News from the Alliance of Business Immigration Lawyers Vol. 13, No 10A • October 01, 2017

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Headlines:

1. Trump Administration Implements New Travel Restrictions -The Trump administration has announced travel and visa restrictions with respect to the countries of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, subject to “categorical exceptions and case-by-case waivers.”

2. Following Mysterious Attacks, United States Suspends Visas for Cubans, Withdraws Most Staff From Havana Embassy, Issues Cuba Travel Warning -Following still-unexplained attacks on U.S. personnel of the embassy in Havana, Cuba, that left some with severe health problems, the United States has suspended visa issuance in Cuba for all Cubans and ordered the departure of more than half of its staff from the embassy, along with their family members. The Department of State has also issued a travel warning advising U.S. citizens not to travel to Cuba.

3. Employers Must Use Form I-9 With New Revision Date, USCIS Says -Employers must use Form I-9, Employment Eligibility Verification, with the new revision date of 07/17/17 N.

4. Lawsuit Challenges Postponement of International Entrepreneur Rule -A lawsuit has been filed challenging the postponement of the International Entrepreneur Rule (IER). The rule would have permitted foreign entrepreneurs to travel to or stay in the United States to grow new businesses. Less than a week before the IER was scheduled to take effect, the Department of Homeland Security announced that its implementation would be significantly delayed and suggested that it ultimately intends to rescind the IER.

5. USCIS No Longer Accepting Petitions for One-Time Increase to H-2B Temporary Nonagricultural Visa Program Cap -USCIS is no longer accepting petitions from U.S. employers seeking to hire temporary nonagricultural workers under the one-time increase to the FY 2017 H-2B cap announced in July 2017.

6. USCIS Extends TPS for South Sudan -DHS has extended the designation of South Sudan for temporary protected status for 18 months, from November 3, 2017, through May 2, 2019.

7. USCIS Announces Termination of TPS for Sudan in November 2018 -DHS has determined that conditions in Sudan no longer support its designation for temporary protected status. Benefits for beneficiaries of Sudan TPS will be extended for 12 months to allow for an orderly transition before the designation terminates on November 2, 2018.

8. ABIL Global: Peru -This article provides brief comments on the investor visa in Peru.

9. New Publications and Items of Interest -New Publications and Items of Interest

10. ABIL Member/Firm News -ABIL Member/Firm News

11. Government Agency Links -Government Agency Links

Details:

1. Trump Administration Implements New Travel Restrictions

On September 24, 2017, President Donald Trump issued a presidential proclamation on “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The proclamation announces the following measures with respect to the countries of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, subject to “categorial exceptions and case-by-case waivers”:

  • Chad: The proclamation suspends indefinitely the entry into the United States of nationals of Chad as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  • Iran: The proclamation suspends indefinitely the entry into the United States of nationals of Iran as immigrants and nonimmigrants, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals “should be subject to enhanced screening and vetting requirements.”
  • Libya: The proclamation suspends indefinitely the entry into the United States of nationals of Libya as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  • North Korea: The proclamation suspends indefinitely the entry into the United States of nationals of North Korea as immigrants and nonimmigrants. [In a separate notice, the Department of State announced that U.S. passports are invalid for travel into, in, or through North Korea/Democratic People’s Republic of Korea.]
  • Somalia: The proclamation suspends indefinitely the entry into the United States of nationals of Somalia as immigrants. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants “should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”
  • Syria: The proclamation suspends indefinitely the entry into the United States of nationals of Syria as immigrants and nonimmigrants.
  • Venezuela: The proclamation suspends indefinitely the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures—including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations—and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas. Nationals of Venezuela who are visa holders “should be subject to appropriate additional measures to ensure traveler information remains current.”
  • Yemen: The proclamation suspends indefinitely the entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.

The proclamation also notes that entry restrictions and limitations on Iraq are “not warranted.” However, nationals of Iraq who seek to enter the United States will be subject to “additional scrutiny to determine if they pose risks to the national security or public safety of the United States.”

Exceptions. Among other things, the proclamation lists exceptions to these suspensions of entry for:

  • Any lawful permanent resident of the United States;
  • Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date (see the proclamation for details);
  • Any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
  • Any dual national of a designated country when the individual is traveling on a passport issued by a non-designated country;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa; North Atlantic Treaty Organization visa; C-2 visa for travel to the United Nations; or G-1, G-2, G-3, or G-4 visa; and
  • Any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

PROCLAMATION, which includes additional details and effective dates

RELATED ALERT FROM THE DEPARTMENT OF STATE, which includes a table summarizing the travel restrictions

SEPARATE ANNOUNCEMENT about the invalidity of U.S. passports for travel to North Korea

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2. Following Mysterious Attacks, United States Suspends Visas for Cubans, Withdraws Most Staff From Havana Embassy, Issues Cuba Travel Warning

Following still-unexplained attacks on U.S. personnel of the embassy in Havana, Cuba, that left some with severe health problems, the United States has suspended visa issuance in Cuba for all Cubans and ordered the departure of more than half of its staff from the embassy, along with their family members. The Department of State has also issued a travel warning advising U.S. citizens not to travel to Cuba.

The Department explained that at least 21 U.S. embassy employees have been targeted in attacks of unknown origin, resulting in significant injuries, including ear complaints, hearing loss, dizziness, tinnitus, balance problems, visual complaints, headache, fatigue, cognitive issues, and difficulty sleeping.

The Department said it is “looking at the possibility of [Cubans] being able to apply for visas at embassies or consulates outside of Cuba in other countries. But we haven’t actually made definitive arrangements yet. We’re continuing to look at that. But all of the kind of regular visas or ordinary visas would not be issued through Havana.”

The travel warning notes that the attacks have occurred in U.S. diplomatic residences and hotels frequented by U.S. citizens. The travel warning also notes that due to the drawdown in staff, the U.S. embassy in Havana has limited ability to assist U.S. citizens. The embassy will provide only emergency services to U.S. citizens. The warning states that U.S. citizens in Cuba in need of emergency assistance should contact the embassy by telephone at +(53)(7) 839-4100 or the Department of State at 1-202-501-4444. U.S. citizens should not attempt to go to the U.S. embassy because it suffered severe flood damage during Hurricane Irma, the warning states.

TRANSCRIPT OF RELATED PRESS BRIEFING VIA TELECONFERENCE ON SEPTEMBER 29, 2017

CUBA TRAVEL WARNING

U.S. EMBASSY IN HAVANA’S WEBSITE

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3. Employers Must Use Form I-9 With New Revision Date, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced that beginning September 18, 2017, employers must use Form I-9, Employment Eligibility Verification, with the new revision date of 07/17/17 N, to verify the identity and work eligibility of every new employee hired after November 6, 1986, or for the reverification of expiring employment authorization of current employees (if applicable). This date is found on the lower left corner of the form. Prior versions of the form are no longer valid for use. Employers who fail to use the new form may be subject to penalties.

USCIS reminded employers to continue to follow existing storage and retention rules for each previously completed Form I-9. STORAGE AND RETENTION RULES

USCIS ANNOUNCEMENT ABOU THE NEW REVISION DATE

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4. Lawsuit Challenges Postponement of International Entrepreneur Rule

Association, et al., v. Duke, challenging the postponement of the International Entrepreneur Rule (IER). The rule, which was supposed to take effect July 17, 2017, would have permitted foreign entrepreneurs to travel to or stay in the United States to grow new businesses. Less than a week before the IER was scheduled to take effect, the Department of Homeland Security (DHS) announced that its implementation would be significantly delayed and suggested that it ultimately intends to rescind the IER.

In announcing the lawsuit, AIC said, “Immigrant entrepreneurs, who bring their talents, ideas, and initiative with them to the United States often face significant barriers to obtaining permission to travel and work in the United States. The IER was promulgated to address these problems and was informed by extensive input from affected entrepreneurs, the business community, and the American people.”

Plaintiffs are prospective entrepreneur applicants under the IER or companies founded by potential applicants.

AIC, in cooperation with the Washington, DC, office of Mayer Brown LLP, filed the lawsuit against the Department of Homeland Security. Plaintiffs include the National Venture Capital Association (NVCA), which is the largest organization of venture capitalists in the United States; foreign entrepreneurs; and startup companies. The complaint alleges that the government failed to comply with the Administrative Procedure Act’s notice-and-comment requirement. Plaintiffs seek to compel the defendants to implement the IER and to begin accepting and adjudicating parole applications from international entrepreneurs. NVCA noted that its 2013 study “determined that a full one-third of U.S. venture-backed companies that went public between 2006 and 2012 had at least one immigrant founder.” NVCA also cited a 2016 finding by a National Foundation for American Policy study that “immigrants have started more than half (44 of 87) of America’s startup companies valued at $1 billion or more.”

AIC’S ANNOUNCEMENT OF THE LAWSUIT

NVCA’S STATEMENT ABOUT THE LAWSUIT

THE COMPLAINT

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5. USCIS No Longer Accepting Petitions for One-Time Increase to H-2B Temporary Nonagricultural Visa Program Cap

U.S. Citizenship and Immigration Services (USCIS) announced on September 19, 2017, that it is no longer accepting petitions from U.S. employers seeking to hire temporary nonagricultural workers under the one-time increase to the fiscal year (FY) 2017 H-2B cap announced in July 2017.

In May, Congress temporarily delegated its authority to the Secretary of Homeland Security to increase the number of temporary nonagricultural work visas available to U.S. employers through FY 2017. Then-Secretary of Homeland Security John Kelly determined that there were not enough qualified and willing U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of some U.S. businesses in FY 2017. Consequently, additional H-2B visas were made available to U.S. businesses that could establish they would likely suffer irreparable harm if they could not hire all the H-2B workers requested in their FY 2017 petitions. Some employers were also required to conduct a fresh round of recruitment efforts for U.S. workers before being allowed to petition for additional foreign workers. An additional 15,000 visas were made available under a final rule published in July.

Following the filing deadline guidance included in July’s final rule, USCIS has stopped accepting petitions and is rejecting any FY 2017 H-2B cap-subject petitions received after September 15, 2017. With the close of the petition period on September 15, USCIS announced that it has received a total request for 13,534 workers.

Petitions that have been submitted but are not approved by USCIS before October 1, 2017, will be denied, and any associated fees will not be refunded, USCIS said.

USCIS will continue to accept FY 2017 H-2B petitions for workers who are exempt from the congressionally mandated cap.

USCIS ANNOUNCEMENT

ADDITIONAL INFORMATION ABOUT HOW THE SUPPLEMENTAL FY 2017 H-2B VISAS ARE BEING USED, including information about the petitioning employers

JULY FINAL RULE

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6. USCIS Extends TPS for South Sudan

The Department of Homeland Security (DHS) has extended the designation of South Sudan for temporary protected status (TPS) for 18 months, from November 3, 2017, through May 2, 2019. A notice sets forth procedures necessary for nationals of South Sudan (or those having no nationality who last habitually resided in South Sudan) to re-register for TPS and to apply for employment authorization documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). USCIS will issue new EADs with a May 2, 2019, expiration date to eligible South Sudan TPS beneficiaries who timely re-register and apply for EADs under this extension. If a South Sudan TPS beneficiary timely re-registers and properly files an application for an EAD during the 60-day re-registration period, his or her EAD will be automatically extended for an additional period of up to 180 days from the date the current EAD expires; i.e., through May 1, 2018.

USCIS ANNOUNCEMENT

RELATED FEDERAL REGISTER NOTICE

USCIS said that more information will be posted soon HERE.

FURTHER DETAILS ABOUT THE EXTENSION OF TPS FOR SOUTH SUDAN, including the application requirements and procedures

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7. USCIS Announces Termination of TPS for Sudan in November 2018

The Department of Homeland Security (DHS) has determined that conditions in Sudan no longer support its designation for temporary protected status (TPS). Benefits for beneficiaries of Sudan TPS will be extended for 12 months to allow for an orderly transition before the designation terminates on November 2, 2018.

Current beneficiaries of Sudan’s TPS designation seeking to extend their TPS status must re-register within the re-registration period, which is expected to be published shortly in the Federal Register and HERE. Those who re-register and request a new employment authorization document (EAD) may receive an automatic extension of their expiring EAD for up to 180 days from the date their current EAD expires. If a beneficiary’s EAD request is approved, he or she will receive a new EAD with an expiration date of November 2, 2018. USCIS strongly encourages TPS beneficiaries to re-register and file their EAD applications as early as possible to avoid lapses in documentation of employment authorization.

Although TPS benefits for Sudan will no longer be in effect starting November 2, 2018, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. DHS is urging individuals who do not have another immigration status “to use the time before the termination becomes effective in November to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.”

USCIS ANNOUNCEMENT

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8. ABIL Global: Peru

This article provides brief comments on the investor visa in Peru.

On January 7, 2017, the New Law of MIGRACIONES, Legislative Decree No. 1350, was published in the Official Gazette, “El Peruano.” The new law and regulations, approved by Supreme Decree No. 007-2017-IN, have been in force since March 1, 2017.

This new immigration legislation has instituted a series of changes and the creation of new migratory statuses. One of these changes concerns investors. The new law allows a foreigner to establish, develop, or manage one or more lawful investments in Peru.

The amount of the investment and other conditions are established by regulation. Eligibility requirements include:

  1. An investment equal to or higher than 500,000.00 Peruvian Sol (PEN), equivalent to approximately US$155,275. The investment amount can be modified by Superintendence Resolution.
  2. Serving only as manager or director of a foreign person’s own company, for which he or she must comply with the corresponding labor or tax rules. This position of the foreigner is not included in quotas for the local company’s payroll, established in Legislative Decree No. 689 (Law of Hiring of Foreign Personnel) and its regulations. Under no circumstances may the foreign person support the investment through the transfer of shares.

MIGRACIONES is the authority that grants this migratory status. The Investor visa allows multiple entries. The foreign individual receives a resident permit (foreign card/carné de extranjería) for 365 days, renewable while the same conditions exist.

Procedurally, there are two alternative ways to obtain Investor status. First, an “obtainment visa process” implies that all the necessary documentation is submitted at MIGRACIONES offices in Peru; however, the applicant remains abroad initially. Once his or her visa is approved, he or she collects it from the Peruvian consulate previously chosen. Then he or she comes to Peru to finish the process. This procedure takes 30 working days from the time of initial filing. Alternatively, a “change of immigration status (in-country) process” implies that the foreign national enters Peru in tourist or business migratory status, then applies at MIGRACIONES for the Investor visa and submits the required documentation. This procedure takes 60 working days from the time of initial filing.

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9. New Publications and Items of Interest

The Alliance of Business Immigration Lawyers has published a press release on Deferred Action for Childhood Arrivals (DACA). The release notes, among other things, that “[w]hatever concerns or complaints Americans may have about immigration in general, we shouldn’t threaten the future of this group of young people who are here through no fault of their own, who pose no threat, who are not taking away anything from the rest of us… Kicking them out won’t lower the unemployment rate, or lighten anyone’s taxes, or raise anybody’s wages.”

Advisories and tips:

  • Immigration Court Practitioner’s Guide to Responding to Inappropriate Immigration Judge Conduct, by Catholic Legal Immigration Network, provides practitioners with information about the range of options available when inappropriate immigration judge conduct occurs, including how to file an administrative complaint with the Department of Justice’s Executive Office for Immigration Review.
  • Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild’s National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
  • How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTimes and ACLU.
  • Airport Lawyer is a free Web app that is intended to help ensure that travelers are treated fairly at airports. Arrivals information can be securely passed along to large groups of volunteer attorneys who have been organized to monitor arrivals.
  • Listings and links to cases challenging executive orders, and related available pleadings, are available HERE.
  • DACA Revocation Advisor, to help people determine how their Deferred Action for Childhood Arrivals (DACA) eligibility is affected by the recent Trump administration action to terminate the program in 6 months.

The latest E-Verify webinar schedule from USCIS is available HERE.

The latest 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 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, 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.

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 on Twitter: @ABILImmigration. Recent ABIL member blogs are HERE.

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10. ABIL Member/Firm News

William Stock, of Klasko Immigration Law Partners, LLP, has authored a client alert. “President Trump Issues Proclamation of Entry Restrictions as Continuation of Travel Ban”

Charles Kuck was quoted in “Deportations Slow Under Trump Despite Increase in Arrests by ICE,” published by the Washington Post.

Mr. Kuck also was quoted in “What GCs Should Know About the Latest Travel Ban,” published by Law360 and available by registering.

Robert Loughran moderated a panel on “Trade Diplomacy: Case Study on NAFTA” on September 19, 2017, at the Diplomacy Begins Here Regional Summit. The panel discussion took place at the Texas State Capitol in Austin, focused on the economic impact of NAFTA renegotiations on the Texas economy, and featured the Canadian and Mexican Consul Generals as well as the Director of the Bexar County Economic Development Department.

Foster LLP hosted a webinar and an in-person Immigration Update half-day seminar, “Explore the New Normal in Immigration Law,” held September 14 and 19, respectively, in Austin, Texas. The seminar focused on the impact of changes in both nonimmigrant and immigrant visa processes brought about by the Trump administration’s “extreme vetting” of all petitions and applications for immigration benefits.

Foster LLP hosted a webinar on September 22, 2017, “E-Verify: The Ins and Outs of Enrollment and Use.” The hour-long presentation by Partner Avalyn C. Langemeier and Senior Attorney Kari K. Blackman covered the basics of enrollment, use, and best practices for compliance.

Cyrus Mehta has authored a new blog entry. “Dealing With the Dreaded RFE: Reflections of an Immigration Lawyer”

Mr. Mehta was quoted recently in several media outlets:

Greg Siskind, of Siskind Susser PC, was quoted recently by various news outlets:

Wolfsdorf Rosenthal LLP has posted several new blog entries. “” “” “” “” “” “”

Stephen Yale-Loehr will speak on “Global Entrepreneurs in Residence: Helping Immigrant Founders Create American Jobs” on October 24, 2017, at the Welcoming Economies (WE) Global Convening 2017. The Trump Administration’s pause of the proposed International Entrepreneurs Rule to allow an alternative to the startup visa has given new emphasis to the Global Entrepreneurs in Residence (GEIR) program to pair international entrepreneurs with universities to create local businesses and entrepreneurship opportunities. This session will include national experts, as well as the experience of one WE Global member, on how these programs operate, what they bring to a local entrepreneurial ecosystem, and what local communities should consider when contemplating such an endeavor. For more information or to register.

Mr. Yale-Loehr, Carolyn Lee (of Miller Mayer), and H. Ronald Klasko will speak on a panel, “EB-5 Legislation: Where Are We?,” a webinar sponsored by EB5 Diligence to be held Wednesday, October 4, 2017, at 2 p.m. ET.

Mr. Yale-Loehr was quoted recently by several news outlets:

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11. Government Agency Links

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:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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News from the Alliance of Business Immigration Lawyers Vol. 13, No 9B • September... News from the Alliance of Business Immigration Lawyers Vol. 13, No 10B • October...