HSE LEGALcurrents

In recent weeks, United States Citizenship and Immigration Services (“USCIS”) and the Trump administration made a number of noteworthy policy changes affecting immigration. These changes will eliminate a program providing work authorization for approximately 800,000 foreign nationals who arrived in the U.S. as children without valid status, restrict international travel during the permanent residence (green card) process, and implement mandatory interviews for all employment-based permanent residence applications. 

DACA Rescission

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the Deferred Action for Childhood Arrivals (DACA) Program. Despite this decision, employers may continue employing DACA employees until their employment authorization documents expire. In addition, DACA recipients whose employment authorization expires prior to March 5, 2018 may still apply to renew their work authorization. Employers should notify these individuals that there is an October 5, 2017 deadline to apply for such renewals. DACA recipients whose work authorization expires after March 5, 2018 are not eligible for a renewal.

DACA provides work authorization and protection against deportation for approximately 800,000 undocumented foreign nationals who arrived in the U.S. as children. In rescinding the program, the government will no longer accept new DACA applications, but as noted above, will renew permits in some cases for individuals already covered by the program. The Trump administration has asked Congress to develop a legislative solution to address DACA, but it is unclear whether Congress will be able or willing to do so. We will provide updates as they become available.

Increased Travel Restrictions During Permanent Residence Application Process

USCIS recently started denying permanent residence travel authorization applications for individuals who travel internationally before their applications are approved. Foreign nationals should contact our office to accommodate planned international travel through the permanent residence process. Even with careful planning, foreign nationals may face a two to five month travel prohibition after filing these applications. This travel prohibition is more likely for derivative family members (such as those in H-4 and L-2 status) and employees who are in a visa status other than H-1B or L-1 (such as E, F-1, TN, or O-1).  

This travel authorization, known as Advance Parole, is granted to permanent residence applicants (and other types of foreign nationals) while they are waiting for their permanent residence applications to be processed, which can take more than a year in many cases. These denials represent a significant departure from the government’s longstanding policy to allow foreign nationals in H-1B or L-1 visa status to travel outside of the U.S. while their permanent residence and Advance Parole applications were pending. 

Interviews Required for Permanent Residence Applications

Effective October 1, 2017, USCIS will require in-person interviews for all employment-based permanent residence applications (Form I-485). Employers may wish to prioritize permanent residence sponsorship for key employees, in light of the additional delay this interview requirement will add to the permanent residence process. In addition to the added delay, these interviews may require significant travel for foreign nationals.

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This publication is provided as a service to clients and friends of Harter Secrest & Emery LLP. It is intended for general information purposes only and should not be considered as legal advice. The contents are neither an exhaustive discussion nor do they purport to cover all developments in the area. The reader should consult with legal counsel to determine how applicable laws relate to specific situations. ©2017 Harter Secrest & Emery LLP