With just hours to spare in order to avoid a government shutdown, the House and Senate approved on December 21 a short-term continuing resolution (CR) funding federal activities through January 19. The CR was approved in the House in a 231-188 vote, and in the Senate by a vote of 66-32. With passage of the CR, Congress has departed for the holiday break and is set to return on January 3. The CR extends the current authorization for the EB-5 Immigrant Investor Program while congressional leadership and interested stakeholders continue to negotiate a long-term measure to reform and reauthorize the program. A long-term reauthorization is unlikely to move as a stand-alone bill and could be included in any spending measure approved in January. Another option for a legislative vehicle would be immigration reform legislation, which has been highlighted by Senate Majority Leader Mitch McConnell (R-KY) as an opportunity for bipartisan cooperation in 2018.
On Monday, December 4, 2017, the U.S. Supreme Court issued two separate, but related, orders staying lower courts’ preliminary injunctions against President Trump’s most recent travel ban (see our previous alert). The practical impact of these Supreme Court orders is that the latest travel ban reinstates President Trump’s Presidential Proclamation of September 24, 2017.
Continue Reading Two Supreme Court Orders Reinstate Trump’s Travel Ban
On December 1, 2017 Judge James Boasberg of the U.S. District Court for the District of Columbia granted summary judgment to the National Venture Capital Association (NVCA) in its challenge to a regulation published by the Department of Homeland Security (DHS) delaying the implementation of the International Entrepreneur Parole (IEP) Rule. The IEP regulation, published in the last days of the Obama administration, aimed to provide an immigration option for foreign entrepreneurs. A summary of the IEP program appears here. The new program was scheduled to take effect on July 17, 2017, but on July 11, 2017, DHS published a rule in the Federal Register delaying the implementation of the program until March 2018, and stating DHS’s intention to rescind the IEP regulation entirely. Judge Boasberg ruled that the government violated the Administrative Procedure Act by summarily delaying the implementation of the program without publishing a full regulation seeking notice and comment from the public.
Continue Reading National Venture Capital Association Wins Lawsuit Challenging Delay of Implementation of International Entrepreneur Parole Rule
On November 13, 2017, the 9th U.S. Circuit Court of Appeals in San Francisco partially granted an emergency request by the United States government to allow the travel ban issued by President Trump on September 24, 2017 (see our previous alert) to go into effect. This most recent travel ban had been temporarily enjoined by the U.S. District Court for the District of Hawaii.
The Appeals Court’s decision allows, at least temporarily, the ban on entry to the U.S. of people from Chad, Iran, Libya, Somalia, Syria and Yemen who do not have a qualifying family or institutional connection to the U.S. Those who do have a qualifying relationship are still eligible to come to the U.S. Grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins in the U.S. constitute qualifying familial relationships. Formal documented relationships to a U.S.-based entity, such as a university or employer in the U.S. may also qualify to exempt individuals from the travel ban.
The U.S. 9th Circuit is scheduled to hear oral arguments on the case to block the ban on December 6th. An appeal to a similar injunction on the implementation of the travel ban is due to be heard by the 4th U.S. District Court of Appeals in Richmond, VA on December 8, 2017.
As this issue continues to evolve, we will provide further updates following breaking developments. If you have questions about this most recent development relating to the travel ban, please contact your Mintz Levin attorney.
In early October, we reported that US visa processing in Turkey had been suspended amid security concerns, and that the government of Turkey had responded with a suspension of visa processing for US citizens.
As of November 11, 2017, the US Mission to Turkey announced that it has resumed nonimmigrant (temporary) visa processing at posts in Turkey on a limited basis, with a reduced number of visa appointments available. Individuals who have an appointment scheduled for a future date may attend that appointment unless they are notified that the appointment has been cancelled. Appointments cancelled as a result of the earlier suspension may be rescheduled through the online consular appointment system.
Individuals from Turkey who have valid US visas may continue to travel to the United States.
The Turkish Embassy in Washington, DC has also announced the resumption of visa processing for US citizens on a limited basis at its diplomatic and consular missions in the United States.
The information currently available on this situation is quite limited, but Mintz Levin will monitor the situation and provide updates as they become available. In the meantime, please contact your Mintz Levin immigration attorney with any questions.
With all eyes in Washington focused on tax reform, let’s not forget that there is a hard deadline approaching to address funding of federal activities with the current continuing resolution (CR) set to expire soon. The CR has been in effect since the start of the current fiscal year on October 1 and runs through December 8. This CR is the current vehicle for extension of the EB-5 Immigrant Investor Program, and is a temporary measure.
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The Trump Administration is evaluating potential reductions to U.S. cultural exchange programs that allow young people from across the world the opportunity to work temporarily in the US. The potential cuts would impact five programs that are part of the J-1 visa exchange visitor program.
The review of these cultural exchange programs is part of the President Trump’s “Buy American and Hire American” executive order issued in April. This order seeks to protect American workers by prioritizing their abilities in the U.S. labor market while directing the appropriate government agencies to review current U.S. immigration policies and procedures. The impacted J-1 programs include the Summer Work Travel Program, the au pair program, as well as programs geared towards camp counselors and interns. Other J-1 visa programs are not under scrutiny such as those focused on educational exchange for college students.
This summer, bipartisan members of both the House and the Senate wrote to President Trump explaining the importance of the summer work travel program for both students and the small businesses that utilize these workers. Small businesses such as amusement parks, resorts, and restaurants across the country rely on the Summer Work Travel Program participants to adequately staff their seasonal job openings. Without the Summer Work Travel Program, these businesses would not have the necessary labor force to satisfy their consumer demand during the busy summer months. These businesses may be forced to shorten their hours or offer fewer services causing economic ramifications for many seasonal businesses.
While no decisions have been made on the future of these visa programs, some of the options include eliminating the programs or imposing new regulations on companies seeking to employ program participants. Regarding the potential cuts, a White House official stated that “presently, we continue to implement the J-1 visa programs at the same levels we have for the past few years, and we appreciate the support that American businesses have shown for the program and its value to their local communities.”
Cuts to these programs could have economic implications and would eliminate a major facilitator of cross-culture exchange between U.S. citizens and those participating in the programs—the overriding policy goal of the J-1 program. As we’ve seen with recent diplomatic issues between the U.S. and Russia, cuts in the eligibility of foreigners to enter the U.S. on this program could result in reciprocal cuts from other countries in the eligibility of U.S. citizens to participate in their counterpart programs.
In a continuation of the diplomatic tit-for-tat with Russia, the U.S. Embassy in Moscow announced on Monday, August 21, 2017, that it would suspend issuance of nonimmigrant visas for eight days starting August 23rd. Nonimmigrant visa issuance will resume at the Embassy on September 1st, but will be suspended indefinitely at other posts in Russia.
The Embassy’s statement cites the Russian government’s cap on personnel at the U.S. mission there as the reason for this decision. Nonimmigrant visa appointments already scheduled for this time are being cancelled and notifications sent to applicants. Applicants with cancelled appointments will have to reschedule at the Embassy in Moscow for a future date regardless of their location in Russia. For incoming university students, the Embassy plans to release a block of appointments to apply for F-1 and J-1 visas in early September.
This suspension of nonimmigrant visa issuance does not directly impact immigrant visa processing, but staffing issues may dictate the need to reschedule some of these appointments. Impacted immigrant visa applicants will be notified of any changes to their scheduled appointment times.
On August 2, 2017 Republican Senators Tom Cotton (AR) and David Perdue (GA) unveiled an immigration bill titled The Reforming American Immigration for a Strong Economy Act (RAISE Act). While the stated purpose of this bill is to increase skilled immigration to the U.S. and protect the American workforce, it would do neither of these things. Indeed, the effect of this bill would not be neutral – it would do great injury to the United States.
This bill purports to completely revise the U.S. immigration system by eliminating ALL family-based legal immigration categories except for spouses and minor children of citizens and permanent residents. Even within this limited category, it would change the cutoff in the definition of a child from 21 to 18 years of age. It includes an extremely limited grandfather provision for applications previously filed by visa applicants in categories which would no longer be included in the immigration law. It adds a new temporary visa category for parents of U.S. citizens, but even if the parents were issued temporary visas to come to the U.S. (for up to 5 years) they would not be authorized to work in the U.S. for that entire period.
The categories of family-based immigration that would be completely eliminated by this bill include parents of U.S. citizens, adult, unmarried sons and daughters of U.S. citizens and their minor children, unmarried sons and daughters of permanent residents, married sons and daughters of U.S. citizens, and siblings of U.S. citizens.
The bill would also completely eliminate the Diversity Visa Program, which grants up to 55,000 immigrant visas each year to people from countries around the world whose countries have been underrepresented in our immigrant pool. The Diversity Visa Program is important because it underscores that we value diversity in our country. Through this program we have welcomed immigrants from around the world who add greatly to our culture.
The bill also cuts refugee admissions to 50,000 per year. This is less than half of the number of refugees the United States had agreed to accept in 2016. How we approach refugee admissions and the manner in which we treat those who have fled unspeakable horrors speaks volumes about who we are as a country. Our refugee program is extremely strict and refugees must pass extensive background checks before being approved to come to the U.S. The vetting process typically takes many years. The combination of the moral and policy imperative to welcome refugees along with the strict vetting process that already exists, is a reason to raise, not lower, the number of refugees admitted to the U.S.
Finally, the bill sets out a points-based system for immigrating to the U.S. that completely ignores the needs and input of U.S. employers. Individuals would have to submit applications claiming how many points they can prove, and only if they meet the threshold number of points to be “selected” by the government to apply for an immigrant visa, would they then submit a letter from a potential U.S. employer to verify that a job is waiting for them. The points that the applicant can prove will also be reduced if the applicant’s spouse would not independently meet the threshold number of points to qualify on his or her own.
This is a punitive system and it does not recognize the reality that U.S. employers typically employ foreign workers on temporary work visas, and once these employees have proved themselves in their jobs, the employers sponsor them for permanent status.
Lower-skilled immigrants would have no chance to immigrate to the U.S. unless they had a qualifying family relationship to a U.S. citizen or permanent resident. Employers of both high-skilled and lower skilled workers care about the value that an employee can add to their organization and deserve a say in the employment-based immigration process.
Foreign students and those who have graduated from U.S. colleges and universities are ignored in this bill, as are artists, writers, musicians, entertainers and others who under existing law can immigrate if they can show they have risen to the top of their fields.
In this bill, foreign investors would face a higher investment threshold than exists currently and they would be held to a stricter standard for day-to-day involvement in the companies in which they have invested.
While the sponsors of the bill have said that its points-based system is modeled on the immigration programs in Australia and Canada, in fact those countries’ immigration programs are more generous and both Canada and Australia admit a much larger percentage of immigrants relative to the size of their populations.
We admit a tiny percentage of new immigrants to the U.S. relative to the size of our population. In 2013, new immigrants to Canada equaled .74 percent of Canada’s population. In the same year, new immigrants to Australia equaled 1.1 percent of the population. Yet new immigrants admitted to the U.S. in 2013 accounted for just .31 percent of our population.*
If the RAISE Act truly was intended to model Canada’s or Australia’s skills-based immigration systems, then it would need to increase the number of annual employment-based green cards by many hundreds of thousands of green cards per year.
This bill would not strengthen the U.S. It would weaken our country by separating families, reducing diversity, and turning away the types of immigrants that enhance our society and our economy.
* All statistics cited in this post are from Alex Nowrasteh’s article “Sens. Cotton and Perdue’s Bill to Cut Legal Immigration Won’t Work and Isn’t an Effective Bargaining Chip,” published by the Cato Institute on August 2, 2017.
Doug Hauer, Member, will be a featured panelist at the National LGBT Bar Association’s annual Lavender Law conference and career fair on August 2-4, 2017 in San Francisco. Mr. Hauer’s panel, “Immigration Laws and Crossing Borders: What Multinational Same-Sex Couples Need to Know about Migrating the Globe,” will discuss legal developments relating to the accessibility of immigration benefits for same-sex couples globally, with a particular focus on legal developments and related case law in the United States.
*Read our full announcement here.