In another example of increased restriction on the rights of non-U.S. Citizens, on Thursday, April 27, the Department of Homeland Security (“DHS”) published a policy memorandum limiting the privacy rights of immigrants and foreign nationals under the Federal Privacy Act of 1974.  This new guidance was issued to bring DHS policy in line with President Trump’s January 25 executive order.

The Privacy Act was established to govern the collection, maintenance, use and dissemination of personally-identifiable information maintained by federal agencies.  The Privacy Act, with specific exceptions, prohibits disclosure of such records without the consent of the individual.  It also provides individuals a means to access and amend their records.

Previous DHS guidance stated that such personally-identifiable information would be treated the same, regardless of citizenship.  However, consistent with the January 25 executive order, the new guidance provides that immigrants and nonimmigrant foreign nationals may not utilize these provisions and may only access their information through a request made pursuant to the Freedom of Information Act (FOIA).  Additionally, they may not request amendments of their records.  Furthermore, in connection with the new guidance, DHS stated that it permits the sharing of such information about immigrants and nonimmigrant foreign nationals from agency records with federal, state and local law enforcement.

In response to the current Administration’s “citizen-centric” policies, we are seeing an increased interest in applications for naturalization by U.S. Lawful Permanent Residents.

As foreign national employees come back from summer vacations and travel abroad, one of the most overlooked immigration documents and pitfalls is Form I-94.  If Form I-94 is issued for a shorter validity period than the maximum allowed or previously approved in a visa category, the traveler will have to travel out of the country or file an extension of status by the date on the I-94.  Either option may be a burden monetarily and logistically.

Continue Reading Back to Work from Travel Abroad? Check Your Form I-94!

In an update to our post from January 25, 2016, the U.S. Department of Homeland Security on Thursday further restricted visa-free travel to the U.S. for people who have traveled to Libya, Somalia, and Yemen. If visited in the last five years, since March 1, 2011, an otherwise eligible individual is precluded from using the Visa Waiver Program to enter the U.S. for business or tourism. Those travelers to Libya, Somalia, and Yemen must apply for a nonimmigrant visitor’s visa at a U.S. consular post abroad, where they will be subject to the normal vetting process for U.S. visas. The restriction on people who have visited Libya, Somalia, and Yemen come as part of DHS’s implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act that was enacted as part of the year-end spending bill. Continue Reading Visa-Waiver Program Further Restricted for Travelers of Libya, Somalia, and Yemen

Mayor Bill de Blasio and the Commissioner and Chair of the New York City Commission on Human Rights Carmelyn P. Malalis announced on February 9, 2016 that the Commission would begin accepting requests for and issue U and T visa certifications.  Continue Reading The New York City Commission On Human Rights Becomes The First And Only Anti-Discrimination Agency In A Major U.S. City To Provide U And T Visa Certifications

This is part 2 of our analysis of the proposed rule published by DHS on December 30, 2015, addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants.

Proposed Rule Focus: Nonimmigrant Visas and EADs

In the previous post we focused on the potential benefits and consolidation of current policy for individuals already in the permanent residency process. This post will focus on the proposed policies for nonimmigrant visa holders who are not currently sponsored for an immigrant visa and employment authorization document changes. Many of the details in the proposed rule are currently executed under individual memos or practice. This rule addresses several of individually small issues, but taken together is intended to constitute an overall policy of increased flexibility and fairness in the U.S. job market for immigrant and nonimmigrant workers. Continue Reading DHS Proposes New Rule for Increased Job Flexibility: Part 2

The recent attacks in Paris and San Bernardino are going to result in increased security checks for visa applicants at U.S. consular posts. We also anticipate Congress to at least review the Visa Waiver Program for potential changes, based on President Obama’s address to the nation. Referencing one of the San Bernardino terrorists who allegedly had come to the U.S. on the Visa Waiver Program (there is also reporting that she came to the U.S. under the K-1 visa program but we cannot verify the facts), Obama called for Congress to look carefully at the rules of the program. We don’t know what this means, but we are likely to see more restrictions to the Visa Waiver eligibility criteria in the coming months. There will certainly be more interest in Congress to make reforms relating to security and visas generally.

Continue Reading Post Paris and San Bernardino Attacks: Visa Policies Under More Scrutiny

On June 11, 2012, President Obama signed legislation that would add Israel to the list of countries eligible for nonimmigrant E-2 treaty investor visas. This was a substantial positive development in the creation of stronger commercial ties between the United States and Israel. The E-2 visa should enhance and facilitate economic and commercial interaction between the United States and Israel. We have been in a three-year holding pattern, though, waiting for the Israeli government to create a reciprocal visa for United States citizens wishing to invest in businesses and live in Israel.

Continue Reading E-2 Visas May be Available to Israelis by end of 2015

The diversity visa green card lottery has been an important part of U.S. immigration law for the last 20 years.  It allows 55,000 foreign nationals to immigrate each year and was implemented to fulfill the worthy goal of increasing the diversity of immigrants in the U.S.  This policy is implemented each year after government analysis of the countries of origin of immigrants in other green card categories and then allocating the 55,000 green cards allowed by law amongst those underrepresented countries of origin.

There is another immigration lottery that occurs around this time of year for one of the most essential visa categories to U.S. business—the H-1B.  Surprisingly, and unlike the diversity visa lottery, this lottery is not based on careful analysis and on no important policy.  It is based only on an annual arbitrary quota.  This yearly lottery is for the allocation of H-1B specialty occupation visas which happens during the first five business days of April.  In 2014, U.S. Citizenship and Immigration Services (USCIS) received 172,500 H-1B petitions during the first week of April for the 85,000 H-1B quota numbers allowed by law.  That’s over twice as many H-1B petitions as the quota allows.  The same thing has now happened this year as recently announced by USCIS and summarized in our Immigration Alert: H-1B Cap Hit for Fiscal Year 2016.

USCIS will now use a computer based, random selection process to select the H-1Bs for adjudication.  It’s too soon for USICS to provide the exact number of H-1B filings for this year, but due to the recovering economy and increased pace of hiring by U.S. employers, most expect the number of filings to be even higher—but for the same 85,000 quota allocation.  So, this means another lottery selection process—a purely random lottery.  Yes, that’s right–a critical component of U.S. immigration policy allowing U.S. employers to fill shortages in the most needed occupations in information technology, the sciences, engineering and other professions, is determined by chance!  If an H-1B petition is selected out of the lottery, it is officially receipted by USCIS for adjudication.  H-1B petitions not selected are returned.

Not surprisingly, employers who are new to the H-1B process are shocked when they learn this.  These employers need to fill key shortages in their workforce, but cannot plan for their business needs due to the H-1B quota lottery.  One of the business communities’ most common complaints about government policy is lack of predictability.  I can’t think of anything more unpredictable for a business than a government policy that relies on a lottery to determine which foreign nationals will and will not be eligible for employment!

The Obama administration has touted a number of new initiatives aimed at encouraging immigrant entrepreneurship and retention of high-tech workers in the U.S. These are commendable and this author applauds these efforts. However, a major obstacle causing seemingly unnecessary delays is “administrative processing” for nonimmigrant visa applicants under section 221(g) of the Immigration and Nationality Act. This law has been around for years and is an additional security clearance conducted by the U.S. Department of State before a visa can be issued. Until recently, administrative processing was reserved for only the most extreme cases. Now, however, 221(g) administrative processing is being used much more frequently.

There are legitimate reasons why an additional clearance may be needed. Most are related to concerns about possible terrorism or the misuse of technology while in the U.S. The absurdity of administrative processing is not the law itself, but the way it is applied at embassies and consulates abroad. Consider the following common scenario:

A foreign national graduated from a U.S. university after having previously been issued an F-1 student visa. That foreign national was one of the fortunate ones who managed to secure an H-1B visa from the extremely limited quota and now she happily holds H-1B visa status. That same foreign national has been living and working in the U.S. for a few years. Now, she wants to travel back to her home country, and even though her status has been changed in the U.S., she must apply for the H-1B travel visa at the U.S. consulate abroad in order to return after her international trip. Should be no problem right? WRONG!

The visa application itself is stressful enough requiring completion of a number of bureaucratic steps, not the least of which is an interview at the U.S. embassy or consulate abroad. However, if this visa applicant is subject to 221(g) administrative processing, the delay in completing the administrative processing security clearance and issuance of the visa can be anywhere from a few weeks to several months.

Imagine the disbelief of the employee’s U.S. manager when told that this employee, who previously attended a U.S. university in valid F-1 student status and has been working in the U.S. for this employer for several years, must wait outside the U.S., potentially for months, until the H-1B visa is issued.

It can be difficult to answer the reasonable follow-up questions posed to us as immigration lawyers:

“But she’s been living the U.S. for a long time. Why is this only now an issue for the government?”

“If our government is that concerned about this person’s eligibility for a visa, why did it previously issue her a student visa and allow her to live in the U.S. for so long?”

And of course, “When will she be able to return to the U.S. to continue working?”

If administrative processing isn’t reigned in to limit security clearances to real security issues, skilled foreign nationals will add this to their growing list of reasons to move out of the U.S. and provide their services—and economic benefits—in other countries.