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US Travel Ban 2020: What does the latest presidential proclamation mean?

Effective February 21, 2020, a proclamation issued by President Trump on January 31 imposes certain visa and travel restrictions on citizens from six countries not already listed in the President’s three previous travel ban proclamations.

The six countries with new travel restrictions are:

Burma Nigeria
Eritrea Sudan
Kyrgyzstan Tanzania

No Diversity Visa for Sudanese and Tanzanians

With respect to two of the above-listed countries—Sudan and Tanzania—the President only removed their passport holders’ eligibility to apply to immigrate to the US through the Diversity Visa Program (aka green card lottery). 

Immigrant visa restrictions

For the other four countries—Burma, Eritrea, Kyrgyzstan, and Nigeria—the President imposed travel restrictions on immigrant visas. The Department of Homeland Security (DHS) reports that the President’s proclamation applies only to intending immigrants abroad who have not yet received an immigrant visa.

Exceptions

DHS reports that the proclamation imposes no restrictions on nonimmigrant visas for citizens of any of these countries. B-2 tourists, F-1 students, H-1B workers and all other nonimmigrant visa holders are not banned from travel to the US.

DHS further reports that intending immigrants abroad who have a valid immigrant visa but have not yet entered the US may still do so and that lawful permanent residents already granted green card status are not impacted by the proclamation. 

It is unclear from the proclamation or DHS’s clarifying remarks how the proclamation will impact prospective immigrants already living in the US on nonimmigrant visas. Prior travel ban-related proclamations were later interpreted by DHS as not applying to foreign nationals who had already entered the US prior to said proclamation.

The full text of the proclamation can be viewed here. DHS’s travel and visa restrictions prepared remarks can be found at DHS website

For further information, please contact your Dentons lawyer.

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US Travel Ban 2020: What does the latest presidential proclamation mean?

What If a Border Agents Seeks Your Smartphone That Includes Client Secrets?

Lawyers in the modern age are accustomed to traveling with their devices, which keep them connected at all times. However, concerns over potential violations of attorney-client privilege at borders and airports have prompted the ABA to provide recommendations to traveling attorneys. Dentons partners Shari Klevens and Alanna Clair discuss in this article a few ways to maintain privilege and confidentiality when traveling across borders. To view the the full article, click here.

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What If a Border Agents Seeks Your Smartphone That Includes Client Secrets?

New important dates for H-1B employers: March 1, 20 and 31

The US Citizenship and Immigration Services agency announced on January 9, that the initial H-1B petition registration period will be from March 1 to March 20, 2020, and that USCIS expects to notify employers whose registrations have been selected no later than March 31, 2020. The agency also provided new information about the H-1B cap-subject petition registration process.  

Petitioners must register using an online account. As of this writing, USCIS has not provided any details regarding the registration portal or ways to register an account, but has indicated that it will post the date employers may start setting up accounts on its website. 

Petitioners must electronically submit a separate registration request for each individual it seeks to petition for a cap-subject H-1B. No more than one registration may be submitted for the same individual by the same petitioner, or all registrations for that individual will be disregarded. 

USCIS will deliver lottery results by sending notices electronically and inform petitioners to file an H-1B cap-subject petition on behalf of the named individual within the filing period indicated on the notice. The notifications will be added to the registration accounts, and the account holders will receive notification via email or text message stating that an action has been added to their account. 

Petitioners should start the preparation process now by evaluating potential H-1B candidates to make sure that they are qualified to receive the visa if selected. Please contact your Dentons lawyer if you have any questions. 

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New important dates for H-1B employers: March 1, 20 and 31

Cannabis in the United States and its implications in naturalization applications

In response to requests from state and local officials for clarification and adjustment of United States Citizenship and Immigration Services policies negatively impacting the legal immigration status of individuals who work or have worked in the legal cannabis industry, USCIS has updated its Policy Manual—but has not retreated from its position that cannabis-related activities will likely bar a lawful permanent resident of the US from naturalization, even if such activities take place in a state that has legalized cannabis. For a deep dive into the updated manual—including cannabis-related activities which, while not grounds for deportation may still be grounds for inadmissibility if the LPR travels abroad and attempts to re-enter the US—please click here.

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Cannabis in the United States and its implications in naturalization applications

How US federal cannabis legalization would affect US immigration law

During the 115th US Congress, several bills were introduced to legalize marijuana at the federal level. Those receiving the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). While all three died when the Congress ended on January 3, 2019, they are likely to be reintroduced (without change) during the 116th Congress. For our analysis of how they might affect the ability of foreign nationals to enter the United States, click here.

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How US federal cannabis legalization would affect US immigration law

An overview of Canada’s Start-Up Business Class

Many foreign nationals are now aware that US immigration policies are more restrictive than in years past. For example, to protect the economic interests of US workers, President Trump issued an executive order directing government agencies to rigorously enforce and administer immigration laws. Meanwhile Canada remains relatively open to accepting new immigrants and, according to a report published by Immigration, Refugees and Citizenship Canada, could accept as many as 1.1 million in total in the years 2019 through 2021. As a result, many foreign entrepreneurs who might otherwise have permanently settled in the US are instead considering Canada. Dentons partner, Henry Chang (who is based in our Toronto office) has provided a detailed discussion of Canada’s Start-Up Business Class, a permanent residence option for innovative foreign entrepreneurs. The full article appears here.

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An overview of Canada’s Start-Up Business Class

New regulations set out work and residence permit procedure for UK nationals living in Spain post-Brexit

This article was originally published on Dentons’ UK Employment Hub blog.

New regulations have been enacted in Spain setting out what UK citizens working or living in Spain after Brexit will be required to do to maintain their right to live and work there.

The regulations apply to UK and Northern Irish citizens living in Spain before the exit date. Affected individuals must apply for a special work and residence permit within 21 months of Brexit. During this 21 month “transition period”, UK nationals will broadly maintain the same rights they currently have under EU law (except, for example, the right to vote and stand in elections to the European Parliament).

Dentons’ lawyers in Spain have put together a summary of the key points of the regulations, which can be found here.

As the largest law firm in the world Dentons is uniquely placed to provide high-quality counsel to clients both within and outside Europe. Our experts have put together a number of resources, including a series of webinars and a Brexit jargon buster, which can be found here. Dentons’ lawyers in Spain have put together a summary of the key points of the regulations, which can be found here.

As the countdown to exit day continues, please contact Jessica Pattinson (Head of Immigration, UK) at jessica.pattinson@dentons.com if you require any additional support on immigration matters.

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New regulations set out work and residence permit procedure for UK nationals living in Spain post-Brexit

Significant changes in the work permit regulations in Uzbekistan

The Cabinet of Ministers of the Republic of Uzbekistan on March 25 approved a new procedure for employers to obtain a license and confirm foreign nationals. Changes to the framework including a broadening of the definition of “employer,” a more streamlined process, a significant increase in fees, and limiting three-year confirmations to certain categories of persons.

Read the complete Dentons article here.

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Significant changes in the work permit regulations in Uzbekistan

Proposed end of H-4 employment authorization likely to affect over 100,000 families

Time appears to be almost up for more than 100,000 foreign citizens working in the United States under an Obama-era special authorization for spouses of foreign workers here on the H-1B visa.

When Congress failed legislatively to address the lengthy wait times for many professionals and their families to be granted resident status, the US Citizenship and Immigration Services (USCIS) in 2015, under the Obama administration, issued a regulation to allow H-4 visa spouses of qualified H-1B professionals to apply for an employment authorization document (EAD). Some members of Congress complained that the executive branch was overstepping its authority by making law—which is Congress’s job—and the regulation was the subject of much debate during the last presidential election. Now the Trump administration is seeking to make good on the President’s campaign promise to eliminate EADs for H-4 spouses.

This change especially impacts US employers of people born in India.

The reason why Indian-born professionals are impacted is because there are numerical limits on the number of green cards granted each year. To promote the diversity of new immigrants to the US, there are quota limits on the place of birth. No more than 7 percent of the total number of family-sponsored and employment-based visas available in a fiscal year may be issued to natives of any one independent country. As the demand for Indian-born professionals is far greater than the annual supply of green cards under the quota, this has created a backlog.

In 2018 for instance, the backlog of Indian-born professionals waiting their turn to get a green card was well in excess of a half million individuals. As a result, it now takes many years for an Indian-born professional to receive his or her green card. As a consequence, Indian-born professionals comprise the bulk of H-4 EAD holders.

Under the current regulation, an H-4 spouse can request an EAD if the H-1B professional is the beneficiary of either an approved employment-based immigrant visa petition, or a Department of Labor alien employment certification application or employment-based immigrant visa petition filed at least 365 days prior to the end of the sixth year of the professional’s H-1B status.

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS), in coordination with other agencies, to review H-1B-related policies. The H-4 EAD regulation was one of the policies reviewed and the result was its proposed elimination.

US employers rely on H-1B professionals to make up for the shortage of qualified American professionals while keeping jobs in the US. CEOs of major US companies, sent a letter to DHS opposing the plan to eliminate the H-4 EAD. The letter pointed out that “[t]hese spouses are often highly skilled in their own rights,” and “revoking their US work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.

These US employers found some support in Congress. Senators Kamala D. Harris and Kirsten Gillibrand sent a letter to DHS and USCIS opposing rescission of the H-4 EAD, pointing out that the proposed change would disproportionately impact South Asian women (in 2017, 94 percent of H-4 EAD were women and 93 percent were from India).

But the administration has not changed its position. In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. DHS stated that “[s]ome U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” With record low unemployment levels and US employers already complaining of recruiting problems, it is unclear where the DHS thinks employers will find these US workers.

The new rule, if adopted, is expected to become effective in the first half of 2019 and would impact all 100,000+ individuals currently holding an H-4 EAD. Researchers also estimate that the proposed rule will affect entire families, including the H-1B professionals themselves, because many will not be able to afford to live on one income if their dependent spouse is forced to abandon his or her career. This is especially true in areas such as Seattle and the Silicon Valley, which employ high numbers of H-1B workers and have a high cost of living. Entire families may leave the US, taking their job skills to other countries to compete with their former employers—whose only options to remain competitive may be to outsource the jobs or set up their own offshore facilities. Nearshoring to Canada has become increasingly popular, due to the relatively lower cost of doing business there and proximity to the US.

The direct cost of each failed expatriate assignment is estimated to range from $250,000 to $1 million, according to researchers. More important, the departure of these highly skilled workers represents a brain drain and a significant loss of talent for most companies.

Dentons helps employers develop strategies to recruit the world’s best and brightest to fill posts in the US and abroad. For more information, please contact the authors or your Dentons lawyer.

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Proposed end of H-4 employment authorization likely to affect over 100,000 families

DHS new rule on H-1B lottery process: Who’s the winner?

 

Following President Trump’s “Buy American and Hire American” executive order issued back on April 18, 2017, a long-awaited new rule has been proposed by the Department of Homeland Security (DHS) that would change the existing H-1B selection process, although perhaps not before the April 2019 filing season.

Online registration

The proposed rule would require petitioners seeking to file cap-subject H-1B petitions to first electronically register with US Citizenship and Immigration Services (USCIS) during a designated registration period, which would begin at least two weeks before April 1. The registration would require information about the employer, as well as the individual H-1B beneficiary.

USCIS would then select at random from the online registration database until the limited supply available under the quota (65,000 regular cap and 20,000 US advanced degree holders) is exhausted.

The big change is that US employers would only file complete H-1B petitions for the named beneficiaries who have been selected. Government processing fees would only be paid for selected petitions.

Similar to current processing, DHS would prohibit more than one registration from the same petitioner for the same beneficiary during any given year. Further, the new rule would require petitioners to attest to their intent to file an H-1B petition for the named beneficiary in the position for which the registration is filed.

DHS believes that this will prevent US employers from submitting a large numbers of registrations but not following up with complete filings of H-1B petitions for the selected beneficiaries—something that was not possible under the existing system. The proposed rule states that USCIS would closely monitor whether selected registrations are resulting in the filing of complete H-1B petitions. If USCIS finds that petitioners are registering numerous beneficiaries but are not filing petitions “at a rate indicative of a pattern and practice of abuse of the registration system,” it would investigate and could hold the employers accountable.

Selection process

The proposed rule would reverse the order by which the H-1B cap petitions are selected. Currently, USCIS first selects 20,000 with US graduate degrees, and then allow the unselected to be considered a second time, with the rest of the world, for the 65,000 quota. The proposed rule reverses this order. The proposed rule claims that it would increase the likelihood that a US graduate degree holder would be selected by up to 16 percent, but no explanation for that calculation is provided in the rule.

Petitioners whose petitions are selected will be notified to file complete H-1B petitions for the named beneficiaries within a designated filing period, expected to be at least 60 days.

Dentons analysis

The new rule reduces USCIS’ workload, since it does not have to handle the return of unselected petitions. However, this is not likely to speed up the slow processing of H-1B petitions, since the agency generally relies on contractors to handle mailroom services, rather than the officers who adjudicate petitions.

While the new rule may reduce some paperwork for US employers, it will not likely reduce the costs, since the cost of evaluating potential H-1Bs and registering is still incurred prior to the employer signing the petition. In fact, the extra step of registration creates extra work for employers and lawyers.

The anti-fraud provision of the rule attempts to address some of the realistic problems in the H-1B problem, but at the same time creates uncertainty for US employers and would most likely result in employers that have made bona fide job offers backing out for fear of the heightened scrutiny and potential liabilities.

DHS estimates that it will spend nearly $280,000 to develop the new system and $200,000 per year to maintain it. The proposed rule does not charge employers for the registration. How long the agency will forgo charging employers for registration is hard to predict, but USCIS has very few services that it provides to employers without a fee.

It is clear that this change will detrimentally impact the ability of US employers to continue to employ foreign workers. Current law allows the continued employment of F-1 OPT/STEM OPT and J-1 workers while the H-1B is pending, until their petitions are selected and approved OR even until the government announces they are not selected or not approved. The new rule means that fewer employers will have fewer H-1B petitions pending. The situation will be even worse if the new rule speeds up adjudications, as faster adjudications means faster denials. In sum, the new rule will result in fewer US employers being able to meet their staffing needs with pending H-1B petitions.

The announcement warns that the new rule may not be implemented in time for the April 2019 H-1B filing season, since there may not be enough time to fully test the system. If the new system has not gone into effect at least two weeks prior to the filing deadline, employers should be prepared to submit full H-1B petitions for all candidates on the first business day of April 2019.

Employers and stakeholders have until January 2, 2019 to submit comments on the proposed rule.

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DHS new rule on H-1B lottery process: Who’s the winner?