President Trump unveiled his plan to “transform” the US immigration system, during a speech given at the White House on May 16, 2019. He emphasized two goals for his plan: “First, it stops illegal immigration and fully secures the border.  And, second, it establishes a new legal immigration system that protects American wages, promotes American values, and attracts the best and brightest from all around the world.” In his remarks, he addressed legal immigration, including the path to permanent residency: “We will replace the existing green card categories with a new visa, the Build America visa,” to be based on a points-based selection system. Read the speech here.

Mayer Brown’s DC-based litigation team secured a victory when The Middle District of North Carolina issued a nationwide injunction barring the government from applying a 2018 policy memorandum released by the US Citizenship and Immigration Services, which purported to fundamentally alter how “unlawful presence” is calculated for the more than a million people present in the US on F, J, and M visas. This includes virtually all of the nation’s international students as well as recent graduates working at American companies. The Trump administration policy would have backdated “unlawful presence” calculations, which would have caused tens of thousands of individuals to be barred from reentering the country for periods of three and 10 years due to technical violations. A consortium of colleges and universities retained Mayer Brown to devise a strategy to oppose this action. The team included partner Paul Hughes, who argued the motion, and partner Michael Kimberly and associate Andrew Lyons-Berg, who assisted with briefs.

A legal battle over the future of hundreds of thousands of individuals presently in the United States based upon Temporary Protected Status (“TPS”) continues following the Trump administration’s steps to end TPS for certain individuals.

What is TPS?

The United States provides TPS to nationals of certain countries based upon conditions in the country that temporarily prevent the country’s nationals from returning safely, such as ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. At present, 10 countries are designated for TPS: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. A May 2018 report from US Citizenship and Immigration Services noted that 437,402 individuals held TPS status as of December 31, 2017. Continue Reading Legal Battle Over Temporary Protected Status Continues

On April 22, 2019, the Department of State published a final rule setting out procedures that allow consular officers to discontinue granting visas to nationals of a country subject to sanctions under § 243(d) of the Immigration and Nationality Act.

Section 243(d) provides that—when notified by the Secretary of Homeland Security that a foreign country government has denied or unreasonably delayed accepting an alien who is the citizen, subject, national, or resident of that country and is subject to a final order of removal from the United States— the Secretary of State shall order consular officers in that foreign country to “discontinue granting” immigrant visas, nonimmigrant visas, or both to citizens, subjects, nationals, or residents in that country. The Secretary of State imposes these visa sanctions by issuing an order to consular officers that describes the category or categories of visas and applicants subject to discontinuation of visa grants.

Continue Reading New Department of State Rules Empower Consulates to Discontinue Visa Issuance to Nationals of Countries Sanctioned under INA 243(D)

Effective May 1, 2019, the US Embassy in Tel Aviv will begin accepting E-2 visa applications filed by Israeli citizens.  This long-awaited announcement comes close to seven years after President Obama signed legislation in 2012 implementing a bilateral investment treaty with Israel on the condition that Israel provide reciprocal immigration status for American investors.  The Israeli government did not approve the reciprocal agreement until 2014, and it took an additional four years for both the Israeli and US governments to agree to the reciprocal nature of the visas.

A ceremony will be held on May 6, 2019, to commemorate this historic accomplishment.

On April 10, Mayer Brown held the latest in a series of interactive workshops to assist employers in responding to the impending changes in free movement.  Alongside a practical and useful discussion on the measures employers can take in the face of the continued uncertainty regarding Brexit, we shared a ‘decision tree’ setting out current options in the UK in the event of a ‘Deal’ or ‘No Deal’ Brexit.

On April 11, 2019, US Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of H-1B petitions needed to reach both the annual 65,000 regular cap and the 20,000 master’s cap.  USCIS received 201,011 H-1B petitions during the period of April 1-5, 2019, which is an increase of nearly 11,000 petitions compared to the previous year’s H-1B cap filing window. 

 USCIS also announced that it completed the regular and master’s cap lotteries to select petitions for processing under the annual cap.  USCIS will send receipt notices to petitioners and their counsel for those cases selected in the lottery and will return all unselected petitions along with their filing fees.  Those mailings will likely take several weeks to complete.

 Additional information related to H-1B cap-subject filings may be made publicly available via the USCIS H-1B Employer Data Hub in Q1 of Fiscal Year 2021, which begins in October 2020.  This Hub, which was launched on April 1, 2019, provides information related to H-1B petitions processed by the agency, including information on the number of petitions filed, cases approved, and denials issued.  USCIS has reported that the agency will provide cumulative quarterly updates and annual releases of H-1B petition data, and anticipates updating the H-1B Employer Data Hub quarterly.

 

 

The White House appears to be eyeing the former head of a well-known anti-immigration group, the Federation for American Immigration Reform, Julie Kirchner, to take the helm of US Citizenship & Immigration Services, the agency within the Department of Homeland Security charged with administering immigration and naturalization benefits. Kirchner, who joined the administration shortly after the president took office, currently serves as USCIS Ombudsman, the office tasked with resolving complex individual case issues, as well as providing recommendations for improvement in the administration of overall case processing.

Continue Reading DHS Shake-Up May Lead to Change in USCIS Leadership

On Friday, April 5, 2019, US Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of H-1B petitions needed to reach the annual 65,000 regular cap, making 2019 the seventh year in a row in which the cap was reached within the first five working days of April.  USCIS has not yet announced whether it has received enough petitions to meet the US advanced degree exemption (or “master’s cap”) for 20,000 petitions.

Per the final rule published on January 31, 2019, if USCIS has received a sufficient number of petitions to meet both the bachelor’s degree quota and US advanced degree exemption, the agency will first conduct a random lottery to select petitions needed to meet the regular cap, and will then conduct a second lottery to select petitions to meet the master’s cap.  The agency will reject and return filing fees for all unselected petitions.

We will report further on the H-1B Cap as additional information becomes available from USCIS.