Immigration Law Update March 2016

DHS Implements VWP Changes in Response to Terrorism Concerns, Announces Further VWP Travel Restrictions

In January, the United States began implementing changes to the Visa Waiver Program (VWP) under a new law. Travelers in several categories are no longer eligible to travel or be admitted to the United States under the VWP. 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 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."

The announcement is available here.

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.

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, is available here.

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.

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."

Garfinkel Immigration Law Firm recommends filing during the first five business days in April. Contact your Garfinkel Immigration attorney for help with H-1B applications.

ABIL Urges Cautious Implementation of New Proposed "Smart I-9" Form

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.

ABIL's comments are available here. More information on ABIL can be found here.

U.S. Streamlines E-1/E-2 Treaty Trader/Investor Visa Processing in Canada

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.

For more information on these developments, click here.

State Dept. Estimates Visa Number Availability in the Coming Months

The Department of State's Visa Bulletin for March 2016 includes estimates of visa number availability (potential monthly movement) in the coming months. Estimates for the employment-based categories include:

Employment First: Current

Employment Second:
Worldwide: Current
China: Up to five months
India: Up to three months

Employment Third:
Worldwide: The rapid forward movement of this cut-off date during the past 10 months should generate a significant amount of demand for numbers. When such demand begins to materialize, it will be necessary to limit movement of this cut-off date.

China: Up to five months
India: Up to one month
Mexico: Will remain at the Worldwide date
Philippines: Up to four months

Employment Fourth: Current for most countries

Employment Fifth: This category will remain "Current" for most countries.
China-mainland born: Slow forward movement

The above projections for the employment categories indicate what is likely to happen on a monthly basis through June based on current applicant demand patterns, the Visa Bulletin explains. Recent trends in cut-off date movements are not guaranteed for the future, and it is possible that "corrective" action may be required to maintain number use within the applicable annual limits. The Visa Bulletin notes that determinations of the actual monthly cut-off dates are subject to fluctuations in applicant demand and a number of other variables.

The Visa Bulletin for March 2016 is available here.

DHS Extends TPS for Sudan

Last month, the Department of Homeland Security (DHS) announced that it was extending and redesignating temporary protected status (TPS) for South Sudan. DHS has also announced that it is extending the designation of Sudan for TPS for 18 months, from May 3, 2016, through November 2, 2017. DHS said it determined that an extension of the current designation was warranted because of the ongoing armed conflict and extraordinary and temporary conditions that prevent Sudan's nationals from returning safely.

Current TPS Sudan beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began January 25, 2016, and runs through March 25, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Sudan TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of November 2, 2017. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Sudan EADs bearing a May 2, 2016, expiration date for an additional 6 months. These existing EADs are now valid through November 2, 2016.

The notice is available here. The Federal Register notice is available here. Additional information on how to file can be found here.

Global: France

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 french_flag_in_wind.jpg 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.

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