Friday March 10, 2017
H-1B Alert!
Summary:
As most people know, the President issued a new and revised ‘Travel
Ban’ this week – which we will discuss in more detail later – but a more
obscure announcement was made that can have a wide-ranging impact on foreign
nationals already living here on H-1B visas.
USCIS announced that it would be suspending ‘Premium
Processing’ of H-1B visas beginning on April 3, 2017 (the first day of
receiving new H-1B visas under the ‘H-1B cap’).
Those who will be most greatly affected by this development
will by physicians who are completing their residencies in J-1 status – and need
a Conrad 30 J-1 waiver to file a new H-1B petition.
H-1B
Premium Processing Suspension
Late last Friday, USCIS announced that it was temporarily
suspending ‘Premium Processing’ for all H-1B petitions filed on or after April
3, 2017. It will be suspended ‘up to 6
months’.
And they are serious about it. In fact, if one mistakenly files a ‘Premium
Processing’ request after April 3, 2017 with the regular filing fee and the
Premium Processing fee on the same check, they will reject the entire H-1B
package petition.
Here’s why it matters:
As you may know, ‘Premium Processing’ is an application that
one can file to request expedited processing of the H-1B petition. It is accompanied by a filing fee of $1,225 –
in exchange for a guaranteed decision within 15 calendar days. This used to be a luxury – back when the
normal processing times for H-1B visas was 4-5 months.
But now, the current processing time for someone filing an
H-1B extension to continue working in H-1B status in our region is
approximately 8-9 months. Since employers
are prohibited from filing an H-1B petition more than 6 months ahead of time,
it is nearly impossible to get a new H-1B extension Approval Notice before the
present H-1B status expires under regular processing.
Since federal law and regulations permit a foreign employee
working in H-1B status to continue working for 240 days following the expiration
date of her existing H-1B status if her employer files an extension before her
H-1B status expires, this would not be a particularly big deal…except that most
states now issue driver’s licenses with an expiration date that corresponds to
the H-1B validity date. Thus, while
someone who has timely filed an H-1B extension may still work, she cannot drive to work.
Thus, since most driver’s license offices require an H-1B
Approval Notice to renew a driver’s license,
for about the past year it has become routine for foreign employees in
H-1B status to use Premium Processing – just so that they continue driving to
work.
So the ability to use
Premium Processing can make a big difference to employees in H-1B status.
But it’s an even bigger deal to a Physician who intends to
use H-1B status to provide clinical care to patients following her Medical Residency.
Most foreign-educated physicians who complete their Medical
Residencies in the U.S. complete their training using a J-1 visa. But there is a catch. The J-1 visa status requires the Physician visa
holder to return home for 2 years following completion of her Residency in J-1
status.
Unless she gets a waiver of the 2-year home residency
requirement
Typically, this is done with a Conrad 30 J-1 visa waiver.
Without going into great detail about the process, it is
sufficient to say that it’s a lengthy process going through several state and
federal agencies over several months before getting a decision. But here’s a peculiarity of the Conrad 30
program: it requires the Physician to
begin work in H-1B status within 90 days of receiving an Approval of the J-1
Waiver. Since nearly all Physician
residencies conclude on the same day – (June 30) – this means that there is a
window of time to get the J-1 waiver approved.
For a July 1 start date, one must actually get the Approval sometime
after April 1.
What’s more, some states – like Tennessee – won’t issue an
unrestricted Medical License until the Physician completes her Residency. On the other hand, Conrad 30 J-1 waiver
recipients are exempt from the H-1B cap – so we don’t have to worry about
trying to get a petition filed on April 1 (while the Physician is still in
Residency).
But the bottom line is – by the time the Physician is ready
to file an H-1B petition, it is usually already May, June or July.
Luckily, we always had Premium Processing to make sure the
Physician could begin work within 2 weeks of Residency completion…. I think you can see the problem.
If the Physician’s employer cannot use Premium Processing…
and the processing time is 8-9 months… it’s possible that a Physician completes
her Residency in June, but cannot begin to work until February of the following
year.
We can hope that perhaps USCIS will reinstate Premium
Processing sometime in October or
November, but that is well past the 90-day window in which the Physician is
mandated to begin employment,(not to mention that it is a long time after
Residency just waiting to begin work).
It’s still a big deal.
The Trump Travel
Ban: version 2.0
On Monday of this week, the President issued a second
Executive Order addressing the admission of refugees and certain persons from
certain countries into the U.S.
The second effort is much narrower and tailored to address
the flaws in the first ban which the 9th Circuit Court of Appeals
concluded were unenforceable.
Here is a snapshot view of some of the major differences:
·
Iraqi nationals were removed from the list of foreign
nationals from predominately Muslim countries who were prohibited from
admission to the U.S.
·
It eliminates the ban on persons from the
remaining 6 predominately Muslim countries who have ‘green cards’
·
It re-establishes a 120-day ban on the admission
of any refugees – but Syrian refugees are no longer ‘indefinitely’ banned; they
are subject to the same 120 day ban just as other refugees
·
It reduces the total number of refugees
resettled in the U.S. under the U.S. Refugee Assistance Program from 110,000 to
50,000
·
It no longer gives a preference to ‘religious
minorities’ [most likely Christians in predominately-Muslim countries]
Several states have already filed lawsuits to block the new
travel ban, fundamentally on the same basis as before. However, since the Travel Ban 2.0 was crafted
more carefully to avoid some of the legal flaws that led to the demise of the
first ban, the outcome will be less predictable.
Here is a sample summary of some of the issues presented by
the new Executive Order banning travel:
·
It appears that there is still an evidentiary
weakness in naming Syria, Iran, Libya, Somalia, Sudan and Yemen as countries
from which its citizens are prohibited from entering the U.S. because of fear
that they may commit harm when they arrive in the U.S. Although the sectarian violence and conflict
in these countries is well-known, the relationship between the threat that
exists in these countries with the threat that their citizens pose to the U.S.
is tenuous from an historical precedent.
·
In the absence of historical precedent, the
court may decide that a ‘blanket’ ban on entire nations is not well-suited - ‘too broad’ - for the intended purpose of
the ban. A court may decide that the
Department of Homeland Security and Department of State can ameliorate this perceived
threat by less-dramatic means, such as simply scrutinizing the background of
citizens from these countries on a ‘case-by-case’ basis.
·
The core intent and effect of the ‘Travel Ban’
is inextricably derived from the President’s earlier pledges to create a ban to
prevent persons of the Islamic faith from entering the U.S. Such a ban is clearly unconstitutional. However, the Travel bans 1.0 and 2.0 maintain
a restriction from at least 6 countries that are predominately populated by persons
of the Islamic faith. This tainted legacy
of the ‘Travel Ban’ will be hard to disentangle from the very real security threats
that the U.S. indeed faces from individuals and groups around the world who
want to do harm to the U.S. The origin
and history of these ‘Travel Bans’ may doom their viability.
·
One final point to consider: the Executive Order banning admission of
certain persons from certain countries is stated to be ‘temporary’. It’s a 90-day ban on nationals of the 6
predominately-Muslim countries and a 120 day ban on refugees. The indefinite ban on Syrian refugees has
been removed, so it is fair to consider whether or not this Executive Order is
actually a temporary restriction. A
brief suspension of immigration benefits in response to an imminent threat –
for the purpose of addressing security measures – would not in itself seem to
be unreasonable. The question for the
courts would be – are the security measures actually in response to a verifiably
real – or simply perceived – threat; if so, what actions are the Department of
Homeland Security and Department of State taking to institute necessary ‘fixes’
to the system; and has the Administration placed too many restrictions on the
ability to reinstate the normal travel accessibility once the ‘review measures’
and ‘fixes’ have been concluded after 90 or 120 days?
This is why our Constitution created a third and independent
branch of the U.S. Government: to examine and determine whether or not an
Executive action as controversial as this adheres to the body of law
established by the Courts’ interpretation of the U.S. Constitution throughout
our history.
Stay tuned as these cases make their way
through our Court system.
