D&S Immigration Update Regarding Trump Administration's Executive Order: "Protecting the Nation from Foreign Terrorist Entry Into the United States."

On Friday, January 27, 2017 President Trump signed an Executive Order relating to visa issuance, screening procedures, and the admission of refugees. The Executive Order is titled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” Among other immigration restrictions, Section 3 of the Executive Order, "suspends" the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order. The list of designated countries includes Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It is important to note that travel will not be automatically reinstated after the 90 day period. Instead, The Department of Homeland Security (DHS) will be required to report compliance from each of the countries in providing the information "needed … to determine that the individual seeking [entry to the U.S.] is who the individual claims to be and is not a security or public-safety threat." If DHS reports noncompliance, the country would have an additional 60 days to comply, or the travel ban would become indefinite.

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USCIS Proposes Parole Program for Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) is proposing a parole program for entrepreneurs who would provide a “significant public benefit” to the United States. Under the proposed rule, which is in line with the initiatives put in place in President Obama’s November 2014 memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century,” and the July 2015 White House report on improving the current immigration system, certain international entrepreneurs would become eligible for parole into the United States in order to start or grow a U.S.-based businesses.

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Guidance on new STEM OPT Filing Procedures

The Immigration & Customs Enforcement's (ICE) Student & Exchange Visitor Program (SEVP) website was updated to provide guidance on procedures for requesting the new 24-month STEM extension available under the new STEM OPT Rule scheduled to take effect on May 10, 2016. The website provides additional guidance for F-1 students whose applications are approved prior to May 10, 2016, or still pending as of May 10, 2016.  Additionally, the website contains the new Form I-983 Training Plan for STEM OPT Students that must be completed and submitted to the DSO prior to a grant of STEM OPT under the new rule.

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DHS Releases Final STEM OPT Rule

The U.S. Department of Homeland Security (DHS) released an advance draft of its final STEM OPT rule today, March 9, 2016, which will permit certain foreign students with degrees in STEM (Science, Technology, Engineering, and Math) fields to extend their Optional Practical Training (OPT) period by 24 months.  The will go into effect on May 10, 2016,  just in time to meet the date on which the District Court’s May 10th vacatur of the prior rule will occur and avoid a gap between the regulations, which could have had a significant impact on STEM students and employers. DHS released its preview copy of the final rule this morning and the official version of the rule is set to be published in the Federal Register on Friday, March 11, 2016.

We have provided an outline of the major provisions of the new rule, which also contains additional requirements and obligations for STEM OPT students and employers.

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Department of Homeland Security and Department of State Issue Joint Statement Regarding Changes to Visa Waiver Program and Customs and Border Protection Issues Updated FAQs

As part of the 2016 Consolidated Appropriations Act, Congress enacted certain changes to the Visa Waiver Program (VWP) in legislation entitled the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which restrict use of the program by dual nationals of a VWP country who are also nationals of Iraq, Syria, Iran, and Sudan or VWP national who have traveled to those countries at any time on or after March 1, 2011.  Under the new rule, such individuals are unable to use VWP and must apply for a B1/B2 visitor visa before traveling to the United States as a visitor.  On January 21, 2016, the Department of Homeland Security (DHS) and the Department of State (DOS) released a Joint Statement (LINK PDF) discussing these new changes.  Customs and Border Protection (CBP) has also issued updated FAQs addressing how the new legislation will impact admission of individuals who fall under the VWP restriction. 

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DHS Publishes Final Rule on Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

Today, February 15, 2016, DHS published its Final Rule on Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants. The rule, which was  initially proposed by DHS in May 2014, extends the 240-day employment authorization rule to H-1B1s, E-3s, and CMNI workers, and adds a "comparable evidence" provision for outstanding professors and researchers, among other things. In doing so, these rules will provide much-needed relief to H-1B1, CW-1, and principal E-3 applicants by removing unnecessary obstacles these nonimmigrant workers face to continue working in the United States, and for EB-1 outstanding professors and researchers to seek admission as immigrants.  The final rule will be effective in mid-February, 30 days from publication.  

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House Passes Vote to Restrict U.S. Travel by Foreign Nationals Who Have Visited Syria, Iran, IraQ or Sudan in the Last 5 Years

Today, in a 407-19 vote, the House passed legislation restricting certain travel privileges to nationals of visa waiver participant countries. The legislation, which has the support of the White House, is expected to be wrapped into the much-discussed government spending bill and become law in the next few weeks.

Rather than a comprehensive approach, this new legislation appears to be the first of what will be a piecemeal approach to implementing enhanced security measures in response to the November 13th Paris terrorist attacks and the recent shooting in San Bernardino, CA.  The legislation comes in the wake of the White House's release of a  Fact Sheet outlining new security enhancements that would be implemented immediately to add additional security measures to the Visa Waiver Program (VWP), which is a program that allows nationals of 38 member countries to enter the U.S. as a visitor for up to 90 days without procuring a visa.

The legislation would ban nationals of visa waiver countries who have traveled to Iran, Iraq, Sudan, or Syria since March 1, 2011 from traveling to the U.S. under the VWP. Such individuals must now obtain a visa to travel to the U.S., which requires an in-person interview at a U.S. Consulate or Embassy overseas.

D&S will continue to monitor the changes that are anticipated to be made to the Visa Waiver Program in the coming weeks and provide timely updates outlining new developments.

White House Releases Fact Sheet on Enhancements to Visa Waiver Program

This week the White House released a Fact Sheet detailing enhancements that are to be made to the Visa Waiver Program (VWP), which included several new security changes. The Administration explained that these enhancements are being implemented in the wake of last month's terrorist attacks in Paris.  

In addition to enhanced security measures already made to the program over the course of the last year, including new security-related data fields and new traveler screening and information sharing requirements with VWP countries, the new changes announced in the Fact Sheet aim to aggressively strengthen the VWP and bolster relationships with VWP partner countries on an accelerated basis.  More specifically, the Fact Sheet states that the Department of Homeland Security (DHS) will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. Additionally, the new enhancements will includes measures to evaluate and further facilitate terrorism-related information sharing between the U.S. and VWP countries including piloting real time biometrics checks on refugees and asylum seekers in WVP countries and working with Congress to increase penalties and fines for failure to comply with passenger screening requirements.  The Administration indicated that it is working with Congress to provide statutory authority for many of the key security enhancements it has proposed to the VWP.

The Fact Sheet follows a Statement issued by DHS Secretary Jeh Johnson on August 6, 2015 discussing steps that have been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the VWP.

Department of State November 2015 Visa Bulletin Summary

The Department of State released the November 2015 Visa Bulletin today.  D&S provides a Monthly Summary of the family and employment based priority dates.  This month, the Filing dates for China and India remained unchanged for both the EB-2 and EB-3 preference categories. The Final Action dates for EB-2 India progressed a little over a year to August 1, 2006, and EB-3 India progressed just under one month to April 1, 2004. EB-2 China had a modest progression of one month to February 1, 2012 and EB-3 China progressed approximately 2.5 months to January 1, 2012.  Finally, the EB-5 China Filing date held steady at May 1, 2015 and the Final Action date progressed a little over one month to November 22, 2013.

The release of the November 2015 Visa Bulletin is further confirmation that the original October 2015 Visa Bulletin (originally released on September 9, 2015) which was superseded by an updated version (released on September 25, 2015) will not be restored at this time, despite the pending federal class action lawsuit filed against the Department of Homeland Security and the Department of State. While the underlying lawsuit remains pending, earlier this week the U.S. District court denied the plaintiff's request for a temporary restraining order which would have forced the government to revert to the original version of the October 2015 Visa Bulletin. 

D&S will continue to monitor this and post updates as they become available.

Department of State Issues Revised October Visa Bulletin, EB-2 China and India Filing Dates Retrogress

Today, September 25, 2015, the Department of State (DOS) released a revised October Visa Bulletin. The revised version supersedes the version that was originally published only a few weeks ago, on September 9, 2015. The changes come on the heels of the announcement made by USCIS and DOS earlier this month, implementing revised procedures for determining immigrant visa availability.  The agencies indicate that the revisions have been made to "better reflect a timeframe justifying immediate action in the application process."

The revisions impact the Family-Based Filing Dates for F-1 and F-3 Mexico, the Employment-Based Filing Dates for EB-2 China and India, as well as EB-3 and "Other Workers" for the Philippines, and delay when individuals in these categories will become eligible to file an application for adjustment of status.

D&S has updated the monthly Summary of the family and employment based priority dates to reflect these changes, including the new dates in bold


U.S. Federal Court Order Invalidates OPT STEM Extension Rule

The United States District Court for the District of Columbia issued an order finding invalid the 2008 interim Department of Homeland Security (DHS) rule that provides for a 17-month extension of F-1 Optional Practical Training (OPT) for students with degrees in Science, Technology, Engineering, and Math, commonly referred to as “STEM extensions” or “STEM OPT.” 

The rule was issued as an interim rule without a notice and comment period in order to combat issues faced by U.S. employers in the technology sector who were unable to retain skilled workers due to the unavailability of H-1B visas. However, the Court found that in implementing the rule without providing the public adequate notice of the regulation or the opportunity to provide comment, DHS failed to comply with the requirements of U.S. administrative procedures law and held that the rule was invalid as a result. 

The Court, however, recognized that immediately vacating the validity of STEM OPT would be unduly harsh causing both hardship to F-1 students currently working in the U.S. on STEM OPT as well as a significant labor disruption in the technology sector.  Therefore, the Court suspended the ruling from taking effect until February 12, 2016, during which time DHS must comply with its notice and comment obligations.

What this Means

The Current STEM OPT regulation will remain in effect until February 12, 2016. Therefore, F-1 students working pursuant to STEM OPT will remain authorized to work, so long as their STEM employment otherwise meets the current STEM OPT criteria, which require that (1) the STEM worker’s employment is related to their STEM degree and (2) the STEM worker’s employer is a currently-enrolled E-Verify user.

Pending additional USCIS guidance clarifying how the agency will handle current and new STEM OPT extension requests, which the agency is expected to issue in the coming weeks, the current rules of the program should remain in effect meaning that (1) USCIS should continue adjudication of currently pending STEM OPT extension applications; (2) eligible STEM grads should be able to file new STEM OPT extension requests; and (3) timely-filed STEM extension applications should allow F-1 students to remain work authorized for 180 days following the expiration of their initial F-1 OPT work authorization. 

Things to Keep in Mind

DHS is expected to comply with the notice and comment requirements by the February 12, 2016 deadline. The new proposed rule that DHS will issue for notice and comment is expected to also incorporate elements of President Obama’s proposed regulation enhancing employment authorization options for F-1 students in STEM fields and strengthening the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM careers.  

D&S continues to closely monitor developments following the District Court’s ruling and will provide timely updates as further information becomes available.


DHS Announces Intention to Implement Security Enhancements to Visa Waiver Program

On August 6, 2015, Secretary of the Department of Homeland Security ("DHS"), Jeh Johnson, released a statement announcing DHS and the State Department's intent to implement a number of additional or revised security criteria for all participants in the Visa Waiver Program ("VWP"). These criteria will apply to both new and current members of the Program.  In addition, these enhancements are intended to build upon the additional data fields of information added to the Electronic System for Travel Authorization ("ESTA") application last fall.

The most significant of the new security enhancements include:

  1. The requirement that VWP members use e-passports for all travel to the U.S.
  2. The requirement that the INTERPOL Lost and Stolen Passport Database be used to screen travelers crossing the borders of a VWP country.
  3. Permission for expanded use of U.S. federal air marshals on international flights from VWP countries to the U.S.

Secretary Johnson's statement emphasized that the new measures were intended to enhance security without hindering lawful trade and travel between VWP participating countries.