Month: December 2017

USCIS announced on November 14, 2017, that the cap of 33,000 H-2B non-agricultural seasonal work visas for the first half of FY2018 (Oct. 1, 2017-Sept. 30, 2018) has been reached.  Petitions subject to the cap with employment start dates prior to April 1, 2018 will be returned to the petitioners.  Cap exempt petitions will still be accepted, as will petitions for H-2B visas for seasonal employment that will begin after April 1, 2018.

H-2B visas are used particularly in Maine’s seasonal hospitality sector. A one-time 15,000 bump in the number of available H-2B visas created by Congress to respond to the shortage of H-2B visas during the second half of FY 2017 expired on September 30, 2017.

Maine employers who want details about which workers are cap-exempt,  or who want to check the number of H-2B visa petitions already accepted that count towards the 33,000 visa cap for the second half of FY 2018 (April 1 – Sept. 30, 2018) can check here.

On December 6, 2017, MeBIC participated in a press conference in Bangor urging Congress to act before the end of the year to pass legislation creating a path to permanent residency for those with DACA status.   Speakers included former Bangor Mayor Joe Baldacci, followed by Dana Connors, MeBIC Board member and CEO of the Maine State Chamber of Commerce, Megan Sanders, Esq, of Penobscot County Community Health Care, Jack McKay of the Eastern Maine Labor Council and Board member of the Maine AFL-CIO, and MeBIC’s Beth Stickney.

Beginning March 6, 2018, about 8500 DACA holders each week will lose their legal protections and their work authorization, jeopardizing their ability to pay for college, to work, to serve in our military, and to contribute to their families and their communities.

It will take time for Immigration officials to get any new residency application process up and running. Congress must act before the end of this year to pass the Dream Act of 2017 or other durable solution.  Otherwise, DACA holders will face a gap in their employment authorization status that will force employers to have to lay them off, and cause the DACA holders and their employers undue hardship, even here in Maine.

See some of the media coverage here:

• Maine Public radio (quoting MeBIC Board member Dana Connors)
• Fox22/ABC7 TV
• WABI 5 TV

 

On December 4, 2017, the Supreme Court issued a decision allowing the Government to carry out the third iteration of its “travel ban” while the lawsuits challenging the ban make their way through the federal courts.

While the litigation is ongoing, those targeted by “Travel Ban 3.0” will not be able to get visas or enter the U.S. unless they can prove, among other criteria, that a waiver of the bar in any individual case would be in the national interest.   As a practical matter, the average person is unlikely to be able to meet that standard.   (As of Feb. 15, 2018, only 2 waivers had been granted out of over 6500 visas requested since December 4th).

Following this Supreme Court ruling, Travel Ban 3.0 bars U.S. immigrant (permanent residency) or nonimmigrant (temporary) visa issuance to or entry of nationals of the following countries:

• Chad, Libya and Yemen: All immigrants and, nonimmigrant (temporary) visitors for pleasure or business.  (Note: as this Update describes, on April 10, 2018, the Administration removed Chad from the Travel Ban).
• Iran: All immigrants and nonimmigrants, with the exception of student and exchange (F,M and J) nonimmigrant visa holders (who nonetheless will undergo extra scrutiny).
• North Korea and Syria: All immigrants and nonimmigrants.
• Somalia: All immigrants. All nonimmigrants will be subject to extra scrutiny.
• Venezuela: Certain government officials and their family members, traveling on pleasure (B-2) or business (B-1) nonimmigrant visitor visas.

The ban applies to people from the named countries who were outside the U.S. and did not have valid, previously issued, U.S. visas on the ban’s effective dates. (For some individuals, that is September 24, 2017, but for others it is October 18, 2017. Those needing further clarification should speak with a competent immigration attorney.)

It does not apply to:

• Dual nationals using the passport of their non-targeted country.
• Permanent residents (green card holders), or those who already have refugee, asylee, withholding of removal or Convention against Torture status in the U.S., who are from the targeted countries and are returning from travel abroad.
• Those already granted advance parole returning from travel abroad.
• Persons granted admission or parole into the U.S. on or after the effective dates.
• Diplomats or those with similar visas.
• Theoretically, it also does not apply to those fleeing persecution and seeking protection, but that exception may be meaningless in practice.

How does this effect Maine businesses?

• If you have immigrant employees from any of the named countries, be aware of their stress due to the uncertainty of when their relatives, whom they may have been expecting to immigrate soon, will be able to reunite with them here in the U.S.
• Any employees (whether naturalized U.S. Citizens, permanent residents, refugees or asylees, etc.) from the specified countries can expect a heightened level of questioning at U.S. ports of entry following any travel abroad, despite the fact that Travel Ban 3.0 is not supposed to apply to them.  They should be advised to consult with a competent immigration attorney before making plans to travel abroad.
• Any employee from one of the named countries who is here on a nonimmigrant work visa issued prior to the ban’s effective dates should consult with a competent immigration attorney before making any plans to travel abroad, especially if the visa would need renewal abroad before the employee could return to the U.S.

On July 11, 2017, one week before the new International Entrepreneur Rule (IER), discussed here, was to take effect, the Administration issued a final rule delaying implementation of the IER (the “delay rule”), and requesting public comments after the fact.  The IER would have created a pathway for certain international entrepreneurs to apply for up to five years of temporary legal status (called “parole”) in the U.S. to launch their businesses, and potentially gain permanent residency in the meantime.

A lawsuit was filed by several international entrepreneurs and investors challenging the delay rule (National Venture Capital Association v. Duke). On December 1, 2017, the Federal District Court for the District of Columbia ruled for the plaintiffs, and vacated the delay rule. The Government requested a stay of the decision which was denied.

As a result, the IER, originally intended to take effect last July, is now in effect.   The government announced that it will comply with the Court’s order, but in that announcement it reiterated that it still intends to rescind the IER, and is at work on a proposed rule to do so.   The government nonetheless will have to accept notice and comment before publishing a final rule.

While in theory, the Court’s ruling means that international entrepreneurs who meet specified eligibility criteria can now apply for parole for an initial 30 months to launch their businesses, parole decisions are always discretionary.

Given the Administration’s clear hostility to the rule, it remains to be seen whether applications under the IER will be adjudicated fairly, or whether USCIS will receive signals to discretionarily deny them.   This would be short sighted, given the impressive track record of immigrant entrepreneurs in the U.S.,  who will take their drive, creativity, and economic contributions elsewhere if the U.S. chooses not to make room for them.

International entrepreneurs and their U.S. partners or investors should consult with experienced immigration attorneys for further information.