1. Immigration Executive Order, Draft Executive Orders and H-1B Proposals
ASU – February 2, 2017
Christopher J. Brelje
(623)
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2. Copyright © 2017 Brelje and Associates
January 27, 2017 Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the US”
Three key provisions:
Suspends entry, as immigrants or nonimmigrants, of persons from seven countries referred to in INA §217(a)(12) for 90 days [Sec. 3]
U.S. Refugee Admissions Program suspended for 120 days – all nationalities [Sec. 5]
Entry of Syrian refugees suspended indefinitely [Sec. 5c]
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3. January 27th Executive Order
INA §217(a)(12) countries are:
Iran Sudan
Iraq Syria
Libya Yemen
Somalia
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4. January 27th Executive Order
Other provisions relating to 7 countries:
Countries that do not provide adequate information about their foreign nationals will remain on the “banned” list [Sec. 3e]
Secretaries of State and DHS may add countries [Sec. 3f]
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5. January 27th Executive Order
Provisions relating to Refugee Program
After 120 days, Refugee Program will resume only for nationals of countries where procedures are adequate to ensure the security and welfare of the U.S. [Sec. 5a]
After 120 days, priority is given to minority religion-based refugee claims [Sec. 5b]
Maximum refugee entries for FY2017 reduced from 110,000 to 50,000 [Sec. 5d]
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6. January 27th Executive Order
Section 3 has unclear language regarding visas and immigration benefits concerning 7 countries:
“Suspension of Issuance of Visas and Other Immigration Benefits” [section title] (Is it not just a travel ban?)
DHS, DOS and DNI are to determine information needed “…to adjudicate any visa, admission, or other benefit under the INA (adjudications)….”
“…I hereby suspend entry into the United States, as immigrants and nonimmigrants…for 90 days” (emphasis added)
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7. January 27th Executive Order
Text of Executive Order was not adequately vetted among government agencies
Unclear/contradictory language—more than a travel ban? “other immigration benefits”
No carve-out for special immigrant Iraqi translators who assisted US service people
Senator McCain: No carve-out for Iraqi pilots being trained on F-16s in the US
Inadequate or non-existent implementing guidance distributed to the field (CBP, USCIS, DOS)
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8. January 27th Executive Order
Lack of uniform enforcement in the field
CBP at land border ports of entry
CBP at airports
USCIS at local field offices, e.g. Phoenix office
USCIS at regional Service Centers
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9. January 27th Executive Order
Other provisions relating to Refugee Program
After 120 days, Refugee Program will resume only for nationals of countries where procedures are adequate to ensure the security and welfare of the US [Sec. 5a]
After 120 days, priority is given to minority religion-based refugee claims [Sec. 5b]
Maximum refugee entries for FY 2017 reduced from 110,000 to 50,000 [Sec. 5d]
During 120 days, refugees may be admitted on a case-by-case basis if in the national interest, e.g. religious minority [Sec 5e]
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10. Department of State January 27 Statement on Executive Order
All valid nonimmigrant and immigrant visas of nationals of 7 countries are “provisionally revoked”
Exception for case-by-case determination by DOS and DHS based on national interest
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Customs and Border Protection (CBP) February 1, 2017 Statement on Executive Order
CBP is complying with court orders (TROs) blocking parts of the Executive Order
CBP is working with airlines to prevent affected individuals outside the US from boarding
Entry of lawful permanent residents is in the national interest; LPR status “will be a dispositive factor in our case-by-case determinations” absent “significant derogatory information indicating a serious threat to public safety and welfare….”
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12. Courts Issue Temporary Restraining Orders
Court orders prohibiting implementation of parts of Executive Order:
New York– Jan 28 nationwide TRO prohibiting removal of valid visa holders detained at airport
California—Jan 31 nationwide TRO prohibiting removal, detaining, or blocking entry of any person with valid immigrant visa, and prohibiting cancelling of validly obtained and issued immigrant visas
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13. February 1 White House Announcement
Feb 1: White House announces:
Permanent residents no longer need a waiver to enter the country
Permanent residents are no longer considered to be covered by the Executive Order
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14. January 27th Executive Order
What about non-immigrant visa-holding nationals of 7 countries?
Outside the U.S.
Entry on nonimmigrant visa--???
H-1B, H-4, L-1, L-2, TN, TD, F-1, F-4. etc.
DOS says “provisional revocation” of visas
Inside the U.S.
Adjustment of Status??
Change of Status??
Extension of Stay??
Naturalization to USC??
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15. January 27th Executive Order
Current status of EO interpretation relating to 7 countries:
LPRs admitted with “green card”
Dual nationals admitted if travelling on different country passport
Nonimmigrants with visas - ?? - DO NOT TRAVEL
Stateside Immigrant and Nonimmigrant applications/petitions – on hold? likely delayed adjudication; file timely
Adjustment of Status pending? DO NOT USE ADVANCE PAROLE TO TRAVEL
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16. There is an unsubstantiated RUMOR of a DRAFT Executive Order
Countries that may be added to the ban:
Egypt
Lebanon
Afghanistan
Pakistan
Colombia
Venezuela
Southern Philippines (?)
Trans-Sahara (Mali)
Sulu-Sulawesi Seas Littoral
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17. Copyright © 2017 Brelje and Associates
Proposed H-1B Changes
Legislative Proposals
Increase the minimum wage for H-1B employees of “H-1B dependent” employers
Eliminate the Level One (entry level) wage in four-tier Prevailing Wage system
Replace the H-1B lottery with a preference system
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DRAFT Executive Order: “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs”
Restore the integrity of nonimmigrant worker programs (probably through fraud-detection site visits and changes to prevailing wage rules)
Allocate H-1B visas more efficiently and ensure that beneficiaries are the “best and the brightest”
Move to a merit-based system (similar to Canada’s point system)
[Changes will likely require Administrative Procedures Act regulatory process (notice and comment)]
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Possible Executive Orders revoking Obama Executive Action and/or Congressional Review Act reversal of Obama regulations
Eliminate EADs (Employment Authorization Documents) for H-4 Spouses
Eliminate OPT STEM extension – one year max instead of 3 years
Eliminate new EADs for certain employment-based candidates with backlogged priority dates
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What we do
Provide consultation regarding availability of work-authorized status for prospective employees
Obtain employment status and visas for employees
Perform immigration due diligence in M & A deals
Work with other law firms, developers and foreign nationals on E-2 and EB-5 investor cases
Counsel employers on I-9 and E-Verify best practices and conduct internal I-9 audits
Defend against ICE civil penalty I-9 proceedings
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21. Chris Brelje: cbrelje@breljelaw.com Rachel Bus: rbus@breljelaw.com
Christopher J. Brelje
3080 N. Litchfield Road
Goodyear, Arizona
(623)
Chris Brelje:
Rachel Bus:
Tara Williams:
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Arizona Legal Center
Arizona Legal Center 111 E Taylor St, Suite 120 Phoenix, Arizona ArizonaLegalCenter.org M-F 8:00a to 5:00p Call-in and walk-in welcome
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