Update: Effect of new litigation in Hawaii and U.S. Supreme Court on Second Executive Order / Travel Ban 2.0

July 24th, 2017

News Release from Jewell Stewart & Pratt PC – July 24, 2017

As noted in our prior blog post, the U.S. Supreme Court has partially reinstated the Trump Administration’s second Executive Order regarding travel and refugee admissions (“EO-2”), after several lower court orders impeded its implementation. However, the Supreme Court did exempt from EO-2’s reach nationals of the six affected countries with a “credible claim of a bona fide relationship with a person or entity in the United States,” such as a “close familial relationship.”

The Supreme Court did not define what would constitute such a relationship in detail, but the Trump Administration subsequently defined it as including “a parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships.” On July 13, 2017, in new litigation regarding EO-2, the U.S. District Court for the District of Hawaii broadened this list to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and first cousins. The State Department issued a cable (available on LexisNexis) to U.S. embassies and consulates instructing them to implement this expanded definition.

The Trump Administration appealed the District Court decision. On July 19, 2017 the U.S. Supreme Court issued an order staying the order in part, and upholding it in part. The Supreme Court stayed the part of the order dealing with refugees, effectively banning refuges who are unable to establish a “bona fide relationship” with an entity in the United States even if they have a formal assurance from a U.S. resettlement agency. However, the Supreme Court declined to stay the part of the order that expanded the list of family members, leaving the District Court’s expanded definition of “close familial relationship” in effect.

The Supreme Court will hear full arguments from the parties regarding EO-2 in October 2017.

Chris Beckerson. © Jewell Stewart & Pratt PC 2017

Jewell Stewart & Pratt lawyers selected for inclusion in Super Lawyers ®

July 7th, 2017

News Release from Jewell Stewart & Pratt PC – July 7, 2017

Jewell Stewart & Pratt is pleased to announce that five of its lawyers have been selected for inclusion in Northern California Super Lawyers ® in 2017. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Phyllis Jewell, a principal of the firm and its Managing Attorney, has been selected in Super Lawyers from 2004 to 2013, 2015 to 2016, and now again in 2017. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers. Principal Claire Pratt and associate Chris Beckerson were selected as Rising Stars from 2015 to 2016, and have been selected again in 2017. In addition, associates Jennifer Carr and David Palmer have been selected as Rising Stars for the first time in 2017. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars.

Congratulations to Phyllis, Claire, Chris, Jennifer, and David!

© Jewell Stewart & Pratt PC 2017

Update: Effect of U.S. Supreme Court Order on Second Executive Order / Travel Ban 2.0

July 3rd, 2017

News Release from Jewell Stewart & Pratt PC – July 3, 2017

Executive Order 13780 (EO-2), signed by President Trump on March 6, 2017, ordered the suspension of entry by citizens and nationals of six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – for at least 90 days from its effective date of March 16, 2017. Litigation in U.S. federal courts temporarily prevented the ban from being carried out. The Trump Administration appealed these courts’ decisions and, on June 26, 2017, the Supreme Court of the United States (SCOTUS) decided to hear the Trump Administration’s appeals. Pending its full review and decision, SCOTUS partially reinstated EO-2.

The administration may now enforce the “travel ban” for nationals of the six countries who do not have a “credible claim of a bona fide relationship with a person or entity in the United States” and began doing so on June 29, 2017. According to a U.S. Department of Homeland Security (DHS) Q&A and U.S. Department of State FAQ, the new ban is expected to be implemented in the following ways:

  • New Visa Issuance: The revised ban prevents new visa issuances to citizens and nationals of the six affected countries unless they can meet the “credible claim” test. “A credible claim of a bona fide relationship with a person or entity in the United States” will be interpreted as follows:
    • Applicants seeking B (B-1 or B-2), C-1, C-3, D, or I visas will need to demonstrate that they have the required bona fide relationship in order to be exempt from the ban, or they may qualify for a waiver pursuant to the terms of EO-2.
    • A close familial relationship is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling whether whole or half, and step-relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members.
    • Qualified applicants in some nonimmigrant visa categories (such as H or L) are considered exempt from EO-2, as a bona fide relationship to a person or entity in the United States is inherent in the requirements for the visa classification, unless the relationship was established for the purpose of evading the order. Examples of such a qualifying relationship:
      • An I visa applicant employed by foreign media that has a news office based in the United States;
      • Students from the six designated countries who have been admitted to U.S. educational institutions;
      • A worker who has accepted an offer of employment from a company in the United States; or
      • A lecturer invited to address an audience in the United States.
    • Qualified applicants in the immediate-relative and family-based immigrant visa categories are exempt from the order, since having a bona fide close familial relationship is inherent in the requirements for the visa.
    • Qualified employment-based immigrant visa applicants generally are exempt from EO-2, since they have a bona fide formal, documented relationship with a U.S. entity formed in the ordinary course. (However, certain self-petitioning visa applicants, such as employment-based first preference (EB-1) applicants with no job offer in the United States, and some applicants for “special immigrant” visas, may need to demonstrate that they have a bona fide relationship with an entity in the United States or otherwise qualify for a waiver.)
    • Diversity visa applicants will need to demonstrate a qualifying relationship, or qualify for a waiver, since a relationship with a person or entity in the United States is not required for such visas.
  • U.S. Lawful Permanent Residents (LPRs, a/k/a “green card” holders) with citizenship/nationality of a restricted country: The ban does not apply to LPRs, and so LPRs who are nationals of one of the six countries are not barred from entering. However, they may expect additional screening by U.S. Customs and Border Protection (CBP) and may therefore wish to avoid international travel.
  • U.S. nonimmigrant visa-holders with visa in passport of a restricted country: Will be allowed to travel if the visa is unexpired and valid for multiple entries. With the exception of visas that were physically cancelled, visas that were revoked under the January ban, which were reinstated due to subsequent litigation, are also expressly reinstated by EO-2.
  • Multiple-Entry Visas; Expiring Visas: Note that the DHS FAQ states that “any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from seeking entry.” However, not all visas are issued for multiple entries. Therefore, anyone from one of the six countries should not travel without seeking advice regarding their current visas.
  • Dual nationals (restricted country and non-restricted country not the United States) with valid visa in passport of the unrestricted country: The new ban is not applicable to dual nationals “traveling on” a passport issued by a non-designated country. Applicants for admission to the United States at ports of entry will be treated according to the travel document they present to CBP. Applicants for visas will be treated according to the passport that they present at the interview.
  • Holders of valid “Advance Parole” document: The ban does not affect parole into the United States on a valid, unexpired advance parole document.
  • Travelers subject to the ban, holding U.S. “Global Entry / Trusted Traveler” status: The Global Entry / Trusted Traveler status of nationals of the seven restricted countries was cancelled in the days immediately following the signing of the first Executive Order; reinstatement is unclear.
  • U.S. citizens, U.S. LPRs, nationals of non-restricted countries holding valid U.S. visas: While not explicitly covered by the ban, they may expect additional screening if they have travelled to or have current or past citizenship in a restricted country.
  • Citizens/nationals of the 38 “Visa Waiver Program” (VWP) countries: May visit the United States for business or pleasure for up to 90 days pursuant to ESTA electronic clearance (no need for visa from a U.S. Consulate abroad) unless they were present in any restricted country (currently Iraq, Iran, Libya, Somalia, Sudan, Syria, Yemen) at any time on or after March 1, 2011, in which case a physical visitor visa (B-1/B-2) will be required for visits to the United States. (This restriction, effective since 12/18/2015, is not part of the Executive Order; it stems from a statute enacted by Congress under the Obama Administration.)
  • Visa applicants and travelers subject to the ban – potential waivers on basis of U.S. “national interest”: The Department of State and CBP have waiver authority to issue a visa or to permit U.S. entry, on a case-by-case basis, if denying entry during the ban would cause undue hardship, would not pose a threat to national security, and would be in the national interest. It is not clear how liberally this waiver authority will be applied.
  • Nationals of a restricted country who are permanent residents of Canada: Permanent Residents (“Landed Immigrants”) of Canada who are citizens or nationals of one of the six countries are subject to the ban. Therefore, they would need a waiver to apply for a U.S. visa at a U.S. Consulate in Canada.
  • Individuals currently in the United States with valid status: The revised ban does not revoke or cancel the status of anyone currently in the United States. It applies only to visa issuance.
  • Travel and admission procedures: The Trump Administration’s Q&A indicates that individuals who are in transit to the United States on valid visas when the ban takes effect and arrive at a U.S. port of entry can still apply for admission to the United States on their valid, unexpired visa. As with any applicant for admission, they must otherwise meet all admissibility requirements.
  • USCIS benefits requests: As with the first Executive Order, it is expected that the EO-2 will not affect USCIS adjudication of applications and petitions filed for or on behalf of individuals in the United States, regardless of citizenship or nationality. However, this has not been confirmed by the Trump Administration.

Further updates will be posted here as more information becomes available.

© Jewell Stewart & Pratt PC 2017

U.S. Supreme Court Order on Second Executive Order / Travel Ban 2.0

June 27th, 2017

News Release from Jewell Stewart & Pratt PC – June 27, 2017

On June 26, 2017, the Supreme Court of the United States (SCOTUS) decided to hear the Trump Administration’s appeals from the decisions of the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals, related to the administration’s second Executive Order regarding travel and refugee admissions (“EO-2”). SCOTUS will hear arguments from the parties in October 2017.

In addition, SCOTUS partially reinstated EO-2 by staying parts of the injunctions ordered by the lower federal courts. The administration may now begin enforcing the “travel ban” for nationals of six countries – Iran, Libya, Somalia, Sudan, Syria, and Yemen – who do not have a “credible claim of a bona fide relationship with a person or entity in the United States.”

How this relationship requirement will be implemented is not immediately clear. However, the American Immigration Council’s advisory, “Who Will and Won’t Be Impacted by the Travel Ban After the Supreme Court’s Decision,” provides a helpful early analysis. The administration is expected to begin applying the travel ban in this limited fashion on June 29, 2017.

Chris Beckerson. © Jewell Stewart & Pratt PC 2017

Ninth Circuit Decision on Travel Ban 2.0

June 12th, 2017

News Release from Jewell Stewart & Pratt PC – June 12, 2017

On June 12, 2017 the U.S. Court of Appeals for the Ninth Circuit issued an order upholding the District Court’s decision to block President Trump’s second Executive Order regarding travel and refugee admissions (i.e., “Travel Ban 2.0”).

The Ninth Circuit’s order states that “the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress” and that “the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination.” The court affirmed the lower court’s decision to enjoin the travel ban and prevent suspension or limitations to the refugee program. However, the court also vacated the lower court’s decision to prevent the government’s internal reviews of visa issuance procedures.

The Ninth Circuit’s decision follows on the heels of the Fourth Circuit’s May 25, 2017 decision also blocking the ban. The administration is already seeing U.S. Supreme Court review of the Fourth Circuit decision.

© Jewell Stewart & Pratt PC 2017

Update: State Department now using Form DS-5535, Supplemental Questions for Visa Applicants

June 5th, 2017

News Release from Jewell Stewart & Pratt PC – June 5, 2017

As noted in our prior post, the Department of State recently published a Notice of request for emergency approval by the Office of Management and Budget (OMB) for its new form, Form DS-5535, Supplemental Questions for Visa Applicants. The form was designed to collect extra information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.

According to a news report from The Washington Post, Form DS-5535 was approved by the OMB and has been in use at U.S. embassies and consulates since May 25, 2017. A copy of the form is currently available on the U.S. Embassy and Consulates in Turkey website. The extra information it collects includes:

  • Countries visited over the last fifteen years
  • Email addresses used in the past five years
  • Social media handles and aliases used in the past five years

Form DS-5535 is authorized on an emergency basis through November 2017, but as The Washington Post article notes, it is expected to be authorized on a permanent basis.

© Jewell Stewart & Pratt PC 2017

USCIS reports 27.7% increase in applications for U.S. citizenship

June 4th, 2017

News Release from Jewell Stewart & Pratt PC – June 4, 2017

On April 30, 2017, U.S. Citizenship & Immigration Services (USCIS) released data related to the number of applications and petitions it processed in the first quarter of its 2017 fiscal year (October 1, 2016 to December 31, 2016). The number of N-400 applications for naturalization was 239,628, compared with 187,635 for the same period in the prior fiscal year – an increase of 27.7%.

Current and historical USCIS data on Form N-400 applications can be found at the USCIS website here. Further coverage of the spike in naturalization applications can be found in the May 30, 2017 edition of the Daily Journal legal newspaper, for which Jewell Stewart & Pratt PC principal Claire Pratt was interviewed and quoted.

© Jewell Stewart & Pratt PC 2017

Department of State plans to heighten screening and vetting of visa applicants: Update

May 8th, 2017

News Release from Jewell Stewart & Pratt PC – May 8, 2017

As noted in our prior blog post, a Department of State cable sent by Secretary Tillerson on March 17, 2017 provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.

On May 4, 2017, the Department of State published a Notice of request for emergency OMB approval and public comment on a new Form DS-5535, Supplemental Questions for Visa Applicants. This form would collect information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility. The information includes:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former
  • spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

The Notice addresses the novelty of this type of form of data collection by the Department of State:

[m]ost of this information is already collected on visa applications but for a shorter time period, e.g. five years rather than fifteen years. 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 new for the Department of State, although it is already collected on a voluntary basis by the Department of Homeland Security (DHS) for certain individuals. Regarding travel history, applicants may be requested 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.

The Notice also estimates number of visa applicants that will be affected by this new data collection — 65,000 — and the effects of failure to provide the information requested:

The estimated number of respondents represents the estimate of relevant State Department officials that 0.5% of U.S. visa applicants worldwide, or in the range of 65,000 individuals per annum, will present a threat profile, based on individual circumstances and information they provide, that will lead U.S. consular officers at posts around the world to conclude the applicant warrants enhanced screening that takes into account the information that is proposed to be collected. The estimate will be updated in the next request to continue collecting the information based on experience reported by overseas posts. Failure to provide requested information will not necessarily result in visa denial, if the consular officer determines the applicant has provided a credible explanation why he or she cannot answer a question or provide requested supporting documentation, such that the consular officer is able to conclude that the applicant has provided adequate information to determine the applicant’s eligibility to receive the visa.

Addressing the subject of social media and the rights of visa applicants, including their privacy, the Notice states:

The collection of social media platforms and identifiers will not be used to deny visas based on applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation. …

Consular officers will not request user passwords and will not attempt to subvert any privacy controls the applicants may have implemented on social media platforms. Consular officers are directed not to engage or interact with individuals on or through social media; not to violate or attempt to violate individual privacy settings; and not to use social media or assess an individual’s social media presence beyond established Department guidance.

Comments are due on May 18, 2017. If the emergency approval is granted, it is only valid for 180 days.

© Jewell Stewart & Pratt PC 2017

Diversity Visa Lottery Program entrants can check status online now

May 2nd, 2017

News Release from Jewell Stewart & Pratt PC – May 2, 2017

From now through September 30, 2017, entrants in the DV-2018 Diversity Visa Lottery may check the status of their entries through the State Department’s Entry Status Check website.

Entry Status Check is the only means by which the State Department will notify DV-2018 entrants of their selection. It will give winners instructions on how to proceed with their application for U.S. permanent residence, and will provide them with the date, time, and location of their immigrant visa interview.

For general information about the annual Diversity Visa Lottery, visit the State Department’s Diversity Visa website.

© Jewell Stewart & Pratt PC 2017

 

USCIS policy memorandum regarding use of Computer Programmers occupation in H-1B petitions

April 28th, 2017

News Release from Jewell Stewart & Pratt – April 28, 2017

On March 31, 2017, U.S. Citizenship & Immigration Services (USCIS) released a policy memorandum (hereinafter, “the new memo”) explicitly rescinding a prior memo on H-1B computer-related positions, and thereby reinforcing current USCIS practice related to the use of the Computer Programmers occupation code in H-1B petitions. This post provides background information and discusses how future H-1B petitions will be affected.

In order to obtain an H-1B visa for a foreign worker, the petitioning employer must show that the position that the worker will fill requires the application of a body of highly specialized knowledge, which must require the attainment of bachelor’s degree or higher in a specific field. USCIS determines whether this is so in part by reference to the Department of Labor (DOL)’s Occupational Outlook Handbook (OOH), which breaks jobs down by broad occupational categories and provides general information about each one, including whether a bachelor’s degree or higher in a specific field is required to perform typical job duties.

Every H-1B petition must be accompanied by a Labor Certification Application (LCA), in which the petitioning employer attests to the terms and conditions of the foreign worker’s proposed employment. The LCA also requires the petitioner to assign an appropriate occupation, from DOL’s list of occupational categories noted above, to the role. The occupation assigned plays an important role in the H-1B petition process: in addition to providing USCIS with information about the level of education typically required for an occupation, DOL data collected for each occupation is used to set the sponsored position’s prevailing wage – a floor beneath which the actual salary paid to the foreign worker cannot go.

DOL’s list of occupations includes a number of computer-related occupations, including:

  • Software Developers, Applications
  • Software Developers, Systems
  • Computer Programmers

The wage data DOL provides for each occupation includes an entry-level annual wage. For these occupations it is $80,184, $96,138, and $67,974, respectively, for San Francisco in 2016-2017. This lower wage for the Computer Programmers code may incentivize its use in an H-1B petition, but the new memo describes a policy that is already discernible in recent USCIS practice – that the agency does not consider Computer Programmers an appropriate occupation for a position sponsored for a H-1B petition, and choosing it may well trigger a Request for Evidence or denial.

One reason for this, the new memo points out, is that according to the OOH a bachelor’s degree in a particular field is not required to perform the typical duties of a Computer Programmer (unlike the typical duties of the Software Developers listed above). If a role for which an H-1B petition is filed falls within an occupation not requiring such a bachelor’s degree, the sponsoring employer will have difficulty convincing USCIS that it is an appropriate role for an H-1B visa. While the old UCSIS memo appeared to allow for the approval of petitions using the Computer Programmer occupation code, the new memo finds that the old memo misquoted the OOH and thereby allowed for approved visa petitions in inappropriate circumstances – and also that the old memo, issued in 2000, is effectively “obsolete” in today’s technological context.

H-1B petitions using the Computer Programmers occupation code already faced a challenge at USCIS, but the new memo effectively closes off its use in the vast majority of future cases. Sponsoring employers and their counsel can expect officers to take a harder line against such petitions moving forward, and may therefore consider whether using the code in an H-1B petition makes business sense – especially because employers’ actions in this area are unlikely to receive the benefit of the doubt from the current administration.

© Jewell Stewart & Pratt 2017