On January 27, 2017, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The text of the order is alarmingly broad and carries potential to impact many more people than those suspected of terrorism including foreign nationals present in the U.S. in lawful nonimmigrant statuses, lawful permanent residents, and citizens of dual nationalities.  Many lawsuits have ensued across the country seeking to halt the January 27 EO.

A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. The next decision issued by a federal court in Massachusetts additionally barred federal officials from detaining or removing individuals subject to the EO. At least two other courts have also issued rulings. In a case filed in Virginia, the court ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred officials from deporting covered individuals for the next seven days. In a case out of Washington State, a federal judge barred the federal government from deporting two unnamed individuals from the United States.

The Department of Homeland Security has released a statement indicating that the agency “will comply with judicial orders.” This statement was clarified further by Secretary Kelly, who released a press statement clarifying that the entry of lawful permanent residents to the United States continues to be in the national interest. Federal agencies charged with enforcement of the EO continue to develop their own internal guidance to balance compliance with the EO and existing laws, however new developments continue to ensue by the hour.

As noted, due to the broad language of the EO there is potential for adverse impact lawfully present nonimmigrants, lawful permanent residents, and citizens with dual nationality for those nationals of the seven countries specifically listed in the travel ban – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Additionally, there is at least some associated risk for foreign-born travelers of other nationalities seeking entry to the U.S. as there have been discussions within the administration of updating the restrictions list of countries. Moreover, admission procedures at U.S. ports of entry and visa processing procedures at U.S. Consular posts throughout the world are likely to be significantly altered. The public is reminded that both the U.S. Department of State and the U.S. Customs and Border Protection have a wide latitude of discretion with respect to admissions procedures and visa processing. As a result, cancellation of all non-essential international travel is encouraged at this time regardless of nationality. Those who have essential travel needs necessitating U.S. departure are encouraged to contact immigration legal counsel to discuss any risks associated with international travel at this time.

michelle-garcia-photoMichelle joins Mehlman Barnes LLP as a first-year associate. Michelle has a passion for immigration law as her family members are from Buenos Aires, Argentina and immigrated to the United States 30 years ago. Michelle is the first-generation U.S.-born citizen and the first to pursue a higher education in her family. Prior to joining Mehlman Barnes LLP, Michelle worked in an employment-based immigration firm where she handled numerous matters for employers including H-1, L-1, TN, O, EB1 and PERM cases.

Michelle was raised in Redondo Beach, California and relocated to San Diego in 2010 to attend San Diego State University where she obtained her Bachelor’s Degree in Political Science. Michelle received her Juris Doctorate degree from Thomas Jefferson School of Law in 2015, graduating with magna cum laude honors. While in law school, Michelle worked at numerous law firms assisting foreign nationals in obtaining various family-based and employment-based visas. She was also a member of the Thomas Jefferson Law Review where she wrote a note advocating for the right to counsel in immigration removal proceedings. Additionally, Michelle participated in the ABA Immigration Justice Project’s Removal Defense Clinic and  interned at the U.S. Immigration Court in San Diego. Michelle is currently an active member of the American Immigration Lawyers Association.

smwagnerSandra comes to the firm with over 20 years of experience practicing immigration law.  Sandra is a member of the California Bar and an active member of the American Immigration Lawyers Association (AILA) on both the national and local chapter levels. She currently serves on AILA’s national finance committee and the San Diego AILA chapter advocacy committee. She previously served on the AILA national religious worker committee, California Service Center committee and transparency committee. She served two terms as San Diego AILA Chapter chair. She also belongs to the American Bar Association, the San Diego County Bar Association and the St. Thomas More Society.

Sandra frequently speaks to attorneys, professional associations and civic organizations on immigration issues. She has published articles on immigration matters such as religious workers and their employers as well as immigration practice in the San Diego District Office of U.S. Citizenship and Immigration Services. Sandra is an adjunct professor with the University of San Diego School of Law, where she teaches immigration law and supervises the Immigration Clinic.  In addition, she has also served as a panelist for the University of San Diego Immigration Reform Panel.

Sandra obtained her law degree from the University of San Diego, where she was a volunteer translator for a National City legal clinic, chief justice of the honor court, and a member of the San Diego Law Review. She received her B.A. degree with highest honors in Spanish from St. Lawrence University. She spent her junior year abroad studying at the University of Madrid.

Sandra plays bass clarinet and sax with the San Diego Concert Band, Pomerado Concert Band, JELLS woodwind quintet, and San Diego Clarinet Society. She is a merit badge counselor for Boy Scout law-related merit badges. She also serves on the finance council for her church.

The Department of Labor’s OFLC statistics on the PERM employment certification program and H-1B temporary worker program as of 6/30/16, reveal the number of applications received, top occupations, work site states and industries.  Topping the charts in both programs, are computer and mathematical occupations with California as the most requested work site. See PERM Statistics FY 2016 Q3 and H-1B Statistics FY 2016 Q3

Today, U.S. Citizenship and Immigration Services (USCIS) announced receipt of over 236,000 H-1B cap subject petitions during the one week filing period, which began April 1st. Among the 236,000 petitions received included sufficient filings to exhaust both the general-cap of 65,000 as well as the additional 20,000 eligible for the advanced degree exemption.

USCIS further confirmed that it conducted a computer-generated random selection process, or lottery, on April 9th, selecting enough petitions to meet the annual quota for the fiscal year. The selection process for the advanced degree exemption was conducted first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.  As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

It is important to remember that it may take several weeks for USCIS to issue receipt notices confirming assignment of a cap number and/or to complete the rejections process for unselected petitions.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.