The Ninth Circuit Court of Appeals has upheld the ruling of a lower federal court that places a Temporary Restraining Order (TRO) on the provisions of President Trump’s controversial Executive Order suspending for 90 days visa travel into the United States from Iran, Iraq, Syria, Yemen, Somalia, Sudan and Libya.  Citizens from these countries who have been issued valid visas may again travel to U.S. ports-of-entry and request admission in their visa category.

Any legal challenge remaining would be taken by the U.S. Department of Justice, by appealing to the U.S. Supreme Court.  It is important to note that the legal (or ‘substantive’) merits of the case — in other words, the legality of the order under the U.S. Constitution — have not been argued or decided.  A ‘TRO’ temporarily stops an act based on likelihood of the challengers eventual legal success. . . in the opinion of the court issuing or upholding the TRO.

In  short, while the visa restriction provisions of the Executive Order have been suspended, it remains to be seen whether it may ultimately succeed or fail on the legal merits.  President Trump may decide to withdraw the order and issue a new Executive Order that is more narrowly designed to withstand legal challenges.

Part of the current Executive Order remains in effect.  The 120 day ban on refugee admissions has not been suspended, however waivers are available in certain cases.

These are serious legal issues with widespread ramifications for U.S. immigration law.  Check back for updates as we monitor the evolving law and politics of President Trump’s sweeping Executive Order.

 

 

 

Microsoft Takes Lead on H-1B Front

Posted October 4, 2012

Microsoft corporation last week unveiled a public proposal of its own devise that would create an additional 20,000 H-1B visas for foreign employment in occupations in the STEM categories (science, tech, engineering, math).  Current law allows for 65,000.  Brad Smith, general counsel of Microsoft, suggests that willing U.S. employers might be willing to pay up to $10,000 in fees for each placed worker, producing additional government revenue of $500 million a year.  The U.S faces a projected shortfall of approximately half of 120,000 computer-related positions requiring a bachelor’s degree expected to materialize over the next ten years.  The company’s proposal would also allow issuance of up to 20,000 additional green cards a year to STEM workers caught in the 6-year H-1B cap no-mans land, with numbers drawn from existing unused pools.

This is a sensible approach that overlays market demands in a new economy on established immigration preferences under outdated law – not to mention, cuts into the federal deficit. Can business needs be tethered to sensible comprehensive reform, or should Microsoft be seen as a special interest?  It’s up to Congress and the president.

Visas and Status, Generally

Posted October 4, 2012

Time is an elemental concept of the U.S. immigration system. For foreign visitors, the two words most often preceding an immigration question are “how long. . . ?” This is a pertinent inquiry, as a visa and one’s visa ‘status’ in the United States, although distinct in form, are alike in one important respect: both can expire at any given time based on complex rules intended to govern the foreigner’s actions within the country. Conversely, one may expire while the other remains valid. This layered permission aspect of U.S. immigration can and often does cause confusion and problems.

If you are a foreigner physically present in the United States, it is important to distinguish your status from your visa. The visa in your passport is much like a ticket, or a license, which, if granted (usually by a U.S. consulate or embassy abroad) merely allows you to apply for admission at a U.S. port-of-entry, under assumed qualifications based on your expressed intent in applying for the visa. A visa allows this application at the port-of-entry, but does not guarantee your lawful presence in the United States after entry. Your ability to maintain lawful presence in the United States under a particular visa category (B-2, J-1, H-1B, etc.) is governed after entry by rules related to your actual ‘status.’

If you are in the U.S. temporarily, such as a temporary worker, student, or visitor for business or pleasure, you possess non-immigrant status.  If you are in the U.S. with the intent of eventually obtaining permanent residence, you possess immigrant status.  Status, as such, is the initial focal point for legal analysis related to any foreigner’s current immigration circumstances and goals moving forward.

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The O visa category is reserved for aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1), the artist or athlete’s support staff (O-2), and the spouse and/or children (O-3) of the principal O-1 visa holder.

To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. The category does not include extraordinary ability in the arts, motion pictures or television.  There is currently no annual cap on O visas.

Evidentiary Requirements:

The U.S. employer should file the petition (Form I-129) with:

  • A written advisory opinion from a peer group (labor organizations included) or a person designated by the group with expertise in the alien’s area of ability;
  • A copy of any written contract between the employer and the O-1 visa beneficiary, or a concise summary of the terms of the agreement under which the O-1 (and O-2, if any) visa beneficiaries will be employed, including location(s) and duration of employment;
  • Evidence that the O-1 visa beneficiary has received a major, internationally-recognized award, or evidence of at least three of the following:

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