Immigration Highlights

August 29, 2018

NP Immigration Newsletter

Author(s): Courtney H. New, Jason Gerrol

The U.S. immigration landscape continues to shift. This alert contains several updates from the last few weeks.

Executive Actions

President Trump and Mexico agree to NAFTA revisions

On Monday, August 27, President Trump announced that the U.S. and Mexico have reached an agreement to revise certain portions of the North American Free Trade Agreement (NAFTA), an over two-decade old trade agreement that President Trump has repeatedly chastised as the worst trade deal in our country’s history. The agreement between the Trump administration and Mexico appears to focus on trade, rather than NAFTA’s immigration provisions (i.e., TN visas). Conspicuously absent from the discussions was Canada, with whom the Trump administration has been engaged in a trade tit for tat, resulting in President Trump labelling the agreement as simply the United States Mexico Trade Agreement. Importantly, any revisions to NAFTA would need Congressional approval before going into effect, but the agreement with Mexico does signify the Trump administration’s continued focus on renegotiating NAFTA, which ultimately could have repercussions for TN visa holders.

For more information regarding the recent NAFTA discussions, see this NY Times article.

Law and policy updates

DHS confirms intention to end H-4 work authorization

The U.S. Department of Homeland Security (DHS) has again confirmed its commitment to end a rule enacted under President Obama that allows spouses of H-1B visa holders to work in the U.S. under certain conditions. The DHS statement was made in the context of litigation, reaffirming a similar statement made by DHS in December 2017. The required rulemaking process to end the H-4 Employment Authorization Document (EAD) rule has not been initiated, but is likely imminent given DHS’s repeated statements regarding the rule. H-4 EAD recipients should evaluate their continued eligibility for work authorization should the H-4 EAD rule be terminated.

The current requirements for employment authorization for certain H-4 spouse can be found here.

USCIS issues final policy regarding accrual of unlawful presence for F, J and M visa holders

By policy memorandum dated August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) issued its latest guidance regarding the accrual of unlawful presence by international student (F-1), exchange visitor (J-1) or vocational student (M-1) visa holders. Consistent with an earlier May 10, 2018 policy memorandum, effective August 9, 2018, F, J and M visa holders will begin to accrue unlawful presence upon failure to maintain F, J or M non-immigrant status, by, for example, no longer attending school or engaging in an unauthorized activity. The August 9, 2018 guidance differs from the earlier May 10, 2018 guidance in certain respects (e.g., the “tolling” effect of an F-1 reinstatement application), but the overall effect remains the same and F, J or M visa holders (including dependent family members) should be sure to work with their sponsoring institutions to ensure they remain in status and do not inadvertently accrue unlawful presence.

A copy of the August 9, 2018 policy memorandum is available here. A general overview of the significance of unlawful presence can be found here.

U.S. District Judge requires USCIS to accept and process DACA renewal applications

On August 17, 2018, the U.S. District Court for the District of Columbia issued an order in NAACP v. Trump revising a prior order holding that the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program was unlawful and requiring the government to accept both new and renewal DACA applications. The August 17, 2018 order again found the Trump administration’s decision to end DACA unlawful, but temporarily scales back its initial ruling by requiring USCIS to accept and process only DACA renewal applications (or applications by individuals who have previously had DACA), and not first-time applications or applications for advance parole travel authorization. DACA recipients should note a separate lawsuit filed in Texas district court, Texas v. Nielson, calls for an end to all DACA grants and renewals going forward. A decision in Texas v. Nielson has not been issued, and in light of the continued litigation both for and against the DACA program, DACA recipients should discuss their particular circumstances with immigration counsel.

For general information regarding DACA renewals, see this USCIS page.


USCIS expands suspension of Premium Processing service for H-1B petitions

On August 28, 2018, USCIS announced the extension of the existing temporary suspension of Premium Processing service for cap-subject H-1B petitions, and the expansion of the temporary suspension to now include all other H-1B petitions, except cap-exempt petitions (i.e., those petitions filed by cap-exempt employers or where the beneficiary will be employed at such an organization) and H-1B extension petitions. The suspension will go into effect September 11, 2018, and is significant in that employers will no longer be able to request Premium Processing service for H-1B Change of Employer petitions, for example, and pending H-1B cap-subject petitions (i.e., those petitions selected in this year’s H-1B “lottery”) may not be approved by October 1, 2018 (and therefore impacting those international students whose F-1 work authorization expires September 30). Premium Processing service, when available, allows for the submission of an additional $1225 filing fee to USCIS in exchange for a 15-day adjudication period of the H-1B petition. Without Premium Processing service, USCIS may take several months before issuing a decision on an H-1B petition.

Employers and H-1B beneficiaries should consult with an immigration professional regarding the impact of the suspension on their respective petitions.

For more information, see our Nixon Peabody Client Alert.

TPS re-registration period now open for Somalia

By notice dated August 27, 2018, DHS confirmed the extension of Temporary Protected Status (TPS) for Somalia for an additional 18 months through March 17, 2020. The 60-day re-registration period for TPS beneficiaries runs from August 27, 2018 through October 26, 2018. As background, DHS may designate a country for TPS when conditions in that country prevent the safe return of its nationals and, similarly, may terminate TPS once those conditions have improved.

For more information, see the USCIS TPS page for Somalia.

TPS re-registration period now open for Yemen

Similarly, by notice dated August 14, 2018, DHS confirmed the extension of TPS for Yemen for an additional 18 months through March 3, 2020. The 60-day re-registration period for TPS beneficiaries runs from August 14, 2018 through October 15, 2018.

For more information, see the USCIS TPS page for Yemen.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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