1. DHS Announces Further VWP Travel Restrictions -DHS has added Libya, Somalia, and Yemen as three countries of concern with respect to new limits on VWP travel for certain individuals who have traveled to these countries.
2. Tech, Business Executives Petition Congress To Undo New Restrictions on Visa-Free Travel -Almost three dozen technology and business executives petitioned the U.S. House of Representatives and Senate to repeal new visa provisions restricting visa-free travel to the United States for certain travelers under the Visa Waiver Program. The petitioners say the new rules are discriminatory and bad for the U.S. economy.
3. USCIS Will Accept H-1B Petitions for FY 2017 Beginning April 1, 2016 -On April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
4. ABIL Urges Cautious Implementation of New Proposed ‘Smart I-9’ Form -Among other things, ABIL members urged USCIS to delay implementing the “smart I-9” until it is fully functional in both English and Spanish.
5. U.S. Streamlines E-1/E-2 Treaty Trader/Investor Visa Processing in Canada -Registration at the U.S. Consulate General in Toronto and additional processing locations across Canada will be streamlined for employees (and their dependents) of companies with valid registrations.
6. ABIL Global: France -New security measures have been taken following the terrorist attacks of November 2015.
7. New Publications and Items of Interest -New Publications and Items of Interest
8. ABIL Member/Firm News -ABIL Member/Firm News
9. Government Agency Links -Government Agency Links
The Department of Homeland Security (DHS) announced on February 18, 2016, that it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 by adding Libya, Somalia, and Yemen as three countries of concern. DHS is limiting Visa Waiver Program (VWP) travel for certain individuals who have traveled to these countries.
Under a new law enacted by Congress in December 2015, the Secretary of Homeland Security had 60 days to determine whether additional countries or areas of concern should be subject to the travel or dual nationality restrictions under the Act. In consultation with the Director of National Intelligence and the Secretary of State, the Secretary of Homeland Security determined that Libya, Somalia, and Yemen be included as countries of concern, specifically for individuals who have traveled to these countries since March 1, 2011. The restriction on Visa Waiver Program travel does not apply to dual nationals of these three countries. DHS said it continues to consult with the Department of State and the Office of the Director of National Intelligence to develop further criteria to determine whether other countries should be added to this list.
The United States began implementing changes under the new law in January 2016. The three additional countries designated join Iran, Iraq, Sudan, and Syria as countries subject to restrictions for VWP travel for certain individuals. Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis, DHS said. As a general matter, categories of travelers who may be eligible for a waiver include individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty; on behalf of a humanitarian nongovernmental organization on official duty; or as a journalist for reporting purposes.
DHS said the latest addition of the three countries indicates “the Department’s continued focus on the threat of foreign fighters.” DHS said it was the latest step in a series of actions over the past 15 months “to strengthen the security of the Visa Waiver Program and ensure the Program’s requirements are commensurate with the growing threat from foreign terrorist fighters, many of whom are nationals of Visa Waiver Program countries.”
An updated Electronic System for Travel Authorization (ESTA) application with additional questions on travel to Libya, Somalia, and Yemen will be released in the spring to address exceptions for diplomatic and military-related travel provided for in the new law.
DHS noted that those affected will still be able to apply for visas using the regular immigration process at U.S. embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, DHS states, “U.S. embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The new law does not ban travel to the United States, or admission into the United States, and the great majority of Visa Waiver Program travelers will not be affected.”
Almost three dozen technology and business executives petitioned the U.S. House of Representatives and Senate to repeal new visa provisions restricting visa-free travel to the United States for certain travelers under the Visa Waiver Program. The petitioners say the new rules are discriminatory and bad for the U.S. economy.
Signatories to the petition include Mark Cuban, owner of the Dallas Mavericks and Landmark Theatres; Jack Dorsey, CEO of Twitter and Square; Omid Kordestani, Chairman of Twitter and former Chief Business Officer of Google; Max Levchin, Co-Founder of Paypal; Ben Silbermann, CEO of Pinterest; and others.
The petition notes that until now, citizens of the United States, Europe, Japan, South Korea, and others (38 countries in total) enjoyed a reciprocal arrangement to travel visa-free. The new law ends this right for travelers to the U.S. “based on discriminatory criteria,” the signatories note. They argue that this “invites reciprocal measures restricting U.S. citizens traveling to Europe and the other countries, potentially weakening the power of the U.S. passport for millions of U.S. citizens.”
In addition, they say that “discriminating based on national heritage is inconsistent with American values. In effect, certain provisions of the new law require visas for Europeans and other citizens with Iranian, Sudanese, Syrian, or Iraqi heritage.” The signatories likened this to Congress mandating “special travel papers for citizens based on their faith or the color of their skin.” In the balancing act between fighting terrorism and upholding American liberties, they say, “these provisions go too far.”
The signatories also said they believe the new restrictions harm U.S. business interests. “Millions of European, Japanese, and Korean citizens travel as employees, customers, and suppliers of American firms. Requiring many of them to get visas imposes bureaucratic delays on U.S. firms. This reduces the agility and liberty of U.S. firms, makes us less competitive in the global economy, and will ultimately cost jobs,” they warned.
The petition states that the signatories support the bipartisan Equal Protection in Travel Act (H.R.4380/S.2449). “We encourage Congress to enhance security via technology leadership and international cooperation without creating barriers that isolate us from our global partners,” they said.
THE PETITION, which has 1,320 supporters so far.
On April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.
USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS has used the lottery for the H-1B program for the last several years.
Premium processing for cap-subject petitions. H-1B petitioners may still continue to request premium processing together with their H-1B petitions. However, USCIS may temporarily adjust its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season.
Filing. USCIS reminds H-1B petitioners that when the temporary employment or training will be in different locations, the state where the company or organization’s primary office is located will determine the appropriate Service Center to which petitioners should send the Form I-129 package, regardless of where in the United States the various worksites are located. When temporary employment or training will be in different locations, the address on page 1, Part 1 of Form I-129 is for the organization’s primary office. When listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.
Cases will be considered accepted on the date USCIS “takes possession of a properly filed petition with the correct fee.”
The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.
The Alliance of Business Immigration Lawyers (ABIL) has submitted comments on the new proposed revised Form I-9, Employment Eligibility Verification. Among other things, ABIL members urged U.S. Citizenship and Immigration Services (USCIS) to delay implementing the “smart I-9” until it is fully functional in both English and Spanish. In its current state, they noted, the proposed “smart I-9” adds many more opportunities for employers to make mistakes. “It does not appear that USCIS has fully beta-tested the proposed fillable form,” ABIL members noted. They said they tested the form and found a number of areas where the information and guidance provided was unclear or inconsistent with other guidance.
ABIL members also noted that various changes, such as a proposed rule making changes to use of the employment authorization document for I-9 purposes, are in the works and that implementing a new form while these significant developments are in flux will add “significant confusion for employers.” ABIL members suggested a “grace period” of at least 120 days after the form is published until employers are required to use it to allow adequate time for appropriate guidance and training. They suggested that USCIS provide the fillable form as a training tool until full implementation can occur successfully.
ABIL comprises 20 of the top U.S. business immigration law firms, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 250 attorneys devoted to business immigration in 25 major U.S. cities and 25 major international cities.
As of March 1, 2016, the United States is streamlining registration for Canadian companies seeking to move employees to the United States on E-1 and E-2 (treaty trader and investor) visas. Registration at the U.S. Consulate General in Toronto and additional processing locations across Canada will be streamlined for employees (and their dependents) of companies with valid registrations.
The U.S. Consulate General in Toronto handles all company registrations for E-1 and E-2 visas in Canada. Employees of enterprises not previously registered at the U.S. Consulate General in Toronto must schedule their E visa interviews in Toronto. If a company’s registration has expired, employees (whether previously issued an E visa or not) must also apply for their visas in Toronto.
The U.S. Embassy in Ottawa and the U.S. Consulates General in Toronto, Vancouver, Calgary, and Montreal now offer E-1 and E-2 visa appointments for employees of companies with valid registrations and their dependents.
“We are confident that the expansion of E-visa adjudications for dependent family members and employees to more posts across Canada, combined with streamlined processing in Toronto, will enhance our service and help us meet the growing demand for this important visa class. Trade and investment between Canada and the United States remain critical to our relationship and to our countries’ economies. With the addition of E visa processing in Calgary, Montreal, and Ottawa, it’s never been easier to apply for a visa for Canadian investors in the United States,” said Russel J. Brown, Minister Counselor for Consular Affairs at the U.S. Embassy in Ottawa.
New security measures have been taken following the terrorist attacks of November 2015.
Within hours after the horrific terrorist attacks in France on November 13, 2015, President François Hollande declared the country to be in a “state of emergency,” which allowed the executive to move swiftly to arrest the suspected perpetrators and prevent new terrorist attacks. Measures taken included renewal of the state of emergency, a reexamination of the Schengen border rules, house arrests for mere suspicion of future wrongdoing, and dispossession of French nationality.
The State of Emergency
As set in the Law of April 3, 1955, a state of emergency can be declared in the event of imminent danger to the public following a disaster. Most member states of the European Union have similar laws, which provide exceptional powers to their executives during exceptional events.
Once declared by the Council of Ministers, the state of emergency in France gives the executive vast police powers, including carrying out arrests and searches, surveilling private information, seizing property, restricting mobility, and closing national borders. The executive can carry out these and other acts without judicial warrants, even when such warrants are otherwise mandatory, and without having to comply with the usual safeguards meant to protect the population from undemocratic conduct of its government. Fundamental civil liberties can be restricted or suspended for the duration of the state of emergency.
The initial duration of the state of emergency in 2015 was limited to 12 days. President Hollande had it extended to the end of February 2016 by an extraordinary joint vote of the Senate and the Parliament. President Hollande has stated that he intends to seek its further extension for yet another three-month period, which if approved will last through the end of May.
Although currently there is no strong criticism of the state of emergency and its renewals, the voices of the defenders of civil liberties are becoming increasingly audible.
Six weeks after the events, warrantless searches are still frequent and are carried out in a sometimes brutal manner (doors are often kicked in without warning, often in the middle of the night). The brutality (but not the frequency) is receiving negative press coverage.
The government will also put forward for vote a French version of the USA Patriot Act, which will allow it to continue surveillance of private information, maintain national border controls, place suspects under house arrest, and dispossess dual nationals of their French nationality if they are convicted of terrorism or related activity.
Schengen Area and National Borders
France had incidentally restored its national borders just before the November 13 attacks, for the security of the United Nations Climate Change Conference, or COP21, in Paris. The borders remain restored after COP21 under the state of emergency.
The Schengen agreement allows France and its other adherents to restore national borders temporarily to safeguard national interests. The French national borders may remain restored for up to two years within the framework of the Schengen agreement.
However, the restoration of national borders has not resulted in rebuilding of barriers and customs offices on each border crossing, which would involve an allocation of considerable resources. In his public speech following the November 13 attacks, President Hollande stated that 1,000 additional customs officers are to be hired and trained to guard the restored borders. The government’s message seems to be that it is preparing to guard the newly restored borders for some time to come.
Preceding the November 13 attacks in Paris, the Schengen countries were already facing border issues due to the massive and continual flow of refugees penetrating the Schengen exterior borders and then crossing the virtual national borders to try to reach one of several generous hosts, such as Germany and the Scandinavian countries. There was little consensus before November 13 on how to deal with the refugee crisis at the national and EU levels.
The November 13 attacks made national and EU-wide security the determining principle in the issue of how permeable the outer and inner borders must be. The answer now seems to be: we do not want any permeability at all, at the level of the outer Schengen border, if it entails the risk of letting in potential terrorists among the mass of refugees. This answer is loud, consensual, and on the front pages of newspapers throughout the Schengen area. The need to restore internal borders will depend on the efficiency of the outer Schengen borders in putting a stop to the unchecked flow of refugees. Until then the internal borders are being restored on an ad hoc basis.
In the months to come, it is likely that the EU border control agency, Frontex, may receive substantial resources to assist the national authorities where they need help: escorting refugee boats back to territorial waters of embarkation and managing refugees who have already entered the Schengen area. But will Frontex be able to provide a feeling of security and avoid a massive restoration of national borders within the Schengen area?
If the walls on the borders cannot be raised high enough, an alternative may be to push them further out beyond the border. This is precisely the deal the EU wants to make with Turkey. But when thought is put to this alternative, it looks more like the EU will be just buying time, and very little of it.
House Arrests of Suspects
The shock following the Paris attacks was such that no one opposed the declaration of the state of emergency. However, the government is beginning to face mild criticism for placing under house arrest persons who are suspected of having embraced the cause of militant jihad, but with no tangible proof of having committed any illegal acts. Marc Trévidic, a member of the French judiciary and an authority on antiterrorism, considers that only a very small percentage of those on the government’s long suspicion list (fichier S) are potential terrorists, and it is very difficult to distinguish them from the others. According to Trévidic, if harmless persons are treated as would-be terrorists, then they will be encouraged to become so.
House arrests are being logged and monitored by journalists. Some are being challenged in courts, and the first cancellation of a house arrest was ordered last week.
Dispossession of French Nationality
The government has proposed to dispossess dual nationals of their French nationality if they are convicted of terrorism or acts related to terrorism. The government’s proposal would have French nationals dispossessed of their French nationality even if they were born French. The proposal does require the dispossessed national to have another nationality to fall back on, to avoid creating a stateless person, which would make the proposal questionable under international conventions and treaties. For this proposal to become law, France may need to modify its constitution.
Under the proposal, a French national who has conserved or acquired another nationality may be punished first in France and then a second time by being banished to another country with which he or she may not have any ties, and with all the ensuing damage to his or her right to family life in France. If the proposal passes the French constitutional hurdle, it will still have to be acceptable under the European Convention on Human Rights.
So far President Hollande’s proposal has divided his political party (Partie Socialiste) and resulted in the resignation of his Minister of Justice, Christiane Taubira, who some say was the last socialist to leave the socialist government.
The Employee Rights and Responsibilities video is now available in 12 additional languages. The six-minute video informs employees of their rights when an employer uses E-Verify. The video, developed as an ongoing partnership with U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Securities’ Office for Civil Rights and Civil Liberties, is available in English and Spanish, both voice and Spanish. The new added languages include Arabic, Carolinian, Chamorro, German, Italian, Japanese, Marshallese, Palauan, Portuguese, Somali, Punjabi, and Urdu. Scroll down to see the links for the various languages. To view the foreign language captions, be sure that closed captioning (CC) is “ON” in the video toolbar. For more on the employment eligibility verification process, see also the updated Employee Rights Toolkit.
Four new 3-minute videos on the Systematic Alien Verification for Entitlements (SAVE) program have been released. The videos, intended for benefit-granting agencies that are not yet registered, explain the advantages of registering with SAVE for federal, state, and local benefit-granting agencies.
The latest E-Verify webinar schedule from USCIS is available HERE.
The 2015 edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The latest edition adds chapters on Ghana and Peru. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is for:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
An excerpt of the book is on the ABIL website.
The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584
ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS
H. Ronald Klasko participated as a speaker at the Los Angeles Bar Association’s Conference, “EB-5 Reboot: New Rules, New Players, New Opportunities,” on February 13, 2016. Mr. Klasko led discussions on “EB-5 Law vs. Lore” and “Nonimmigrant to EB-5.”
Klasko Immigration Law Partners, LLP, will hold a Spring Seminar on Tuesday, April 19, 2016, from 9:30 am to 2 pm at The Union League of Philadelphia, Pennsylvania. The firm is also offering a “Fundamentals of Immigration Law” session at 8:30 am for those new to the field. FOR MORE INFORMATION
Klasko Immigration Law Partners, LLP, has been chosen to be the North American Regional Representative Office of the Investment Migration Council (IMC). The IMC will now have regional representative offices in Dubai, Hong Kong, London, and New York City.
Klasko Immigration Law Partners, LLP, announced that Anusree (Anu) Nair was recently elected to partnership in the firm. Ms. Nair is head of the Investor Division of the firm’s EB-5 practice. FOR MORE INFORMATION.
Vincent Lau has made a new video, “H-1B Cap Alternatives,” which was produced by the Alliance of Business Immigration Lawyers. This and other videos and teleconference recordings.
Cora-Ann V. Pestaina, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry. “BALCA Reverses Labor Certification Denials By Upholding Real World Advertisements”
Cyrus Mehta and David A. Isaacson, of Cyrus D. Mehta & Partners PLLC, have co-authored a new blog entry. “High Skilled Worker Rule—Is There Scope for Porting on a Labor Certification?”
David Isaacson of Cyrus D. Mehta & Associates has published a new blog entry. “The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson”
Greg Siskind, founding partner of Siskind Susser P.C., has released his fifth book, The Physician Immigration Handbook, A Guide to the U.S. Immigration System for International Medical Graduates, Recruiters, and Employers. The book explains what foreign physicians need to know to apply for graduate medical training at teaching hospitals in the United States, and how they can remain to pursue their careers. It is also a resource for recruiters and employers who need to know how the U.S. immigration system works and the special rules that apply to international medical graduates. FOR MORE INFORMATION OR TO ORDER
Stephen Yale-Loehr was interviewed by Bill O’Reilly on Fox News on February 24, 2016, in a segment focusing on whether, if elected president, Donald Trump or Ted Cruz could actually deport undocumented immigrants without any hearing, as they claim. Mr. Yale-Loehr noted that the due process clause of the U.S. Constitution requires some kind of procedure, even for undocumented immigrants, and that there are already severe backlogs in immigration courts. VIDEO CLIP OF THE SEGMENT
Mr. Yale-Loehr was quoted in the February 18, 2016, edition of the Bureau of National Affairs’ BNA Daily Labor Report. He noted, among other things, that the Supreme Court’s decision on the upcoming case about the Obama administration’s executive actions on immigration could have split 5-4 in favor of the states if Justice Antonin Scalia had not died; without him, Mr. Yale-Loehr suggested, the result may be a 4-4 tie. The article notes that in case of a Supreme Court tie, there is no precedent and the lower court’s decision stands. Mr. Yale-Loehr also noted that the justices could issue a narrow opinion focusing solely on the preliminary injunction or standing without deciding the merits.
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers: