Update – 06/26/17

BREAKING NEWS: United States Supreme Court agrees to hear Administration’s Appeal of Fourth and Ninth Circuit Decisions regarding Travel Ban and reinstates the Ban in part

Today, June 26^th, 2017, the United States Supreme Court determined it will grant the administration’s petition for certiorari and hear argument on the Travel Ban when it returns after summer recess. In the meantime, aspects of the Ban will be allowed to go into effect against certain individuals.

Just two weeks after the U.S. Court of Appeals for the Ninth Circuit determined that President Donald Trump exceeded his statutory authority in issuing revised executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” (EO-2), the Supreme Court determined it would grant the Government’s petitions for certiorari and hear argument on the matter in October 2017, consolidating the Ninth Circuit case and a Fourth Circuit case that reached the same outcome but on different grounds. 

The Ninth Circuit, as recently as June 12, reasoned that by suspending the entry of more than 180 million nationals from six countries for 90 days as well as the entry of all refugees for 120 days, and reducing the cap on the admission of refugees from 110,000 to 50,000 for fiscal year 2017, the President “did not meet the essential precondition” to exercising that authority.

Previously, on May 25, the U.S. Court of Appeals for the Fourth Circuit also ruled against the revised executive order but on constitutional grounds, citing the First Amendment’s Establishment Clause against government policies based on religious discrimination. The administration requested review of both decisions in the Supreme Court.

Just before breaking for its annual summer recess on June 26, the Supreme Court released a per curiam decision in Trump v. International Refugee Assistance Project agreeing to grant the administration’s petitions for certiorari and hear argument on the matter in the Fall Term. In the meantime, SCOTUS stayed, in part, the injunctions put in place by lower courts that prevented the ban’s implementation until now. As a result of this late-breaking decision, aspects of the Travel Ban will be allowed to go into effect between now and October, thus banning the entry of certain foreign nationals and all refugees except for those individuals who can demonstrate “a credible claim of a bona fide relationship with a person or entity in the United States.”  In other words, a foreign national or refugee who would otherwise be denied entry under the Ban may be permitted to enter if they     can demonstrate a close familial relationship to someone in the U.S., or if they can establish a formal, documented relationship to an entity in the U.S. that was “formed in the ordinary course.” 

While guidance from the State Department and Customs and Border Protection is still forthcoming, the provisions of EO-2 will still allow entry by permanent residents from the six countries; persons holding valid nonimmigrant visas from those countries; and persons holding other valid travel documents (such as advance parole documents) issued before the EO’s effective date.  EO-2 also allows for foreign nationals from the six countries to be issued visas in spite of the order if they can demonstrate that a delay in visa issuance during the ban would cause undue hardship.  The EO-2 waiver provision provides a non-exhaustive list of situations, such as a foreign student renewing an F-1 visa to return to a prior course of study, or who has “significant contacts” with the United States but is outside the United States during the validity of the EO.

The ultimate fate of the Travel Ban will remain undecided until October.  For questions or concerns regarding the latest decision by the Supreme Court and how it might impact travel in and out of the U.S. in the meantime, schedule a consultation or contact your Klasko Law attorney.

Labor Department Announces Aggressive Anti-Virus Fraud Measures; White House Considers H-1B Overhaul

Secretary of Labor Alexander Acosta recently announced actions “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse,” according to a Department of Labor (DOL) press release.

These measures will include “heightened use of criminal referrals. The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.” The announcement also states that “it is now the policy of the department to enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs,” including:

• Directing the DOL’s Wage and Hour Division (WHD) to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
• Directing the DOL’s Employment and Training Administration (ETA) to develop proposed changes to the Labor Condition Application, and directing the WHD to review its investigatory forms, to better identify systematic violations and potential fraud, and to provide greater transparency for agency personnel, U.S. workers, and the general public.
• Directing the WHD, ETA, and Office of the DOL Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General (OIG).
• Establishing a working group made up of senior leadership from ETA, WHD, and the Solicitor’s office to supervise these efforts and coordinate enforcement. The working group will invite OIG to send representatives to participate in its efforts.

DOL will continue to work with the departments of Justice and Homeland Security to further investigate and detect visa program fraud and abuse, the announcement states.

In addition, DOL said it has begun “to prioritize and publicize the investigation and prosecution of entities in violation of visa programs.” For example, the agency announced that it obtained a preliminary injunction under the H-2A visa program from the U.S. District Court for Arizona against G Farms for “illegal and life-threatening housing provided to agricultural workers.” DOL said it “continues to investigate the violations at G Farms and has also been in contact with the OIG on this matter.”

This announcement comes on the heels of President Trump’s April 18, 2017 executive order ordering several agencies to suggest H-1B reforms. The Department of Homeland Security said it plans to issue new rules and guidance on the H-1B program. According to reports, the White House is also working with the Department of Justice to consider measures such as reducing the numerical limit on, and duration of, H-1B visas, among other actions.

Klasko partner, William Stock was recently quoted in a story on this topic by Bloomberg Law, which can be read here.

Certain STEM OPT and English Language Students Affected by Loss of Accreditation

Certain students applying for 24-month STEM OPT (optional practical training in science, technology, engineering, or math) extension programs and English language study programs are being affected by the U.S. Department of Education’s decision in December no longer to recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.

U.S. Citizenship and Immigration Services recently announced that this determination immediately affects two immigration-related programs:

• English language study programs, as the programs are required to be accredited under the Accreditation of English Language Training Programs Act 
• F-1 students applying for a 24-month STEM OPT extension, as the regulations require them to use a degree from an accredited Student and Exchange Visitor Program (SEVP)-certified school as the basis of their STEM OPT extensions. The school must be accredited at the time of the application; this is the date of the Designated School Official’s (DSO) recommendation on the Form I-20.

SEVP will provide guidance to affected students in notification letters if their school’s certification is withdrawn. However, students enrolled at an ACICS-accredited school should contact their designated school officials (DSOs) immediately “to better understand if and how the loss of recognized accreditation will impact the F/M student’s status and/or immigration benefits application(s).”

If an ACICS-accredited school voluntarily withdraws from SEVP certification or cannot provide evidence in lieu of accreditation for programs listed on their Form I-17, international students at these schools will have 18 months to:

• Transfer to a new SEVP-certified program;
• Continue their program of study until the current session end date listed on their Form I-20 (not to exceed 18 months); or
• Leave the United States.

After this 18-month grace period, SEVP will terminate the SEVIS records of any active F/M student at an ACICS-accredited school who has not transferred to a SEVP-certified school or departed the United States. USCIS said this guidance applies equally to all F/M students regardless of the program of study, and the 18-month period is valid for English as a Second Language (ESL) students as well.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school voluntarily withdraws its certification or if it is withdrawn by SEVP. If a student’s ACICS-accredited school is able to provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation within the allotted time frame, the student may remain at the school to complete his or her

Students whose Forms I-20 have a DSO recommendation date before December 12, 2016, are not affected.

More information about the loss of accreditation is available here. If you have questions about these developments, request a consultation.

Klasko partner, William Stock was recently quoted in a story about the increase in students applying for OPT by Bloomberg Law, which can be read here.

New State Dept. Form Asks Certain Visa Applicants ‘Supplemental Questions’ Regarding Social Media Usage

Department of State form, DS-5535, for visa applicants, asks supplemental questions of “[i]mmigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities,” according to a related Federal Register notice.

The Office of Management and Budget (OMB) approved the new form on an emergency basis for six months. However, a wide variety of organizations are expressing concern about the new form and its use. The form’s questions include inquiries into where the applicant has traveled outside his or her country of residence in the last 15 years, with “details for each trip, including locations visited, date visited, source of funds, and length of stay.” The form also asks for information about any passports other than those listed in the visa application; full names and dates of birth of any siblings; children; current or previous spouse or civil/domestic partner; addresses where the applicant has lived during the last 15 years; phone numbers, including “primary, secondary, work, home, and mobile numbers,” used over the last 5 years; email addresses used over the past 5 years, including “primary, secondary, work, personal, and educational”; usernames for any websites or social media applications used to create or share content, including photos, videos, and status updates, over the last 5 years (the form does not ask for passwords); and employers, job descriptions, and job titles over the last 15 years.

The Federal Register notice announcing the new form explains who will use the form and why, further stating that most of this information is already collected on visa applications but over a shorter time – for example, 5 years rather than 15 years. The notice advises that requests for names and dates of birth of siblings and, for some applicants, children, are new. The request for social media identifiers and associated platforms is also new for the Department of State, although the Department of Homeland Security (DHS) already collects such information on a “voluntary basis” from certain individuals. The notice also explains that applicants may be asked to provide details of their international or domestic (within their country of nationality) travel if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization. Applicants “may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation.”

Reaction. A number of organizations including several U.S. professional associations sent a letter to the Office of Management and Budget (OMB) and the Department of State expressing their concerns about the new form. Among other things, the letter acknowledges the need to secure the United States, but cautions that there is also a need to remain open to those pursuing academic study and scientific research. The letter states that the notice is likely to have a “chilling effect” not only on those required to submit additional information but also indirectly on all international travelers coming to the United States. According to the letter, the notice in the Federal Register does not sufficiently identify the criteria of those required to complete the supplemental form, the effect of unintentional incomplete disclosure, or remedies for correcting information initially provided.

“These additional questions could lead to unacceptably long delays in processing, which are particularly harmful to applicants with strict activity timeframes or enrollment deadlines,” the letter notes, adding that no information is provided about the longer-term use, retention, or privacy protections for the information provided. The letter asks that the State Department publish an additional notice that advises on this and other information.

The letter notes that scientific exchanges, whether through long- or short-term visits or at professional society meetings, are vitally important to the United States. Many project collaboration meetings take place at conferences held in the United States, and the absence of top international talent “would be a significant problem.” It continues, “[s]cientists must periodically meet in person, and if bureaucratic hurdles for entry into the United States are too high, they will hold their meetings elsewhere, hurting U.S. economic, technological, and scientific competitiveness.” For example, the “American Geophysical Union and the American Physical Society both have strong international counterparts that hold regular conferences and meetings, and the collaborators could well turn to those venues instead.”

Moreover, the letter notes, many U.S. professional societies have significant numbers of international members, and it is important for those individuals to be able to attend the U.S. societies’ meetings. The letter cites a 2012 report by PricewaterhouseCoopers noting that nearly 1.8 million meetings (not all scientific) were held in the United States during 2009 involving “an estimated 205 million participants and generat[ing] more than $263 billion in direct spending and $907 billion in total industry output.” The attendance of international scientists at U.S. meetings and conferences “is important in terms of the intellectual content they contribute, for the benefit to the United States from the formation and sustainment of partnerships with U.S. counterparts, and in terms of benefits to the U.S. economy.”

The letter was signed by 55 U.S. professional associations and other entities, including the American Association of Collegiate Registrars and Admissions Officers, the American Society of Civil Engineers, the Association for Research in Vision and Ophthalmology, the Institute of Mathematical Statistics, NAFSA: Association of International Educators, and the Society of Engineering Science.

International Entrepreneur Final Rule Sent Back to OMB for Further Review

A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017 that would provide a significant benefit for international entrepreneurs, was recently returned to the Office of Management and Budget for further review.

The Trump administration has not yet explained its plans for the fate of the rule publicly, but it could amend, postpone, or even withdraw the rule altogether. The final rule planned to add new regulatory provisions guiding the use of parole on a case-by-case basis, with the intent to increase and enhance entrepreneurship, innovation and job creation in the United States. It would afford those international entrepreneurs an opportunity to apply for work authorization if they can demonstrate through evidence of “substantial and demonstrated potential for rapid business growth and job creation” that they would provide a “significant public benefit” to the United States. Such potential would be indicated by, among other things, “the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.”

If granted, parole would also provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) “to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.”

The final version of the rule included several positive changes over the proposed regulation, even incorporating key changes suggested by Klasko and its advocacy partners, such as a lower funding threshold, lower ownership requirements and longer periods of initial stay.   

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.