Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.
DHS Announces Further VWP Travel Restrictions
The Department of Homeland Security (DHS) announced on February 18, 2016, that it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 by adding Libya, Somalia, and Yemen as three countries of concern. DHS is limiting Visa Waiver Program (VWP) travel for certain individuals who have traveled to these countries.
Under a new law enacted by Congress in December 2015, the Secretary of Homeland Security had 60 days to determine whether additional countries or areas of concern should be subject to the travel or dual nationality restrictions under the Act. In consultation with the Director of National Intelligence and the Secretary of State, the Secretary of Homeland Security determined that Libya, Somalia, and Yemen be included as countries of concern, specifically for individuals who have traveled to these countries since March 1, 2011. The restriction on Visa Waiver Program travel does not apply to dual nationals of these three countries. DHS said it continues to consult with the Department of State and the Office of the Director of National Intelligence to develop further criteria to determine whether other countries should be added to this list.
The United States began implementing changes under the new law in January 2016. The three additional countries designated join Iran, Iraq, Sudan, and Syria as countries subject to restrictions for VWP travel for certain individuals. Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis, DHS said. As a general matter, categories of travelers who may be eligible for a waiver include individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty; on behalf of a humanitarian nongovernmental organization on official duty; or as a journalist for reporting purposes.
DHS said the latest addition of the three countries indicates “the Department’s continued focus on the threat of foreign fighters.” DHS said it was the latest step in a series of actions over the past 15 months “to strengthen the security of the Visa Waiver Program and ensure the Program’s requirements are commensurate with the growing threat from foreign terrorist fighters, many of whom are nationals of Visa Waiver Program countries.”
An updated Electronic System for Travel Authorization (ESTA) application with additional questions on travel to Libya, Somalia, and Yemen will be released in the spring to address exceptions for diplomatic and military-related travel provided for in the new law.
DHS noted that those affected will still be able to apply for visas using the regular immigration process at U.S. embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, DHS states, “U.S. embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The new law does not ban travel to the United States, or admission into the United States, and the great majority of Visa Waiver Program travelers will not be affected.”
Tech, Business Executives Petition Congress To Undo New Restrictions on Visa-Free Travel
Almost three dozen technology and business executives petitioned the U.S. House of Representatives and Senate to repeal new visa provisions restricting visa-free travel to the United States for certain travelers under the Visa Waiver Program. The petitioners say the new rules are discriminatory and bad for the U.S. economy.
Signatories to the petition include Mark Cuban, owner of the Dallas Mavericks and Landmark Theatres; Jack Dorsey, CEO of Twitter and Square; Omid Kordestani, Chairman of Twitter and former Chief Business Officer of Google; Max Levchin, Co-Founder of Paypal; Ben Silbermann, CEO of Pinterest; and others.
The petition notes that until now, citizens of the United States, Europe, Japan, South Korea, and others (38 countries in total) enjoyed a reciprocal arrangement to travel visa-free. The new law ends this right for travelers to the U.S. “based on discriminatory criteria,” the signatories note. They argue that this “invites reciprocal measures restricting U.S. citizens traveling to Europe and the other countries, potentially weakening the power of the U.S. passport for millions of U.S. citizens.”
In addition, they say that “discriminating based on national heritage is inconsistent with American values. In effect, certain provisions of the new law require visas for Europeans and other citizens with Iranian, Sudanese, Syrian, or Iraqi heritage.” The signatories likened this to Congress mandating “special travel papers for citizens based on their faith or the color of their skin.” In the balancing act between fighting terrorism and upholding American liberties, they say, “these provisions go too far.”
The signatories also said they believe the new restrictions harm U.S. business interests. “Millions of European, Japanese, and Korean citizens travel as employees, customers, and suppliers of American firms. Requiring many of them to get visas imposes bureaucratic delays on U.S. firms. This reduces the agility and liberty of U.S. firms, makes us less competitive in the global economy, and will ultimately cost jobs,” they warned.
The petition states that the signatories support the bipartisan Equal Protection in Travel Act (H.R.4380/S.2449). “We encourage Congress to enhance security via technology leadership and international cooperation without creating barriers that isolate us from our global partners,” they said.
THE PETITION, which has 1,320 supporters so far.
USCIS Will Accept H-1B Petitions for FY 2017 Beginning April 1, 2016
On April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.
USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS has used the lottery for the H-1B program for the last several years.
Premium processing for cap-subject petitions. H-1B petitioners may still continue to request premium processing together with their H-1B petitions. However, USCIS may temporarily adjust its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season.
Filing. USCIS reminds H-1B petitioners that when the temporary employment or training will be in different locations, the state where the company or organization’s primary office is located will determine the appropriate Service Center to which petitioners should send the Form I-129 package, regardless of where in the United States the various worksites are located. When temporary employment or training will be in different locations, the address on page 1, Part 1 of Form I-129 is for the organization’s primary office. When listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.
Cases will be considered accepted on the date USCIS “takes possession of a properly filed petition with the correct fee.”
The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.
ABIL Urges Cautious Implementation of New Proposed ‘Smart I-9’ Form
The Alliance of Business Immigration Lawyers (ABIL) has submitted comments on the new proposed revised Form I-9, Employment Eligibility Verification. Among other things, ABIL members urged U.S. Citizenship and Immigration Services (USCIS) to delay implementing the “smart I-9” until it is fully functional in both English and Spanish. In its current state, they noted, the proposed “smart I-9” adds many more opportunities for employers to make mistakes. “It does not appear that USCIS has fully beta-tested the proposed fillable form,” ABIL members noted. They said they tested the form and found a number of areas where the information and guidance provided was unclear or inconsistent with other guidance.
ABIL members also noted that various changes, such as a proposed rule making changes to use of the employment authorization document for I-9 purposes, are in the works and that implementing a new form while these significant developments are in flux will add “significant confusion for employers.” ABIL members suggested a “grace period” of at least 120 days after the form is published until employers are required to use it to allow adequate time for appropriate guidance and training. They suggested that USCIS provide the fillable form as a training tool until full implementation can occur successfully.
ABIL comprises 20 of the top U.S. business immigration law firms, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 250 attorneys devoted to business immigration in 25 major U.S. cities and 25 major international cities.
U.S. Streamlines E-1/E-2 Treaty Trader/Investor Visa Processing in Canada
As of March 1, 2016, the United States is streamlining registration for Canadian companies seeking to move employees to the United States on E-1 and E-2 (treaty trader and investor) visas. Registration at the U.S. Consulate General in Toronto and additional processing locations across Canada will be streamlined for employees (and their dependents) of companies with valid registrations.
The U.S. Consulate General in Toronto handles all company registrations for E-1 and E-2 visas in Canada. Employees of enterprises not previously registered at the U.S. Consulate General in Toronto must schedule their E visa interviews in Toronto. If a company’s registration has expired, employees (whether previously issued an E visa or not) must also apply for their visas in Toronto.
The U.S. Embassy in Ottawa and the U.S. Consulates General in Toronto, Vancouver, Calgary, and Montreal now offer E-1 and E-2 visa appointments for employees of companies with valid registrations and their dependents.
“We are confident that the expansion of E-visa adjudications for dependent family members and employees to more posts across Canada, combined with streamlined processing in Toronto, will enhance our service and help us meet the growing demand for this important visa class. Trade and investment between Canada and the United States remain critical to our relationship and to our countries’ economies. With the addition of E visa processing in Calgary, Montreal, and Ottawa, it’s never been easier to apply for a visa for Canadian investors in the United States,” said Russel J. Brown, Minister Counselor for Consular Affairs at the U.S. Embassy in Ottawa.
FOR MORE INFORMATION ON THESE DEVELOPMENTS
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.
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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.