Navigating Uncertain Times: Friday Roundup

Navigating Uncertain Times:  Friday Roundup

Friday March 17, 2017

Happy St. Patrick’s Day!

As most schoolkids know, unless you intentionally want to get pinched – you had better wear green today.

One of the more enjoyable American holidays is St. Patrick’s Day.  No demands on your celebration.  You wear green, maybe you eat corned beef and potatoes or perhaps raise ‘a pint o’ Guinness’.  It is said that on St. Patrick’s Day, everyone is Irish.  We at least try to claim a little Irish heritage on this day.

But it wasn’t always so…

This might be a good moment to pause and reflect that a century ago, the Irish were unwanted immigrants.  They were marginalized and feared because their migration to the U.S. was somehow tainting what it meant to be ‘American’.

Adopting distinctive Irish traditions and heritage into our national culture has enriched our country and gives us reason to celebrate one of the fundamental features of American society: our rich diversity.  It’s a good time to remember that it’s okay to embrace new and different cultures, traditions, heritage…and people.

So enjoy!  Celebrate!  And remember who you are… and where you came from

Slainte!

HSD immigration group

In other news…

Travel Ban 2.0

On Wednesday, a federal district judge in Hawaii granted the state’s Motion for a Temporary Restraining Order on the implementation of  Sections 2 and 6 of President Trump’s revised Executive Order temporarily banning admission of immigrants from 6 predominately Muslim countries and refugees.  The Executive Order was scheduled to go into effect yesterday, but the TRO suspends its implementation until a hearing can be held on its merits.

Last week we alluded to the possibility that the origin and heritage of the Executive Order has so stained it that it cannot be separated from the President’s prior expression of intent to exclude persons of the Islamic faith from entering the U.S.  The federal district judge’s Opinion echoed that very problem in finding that the Executive Order was in violation of the Establishment Clause, the First Amendment to the U.S. Constitution.  [ As interpreted by the courts, the 1^st Amendment states that the government cannot take action “respecting an Establishment of Religion, or prohibit the free exercise thereof….” ]. Exercising the analysis set forth in the 1971 seminal U.S. Supreme Court case Lemon v. Kurtzman, the Hawaii District Court found that the government action did not have a ‘primarily secular purpose’ and therefore violated the ‘Establishment’ clause.  Additional evidence from the U.S. Dept. of Homeland Security concluding that the country of origin provided an insufficient link to the likelihood that a person might commit a terrorist act was entered into the Record and served to undermine the government’s own argument that its purpose was for the sake of national security.  It would seem that for the Administration to succeed, it would need to convince a court – perhaps the U.S. Supreme Court – that the President’s valid legal authority to make decisions regarding who may be admitted to the U.S. supersedes any limitation on that authority expressed in the Establishment Clause of the U.S. Constitution and/or other discrimination prohibitions found in federal law.

Stay tuned…

The Federal Budget

Perhaps one of the more obscure immigration-related news items this week was the issuance of the President’s new Budget Proposal.  One of the recommendations found in the proposed Budget was the elimination of the Appalachian Regional Commission ('ARC') and the Delta Regional Authority, ('DRA') among other regional commissions.

How does that affect immigration?

Because the Appalachian Regional Commission and Delta Regional Authority offer J-1 visa waivers to primary care physicians who are willing to provide direct patient healthcare to persons living in medically underserved areas – or more specifically, where there is a shortage of primary care physicians.

This is important because in many states that offer J-1 visa waivers to attract physicians to underserved areas, the primary program is what is known as the ‘Conrad 30’ J-1 visa waiver program.  As the name indicates, there are only 30 slots available for physicians who want to secure a J-1 visa waiver. 

[For explanation, foreign physicians who come to the U.S. to train in Residency programs often get a ‘J-1 visa’ to enter the U.S.  The catch is that the physician is required to return to her home country for 2 years before she can seek an H-1B visa that allows her to provide direct patient care.  A ‘waiver’ of that 2-year home residency requirement allows the new Residency graduate to immediately practice medicine in the U.S.].

Many states use up the allotment of 30 J-1 waivers under the Conrad 30 program fairly quickly.  Fortunately, the ARC and DRA provide an unlimited supply of J-1 Waivers for physicians who are not able to get a Conrad 30 waiver.  The ARC and DRA waivers are a bit more complicated, rigorous and narrowly defined than a Conrad 30 Waiver, but they at least offer an alternative for physicians who are willing to serve where other primary care doctors avoid serving.  In fact, some states like Virginia require physicians who qualify for a J-1 Waiver under the ARC program to seek a waiver there first – so that it can preserve the limited 30 Conrad waivers for physicians who have no other alternatives.

The Budget process may end up preserving the Appalachian Regional Commission – and the many other valuable services that it provides, for the sake of persons living in medically underserved areas and the foreign physicians who serve them. 

Comprehensive Immigration Reform

This takes the prize as the most unexpected news item this week - but there seems to be ‘chatter’ that the turbulent immigration developments over the past two months have somehow energized momentum for comprehensive immigration reform.  In a bi-partisan sort of way!

If this is an accurate development, it would be most welcome.  As you may recall, there was a remarkably successful period of bi-partisan collaboration on a Senate Bill in 2013.  Led by a ‘gang of eight’ Republican and Democratic senators, a Bill that ‘fixed’ many of dysfunctions of our immigration system – both on security and accommodation of visas – and passed fairly easily.  Unfortunately, it languished in the House of Representatives until it ultimately died with no action taken.

If in fact there is a renewed interest in coming to agreement on how to repair our immigration system, this would be a very positive development.

Have a nice weekend –

HSD Immigration Group

Navigating Uncertain Times: Friday Roundup

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 9^th 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.   

Keep Calm and Carry...your Papers

With the release of President Trump’s most recent Executive Order asserting travel bans on certain immigrants from certain countries, there is understandably much confusion and anxiety over what this and his prior executive orders mean to immigrants now living in the United States and foreign nationals hoping to travel here.

Unraveling all of these issues will take some time.  Federal courts were quick to identify the legal and constitutional flaws in various parts of the orders and variously enjoined the Department of Homeland Security from taking actions to deport persons who arrived legally.  The Department of Homeland Security also properly conceded that the ban should not apply to persons who are lawful Permanent Residents of the United States.  But as the legal entanglements continue and the Department of State and the Department of Homeland Security figure out how to process these measures, what are noncitizens in the U.S. to do?

Keep Calm and Carry…your Papers

At this point, most of the immediate confusion is taking place at the borders and ports of entry into the U.S. and relates to persons outside of the U.S. trying to return or get into the U.S.  If you are already here, it would make sense to avoid traveling abroad until the Administration, the Courts and the Agencies can give us a clearer definition of exactly what type of enforcement will be taking place.  Of course, the January 27, 2017 Executive Order deals primarily with Refugees and visitors from 8 countries, but reports of others being stranded abroad in the confusion would indicate that there is still some uncertainty in international travel to and from the United States for noncitizens for now.

The January 25^th Executive Orders deal with internal enforcement of immigration laws; like the January 27^th Order, there is still some room for the Courts and the Administration to figure out to what extent these provisions are legally enforceable.  However, it is a general conclusion among the immigration bar that Immigration and Customs Enforcement is not restrained by the executive memoranda from the previous administration giving clear enforcement priorities on who should (or should not) be placed in removal proceedings.  Thus, in this heightened environment of enforcement, if you are a noncitizen of the U.S., it would be prudent to make sure that you carry your authorizing documents, (e.g., ‘green cards’, copies of visas, etc.) with you at all times.

Finally, keep in mind the long-view.  Although this is a period of great uncertainty, anxiety and disorientation for immigrants in the U.S. – irrespective of one’s legal status – we are also an exceptional democracy that has mechanisms and tools to give balance and, ultimately, greater certainty to the legal rights and constitutional protections that have evolved and continue to improve through the testing of these principles that have shaped our nation for the past two centuries.

So Keep Calm, Carry On…and Be Careful until we can get this sorted out.