqi nationals employed by or on behalf of the U.S. government in Iraq is not affected and remains current, though the application deadline was September 30, 2014.

The FY-2017 annual limit of 50 Special Immigrant Visas in the SI category was reached in December 2016 and the Final Action Date remains “Unavailable.” As included in the January 2017 Visa Bulletin, further issuances in the SI category will not be possible until October 2017, under the FY-2018 annual limit.

The May 2017 Visa Bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-may-2017.html.

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  1. Firm In The News

Cyrus Mehta was a Speaker on Ethics Lecture, organized by the New York Legal Assistance, Group, New York, NY, April 20, 2017.

Cyrus Mehta was quoted in “H-1B Briefing at White House Highlights Infosys, TCS, Cognizant Outsize Role in Lottery,” published by Firstpost on April 23, 2017. Regarding the Trump administration’s comparisons and assertions about H-1Bs driving down U.S. wages, Mr. Mehta noted that “[a] techie in Wisconsin and a techie in Silicon Valley will not be earning the same; there will be a difference. Additionally, a very senior-level H-1B worker in Wisconsin may be earning less than a junior-level person in Silicon Valley. They’re not factoring in regional differences,” he said. The article is at http://www.firstpost.com/world/h1b-briefing-at-white-house-highlights-infosys-tcs-cognizant-outsize-role-in-lottery-3399158.html. Mr. Mehta also spoke in a wide-ranging discussion on H-1B visas. A video of that conversation is at https://www.facebook.com/firstpostin/videos/1419298931463091/.

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Mid-April 2017 Immigration Update

Headlines:

  1. USCIS Reaches FY 2018 H-1B Cap – On April 7, 2017, USCIS reached the H-1B cap for FY 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption.
  2. USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers – Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.
  3. USCIS Announces Multiple Measures To ‘Deter and Detect’ H-1B Visa Fraud, Abuse – Among other things, USCIS said it “will take a more targeted approach” when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.
  4. Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening – Visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond.
  5. DHS Asks DC Circuit Court for 6 Months To Reconsider H-4 Employment Authorization Rule – DHS said it wanted time to reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.
  6. Stalking’ the Undocumented Immigrant: California Objects to Immigration Enforcement Tactics at Courthouses – California’s chief justice said that “enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.” Among other things, she said that such actions “undermine the judiciary’s ability to provide equal access to justice.”

 Details:

  1. USCIS Reaches FY 2018 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017, that it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the master’s cap.

The agency said it will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. The agency noted that it suspended premium processing as of April 3 for up to six months for all H-1B petitions, including cap-exempt petitions.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, will not be counted toward the congressionally mandated FY 2018 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS said it encourages H-1B applicants to subscribe to the H-1B cap season email updates at https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season. The announcement that the cap has been reached for FY 2018 is at https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2018-h-1b-cap.

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  1. USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers

On April 3, 2017, the first filing day for fiscal year 2018 H-1B petitions, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers. The memo, “Guidance Memo on H-1B Computer Related Positions,” supersedes and rescinds a memo with the same title issued December 22, 2000.

The new memo states that petitioners may not rely solely on the Occupational Outlook Handbook (OOH) to prove that an entry-level computer programmer position is a specialty occupation: “[I]t is improper to conclude based on this information that USCIS would ‘generally consider the position of programmer to qualify as a specialty occupation.’ ” Among other things, the new memo states that the earlier memo “does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.” The fact that a computer programmer may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job “is not sufficient to establish the position as a specialty occupation,” the memo states. Thus, “a petitioner may not rely solely on the [OOH] to meet its burden” and must provide other evidence.

Many such H-1B applications presumably have already been filed, along with fees of several thousand dollars per application that the agency can keep whether it approves or denies the application. Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.

The USCIS memo is at https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf.

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  1. USCIS Announces Multiple Measures To ‘Deter and Detect’ H-1B Visa Fraud, Abuse

On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures “to further deter and detect H-1B visa fraud and abuse.” USCIS explained that the H-1B visa program “should help U.S. companies recruit highly skilled foreign nationals when there is a shortage of qualified workers in the country,” but that “too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.” USCIS stated that it is prioritizing “combating fraud in our employment-based immigration programs.”

Among other things, USCIS said it “will take a more targeted approach” when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The agency said it will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources “where fraud and abuse of the H-1B program may be more likely to occur,” the agency said, and to “determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” USCIS said it will continue random and unannounced visits nationwide. “These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system,” USCIS said.

USCIS also has established an email address, ReportH1Babuse@uscis.dhs.gov, “to allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.” Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution, USCIS said.

The announcement is at https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse.

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  1. Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening

According to reports, visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond. The Department of State issued several related cables to diplomatic and consular posts that were publicly leaked, such as one issued on March 17, 2017, calling for increased scrutiny and consideration of security advisory opinions (SAOs) when additional checks may be warranted, along with generally limiting visa interviews to 120 per consular officer per day.

To support an SAO request, consular officers may ask visa applicants probing questions. It was also reported that those coming to the United States may be required to disclose their mobile phone contacts, social media passwords, financial records, and ideology. The March 17 cable’s leaked text says that if a consular post determines that an applicant “may have ties to ISIS or other terrorist organizations or has ever been present in an ISIS-controlled territory, post must/must refer the applicant to the Fraud Prevention Unit for a mandatory social media review.” The cable states that the post should scan the results of this review into the nonimmigrant visa case for consideration during the SAO process.

For the text of the March 17 cable, see https://tinyurl.com/lbam9fn.

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  1. DHS Asks DC Circuit Court for 6 Months To Reconsider H-4 Employment Authorization Rule

The Department of Homeland Security (DHS) has filed a motion asking the U.S. Court of Appeals for the District of Columbia Circuit to delay proceedings in Save Jobs USA v. DHS for up to 6 months so the agency may reconsider a February 2015 rule, “Employment Authorization for Certain H-4 Dependent Spouses,” that allows certain people maintaining H-4 nonimmigrant status to apply for and receive employment authorization. DHS said it wanted time to actively reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.

The motion, filed April 3, 2017, is at http://www.balglobal.com/wp-content/uploads/4-3-17-DHS-motion.pdf.

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  1. ‘Stalking’ the Undocumented Immigrant: California Objects to Immigration Enforcement Tactics at Courthouses

California Chief Justice Tani G. Cantil-Sakauye recently sent a letter to U.S. Attorney General Jeff Sessions and Department of Homeland Security Secretary John Kelly expressing concerns about reports that immigration agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”

In the letter, Chief Justice Cantil-Sakauye said that courthouses “should not be used as bait in the necessary enforcement of our country’s immigration laws.” She noted that courts are the main point of contact for crime victims and witnesses. “As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice,” she noted.

Chief Justice Cantil-Sakauye said she is concerned about “the impact on public trust and confidence in our state court system” if the public feels that state institutions are being used to facilitate goals and objectives other than their primary purpose. She said that “enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.” Among other things, she said that such actions “undermine the judiciary’s ability to provide equal access to justice,” and requested that this type of enforcement not be pursued.

The letter is at http://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com/262/files/20172/Chief%20Justice%20Cantil-Sakauye%20Letter_AG%20Sessions-Secretary%20Kelly_3-16-17.pdf.

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April 2017 Global Immigration Update

Headlines:

INDIA – India has launched an e-Tourist Visa for certain travelers.

ITALY – Various developments have been announced.

NETHERLANDS – This article offers comments from a Dutch perspective on the new European Union Directive on intracorporate transferees.

TURKEY – Regulations on the new Turquoise Card have been published.

UNITED KINGDOM – This article discusses several recent developments, including how triggering Article 50 will affect employers of EU nationals in the UK.

Details:

INDIA

India has launched an e-Tourist Visa for certain travelers.

India has launched an e-Tourist Visa (eTV) for travelers whose sole objective for visiting India is recreation, sightseeing, a casual visit to meet friends or relatives, a visit for short-duration medical treatment, or a casual business visit.

The eTV is a single-entry visa, and a visitor can request up to two eTVs per year. The eTV is valid for 30 days from the date of arrival. The holder of the eTV visa may remain in India for a maximum of 30 consecutive days after the initial entry date, and the visa is non-extendable and non-convertible.

Although there is no definition of the term “casual business,” anecdotal evidence suggests that it could involve attending short business meetings or a conference during the 30-day period.

Travelers to India on an eTV should have a return ticket or onward journey ticket with proof of sufficient funds to support themselves during their entire stay in India.

The eTV is not available to international travel document holders or to applicants with a diplomatic passport. International travelers having either a Pakistani passport or who are of Pakistani origin must apply for a regular visa at an Indian Mission.

The e-TV is available for nationals of the following countries/territories:

Albania, Andorra, Anguilla, Antigua & Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Cambodia, Canada, Cape Verde, Cayman Islands, Chile, China, China-SAR Hong Kong, China-SAR Macau, Colombia, Comoros, Cook Islands, Costa Rica, Cote d’lvoire, Croatia, Cuba, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, East Timor, Ecuador, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Ireland, Israel, Jamaica, Japan, Jordan, Kenya, Kiribati, Laos, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Mozambique, Myanmar, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niue Island, Norway, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Macedonia, Romania, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Tonga, Trinidad & Tobago, Turks & Caicos Islands, Tuvalu, United Arab Emirates, Ukraine, United Kingdom, Uruguay, United States of America, Vanuatu, Vatican City-Holy See, Venezuela, Vietnam, Zambia, and Zimbabwe.

For further details, see https://indianvisaonline.gov.in/visa/tvoa.html.

ITALY

Various developments have been announced.

Italy Welcomes High-Net-Worth Individuals

This year the Italian Budget Law, effective January 1, 2017, includes several measures aimed at attracting foreign investments and encouraging high-net-worth (HNW) individuals to move to Italy. Among these are the introduction of a preferential tax regime for wealthy individuals who take up tax residency in Italy and a new visa program specific for HNW investors that facilitates the procedures for their entry and residence in Italy. Until now, Italy, unlike other EU countries, did not provide a dedicated entry-for-investment visa scheme.

Favorable Flat-Tax Regime Begins for New Residents

On March 8, 2017, the Italian Revenue Agency (Agenzia delle Entrate) issued implementing provisions for a flat-tax regime. The law is now fully effective.

Individuals who become Italian tax residents can take advantage of a substitute tax regime on their foreign income. Under this regime, regardless of amount, foreign income will only be subject to a yearly flat tax of €100,000. Close family members can also benefit from the favorable tax measures: a flat tax of just €25,000, instead of €100,000, will be applied to their foreign income. Moreover, opting for the new regime guarantees full exemption from reporting requirements with respect to financial and non-financial assets abroad and from succession duties on assets outside Italy.

To qualify for this option, the applicant must not have been resident in Italy for at least 9 tax years during the previous 10 years; eligible taxpayers can request the substitute tax regime when filing their tax returns. Before that point, it is possible to submit a preliminary ruling (interpello) to the Italian Revenue Agency.

Guidelines and checklists of requirements are now available. For further information, see http://www1.agenziaentrate.gov.it/english/invest_italy/new_residents_regime.htm.

New Provisions Introduced for Dedicated Visa Option: Investor Visa

Additional provisions have been introduced in Italian immigration law to promote foreign investments. An “investor visa” will shortly be available to foreigners intending to invest in Italy under one of the following options:

  • €2 million in government bonds, to be kept for at least 2 years
  • €1 million in the share capital of an Italian company, reduced to €500,000 if the company is an innovative start-up
  • €1 million in philanthropic donations (culture, education, immigration management, scientific research, or cultural heritage)

The government is drafting an implementing decree that, once published, will make the law fully effective.

Cap on Workers From Outside the EEA for 2017 Announced

The Italian government has announced a cap of 30,850 on the number of workers from outside the European Economic Area (EEA) allowed in Italy for 2017.

The figure and the categories of workers allowed this year are not very different from those announced in recent years. Once again, no quotas for standard sponsored employment have been issued (apart from a few exceptions below).

More than half of the quotas are reserved for seasonal workers (17,000). Most of the remaining quotas (10,850) are reserved for changes of status for residence permit holders in Italy or the European Union (EU) (study, seasonal work, permanent); for example, to convert the existing residence permit into a permit for employment/self-employment.

The remaining few quotas are for self-employment work (2,400) and special categories (600) of foreigners (such as South American citizens with Italian ancestors or individuals who have completed a specific training in their country of residence).

Background. Immigration for work purposes in Italy is based on a quota system. Quotas are set annually by means of a decree (decreto-flussi). The decree sets the numerical limits for each category of foreign nationals who may apply for work permits and the period during which applications can be submitted. Permits are normally granted on a first-come, first-served basis.

Several categories of workers are excluded from the cap and are not subject to a fixed limit, such as intra-company transfer (ICT) workers, highly skilled workers, executives or managerial employees assigned to the Italian branch of a foreign legal entity, university lecturers and professors, translators and interpreters, and professional nurses.

Deadlines and How To Apply

Application forms for permit conversion and permits reserved for special categories of foreigners, and seasonal work permit application forms, are available at https://nullaostalavoro.dlci.interno.it/Ministero/Index2. Application forms can only be submitted until December 31, 2017.

Instructions and deadlines are set by quota decree 2017 (DPCM 13 February 2017) and Ministries joint circular 08.03.2017, at http://www.lavoro.gov.it/notizie/Documents/Circolare_flussi_2017.pdf.

Quota Categories

The 30,850 quotas are allocated among the following categories:

NEW ENTRIES—NON-EU NATIONALS RESIDING ABROAD

  • 17,000 quotas (seasonal work). Limited to:
    • Agriculture; hospitality and tourism industry
    • Nationals of Albania, Algeria, Bosnia-Herzegovina, South Korea, Ivory Coast, Egypt, Ethiopia, Yugoslav Republic of Macedonia, Philippines, Gambia, Ghana, Japan, India, Kosovo, Mauritius, Moldova, Montenegro, Morocco, Niger, Nigeria, Pakistan, Senegal, Serbia, Sri Lanka, Sudan, Ukraine, Tunisia
    • 2,000 entries reserved for workers who have already worked as seasonal employees at least once in the previous 5 years and whose employers apply for a multi-year permit. For these, no nationality restrictions apply
  • 500 quotas (work as an employee). For foreign nationals residing abroad who have completed an educational/training program in their home countries (pursuant to Article 23, Immigration Law)
  • 100 quotas (employee/self-employee). For employed or self-employed work. For foreign nationals who have Italian ancestry and reside in Argentina, Uruguay, Venezuela, or Brazil.
  • 2,400 quotas for self-employment, which includes:
    • Entrepreneurs intending to implement an investment plan of interest to the Italian economy, involving an investment of at least €500.000 and creating at least 3 new jobs in Italy
    • Freelancers/independent contractors who intend to practice regulated or controlled professions (i.e., individuals belonging to a professional association or enrolled in an official/public register); or professions that are not non-regulated but are considered representative at the national level and included in the lists edited by the Public Administration
    • Holders of corporate offices or administrative/controlling positions (any of the following: chairman, CEO, member of board of directors, auditor) in an Italian company, active for at least 3 years (requirements set by Visa Decree May 11, 2011 n.850)
    • Foreign citizens who intend to set up innovative start-up companies under certain conditions, who will have a self-employment relationship with the start-up
    • Internationally well-known artists of the highest reputation, artists of recognized high professional qualifications, or artists who are hired by well-known Italian theaters, important public institutions, public television or well-known national private television (requirements set by Visa Decree May 11, 2011 n.850)

PERMIT CONVERSION—FOR NON-EU NATIONALS ALREADY IN ITALY/EU

  • 5750 quotas from seasonal to standard work permits. For conversions of seasonal work permit to standard, non-seasonal work permit (as an employee)
  • 4000 quotas from study to employed work. For conversion of study, internship, and/or vocational training residence permit to residence permit for work (as an employee)
  • 500 quotas from study to self-employment. For conversion of study, internship, and/or vocational training residence permit to residence permit for self-employment
  • 500 quotas for holders of an EU residence permit for long-term residents issued by an EU Member State other than Italy who wish to apply for a residence permit for work (as an employee) in Italy
  • 100 quotas for holders of an EU residence permit for long-term residents issued by an EU Member State other than Italy who wish to apply for a residence permit for self-employment in Italy

Employers should evaluate their need for work permits for non-EU nationals, especially if intending to hire foreign nationals holding a study, internship, and/or vocational training residence permit or permanent residents of an EU country.

Official Guidelines Issued for ICT Work Permits: What’s New?

After the introduction of the new EU ICT work permit category in Italy in January 2017, based on the so-called “ICT Directive” (Directive 2014/66), the Ministry Of Labour and Social Policies has issued its official guidelines on the matter and list of documents (Circular letter 09.02.2017). Below is an overview of the main features and substantial changes to existing provisions:

  • The previous work permit category under article 27 c.1 letter (g) of Italian immigration law no longer exists. Holders of work permits for highly skilled workers on assignment for a determined period to carry out a specific task or activity may have difficulties in extending the current permit to the end of the maximum assignment duration of 4 years.
  • The existing intra-company work permit for managers/highly skilled staff pursuant to article 27 c.1 letter (a) remains in place.
  • Substantial changes have been introduced for graduated workers transferred for career development purposes.
  • ICT applications can be filed only for assignments longer than 90 days.
  • Work and residence permits must be issued within 45 days from each application filing.
  • Maximum duration of the transfer is 3 years for managers and specialists, 1 year for trainees (total, including extensions).
  • Once the maximum period of transfer is reached, the worker must leave Italy and return to the sending employer or to a company of the same group. A new ICT application can be filed only after 3 months have passed.
  • The application must be sponsored and filed by the host entity in Italy, defined as a seat, branch, or representative office of the non-EU employer. Companies must be affiliated; i.e., either directly owned by the non-EU sending company or by another company of the same group (per article 2359 of the Italian Civil Code).
  • During the entire assignment, the employer must comply with the relevant social security obligations.
  • There is more flexibility on the documents required to show an accommodation in Italy (in some locations, a housing feasibility certificate may no longer be required).
  • Intra-EU mobility: Holders of a valid Italian ICT permit may, under certain conditions, temporarily perform activities at an entity of the same group established in another EU Member State. Similarly, the holder of a valid ICT permit issued by another EU member state does not need a visa to enter Italy and can be transferred for up to 90 days within 180 days in exemption of the work/residence permit. A work permit is required for longer assignments.
  • Specific reasons for denial have been introduced. For example, a denial may be issued if the host company has been set up for the purpose of obtaining work permits or has been put into liquidation, has been liquidated, or is not carrying out any economic activity.
  • The obligations set forth in article 10 of Decree n. 136/2016 implementing EU Posted Workers Directive (2014/67) do not apply (i.e., secondment notifications do not apply).
  • Italian companies can request an expedited procedure by signing a Protocollo di Intesa (Protocol Agreement or Memorandum of Understanding) with the Ministry of Interior.
  • Family dependents may join the assignee in Italy regardless of the duration of his or her permit and are allowed to work.

Posted Worker Notifications No Longer Required for ICT Workers

The Ministry of Labour has published a clarification on the applicability of secondment declaration obligations (http://www.cliclavoro.gov.it). The FAQ section explains that the provisions and obligations of Legislative Decree No. 136/2016 do not apply to the following categories of workers (see FAQ no. 10, https://www.cliclavoro.gov.it/Aziende/FAQ/Pagine/Posting-of-workers.aspx):

  1. Foreign ICT managers, specialists, trainees, per Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (Ministry of the Interior and Ministry of Labour and Social Policies joint circular No. 9/2017, https://www.cliclavoro.gov.it/Normative/circolare-9-gennaio-2017-n.1.pdf)
  2. Foreign researchers
  3. Self-employed foreign workers
  4. Intra-company assignees—managers, highly skilled—foreign workers referred to in Article 27 c.1 letter (a) of Italian Immigration Law

Points 2 to 4 have not yet been confirmed by means of a memorandum to be published by the Italian National Labour Inspectorate.

What is the change?

The obligations set forth in Decree n. 136/2016 implementing the EU Posted Workers Directive (2014/67) no longer apply to most foreign workers posted to Italy. The above-mentioned obligations are only applicable to:

  • Service agreement assignments; i.e., workers posted to Italy to provide services in the framework of a service agreement between the Italian entity and the entity established outside the EU—Article 27 c.1 letter (i)
  • So-called “Van der Elst assignment”; i.e., workers employed by an EU company posted to Italy to provide services in the framework of a service agreement between the Italian entity and the EU entity—Article 27 c.1-bis
  • Workers of any nationality posted to Italy in the framework of the provision of services per the provisions set forth in the EU Posted Workers Directive (2014/67)

What’s next?

Foreign companies posting workers under points 1 through 4 above are no longer subject to the secondment notifications and other related obligations (document storage, etc.). Secondment notifications already sent and that were not due may need to be cancelled/annulled. It is not yet clear how to proceed.

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NETHERLANDS

This article offers comments from a Dutch perspective on the new European Union Directive on intracorporate transferees.

The European Union (EU) has introduced an EU-wide permit scheme for intracompany transfers. Directive 2014/66, in force since November 29, 2016, offers excellent options for mobility of intracorporate transferees throughout EU territory—at least in theory. Another interesting feature: it’s obligatory.

EU Directive 2014/66 of May 15, 2014, on the entry and residence of third-country nationals in the framework of an intra-corporate transfer (ICT Directive) was implemented in the Netherlands on November 29, 2016, the last day of the transition window. The ICT Directive is a landmark regulation in the sense that it introduces—compared to existing EU directives on labor migration—an exceptional level of harmonization across the EU. What does this directive mean, and how does it function?

Main Features of the ICT Directive Scheme

The ICT Directive applies to third-country nationals (i.e., non-EU/EEA nationals) who are temporarily transferred for occupational or training purposes to a Member State and who, at the time of the residence permit application, reside outside the territory of the Member States. It provides for a residence permit valid for a maximum of three years (for managers and technical specialists) or one year (for trainees). The main benefit of the permit is that it allows the transferee to travel from the EU Member State that has granted the permit to an establishment of the same group of undertakings in another Member State, without the need for a new test on fulfillment of the conditions. Thus, the ICT permit opens important new mobility options within the EU. Note that the United Kingdom, Ireland, and Denmark have opted out of the ICT Directive.

ICT Mobility

The ICT permit allows the transferee to move to other Member States for periods of time not exceeding 90 days (short-term mobility) and for periods longer than that (long-term mobility). For short-term mobility, the Member States have two options: they may simply allow the transferee to move and work in their territory on the basis of the valid ICT permit issued in the first Member State, or they might opt for a (rather complex) notification procedure. For long-term mobility, the Member States have three options. They may: (1) allow such longer stays on the basis of the ICT permit issued in the first Member State; (2) provide for a notification system; or (3) opt for an extra application procedure. Much will depend on which of these options the Member States will choose when implementing the Directive. Many still have not done so yet. In theory, the EU could effectively become a single area in which intracorporate transferees can move and work as if there were no Member States. The Netherlands has taken a conservative approach and chosen a notification system for short-term mobility and a permit system for long-term mobility. However, the applicant can work from the moment of application and with fewer conditions than for a first-entry application.

Concerns Raised by Corporations

The new rules were met with enthusiasm but also raised some concerns. Indeed, the residence permit obtained on the basis of the ICT Directive has certain limitations vis-à-vis existing permit schemes, both national schemes and EU schemes (such as the EU Blue Card scheme), or, at any rate, from a Dutch perspective. For example, the Dutch knowledge migrant permit (kennismigrantenvergunning, KMR) is granted for up to five years (depending on the employment contract) and can be renewed without limitation. The ICT residence permit can be granted for a maximum of three years (for managers and technical specialists) or one year (for trainees), as noted above, but cannot be renewed. It is true that a new ICT permit might be obtained subsequent to the first one. However, depending on the Member State’s implementation, the transferee first must leave EU territory for a period ranging from one day to six months. The latter is the case in the Netherlands, so an ICT residence permit based on the Directive effectively cannot be renewed, and a new posting for the same employee in the Netherlands is possible only after an interruption of at least six months.

This would not be problematic, of course, if the application of the Directive were not obligatory. It should be noted that the Dutch KMR scheme can be used for local hires, as well as for intra-corporate transferees who remain on a foreign contract and payroll. The KMR scheme is generally preferred to other schemes, not only for the length of the permit but also for its procedural swiftness (two weeks’ processing time) and the rights associated with it (e.g., full spousal labor market access).

But the ICT Directive has now changed all of this, as it does not leave the Member States an option. If a transferee falls within the scope of the Directive (mainly foreign contracts and payroll), national permit schemes may not be applied and the Member State must apply the ICT Directive scheme.

In addition to the ICT permit being limited in duration and renewability, the entry conditions are in some cases more onerous than those of national schemes, so that where the national permit might successfully be applied for, the ICT permit application must be refused. For example, the ICT Directive requires that the transferee have three months’ prior employment in the group of undertakings (the Directive leaves Member States the option to choose for prior employment of up to six months), whereas the KMR scheme allowed for hiring and immediate transfer to the Netherlands. Thus a newly hired employee will now, as a result of the Directive, effectively have to wait three months before being able to move to the Netherlands. Another potential obstacle is the qualification requirement (a bachelor’s degree or higher, whereas the Dutch KMR scheme requires no formal education level).

When corporate employers began to realize these aspects of the ICT Directive, a certain anxiety started to build. It didn’t help that the immigration authority in the Netherlands (IND) did not take a sufficiently clear position on the issues of non-renewability of the ICT permit and its obligatory character. The lack of clarity revolved around the definition of the scope of the ICT Directive—when is an applicant within the scope of the ICT Directive so that national schemes fall away?

Scope and Definitions of the ICT Directive

Article 2 of the ICT Directive limits its scope to third-country nationals who reside outside the territory of the EU Member States at the time of application, or who are residing in a Member State under the ICT Directive already. This means that for every person who does not meet one of those two criteria, the ICT Directive does not apply. For these employees, the regular KMR scheme can still be used.

The scope is further limited (via article 2 and 3 of the ICT Directive) by the fact that it must concern intra-company transfers. If it is not “intra-company,” the ICT Directive does not apply. Also, if it is not a transfer because the employee gets a contract and payroll in the Netherlands (local hire), the ICT Directive does not apply.

Permit Requirements

If the ICT Directive applies, the employee must meet the requirements of article 5 of the ICT Directive to obtain the permit. As mentioned, it is important to distinguish between the scope of the ICT Directive and the requirements for a permit. The first step is the scope: Does the ICT Directive apply to this employee? If not, then other schemes like the KMR scheme might be used. If yes, then step two is to check whether the transferee meets the requirements for the ICT permit. If not, then no permit can be issued. To solve the issue, the person must be brought outside of the scope of the ICT Directive so the KMR scheme can be used (e.g., by moving the contract and payroll to the Netherlands).

Frequently Asked Questions

While initially the IND did not take a sufficiently clear position, most issues have now been clarified. The outcome is that the ICT permit can be transferred into a national permit, even if the employee remains on a foreign contract and payroll. The process that led to this conclusion is interesting.

Since November 2016, the IND has published two new documents: the ICT Directive Frequently Asked Questions (FAQs) in Dutch dated December 8, 2016, and a translation of these FAQs into English. Although these texts have no formal legal status, it seems that the IND has chosen the form of FAQs to communicate its guidelines for the implementation of the ICT Directive scheme. The IND has never used this method before.

When the English version of the FAQs was published on February 16, 2017, the IND gave no indication that it was anything other than a literal translation. Surprisingly, however, this version differed significantly from the Dutch version of December 2016, namely on the most contested point: the renewability of the ICT permit. The Dutch version suggested that after the maximum duration of an ICT permit, the permit holder must return to his or her foreign employer: “The idea behind the ICT Directive is that after the stay in the Netherlands the employee returns to the foreign employer or goes to another EU-based undertaking of the organisation.” In the English version, however, the following sentence was added to this paragraph: “However, the employee can apply for a national residence permit after the maximum period of residence.”

As if to leave no room for interpretation, a whole new question-and-answer was inserted that explained that after three (or one) year(s), a transferee falls out of scope of the Directive and is therefore entitled to apply and obtain a KMR permit, even if he keeps his labor contract and payroll with the employer outside the EU.

This argument might certainly be refuted, as article 2 of the Directive reads: “This Directive shall apply to third-country nationals who reside outside the territory of the Member States at the time of application and apply to be admitted or who have been admitted to the territory of a Member State under the terms of this Directive.”

The question is whether the European Commission is likely to take any action on this, as their main priority is currently to chase those Member States that have not transposed the Directive at all, which is a much bigger threat to the well-functioning of this new EU-wide permit scheme.

Conclusion

The ICT Directive is a very interesting new permit scheme that applies throughout (most of) the EU. Multinational corporations will certainly benefit from its mobility options, although it will still take time before the practices in all Member States will be sufficiently clear and interchangeable for the EU to “feel” as one area. In terms of a new permit scheme that reinforces the options of an intracompany transfer to the EU, the Directive must be compared to local permit schemes—a test that in the Netherlands turns out negatively. The Dutch government has found a way around the obligatory character, but the solution does not seem compliant with the wording of the ICT Directive. The future will show whether such national disobedience eventually jeopardizes the success of the ICT scheme and, if so, how the European Commission will get the Member States back on the same page.

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TURKEY

Regulations on the new Turquoise Card have been published.

On March 14, 2017, regulations on the new Turquoise Card were published in the Official Gazette. In the new Law on International Workforce (work permit law of August 2016), a category of permanent residence was created for qualifying foreigners. Under Article 11 of the new law, a Turkuaz (Turquoise) Card will be issued to a foreign national after evaluation of his or her educational level, professional experience, contribution to science and technology, and/or investment impact in Turkey.

Turquoise Cards are issued for an indefinite term following a 3-year conditional period. Those granted a Turquoise Card generally have the same rights as those accorded to Turkish citizens, with some exemptions. Their dependents also are granted residence permits. Such applications have been awaiting the implementing regulations. Regardless of these new regulations, as of press time the system was not yet online to allow for Turquoise Card filings. A panel of experts within the Work Permit Directorate is expected to adjudicate Turquoise Card cases. Additionally, the new system will very likely include a completely new specialized application form(s). It is unclear when the system will be available online.

The regulations state that:

  1. Turquoise Card applications can be filed from abroad or within Italy depending on the immigration status of the applicant.
  2. The categories for a Turquoise Card include highly qualified employees, certain investors, strategic/high-impact scientists or researchers, internationally successful artists or athletes, and specialists who will promote Turkey.
  3. Any Turkish government agency may issue a “Certificate of Conformity” evidencing support for the particular foreigner’s application. Details regarding this certificate will be determined at a later date.
  4. General criteria (scoring system) for each category include:
  • Highly Qualified Employees: Level of education, prestige of educational institution, salary level, foreign language abilities, relevant professional experience
  • Investors: Amount of investment, level of exports, number of employees, strategic need of sector of investment, strategic need of region where investment will occur, nature of intellectual or industrial property rights of investment
  • Scientists/Researchers: Level of education and prestige of educational institution; patents, trademarks, or licenses granted to the applicant; level of innovation of their activities or field of knowledge; academic or professional titles; strategic importance to Turkey of their sector of expertise; anything that shows the importance of their professional experience or qualifications
  • Athletes or Artists: Nationally or internationally recognized awards or degrees. For artists, recognition of their work
  • Specialists to Promote Turkey or Turkish Culture: Duration, sustainability, influence, etc., of their promotional activities for Turkey. Activities carried out internationally; e.g., as volunteers.
  • Applicants who are continuing their academic studies are not necessarily precluded from filing an application.
  • A successful applicant will be given a 3-year conditional status. On an annual basis, the applicant will need to file a status report.
  • Turquoise Card recipients have all the same rights as those issued indefinite work permits.
  • Turquoise Card dependents are also issued residence cards.
  • Turquoise Cards will be cancelled if the holder remains outside of Turkey for more than 6 months, unless he or she can prove force majeure. If the holder remains outside for more than 2 years, even force majeure will not prevent the cancellation of the holder’s card and those of his or her dependents.

The most-used category for this program is likely to be for investors from predominantly Middle Eastern countries.

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UNITED KINGDOM

This article discusses several recent developments.

Key Changes Affecting Tiers 2 and 5

On March 16, 2017, the Home Office published its latest changes to the Immigration Rules. The main changes are particularly relevant for sponsors of Tier 2 migrants and will come into effect on or after April 6, 2017. Below is an overview of the key changes that affect the Tier 2 and 5 categories, as well as other important changes.

As previously announced, an Immigration Skills Charge of £1000 per skilled worker per year is being introduced for employers in the Tier 2 (General) and Tier 2 (Intra-Company Transfer) routes. The charge is £364 for small and charitable sponsors.

There are exemptions for PhD-level occupations, Intra-Company Transfer Graduate Trainees and those switching from Tier 4 to Tier 2 in the United Kingdom.

Tier 2 (Intra-Company Transfer) migrants were previously exempt from this charge but now will pay a surcharge of £200 per person per year. Dependents will also need to pay the same amount as the main applicant.

Tier 2 (General) applicants coming to work in the education, health, and social care sectors will need to provide a criminal record certificate for each country where they have resided for 12 months or more over the preceding 10 years. This will also apply to their adult dependents.

A certificate will be required for applicants sponsored in these Standard Occupation Classification codes. Applicants in these codes outside of the Tier 2 (General) route, such as intra-company transfers, are not affected. Certificates will also be required from partners applying from overseas on or after April 6, 2017, who want to join an existing Tier 2 (General) visa holder working in one of these sectors.

The minimum salary sponsors can offer a Tier 2 (General) worker will increase from £25,000 to £30,000 for experienced workers. The current minimum salary of £20,800 will be retained for new entrants. Note that the appropriate rate for the job specified in the relevant codes of practice (SOC codes) may well be higher and in fact many of the occupational salary rates in the codes of practice for both new entrants and experienced workers will be increased.

The high earner salary threshold will be increased from £155,300 to £159,600 (for these individuals sponsors are exempt from carrying out a Resident Labour Market Test and from the requirement to assign a restricted Certificate of Sponsorship under the Tier 2 (General) limit).

For “milkround” recruitment (where companies tour universities to recruit), changes are being made to the Resident Labour Market Test, including widening the websites that may be used for graduate recruitment from a specified list of four to any freely available, prominent, graduate recruitment website. A further change is being made whereby a candidate must be offered a job within 12 months of the completion of the advertising relied on (currently six months).

A waiver for the Resident Labour Market Test and an exemption from the Tier 2 (General) limit is being introduced for posts that support the relocation of a high-value business to the UK or a significant new inward investment project. The sponsor must be a newly registered (within the last three years) branch or subsidiary of an overseas business and the investment must involve new capital expenditure of £27 million or the creation of at least 21 new UK jobs.

The Short Term Staff category will close, meaning that all intra-company transfer workers, except graduate trainees, must qualify under a single route with a minimum salary threshold of £41,500, or the appropriate rate in the codes of practice, whichever is higher.

The salary threshold for senior intra-company transferees who are able to extend their total stay in the category to up to nine years is being reduced, from £155,300 to £120,000.

The requirement for intra-company transferees to have at least one year’s experience working for the sponsor’s linked entity overseas is being removed for applicants paid £73,900 or above.

Changes have been introduced to provide greater clarity and consistency as to which types of allowance will be considered against the salary requirements. Also, the closure of the Short Term Staff subcategory means that accommodation allowances can form a maximum of 30% (rather than 40%) of the total salary package for all intra-company transferees (except Graduate Trainees).

  • Sponsors of creative workers in the Creative and Sporting subcategory must comply with a recruitment code of practice or otherwise take into account the needs of the resident labor market. A change is being made to waive this requirement for creative sector jobs that appear on the Shortage Occupation List.
  • A further change is being made to the codes of practice for creative workers so that sponsors do not need to carry out a recruitment search where a performer is required for continuity or is engaged by a unit company in relation to productions outside the UK, rather than outside the European Economic Area (EEA), as at present. This ensures that non-EEA nationals who have performed in productions elsewhere in the EEA are not disadvantaged.
  • The requirement for points-based system dependents to meet the 180-days-per-annum residency requirement in the UK to qualify for indefinite leave to remain has been removed.
  • The period of overstaying that is permitted before a re-entry ban is imposed on individuals who have remained in the UK after their leave to enter or remain has expired will be reduced from 90 days to 30 days where the overstaying began on or after April 6, 2017. Unless specific exceptions apply, anyone who overstays for more than 30 days will be subject to a 12-month re-entry ban.
  • To qualify for indefinite leave to remain (ILR) on or after April 6, 2022, an individual must be earning at least £37,900.
  • A clarification has been made confirming that individuals may apply for a visitor visa in any country offering a visa service regardless of whether they are resident in that country.

Immigration Skills Charge

The UK government has just announced that subject to parliamentary approval, the immigration skills charge is due to be introduced on April 6, 2017.

The skills charge will apply to a sponsor of a Tier 2 worker assigned a certificate of sponsorship in the General or Intra-Company Transfer route and who will be applying from:

  • Outside the UK for a visa
  • Inside the UK to switch to this visa from another
  • Inside the UK to extend their existing visa

There is a transitional provision whereby the skills charge does not apply if an employer is sponsoring an individual who was sponsored in Tier 2 before April 6, 2017, and is applying from inside the UK to extend his or her Tier 2 stay with either the same sponsor or a different sponsor.

This is an important exemption for Sponsors. It means that the skills charge will not apply to extension applications of an employer’s existing Tier 2 workforce, provided the employer extend the workers’ stay on an in-country basis. Furthermore, if an employer wishes to hire an individual already working in the UK on a Tier 2 visa granted before April 6, 2017, the employer will not need to pay the skills charge when applying for a new visa for the worker on an in-country basis.

Timings of extension applications will therefore be important to ensure applications are made timely from within the UK before the Tier 2 migrant’s leave expires. This is important because if your Tier 2 employee is outside the UK when his or her visa expires, he or she will not only be subject to the cooling-off period for 12 months (unless within the high earner category) but will also be subject to the skills charge.

Other Exemptions

  • A Tier 2 (Intra-company Transfer) Graduate Trainee
  • A worker to do a specified PhD level occupation
  • A Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
  • The employer does not have to pay the skills charge for the worker’s family members (dependents).

Cost of the Skills Charge

The skills charge will be £1000 per year for medium or large sponsors and £364 per year for small or charitable sponsors (including universities). It will be payable upfront and for the total period of time covered by the certificate of sponsorship.

An employer will usually be considered to be a small business if:

  • Its annual turnover is £10.2 million or less; and
  • It has 50 employees or fewer.

Sponsors will need to pay the skills charge at the same time as they pay to assign a certificate of sponsorship (CoS) to sponsor someone to do a skilled job in the UK. The money collected by the Home Office will be used by the Department for Education to address skills gaps in the UK workforce.

Steps an Employer Should Take Immediately

An employer that knows it will need to bring Tier 2 migrants to the UK this year should consider bringing forward recruitment plans so that it is in a position to apply for the Tier 2 entry clearance before April 6, 2017. The critical date will be the date of filing of the online application. Therefore, provided the entry clearance application is submitted online before April 6, the employer can avoid the skills charge. The employer will need to be mindful of the start date of employment in the UK, as new guidance on start dates has also been issued.

CoS Start Date

The UK government has also issued new guidance on the CoS start date, which will need to be taken into account when considering the start date for employment in the UK for Tier 2 employees. The start date given on the CoS must be the date on which the migrant employee will start working for the employer. The employee will be granted entry clearance no more than 14 days before the start date given on the CoS. Once the entry clearance has been granted, it is possible to delay this start date, but in the case of a Tier 2 (General) migrant, any revised start date cannot be put back by more than four weeks from the original start date on the CoS. However, under the Tier 2 (Intra-Company Transfer) route, it is possible for the start date to exceed the four weeks, provided the employee continues to be paid by the sending overseas entity.

How Will Triggering Article 50 Affect Employers of EU Nationals?

The House of Commons has voted to reject the House of Lords amendment that sought to guarantee the rights of EU nationals resident in the UK before Brexit negotiations begin. This paves the way for Article 50 of the Lisbon treaty to be triggered shortly, when the two-year negotiation process will begin for the UK to leave the European Union. Although this two-year period can be extended with the agreement of all 27 members, it is unlikely in reality that this will be achievable. While the government has stated that negotiations regarding the rights of EU citizens will be a priority once Article 50 is triggered, until this issue is decided many EU nationals will remain in limbo in the UK with ongoing uncertainties regarding whether they can continue to reside in the UK.

This will come as a blow to many employers of EU migrants who now continue to face uncertainty about whether their EU workforce will continue to have residency rights in the UK.

There are strong indications that the government will grant permanent residence to those who have resided in the UK for at least five years as qualified persons; i.e., those who were workers, self-employed, self-sufficient, students, or job seekers prior to a not-yet-determined cut-off date. This could happen when the UK eventually leaves the EU, but there is a strong possibility it could be as soon as the date of triggering Article 50. It has been widely reported in the press that the cut-off date will be when the government triggers Article 50, and indeed this date has been recommended in a report by British Future published in December 2016.

To ease employees’ concerns, employers may wish to conduct an audit of their EU employees and family members of EU nationals to ascertain whether they can meet the five-year residency requirement.

As part of this process, employees should be encouraged to collect documents evidencing their status as employed, self-employed, a student, or self-sufficient. It is important to note that the five-year qualifying period can consist of periods of stay consecutively in any of these categories. For any period when the employee was a student or self-sufficient, he or she will need evidence of comprehensive sickness insurance. Employees will also need to show that they have not spent more than six months outside the UK in any 12-month period over the five years. On this point, where an employee has resided in the UK in excess of five years, he or she can use a five-year period where the qualifying conditions are easily met with supporting documentation and where he or she can show no absence from the UK for more than two years after the five-year qualifying period chosen.

Alternatively, employers could await the outcome of the negotiations to be conducted by the government and in the meantime their EU employees’ rights to live and work in the UK will continue until Britain leaves the EU and during any agreed-upon transitional period.

Individuals can apply to the Home Office for a registration certificate or, if they have already been in the UK for five years, a document certifying permanent residence. These documents do not in themselves confer any rights but are evidence that the government has acknowledged the individual is exercising his or her right of residence or has acquired permanent residence.

If an individual has been living in the UK for at least six years, he or she could consider applying to the Home Office for naturalization as a British citizen. This can only be done after obtaining a document certifying permanent residence. Before applying, individuals will need to check whether their country of origin permits dual nationality and whether it will affect their tax position. If they have any non-EU family members—for example, spouses or dependent relatives—becoming British could affect their ability to rely on the individual’s EU rights and advice should be sought on this.

Individuals could also consider applying for a British passport for any child born in the UK. A child born in the UK on or after April 30, 2006, to an EU citizen who acquired permanent residence before the child’s birth is automatically a British citizen, even if the EU citizen parent has never held a document certifying permanent residence. Different rules apply for children born before this date but they could be eligible to be registered as British.

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April 2017 Immigration Update

Headlines:

  1. USCIS To Accept FY 2018 H-1B Petitions Starting April 3 – USCIS will begin accepting H-1B petitions subject to the fiscal year 2018 cap on April 3, 2017.
  2. State Dept. Cable Calls for U.S. Embassies To Increase Scrutiny of Certain Visa Applicants – The cable orders U.S. embassies to identify “applicant populations warranting increased scrutiny” and toughen their screening. The cable also orders a “mandatory social media review” for applicants who have ever been present in Islamic State-controlled territory.
  3. Judge Extends Second Travel Ban Block, Trump Administration Appeals – On March 29, 2017, the U.S. District Court for the District of Hawaii ordered that the temporary restraining order against several sections of President Trump’s second executive order issuing a travel ban be converted to a preliminary injunction. The Trump administration filed an appeal the next day.
  4. USCIS Reaches H-2B Cap for FY 2017 – USCIS has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year 2017.
  5. State Dept. Reminds About Expiration of Two Employment Visa Categories – The Department of State’s Visa Bulletin for the month of April 2017 includes reminders about the possible expiration in late April of two employment-based immigrant visa categories, and an update on Special Immigrant Visa availability.
  6. USCIS Will Accept CW-1 Petitions Beginning April 3 – On April 3, 2017, USCIS will begin accepting CW-1 petitions subject to the FY 2018 cap. Employers in the Northern Mariana Islands use the CW-1 program to employ foreign workers who are otherwise ineligible to work under other nonimmigrant worker categories. The cap for CW-1 visas for FY 2018 has not been set, but it must be less than the FY 2017 cap, which is currently set at 12,998.
  7. BIL Global: Netherlands – This article offers comments from a Dutch perspective on the new European Union Directive on intracorporate transferees.
  8. Firm In The News…

Details:

  1. USCIS To Accept FY 2018 H-1B Petitions Starting April 3

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year 2018 cap on April 3, 2017. All cap-subject H-1B petitions received before April 3, 2017, for the FY 2018 cap will be rejected.

Congress set a cap of 65,000 H-1B visas per fiscal year. An advanced-degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher. The agency said it will monitor the number of petitions received and notify the public when the H-1B cap has been met.

USCIS also recently announced a temporary suspension of premium processing for all H-1B petitions starting April 3 for up to six months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker that requests the H-1B nonimmigrant classification. While premium processing is suspended, any I-907 filed with an H-1B petition will be rejected, USCIS said. If the petitioner submits one combined check for both the I-907 and I-129 H-1B fees, both forms will be rejected.

USCIS reminded H-1B petitioners to follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. The I-129 filing fee has increased to $460, and petitioners no longer have 14 days to correct a dishonored payment. If any fee payments are not honored by the bank or financial institution, USCIS will reject the entire H-1B petition without the option for the petitioner to correct it.

The USCIS announcement about the April 3 start date for FY 2018 H-1B petitions is at https://www.uscis.gov/news/news-releases/uscis-will-accept-h-1b-petitions-fiscal-year-2018-beginning-april-3. The announcement about the suspension of premium processing for H-1B petitions is at https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions. Detailed information on how to complete and submit an FY 2018 H-1B petition is at https://www.uscis.gov/sites/default/files/files/form/m-735.pdf. For more information on the H-1B nonimmigrant visa program and current I-129 processing times, see https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season.

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  1. State Dept. Cable Calls for U.S. Embassies To Increase Scrutiny of Certain Visa Applicants

Reuters recently published a March 17, 2017, cable marked “sensitive” from Secretary of State Rex Tillerson on screening and vetting of visa applicants. The cable orders U.S. embassies to identify “applicant populations warranting increased scrutiny” and toughen their screening. The cable also orders a “mandatory social media review” for applicants who have ever been present in Islamic State-controlled territory. Also, notwithstanding the fact that Iraqis are exempt from the travel ban order (which is temporarily suspended by court order), the cable states that President Donald Trump “contemplate[s] additional screening for Iraqi nationals in addition to the robust vetting already in place.” According to Reuters, two former U.S. officials said the effort would constitute a broad, labor-intensive expansion of screening procedures.

Among other things, the cable states that “all visa decisions are national security decisions,” and notes that the measures being taken now are “preliminary” and that “[a]dditional screening measures will be introduced.”

The text of the cable is at http://live.reuters.com/Event/Live_US_Politics/791255396. The Reuters article is at http://www.reuters.com/article/us-usa-immigration-visas-exclusive-idUSKBN16U12X?wpisrc=nl_daily202&wpmm=1.

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  1. Judge Extends Second Travel Ban Block, Trump Administration Appeals

On March 29, 2017, Judge Derrick K. Watson, of the U.S. District Court for the District of Hawaii, ordered that the temporary restraining order against sections 2 and 6 of President Trump’s second executive order issuing a travel ban, “Protecting the Nation from Foreign Terrorist Entry into the United States,” be converted to a preliminary injunction. The Trump administration filed an appeal the next day, to be decided by the U.S. Court of Appeals for the 9th Circuit.

Among other things, the Hawaii court noted that the Trump Administration urged the court not to look beyond the four corners of the Executive Order and to defer to the President in the national security context. The court noted that where the historical context and sequence of events leading up to the adoption of the challenged executive order are “as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context.” The court declined to do so, stating, “The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has. The Supreme Court and this Circuit both dictate otherwise, and that is the law this Court is bound to follow.” The court said the requested nationwide relief from the executive order was appropriate in light of the likelihood of success of the plaintiffs’ Establishment Clause claim, since “the entirety of the Executive Order runs afoul of the Establishment Clause” where the available information supports “a commonsense conclusion that a religious objective permeated” the order.

Following the court’s ruling, Douglas Chin, Hawaii’s Attorney General, said, “This is an important affirmation of the values of religious freedom enshrined in our Constitution’s First Amendment. With a preliminary injunction in place, people in Hawaii with family in the six affected Muslimmajority countries—as well as Hawaii students, travelers, and refugees across the world—face less uncertainty. While we understand that the President may appeal, we believe the court’s well-reasoned decision will be affirmed.”

Sean Spicer, Press Secretary for the Trump administration, said after the ruling that the Department of Justice is reviewing the ruling and “is considering the best way to defend the President’s lawful and necessary order. This ruling is just the latest step that will allow the administration to appeal. Just a week ago, the U.S. District Court in the Eastern District of Virginia upheld the President’s order on the merits. The White House firmly believes that this order is lawful and necessary, and will ultimately be allowed to move forward.”

Mr. Chin’s statement, to which is appended the entire court order, is at https://ag.hawaii.gov/wp-content/uploads/2017/01/News-Release-2017-34.pdf. The second executive order that was the subject of the court action is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.

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  1. USCIS Reaches H-2B Cap for FY 2017

U.S. Citizenship and Immigration Services (USCIS) announced on March 16, 2017, that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year 2017. March 13, 2017, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2017. The H-2B visa category is for temporary non-agricultural workers.

Except as noted below, USCIS said it will reject new H-2B petitions received after March 13 that request an employment start date before October 1, 2017. USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

  • Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands and/or Guam.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-fiscal-year-2017.

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  1. State Dept. Reminds About Expiration of Two Employment Visa Categories

The Department of State’s Visa Bulletin for the month of April 2017 included the following reminders about the possible expiration in late April of two employment-based immigrant visa categories, and an update on Special Immigrant Visa (SIV) availability.

Employment Fourth Preference Certain Religious Workers (SR) category. The non-minister special immigrant program expires on April 28, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight April 27, 2017. Visas issued before that date will only be issued with a validity date of April 27, 2017, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight April 27, 2017.

The final action date for this category has been listed as Current for April for all countries except El Salvador, Guatemala, Honduras, and Mexico, which are subject to a July 15, 2015, final action date for April. If there is no legislative action extending this category for FY 2017, the Department said, the final action date would immediately become Unavailable for April for all countries effective April 28, 2017.

Employment Fifth Preference (I5 and R5) categories. This immigrant investor pilot program had been extended by a continuing resolution until April 28, 2017. The I5 and R5 visas for EB-5 immigrant investors may be issued until the “close of business” on April 28, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.

The final action dates for the I5 and R5 categories have been listed as Current for April for all countries except China-mainland born, which is subject to a May 22, 2014, final action date. If there is no legislative action extending them for FY 2017, the final action dates would immediately become “Unavailable” for April for all countries effective April 29, 2017.

SIV availability. The Department expects to exhaust the SIV numbers allocated by Congress under the Afghan Allies Protection Act of 2009, as amended, by June 1, 2017. As a result, the Final Action Date for the SQ category for certain Afghan nationals employed by or on behalf of the U.S. government in Afghanistan will become Unavailable effective June 2017. No further interviews for Afghan principal applicants in the SQ category will be scheduled after March 1, 2017, and further issuances will not be possible after May 30, 2017.

The SQ category for certain Iraqi nationals employed by or on behalf of the U.S. government in Iraq is not affected and remains Current, although the application deadline was September 30, 2014.

The FY 2017 annual limit of 50 SIVs in the SI category was reached in December 2016 and the final action date remains Unavailable. As noted in the January 2017 Visa Bulletin, further issuances in the SI category will not be possible until October 2017, under the FY 2018 annual limit, the Department explained.

The Visa Bulletin for April 2017 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-april-2017.html.

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  1. USCIS Will Accept CW-1 Petitions Beginning April 3

On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting CW-1 petitions subject to the fiscal year 2018 cap. Employers in the Commonwealth of the Northern Mariana Islands (CNMI) use the CW-1 program to employ foreign workers who are otherwise ineligible to work under other nonimmigrant worker categories. The cap for CW-1 visas for FY 2018 has not been set, but it must be less than the FY 2017 cap, which is currently set at 12,998.

For the FY 2018 cap, an extension petition may request a start date of October 1, 2017, even if that worker’s current status will not expire by that date. USCIS said it encourages employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the proposed start date of employment and as early as possible within that time frame. The agency will reject a petition if it is filed more than 6 months in advance.

USCIS reminds employers to submit all required documentation, including evidence that the job vacancy announcement was posted on the Department of Labor website.

USCIS also reminds employers that the new base filing fee for a CW-1 petition is $460. A petitioning CNMI employer must also pay the required education fee ($150 per year) for each requested CW-1 worker. A biometric service fee of $85 per beneficiary is also required if the beneficiary is present in the CNMI when filing for an initial grant of CW-1 status.

Employers must submit the latest version of Form I-129CW, which has an edition date of 12/23/16.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-will-accept-cw-1-petitions-fiscal-year-2018-beginning-april-3-2017. Additional instructions and the form are at https://www.uscis.gov/i-129cw.

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  1. ABIL Global: Netherlands

This article offers comments from a Dutch perspective on the new European Union Directive on intracorporate transferees.

The European Union (EU) has introduced an EU-wide permit scheme for intracompany transfers. Directive 2014/66, in force since November 29, 2016, offers excellent options for mobility of intracorporate transferees throughout EU territory—at least in theory. Another interesting feature: it’s obligatory.

EU Directive 2014/66 of May 15, 2014, on the entry and residence of third-country nationals in the framework of an intra-corporate transfer (ICT Directive) was implemented in the Netherlands on November 29, 2016, the last day of the transition window. The ICT Directive is a landmark regulation in the sense that it introduces—compared to existing EU directives on labor migration—an exceptional level of harmonization across the EU. What does this directive mean, and how does it function?

Main Features of the ICT Directive Scheme

The ICT Directive applies to third-country nationals (i.e., non-EU/EEA nationals) who are temporarily transferred for occupational or training purposes to a Member State and who, at the time of the residence permit application, reside outside the territory of the Member States. It provides for a residence permit valid for a maximum of three years (for managers and technical specialists) or one year (for trainees). The main benefit of the permit is that it allows the transferee to travel from the EU Member State that has granted the permit to an establishment of the same group of undertakings in another Member State, without the need for a new test on fulfillment of the conditions. Thus, the ICT permit opens important new mobility options within the EU. Note that the United Kingdom, Ireland, and Denmark have opted out of the ICT Directive.

ICT Mobility

The ICT permit allows the transferee to move to other Member States for periods of time not exceeding 90 days (short-term mobility) and for periods longer than that (long-term mobility). For short-term mobility, the Member States have two options: they may simply allow the transferee to move and work in their territory on the basis of the valid ICT permit issued in the first Member State, or they might opt for a (rather complex) notification procedure. For long-term mobility, the Member States have three options. They may: (1) allow such longer stays on the basis of the ICT permit issued in the first Member State; (2) provide for a notification system; or (3) opt for an extra application procedure. Much will depend on which of these options the Member States will choose when implementing the Directive. Many still have not done so yet. In theory, the EU could effectively become a single area in which intracorporate transferees can move and work as if there were no Member States. The Netherlands has taken a conservative approach and chosen a notification system for short-term mobility and a permit system for long-term mobility. However, the applicant can work from the moment of application and with fewer conditions than for a first-entry application.

Concerns Raised by Corporations

As is often the case, the new rules were met with enthusiasm but also raised some concerns. Indeed, the residence permit obtained on the basis of the ICT Directive has certain limitations vis-à-vis existing permit schemes, both national schemes and EU schemes (such as the EU Blue Card scheme), or, at any rate, from a Dutch perspective. For example, the Dutch knowledge migrant permit (kennismigrantenvergunning, KMR) is granted for up to five years (depending on the employment contract) and can be renewed without limitation. The ICT residence permit can be granted for a maximum of three years (for managers and technical specialists) or one year (for trainees), as noted above, but cannot be renewed. It is true that a new ICT permit might be obtained subsequent to the first one. However, depending on the Member State’s implementation, the transferee first must leave EU territory for a period ranging from one day to six months. The latter is the case in the Netherlands, so an ICT residence permit based on the Directive effectively cannot be renewed, and a new posting for the same employee in the Netherlands is possible only after an interruption of at least six months.

This would not be problematic, of course, if the application of the Directive were not obligatory. It should be noted that the Dutch KMR scheme can be used for local hires, as well as for intra-corporate transferees who remain on a foreign contract and payroll. The KMR scheme is generally preferred to other schemes, not only for the length of the permit but also for its procedural swiftness (two weeks’ processing time) and the rights associated with it (e.g., full spousal labor market access).

But the ICT Directive has now changed all of this, as it does not leave the Member States an option. If a transferee falls within the scope of the Directive (mainly foreign contracts and payroll), national permit schemes may not be applied and the Member State must apply the ICT Directive scheme.

In addition to the ICT permit being limited in duration and renewability, the entry conditions are in some cases more onerous than those of national schemes, so that where the national permit might successfully be applied for, the ICT permit application must be refused. For example, the ICT Directive requires that the transferee have three months’ prior employment in the group of undertakings (the Directive leaves Member States the option to choose for prior employment of up to six months), whereas the KMR scheme allowed for hiring and immediate transfer to the Netherlands. Thus a newly hired employee will now, as a result of the Directive, effectively have to wait three months before being able to move to the Netherlands. Another potential obstacle is the qualification requirement (a bachelor’s degree or higher, whereas the Dutch KMR scheme requires no formal education level).

When corporate employers began to realize these aspects of the ICT Directive, a certain anxiety started to build. It didn’t help that the immigration authority in the Netherlands (IND) did not take a sufficiently clear position on the issues of non-renewability of the ICT permit and its obligatory character. The lack of clarity revolved around the definition of the scope of the ICT Directive—when is an applicant within the scope of the ICT Directive so that national schemes fall away?

Scope and Definitions of the ICT Directive

Article 2 of the ICT Directive limits its scope to third-country nationals who reside outside the territory of the EU Member States at the time of application, or who are residing in a Member State under the ICT Directive already. This means that for every person who does not meet one of those two criteria, the ICT Directive does not apply. For these employees, the regular KMR scheme can still be used.

The scope is further limited (via article 2 and 3 of the ICT Directive) by the fact that it must concern intra-company transfers. If it is not “intra-company,” the ICT Directive does not apply. Also, if it is not a transfer because the employee gets a contract and payroll in the Netherlands (local hire), the ICT Directive does not apply.

Permit Requirements

If the ICT Directive applies, the employee must meet the requirements of article 5 of the ICT Directive to obtain the permit. As mentioned, it is important to distinguish between the scope of the ICT Directive and the requirements for a permit. The first step is the scope: Does the ICT Directive apply to this employee? If not, then other schemes like the KMR scheme might be used. If yes, then step two is to check whether the transferee meets the requirements for the ICT permit. If not, then no permit can be issued. To solve the issue, the person must be brought outside of the scope of the ICT Directive so the KMR scheme can be used (e.g., by moving the contract and payroll to the Netherlands).

Frequently Asked Questions

While initially the IND did not take a sufficiently clear position, most issues have now been clarified. The outcome is that the ICT permit can be transferred into a national permit, even if the employee remains on a foreign contract and payroll. The process that led to this conclusion is interesting.

Since November 2016, the IND has published two new documents: the ICT Directive Frequently Asked Questions (FAQs) in Dutch dated December 8, 2016, and a translation of these FAQs into English. Although these texts have no formal legal status, it seems that the IND has chosen the form of FAQs to communicate its guidelines for the implementation of the ICT Directive scheme. The IND has never used this method before.

When the English version of the FAQs was published on February 16, 2017, the IND gave no indication that it was anything other than a literal translation. Surprisingly, however, this version differed significantly from the Dutch version of December 2016, namely on the most contested point: the renewability of the ICT permit. The Dutch version suggested that after the maximum duration of an ICT permit, the permit holder must return to his or her foreign employer: “The idea behind the ICT Directive is that after the stay in the Netherlands the employee returns to the foreign employer or goes to another EU-based undertaking of the organisation.” In the English version, however, the following sentence was added to this paragraph: “However, the employee can apply for a national residence permit after the maximum period of residence.”

As if to leave no room for interpretation, a whole new question-and-answer was inserted that explained that after three (or one) year(s), a transferee falls out of scope of the Directive and is therefore entitled to apply and obtain a KMR permit, even if he keeps his labor contract and payroll with the employer outside the EU.

This argument might certainly be refuted, as article 2 of the Directive reads: “This Directive shall apply to third-country nationals who reside outside the territory of the Member States at the time of application and apply to be admitted or who have been admitted to the territory of a Member State under the terms of this Directive.”

The question is whether the European Commission is likely to take any action on this, as their main priority is currently to chase those Member States that have not transposed the Directive at all, which is a much bigger threat to the well-functioning of this new EU-wide permit scheme.

Conclusion

The ICT Directive is a very interesting new permit scheme that applies throughout (most of) the EU. Multinational corporations will certainly benefit from its mobility options, although it will still take time before the practices in all Member States will be sufficiently clear and interchangeable for the EU to “feel” as one area. In terms of a new permit scheme that reinforces the options of an intracompany transfer to the EU, the Directive must be compared to local permit schemes—a test that in the Netherlands turns out negatively. The Dutch government has found a way around the obligatory character, but the solution does not seem compliant with the wording of the ICT Directive. The future will show whether such national disobedience eventually jeopardizes the success of the ICT scheme and, if so, how the European Commission will get the Member States back on the same page.

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  1. Firm In the News

Cyrus Mehta was a Moderator of a program entitled What is the Current Status of Immigration Post Election? which was organized by Office of the Chief Attorney to the Attorney Grievance Committee, First Judicial Department, New York, NY, on March 23, 2017.

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Mid-March 2017 Immigration Update

 Headlines

  1. President Trump Signs Revised ‘Travel Ban’ Executive Order; Federal District Court Blocks Ban Temporarily – President Donald Trump signed a revised “travel ban” executive order on March 6.
  2. USCIS To Suspend Premium Processing for H-1B Petitions Starting April 3 – The suspension may last up to 6 months.
  3. Have You Been Using E-Verify for More Than 10 Years? If So, Download Your Older Reports Now – USCIS must dispose of transaction records that are more than 10 years old in April 2017. Employers that have been using E-Verify for more than 10 years can download, through March 31, 2017, their Historic Records Reports. A Historic Records Report contains transaction records dated on or before December 31, 2006.
  4. USCIS Updates Report of Medical Exam and Vaccination Record – Beginning April 28, 2017, civil surgeons must use the 02/07/17 edition of Form I-693 (which shows an expiration date of 02/28/2019
  5. Firm In The News…..

Details:

  1. President Trump Signs Revised ‘Travel Ban’ Executive Order; Federal District Court Blocks Ban Temporarily

President Donald Trump signed a new “travel ban” executive order on March 6, 2017, effective March 16. The new order, which has been temporarily blocked, revokes a previous executive order signed on January 27, 2017, and reduces to six, from the previous seven, countries whose nationals are suspended from entry under a “temporary pause.” The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances. The new order includes explanations of President Trump’s rationale for the order’s provisions.

In late-breaking news, on March 15, a federal district court in Hawaii blocked the new executive order, granting a motion for a temporary restraining order. The court’s injunction applies nationwide. The government is expected to appeal, but in the meantime the executive order cannot take effect as planned. The federal court held that the plaintiffs had a strong case that the President’s March 6 executive order, like his earlier order, violated the Constitution’s First Amendment freedom of religion clause by disfavoring Muslims. In reaching that conclusion, the court looked beyond the text of the executive order to statements made by President Trump and his advisors in favor of a Muslim immigration ban.

Several other states also filed or joined legal challenges against the new travel ban order, including Washington, Wisconsin, Virginia, California, New York, Oregon, and Massachusetts. Also, several refugee rights groups along with the American Civil Liberties Union and the National Immigration Law Center filed challenges in Maryland. Decisions on those filings were pending as of press time.

The states challenging the ban did so for a variety of reasons. Bob Ferguson, attorney general for the state of Washington, said, “We’re asserting that the president cannot unilaterally declare himself free of the court’s restraining order and injunction.” He noted, “After spending more than a month to fix a broken order that he rushed out the door, the President’s new order reinstates several of the same provisions [as the earlier order issued in late January] and has the same illegal motivations as the original. Consequently, we are asking [U.S. District Court] Judge [James] Robart to confirm that the injunction he issued remains in full force and effect as to the reinstated provisions.” Washington’s ongoing lawsuit asserts that President Trump’s travel ban unconstitutionally violates the First Amendment’s Establishment Clause and the Equal Protection Clause, by disfavoring Islam. Mr. Ferguson noted that “Washington need not demonstrate that the ban impacts all Muslims, that it covers only Muslims or that it was motivated solely by anti-Islam animus. Rather, the state must establish that such animus was one motivating factor behind the Executive Order.” Washington’s lawsuit also argues that the President’s actions violate the Immigration and Nationality Act and the Administrative Procedures Act.

The new list of countries on a “temporary pause” for entry of their nationals to the United States under the executive order included Iran, Libya, Somalia, Sudan, Syria, and Yemen, but did not include Iraq, which the new order says “presents a special case.” The order noted that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” The new list of countries is “subject to categorical exceptions and case-by-case waivers,” the order stated. The new order made an exception for nationals of the countries on the banned list who had a valid visa at certain specified times and dates; are permanent residents; have other valid travel documents; are dual nationals who are traveling on a passport issued by a non-designated country; are traveling on a diplomatic visa; have been granted asylum; are in refugee status and have already been admitted to the United States; or have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The order also listed examples of possible discretionary waiver cases, such as returning students in an ongoing program of study, and called for a review of all nonimmigrant visa reciprocity agreements and arrangements, among other things.

President Trump’s previous “travel ban” executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” was signed on January 27, 2017. Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on February 9, 2017, issued a temporary restraining order against key provisions of the travel ban. Among other things, the panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable.

The new order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. The Hawaii decision is at https://docs.justia.com/cases/federal/district-courts/hawaii/hidce/1:2017cv00050/132721/219. A statement from Washington state’s attorney general’s office is at http://www.atg.wa.gov/news/news-releases/ag-ferguson-revised-trump-travel-ban-still-subject-injunction.

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  1. USCIS To Suspend Premium Processing for H-1B Petitions Starting April 3

U.S. Citizenship and Immigration Services (USCIS) announced that starting April 3, 2017, the agency will temporarily suspend premium processing for all H-1B petitions. The suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file a Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker that requests H-1B nonimmigrant classification. If the petitioner submits one combined check for both the I-907 and I-129 H-1B fees, USCIS said it will reject both forms.

USCIS said the temporary suspension will help the agency to reduce overall H-1B processing times by allowing it to process long-pending petitions, which the agency has been unable to process due to a high volume of incoming petitions and a significant surge in premium processing requests over the past few years, and by allowing it to prioritize adjudication of H-1B extension-of-status cases that are nearing the 240-day mark.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY 2018 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY 2018 H-1B regular cap and master’s advanced-degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

USCIS said it will continue to premium-process I-129 H-1B petitions if the petitioner properly filed an associated I-907 before April 3, 2017. USCIS will refund the premium processing fee if:

  1. The petitioner filed the I-907 for an H-1B petition before April 3, 2017, and
  2. USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on an I-129.

The announcement is at https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions.

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  1. Have You Been Using E-Verify for More Than 10 Years? If So, Download Your Older Reports Now

U.S. Citizenship and Immigration Services (USCIS) recently reminded employers that the agency must dispose of transaction records that are more than 10 years old in April 2017. Employers that have been using E-Verify for more than 10 years can download, through March 31, 2017, their Historic Records Reports. A Historic Records Report contains transaction records dated on or before December 31, 2006.

USCIS suggests that employers record the E-Verify case verification number on the related Form I-9, Employment Eligibility Verification, and retain the Historic Records Report with the I-9.

Instructions on how to download the report are at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Instructions_to_Download_Historic_Reports_in_E-Verify.pdf. A related fact sheet is at https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Fact-Sheet-E-Verify-RecordRetention.pdf.

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  1. USCIS Updates Report of Medical Exam and Vaccination Record

U.S. Citizenship and Immigration Services (USCIS) recently announced that beginning April 28, 2017, civil surgeons must use the 02/07/17 edition of Form I-693 (which shows an expiration date of 02/28/2019 at the top right corner of page 1). USCIS will not accept any previous editions (with an expiration date of 03/31/2017 or earlier) that a civil surgeon signed and dated on or after April 28, 2017.

The updated form and instructions are at https://www.uscis.gov/i-693. A page listing updates to forms chronologically, along with a brief explanation of the update, is at https://www.uscis.gov/forms-updates.

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  1. Firm In The News

Cyrus D. Mehta was the Program Chair of the well-regarded Basic Immigration Law 2017 conference, held under the aegis of the Practising Law Institute in New York City, and which also was simultaneously webcast on March 2, 2017.

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March 2017 Immigration Update

Headlines:

  1. DHS Issues Two New Immigration Enforcement Memos – Two new DHS memoranda call for strict enforcement of immigration laws, stepped-up detentions, and enhancement of expedited removal, among other things.
  2. TSA Notifies Travelers of Upcoming 2018 REAL ID Airport Enforcement – Effective January 22, 2018, TSA will start enforcing REAL ID requirements at airport security checkpoints.
  3. DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to ‘Immigrant and Employee Rights Section’; IER Publishes New Guidance – Revised regulations, effective January 18, 2017, conform DOJ regulations to the text of the INA’s anti-discrimination provision, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination case law, reflect changes in existing practices such as electronic filing of charges, and reflect the office’s name change.
  4. New Immigrants Can Create USCIS Online Account When Paying USCIS Immigrant Fee – The account allows new immigrants to track the status of their green cards, receive electronic notifications and case updates, and change and update their mailing addresses.
  5. Firm In the News… in this issue:

Details

  1. DHS Issues Two New Immigration Enforcement Memos

John Kelly, Secretary of the Department of Homeland Security (DHS), has signed two new memoranda that implement two of President Trump’s recent immigration executive orders. The DHS memos call for strict enforcement of immigration laws, stepped-up detentions, and enhancement of expedited removal, among other things. As part of the new enforcement efforts, U.S. Immigration and Customs Enforcement (ICE) will seek funding to hire 10,000 new officers and agents and the Border Patrol will seek funding to hire 5,000 new agents.

Among other things, the DHS memos clarify that:

  • Anyone who has committed any immigration violation is now at risk of being put into deportation proceedings.
  • Many more people will be detained under the new guidelines.
  • DHS will expand its 287(g) program to allow state and local police to identify and hand over suspected immigration violators.
  • DHS will expand its existing expedited removal program so that many more people will be immediately removed without a hearing unless they are an unaccompanied minor, intend to apply for asylum or have a fear of persecution or torture in their home country, or claim to have lawful immigration status. Previously, expedited removal only applied to people who were caught within 100 miles of the border within 14 days after entering the country. Now expedited removal will apply to people who have been in the United States for less than two years. A Federal Register notice will soon follow to make this change.
  • The executive orders and implementing memos do not affect the Deferred Action for Childhood Arrivals (DACA) program.

Below are details of the two memoranda:

Memo implementing “border security” executive order. A memorandum issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the “Border Security and Enforcement Improvements” executive order signed by President Donald Trump on January 25, 2017. The memo calls for detention of people arriving at the borders pending final removal determinations. The memo also ends “catch-and-release” policies and states that discretionary parole authority may be exercised only on a case-by-case basis and only for urgent humanitarian reasons or significant public benefit. Among other things, the memo calls for a “surge” in deployment of immigration judges and asylum officers to interview recent border entrants and adjudicate their claims, and the establishment of “appropriate processing and detention facilities.”

The memo also orders immigration officers who determine that an arriving person is inadmissible to the United States under INA § 212(a)(6)(C) or (a)(7) to order the person removed from the United States “without further hearing or review” unless the person is an unaccompanied alien child, indicates an intention to apply for asylum or a fear of persecution or torture or a fear of return to his or her country, or claims to have a valid immigration status within the United States or to be a citizen or national of the United States.

The memo states that as DHS works to expand detention capabilities, detention resources should be prioritized based on potential danger and risk of flight. The guidance “does not prohibit the return of an alien who is arriving on land to the foreign territory contiguous to the United States from which the alien is arriving pending a removal proceeding.”

The memo also calls for enlisting state and local law enforcement agencies and personnel to assist in the enforcement of federal immigration law. Among other things, the memo also calls for identification and allocation of funding sources to build a wall along the southern border.

Memo implementing “public safety” executive order. A second memorandum also issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the “Enhancing Public Safety in the Interior of the United States” executive order signed by President Trump on January 25, 2017.

The memo states that with the exception of the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and the November 20, 2014, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,” all existing conflicting directives, memoranda, or field guidance regarding the enforcement of U.S. immigration laws and priorities for removal are immediately rescinded, including the November 20, 2014, memoranda entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” and “Secure Communities.”

The memo states plainly that other than Deferred Action for Childhood Arrivals (DACA) beneficiaries, DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Among other things, the memo states that DHS personnel should prioritize for removal “criminal aliens” and those who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The memo also states that DHS “will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents.”

Meanwhile, in other news, there are rumors that a revised travel ban executive order will be issued shortly. Stay tuned.

Links to the executive orders and related fact sheets, the two DHS memos, press releases, and additional information are at https://www.dhs.gov/executive-orders-protecting-homeland.

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  1. TSA Notifies Travelers of Upcoming 2018 REAL ID Airport Enforcement

The Transportation Security Administration (TSA) is notifying travelers via signs posted at airports that effective January 22, 2018, it will start enforcing REAL ID requirements at airport security checkpoints. The Department of Homeland Security (DHS) said this means that travelers seeking to use their state-issued driver’s licenses or identification cards for boarding commercial aircraft may only use such documents if they are issued by a REAL ID-compliant state or a non-compliant state with an extension.

TSA’s notification follows former Secretary of Homeland Security Jeh Johnson’s announcement in 2016 of the final phase of implementation of the REAL ID Act. DHS noted that as always, travelers may use alternate forms of identification such as a passport, military ID, or permanent resident card.

The REAL ID Act, passed by Congress in 2005, establishes the minimum security standards for state-issued driver’s licenses and identification cards and prohibits federal agencies, like TSA, from accepting licenses and identification cards for certain official purposes, including boarding federally regulated commercial aircraft, from states that do not meet these minimum standards and have not received an extension for compliance from DHS.

DHS said it continues to work with states to encourage compliance and may grant extensions or determine compliance for additional states as warranted. TSA said it will update signage if and when states that are currently listed receive extensions.

The DHS announcement is at https://www.dhs.gov/news/2016/12/12/tsa-notify-travelers-upcoming-2018-real-id-airport-enforcement. Former Secretary Johnson’s announcement is at https://www.dhs.gov/news/2016/01/08/statement-secretary-jeh-c-johnson-final-phase-real-id-act-implementation. A complete list of identification documents accepted at TSA checkpoints is at https://www.tsa.gov/travel/security-screening/identification. An interactive map showing the current REAL ID status of states and territories is at https://www.dhs.gov/real-id-enforcement-brief.

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  1. DOJ Final Rule Changes Office of Special Counsel for Immigration-Related Unfair Employment Practices to ‘Immigrant and Employee Rights Section’; IER Publishes New Guidance

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been renamed the Immigrant and Employee Rights Section (IER). IER enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), which prohibits certain types of employment discrimination based on citizenship, immigration status, and national origin. IER’s mission and functions remain the same as OSC’s. A related final rule also made other clarifications.

The Department of Justice said in a statement announcing a webinar series to educate the public about the recent changes that IER’s revised regulations, effective January 18, 2017, conform the regulations to the text of the INA’s anti-discrimination provision, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination case law, reflect changes in existing practices such as electronic filing of charges, and reflect the office’s name change from OSC to IER.

Some commenters on the rule objected to the proposed revisions for not requiring that an employer act with ill will or animus to violate the statute (8 USC § 1324b). The DOJ said its position remains that ill will or animus is not required to commit discrimination under the statute. The final rule explains the DOJ’s position in more detail “to address any confusion about the meaning of discrimination and to reiterate that discriminatory intent is required in order to violate the statute.” The final rule notes that the statute makes clear that any discrimination must be “because of” a protected characteristic; for example, citizenship status or national origin. However, the final rule states that an employer cannot justify discriminatory conduct “simply by claiming a lack of ill will or animus.” Explicit discrimination is disparate treatment even absent a malevolent motive, the final rule notes; an otherwise discriminatory employment action cannot be rendered lawful because the employer’s motives were benign.

The final rule also notes that a number of the commenters’ examples would not violate the statute as long as the employers were not treating employees differently because of a protected characteristic. In one example, an employer allows an employee’s friend or family member to help translate the Form I-9 for the employee. Such an act would not be considered discrimination, the final rule states, unless the employer allowed only certain employees to have a friend or family member assist in completing the I-9 based on citizenship status or national origin.

The final rule states that many of the examples provided by commenters characterize the act of asking for specific documents from workers during the employment eligibility verification process as “assistance.” The DOJ said it disagrees with this characterization: “Requesting specific employment eligibility verification documents from employees unnecessarily limits their choice of documentation. An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the Lists of Acceptable Documents [from the I-9 form] and explain to them that they may present one List A document or one List B document and one List C document.”

IER also issued guidance for employers on January 18 on avoiding discrimination against citizens of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), and the Republic of Palau. As the guidance discusses, citizens of the FSM, the RMI, and Palau (collectively referred to as the Freely Associated States, or FAS) are eligible under the Compacts of Free Association between the United States and the FAS for admission to the United States as nonimmigrants, and are eligible to live and work indefinitely in the United States. FAS citizens are eligible for a variety of documentation that can satisfy the Form I-9 requirements, IER notes, and employers should allow FAS citizens to choose which documents to present from the I-9 Lists of Acceptable Documents to establish their identity and work authorization.

IER is offering information about its revised regulations in its monthly employer and worker webinars and in stand-alone presentations. Topics include the changes to the regulations, how these changes affect the public, and resources for those who would like more information about IER and its regulations. IER also published “Employment Rights and Resources for Refugees and Asylees” on January 18, which discusses several rights that asylees and refugees have in the workplace and how to contact relevant federal agencies if they believe their rights are being violated.

For more information on the webinars/presentations and to register, see https://www.justice.gov/crt/webinars. Additional information about IER is at https://www.justice.gov/crt/ier-policy-and-outreach-news. The guidance on FAS nondiscrimination is at https://www.justice.gov/crt/page/file/924571/download. A link to “Employment Rights and Resources for Refugees and Asylees” is at https://www.justice.gov/crt/page/file/924681/download. The related final rule in the Federal Register is at https://www.federalregister.gov/documents/2016/12/19/2016-30491/standards-and-procedures-for-the-enforcement-of-the-immigration-and-nationality-act. Additional information for employers about nondiscrimination and the I-9 process is at https://www.justice.gov/crt/employer-information, https://www.uscis.gov/i-9-central, and https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf.

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  1. New Immigrants Can Create USCIS Online Account When Paying USCIS Immigrant Fee

U.S. Citizenship and Immigration Services (USCIS) announced on February 21, 2017, that new immigrants now can create a USCIS online account when they pay the USCIS Immigrant Fee. The account allows new immigrants to track the status of their green cards, receive electronic notifications and case updates, and change and update their mailing addresses.

Although anyone can pay the USCIS Immigrant Fee on behalf of a new immigrant, only the immigrant can create a USCIS online account. To create the account, a user must verify his or her identity by correctly answering questions about personal immigration history. USCIS recommends having documents such as a passport, immigrant visa, and copies of the visa application and immigrant petition available for reference when answering the questions. Those who cannot answer the questions correctly may schedule a free appointment to visit a local USCIS office to have their identity verified in person after they arrive in the United States.

Creating a USCIS online account is voluntary, and those who choose not to create an account can still track the status of their green card and other cases with Case Status Online.

The USCIS announcement is at https://www.uscis.gov/news/alerts/new-immigrants-can-now-create-uscis-online-account-when-paying-uscis-immigrant-fee. Case Status Online is at https://egov.uscis.gov/casestatus/landing.do. A free appointment to verify identity can be scheduled at https://my.uscis.gov/appointment. A change-of-address tool is at https://egov.uscis.gov/coa/displayCOAForm.do.

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  1. Firm In the News

Cyrus Mehta served as a judge on one of the hearings at the National Immigration Law Competition, organized by NYU Law Moot Court Board, New York, NY, February 24, 2017.

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Mid-February 2017 Immigration Update

Headlines

  1. Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration’s Executive Order – This article summarizes the rapidly developing immigration-related actions of the Trump administration, and related counteractions.
  2. USCIS Will Accept Only New Forms After February 21, 2017 – New fees for USCIS forms took effect in December, and updated versions of those forms have been published. These new versions are updated with the new fees and have an edition date of 12/23/16. After February 21, USCIS will no longer accept previous editions of these forms.
  3. ICE Enforcement Actions Reported – According to news reports, ICE is conducting a series of targeted enforcement actions around the United States and has removed hundreds of people.
  4. Sate Dept. Reports on Upcoming Employment-Based Visa Availability – The Department of State’s Visa Bulletin for March 2017 estimates potential monthly movement in several categories in the coming months.
  5. Firm In The News…

Details:

1.      Ninth Circuit Blocks Entry Ban: Recent Developments re Trump Administration’s Executive Order

Below is a summary of the rapidly developing immigration-related actions of the Trump administration, and related counteractions. The situation remained fluid as of press time:

  • President Trump signed an executive order on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among the most controversial aspects of the order were a ban on entry to the United States for a period of 90 days for people from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; suspension of the U.S. Refugee Admissions Program for 120 days (with indefinite suspension for refugees from Syria); and prioritizing refugee claims based on religion.
  • On January 30, the state of Washington filed suit in the U.S. District Court for the Western District of Washington at Seattle, challenging several provisions of the executive order. On the same day, Washington filed an emergency motion for a temporary restraining order. Among other things, Washington alleged that the executive order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the state’s economy and public universities in violation of the First and Fifth Amendments to the U.S. Constitution and several statutes. Washington also alleged that the true intent of the executive order was not to protect against terror attacks but rather to enact a “Muslim ban.” Minnesota joined the motion.
  • Among other things, Washington and Minnesota alleged that the teaching and research missions of their universities were harmed by the executive order’s effect on their faculty and students who are nationals of the seven affected countries. The two states said that as a result of the ban, these students and faculty were prevented from traveling for research, academic collaboration, or personal reasons, and their families abroad could not visit. Some had been stranded outside the country, unable to return to the universities at all, the two states noted. The affected schools also could not consider attractive student candidates and could not hire faculty from the seven affected countries, which they had done in the past.
  • On February 1, Donald F. McGahn II, Counsel to the President, issued guidance exempting lawful permanent residents of the United States from the entry ban.
  • On February 2, U.S. Citizenship and Immigration Services (USCIS) issued a memo to all its employees indicating that the executive order does not apply to USCIS adjudications of any immigrant or nonimmigrant petition, regardless of the nationality of the beneficiary, as USCIS approval notices do not confer travel authorization. USCIS therefore resumed case processing according to existing policies and procedures.
  • On February 3, the U.S. District Court for the Western District of Washington at Seattle issued a temporary restraining order (TRO) temporarily disallowing the provisions of the executive order noted above, along with a reduction of the total number of refugees from 110,000 to 50,000 for fiscal year 2017, on a nationwide basis. The White House immediately appealed the TRO to the U.S. Court of Appeals in the Ninth Circuit.
  • On February 9, a three-judge panel of the Ninth Circuit denied the Trump administration’s request to overturn the TRO and reinstate the executive order. Among other things, the three judges reiterated Washington’s and Minnesota’s claims and held that the states had standing. The panel rejected the government’s argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable even if those actions potentially contravene constitutional rights and protections. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel said. The judges noted that the Supreme Court “has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”
  • President Trump disagreed with the Ninth Circuit’s decision via Twitter and promised to challenge the Ninth Circuit’s order in court. He also reportedly told reporters on Air Force One that he was considering issuing a “brand new” executive order very soon to ban certain people from entering the United States, although details and a timetable were unclear at press time.
  • The Department of Homeland Security (DHS) issued a statement after the Ninth Circuit’s decision that the agency “has suspended any and all actions implementing the affected sections” of the executive order. U.S. Customs and Border Protection immediately communicated to airlines worldwide to resume boarding passengers as normal.
  • The Department of State communicated that it reversed its provisional cancellation of valid visas for nationals from the seven affected countries. Further guidance indicated that individuals who arrived during the ban who had their visas physically cancelled as a result of the executive order do not need to apply for a new visa. These individuals reportedly can receive an I-193 Waiver upon arrival at a U.S. port of entry, provided that U.S. Customs and Border Protection deems them otherwise admissible.

For now, the TRO remains in effect nationwide at least until there can be a preliminary hearing on the matter. Normally, it would take a few weeks to have a preliminary hearing; however, it is not known for certain whether the TRO will hold for any specified period.

In other worrisome developments, immigration attorneys are receiving anecdotal reports that the Transportation Security Administration is asking clients traveling on domestic flights with foreign passports for copies of green cards or other documentation to prove valid immigration status. One of the reported incidents was in Hawaii where travelers were flying from one island to another.

For advice on specific situations, contact your local member of the Alliance of Business Immigration Lawyers (ABIL). If you have a foreign accent, and you are traveling within 100 miles of any U.S. border (including the oceans), ABIL strongly recommends that you carry your U.S. passport, passport card, or a photocopy of your naturalization certificate. Because of the unpredictability of the current situation, ABIL recommends keeping a photocopy of these documents in a safe place, such as at your home, so that if necessary, someone will have access to it.

The executive order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states. The memo from Mr. McGahn is at http://www.politico.com/f/?id=00000159-fb28-da98-a77d-fb7dba170001. A U.S. Citizenship and Immigration Services statement on implementation of the January 27 executive order is at https://www.uscis.gov/news/alerts/uscis-implementation-jan-27-executive-order. A U.S. Customs and Border Protection FAQ issued on February 2 is at https://www.cbp.gov/sites/default/files/assets/documents/2017-Feb/EO-QA-PDF-WEB-02.02.2017.pdf. The Washington state complaint is at https://www.documentcloud.org/documents/3438904-AGOWA-Immigration-Ban-Complaint.html. The Seattle order is at https://www.documentcloud.org/documents/3446398-Robart-TRO.html. The Department of Homeland Security’s statement is at https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order. The Department of State’s initial statement is at https://travel.state.gov/content/visas/en/immigrate/Immigrate-Announcement.html. The Ninth Circuit’s order is at https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf.

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2.     USCIS Will Accept Only New Forms After February 21, 2017

New fees for U.S. Citizenship and Immigration Services (USCIS) forms took effect in December, and updated versions of those forms have been published. These new versions are updated with the new fees and have an edition date of 12/23/16. After February 21, 2017, USCIS will no longer accept previous editions of these forms.

A complete list of the new fees is at uscis.gov/forms/our-fees. USCIS will reject filings that do not include the new fees. The updated forms are at uscis.gov/forms. Paper copies can be requested through the USCIS forms request line (800-870-3676) and forms-by-mail service at https://egov.uscis.gov/formsbymail/.

USCIS also reminded applicants and petitioners to pay the $85 biometric services fee at the time of filing for benefit requests that require biometrics, to avoid rejection of the request.

The reminder is at https://www.uscis.gov/news/alerts/uscis-will-accept-only-new-forms-after-feb-21-2017.

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3.     ICE Enforcement Actions Reported

According to news reports, U.S. Immigration and Customs Enforcement is conducting a series of targeted enforcement actions and has removed hundreds of people. ICE’s focus reportedly includes immigrants with criminal convictions, fugitives, and those who reentered the United States after removal. Others with no criminal histories but who had removal orders were included. ICE said the actions were routine and were planned before an executive order on interior security was issued. President Trump issued that executive order, “Enhancing Public Safety in the Interior of the United States,” on January 25, 2017.

Searches to locate detainees 18 years of age or older who are currently in ICE custody can be conducted at https://locator.ice.gov/odls/homePage.do. Contact information for field offices with jurisdiction over the location of local arrests is at https://www.ice.gov/contact/field-offices. ICE’s detention center locator is at https://www.ice.gov/detention-facilities#wcm-survey-target-id.

The executive order on public safety is at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united.

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4.     State Dept. Reports on Upcoming Employment-Based Visa Availability

The Department of State’s Visa Bulletin for March 2017 estimates potential movement in several categories in the coming months. The Department noted that the final action date projections indicate what is likely to happen “on a monthly basis through May or June based on current applicant demand patterns,” but that these projections are not guaranteed:

Employment First: The category will remain “Current”
China and India: A Final Action Date is likely to be imposed by August

Employment Second:
Worldwide: Current
China: Up to five weeks
India: Up to one month

Employment Third:
Worldwide: Up to three months
China: Up to six months
India: Extremely limited forward movement
Mexico: Will remain at the worldwide date
Philippines: Up to six months

Employment Fourth: Current for most countries.
El Salvador, Guatemala, Honduras, and Mexico:
Some movement may be possible during the summer months

Employment Fifth: The category will remain “Current” for most countries
China-mainland born: Up to two weeks.

The Visa Bulletin for March 2017 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-march-2017.html.

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Firm In The News

Cyrus Mehta was a panelist on 1) Representing Contracting Companies and the Employers Who Use Them and Ethical Issues in Employer Compliance, 2017 AILA Employer Compliance and Worksite Enforcement  Conference, Scottsdale, AZ, February 10, 2017; 2) Know Your Rights Panel Discussion for the NYC Iranian Community, sponsored by Iranian Community of Northeast at Cardozo Law School, New York, NY, February 7, 2017; 3) Boundaries of Opportunity: Borders and Immigration, South Asian Millennials Conference, Yale University, New Haven, CT, February 4, 2017; and 4) Illegal/Unlawful/Violation of Status: Distinction with a Difference and Labor Certification: Sailing Calm Seas, 38th Annual AILA South Florida Immigration Law Update, Miami, FL, February 2, 2017.

Cyrus Mehta was a speaker, Know Your Rights Workshop, Jamaica Muslim Center, Queens, NY, February 15, 2017; and Immigration Executive Orders – What You And Your Client Need To Know, One Hour Briefing, Practising Law Institute, February 15, 2017.

Entry Ban: FAQs – Updated 2/14/2017

These updated FAQs reflect the situation with regard to President Trump’s executive order, “Protecting the Nation From Terrorist Attacks by Foreign Nations,” banning entry to the United States by individuals traveling from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 6 pm Eastern Standard Time (EST) on February 14, 2017. New developments continue to rapidly change implementation of the order.

What are the key points of this Executive Order?

President Trump signed an Executive Order (EO) the afternoon of Friday, January 27, 2017, available at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states, which, according to its introduction, is intended to “protect Americans.” The EO became effective as of the date of signing, though much of it is currently not in effect due to a Temporary Restraining Order (TRO) as discussed further below. Among the EO’s key provisions are:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president has the authority to issue such orders if the administration deems the action to be in the public interest, the EO does not change, replace, or repeal existing statutes (laws) or regulations.

Legal challenges have already been made to provisions of the EO. Many believe that wide sweeping bans such as those on refugee admissions and visa issuance effectively discriminate against individuals on a religious basis, as all the countries are predominantly Muslim.

On Saturday, January 28, 2017, U.S. federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency stay [http://i2.cdn.turner.com/cnn/2017/images/01/28/darweesh.v.trump_decision.and.order.document-3.pdf] that temporarily blocked the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington, in Seattle, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocks the government from enforcing the travel ban at all. Several other federal courts have also issued stays or TROs. In light of the Western District of Washington TRO, which applies nationwide, DHS announced on February 4 that it has “suspended any and all actions implementing the affected sections of the Executive Order” [https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order].

The federal government appealed to the Court of Appeals for the Ninth Circuit and asked the Court of Appeals for an emergency stay of the Western District of Washington TRO, but on February 5, the Court of Appeals denied the request for an immediate administrative stay pending review of the emergency motion for stay [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/05/17-35105.pdf ], and on February 9, the Court of Appeals issued a published Order denying the motion for stay pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ].  For the moment, therefore, the entry ban is not in effect, and travelers from the affected countries are being allowed to enter the United States.  The briefing schedule for the appeal before the Ninth Circuit that was also put out on February 9 [https://cdn.ca9.uscourts.gov/datastore/general/2017/02/09/unpublished_procedural_order.pdf ] has the opening brief due on March 3, 2017, the answering brief due on March 24, and the optional reply brief scheduled for March 29.  In the meantime, the case will also proceed before Judge Robart, as he denied a government request to postpone further proceedings pending action by the Ninth Circuit [http://www.cnn.com/2017/02/13/politics/trump-delay-travel-ban-seattle/].

There have been reports that the Administration is in the process of drafting language for a revised version of the EO which they believe would be more likely to survive judicial review [http://www.nbcnews.com/news/us-news/white-house-rewriting-trump-s-controversial-travel-ban-order-sources-n719356?cid=par-twitter-feed_20170210 ].  It is not yet clear exactly what such a revised EO would say.

There were also reports that the government might also seek an emergency stay from the Supreme Court [http://www.scotusblog.com/2017/02/9th-circuit-keeps-trumps-immigration-order-hold/%20], or from Justice Anthony Kennedy as Circuit Justice for the Ninth Circuit, or seek en banc review at the Ninth Circuit (that is, review by the whole court or a larger 11-judge panel).  None of these things appear to have happened as of 6 pm EST on February 14, although a judge of the Ninth Circuit did call for a vote on rehearing en banc, and so an order of the court’s En Banc Coordinator requested the parties to file briefs regarding their position on such rehearing by February 16 [https://d3bsvxk93brmko.cloudfront.net/datastore/general/2017/02/10/17-35105_Supplemental%20Briefing%20Order.pdf ].   If an emergency stay of the Western District of Washington TRO were ultimately to be granted by Justice Kennedy, by the Supreme Court as a whole, or by the en banc Ninth Circuit, the federal government would presumably resume enforcement of the travel ban immediately, with limited exceptions related to a preliminary injunction recently entered by a different court in Virginia.

On February 13, Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia issued a Memorandum Opinion [http://www.politico.com/f/?id=0000015a-3a0e-d784-a5fb-3ebe82c60000%20] finding that the Commonwealth of Virginia was likely to succeed on its challenge to the merits of the travel ban based on violation of the Establishment Clause of the First Amendment to the U.S. Constitution.  She entered a preliminary injunction [http://wtvr.com/2017/02/13/virginia-court-grants-preliminary-injunction-against-immigration-ban/] forbidding enforcement of the ban against anyone who resides in Virginia, or is a student at or employed by an educational institution administered by Virginia, and who was an LPR or had a valid immigrant visa, work visa, or student visa as of 5 pm Eastern time on January 27.  Even if the TRO from the Western District of Washington were to be stayed, this more limited Virginia preliminary injunction could remain in effect.

The 90-Day Travel Ban

What exactly does the 90-day ban prohibit?

The ban halts visa issuance and entry to the United States for affected individuals.

When the ban is effective, the U.S. Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO—both nonimmigrant (temporary) visas, such as Bs, Fs, and H-1Bs, and immigrant visas for those seeking to become U.S. permanent residents.

DOS had also indicated that all visas already issued to those within the scope of the EO were provisionally revoked. The number of revoked visas is subject to significant uncertainty, although it is clear that it is large: a lawyer for the Department of Justice advised a judge hearing one of the above-referenced cases that more than 100,000 visas had been revoked, but DOS then said the number was fewer than 60,000. [https://www.nytimes.com/2017/02/03/us/visa-ban-legal-challenge.html]. Following the TRO, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again where they had not been physically cancelled.  [https://travel.state.gov/content/travel/en/news/important-announcement.html ].  (In instances where visas were physically cancelled, individuals would require either a new visa, or a waiver from U.S. Customs and Border Protection (CBP) at the port of entry.)

At times when the relevant sections of the EO are not subject to a TRO, stay, or injunction, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports are not permitted to admit individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa.

Who is affected by the 90-day ban?

This ban applies to nationals of the seven (7) designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

What does it mean to be a “national”?

A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.

Does the ban include “dual” nationals? What if the individual was born in one of the seven countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

It is not entirely clear, but the answer seems to be that the ban does not apply to dual nationals, at least in most instances and at least for the time being.

The EO, as written, does appear to include those born in one of the designated countries even if they do not currently hold a passport from that country or no longer consider themselves a citizen of that country. Keep in mind that “country of birth” is listed on permanent resident cards and is usually listed on one’s passport and that CBP and DOS consular officers review these documents.

However, on the afternoon of January 31, 2017, DHS Secretary Kelly held a press conference on the travel ban or, as he described it, a “temporary pause” on visa issuance and admission. On the question of the impact of dual nationality, acting CBP Commissioner Kevin McAleenan indicated that the individual would be evaluated based upon the passport presented and not on his or her “dual national” status. The CBP FAQ regarding the EO [https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states] similarly indicates that “Travelers are being treated according to the travel document that they present.”  The State Department also issued a bulletin at one point indicating that travel by dual nationals with a valid U.S. visa in a passport from an unrestricted country was not restricted, although that bulletin does not appear to be available on their web site at this time because it has been replaced by their announcement of compliance with the TRO.  Based on these announcements, an individual presenting a passport from a non-designated country would not be impacted by the EO’s restrictions, even if he or she also holds nationality in a designated country.

Statements by U.S. embassies (e.g., in London) and the governments of Canada and Australia are consistent with these indications that the restriction does not apply to dual nationals who present a passport from a non-designated country. For example, the U.S. embassy in London has stated on its website that “dual nationals of the United Kingdom and one of [the designated] countries are exempt from the Executive Order when travelling on a valid United Kingdom passport and U.S. visa.” Anecdotal reports from U.S.-Canada land border entry points also show that CBP is not applying the ban to Canadian dual nationals from the designated countries.

In a DOS cable to embassies and consulates worldwide, however, the DOS had initially provided the following guidance on who is considered to be a dual national: those who “possess a current passport from the restricted country, have been denied [Electronic System for Travel Authorization (ESTA)] based on nationality in a designated country (but not on travel to the country without being a national of that country), or who have otherwise identified themselves as nationals of a restricted country including on a previous application or in an interview, including as a dual national.”

Also, when the ban was in effect, some airlines reportedly were not allowing people in these situations to board, and not issuing airline tickets.

Therefore, there may be exceptions to the manner in which dual nationals are treated upon entry to the United States dependent upon a number of circumstances. Until there is clearer amended guidance from the DOS, dual nationals should assume the ban could potentially apply to them under the circumstances noted in the DOS cable discussed above, and should consult an immigration attorney for individual advice before traveling into (or out of) the United States.

Does the ban include permanent residents (“green card” holders)?

The Executive Order as originally written did seem to ban the entry of affected lawful permanent residents (LPRs), and was applied to at least some LPRs in practice. However, an “authoritative guidance” memorandum subsequently issued by Counsel to the President Donald F. McGahn on February 1, 2017, “clarif[ied]” that the EO did not ban entry by LPRs.

The Ninth Circuit in its opinion denying a stay of the TRO pending appeal expressed doubt that Mr. McGahn’s guidance was in fact binding. Based on this guidance, however, and prior to the Ninth Circuit opinion, a federal judge hearing one of the other lawsuits against the ban had entered a permanent injunction against application of the ban to LPRs.  Thus, this injunction may prevent application of the ban to LPRs even if some other executive-branch official declines to follow Mr. McGahn’s guidance.

In addition, as discussed below in the question about “exceptions” to the ban, the EO includes a provision that allows the issuance of “visas or other immigration benefits” to affected individuals on a “case-by-case basis, and when in the national interest.” On Sunday, January 29, 2017, prior to the “authoritative guidance” memo, DHS Secretary John Kelly issued a statement [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states] that attempts to clarify this provision as relates to lawful permanent residents. In this statement, Secretary Kelly notes, “Absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the seven countries. Travel to one of the seven countries, however, may increase the likelihood of being questioned by CBP about the nature of the visit—why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act. Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.

Can an affected individual still board a plane and try to enter upon arrival at a U.S. airport?

There were been reports of airlines refusing to board individuals who appear to be affected by the EO’s ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States during the 90-day period, and if the ban is in effect when they attempt to return, they will most likely not be able to return. The temporary halt in enforcing the ban could end at any time (while it now appears reasonably likely that it will last at least through the March 29 conclusion of briefing on the appeal pending before the Ninth Circuit, this is not certain, since action by the Supreme Court or the Ninth Circuit en banc could come before then).  We caution affected individuals not to rely on the court’s temporary halt when making a decision to travel abroad, at least not without consulting with an immigration attorney beforehand.

What about individuals who are outside the United States and want to return?

While the ban is in effect, airlines may refuse to board anyone who appears to be affected by the ban. Those who are able to board a plane almost certainly will be refused admission (entry) to the United States on arrival at a U.S. airport. Anyone affected by the ban who is outside the United States at a time when the ban is in effect should consult with an immigration attorney before attempting to return in order to understand the current state of affairs and the risks involved, and to develop a strategy based upon his or her individual circumstances.

What will happen to those who are refused entry by CBP?

Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. CBP’s view is that there is no right to an attorney for individuals who arrive at U.S. airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Keep in mind that in the event of the ban coming back into effect, CBP officers will be overwhelmed in dealing with these arrivals and that it may be difficult—even for experienced immigration attorneys—to communicate quickly with CBP. Wherever possible, advance planning will be critical.

Are there any exceptions to the ban?

As of Saturday January 28, 2017, the U.S. District Court for the Eastern District of New York issued an emergency stay of certain provisions of the EO. Several other federal courts have issued similar stays. On Friday, February 3, 2017, the U.S. District Court for the Western District of Washington also issued a temporary restraining order (TRO) against the application of several sections of the EO relating to the travel ban [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdfhttp://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf]. Thus, the U.S. government is currently restrained from applying the travel ban. This TRO applies nationwide. The Western District of Washington TRO allows further travel to the United States while it is in effect.  The preliminary injunction issued by the U.S. District Court for the Eastern District of Virginia would also, independently of the Western District of Washington TRO, allow further travel to the United States by certain covered individuals resident in Virginia or associated with its educational institutions.

The EO as written permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis and when in the “national interest.” It was this authority that DHS has used to allow admission of most LPRs, as discussed above. At this time, it is not clear how such requests will be adjudicated in other contexts or what factors the agencies will consider. Anyone seeking to make such a request during a time when the travel ban is in effect is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.

Can CBP detain individuals?

Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.

At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. There were credible reports that CBP was detaining LPRs notwithstanding the court cases and Secretary Kelly’s statement of January 29, 2017 [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states]. It is also possible that CBP may agree to defer the inspection of such individuals, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.

Any affected individual thinking of traveling to the United States should consult with an immigration attorney about his or her individual circumstances. The EO does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban on visas?

According to credible sources, the DOS had issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. The EO has an exception for nationals of the seven designated countries who are applying for A, G, NATO, C-2, and C-3 visas; presumably affected individuals seeking A, G, NATO, C-2, and C-3 visas may still apply for and expect to receive these visas, if otherwise eligible.

Consulates were advised to stop scheduling and conducting interviews of affected individuals. They also would stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services were instructed to return the unadjudicated applications to the affected individuals. Consular posts posted alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” With regard to immigrant visas for those affected by the ban, the DOS initially indicated that it would cancel currently scheduled interviews and would not schedule immigrant visa interviews for March or April.

While the TRO is in effect, however, visa processing appears to have resumed.  The State Department has announced [https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-from-terrorist-attacks-by-foreign-nationals.html] that “U.S. embassies and consulates will resume scheduling visa appointments” for nationals of the countries that had been affected by the EO.

How will the EO affect applications pending before U.S. Citizenship and Immigration Services (USCIS)?

According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, DHS leadership initially received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. However, on February 2, 2017, Acting USCIS Director Lori Scialabba issued a memorandum indicating that the entry bar would not affect adjudication of benefits for persons in the United States, adjudication of benefits for LPRs, or adjudication of visa petitions for persons outside the United States (since those petitions do not directly confer travel authorization). That is, even if the TRO is stayed or reversed in some way, the entry ban will not affect most applications pending before USCIS, although refugee adjudications will be affected, and adjudication of I-730 refugee/asylee relative petitions for beneficiaries outside the United States will be subject to further guidance.

What does the EO mean for the immigration status of someone who is in the United States?

The EO only directly affects those who are applying for visas (nonimmigrant and immigrant) or seeking entry.  It is theoretically possible that revocation of nonimmigrant visas could lead to holders of those visas who were in the United States being subjected to removal proceedings under section 237(a)(1)(B) of the Immigration and Nationality Act, but this charge of deportability could then be contested in those removal proceedings, as explained in a recent blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html] .  During the period when the EO travel ban was in effect, before the TRO was entered, it does not appear that such removal proceedings were instituted.

Might the ban be longer than 90 days?

The EO states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days (which would be April 27, 2017). Instead, DHS is required to report whether countries have provided information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” If the country does not report or presumably if any such reporting is not found to be adequate, the country then would have 60 days to comply in providing such information or the travel ban would become indefinite.

Will the ban be extended to include other countries?

The EO’s call for a DHS report based, in part, on information provided by other countries that the U.S. government says it needs to properly review and vet individuals appears to allow for DHS to recommend including additional countries in the ban, until they “comply” and provide the U.S. government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the U.S. government.

Suspension of the U.S. Refugee Admissions Program (USRAP)

Who is affected by the suspension of USRAP?

All refugees being processed abroad and seeking admission to the United States would be affected.  However, the suspension of USRAP has been stayed by the TRO.

For most refugees, the suspension would be at least 120 days. For Syrian refugees, the ban on admission would be indeterminate. The EO states that refugee processing and admission of Syrian refugees shall cease until such time as the President has determined that sufficient changes have been made to the program to ensure its alignment with the national interest. There is no further clarification of what may be deemed “sufficient” or “national interest.” This provision effectively eliminates the processing of refugee applications by and admission of Syrian refugees.

How long is the suspension of USRAP?

The USRAP would be suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can resume refugee admissions only for nationals of countries that are found to have sufficient safeguards to ensure the security and welfare of the United States.

Are certain refugees or countries a priority?

The EO states that once the USRAP starts allowing refugees to enter, DOS is to prioritize refugees with religious-based claims, if the refugee’s religion is a minority religion in the individual’s country of nationality. The EO does not address the issue of subsects or minority groups within a country’s predominant religion.

How many refugees will be let into the United States?

The EO states that DOS and DHS may admit 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions. If the suspension continues for more than 120 days, it is questionable whether the United States will admit any refugees during the 2017 fiscal year.

Are there any exceptions to this ban on refugee admissions?

Yes. As mentioned above, as of Friday, February 3, 2017, the U.S. District Court for the Western District of Washington issued a TRO restraining the entry ban sections of the EO. Thus, the U.S. government is restrained from barring the admission of refugees seeking admission as part of the USRAP, holders of valid immigrant and nonimmigrant visas, and other individuals from the seven designated countries. This TRO applies nationwide. Several other federal courts have also issued stays.

The EO as written permits DOS and DHS to admit individuals as refugees on a case-by-case basis when in the national interest.

Even during the 120-day suspension period, the DOS and DHS may continue to process and admit refugees with religious-based claims, if the religion is a minority religion in the country of nationality.

Elimination of Mailed-In Visa Applications or the “Drop-Box” Application

The EO eliminates the ability of some individuals who need visas to apply for their visas at a U.S. consulate without an in-person interview. Previously, some individuals—due to age, or the fact that they were repeat applicants—could mail in their passports to the U.S. consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a U.S. visa will be required to make an appointment at a U.S. consulate and appear in person for the visa interview.

The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. U.S. employers who await the arrival or return of employees may also be negatively affected given these anticipated slowdowns in the process to obtain U.S. visas.

Does the Executive Order change the Visa Waiver Program or ESTA?

No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP), which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore), may still seek admission to the United States on the basis of their passports and an ESTA clearance.

The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation.

February 2017 Global Immigration Update

Feature Article:

ELECTRONIC TRAVELER SYSTEMS: AN OVERVIEW – This article provides an overview of recent developments with respect to electronic traveler systems in several countries.

Country Updates:

BELGIUM – A new Act provides for an increased focus on integration efforts, including mandatory signing of a “newcomers statement” for long-term (greater than three months) residence for some foreigners.

CANADA – This article discusses obtaining permanent residence in Canada through the Express Entry system.

FRANCE – France is implementing a law on the rights of foreigners in France.

INDIA – e-Tourist Visa for travelers.

ITALY – Several developments have been announced.

SPAIN – This article discusses the non-lucrative residence permit, which allows third-country nationals (foreign nationals not covered by the EU legal framework) to live in Spain without performing labor activities.

TURKEY – There has been an important change in citizenship rules.

UNITED KINGDOM – This article briefly notes hot topics for 2017.

Feature Article:

ELECTRONIC TRAVELER SYSTEMS: AN OVERVIEW

This article provides an overview of recent developments with respect to electronic traveler systems in several countries. Many countries do not have electronic traveler systems similar to the Electronic System for Travel Authorization in the United States.

Belgium

Belgium does not have an electronic traveler system similar to the Electronic System for Travel Authorization in the United States. Belgium has implemented European legislation, including EU Directive 2016/681 of April 27, 2016, on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offenses and serious crime. An Act, dated December 25, 2016, was published in the Belgian Official Journal of January 25, 2017 (PNR Act).

The PNR Act provides that passenger carriers of all transport sectors (air and sea, trains, road transport), as well as travel operators/companies, must communicate passenger data to the Passenger Information Unit (PIU). The PIU, which will be part of the federal Ministry of Interior Affairs, will store the data in a passenger database and analyze it for security purposes. The PNR Act provides privacy guarantees, such as rules for the organization of the PIU, and a limited list of purposes for which passenger data can be processed and analyzed.

The PNR Act has not yet taken effect. A Royal Decree will determine the effective date for each transport sector and for travel operators/companies.

Canada

In an effort to enhance border security, in 2011 the Canadian federal government launched the “Canada-United States Perimeter Security and Economic Competitiveness Action Plan,” which mentioned the potential implementation of an electronic screening process for all visa-exempt foreign nationals. Effective November 10, 2016, all visa-exempt foreign nationals wishing to travel to Canada by air must obtain an electronic travel document called an Electronic Travel Authorization (eTA) before boarding their flights to Canada. This new measure is designed to allow Canadian authorities to pre-screen all visa-exempt foreign nationals and identify any cause that would make a foreign national inadmissible to Canada. This important initiative is expected to reduce costs for Canadian authorities and delays for travelers by having inadmissibility assessments conducted before a foreign national’s arrival in Canada rather than at a Canadian port of entry.

This new obligation to obtain an eTA before air travel applies to all foreign nationals who do not require a Temporary Resident Visa/Visitor Visa to enter Canada. Canadian citizens, Canadian Permanent Residents, and U.S. citizens are exempt from this requirement and can continue to enter Canada using their valid Canadian passports, Canadian Permanent Residency cards, or U.S. passports. In addition to this newly introduced travel measure, Canadian dual citizens must be vigilant when traveling to Canada because they now must travel with their Canadian passports and can no longer enter Canada with the passport of their other country of citizenship. An exception is made for dual Canadian/U.S. citizens, who can continue use their U.S. passports to enter Canada.

An eTA can be obtained online and is usually approved within minutes of applying. The eTA is an electronic document and there is no paper evidence of it. Air carriers are given access to the Canadian Border Services Agency’s database to verify whether foreign nationals have obtained the required eTA before boarding their flights to Canada. Foreign nationals should carefully review the accuracy of their information when submitting an application and should be sure to spell their name as it appears on the bottom of the passport (machine-readable portion) rather than using the spelling shown elsewhere on the passport, if the spelling differs.

India

India has launched an e-Tourist Visa (eTV) for travelers whose sole objective of visiting India is recreation, sight seeing, casual visit to meet friends or relatives, short duration medical treatment or a casual business visit.

The eTV is a single entry visa and a visitor can request up to two eTVs per year. The eTV is valid for 30 days from the date of arrival. The holder of the eTV visa may remain in India for a maximum of 30 consecutive days after the initial entry date and it is non –extendable and non-convertible.

Although there is no definition of the term ”casual business”, anecdotal evidence suggests that it could involve short business meetings or attending a conference during the 30-day period.

The e-TV facility is available for nationals of following countries/territories:

Albania, Andorra, Anguilla, Antigua & Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Cambodia, Canada, Cape Verde, Cayman Island, Chile, China, China- SAR Hongkong, China- SAR Macau, Colombia, Comoros, Cook Islands, Costa Rica, Cote d’lvoire, Croatia, Cuba, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, East Timor, Ecuador, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Ireland, Israel, Jamaica, Japan, Jordan, Kenya, Kiribati, Laos, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Mozambique, Myanmar, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niue Island, Norway, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Macedonia, Romania, Russia, Saint Christopher and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Tonga, Trinidad & Tobago, Turks & Caicos Island, Tuvalu, UAE, Ukraine, United Kingdom, Uruguay, USA, Vanuatu, Vatican City-Holy See, Venezuela, Vietnam, Zambia and Zimbabwe.

Travelers to India on eTV should have a return ticket or onward journey ticket with proof of sufficient funds to support themselves during their entire stay in India.

Note that the eTV is not available to international travel document holders or to applicants with a diplomatic passport. International travelers having either a Pakistani passport or are of Pakistani origin would have to apply for a regular visa at an Indian Mission.

For further details please visit https://indianvisaonline.gov.in/visa/tvoa.html.

Italy

Italy does not have an electronic traveler system similar to the Electronic System for Travel Authorization in the United States.

United Kingdom

The United Kingdom does not have an electronic traveler system similar to the Electronic System for Travel Authorization in the United States. Passport holders from Kuwait, Oman, Qatar, and the United Arab Emirates (UAE) are eligible to apply for electronic visa waivers (EVWs) permitting them to visit the UK for up to six months for tourism, business, study, or medical treatment.

EVWs may be used only once, and each person traveling to the UK must obtain his or her own EVW (i.e., each member of a family traveling together must apply for and obtain an EVW).

EVW applications may be made online at https://www.electronic-visa-waiver.service.gov.uk/apply/begin (instructions are provided in both English and Arabic) and must be submitted between 3 months and 48 hours before travel to the UK. Individuals should have the following ready before applying:

  • A current, valid passport;
  • The address in the UK where the applicant will be staying;
  • Travel details (flight number, departure/arrival dates and times); and
  • An uploadable image of the applicant’s passport photo page.

Third parties may apply on behalf of individuals seeking an EVW, but they must also provide their contact details.

Successful applicants will receive an email with a link to download their EVW within 24 hours of submitting the application online. The EVW must be shown before boarding the aircraft, boat, or train, as well as at the UK port-of-entry immigration controls.

If the departure location (airport, port, or train station), or arrival time in the UK (if greater than 8 hours) changes, EVW holders must amend their travel details online. Individuals will need to provide the EVW number and date of birth to make changes.

Country Updates:

BELGIUM

A new Act provides for an increased focus on integration efforts, including mandatory signing of a “newcomers statement” for long-term (greater than three months) residence for some foreigners.

A new Act, which imposes integration efforts on some foreigners who want to reside in Belgium for more than three months, has been published in the Belgian Official Journal of January 16, 2017. There are two aspects under the Act: the signing of a “newcomers statement” at the time of the initial residence application, and a future “audit” of integration efforts:

  • An applicant for long-term (greater than three months) residence must sign a “newcomers statement” in which he or she acknowledges (i) understanding the fundamental values and standards of Belgian society, and (ii) willingness to act in accordance with (French: agir en conformité avec/ Dutch: handelen naar) these values; and
  • The applicant will be informed that he or she must submit proof of his or her integration efforts in the future.

The new rules apply to, for example, third country (non-European Union [EU]/European Economic Area [EEA]) labor migrants, as well as their family members who apply for residence on the basis of family reunification.

Several categories of foreigners are exempt; for example:

  • Recognized refugees or beneficiaries of subsidiary protection and their family members;
  • EU/EEA (EEA includes EU and Iceland, Liechtenstein, and Norway) citizens and their family members;
  • Students;
  • Victims of human trafficking;
  • Long-term residents (Council Directive 2003/109/EC of 25 November 2003);
  • Minors;
  • Foreigners who are seriously ill.

Noncompliance and consequences include:

  • A refusal to sign the “newcomers statement,” which will result in inadmissibility;
  • A foreigner who holds a residence permit for a limited term must prove his or her willingness to integrate. This proof must be submitted within the first limited residence term (e.g., for a labor migrant = duration of work permit + 1 or 3 month(s)); failure could be a ground for refusal to renew the residence permit;
  • The Minister for Asylum and Migration or the Foreigners’ Office (federal department in charge of immigration) can terminate the right to reside if the authorities find that the foreigner has not made a “reasonable effort” to integrate. The authorities can ask the foreigner to submit information or evidence. The right to reside can be terminated during the four years following the end of the first year after issuance of the limited or unlimited authorization to reside, or following the end of the first year after the authorization to reside in Belgium.

The authorities will assess the integration efforts by taking into account the following criteria, listed in the new Act:

  • Attend an integration course, organized by the authority competent for the foreigner’s main residence;
  • Working in Belgium as employee, civil servant, or self-employed;
  • Degree, study certificate or evidence of enrolment in a recognized or subsidized educational establishment;
  • Attend a vocational training, recognized by a competent authority;
  • Knowledge of the official language of the place, where the foreigner is registered;
  • No criminal record;
  • Active participation in community life.

If the authorities consider a decision to terminate the right to reside, they must take into account:

  • The nature and the strength of the family ties of the foreigner;
  • The duration of residence in Belgium;
  • The existence of family ties or cultural/social connections with the country of origin.

The new Act took effect, at least in part, on January 26, 2017.

  • The “newcomers statement” is not yet effective. The text of the statement has not yet been confirmed. The Belgian federal authorities will have to agree on the text with the French, Flemish, and German-speaking communities (communities are regional authorities, competent for integration);
  • The integration obligation will become relevant for all residence applications filed as of January 26, 2017.

With respect to the impact of the new requirements on non-EU/EEA labor migrants and their family members, labor migrants can probably prove integration efforts because of their work in Belgium. Things could be more complicated for their family members, but a decision to terminate residence must take into account the nature and the strength of the family ties of the foreigner, the duration of residence in Belgium, and the existence of family ties or cultural/social connections with the country of origin.

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CANADA

This article discusses obtaining permanent residence in Canada through the Express Entry system.

Introduced on January 1, 2015, Express Entry is an online application system used by Immigration, Refugees and Citizenship Canada (IRCC) to manage, assess, and approve Canadian permanent residence applications under the Federal Skilled Worker program, the Federal Skilled Trades program, and the Canadian Experience Class program. In addition to these economic immigration programs, Express Entry is currently being used by certain Canadian provinces as a gateway to apply for their Provincial Nominee programs. Express Entry applications are intended for foreign nationals wishing to settle in a Canadian province other than Québec (because Québec operates its own distinct permanent immigration program). While the core requirements of each program remain unchanged, Express Entry brings to the Canadian immigration world a new system designed to improve processing times and to give immigration officers the means to select from a large pool of candidates the top applicants for Canadian permanent residence.

The Express Entry system operates under a two-step process. First, a candidate wishing to apply for Canadian permanent residence must submit his or her application “profile” in the Express Entry pool of candidates, where the application is evaluated against other candidates in the pool. The Express Entry system assesses a candidate’s desirability by ranking all applications received according to Comprehensive Ranking System (CRS) points, and provides each candidate with an overall CRS points score. Under the Express Entry system, CRS points are awarded to candidates based on the value of their education, their English and French language skills, their Canadian work experience, and their Canadian offer of employment, if applicable. Moreover, points are given to candidates based on a broader skills transferability category, which awards points based on a combination of English and French language proficiency, education credentials, and Canadian and foreign work experience.

Following the assessment of each candidate’s qualifications in the Express Entry system, candidates with the highest number of CRS points receive an “Invitation to Apply” for Canadian permanent residence. This “Invitation to Apply” is a mandatory step in the process, without which it is impossible to apply for Canadian permanent residence under the economic immigration programs listed above. Once the “Invitation to Apply” is received, a candidate has 90 days to submit a Canadian permanent residence application along with all supporting documents.

Pursuant to the “Ministerial Instructions Amending the Ministerial Instructions Respecting the Express Entry System,” effective November 19, 2016, significant changes were introduced to the way points are awarded in the Express Entry system. Until recently, candidates who held a Labour Market Impact Assessment (LMIA)—a favorable opinion issued by Service Canada confirming a temporary job offer in Canada—were awarded 600 CRS points, virtually guaranteeing an “Invitation to Apply.” With the newly announced changes of November 19, 2016, candidates with a valid LMIA are no longer awarded these 600 CRS points and must now be satisfied with only 50 CRS points. While this is a major disadvantage to candidates who before November 19, 2016, depended on their LMIAs to secure an “Invitation to Apply,” other skilled candidates who hold valid work permits under LMIA-exempt categories (such as Intra-Company Transferees or NAFTA Professionals) will now be awarded 50 CRS points or 200 CRS points, depending on their occupation (200 CRS points are awarded for an offer of employment in an occupation contained in Major Group 00 (senior management occupations) of the National Occupation Classification (NOC)). It is expected that these candidates will become more competitive in the Express Entry pool of candidates and will decrease the overall CRS score a candidate must reach to receive the sought-after “Invitation to Apply.” As an example, with the January 4, 2017 “draw,” the candidate with the lowest score to receive an “Invitation to Apply” had a total of 468 CRS points. The November 2016 changes also provide new points for Canadian study credentials.

Once a candidate receives the “Invitation to Apply” for Canadian permanent residence and submits a complete application to IRCC, he or she may become eligible to file an application for a Bridging Open Work Permit (BOWP). This work permit, valid for 12 months, allows a candidate to renew a current Work Permit (if expiring within 4 months) while the Express Entry Application for permanent residence is being processed.

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FRANCE

France is implementing a law on the rights of foreigners in France.

The Law on the Rights of Foreigners in France of March 7, 2016, and the decrees and orders of October 28, 2016, established the legislative and regulatory framework for new procedures for professional immigration, specifying in particular the new procedures and the lists of documents to be provided. The circulars of November 2, 2016, provide details on the priorities to guide the administration in the application of this law. The following are highlights:

Exemption from work permits for stays of less than or equal to three months for third-country nationals who are engaged in paid employment (Ministry of the Interior Circular of November 2, 2016), Decree No. 2016-1461 of October 28, 2016: https://www.legifrance.gouv.fr/eli/decret/2016/10/28/INTV1609940D/jo

The law of March 7, 2016, provides for the abolition of work permits for foreign employees who come to France to work for three months or less in areas determined by decree. The list of these fields of activities was fixed by decree of October 28, 2016, and codified in article D5221-2-1 of the Labor Code. The circular of November 2, 2016, specifies that the exemption relates only to work authorization, not to any other social or tax obligations. The exemption applies to an alien who is a national of a third country, who is in principle subject to a work permit, and who comes to France to work as an employed person in the categories listed in the decree, for a period that cannot exceed three months .

Scope of exemption. The scope of exemption is specified for each activity; i.e., those that are work permit-exempt. The burden is on the employer to verify whether or not the wage-earning activity to be exercised is exempted from a work permit of less than three months.

If the employer’s field of activity or employment is subject to exemption, the work permit application does not need to be filed with the DIRECCTE (directions régionales des entreprises, de la concurrence, de la consommation, du travail et de l’emploi). Employees who require a Schengen visa must add evidence regarding the work permit exemption to the visa application. In all cases, whether employees are Schengen visa-exempt or not, the employer must provide the employee with the documents justifying the exemption. These documents are listed for each type of activity (e.g., for audit and expertise activities, in particular any document attesting that the activity is an audit and verification assignment, as well as the letter of assignment or the addendum to the employment contract specifying the nature, reason, duration of the assignment, and conditions of employment and remuneration).

Measures for the reception, stay, and work of foreigners for stays of more than 90 days

The new law and its implementing decrees are intended to facilitate the stay of foreigners in France and provide for related administrative procedures, particularly with regard to work in France. This relaxation of procedures is accompanied by new verification procedures, in particular during the period of validity of the multi-annual cards.

New cases of exemption from medical examinations. As of November 1, 2016, foreign nationals in several categories no longer must submit medical certificates issued by L’Office Français de l’Immigration et de l’Intégration (OFII) in support of their applications for a residence permit, including:

  • Applicants for the “Talent Passport” and “Family Passport” passes (“Passport” in this context refers to the new French immigration category and is not a passport in the usual sense of the word)
  • Applicants for the “intra-company transferee (ICT) detached employee” residence permit
  • Applicants for the internship card and trainee ICT
  • Students as of January 1, 2017

Provisional stay permits (autorisation provisoire de séjour, or APS) for the purpose of exercising a first job or pursuing a professional activity. The provisional authorization of stay for foreign students is expanded and relaxed in the following ways:

  • Opening to more degrees: Initially intended for students who have at least a master’s degree, it is now also open to students holding a level I diploma certified by the Conférence des Grandes Écoles or a diploma of professional license.
  • The APS scheme is open to students showing a business start-up project in a field corresponding to their training. At the end of the validity of the APS, the student will be able to obtain a residence card, “entrepreneur/professional liberal,” or “Talent Passport,” labeled “entrepreneur,” if he or she fulfills the conditions of issuance.
  • The student holding an APS can obtain an “employee” or “temporary worker” residence card, but also a “Talent Passport” labeled “skilled employee/innovative company, CBE, researcher or performer.”

The conditions to benefit from non-opposability of employment must be maintained: employment or professional activity in connection with the training taken, with a threshold of remuneration of 1.5 times the guaranteed minimum wage (salaire minimum de croissance, or SMIC) (which can, however, be adjustable depending on the professional field).

Temporary residence permits (CST)

The temporary residence permit (carte de séjour temporaire, or CST) is distinguished from the multi-annual residence permit and the multi-year “Talent Passport” residence permit. CSTs have a maximum validity of one year, except for the “temporary worker” CST when renewed.

ICT trainee, ICT family trainee, ICT mobile trainee, and ICT family mobile trainee (article L313-7-2 of CESEDA)

  • A VLS-TS “ICT trainee” may be granted to an employee who is not a citizen of the European Union (EU), who is undertaking an internship within the framework of an internship agreement. The VLS-TS is issued for a duration corresponding to that of the internship within the limit of one year. The status of “ICT trainee” allows mobility of up to 90 days in another member state of the EU. The “ICT family trainee” residence card is issued to the spouse. This card gives right to the exercise of a professional activity.
  • The “ICT mobile trainee” residence permit is issued to a foreign employee holding an “ICT trainee” card obtained in another EU Member State. It allows mobility of more than 90 days in intra-group context. The spouse of the “ICT mobile trainee” receives a “mobile ICT trainee family” card entitling him or her to the exercise of a professional activity.

Temporary residence permit “employee” and “temporary worker” (article L313-10 CESEDA)

  • The “employee” residence permit may be issued to a foreigner who has a contract of indefinite duration.
  • The “temporary worker” residence permit may be issued to a foreign national who has a fixed-term contract or is subject to the posting under Articles L1262-1 and L1262-2 of the Labor Code (own account, intra-group, in the framework of a service provision or within the framework of the interim).
  • Employees on intra-group mobility who cannot benefit from either a “Talent Passport” or an “ICT detached” residence permit may be issued a “temporary worker” residence permit.
  • The CST cannot be renewed for a period exceeding one year, except for the CST “temporary worker,” which can be renewed for the duration of the fixed-term contract or for the extension of the secondment.
  • Students with a master’s degree, a level I diploma certified by the Conference de grandes écoles or a diploma of professional degree, have access to the CST “temporary worker” or “employee” in the framework of change of status, without being subject to a labor market test, provided the job offered is consistent with the studies followed and the proposed remuneration is at least 1.5 times the SMIC.

Temporary residence permit “entrepreneur/professional” (article L313-10 CESEDA)

This permit merges the previous “merchant” and “professional” titles and may be issued to foreigners who wish to pursue a self-employed, commercial, craft, industrial, or professional activity.

Multi-year residence card (articles L313-17 to L313-24 CESEDA)

The new multi-year residence card system is effective as of November 1, 2016. Distinctions are made between the general multi-year residence permit, the multi-year residence card “Talent Passport” and “Family Passport,” the multi-year residence permit.

Multi-year residence cards can only be issued on first request (new arrivals) upon presentation of a long-stay visa.

General multi-year residence card. The four-year general multi-year residence permit may be issued upon the expiration of an initial residence permit of one year, provided the following conditions are met:

  • Continued compliance with the initial conditions for issuance of the one-year residence permit
  • Attendance of the training prescribed under the Republican Integration Contract (CIR)
  • Absence of rejection of the essential values of the Republic

Holders of a long-stay “Visitor,” “Trainee,” or “Temporary Worker” visa do not have access to the multi-year residence card.

The general multi-annual residence permit has a fixed duration:

  • Four years for holders of “Salaried” CSTs on permanent contracts or holders of “Contractor/Professional” CSTs
  • Two years for holders of residence permits as spouses of French people or parents of French children who have full access to the resident card after three years

The multi-year residence permit issued to foreign students has a duration adapted to the course of study followed. At the end of an initial one-year student residence permit, a multi-year residence permit may be issued, the duration of which would correspond to the length of the course of study followed.

Multi-year residence card Talent Passport (article L313-20 CESEDA)

The multi-year residence card “Talent Passport” brings together under a single residence permit 10 categories of professional activities for which a stay and work in France ought to be facilitated. Its duration is four years, in principle, and it can be issued from the initial admission to stay.

When issued for the exercise of an activity as an employed person, prior authorization to work is not required.

Family members can receive a “Family Passport” residence permit, the duration of which will be equal to that of the principal and with a right to work.

Initial application: If the foreign national resides outside of France, the decision to issue the title is made by the diplomatic and consular authority and the residence permit is issued by the prefect of the residence of the foreign national on presentation of his or her passport bearing a long-stay “Talent Passport” visa. When the envisaged duration of stay is 12 months or less, a joint long-stay visa and permit to stay (VLS-TS) is issued for the duration of the envisaged stay. When the duration of stay exceeds 12 months, a long-stay visa and, upon arrival in France, a residence permit are issued, according to the contract or the nature of the project.

Where the foreign national is already admitted to residence in French territory, the decision to issue the permit is made by the prefect of his or her place of residence.

Renewal: Renewal must be requested within two months of the expiration of the VLS-TS or the residence permit. Renewal is subject to compliance with the initial conditions and certain additional conditions for the specific categories: business creator, innovative economic project holder, or economic investor.

“European Blue Card Passport(article L313-20-2° CESEDA)

This is issued to foreign nationals who are in highly qualified employment for a period of one year or more and who have completed at least three years of higher education or have acquired an equivalent qualification through at least five years of experience.

The wage provided for in the contract must be at least one and a half times the average annual reference wage. This amount is 53,836.50 euros annually as of November 1, 2016.

Talent Passport Employee on Assignment (article L313-20-3° CESEDA)

This is issued to an employee of a foreign affiliate being transferred to France. The conditions are as follows:

  • An employment contract of more than three months with an employer established in France and a gross remuneration of at least equal to 1.8 times the SMIC.
  • A seniority of at least three months with the group or the employer established outside France.

Talent Passport Researcher” (article L313-20-4° CESEDA)

This title is awarded to a foreign national holding a degree equivalent to a master’s degree that requires research work or provides university-level education, under a hosting agreement signed with a public or private organization having a previously approved research or higher education scheme.

Talent Passport Performing Artist” (L313-20-9°)

For the above and this category (Talent Passport issued under 2°, 3°, 4°, and 9° of article L313-20 CESEDA), the duration of the residence permit corresponds to the duration of the employment contract.

“Talent Passport Young Graduate Employee” or “Employee of an Innovative Company” (article L313-20-1° CESEDA)

  • Issued to an employee who has obtained a master’s degree (or level I diploma certified by the Conférence des Grandes Écoles) holding a contract of employment of at least three months and a salary equal to at least twice the annual minimum wage
  • Can also be issued under the same conditions of employment contract and salary when hired by an innovative company as defined in Article 44 sexies 0 A of the General Tax Code. The employee must participate in the research and development project of the company
  • The duration of the card is identical to that of the employment contract

“Creator of Business Passport” (article L313-20-5° CESEDA)

This is issued to a foreign national under the following conditions:

  • Diploma equivalent to a master’s degree or any document showing at least five years’ experience at a comparable level
  • Proof of sufficient resources during his or her stay to provide for himself or herself and, where appropriate, those of his or her family members.
  • Proof of an investment of at least €30,000 in the project
  • Proof of compliance with the rules in force in the field of activity in question

Talent Passport Innovative Economic Project” (article L313-20-6° CESEDA)

This is issued when a foreign national can:

  • Justify an innovative economic project
  • Show recognition of his or her project by a public body
  • Prove sufficient resources during his or her stay to provide for himself or herself and his family members, irrespective of the benefits and allowances mentioned in the third sentence of 2° of article L314-8

Talent Passport Mandataire Social (article L313-20-8° CESEDA)

This is issued when a foreign national can:

  • Hold the position of legal representative in an entity or a company doing business in France
  • Have seniority of at least three months as an employee or corporate officer in an entity or an affiliated company outside France
  • Receive a remuneration of at least three times SMIC

The card is issued for a period corresponding to that of the functions performed within the limit of four years.

Talent Passport Foreigner of International or National Fame” (article L313-20-10° CESEDA)

This is issued when a foreign national can:

  • Show established national or international fame
  • Exercise in France an activity in a scientific, literary, artistic, intellectual, educational, or sports field for more than 3 months
  • Show sufficient means of existence

The duration of the title is determined by the nature, characteristics, and duration of the project in France, up to a maximum of 4 years

Talent Passport Economic Investor” (article L313-20-7° CESEDA)

This is issued when a foreign national can:

  • Show a project of direct economic investment in France
  • The applicant must personally or through a company which he or she manages or of which he or she holds at least 30% of the capital, invest or undertake to invest 300,000 euros (tangible or intangible asset) and create or safeguard employment or, failing that, to commit to creating or safeguarding employment within the 4 years following the investment in France

This direct economic investment of 300,000 euros minimum is realized by:

  • An investment in social capital
  • Reinvested earnings
  • Loans between affiliates

Indirect (passive) investment, also referred to as financial investment or portfolio, does not fall within the scope of this residence permit.

Multi-annual “ICT Secondee” residence permit (article L313-24 I and II CESEDA)

The multi-annual residence permit referred to as an “ICT Secondee” may be issued to a foreign employee who is a third-country national seconded by his employer to an affiliate company in France and for the purpose of holding a senior management position or to provide expertise without a contract of employment with the host entity in France.

This involves the intra-group secondment (article L1262-1-2° of the Labor Code) in the framework of an assignment of senior management or contribution of expertise.

The conditions required to benefit from the ICT secondment include:

  • At least three months of continuous seniority in the group
  • Intra-group secondment
  • Secondment for a senior management position or contribution of expertise
  • Assignment of up to three years

There is no minimum pay threshold. The conditions of remuneration must be commensurate with the nature of the employment. The foreign national must show sufficient resources to meet his or her own needs and, where appropriate, those of his or her family members.

When the envisaged duration of stay is less than or equal to 12 months, the foreign employee receives a VLS-TS labelled “ICT Secondee.” When the envisaged duration of mission is more than 12 months, the foreign employee receives a long-stay visa labeled “ICT Secondee” and, upon his or her arrival in France, a residence permit.

The “ICT Secondee” residence permit allows intra-group assignments to be carried out in other EU Member States.

Family members (spouses and minor children entering France) can receive the residence permit “ICT Seconde Family,” which authorizes the stay and work in France. The duration of the card is aligned with that of the employee.

ICT Mobile Secondee card (article L313-24-III and IV CESEDA)

This residence permit is issued to a foreign employee holding an ICT residence permit issued by another EU Member State who is assigned to France for more than 90 days as an intra-group transfer. The conditions for benefiting from this status include:

  • Intra-group secondment
  • Having already been admitted to another EU country as a seconded ICT employee
  • Employment conditions specific to the ICT secondment and the legal remuneration thresholds
  • Showing sufficient resources

Procedures for the control and withdrawal of residence permits

The authorities can conduct post-clearance verifications, and the Prefects have an expanded right to certain kinds of information.

Obligation to provide information (article L313-5-1 CESEDA)

The beneficiary of a residence permit must inform the administration of any change in his or her situation. This results in three cases of potential refusal:

  • The foreign national ceases to fulfill the conditions for the residence permit.
  • The foreign national does not cooperate in the verification process.
  • The foreign national does not respond to the convocations.

The administration’s right to information (article L611-12 CESEDA)

This right can be exercised during initial application, during the period of validity in a random or targeted way, and during renewal.

  • The Prefect may solicit other administrations or public or private bodies (e.g., an administration, social security, higher education institution, energy provider, financial institution, or register of commercial courts) to verify the accuracy of the information provided by the applicant for the residence permit.
  • The Prefect may verify the authenticity of the documents and have information or documents sent to it within the framework of a residence permit application.
  • Confidentiality may not be a ground to refuse requests for information from the Prefect.
  • The Prefect’s verification may not be a systematic annual check. Rather, it could be random and targeted. Two verification phases can be distinguished:

– During the first year of application for multi-annual residence permits (November 1, 2016, to November 1, 2017), a random and targeted monitoring phase will make it possible to draw the first conclusions from the implementation of the new procedures.

– A second phase will begin on November 1, 2017, on the basis of the results obtained during the first control phase.

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Several developments have been announced.

Posted Workers Secondment Notification Submission Deadline Approaching

The new obligations set forth by Decree n. 136/2016 implementing the EU Posted Workers Directive (2014/67) apply to:

  • Any assignments activated on or after July 22, 2016, that are ongoing as of January 26, 2017. For these, the secondment notification must be filed by January 26, 2017.
  • Any assignments activated after December 26, 2016.

Who is affected?

  • Employers established outside Italy (EU or non-EU) sending their employees (EU and non-EU) to work in Italy on a temporary basis.

Action required:

  • Employers established outside Italy must check whether any assignment to Italy has been activated on or after July 22, 2016, and is ongoing as of January 26, 2017.
  • For any assignments to Italy activated on or after July 22, 2016, and ongoing as of January 26, 2017, employers must file the secondment notification by January 26, 2017, and comply with the other obligations set forth by the law.
  • For any assignments to Italy, employers must now file the secondment notification by midnight of the day preceding the assignment start date and comply with the legal obligations.

The dedicated website, Posting of Workers (http://www.distaccoue.lavoro.gov.it/) (available in English and Italian) provides an overview of the current regulation and clarifies the operational aspects.

Implementation of Directive 2014/66 on Intra-EU Mobility

With the publication of Legislative Decree n. 253/2916 , effective January 11, 2017, Italy has finally implemented Directive 2014/66/EC of May 15, 2014 (ICT Directive) on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. The decree amended the Consolidated Act on Immigration (L. Decree 286/1998, introducing two new articles (27-quinques and 27-sexies) of the immigration law.

The following are highlights of the ICT Directive.

Who is affected?

The new provisions apply to third-country nationals temporarily seconded from a non-European Union (EU) employer to an Italian company of the same group and who qualify as:

  • Managers (dirigenti—workers in a senior position, directing the host entity, supervising the work of other professional or managerial employees);
  • Specialists (workers possessing specialized knowledge essential to the host entity’s areas of activity, techniques, or management); or
  • Trainees (graduated workers transferred for career development purposes).

Workers who already hold an ICT permit issued by another EU Member State can work in Italy up to 90 days by notifying the local Police Station (Dichiarazione di presenza) of their stay. If a worker wants to stay for more than 90 days, he or she must apply for and obtain an ICT Work Permit but is exempt from obtaining a work visa. He or she, however, must register for and obtain an ICT permit of stay.

What are the main features of the new ICT permit?

  • It allows both residence and work in Italy.
  • It may be issued for a maximum of three years for managers and specialists and up to one year for trainees.
  • Upon expiration of the maximum ICT permit validity period, a new application can be filed only after at least three months have passed.
  • The work permit application is filed by the Italian host company.
  • Family members of ICT permit holders qualify for a family permit even if the assignment is for less than one year.
  • Holders of a valid Italian ICT permit may, under certain conditions, temporarily perform activities at an entity of the same group established in another EU Member State.

What are the main requirements to qualify for the new ICT permit?

  • The host entity established in Italy and the employer established outside the EU must be part of either the same company or group of companies.
  • The employee must have been working for the same company or for a company of the same group for at least three uninterrupted months immediately preceding the transfer.
  • After the transfer, the worker must return to the company, part of the same company or a company of the same group outside the EU.
  • The worker will cover a position as manager, specialist, or trainee for which he or she has the required qualifications, professional experience, or educational degree (if the position is for a regulated profession, this must be recognized in Italy).
  • A commitment to comply with the relevant social security obligations in Italy must be confirmed, unless a social security agreement applies.

The Italian immigration authority is still developing application procedures. It is uncertain how the new application procedures will work in practice.

The existing highly skilled migrant program remains in place with some variations. Therefore, it is still possible to file applications under article 27 letter (a) regulating the intra-company work permit for managers and highly skilled staff. The new provisions overlap with those of the existing highly skilled migrant program. The immigration authority is expected to issue guidelines soon to clarify the differences between the two procedures.

Unlike the standard intra-company permit, the new ICT permit allows non-EU workers to work in other EU countries for companies of the same group without needing to obtain new visas.

The Decree does not apply to researchers, students, autonomous workers, or workers posted under Directives 1996/71 and 2014/67.

What are the steps for obtaining an ICT Work Permit?

  1. The host company files the application at the Immigration Office (Sportello Unico). The company must submit supporting documents within 10 days.
  2. The Immigration Office, if all conditions are met, issues the permit within 45 days.
  3. The ICT Worker applies for the visa at the Italian consulate of his or her place of residence.
  4. Within 8 days of entry into Italy, the worker submits the application for ICT permit of stay (permesso di soggiorno) at the Immigration Office.
  5. The Police (Questura) issue the ICT permit of stay within 45 days of application.

ICT Workers can bring family members for the period of their assignments in Italy.

The immigration law already provided for an intra-company work permit, regulated by article 27(a). Below is a comparative table showing the differences between the two permits.

New ICT Work Permit

Art. 27 Quinques

Managers/Highly Skilled Workers

Art.27(A) Permit

Filing Entity

 

Seniority

Host company established in Italy

 

3 months

 

Host company established in Italy

 

6 months

Maximum Validity 3 years 5 years
Cooling of Period 3 months No
Contract of Stay No Yes
Validity in Other EU States Yes No
Obligation to Register & Apply for Residence Permit Yes Yes
Family Allowed Yes, regardless of duration of the assignment Yes, but only for assignments of 1 year or more
Local Hire Not possible Possible at the host company at the end of the first assignment period or within the maximum assignment length – 5 years

2017 Immigrant Quota Decree Expected Soon

The Italian government is working on the annual decree (decreto-flussi) that will determine the number of work authorizations (quotas) that will be available in 2017 for different categories of foreign citizens wishing to work in Italy.

As background, immigration for work purposes in Italy is based on a quota system that is fixed annually by means of the decreto-flussi. This quota decree sets the numerical limits for each category of worker/citizen allowed to apply for a work permit. Quotas do not apply to certain categories of workers.

As of now, the number of “quotas” for 2017 is thought to be no more than 30,000. At least half of these will be reserved for foreigners seeking entry for the purpose of seasonal work. Several quotas will be reserved for foreign citizens who already have residence permits in Italy (e.g., for study or seasonal work) and are intending to convert them into permits that would allow them to be employed in Italy full-time.

The remaining numbers will be for self-employment and special categories of foreigners (such as South American citizens with Italian ancestors or workers who have completed a specific training in their countries of residence).

The 2017 quota decree is not expected to be surprising or much different from the quota decrees issued since 2011. In fact, the last quotas for subordinate employment were issued in 2010, and since then no further quotas for foreign citizens residing abroad seeking entry for subordinate employment in Italy have been issued.

New Provisions on Foreign Seasonal Workers

New provisions on foreign seasonal workers entered into force on November 24, 2016, under Legislative Decree n. 203 of October 29, 2016, which has transposed Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. Further guidelines and clarifications were provided with circular letter no. 37 issued on December 16, 2016, by the Ministry of Labor and the immigration authority.

Together with the set of common rules on intra-corporate transferees, researchers, students, highly qualified workers, family reunification, and long-term residents, the EU Seasonal Workers Directive is part of EU common policy that aims to establish a framework for legal migration and to simplify and harmonize procedures within the EU.

The Directive is aimed at cutting the number of people working without authorization in seasonal jobs and overstaying, preventing exploitation, protecting the health and safety of seasonal workers, and facilitating the movement of these workers from and back to their home countries by facilitating the re-entry procedures for subsequent seasons.

The decree introduces several changes to the current regulation, easing the application procedures but at the same time imposing more severe penalties for employer noncompliance.

The most important new features in the modification of the current Italian regulation on seasonal workers include:

  • Work sectors defined as “seasonal” are those of agriculture and tourism only.
  • Procedures for multi-year work permit applications are easier:
    • The worker must demonstrate employment in seasonal work in Italy at least once in the previous five years (instead of two years).
    • The multi-year residence permit for seasonal work has a maximum three-year duration. For each year, the allowed stay is indicated, up to a maximum of nine months in a 12-month period.
    • The employer can apply for a multi-year work permit that entitles the worker to obtain subsequent entry visas more easily.
    • Each year of work authorization is valid for the time indicated in the job contract offered (not on the basis of previous work permits) and can be filed also by another employer (different from the one who first applied).
  • Labor market tests are no longer required, and the processing times are clarified (20 days for the issuance of a seasonal work permit).
  • Stricter requirements and rules on adequate accommodations are to be guaranteed by the employer.
  • A seasonal worker can accept another job offer in the seasonal sector if his or her contract for the year has expired but he or she has not yet used up the allowed nine months in a 12-month period (with no need to re-apply for a visa).
  • If the worker is offered a job (non-seasonal) and has already worked in Italy for at least three months, he or she may apply for conversion into a standard residence permit for work (within the quota limits).
  • Penalties for noncompliance with immigration regulations are as provided for under Italian immigration law, article 22, governing the general provisions on work permits for foreign nationals.
  • If the permit is revoked because of the employer’s noncompliance with labor and migration rules, the worker must receive compensation based on the salary set in the collective bargaining agreement.

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SPAIN

This article discusses the non-lucrative residence permit, which allows third-country nationals (foreign nationals not covered by the European Union legal framework) to live in Spain without performing labor activities.

The Spanish immigration legal framework regulates the non-lucrative residence permit allowing third-country nationals (foreign nationals not covered by the European Union legal framework) to live in Spain without performing labor activities.

Foreign nationals wishing to obtain this type of permit must meet four main requirements:

  • To be financially reliable, evidencing a regular monthly income of at least 2,130 euros for the principal and 532.51 euros for each dependent, if applicable.
  • Not to have a criminal background in the country/countries of residence during the last 5 years.
  • To hold private or public medical insurance coverage for Spain (including for hypothetical repatriation).
  • Not to have any of the illnesses/diseases listed in the international Sanitary Regulation of 2005 as serious conditions for public health.

In addition to these requirements, the applicant should not be in unlawful status in Spanish territory during the process and should not have signed a non-return agreement to Spain.

If the foreign national has fulfilled the above conditions, he or she may apply for the non-lucrative visa and residence permit at the Spanish consulate having jurisdiction over the applicant’s place of legal residence. The applications are currently being resolved in approximately 15 days (the statutory processing time is 3 months) and the applicant has one month to collect the visa from the notification of approval.

Once the foreign national is in Spain with a valid visa, he or she must apply for and collect a residence card, initially valid for one year. This type of permit can be extended for two consecutive periods of two years each provided the conditions that led to the initial approval are maintained. After five years of legal residence, the non-lucrative residence permit holder may apply for a long-term residence permit, provided the legal requirements are fulfilled.

Also, after one year of living in Spain with a non-lucrative permit, the visa-holder can apply for a residence permit allowing work, and the Labor Market Test will not be applicable.

Stays outside of Spain for more than 180 days in a year, either continuous or discontinuous, are grounds of cancellation of this permit.

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TURKEY

There has been an important change in citizenship rules.

With very little public discussion or notice, on January 12, 2017, amendments to Turkey’s citizenship regulations were published, creating a new category for acquisition of citizenship. The amended regulations relate to acquisition of citizenship based on a Council of Ministers decision (Law No. 5901, article 12). The amendment to article 20 of the regulations relates to a new category, based on that law’s subsection, which now allows certain foreign investors to be eligible to apply for Turkish citizenship.

The regulations do not specify procedures, but presumably this will still be handled by the same agency within the Interior Ministry in conjunction with the agencies referred to below for qualification evidence. The investor categories below qualify for citizenship applications (in lieu of the residence requirement or marriage to a Turkish national), but all other restrictions, such as for health and public security reasons, appear to remain.

The regulations now allow the following categories of investors to be eligible to pursue Turkish citizenship:

  1. The applicant has invested US $2 million as a free capital investment (as proven to the Ministry of Economy);
  2. The applicant has invested US $1 million in real estate in Turkey, bought with a deed restriction that blocks selling for three years (as proven to the Ministry of Environment and Urbanization;
  3. The applicant has provided employment for 100 employees (as proven to the Ministry of Labor);
  4. The applicant has invested US $3 million for three years with banks active in Turkey (as proven to the Committee on Banking Supervision); or
  5. The applicant has invested in the Turkish government’s debt instruments of US $3 million bought with a deed restriction that blocks selling for three years (as proven to the Under-Secretariat for the Treasury).

Given the current state of affairs in Turkey, the presumption is that the majority of applicants that take advantage of the new rules will be from conflict zone countries such as Syria or Iraq. Whether additional categories may be implemented specifically for Syrians is not yet publicly confirmed.

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UNITED KINGDOM

This article briefly notes hot topics for 2017.

There are a number of important immigration changes coming in 2017. Article 50 may or may not be triggered in March and with it the beginning of negotiations on the UK’s future relationship with the EU. Whatever the eventual outcome, immigration will feature prominently; Home Secretary Amber Rudd has already indicated her desire to introduce further restrictions for non-EU nationals at the Tory party conference, and a consultation is anticipated in the new year. The Immigration Skills Charge is expected to be introduced starting in April 2017 for all sponsors of Tier 2 migrants.

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