Earlier this year, President Trump issued a travel ban on travelers from Muslim countries. However, Judges from several states blocked the travel ban from going into effect. Now, Trump’s travel ban is back into effect.
The U.S. Supreme Court on Monday allowed a scaled-back version of President Trump’s travel ban to go into effect. The travel ban would affect people from six Muslim countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) from entering the United States for 90 days and would go into effect in as little as 72 hours. The U.S. Supreme Court states that the travel ban would not be enforced against someone who has a credible claim of a bona fide relationship with a person or entity in the United States as provided in the following excerpt from the U.S. Supreme Court decision below:
“In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.”
The decision of the U.S. Supreme Court has however been met with criticism. Opponents of the travel ban are concerned with what constitutes as a “bona fide relationship”. Would it require a blood relation? A lack of a clearly defined relationship would bar from entry people from the six countries and refugees with no such ties and cause chaos at the airports.
The Department of Homeland Security (DHS) stated that it will discuss the court’s action with the Justice and State departments and said it would implement the ban “professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry.”
President Trump’s new executive order on immigration will not include a blanket ban on citizens from Iraq, among a host of other revisions meant to allay legal and diplomatic concerns, people familiar with the matter said.
The White House late Tuesday scrapped plans for Trump to sign a revised travel ban Wednesday afternoon, a person familiar with the matter said, marking the third time the administration has put off the matter since the president said that dangerous people might enter the country without a prohibition in place.
But when it is signed, people familiar with the matter said, the order is still expected to include a host of significant changes. The order will also exempt current visa holders and legal permanent residents, and it will not impose a blanket ban on those from Iraq, where U.S. forces are working with the Iraqis to battle the Islamic State. It will not include an exception for religious minorities, which critics had pointed to as evidence it was meant to discriminate against Muslims. And it will not go into effect immediately when it is signed, people familiar with the matter said.
The decision to delay signing the order came as people on Twitter and elsewhere heaped praise on Trump for his speech Tuesday night to a joint session of Congress. A CNN poll, for example, showed that 7 in 10 people who watched said the address made them feel more optimistic about the direction of the country, and about two-thirds said the president has the right priorities for the nation. The pool of those who watched the speech was about eight points more Republican than the total population.
It was not immediately clear why the White House canceled plans to ink the new executive order, although a White House official did not deny that optics were part of the calculus. “We want the [executive order] to have its own ‘moment,’” an official told the network. A White House spokesman did not immediately return messages seeking comment.
Trump’s original executive order, now frozen by the courts, had barred citizens of seven Muslim-majority countries and all refugees from entering the United States. When it was implemented, the State Department provisionally revoked tens of thousands of visas, and some people who were in transit when it took effect were detained or deported once they reached U.S. airports.
A senior official said on Feb. 22 that the order would be delayed another week, as officials worked to make sure it would be implemented smoothly. The president was slated to sign the order Wednesday, but now, it seems, it will have to wait again. How long is unclear.
Now is the time to prepare for your H-1B Work Visa/status filing. It is anticipated that USCIS will reach its H-1B Cap in the first week of April 2017. Thus, you should start your preparation now or by mid February at the latest, because it could take a few weeks to complete H-1B filing.
Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.
In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.
Requirement 2 – Your job must qualify as a specialty occupation by meeting one of the following criteria:
that normally requires a degree in a related field?
+ How do I show that my degree is related to the specialty occupation?
+ Can I qualify without a bachelor’s degree?
The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. To view the wage database and estimate the prevailing wage that may be required for your position, click here.
Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.
Decision By U.S. Court Temporarily Freezes Key Parts of Executive Order.
On February 3, 2017, the U.S. District Court in the Western District of Washington issued a temporary restraining order which prohibits the federal government from enforcing parts of the Executive Order that banned travel by “non-immigrants” and “immigrants” from Iraq, Syria, Iran, Sudan, Somalia, Yemen, and Libya for 90 days (a copy of the court order is enclosed). The judge’s ruling also prohibits the Executive Order’s freeze on refugee admissions, including the indefinite ban on Syrian refugee admissions.
Entry into the U.S. After this Ruling:
The U.S. District Court ruling means that right now, until a court rules otherwise, all officials at U.S. airports and other ports of entry are not allowed to prohibit entry to people from Iraq, Syria, Iran, Sudan, Somalia, Yemen, and Libya who are traveling on valid visas and are otherwise admissible. Customs and Border Protection has received these instructions to allow entry to allow entry to people from Iraq, Syria, Iran, Sudan, Somalia, Yemen, and Libya who are traveling on valid visas. The U.S. Department of Homeland Security has also confirmed that it will not be enforcing the Executive Order’s ban on non-immigrant, immigrant, and refugee entry because of the U.S. District Court ruling.
The U.S. State Department has confirmed with American Immigration Lawyers Association that unless there are additional issues in the case, all valid visas that were revoked/cancelled by the Executive Order have been made valid again.
Airlines Allowing Travel:
The International Air Transport Association (which represent 265 airlines, over 83% of total air traffic), has issued the following statement after the U.S. District Court ruling: ‘The restriction for passengers with a passport issued by Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen who were not allowed to enter the USA has been lifted. It has been removed from Timatic, pending an official confirmation.’
Subsequently, the following airlines have also confirmed, in addition to the IATA statement, that they will board people from the 7 affected countries if they have valid visas: KLM; British Airways; Emirates Airlines; Qatar Airways; Etihad Airways; Air France; Egyptair; Lufthansa (list as of 11 am EST, 2/4/17).
The U.S. federal government has announced that it will ask the court to end this temporary freeze of its Executive Order “at the earliest possible time.” Therefore, if you are attempting to travel to the U.S. on a valid visa, you should attempt to get on a plane as soon as possible. It is possible that during your travel, the law may change and you may be detained at a U.S. port of entry.
On January 25, 2017, President Trump announced that he would suspend any immigration for at least 30 days from a number of predominantly Muslim countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — while the government toughened its already stringent screening procedures to weed out potential terrorists.
President Donald Trump’s administration says green card holders — including those detained at airports across the United States in the wake of Trump’s ban on travel from seven nations — will be allowed into the country.
Reince Priebus, Trump’s chief of staff, said on NBC’s “Meet the Press” that “as far as green card holders moving forward, it doesn’t affect them.”
If you are on DACA, you may apply for Advance Parole.
After entering the United States on Advance Parole, you may adjust your status if you have an approved petition filed by your spouse.
USCIS or U.S. Immigration and Customs Enforcement (ICE) has deferred action in your case as a childhood arrival based on the guidelines described in the Secretary of Homeland Security’s memorandum issued on June 15, 2012 (“Deferred Action for Childhood Arrivals” (DACA)).
USCIS may, in its discretion, grant advance parole if you are traveling outside the United States for educational purposes, employment purposes, or humanitarian purposes. (a) Educational purposes include, but are not limited to, semester abroad programs or academic research; (b) Employment purposes include, but are not limited to, overseas assignments, interviews, conferences, training, or meetings with clients; and (c) Humanitarian purposes include, but are not limited to, travel to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative.
NOTE: Travel for vacation is not a valid purpose. You must NOT file Form I-131 with your deferred action request or your package will be rejected and returned to you.
DACA recipients with advance parole should complete their travel and return to the United States as soon as practicable, but certainly before January 20, 2017.
Note that CBP is responsible for inspecting and paroling individuals with valid advance parole documents, and maintains the position that advance parole does not guarantee admission to the United States. DHS may revoke or terminate an advance parole document at any time, including while your client is outside the U.S., which would inhibit or prohibit their ability to return.
For More Information, please contact Attorney Phillip Kim at (559) 448-8500.
The U.S. Citizenship and Immigration Services (USCIS) has announced that it will be increasing its filing fees. The fee increase will become effective on December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016 must be submitted with the new fees or otherwise be subjected to rejection.
USCIS states that it is almost entirely funded by fees paid by applicants and petitioners for immigration benefits. The law requires that USCIS conduct fee reviews every two years to determine the funding levels necessary to administer the nation’s immigration laws, process benefit requests and provide the infrastructure needed to support those activities.
USCIS’ last fee increase was in November 2010. Now six years later the fees have increased by a weighted average of 21 percent for most applications and petitions. According to USCIS, the fee increase was necessary to recover the full cost of services provided by USCIS such as costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
The new USCIS fees are provided below:
|Immigration Benefit Request||New Fee ($)||Old Fee ($)|
|G–1041 Genealogy Index Search Request||65||20|
|G–1041A Genealogy Records Request (Copy from Microfilm)||65||20|
|G–1041A Genealogy Records Request (Copy from Textual Record)||65||35|
|I–90 Application to Replace Permanent Resident Card||455||365|
|I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document||445||330|
|I–129/129CW Petition for a Nonimmigrant worker||460||325|
|I–129F Petition for Alien Fiancé(e)||535||340|
|I-130 Petition for Alien Relative||535||420|
|I-131/I-131A Application for Travel Document||575||360|
|I–140 Immigrant Petition for Alien Worker||700||580|
|I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)||930||585|
|I-192 Application for Advance Permission to Enter as Nonimmigrant||585/9301||585|
|I-193 Application for Waiver of Passport and/or Visa||585||585|
|I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal||930||585|
|I–290B Notice of Appeal or Motion||675||630|
|I–360 Petition for Amerasian Widow(er) or Special Immigrant||435||405|
|I–485 Application to Register Permanent Residence or Adjust Status||1,140||985|
|I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years)||750||635|
|I–526 Immigrant Petition by Alien Entrepreneur||3,675||1,500|
|I–539 Application to Extend/Change Nonimmigrant Status||370||290|
|I–600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition||775||720|
|I-601 Application for Waiver of Ground of Excludability||930||585|
|I–601A Application for Provisional Unlawful Presence Waiver||630||585|
|I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended)||930||585|
|I–687 Application for Status as a Temporary Resident under Section 245A
of the Immigration and Nationality Act
|I–690 Application for Waiver of Grounds of Inadmissibility||715||200|
|I–694 Notice of Appeal of Decision||890||755|
|I–698 Application to Adjust Status From Temporary to Permanent Resident
(Under Section 245A of the INA)
|I–751 Petition to Remove Conditions on Residence||595||505|
|I–765 Application for Employment Authorization||410||380|
|I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country||775||720|
|I–800A Supp. 3 Request for Action on Approved Form I–800A||385||360|
|I–817 Application for Family Unity Benefits||600||435|
|I–824 Application for Action on an Approved Application or Petition||465||405|
|I–829 Petition by Entrepreneur to Remove Conditions||3,750||3,750|
|I–910 Application for Civil Surgeon Designation||785||615|
|I–924 Application for Regional Center Designation Under the Immigrant
|I–924A Annual Certification of Regional Center||3,035||0|
|I–929 Petition for Qualifying Family Member of a U–1 Nonimmigrant||230||215|
|N–300 Application to File Declaration of Intention||270||250|
|N–336 Request for Hearing on a Decision in Naturalization Proceedings||700||650|
|N–400 Application for Naturalization2||640||595|
|N–470 Application to Preserve Residence for Naturalization Purposes||355||330|
|N–565 Application for Replacement Naturalization/Citizenship Document||555||345|
|N–600/N–600K Application for Certificate of Citizenship||1,170||600/5503|
|USCIS Immigrant Fee||220||165|
|Biometric Services Fee||85||85|
Trump’s first actions on immigration will likely be overturning the policies that US president Barack Obama put in place to protect undocumented immigrants.
Under the policy known as Deferred Action for Childhood Arrivals (DACA), implemented by Obama as an executive order in 2012, more than 700,000 immigrants who were brought into the country illegally as children have been allowed to temporarily stay and work in the US. DAPA is a similar policy for the undocumented parents of American citizens; it has been challenged in court by several states.
Trump has vowed to end DACA, DAPA, and so-called “catch-and-release” policies, or the practice of not detaining immigrants while they wait for their cases to be processed. He’s also said he’s going to triple the number of US Immigrations and Customs Enforcement agents and will “move criminal aliens out day one.”
None of this will result in mass deportations in the short term—the US Department of Homeland Security does not have the funding to deport all 11 million people who are thought to be in the country illegally, and it’s unclear where Trump would get it. There’s also a question of physical resources; thousand of Central American women and children who showed up at the border in the summer of 2014 quickly overwhelmed existing detention facilities.
It would take more funds still to build that wall between the US and Mexico that Trump has talked about from the start of his campaign. Aside from being very expensive, it would require congressional approval, and logistically, it would be very complicated to erect a barrier across the length of the entire border.
Secretary of Homeland Security Jeh Johnson has redesignated Syria for Temporary Protected Status (TPS) and extended the existing TPS designation for the country from Oct. 1, 2016, through March 31, 2018. This allows eligible nationals of Syria (or persons without nationality who last habitually resided in Syria) to register or re-register for TPS.
Individuals re-registering for TPS:
Current beneficiaries under Syria’s TPS designation seeking to extend their TPS status must re-register during a 60-day period that runs from Aug. 1, 2016, through Sept. 30, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.
The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible Syria TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of March 31, 2018. USCIS recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Syria EADs with a Sept. 30, 2016, expiration date for an additional six months. These existing EADs are now valid through March 31, 2017.
To re-register, current TPS beneficiaries must submit:
Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);
Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
The Form I-765 application fee (or a fee-waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
The biometric services fee (or a fee-waiver request) if they are age 14 or older.
Individuals applying for TPS for the first time:
For Syrian nationals (and persons having no nationality who last habitually resided in Syria) who do not currently have TPS, the TPS redesignation may allow them to apply for TPS if they have continuously resided in the United States since Aug. 1, 2016, and have been continuously physically present in the United States since Oct. 1, 2016. Applicants must meet all other TPS eligibility and filing requirements.
To apply for the first time, individuals must submit:
Form I-821, Application for Temporary Protected Status;
The Form I-821 application fee;
Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
The Form I-765 application fee, but only if they want an EAD and are 14 to 65 years old (those under 14 or 66 and older do not need to pay the Form I-765 fee with their initial TPS application); and
The biometric services fee if they are age 14 or older.
Individuals who still have a pending initial TPS application under Syria’s designation do not need to submit a new Form I-821. However, if they currently have a TPS-related EAD and want a new EAD, they should submit:
Form I-765, Application for Employment Authorization;
The Form I-765 application fee, regardless of their age; and
A copy of the receipt notice for the initial Form I-821 that is still pending.
Applicants may request that USCIS waive any fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation. USCIS will reject the application of any applicant who fails to submit the required filing fees or a properly documented fee-waiver request.
During the first ten months of FY 2016, immigration judges have determined that 96,223 noncitizens against whom Homeland Security sought removal orders were entitled to remain in this country. By the end of this fiscal year this pace is on track to surpass the record set last year of 106,676 noncitizens that the court found could remain in the U.S. These outcomes account for 56.8 percent of all cases that judges have decided so far this year.
One in four individuals (25%) allowed to stay was from Mexico. Over four out of ten (44%) were from the three Central American countries — El Salvador, Guatemala, and Honduras — where in recent years large numbers of unaccompanied children and women with children have come to this country seeking asylum. These figures are based upon case-by-case court records updated through the end of July 2016 obtained and analyzed by the Transactional Records Access Clearinghouse at Syracuse University.
There are a number of reasons why an individual may be allowed to remain in the country. For example, the judge can find that the government did not meet its burden to show the individual was deportable. Or, the judge may have found that the individual was entitled to asylum in this country, or may grant relief from removal under other provisions of the law. A person also may be allowed to remain because the government requests that the case be administratively closed through the exercise of ICE’s prosecutorial discretion, or for some other reason.
Outcomes, for example, vary markedly by Immigration Court. The Phoenix Immigration Court had the highest proportion of individuals who were allowed to stay. In more than four out of every five (82.2%) of its 3,554 cases closed so far in FY 2016 the individuals were successful in their quest to remain in the U.S.
The New York Immigration Court was in second place with 81.5 percent of the individuals in its 16,152 cases closed so far this year allowed to remain in the U.S. The Denver Immigration Court came in third with 78.0 percent of the 831 individuals in its cases successful in their quest to stay in this country.
At the other extreme were the Oakdale, Louisiana, Lumpkin (Stewart), Georgia, and Napanoch (Ulster), New York Immigration Courts where only between 11.3 percent and 17.5 percent of the individuals were allowed to remain in the U.S. Each of these courts handle cases for individuals who are held in detention.