The State of Immigration Affairs After Trump’s First 100 Days

By TL Loke Walsh

Whether you are an immigrant or not, it’s been an anxiety-ridden 100 days under the Trump Administration. Here’s our summary of what has happened in the last 100 days — updates on travel, visa applications and revocations, scrutiny of H-1Bs and more good stuff — and how it may impact you if you are a foreign national or if you are an employer with foreign national employees.

Included Topics

1. The Travel Ban – Version 1 and 2.0
2. The H-1B Program – Is it the End of the H-1B Program?
3. NAFTA – Is it the End of TN and E visas?
4. Impact on Visa Holders and Green Cards Living in the United States
5. Other Immigration Related Provisions

The Travel Ban – Version 1 and 2.0

On Friday, January 29, 2017, President Trump signed Executive Order 13759: “Protecting the Nation From Foreign Terrorist Entry To The United States.” After a weekend of chaos, a federal judge in Washington state issued a temporary restraining order on February 3, preventing the implementation of the travel ban. On February 9, the 9th Circuit Court of Appeals unanimously affirmed the federal court’s decision and the travel ban remained blocked.

On March 6, President Trump rescinded and replaced the original Travel Ban with Version 2.0 – Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States, which in his own words was a “watered down” version of the first travel ban. Provisions relating to the refugee program and the restriction on arrivals from citizens of the six restricted countries, were blocked by federal district judges in Hawaii and Maryland before it was to take effect on March 16. However, on March 24, a federal judge in Virginia ruled that the revised executive order “falls within the bounds of the President’s authority” going against the courts in Hawaii and Maryland. The 9th Circuit and 4th Circuit are set to hear arguments on May 8 and May 15, and the issue will likely go all the way to the Supreme Court.

Impact on Travelers Arriving at U.S. Airports and Land Borders

Although the travel ban remains blocked, Customs and Border Protection (CBP) officers at airports seem to be emboldened by the rhetoric. Anecdotal reports indicate that the level of scrutiny upon arrival at airports is heightened. There have been high profile cases of US citizens (born and raised in the United States) like the son of Muhammad Ali who have been questioned upon arrival about their name and their religious beliefs. Academics coming in to deliver lectures at international conferences have been detained and in some instances, erroneously refused entry. Prominent NASA scientists have had their electronic devices searched and forced to unlock phones despite serious confidentiality issues. Many other U.S. citizens from investment bankers to scientists, have been detained upon their return to the United States simply because they have a Muslim name. So, what should you do when you travel internationally? Here’s our checklist of documents you should carry to present to CBP on your return to the United States:

• If you are a nonimmigrant visa holder (E, F, H, I, J, L, M, O, P or R), make sure you have a valid passport, a valid nonimmigrant visa stamp in your passport and I-797 Approval Notice (if you have one). For Fs and Js, you should also have your I-20 or DS-2019. You will be admitted into the United States even if you have a passport from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • With the exception of E-visa holders, Canadians are visa-exempt which means that they do not have to have a visa stamp issued in their passport by a U.S. embassy or consulate. Therefore, Canadians on a nonimmigrant visa should have a valid passport and I-797 Approval Notice. Canadian TNs should have a valid passport and I-94 record unless they have an I-797 Approval Notice for the TN.
  • The other exception is for trips to Mexico and Canada for less than 30 days, where travelers can take advantage of the automatic revalidation rule, which allows travel to these two countries with a valid I-94 record even if the visa stamp has expired.
• If you have a green card, carry it along with your valid passport. You will be admitted into the United States even if you have a passport from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. If you were born in one of the six countries, but have a passport from an unrestricted country, you will also be admitted.
• If you are a U.S. citizen with a Muslim name, or if you are a U.S. citizen who has travelled to the Middle East, be prepared for additional questions when you return to the United States. Don’t be surprised if you are sent to secondary inspection for further questioning.

To facilitate your entry whether you are a nonimmigrant visa holder or a permanent resident, we recommend carrying your business card along with a “back-pocket” employment verification letter confirming your job title, job description and the reason for your travel. Only show the letter if you are asked for it.

Regardless of whether you are a U.S. citizen, green card holder or nonimmigrant visa holder, you should take a moment to know what your rights are at an airport or land border when you arrive in the United States. The American Civil Liberties Union (ACLU) has some excellent guidance on this, including whether you have a right to an attorney, what questions can be asked about your religion, your social media handles, if your electronic devices (laptops or cellphones) can be searched, whether you have to provide your passwords, etc.

Impact on Applications at U.S. Embassies and Consulates Around the World

The block on the travel ban only applies to two provisions of the Executive Order – the ban on arrivals of individuals from the 6 restricted countries and the refugee program. Other provisions of the Executive Order are being implemented. This includes efforts taken by the Department of State which issued a series of memoranda to U.S. embassies and consulates regarding “extreme vetting” at consular posts around the world.

As part of these “extreme vetting” efforts, the State Department has developed additional screening procedures and criteria to identify “populations warranting increased scrutiny.” There are now additional security questions for applicants from restricted countries who may be asked to provide the following:

• 15 years-worth of travel history, employment history and addresses;
• Names of any siblings/children/former spouses;
• Prior passport numbers;
• All phone numbers used by the applicant in the last five years;
• All email addresses and social media handles and passwords used by the applicant in the last five years; and,
• Consular officers can ask applicants to turn over phones so that contact lists, photos, private and public posts can be examined.

We are already seeing a major change in the way visa renewals are handled by U.S. consular posts around the world. In the past, many U.S. embassies and consulates allowed people to “renew” their visa stamp through a mail-in or drop box system, waiving the interview requirement. U.S. embassies and consulates can no longer waive interviews, and all applicants regardless of whether it’s their 1st renewal or their 4th renewal of the visa in the same classification, must now appear in person for an interview. In most situations, this should not negatively impact the time it takes to return a passport, so we don’t think that you should change your travel plans unless you are considered a high-risk applicant. Red flags include arrests (even if previously disclosed and vetted), travel to the Middle East or study/research/work in certain STEM fields for nationals of certain countries.

We are also seeing an increase in visa revocations for anyone who is arrested for a DUI, as well as other incidents such as trespassing (e.g. getting too close to the Hollywood sign or stopping on the coast to admire the views from what turns out to be a private beach) or shoplifting. The speed in which visas are revoked when a DUI is involved is startling, with U.S. consular posts sending emails to individuals about the visa revocation within days of the arrest, often before the person has even shown up for their court hearing. We believe that this is because information about the DUI feeds into the SAVE system which we believe triggers notification to U.S. embassies and consulates. Keep in mind, that when a visa is revoked, it’s just the visa stamp in the passport that is revoked; the person still remains in valid status pursuant to a valid I-94 record (paper or electronic). As long as the person doesn’t travel internationally, the person remains in valid status and can remain in the United States. If the person travels internationally, s/he will have to apply for a new nonimmigrant visa at a U.S. consular post and should expect potential challenges and delays in issuance of the new visa.

It goes without saying that foreign nationals and green card holders must be extra vigilant in going about their daily lives. If you go out, don’t drink and drive. Don’t drive without a license. Carry your immigration documents with you at all times. If you protest, do it peacefully and don’t get arrested. Understand that state laws and federal laws may differ and an infraction at the state level may make you inadmissible because it is still a federal crime. So, if you live in one of the states that legalized medical marijuana or recreational marijuana, it’s still a federal offense which could render you inadmissible to the United States. CBP officers at the Canadian and Mexican borders have started to ask questions about smoking pot – an affirmative answer could have devastating consequences for anyone with a nonimmigrant visa.

If you have international travel plans and need to apply for a visa at a U.S. embassy or consulate while abroad, you should not change your plans unless you think you will trigger one of the red flags mentioned above. If you are unsure, please check with a member of the Loke Walsh Immigration Law team.

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The H-1B Program – Is it the End of the H-1B Program?

On April 18, President Trump issued another Executive Order, “Buy American, Hire American,” directing federal agencies to review their policies to ensure that they are enforcing laws that protect the interests of U.S. workers, including rooting out fraud or abuse in the immigration system and to “help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.” The fanfare surrounding the Executive Order is widely perceived as a publicity stunt aimed at appeasing Trump’s base. The president could have directed agencies to do this without issuing an Executive Order, but chose to make a show of it. It’s important to note that this Executive Order simply directs the agency to examine ways to reform the program – there is no immediate change or impact to H-1Bs or the H-1B program. President Trump cannot make meaningful changes to the H-1B program without legislative action by Congress. However, what does his “directive” do?

• The U.S. Department of Labor (DOL) announced that it will
  1. investigate program violators;
  2. consider changes to the Labor Condition Application to increase transparency; and
  3. engage stakeholders on how the program may be improved to provide greater protection for U.S. workers.
• The U.S. Citizenship and Immigration Services (USCIS) announced a more targeted approach to its H-1B site visits, focusing on
  1. cases where USCIS cannot validate the employer’s basic information;
  2. H-1B dependent employers (i.e. with H-1Bs representing at least 15% of the staff; and,
  3. employers petitioning for H-1B workers who work offsite at another company’s location.

  USCIS also established an email address dedicated to receiving information about suspected H-1B fraud or abuse.

• The U.S. Department of Justice (DOJ) announced its commitment to investigate and prosecute claims of discriminatory hiring preferences that favor H-1B workers over U.S. workers.

As a reminder to H-1B and L-1 employers and their employees, changes in job conditions may require the filing of an H-1B amendment with USCIS. This may include:

• Changes in the physical location of an H-1B worker’s worksite or the addition of a work site;
• Transferring employees to another company which has a different FEIN;
• Demotion or promotion or any kind of material changes to an H-1B worker’s job duties or job title;
• Change in hours from full-time to part-time or from part-time to full-time;
• Merger, acquisition or any type of corporate restructuring; and,
• Reduction in salary if it falls below the prevailing wage.

Employers must also remain in compliance with all H-1B regulations — which includes some of the following:

• Maintaining H-1B Public Access Files;
• Payment of the prevailing wage for the occupation;
• Payment of the ACWIA filing fee;
• No benching – employers are prohibited from placing H-1B workers in unpaid status due to lack of assigned work, economic hardship or lack of a license. However, H-1B workers may request unpaid leave as a result of conditions unrelated to employment, such as sabbaticals or maternity or paternity leave;
• Offering a terminated or laid off H-1B worker “reasonable costs of return transportation” to the H-1B employee’s residence abroad; and,
• Notifying USCIS of the termination and withdrawal of the H-1B petition and the LCA

If we had a crystal-ball to “look into” the future, what might you see? Our “predictions” for the H-1B program include:

• H-1B and L-1 employers are likely to see an increase in unannounced on-site visits by Fraud Detection and National Security (FDNS) officers. During these visits, FDNS officers will ask to meet with the H-1B employee along with an HR representative or a supervisor or manager. The purpose of the site visit is to ensure that the H-1B employer is a bona fide company and that the H-1B employee is performing the duties outlined in the H-1B petition and is being paid the prevailing wage for the occupation. An FDNS officer will typically ask questions about the job, confirm who paid the ACWIA filing fee and ask to see copies of pay statements and tax returns.
• Increased Scrutiny of H-1B and L-1 applications – we are likely to also see an increase in the issuance of Request for Evidence (RFEs) on both H and L applications. USCIS has also recently announced that a Programmer may no longer be considered a professional occupation for H-1B purposes.
• Delays in Processing of Cases filed with USCIS – USCIS has experienced significant delays in the processing of nonimmigrant and immigrant cases file with USCIS. The agency already had significant vacancies that remained unfilled when the Trump administration put a freeze on all federal hires for 90 days. This has added to the dismal processing times including:
  • Adjudication of I-140s filed in the EB-1 and EB-2 categories are taking close to a year or more, forcing many applicants to renew their combo cards and update medicals which are only valid for up to 12 months.
  • Adjudications of H-1B transfers and extensions have been at an all-time high taking 10 to 12 months. With the recent suspension of premium processing of H-1B petitions, it’s a mess. An H-1B extension can only be filed up to six months before the expiration date, not earlier. Yet, H-1B processing times are taking more than 6 months. Although there is a provision that allows H-1B employees to continue working for up to 240 days (about 8 months) as long as an H-1B extension is timely filed, many states will not renew a driver’s license with just a receipt showing the timely filing, forcing companies and their H-1B employees to premium process their cases. Without premium processing, many of these H-1B employees are now caught between a rock and a hard place. Driving without a valid license is considered a misdemeanor in most states. The suspension of premium processing on all H-1B petitions has also expanded the pool of individuals and employers that are significantly impacted by the delayed processing times. Universities around the United States are unsure if their new faculty members will be able to start in time for fall. H-1B employees filing transfers to new companies may not be able to attend business meetings or conferences or celebrate or mourn with family abroad because their H-1B is not approved. The poorly planned roll-out of the suspension is highlighted by the Nebraska Service Center’s (NSC) inability to even receipt H-1B petitions filed under the premium processing service prior to the April 3 suspension. NSC has been taking close to 30 days to merely receipt a premium processing case, let alone adjudicate it within the required 15 days and has been forced to issue refunds or return premium processing checks.
• Crack-down on outsourcing firms that hire workers for entry-level jobs.
• Prioritization of those with higher degrees.
• Increase in fees.

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NAFTA – Is it the End of TN and E visas?

The fate of NAFTA is yet another example of President Trump’s rhetoric and showy style. After threatening to pull out of NAFTA, the White House backed down, causing many to believe that this was perhaps a negotiating tactic to bring Canada and Mexico to the negotiating table. It is important to note that President Trump may not have the legal authority to unilaterally withdraw from NAFTA – he may need the support of Congress to do so. Moreover, there is also a difference between giving notice of “intent” to withdraw versus withdrawal itself. What does this mean for Canadians with TN or E visas? There is nothing to compare this situation to, but generally, a withdrawal from NAFTA cannot have a retroactive effect on visa holders. Also, since there is a six month “notice” period, Canadians will at least have this period of time to settle their affairs or switch to another visa status.

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Impact on Visa Holders and Green Cards Living in the United States

If you are here on a nonimmigrant visa such as an E, F, H, I, J, L, M, O, P, R or NAFTA (TN), what documents should you carry when you are living and working in the United States? There is a little known, often unenforced provision of the law that requires all nonimmigrants and green card holders to carry documents showing your valid status at all times.

• E-1, E-2 and E-3 visa holders (and E visa dependents) should carry your I-94 record and a copy of your E visa from your passport; if you don’t have an E visa stamp in your passport because you filed with USCIS instead of at a U.S. embassy, carry the I-797 Approval Notice (which has the I-94 record on the bottom right corner).
• F-1 students (and F-2 dependents) should carry your I-20 and a copy of your I-94 record.
• F-1 students with OPT should carry your EAD along with your I-20 and a copy of your I-94 record; F-2 dependents should carry their I-20 and I-94 record.
• H-1B1 visa holders (and H-4 dependents) from Singapore and Chile should carry your I-94 record and a copy of your visa stamp from your passport. If you don’t have a visa stamp in your passport because you filed with USCIS instead of at a U.S. embassy, carry the I-797 Approval Notice (which has the I-94 record on the bottom right corner).
• H-1B and H-3 visa holders (and H-4 dependents) should carry your I-797 Approval Notice and I-94 record.
• I visa holders should carry your I-94 record and a copy of your I visa stamp from your passport.
• J-1s (and J-2 dependents) should carry your DS-2019 and a copy of your I-94 record.
• Individual L-1 visa holders (and L-2 dependents) should carry your I-797 Approval Notice and I-94 record.
• Blanket L-1 visa holders should carry your endorsed I-129S forms and your I-94 record; for L-2 dependents, you should carry your I-94 record.
• O-1 and O-2 visa holders (and O-3 dependents) should carry your I-797 Approval Notice and the I-94 record.
• P-1, P-2 and P-3 visa holders (and P-4 dependents) should carry your I-797 Approval Notice and the I-94 record.
• TNs and TD dependents should carry your I-94 record and I-797 Approval Notice (if you have one).

If you are a permanent resident, you should carry your green card with you.

If you are not comfortable carrying original documents, you could at minimum, carry a copy of your documents. However, you are legally required to have the original documents with you – if you choose to only carry a copy, you do so at your own risk.

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Other Immigration Related Provisions

Some but not all of the other measures impacting immigration, include some of the following executive orders:

• Executive Order 13767, Border Security and Immigration Enforcement Improvements (signed January 25, 2017) includes provisions to
  • Build a border wall;
  • Direct allocation of DHS resources to build detention facilities or lease existing space to or near the U.S.-Mexico border; and,
  • Call upon state and local governments to enter into agreements authorizing them to perform the function of federal immigration enforcement officers in the investigation, apprehension or detention of non-citizens
• Executive Order 13768, Enhancing Public Safety in the Interior of the United States (signed January 25, 2017) includes provisions to
  • Broaden the category of noncitizens who are priorities for removal – we have already seen a significant incase in ICE raids and sweeps and detentions of undocumented immigrants (Mixed messages from the Attorney General, President Trump and DHS has created anxiety amongst DREAMERS who fear an uncertain future);
  • Reinstate the Secure Communities Program, which calls state/local cooperation in immigration enforcement; and,
  • Direct that federal funds be withheld from “sanctuary cities” (this provision has been blocked by a federal district court judge in Hawaii)

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Conclusion

It’s been a busy and unsettling 100 days. Despite the rhetoric, keep in mind that a President cannot make law through an Executive Order. Despite the rumors and the overworked forums and chatrooms, don’t believe everything you hear out there. For there to be any substantive change to the existing immigration system, Congress would have to go through the formal rulemaking process – namely, passing a bill that is approved by both Congress and the Senate and signed into law by the President. Even after that, the federal agency, i.e. DHS/USCIS, would have to go through the rulemaking process – come up with proposed regulations on how to implement and enforce the law, followed by a period of public comment, after which DHS would then have to issue final regulations. All of this takes time. All of this allows the various interest groups from Silicon Valley to the academic community, to exert pressure and influence the process, or to put it simply, to put up a fight.

In this time of uncertainty, please feel free to share this update with your friends, family and colleagues. We continue to #StandWithImmigrants. Loke Walsh Immigration Law will continue to bring you up to date with any new developments.