Total Articles: 511
On November 12, 2019, the Supreme Court of the United States heard oral argument on the legality of the Department of Homeland Security’s (DHS) decision to terminate Deferred Action for Childhood Arrivals (DACA), an Obama-era program that provides work authorization and protection from deportation to young undocumented immigrants who were brought to the United States as children. The roughly 80-minute session focused on two primary questions: whether the Court had the authority to review DHS’s decision to end DACA and, if so, whether the decision was legal.
The Department of Homeland Security (DHS) has announced that it will automatically extend the validity of temporary protected status (TPS) documents and work authorization for qualified beneficiaries from El Salvador, Haiti, Nicaragua, Sudan, Honduras and Nepal.
The U.S. Supreme Court has heard oral argument on whether the Department of Homeland Security (DHS) lawfully terminated the Deferred Action for Childhood Arrivals (DACA) Policy. The Court’s decision in a consolidated case (Homeland Security v. Regents of the University of California, Nos. 18-587, 588, and 589) will affect more than 700,000 individuals who came to the U.S. as children without proper documentation.
The Supreme Court heard arguments today in a case involving the Trump administration's efforts to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program. DACA protects 700,000 young, undocumented immigrants living and working in the US from deportation. But that could change if the Court sides with the administration's arguments.
Predictably, the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” has been blocked from going into effect for the time being. The U.S. District Court in Portland, Oregon, in Doe v. Trump, issued a 28-day temporary restraining order (TRO) in an unusual weekend session just before the proclamation was to go into effect on November 3, 2019.
U.S. Citizenship and Immigration Services (USCIS) has announced that on December 2, 2019, its premium processing fee will increase from $1,410 to $1,440 for certain employment-based petitions. The $30 increase will apply to Form I-129, Petition for a Nonimmigrant Worker, as well as Form I-140, Immigrant Petition for Alien Workers.
U.S. Citizenship and Immigration Services (USCIS) has announced that it will once again use the Dates for Filing chart from the November 2019 Visa Bulletin to determine which applicants may file their adjustment of status applications. These dates are more advantageous for green card applicants for whom a green card number is not yet available, as they allow those applicants to apply for benefits such as employment authorization, travel permission, and access to potential green card portability provisions.
The Fairness for High Skilled Immigrants Act of 2019, introduced early in 2019 in both the House and the Senate (H.R. 1044 and S. 386), aims to eliminate the Green Card backlog for Indian and Chinese nationals. In July, the bill passed the House.
The Trump administration’s public charge rule is on hold, at least temporarily. The Department of Homeland Security (DHS) and the Department of State each introduced a version of the rule. Both versions were scheduled for implementation on October 15, 2019, and would have established expansive new tests to be used by those agencies when determining if certain visa applicants were likely to become public charges—a determination that would generally make them inadmissible to the United States.
President Donald Trump’s new “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” likely will reduce drastically the number of legal immigrants admitted to the U.S. It is scheduled to go into effect on November 3, 2019.
On October 11, 2019, the U.S. District Court in the Southern District of New York ordered a preliminary injunction blocking the implementation, by the U.S. Department of Homeland Security (DHS), of President Donald Trump’s revised public charge rule. The court’s order also enjoins DHS from implementing a series of new and updated immigration forms introduced in furtherance of the rule, which was scheduled to go into effect on October 15, 2019.
Online FY 2021 Diversity Lottery registration began on Wednesday, October 2, 2019 at noon (EDT) and ends on Tuesday, November 5, 2019 at noon (EDT). This year, 55,000 Diversity Visas (DVs) will be available. The Diversity Lottery provides visas to people from countries with historically low rates of immigration to the U.S.
The U.S. Department of State has released the October 2019 Visa Bulletin, the first for fiscal year 2020. As anticipated, many of the final action dates have rebounded after retrogressing in August and have returned to dates similar to those seen in the August 2019 Visa Bulletin.
October 1, 2020, is the REAL ID deadline, and most people will not be able to board even a domestic air flight in the U.S. without either a REAL ID-compliant driver’s license or a passport.
The Trump Administration has indicated it wants to establish a merit-based immigration system focusing on bringing more high-skilled workers to the United States. According to one Administration official, the aim is to attract “individuals who provide a cure for cancer or build that first subdivision on Mars.” Yet, it is becoming harder to obtain visas for high-skilled workers, including individuals of “extraordinary ability” who are applying for green cards in the EB-1A category. These days, even the most “extraordinary” of cases are resulting in Requests for Evidence and denials.
Customs and Border Protection (CBP) is directly involved in Hurricane Dorian rescue efforts. So far the agency’s Air and Marine Operations (AMO) has airlifted over 80 people, including citizens of the Bahamas and citizens of the U.S., from the ravaged Abaco Island and Grand Bahama to Nassau for medical treatment and shelter.
There have been an increasing number of reports that Immigration and Customs Enforcement (ICE) has begun conducting workplace site visits for F-1 students employed pursuant to optional practical training (OPT) in the science, technology, engineering, and math (STEM) fields. While ICE has had the authority to conduct on-site inspections since 2016, it has not exercised that authority until recently. Given this new development, companies that employ STEM OPT workers are encouraged to be prepare in case ICE visits their workplaces.
On your next international trip, you may see facial recognition technology in use. The Transportation Security Administration (TSA) started piloting this technology in late 2018. Now, in conjunction with various airlines, the use of facial recognition technology is growing and at some airports it is being used for everything from identifying passengers at gates to full “biometric terminals” where you only need your face to check in, check baggage, traverse security and board the plane. Even if they see the cameras in use, however, U.S. citizens may opt out because these programs are currently voluntary for them.
U.S. Citizenship and Immigration Services (USCIS) has had a change of heart. Instead of closing all 23 of its international field offices, as originally planned, the agency recently announced that it would keep seven offices open.
ICE raids generally are the results of months (or even years) of investigation by Homeland Security Investigations (HSI). Before a “raid” is conducted, a search warrant must be issued. To obtain a search warrant, HSI must show that facts establish probable cause to believe that there are violations of federal law, i.e., the company is willfully and unlawfully employing illegal aliens.
DHS Promulgates Public Charge Rule to “Promote Self-Sufficiency,” Penalize Reliance on Public Benefits
On August 14, 2019, the Department of Homeland Security (DHS) published the final version of its public charge rule in the Federal Register. According to a statement by DHS, the rule is intended to formalize the way in which the agency determines if an individual applying for a nonimmigrant visa or adjustment of status (to obtain a green card) is likely to become a public charge—a determination that would generally make the person inadmissible to the United States. The new rule is a broad expansion of not only the types of public benefits that can be considered, but of the discretion given to immigration officers in determining who is “more likely than not” to become a public charge.
On August 7, 2019, more than 600 agents from U.S. Immigration and Customs Enforcement (ICE) raided several companies across Mississippi. With the help of the local district attorney’s office, these raids resulted in the arrests of approximately 680 undocumented workers.1 Federal prosecutors involved described the investigation as “the largest single-state immigration enforcement operation in our nation’s history.”2 In response to this raid, Acting Director of ICE Matt Albence stated, “These are not new laws, nor is the enforcement of them new.”3 Mike Hurst, U.S. Attorney for the Southern District of Mississippi, added, “If we find you have violated federal criminal law, we are coming for you.”
US Immigration and Customs Enforcement (ICE) agents carried out what's being called the largest statewide workplace enforcement action in the nation's history in arresting 680 undocumented workers at several Mississippi food processing plants last week. ICE also seized records from the companies that employed these workers.
The House Judiciary Committee Subcommittee on Immigration and Citizenship asked the Department of Homeland Security to account for the delays in immigration processing at a hearing on July 16, 2019.
Six hundred and eighty workers from seven poultry processing plants across Mississippi were arrested by ICE in what was the largest workplace raid in a decade. Raids of this size require complex logistics and months of preparation. This raid has been in the planning stages for a year. “Sources close to the Department of Homeland Security said they recognized that the optics were difficult following the El Paso shooting. But preparation for the operation had been underway, with hundreds of government operatives flown in days ago.”
The Department of Homeland Security Immigration and Customs Enforcement (ICE) has sent an unprecedented number of I-9 audits, called Notices of Inspection (NOIs), in the previous three weeks reportedly to more than 3,000 companies. At least another 3,000 are likely on the way since ICE has requested (and received) an additional $6.5 million to hire new 27 Junior Compliance Officers (JCOs), some of whom will be staffing four new HSI (Homeland Security Investigation) offices in Charlotte/Charleston, Kansas City, Las Vegas, and Nashville/Louisville.
The August 2019 Visa Bulletin, released by the U.S. Department of State earlier this month, shows substantial retrogression affecting employment-based categories worldwide. The State Department expects the retrogression to be short lived and anticipates that the final action dates should return to those listed in the July 2019 Visa Bulletin by the start of fiscal year 2020 in October 2019.
Immigration and Customs Enforcement (ICE) threatened to start to carry out a series of immigration raids this weekend seeking to identify and apprehend undocumented individuals – with some potentially occurring at the nation’s workplaces.
The House of Representatives has taken a step in the direction of eliminating green card backlogs by passing the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) introduced by Representatives Zoe Lofgren (D-CA) and Ken Buck. (R-CO). The support was bi-partisan and passed in a 365 to 65 vote.
President Donald Trump announced that the Administration will not be proceeding with any further census litigation. The 2020 Decennial Census, which is already being printed, will be sent out without a citizenship question. Nevertheless, President Trump does want to obtain statistics on the number of residents in the country who are and are not U.S. citizens.
The Supreme Court of the United States has agreed to hear the appeals over the termination of the Deferred Action for Childhood Arrivals (DACA) program during its next term. In its order, the Court consolidated three pending DACA appeals and granted one hour for oral argument. The Court is expected to decide, once and for all, whether the Trump administration can end the DACA program. A decision is not likely until spring or early summer of 2020.
On June 10, 2019, Kenneth T. Cuccinelli became the new acting director of U.S. Citizenship and Immigration Services (USCIS), replacing L. Francis Cissna, who stepped down at the beginning of June 2019. Cuccinelli previously served as Virginia’s attorney general from 2010 through 2014.
The Trump Administration has been stepping up the collection of data in general and more specifically from visa applicants and travelers.
Foreign nationals are now required to provide a five-year history of social media usernames, telephone numbers, and email addresses when applying for U.S. nonimmigrant or immigrant visas.
The U.S. House of Representatives recently passed a bill that would cancel and prohibit removal proceedings and provide a pathway to citizenship for an estimated 2.5 million immigrants.
Premium processing has historically been available for all H-1B applications filed with U.S. Citizenship and Immigration Services (USCIS). However, from time to time, USCIS has suspended premium processing. On March 19, 2019, USCIS announced that it would use a staggered approach to premium processing for the fiscal year (FY) 2020 H-1B cap filing season, with two distinct phases for those cases filed in the lottery conducted in April 2019.
Two years ago, then-Secretary of State, Rex Tillerson, proposed collecting 15 years of travel, address and employment history and 5 years of social medical platforms, identifiers, phone numbers and emails from visa applicants selected for “extreme vetting.” It was predicted that this would affect only 0.5% of all visa applicants – approximately 65,000 annually. As of June 1, 2019, with the introduction of a new DS-160 Form, some of this information will be collected from all visa applicants – affecting approximately 15 million foreign nationals planning to come to the U.S.
We wrote yesterday on the U.S. Supreme Court declining to expedite review of DACA, as well as the recent and current legislative activity regarding the program. Later in the day on June 4th, the U.S. House of Representatives passed the Dream and Promise Act which would grant permanent residence status and a path to citizenship for “Dreamers” as well as for beneficiaries of the Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) programs. The bill had some bi-partisan support. Because of White House opposition, however, the bill is unlikely to be taken up by the Senate in its current form.
The “Dreamers” have received another reprieve from the U.S. Supreme Court.
In an announcement on Thursday, May 16, 2019, President Trump unveiled an outline of his new legislative plan to modernize the nation’s immigration framework, promising to “establish a new legal immigration system that protects American wages, promotes American values, and attracts the best and brightest from all around the world.”1 In introducing the plan, President Trump announced, “[w]e are proposing an immigration plan that puts the jobs, wages, and safety of American workers first.”2
On May 16, 2019, President Donald Trump outlined, in broad strokes, his new immigration plan. The proposal delineates two primary goals: securing the U.S. border and protecting American workers. Most notably, the plan includes the introduction of a new “Build America” visa that would replace existing green card preference categories and limit family-based immigration in favor of a merit-based points system. President Trump says that his plan will significantly increase the number of green cards awarded to highly skilled workers.
President Donald Trump has introduced the broad outlines of his proposal for immigration reform. The “merit and heart system” focuses on security and establishing a more fully merit-based system for permanent residence (“green card”) status.
Judge Orders Nationwide Preliminary Injunction Blocking Enforcement of Automatic Accrual of Unlawful Presence
The U.S. District Court for the Middle District of North Carolina has issued a nationwide preliminary injunction halting the enforcement of the Trump administration’s August 2018 policy memorandum that changed when “unlawful presence” accrues for foreign students and exchange visitors.
Long USCIS processing delays are now the norm for all types of immigration cases. Indeed, the delays have reached crisis levels. Processing times increased by 46% over the past two fiscal years and 91% since FY 2014.
President Donald Trump has nominated Mark Morgan to serve as the new director of U.S. Immigration and Customs Enforcement (ICE). Morgan spent 20 years in the Federal Bureau of Investigation before being appointed chief of U.S. Customs and Border Protection during the final months of the Obama administration. Despite being ousted from the role shortly after President Trump took office, Morgan has remained a vocal supporter of Trump’s immigration policies. Morgan must be confirmed by the Senate before he can assume the position.
The days of spontaneously traveling to Europe on a whim are coming to an end for U.S. citizens. For many years, U.S. citizens have been able to travel to most European countries with only a valid U.S. passport as a travel document. In 2021, the European Schengen Zone will be requiring a registration similar to the U.S. Electronic System for Travel Authorization registration system (ESTA) from U.S. citizens traveling to the Schengen Zone. Currently, the Schengen Zone includes 26 European countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
President Donald J. Trump has issued a memorandum aimed at reducing the number of visa overstays in the United States. The administration says those overstays undermine the integrity of the immigration system and harm the national interest. The memorandum calls on the secretaries of the U.S. Department of State (DOS) and U.S. Department of Homeland Security (DHS) to propose a plan to address and reduce the number of foreign nationals who remain in the United States beyond their period of authorized stay. The administration has floated the idea of suspending or limiting the issuance of visas to nationals of certain countries and/or implementing an “admissions bond” as possible enforcement methods.
USCIS Policy Alert Reiterates That Marijuana Use Has Immigration Consequences Regardless of State Law
A recent policy alert issued by U.S. Citizenship and Immigration Services (USCIS) highlights the conflict between federal and state laws when it comes to marijuana use. The alert reiterates that engaging in marijuana-related activities (use, possession, etc.) may trigger findings of federal controlled substance violations, even when those activities are permitted at the state level. In other words, it is important to remember that marijuana use can have legal consequences even in states where its use is allowed. Foreign nationals, in particular, risk losing immigration status or being denied naturalization if they are found to have engaged in such activities.
An employer receives a notification from the Social Security Administration that an employee’s name does not match his or her Social Security number in the employer’s records. What to do? In this podcast, Jorge Lopez, chair of Littler's Global Mobility and Immigration Practice Group, and Hector Galeano, senior attorney in the practice group, discuss the latest round of SSA mismatch letters and what steps employers can take after receiving such a notice. Topics include how the matter should be treated (i.e., a payroll versus immigration issue), typical reasons for a discrepancy, and when and how immigration status might play into an employer’s duty to respond.
DHS is apparently citing federal cannabis laws as grounds for denying citizenship. Further, USCIS announced on April 19 that the USCIS Policy Manual now clarifies that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law.
U.S. Citizenship and Immigration Services (USCIS) is planning to close all 22 of its international field offices over the next year. The agency is expected to shift its international workload to the U.S. Department of State and to USCIS offices within the United States; USCIS believes the closures will allow the agency to reallocate its resources to better address the increasing immigration backlogs.
Because some of the 9/11 terrorists used fraudulent driver’s licenses to travel, Congress passed the REAL ID Act in 2005 to comply with the 9/11 Commission’s recommendation that the federal government establish minimum standards for the issuance of forms of identification, such as state driver’s licenses. After many starts, stops, and delays, the deadline set by the government for full enforcement of the Act is October 1, 2020. By that date, individuals must have compliant IDs in order to access certain federal facilities, enter nuclear power plants, and, importantly, board any commercial aircraft – even for in-country flights.
U.S. Citizenship and Immigration Services (USCIS) has completed the selection process for H-1B cap subject petitions filed for fiscal year (FY) 2020. On April 10, 2019, the agency ran computerized lotteries for both regular cap petitions and those subject to the U.S. advanced degree exemption after determining it had received a sufficient number of petitions to meet the congressionally mandated quota for each category. In all, USCIS said that it received 201,011 H-1B petitions in the five day filing period that ran from April 1 to April 5, 2019.
The Social Security Administration (SSA) No-Match letters to employers are notifications from SSA that an individual employee’s W-2 form does not match SSA’s records. The letters also inform employers that corrections are necessary and direct employers to use the SSA’s Business Services Online (BSO) database, which requires registration, to find out exactly which employees came up as “mismatched” and to respond.
Each month, foreign nationals await timely announcements from the U.S. Department of State’s (DOS) Visa Bulletin and U.S. Citizenship and Immigration Services (USCIS) to determine whether they are eligible to move forward with the last stage of their employment-based or family-sponsored permanent residence (“green card”) process. For April 2019, DOS and USCIS have confirmed that individuals in the employment-based green card process may rely on the final action dates chart in the Visa Bulletin.
Citing a rise in the use of electronic communications in the workplace and an increase in the number of employers providing documents to employees electronically, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin (FAB) on March 15, 2019 providing guidance on acceptable ways to notify employees electronically of plans to hire foreign workers.
Does the Immigration Reform and Control Act (IRCA) preempt states from using information in Form I-9 to prosecute a person under state law? The U.S. Supreme Court has agreed to review a case involving prosecution for identity theft under Kansas law based on information in the Form I-9 Employment Eligibility Verification. Kansas v. Garcia (No. 17-834).
There are about 2.4 million domestic employees in Mexico, 95 percent of whom are women and do not have social security benefits. The Mexican Supreme Court of Justice recently held that it is not legal to exclude domestic employees from the country’s social security system, which is administered by the Mexican Social Security Institute (IMSS).
The 2020 decennial census is scheduled to begin on April 1, 2020, but several cases challenging the Administration’s decision to include a citizenship question in the census are putting the Administration’s June 30, 2019, “go to print” deadline at risk. The question asks, “Is this person a citizen of the United States?”
U.S. Citizenship and Immigration Services (USCIS) has announced that premium processing will be available for the H-1B cap filing season for Fiscal Year (FY) 2020. The FY 2020 cap filing season will begin on April 1, 2019. USCIS will use a staggered approach to premium processing which will be implemented as follows:
In the context of mergers, acquisitions, and other corporate restructurings, during the due diligence process, employers often overlook the immigration-related considerations related to impacted foreign national workers. However, failure to complete a pre-close assessment of impacted foreign national workers, including assessments of work visa statuses and lawful permanent resident (e.g., green card) processes, can have negative consequences. Depending on the employee’s visa type and the nature of the corporate restructuring, some temporary work visas may not be eligible for transfer to the new employing entity.
Effective immediately, U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for all H-1B petitions. The resumption applies to new petitions as well as those that are pending with USCIS. USCIS’s announcement does not discuss whether premium processing will be available for upcoming filings for quota-subject H-1B petitions, which begins on April 1, 2019.
U.S. Citizenship and Immigration Services’ (USCIS) processing times continue to lag compared to previous years, according to data recently released by the agency. This is especially true for foreign nationals with pending green card applications whose average wait time has increased from six-and-a-half months in fiscal year (FY) 2015 (October 1 through September 30) to more than a year in the first quarter of FY2019. Wait times are not expected to improve anytime soon.
U.S. Citizenship and Immigration Services (USCIS) announced that the agency is postponing the implementation of the revised Form I-539 and the new Form I-539A. USCIS will continue to accept the current Form I-539, with the “12/23/16” edition date, until the close of business on March 21, 2019. USCIS had planned to implement the new forms on March 11, 2019—the same day it released them to the public—but agreed to provide a transition period after considering public feedback, according to representatives. This is a welcome development, as foregoing a grace period may have caused some foreign nationals to fall out of status if their applications had been postmarked by, but not received before, March 11.
On February 13, 2019, the Office of Federal Contract Compliance Programs (OFCCP) released a new policy directive, “to establish a voluntary compliance program for high-performing federal contractors.” According to OFCCP’s press release, “[t]he Voluntary Enterprise-wide Review Program (VERP) provides contractors with an alternative to OFCCP’s establishment-based compliance evaluations with a focus on recognizing contractors that demonstrate comprehensive corporate-wide compliance and model diversity and inclusion programs.”
Immigration case processing times have dramatically increased in the last few years, impacting U.S. businesses and immigrant families, often causing gaps in work authorization and even loss of employment. In a January 2019 Policy Brief, AILA (American Immigration Lawyers Association) opined, on the basis of USCIS data, that the Agency’s processing delays had reached “crisis levels under the Trump Administration,” noting that:
President Donald Trump has announced that the government shutdown is over, for now. He has agreed to sign a short-term spending bill that will re-open the government for three weeks, until February 14, 2019. The bill does not include any wall funding.
Is it possible that the Deferred Action for Childhood Arrivals (DACA) program might be the key to ending the government shutdown? A DACA-for-border-funding compromise that was taken off the table a year ago is again being talked about by some lawmakers. Here is an update on where DACA stands.
On November 16, 2018, United States Citizenship and Immigration Services (USCIS) Director L. Francis Cissna suggested that USCIS will discontinue its policy of denying certain pending I-131, Application for Travel Document applications when an applicant travels internationally. Cissna’s comments came during the Office of the Citizenship and Immigration Services Ombudsman’s Annual Conference. He gave no indication about when the change was likely to be implemented, but he did suggest that the new policy is forthcoming.
In this episode, Jamie Dietz and Tina Ho discuss the current business immigration landscape, from recent guidance and policy memos to practical insights for employers on understanding and preparing for this constantly evolving area.
The Department of Homeland Security (DHS) released its fall 2018 regulatory agenda, laying out its rulemaking goals through 2019. The published timeline is aspirational and does not represent a strict schedule. In fact, many items on the agenda are familiar carryovers from the past. Because the rulemaking process is multipronged, the time between the introduction of a proposed rule and implementation of the final rule can be lengthy. For that reason, regulatory agendas are perhaps most beneficial in that they provide insight into the agency’s priorities and give the public a general idea of what the agency hopes to accomplish in the foreseeable future.
Historically, the U.S. Department of Labor’s Wage and Hour Division has been the primary auditor of companies using H-2B visa to hire temporary, seasonal workers. But amid debates over the cap on H-2B visas and an expressed need for more H-2B workers the USCIS’ Fraud Detection and National Security unit (FDNS) is getting into the mix and conducting unannounced site visits.
Beginning October 1, 2018, U.S. Citizenship and Immigration Service (USCIS) will begin a staggered rollout of a new notice to appear (NTA) policy. The first phase of the rollout does not include employment-based petitions.
USCIS has announced that the 2020 Diversity Lottery will open for registration at noon EST on October 3, 2018 and run until noon EST on November 6, 2018. Fifty thousand green cards will be available.
U.S. Immigration and Customs Enforcement (ICE) continues a record-setting pace in auditing and investigating employers over worksite and I-9/E-Verify compliance concerns. Join Denver shareholder Chris Thomas as he covers the current challenges employers face and highlights steps they can take to ensure compliance.
There were no lazy days of summer to be had in 2018—at least not when it came to the introduction of new immigration policies by the Trump administration. The momentum with which it announced and implemented new policies over the course of July and August was dizzying, not only because there were so many changes but also because those changes were substantial. This article provides an overview of this summer’s most notable immigration policy changes and their likely impact on employers.
OFCCP Issues National Interest Exemption for Certain Contractors Providing Hurricane Florence Relief
On September 17, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued a National Interest Exemption (NIE) for certain employers that assist in Hurricane Florence relief activities. Under the NIE, contracting agencies will use modified equal employment opportunity (EEO) clauses in contracts entered into specifically to provide Hurricane Florence relief. If an employer enters into a construction or supply and service government contract that is specifically related to Hurricane Florence relief and incorporates these modified EEO clauses, the employer will not be required to develop affirmative action programs as is generally required by Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act of 1973.
Beginning September 11, 2018, USCIS immigration officers will have more discretion to issue petition and application denials without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs).
The U.S. Department of Homeland Security (DHS) announced that the fees charged by U.S. Citizenship and Immigration Services (USCIS) for premium processing of certain visa petitions will increase from the current rate of $1,225 to $1,410, beginning October 1, 2018. This jump in price, which represents almost a 15 percent increase over the current rate, is in step with the impact of inflation since DHS last adjusted premium processing rates in 2010. The new rule was published in the Federal Register on August 31, 2018.
On October 1, 2018 the premium processing fee for all Forms I-129 (Non-Immigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker) will be raised from $1,225 to $1,410. USCIS announced this almost 15% increase on August 31, 2018.
ICE and CPB consider hospitals and other healthcare facilities to be sensitive locations where enforcement actions should be avoided without prior approval or unless there are exigent circumstances. Despite that policy, undocumented aliens continue to be arrested at medical facilities where they are receiving treatment or where they have accompanied ailing family members.
Chief executive officers (CEOs) from more than 50 companies signed a letter sent to Secretary of Homeland Security Kirstjen Nielsen expressing their concern about the current course of immigration policy in the United States. Using words like “unfair,” “arbitrary,” and “inconsistent,” the CEOs alleged that the immigration system is not only disruptive to business operations but also “undermines economic growth and American competitiveness.”
U.S. Citizenship and Immigration Services (USCIS) announced the extension of its suspension of premium processing for all H-1B cases subject to the annual quota (also known as “cap cases”) for fiscal year 2019. The suspension was initially slated to end on September 10, 2018, but the end date has been pushed back until February 19, 2019, to help USCIS reduce the current H-1B backlog. USCIS also announced that, as of September 11, 2018, it will be expanding the suspension to include types H-1B petition types that were not covered by the original suspension.
xecutive Summary: In a significant policy shift, the U.S. Citizenship and Immigration Services (USCIS) recently published a new agency policy that substantially expands the authority of USCIS to put otherwise legal immigrants into deportation (also known as “removal”) proceedings. The policy vastly increases the categories of individuals to whom USCIS will issue a Notice to Appear (NTA) and significantly alters Department of Homeland Security (DHS) policy as to when USCIS, as opposed to the Immigration Customs Enforcement agency (ICE), will issue an NTA. The new policy epitomizes a dramatic shift away from the traditional role of USCIS as an immigration benefit processing agency with a service-oriented mission to one centered on immigration enforcement.
A recent court filing by the U.S. Department of Homeland Security (DHS) reaffirms the agency’s commitment to rescinding the H-4 rule, which provides work authorization to eligible spouses of certain H-1B visa holders who are in the process of becoming lawful permanent residents. In the document, DHS stated that its “intention to proceed” with the proposed rescission rule “remain[ed] unchanged,” but DHS did not address when it expected to publish the new rule.
U.S. Citizenship and Immigration Services (USCIS) has revised its website and announced that it will now allow F-1 students participating in the optional practical training (OPT) extension for individuals in science, technology, engineering and math (STEM) to work at third-party sites as long as the student’s employer can demonstrate that it has a bona fide employment relationship with the student, in addition to meeting all other training obligations.
Restaurants – which historically have relied on immigrants for a large part of their labor force – have a new challenge to face when it comes to running their businesses. Since taking office, President Trump and his administration have significantly increased worksite enforcement actions conducted by U.S. Immigration and Customs Enforcement (ICE), including I-9 audits and the return of worksite raids.
U.S. Citizenship and Immigration Services (USCIS) has issued a revised final policy memorandum updating the recently implemented unlawful presence policy that changed the way USCIS calculated unlawful presence for foreign students and exchange visitors. Pursuant to the newly released guidance, F and M visa holders will not accrue unlawful presence during the pendency of their visa reinstatement applications if they file their applications within five months of falling out of status. If a reinstatement application is denied, unlawful presence will begin accruing the day after the denial was issued. Similarly, J-1 visa holders whose applications for reinstatement are ultimately approved will not accrue unlawful presence.
On August 3, 2018, Judge John D. Bates of the U.S. District Court for the District of Columbia ruled in favor of fully reinstating the Deferred Action for Childhood Arrivals (DACA) program but stayed the effective date of the court order for 20 days to allow the Department of Homeland Security (DHS) time to appeal.
On July 31, 2018, the Department of Justice and Department of Labor announced a joint initiative to crack down on employers “that prefer to hire temporary visa workers over qualified U.S. workers.” This new partnership, memorialized in a memorandum of understanding between the agencies, is consistent with President Trump’s “America first” agenda and is responsive to longstanding complaints from some quarters that temporary worker visa programs are overused to the detriment of U.S. workers. The two federal agencies have committed to greater information sharing, cross referrals, and cross training.
Immigration and Customs Enforcement (ICE), a federal agency under the Department of Homeland Security (DHS), is charged with worksite enforcement of immigration compliance laws, among other duties. In addition to investigating whether employers have unauthorized workers, ICE looks for paperwork violations, which can generate large civil fines. Under federal law, employers are required to complete and maintain Form I-9s to verify the identity and employment eligibility of all individuals they hire. Agency officials estimate ICE audits could increase by up to 400 percent. We have seen a significant increase with our clients within the last month.
A recent announcement by U.S. Immigration and Customs Enforcement (ICE) shows that the agency is making good on its promise to quadruple the number of worksite inspections it conducts. Data released by ICE shows that between October 1, 2017, and July 20, 2018, its Homeland Security Investigations (HSI) unit opened 6,093 worksite investigations—a number three and a half times greater than the total investigations opened the year before. With more than two months to go before the end of fiscal year 2018, ICE seems well-positioned to meet its goal.
In the past week, Immigration and Customs Enforcement (ICE) has significantly increased the number of Notices of Inspection issued to employers nationwide, leading to a dramatic spike in I-9 audits. Unlike the enforcement initiative rolled out by federal authorities in February of this year, the latest sweep is no longer concentrated in Southern California but appears to be nationwide in scope.
Effective September 11, 2018, adjudicators for U.S. Citizenship and Immigration Services (USCIS) will have the authority to deny any application or petition that is incomplete or lacks sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The new guidelines are a reversal of the current policy, which requires that an RFE be issued unless there is “no possibility” that the deficiency can be remedied. Depending on the vigor with which it is enforced, this policy shift may eliminate the opportunity for petitioners and applicants to correct simple errors, like missing documents, or to beef-up documentation in support of an applicant’s eligibility, before the case is denied.
On June 26, 2018, the Supreme Court of the United States upheld the travel ban implemented by the Trump Administration in September 2017. This travel ban was the third permutation after two other travel bans failed to withstand lower court scrutiny. Unsurprisingly, the travel ban was upheld along the party lines of the Supreme Court Justices.
In one of its most anticipated cases in decades, a deeply divided U.S. Supreme Court ruled 5-4 in favor of upholding President Trump’s latest “travel ban” today, delivering a key win to the Trump administration and one of its strict immigration enforcement stances. In its decision, the Court concluded that the president’s executive order—which largely targeted individuals from predominately Muslim countries—did not violate the Constitution’s Establishment Clause by favoring one religion over another. Despite the rhetoric from the president and those in his administration that some claimed to prove religious bias, the Court ruled that the order was a lawful exercise of the authority granted to the president by Congress (Trump v. Hawaii).
On June 19, 2018, unannounced ICE raids resulted in the arrest of more than 140 workers at four meat processing plants in Ohio. ICE calls this its largest workplace raid in recent history.
U.S. Immigration and Customs Enforcement (ICE) announced that it opened 3,510 worksite investigations in the past seven months, more than doubling the number of investigations opened during fiscal year 2017. The scrutiny on U.S. employers is part of ICE’s effort to create a “culture of compliance” in the business community and is expected to intensify as President Trump takes further steps to crackdown on immigration abuses.
U.S. Immigration and Customs Enforcement’s former acting Director, Thomas Homan, indicated last fall that he wanted to quadruple worksite enforcement, and ICE is on track to do so. ICE recently announced it performed 3,510 worksite enforcement actions between October 1, 2017 and May 4, 2018. During the entire fiscal year of 2017, ICE conducted only 1,716 actions. ICE has also already performed 2,282 I-9 audits during fiscal year 2018, while performing only 1,360 audits during fiscal year 2017.
ICE announced its enforcements investigations in the last seven months have already doubled last year’s total.
USCIS and the Department of Justice are teaming up and collaborating to “better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States.” They have entered into a Memorandum of Understanding (MOU) that will increase their ability to share information about cases and training and make referrals.
U.S. Citizenship and Immigration Services (USCIS) launched a modernized version of E-Verify on April 23, 2018. The changes are a result of feedback from E-Verify users and are intended to enhance the employment eligibility verification process.
Beginning April 30, 2018, U.S. Citizenship and Immigration Services (USCIS) started phasing in the use of the U.S. Postal Service’s (USPS) Signature Confirmation Restricted Delivery service to mail permanent residency documents and other secure documents to recipients. This USPS process is expected to increase the security and efficiency of document delivery and provide applicants with options for better tracking and more accurate information concerning the delivery of their important documents.
The extension of the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM) allows eligible students to apply to extend their post-completion OPT authorization. Under the 2008 interim final rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT (per the 17-month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify electronic employment eligibility verification program, as determined by U.S. Citizenship and Immigration Services (USCIS).
Could you imagine losing your workers overnight for immigration reasons due to an unrelated investigation? Recent headlines about an April 5 immigration raid of a meat processing plant in Tennessee announced the biggest employment crackdown under the Trump administration. U.S. Immigration and Customs Enforcement (ICE) took 97 people into custody; 10 were arrested on federal immigration charges and one on state charges, while 86 were detained for being in the country illegally.
The Immigration and Nationality Act provides that any alien convicted of an “aggravated felony” after entering the United States is subject to deportation. The Supreme Court has decided, 5-4, that the statute’s defining an aggravated felony as “a crime of violence” is unconstitutionally vague. Sessions v. Dimaya, No. 15–1498 (Apr. 17, 2018). Justice Neil Gorsuch sided with the liberals on the Court.
According to a recent announcement, U.S. Citizenship and Immigration Services (USCIS) will be implementing a new pilot program, beginning April 30, 2018, purportedly “ to facilitate the adjudication and admission process of Canadians traveling to the U.S. as L-1 nonimmigrants” under the North American Free Trade Agreement (NAFTA). The program, which, for now, is being applied only at the U.S. Customs and Border Protection (CBP) port of entry (POE) in Blaine, Washington, will jettison on-the-spot L-1 NAFTA adjudications at the POE, and direct U.S. employers to instead submit a Form I-129 petition, in addition to supporting evidence for Canadian citizens seeking to enter the United States as L-1 executives or managers, to the California Service Center. There will be no premium processing surcharge for this service. USCIS will collect fees, issue receipt notices, and adjudicate NAFTA L-1 applications for Blaine through October 31, 2018.
U.S. Citizenship and Immigration Services (USCIS) recently announced that beginning April 2, 2018, permanent resident cards, employment authorization document cards (EADs), and travel documents (Advance Paroles) that are returned to USCIS as undeliverable by the U.S. Postal Service will be destroyed after 60 days. To prevent this, intended recipients must contact USCIS to provide a correct address in a timely manner.
In what appears to be the largest worksite enforcement raid under the current administration, ICE arrested 97 immigrants at a meatpacking plant in Tennessee. Eighty-six of the people apprehended were arrested on immigration charges. According to reports, ICE has detained 54 individuals.
Since 2011, government processing of green card applications has taken longer and longer. Concerns expressed by lawmakers, immigration advocates, and the public prompted Senator and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs Claire McCaskill (D-MO) in late-2016 to ask the Office of Inspector General (OIG) of the DHS to review these green card processing timelines. USCIS, the agency with oversight for reviewing green card applications, aims to adjudicate green card applications within 120 days. That goal was not being met.
On March 20, 2018, U.S. Citizenship and Immigration Services (USCIS) announced the temporary suspension of the premium processing program for all fiscal year (FY) 2019 cap-subject H-1B cases. The premium processing program allows a petitioner to pay an additional government filing fee to USCIS in return for a guarantee that the agency will issue a decision on the case within 15 calendar days. This suspension only impacts new H-1B quota cases filed for FY 2019. H-1B petitions that are exempt from the annual quota (such as extensions of stay, requests to amend existing H-1B status, and requests for changes of employer) can continue to be submitted with requests for expedited processing under the premium processing program. USCIS noted that the suspension is expected to last until September 10, 2018.
The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.
The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.
News outlet Reuters has reported that during the first month of Travel Ban 3.0, 8,400 individuals from Chad, Iran, Libya, North Korea, Syria, Somalia, Yemen, and Venezuela applied for visas, while only an estimated 100 waivers were granted.
On March 5, 2018, United States Citizenship and Immigration Services (USCIS) published an announcement in the Federal Register stating that it will permit current Syrian beneficiaries of temporary protected status (TPS) to extend their status through September 30, 2019, provided they reregister for the designation between March 5, 2018, and May 4, 2018. Additionally, USCIS announced that it will automatically extend employment authorization documents (EADs) for Syrian nationals currently under the TPS program with EADs that expire on March 31, 2018, for 180 days through September 27, 2018.
DOJ Challenges California Law Placing Restrictions on Employer's Ability to Allow ICE into the Workplace
On March 6, 2018, the U.S. Department of Justice filed a lawsuit challenging California’s Immigrant Worker Protection Act (Assembly Bill 450), among other laws designed to limit the extent state law enforcement and prisons may cooperate with the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE). The DOJ’s lawsuit requests injunctive relief against California, and argues that the Immigrant Worker Protection Act and other California laws violate the Supremacy Clause of the Constitution.
If foreign national employees have recently experienced trouble scheduling INFOPASS appointments, it may be because USCIS is preparing for an expected rollout of a new pilot program over the next couple of months.
The Trump administration announced that it intends to file a notice of proposed rulemaking rescinding the Obama Administrations’ H-4 Employment Authorization Document (“EAD”) rule. In a declaration filed in conjunction with litigation over the validity of the H-4 EAD rule, Kevin J. Cummings, Chief, Business & Foreign Workers Division of USCIS, informed the U.S. Court of Appeals for the DC Circuit, “The anticipated publication of the proposed [H-4 EAD revocation] rule under the current timeline is June 2018.”
he Supreme Court of the United States has rejected the Trump administration’s request that it review a California federal court’s order temporarily halting the federal government’s action to end the Deferred Action for Childhood Arrivals (DACA) program.
The new USCIS mission statement, issued on February 22, 2018, by Director L. Francis Cissna, no longer emphasizes customer satisfaction, i.e., the satisfaction of petitioners and beneficiaries. Instead, it focuses on serving the American people and making sure that benefits are not provided to those who do not qualify or those who “would do us harm. . . .”
Following California Governor Jerry Brown’s signing of sanctuary laws in October 2017, the state has been targeted for a major ICE sweep to arrest undocumented individuals. ICE Director Thomas Homan stated that because California’s sanctuary laws nearly eliminate all cooperation with state law enforcement partners, ICE actions “will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community.”
Federal enforcement officials are amplifying their efforts to crack down on undocumented workers and the businesses that employ them, as Immigration and Customs Enforcement (ICE) officials have raided over 120 businesses in just the past five days.
On February 13, 2018, a U.S. district court in New York issued a nationwide preliminary injunction halting the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program.
Following January’s ruling by Judge William Alsup in San Francisco, a second federal court has issued a nationwide injunction ordering the government to keep DACA in place. Judge Nicolas G. Garaufis of the US District Court in Brooklyn, New York ruled that the rescission of DACA was “arbitrary and capricious” and that the equities and reliance interests favored an injunction.
California seems to be at odds with the Trump Administration over many subjects, including the legalization of marijuana, the expansion of off-shore drilling, the elimination of state and local tax deductions, and immigration.
The Trump Administration has released a new framework containing components of proposed immigration reform.
Immigration and Customs Enforcement (ICE) is the enforcement arm of the U.S. Department of Homeland Security. ICE’s mission is to protect the country from cross-border crime and illegal immigration. The agency focuses on illegal trade, prevention of terrorism, and even repatriation of stolen art. ICE also is responsible for enforcement of laws related to unlawful employment of workers.
The U.S. Supreme Court ruling that a federal citizenship statute setting different residency requirements for U.S. citizen fathers and mothers violates the Equal Protection Clause will apply only to individuals born on or after June 12, 2017, according to the updated Foreign Affairs Manual (FAM). It therefore would appear that an individual born prior to that date (and after 1952) to an unwed U.S.-citizen mother may argue that citizenship was acquired under the unlawful, “discriminatory” exception.
On January 20, 2018, the federal government entered into a partial shutdown following Congress’s failure to reach an agreement to continue funding the federal government. Certain federal agencies that rely solely on government funding will not be able to provide most services. Agencies that receive funding from fees or other government sources are expected to remain open, but are expected to experience service delays. Immigration processes are expected to be impacted by the shutdown, as summarized below.
On January 13, 2018, the United States Citizenship and Immigration Services (USCIS) announced that it has resumed accepting requests to renew a grant of deferred action under the Deferred Action for Childhood Arrivals (DACA) program. On September 5, 2017, the Trump administration announced that it would formally end the DACA program.
Slurpees are not the only ICE-y things being served at 7-Eleven these days. For the second time in five years, Immigrations and Customs Enforcement (ICE) raided dozens of 7-Eleven stores across the country in search of undocumented workers and managers who knowingly employ them. Yesterday’s raids involved 98 stores in 17 states from coast to coast, and resulted in at least 21 arrests.
On January 10, 2018 ICE issued a press release setting forth its three-pronged approach to worksite enforcement compliance: “compliance, through I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the ICE Mutual Agreement between Government and Employers (IMAGE) program, to instill a culture of compliance and accountability.”
As it signaled in late 2017,1 the Homeland Security Investigations (HSI, the U.S. Immigration and Customs Enforcement’s investigative arm) began 2018 with an increased emphasis on targeting employers and unauthorized employees through worksite enforcement action. Employers are now seeing the reported orders come to fruition and should expect more actions going forward.2
On December 15, 2017, the U.S. Department of Homeland Security (DHS) announced that it would implement enhanced security measures for the Visa Waiver Program as part of the administration’s ongoing counterterrorism efforts.
Extreme vetting, strict scrutiny, travel warnings, and the latest travel ban have made travel abroad more worrisome than ever this holiday season.
The Secretary of the U.S. Department of Homeland Security has the authority to grant Temporary Protected Status (TPS) to eligible foreign-born individuals who are unable to return home for certain safety-related reasons. TPS may be designated to a foreign country when there are circumstances in the country preventing it from adequately handling the return of its nationals. Reasons include ongoing armed conflict, environmental disasters, and other extraordinary and temporary conditions. During a designated period, individuals who are eligible for TPS may apply for temporary employment and travel authorization.
On December 4, 2017 the U.S. Supreme Court stayed the restraining orders against President Trump’s travel ban.1 The stay means that the September 24, 2017 presidential proclamation restricting travel into the U.S. from eight countries has gone into full effect until a decision is rendered on pending appeals. That order barred citizens of Chad, Iran, Libya, Somalia, Syria, and Yemen who lack a “credible claim of a bona fide relationship with a person or entity in the United States” from entering the U.S. Oral arguments on the cases challenging the travel restriction were scheduled for December 6, 2017 in the U.S. Court of Appeals for the Ninth Circuit and December 8, 2017 in the Fourth Circuit.
The Supreme Court just permitted the president’s latest travel ban – dubbed Travel Ban 3.0 – to be fully implemented while the litigation regarding the policy proceeds through the federal appellate court system. The Court’s December 4 ruling is the latest twist in the saga that currently impacts the residents of six predominantly Muslim countries.
On December 4, 2017, the Supreme Court of the United States approved the Trump administration’s request to allow full enforcement of its most recent travel ban while challenges against it continue within the federal judicial system. The travel ban at issue in this decision was imposed through a Presidential Proclamation on September 24, 2017. That proclamation replaced the president’s previous revised travel ban issued on March 6, 2017, through Executive Order 13780, which in turn had replaced the president’s original travel ban issued on January 27, 2017.
The latest version of the Trump Administration’s travel ban may take effect pending decisions expected shortly from the Courts of Appeals for the Fourth and Ninth Circuits, the U.S. Supreme Court has ruled.
The U.S. Court of Appeals for the Ninth Circuit has lifted, in part, a district court's injunction that temporarily blocked enforcement of the Trump administration's latest travel ban. In September, President Trump issued a proclamation restricting travel from eight countries. A federal district court in Hawaii had temporarily blocked the proclamation's enforcement. On November 13, 2017, however, the Ninth Circuit ruled that the travel ban could proceed for individuals who did not have a “bona fide relationship” with a close family member or a U.S. entity.
Multinational companies that wish to transfer managerial employees to the United States now have clarification on the criteria required to do so. A new five-prong test adopted by U.S. Citizenship and Immigration Services (USCIS) speaks directly to the issue of which multinational employees can be considered “function managers.” The basis for this clarification was first set forth in the Administrative Appeals Office decision Matter of G- Inc., a case in which. USCIS adopted the Matter of G- Inc. decision in a policy memorandum, making it binding on all USCIS adjudication officers.
The Ninth Circuit Court of Appeals has ruled to allow President Donald Trump’s latest travel ban proclamation to go into effect – at least in part.
Increased immigration enforcement and a reduction in illegal entry into the United States remain among the Trump administration's highest priorities. Notably, Acting ICE Director Thomas Homan has reportedly ordered Homeland Security Investigations (ICE’s investigative arm) to increase its worksite enforcement actions by "four or five times" in the new fiscal year.1 In the past, ICE conducted worksite raids to arrest employees who lacked work authorization in the United States. While worksite raids have not yet occurred under this administration, they are expected to return soon, this time targeting aggressively both employers and employees.
Having terminated Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone in May 2017 and having announced the limited extension of TPS for Haiti and Sudan until January and November 2018, respectively, the Trump Administration has turned its attention to Central America.
All I-129 petitions, whether initial requests or requests for extension of visa status, will be subject to the same level of scrutiny, USCIS has confirmed. The agency will no longer defer to the findings of a previously approved petition even when the key elements of the petition have remained unchanged. This will affect most nonimmigrant workers in the U.S.
USCIS's Updated Policy on Adjudications of Nonimmigrant Worker Visa Petitions Rescinds Former Deferential Policy
On October 23, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) rescinded policy guidelines in effect since April 2004 regarding requests for the extension of certain nonimmigrant visas (i.e., visa petitions filed using Form I-129). Previously, an adjudicator’s determination that a non-U.S. citizen met the eligibility requirements for granting a nonimmigrant visa was given deference in subsequent requests for a visa extension where the parties (petitioner and beneficiary) and the underlying facts and circumstances remained the same. The new policy guidelines now eliminate this deferential policy, requiring an adjudicator to review any request for a nonimmigrant visa extension the same as the review of the initial petition. In essence, a new adjudicator may question another adjudicator's prior approval of the nonimmigrant petition, even if there is no material change in the underlying facts.
When President Donald Trump issued his first immigration executive orders in January, enforcement was a primary focus. With the “Buy American, Hire American” Executive Order, it was clear that the Administration plans to increase worksite enforcement. This was confirmed by Acting Director of ICE Thomas Homan in a speech at the Heritage Foundation. Homan reported:
On April 18, 2017, President Trump signed the now well-known Executive Order (EO), “Buy American and Hire American.” In the immigration context, the EO proclaimed that it “shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.” To this end, the EO directed the various executive departments and agencies to “propose new rules and issue new guidance . . . to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
On October 19, 2017, the Internal Revenue Service (IRS) announced the cost-of-living adjustments impacting tax-qualified pension plans for 2018. The increase in the cost-of-living index met the statutory thresholds that triggered adjustments in some of the general pension limitations, including the limit on annual compensation and the individual limit on elective deferrals. However, the individual limit on catch-up contributions will not change for 2018.
On the eve of its taking effect, President Donald Trump’s third attempt at a travel ban has been blocked by the District Court in Hawaii.
We previously reported on the Department of State’s acceptance of applications for the diversity immigrant lottery. Since then, the DOS has announced on the Diversity Lottery website:
Efforts to reform our nation’s immigration system through legislation are frequently contentious and can become embroiled in larger legislative debates that make the passage of a bill into law a complicated process and, often, an unlikely prospect.
On October 8, 2017, the White House released a list of immigration priorities addressing border security, interior enforcement, and a merit-based immigration system. The priority list calls for the hiring of 10,000 ICE agents, 300 federal prosecutors, 370 immigration judges and 1,000 ICE attorneys. The Department of Homeland Security would be authorized to raise and collect fees from visa services and border crossings to fund border security and enforcement activities.
Deferred action for DACA recipients will start to expire in March 2018 and there is still no certainty about what will happen to them. Amidst legal challenges to the rescission of DACA, the introduction of a number of statutory fixes, and a supposed “deal” between President Trump and Democratic leaders to protect the “Dreamers,” there is now a new twist. The Trump Administration has announced a list of principles to include in any deal for the Dreamers. Those principles, some of which derive from the President’s various Executive Orders, include:
In May, the Temporary Protected Status (TPS) program for Haitians was extended for six months, until January 22, 2018. Generally extended in 18-month intervals, then-Secretary of Homeland Security John Kelly had extended the Haitian TPS for six months only because “Haiti has made progress across several fronts since the devastating earthquake . . . [and] [t]he Haitian economy continues to recover and grow, and 96 percent of people displaced by the earthquake and living in internally displaced person camps have left those camps.”
Introduced by Senators Thom Tillis (R-N.C.) and James Lankford (R-Okla.), the “Solution for Undocumented Children through Careers Employment Education and Defending Our Nation” (SUCCEED) Act would provide undocumented children with the opportunity to earn and keep legal status. SUCCEED provides a 15-year path to citizenship.
The White House issued a Presidential Proclamation on September 24, 2017, that imposes new travel restrictions on Iran, Libya, Yemen, Somalia, and Syria, as well as newly added countries North Korea, Chad, and Venezuela. The new restrictions are the result of the government’s review of worldwide visa security measures ordered in the March 6, 2017 Executive Order Number 13780 travel ban. Parts of the Proclamation went into effect immediately, and the rest will go into effect on October 18, 2017.
While employers are always juggling their compliance obligations, immigration issues have taken on particular importance under the Trump administration. In this podcast, Shareholder Jorge Lopez from Littler’s Miami office, along with Sean McCrory out of Littler’s Dallas office, discuss key workplace compliance issues. They review I-9 and visa requirements and the potential for an increase in ICE audits and worksite visits. Jorge and Sean also address the uncertainty surrounding the DACA (Deferred Action for Childhood Arrivals) and TPS (temporary protected status) programs. They offer employers tips on how to be proactive in light of expected changes in policy and enforcement priorities.
On September 24, 2017, President Donald Trump issued a “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” (hereinafter “the Proclamation”). A follow-up to Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States (popularly known as the “travel ban”) issued on March 6, 2017, the Proclamation was issued on the same day Executive Order 13780 was set to expire. That order barred citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen who lack a “credible claim of a bona fide relationship with a person or entity in the United States” from entering the United States.
President Trump signed a new and revised “travel ban” over the weekend, soon after the expiration of his second temporary travel ban. This latest executive order, signed on September 24, more directly targets individuals from a new list of seven countries and will create a new travel ban beginning October 18. What do employers need to know about Travel Ban 3.0?
On September 24, 2017, President Donald Trump issued a proclamation detailing updated travel restrictions on foreign nationals from eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The new restrictions are intended to replace the president’s previous travel ban issued through Executive Order 13780, which was set to expire on September 24, 2017. The restrictions vary in severity for the countries on the list. According to administration officials, the more tailored approach is based upon the perceived deficiencies in the countries’ respective levels of cooperation with U.S. requests for national security-related data on travelers.
The Trump Administration reportedly may replace the current travel ban with a country-specific set of restrictions.
The U.S. Citizenship and Immigration Services (USCIS) announced, on September 18, 2017, that it has resumed premium processing for all H-1B visa petitions subject to the fiscal year (FY) 2018 cap. USCIS had originally announced on March 3, 2017 that it would be suspending the premium processing program for all H-1B petitions received on April 3, 2017 or later, including all of the “cap-subject” H-1B petitions for FY 2018. This resumption of premium processing applies to pending petitions pursuant to both the 65,000 “regular” cap and the 20,000 U.S. advanced degree cap.
On September 5, 2017, the Trump administration announced that it would formally end the Deferred Action for Childhood Arrivals (DACA) program. Since then, 19 states and the District of Columbia have sued the Trump administration over its decision to rescind DACA, an Obama-era protection for individuals brought to the United States without proper documentation as children.
On September 5, 2017, the Trump Administration announced the end of the Deferred Action for Childhood Arrivals (DACA) program, which was created by the Obama Administration in 2012 through an Executive Order. Through DACA, nearly 800,000 undocumented individuals have been granted temporary work authorization and deferred action (which offered some protection from deportation). DACA recipients are immigrants who arrived in the U.S. in 2007 or earlier as children under the age of 16, who had no legal immigration status when the DACA program started in 2012.
On September 5, 2017, the Trump administration announced that it would formally end the DACA program. The Deferred Action for Childhood Arrivals (DACA) program, which commenced five years ago, protects certain undocumented immigrants brought to the United States as children from deportation and allows them to receive employment authorization. DACA is set to expire on March 5, 2018, and President Trump requested that Congress replace this policy with new legislation prior to DACA’s expiration. If Congress is unable to enact new legislation to protect this program, DACA will terminate, impacting over 800,000 individuals currently covered by this program.
Attorney General Jeff Sessions announced earlier today that the Department of Homeland Security will immediately “wind down” the Deferred Action for Childhood Arrivals (DACA) program. This action will affect almost 800,000 young people in the United States by ending their temporary protection under deferred action and their ability to hold proper work authorization. This announcement has received widespread attention in the news media, but what does it mean for the nation’s employers?
On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the Deferred Action for Childhood Arrivals (DACA) and the Department of Homeland Security (DHS) issued the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA). DACA is a program that provides deportation relief and work authorization to certain undocumented immigrants brought to the United States as children.
In a ruling that may help to diminish the fears of some undocumented individuals seeking aid in the aftermath of Hurricane Harvey, U.S. District Court Judge Orlando Garcia enjoined some key provisions of Texas’ anti-sanctuary law, S.B. 4. City of El Cenizo v. Texas and Texas v. Travis County, Civil No. SA-17-CV-404-OLG. The law was to become effective on September 1. The Judge found that there were possible preemption issues, as well as First Amendment violations.
Expansion of Interview Requirement for Green Card Applicants, and Rumors of Change in Travel Authorization for Green Card Applicants
U.S. Citizenship and Immigration Services (USCIS) has announced the expansion of mandatory in-person interviewing of applicants for lawful permanent residence. In its public announcement, USCIS notes that this change complies with the March 6, 2017 Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” That order also imposed the travel ban against all refugees and against nationals of six Muslim-majority countries.
On August 28, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it will begin requiring in-person interviews for certain applicants who apply for permanent residence. Effective October 1, 2017, USCIS will begin phasing in interviews for the following categories:
Indications are that President Donald Trump likely will end the DACA (Deferred Action for Childhood Arrivals) program while signaling the Administration’s willingness to work with Congress on an alternative program. Vice President Mike Pence, speaking in Texas, noted, “President Trump has said all along that he’s giving very careful consideration to that issue and that when he makes it he’ll make it with, as he likes to say, ‘big heart’.”
U.S. Customs and Border Protection (CBP) is deploying staff and equipment for search and rescue efforts and to work at local, state, and federal emergency operations centers in Texas in response to Hurricane Harvey.
Chicago, a sanctuary city, is challenging the Trump Administration’s ability to deny it needed law enforcement funds.
As the U.S. unemployment continues to drop to pre-recession levels, the supply of motivated and qualified workers is tightening. Gig economy businesses competing for a shrinking supply of labor may want to consider turning to refugees and asylum seekers to fill their ranks. It turns out that giving gig platforms to resettled refugees and asylum seekers can boost profits and help companies adapt to a globalizing economy.
While unusual, the government has suspended expedited or premium processing for H-1B cases from time to time. In years past, in response to the filing of Cap cases, the start of the 15-day adjudication clock was delayed. There also have been suspensions in other situations when the USCIS anticipated increased caseloads, such as when EADs first became available for certain H-1B spouses.
On August 2, 2017, President Trump unveiled the revised RAISE (Reforming American Immigration for Strong Employment) Act, previously introduced by Senators Tom Cotton (R-AR) and David Perdue (R-GA) in February 2017. The revised RAISE Act would reduce legal immigration to the United States to 500,000 individuals annually by reprioritizing worker skills over family relationships. In essence, the bill would create new parameters for obtaining a green card for U.S. company employees and decrease family immigration numbers. Specifically, the RAISE Act would:
Trump Administration Backs Introduction of RAISE Act in Effort to Reduce Legal Immigration to the United States
On August 2, 2017, President Donald Trump declared his support for immigration legislation sponsored by Senators Tom Cotton (R-AR) and David Perdue (R-GA) intended to significantly reduce the level of legal immigration to the United States. The Reforming American Immigration for a Strong Economy (RAISE) Act would amend the Immigration and Nationality Act to cut the number of green cards issued for extended family members and refugees and make the immigration system more merit-based.
President Trump has just announced his support for new immigration legislation aimed at curtailing overall immigration into the country. An original version of the bill was introduced earlier this year by Senators Tom Cotton of Arkansas and David Perdue of Georgia; the modified version of the bill is called Reforming American Immigration for a Strong Economy, or the RAISE Act. Trump announced his support for the bill today, noting that the current system “has not been fair to our people, to our citizens, to our workers.” The goal of the bill is to reduce legal immigration by 50%, which President Trump stated “will reduce poverty, increase wages, and save taxpayers billions and billions of dollars.”
Could barring evidence in court of undocumented workers’ immigration status actually prevent employers from hiring illegal immigrants? It could, according to one Illinois district court judge.
President Donald Trump’s March 6th revised Executive Order directs the Secretaries of State and Homeland Security, the Attorney General, and the Director of National Intelligence to review information sharing and develop uniform screening and vetting standards and procedures for visas and other immigration benefits. In June, the Ninth Circuit Court of Appeals held this review could proceed, and the State Department issued its first guidance to all U.S. diplomatic posts on July 12, 2017. Eventually, there will be lists of countries that meet and not meet the new standards.
On July 11, 2017, the Department of Homeland Security (DHS) formally delayed the implementation of the International Entrepreneur Rule from July 17, 2017, to March 14, 2018, to allow for a public comment period. The final rule allowed foreign entrepreneurs who were able to demonstrate that they had received investments that posed a significant public benefit to the United States to enter the United States for an initial parole period of stay of up to 30 months to facilitate the entrepreneur’s ability to oversee his or her start-up entity in the United States. The proposed final rule also included provisions that would allow for a potential extension of an entrepreneur’s stay in the United States by up to an additional 30 months.
Emails from email@example.com are legitimate, the Department of State Visa Office has confirmed to the American Immigration Lawyers Association (AILA).
Earlier in 2017, new rules became effective from the U.S. Department of Justice’s (DOJ) Civil Rights Division impacting the authority of the Immigrant and Employee Rights Section (IER)—formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices—to self-initiate immigration-related discrimination investigations.
On June 29, 2017, the U.S. Department of State (DOS) and the Department of Homeland Security (DHS) issued answers to frequently asked questions (FAQs) on the implementation of Executive Order 13780 (EO-2), which went into effect on June 29, 2017, at 8:00 p.m. Eastern time (ET) after the Supreme Court's recent opinion. A summary of the key points in the FAQs is below:
Amid criticism of outsourcing firms, at least one large Indian outsourcing company is planning to hire 10,000 U.S. workers over the next two years. Infosys CEO Vishal Sikka announced the company will open four technology and innovation hubs in the U.S. “focusing on cutting-edge technology areas, including artificial intelligence, machine learning, user experience, emerging digital technologies, cloud, and big data.”
U.S. Supreme Court Partially Lifts Injunction on President Trump’s March Executive Order on Immigration Policy
On June 26, 2017, the Supreme Court of the United States (SCOTUS) partially lifted the injunction and agreed to hear arguments on President Trump’s March 6, 2017 executive order entitled Protecting the Nation from Foreign Terrorist Entry into the United States (the “Order”). The Order suspends unrestricted entry into the United States for nationals of six countries: Iran Libya, Somalia, Sudan, Syria, and Yemen for 90 days. The Order, which would have become effective as of March 16, 2017, was suspended on March 15, 2017 after a federal court in Hawaii issued a nationwide temporary restraining order against its implementation. On that same day, a federal court in Maryland published a decision to block the Order’s 90-day suspension.? The U.S. Department of Justice (DOJ) appealed both decisions to SCOTUS and SCOTUS has agreed to hear both of the appeals, consolidating the cases for argument.
On June 26, 2017, the Supreme Court of the United States agreed to hear the appeals over the president’s revised travel ban against certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen during the first session of the Court’s October 2017 term. In issuing the opinion, the Supreme Court partially granted the government's request to reinstate the travel ban, but limited the scope through a “bona fide relationship” test. Specifically, the Court’s decision allows the travel ban to go into effect for the above-mentioned foreign nationals, but only if they lack any “bona fide relationship with a person or entity in the United States.”
Simpler and less expensive travel to Cuba by Americans is apparently short-lived, as more difficult and costly travel to the island nation appears forthcoming.
HHS Rescinds Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA")
On June 15, 2017, the Secretary of Homeland Security announced that it was rescinding the November 20, 2014 memorandum that created the program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). DAPA provided a path for undocumented parents of children who are U.S. citizens or lawful permanent residents to be considered for deferred action if they met several guidelines. DAPA would have granted these parents deferred action for a period of three years, subject to renewal. They would have also been eligible for work authorization.
Employers that hire or plan to hire workers who are nonimmigrant visa holders should be extra diligent in complying with immigration laws and keeping the proper records. DOL Secretary Alexander Acosta has announced in a News Release that, after a "thorough review" of the DOL's foreign worker visa programs, the agency will "more aggressively" confront businesses that commit visa program fraud or abuse. This policy is in accordance with President Trump's Buy American and Hire American Executive Order.
Expectations are that the U.S. Supreme Court may decide soon whether to stay the injunctions blocking President Donald Trump’s travel ban. Meanwhile, the President has issued a Memorandum meant to amend and clarify the revised travel ban executive order.
On January 27, 2017, President Trump issued Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” (EO1), which went into effect immediately. In EO1, the president invoked his claimed authority to suspend the immigrant and nonimmigrant entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen into the United States for a period of at least 90 days. The order also immediately suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, imposed an indefinite ban on entry of Syrian refugees, and limited the entry of refugees to 50,000 in fiscal year 2017.
Trump Begins “Extreme” Visa Vetting, New Questionnaire Requests 15 Years of Information and Social Media Info
As part of a policy implementing “extreme vetting” of visa applicants in order to tighten immigration controls, the Trump administration approved a new questionnaire (Form DS-5535, Supplemental Questions for Visa Applicants) that requires applicants to provide biographical information going back 15 years and social media information for the past 5 years. The new questionnaire, approved on May 23, 2017, arises in the context of a directive dated March 6, 2017, ordering the U.S. Department of State to enhance screening procedures, and a diplomatic cable dated March 17, 2017, that ordered U.S. consulates to develop additional criteria to identify “applicant populations warranting increased scrutiny.” This cable followed several setbacks for the president’s executive orders banning entry to several African and Middle-Eastern nations, which were blocked by the courts. The executive orders have been challenged as unconstitutional.
President Trump has vowed to protect U.S. workers and jobs and it is clear that one way he plans to achieve this goal is by policing immigration compliance. Under the Trump Administration, U.S. Immigration and Customs Enforcement (ICE) will increase worksite enforcement actions against employers, which could involve issuing I-9 Notices of Inspection, criminal investigations and prosecutions, police-style raids, costly fines, prison time for business owners, and months of damaging press coverage for companies under investigation for employing undocumented workers.
Suspecting that employers seeking to hire foreign workers are not acting in the best interests of American workers, President Trump has requested the authority to establish fees for the adjudication of labor certifications and prevailing wage requests. These fees would be retained by the DOL. By doing this, the Office of Foreign Labor Certification (OFLC), which handles PERM labor certification, LCAs for H-1B and H-1B1 and E-3 applications, H-2A and H-2B labor certifications and prevailing wage determinations, would eventually become self-funded (like USCIS).
On May 25, 2017 the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s nationwide injunction against the Trump administration’s executive order (EO) suspending entry into the United States of foreign nationals from six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
In a 10-3 decision, the 4th Circuit Court of Appeals yesterday upheld the nationwide injunction that had blocked President Trump’s second executive order banning certain travel into the country from taking effect. The Court held that the text of the second executive order, also known as EO-2, “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
President Trump’s proposed budget released by the White House earlier this week contains no real surprises when it comes to the immigration provisions. The budget supports President Trump’s promises to increase immigration enforcement, build a physical wall on the nation’s southern border, limit refugees, and reform the immigration system. Further, the budget requests the funds to implement the items contained in the president’s immigration executive orders signed in January.
The Trump administration’s tough rhetoric and early aggressive actions on immigration promise a period of increased worksite enforcement. With the administration’s strong statements against illegal immigration and abuses of the immigration system, including an executive order calling for 10,000 new U.S. Immigration and Customs Enforcement (ICE) agents, employers can expect an increased number of audits, raids, and investigations. Given this added scrutiny and the increased prospects of a fine or other penalty, employers may want to know their rights in the event of a worksite visit, and to review and update their protocols for responding to such visits.
United States Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that data entry for the FY2018 H-1B visa lottery has been completed and that petitions not accepted under the lottery selection process will be returned. For cases for which an official receipt has not been issued, the returned petition is considered the official notice that the case was not selected in the lottery. This official notice from USCIS is critical for many employers with employees relying on “Cap Gap” for work authorization because the notice will determine when an impacted employee will lose his or her work authorization.
On May 4, 2017, Congress passed an appropriations bill to fund the federal government through Fiscal Year 2017. The bill also extended four immigration programs through September 30, 2017. These programs are E-VERIFY, the Conrad 30 Waiver Program for foreign medical graduates working in underserved areas, the special immigrant non-minister religious work program and the EB-5 Regional Center Program.
Secretary John Kelly of the DHS has announced the establishment of the Victims of Immigration Crime Engagement Office (VOICE). The Office will enable victims or witnesses of crime allegedly perpetrated by illegal aliens to:
In the latest blow to President Trump’s immigration agenda, on Tuesday a federal judge in California blocked the Trump administration’s threat to withhold federal funds from so-called “sanctuary jurisdictions.” U.S. District Judge William H. Orrick imposed a nationwide injunction against President Trump’s executive order, “Enhancing Public Safety in the Interior of the United States,” which was signed on January 25, 2017, just five days into his presidency. The city of Santa Clara and the city and county of San Francisco in two related actions challenged the constitutionality of Section 9 of the executive order via motions for preliminary injunction to enjoin its enforcement.
If Congress cannot pass a funding bill by April 27, 2017, only “essential” government workers will continue to work as of May 1 and immigration processes will be affected.
Once again, a U.S. District Court has blocked part of one of President Donald Trump’s Executive Orders – the January 25th EO “Enhancing Public Safety in the Interior of the United States.”.
Finding that although the F-1 visa plaintiffs had standing to sue and that their claim was ripe, they had not alleged sufficient facts to support their claim, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia has ruled, upholding the Department of Home Security’s 2016 STEM OPT Rule Program in a detailed opinion. Washington Alliance of Technology Workers v. DHS, No. 16-1170 (D.D.C. Apr. 19, 2017).
After May 1, 2017, be on the lookout for redesigned Green Cards and Employment Authorization Documents (EADs). The USCIS will start issuing newly styled cards on May 1 as part of the “Next Generation Secure Identification Document Project” to make cards highly secure and more tamper-resistant.
It has been fewer than 100 days since Donald J. Trump became the 45th President of the United States of America. In this short time, there has been a flurry of immigration-related activity, which has caused the national conversation on immigration to reach a fever pitch. While discussions about “sanctuary cities” or the “travel ban” are certainly worth having, only one of the topics de jour has the potential to have an immediate impact on your workforce: ICE raids.
State Department Orders U.S. Embassies to Apply Extra Scrutiny Before Issuing Visas to Certain “Population Sets”
In a diplomatic cable dated March 17, 2017, the U.S. Department of State issued orders to American consulates and embassies abroad instructing them to increase their vigilance in reviewing visa applications and to develop a “list of criteria identifying sets of post applicant populations warranting increased scrutiny” in order to safeguard national security.
President Donald Trump made cracking down on undocumented individuals a focus of his campaign. On January 25, 2017, he delivered on his promise by signing the “Enhancing Public Safety in the Interior of the United States” Executive Order, directing the federal government to withhold federal funding from states and localities with “sanctuary” policies. Close to 300 law professors have contended that this part of the E.O. is likely unconstitutional under the Tenth Amendment, among other laws.
On March 29, 2017, U.S. District Court Judge Derrick Watson granted a request by the State of Hawaii for a preliminary injunction blocking implementation of key portions of President Donald Trump’s immigration travel ban until the matter is fully decided on the merits.
Restaurateurs and other employers usually are not experts in conducting forensic evaluations of work authorization documents — nor are they expected to be. According to some Pew Research Center estimates, 20 percent of cooks in restaurants nationwide and at least 30 percent of dishwashers who may be undocumented nevertheless succeed in being hired as legal employees. Their employers then proceed to withhold taxes and Social Security based upon documentation of work authorization that went unrecognized as false.
Processing times at the various U.S. Citizenship and Immigration Services (USCIS) service centers remain quite backlogged despite the agency’s continued efforts to improve its administration of immigration benefits. Every year USCIS adjudicates approximately 6 million petitions and applications for immigration benefits, such as naturalization applications, adjustment-of-status applications, change-of-status applications, and employment authorization petitions and applications.
State Department Secretary Rex Tillerson has directed all consular chiefs to determine which populations of visa applicants should be subject to additional “extreme” vetting. The March 15 direction is in response to President Donald Trump’s March 6 “Travel Ban” Executive Order and Presidential Memorandum on “extreme vetting.” The Memo directed the U.S. Attorney General and the Secretaries of State and Homeland Security to put appropriate protocols and procedures in place and “vigorously enforce all existing grounds of inadmissibility.”
President Trump Signs Second “Travel Ban” Executive Order; Hawaii and Maryland Federal Courts Block Ban Temporarily; DOJ Expected to Appeal
On March 6, 2017, President Donald Trump signed a new “Travel Ban” Executive Order with an effective date of March 16, 2017. The order revoked a previous executive order signed on January 27, 2017, which was blocked by the Ninth Circuit Court of Appeals. The new order suspends entry for nationals of six countries under a "temporary pause." The order exempts permanent residents and valid visa holders as of certain dates and times, and provides for case-by-case discretionary waivers. The order also suspends refugee travel to the United States for 120 days for those not previously admitted, subject to waivers in certain circumstances.
The U.S. Department of Justice (DOJ) has appealed one of the two federal court injunctions issued in response to President Trump's revised travel ban executive order. This executive order, Protecting the Nation from Foreign Terrorist Entry into the United States (the “Order”), was to take effect on March 16, 2017. The implications of the Order are described here.
Executive Summary: On March 6, 2017, President Trump issued a new Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” which was to take effect today, March 16, 2017. The new EO explicitly revokes President Trump’s earlier EO travel ban issued January 27, 2017. Although the new EO was more specific and narrowly drafted to address the judicial concerns that led to the first EO being blocked by federal courts and the Ninth Circuit, on March 15, 2017, a Federal judge in Hawaii granted a temporary restraining order blocking the Trump administration from enforcing or implementing two sections of the new EO: the travel ban on nationals of Syria, Sudan, Iran, Somalia, Libya and Yemen (Section 2) and 120-day suspension on all refugee entries (Section 6).
In the most stinging legal rebuke yet to President Trump’s efforts to bar certain immigrants from reaching the country’s shores, a federal judge in Hawaii late Wednesday ordered the president’s second travel ban be temporarily blocked on a national basis. Characterizing the second travel ban as plainly motivated by religious discriminatory animus against Muslims, District Court Judge Derrick K. Watson granted the state of Hawaii’s request for a temporary restraining order, and set into motion the latest chapter of the continuing legal battle over the president’s immigration policies.
BREAKING: Hawaii District Court Applies the Brakes to Second Version of President Trump’s Immigration Travel Ban
On Wednesday, March 15, 2017, the U.S. District Court for the District of Hawaii issued a temporary restraining order (TRO) blocking implementation of key portions of the second version of the executive order (EO) issued by President Donald Trump banning entry into the United States by nationals of six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. President Trump issued the revised EO on March 6, 2017 in an effort to avoid the issues that had led a district court in Washington state to order an injunction against the original EO.
Late on March 15, Judge Derrick Watson of the U.S. District Court in Hawaii issued a nationwide injunction blocking the revised travel ban Executive Order that was scheduled to take effect on March 16. In addition, on March 16, Maryland U.S. District Judge Theodore D. Chuang, in a less sweeping order, granted a nationwide injunction blocking the 90-day travel ban on nationals from the six listed countries.
A much overlooked suspension of the Visa Interview Waiver Program could create visa processing headaches for companies employing foreign nationals. On March 6, President Trump signed an executive order directing the Secretary of State to suspend the visa Interview Waiver Program (IWP), effective March 16, 2017 (repeating the intent of the President’s much–publicized January 27 order, which had also suspended the IWP). None of the Department of Homeland Security’s 39 FAQs on the March 6 order discuss the IWP suspension. So, what happened; and what are the implications?
This morning, President Trump issued an Executive Order entitled Protecting the Nation from Foreign Terrorist Entry into the United States. This new Executive Order contains a prohibition on entry into the United States for citizens and nationals from Iran, Libya, Somalia, Sudan, Syria & Yemen. Iraq has been removed from the list of banned nations. However, unlike the last travel ban, citizens from the six nations will be barred from entering the United States so long as the following conditions are met:
The “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order (E.O.), issued by President Donald Trump on March 6, 2017, suspends processing of visa issuance for individuals from six designated countries until June 14, 2017, 90 days from the E.O.’s effective date, March 16, 2017.
On March 6, 2017, President Donald Trump released a revised executive order entitled Protecting the Nation from Foreign Terrorist Entry into the United States (the “Order”) following legal challenges to the preceding order issued earlier this year. The new Order becomes effective as of March 16, 2017. Some interesting points are addressed below.
In a second attempt to pass legal muster, President Trump signed another controversial executive order today altering the initial travel ban blocked by the federal courts. The executive order, effective March 16, 2017, creates a 90-day freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, and Sudan who are outside the U.S. on March 16, did not have a valid visa at 5:00 p.m. EST on January 27, 2017, and do not have a valid visa on March 16. This new executive order, titled “Protecting the Nation from Foreign Terrorist Entry Into The United States,” targets six of the same Muslim-majority countries as the original order, but now excludes Iraq.
President Trump Issues Revised Executive Order Suspending Admission for Certain Foreign Nationals from Six Designated Countries
On March 6, 2017, President Trump signed a revised Executive Order, Protecting The Nation From Foreign Terrorist Entry Into The United States, that suspends admission to the United States for certain foreign nationals from the following six designated countries for 90 days: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Iraq is no longer included in the list of designated countries as it had been in the original executive order (EO). The 90-day period of suspension may be extended, and the order establishes a process by which other countries can be added to the list of designated countries. The EO will go into effect on March 16, 2017, at 12:01 a.m. and rescinds the prior order once effective.
President Donald J. Trump has issued a new executive order on immigration entitled Protecting the Nation from Foreign Terrorist Entry to the United States. The President revoked the January order of the same name, which was successfully challenged in federal court. The order takes effect on March 16, 2017.
The food, construction, and healthcare sectors are concerned about fallout from the crackdown on immigration called for in Secretary John Kelly’s Implementation Memos, President Donald Trump’s travel ban, and possible new legislation aimed at reducing overall immigration by 50% within 10 years.
President Donald Trump had campaigned on prioritizing and protecting the interests of American workers and reducing unlawful employment of aliens. In a draft Executive Order, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” he promises to “restore the integrity of the employment-based nonimmigrant worker programs.”
Two memorandums from the Department of Homeland Security implementing President Donald Trump’s Executive Orders on “Enhancing Public Safety in the Interior of the United States” and “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” establish broad enforcement priorities for the removal of individuals from the U.S. Issued by DHS Secretary John Kelly on February 20, 2017, the memos expressly overrule Obama Administration memos and guidelines prioritizing the removal of criminal aliens.
DHS Guidance Memos Chart Aggressive Course to Implement President Trump’s Executive Orders on Immigration Enforcement
On February 20, 2017, U.S. Secretary of Homeland Security John Kelly released two new policy memoranda aimed at implementing President Trump’s executive orders on enhancing the public safety of the interior and border enforcement of immigration laws.
This article covers proposed legislation, sub-regulatory changes, and—from a practical standpoint—the process/timing for implementing changes under the new administration. Please note that while legislative immigration reform does take time to implement, sub-regulatory changes can be implemented immediately without a formal rule-making process. Moreover, existing regulations need only go through the Administrative Procedure Act (APA) rulemaking process to be modified or rescinded. To help clarify current law and polices from a corporate immigrant standpoint, below we have outlined the following:
There is no greater area of innovation then the shared economy. Companies like Uber, Lyft, AirBnB are among the leaders in technical innovation and business strategy. At the heart of the shared economy is the idea that those doing the work at companies are freelancers rather than employees.
Executive Summary: The U.S. Circuit Court of Appeals for the Ninth Circuit has affirmed the district court’s decision to enjoin the federal government from enforcing key portions of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Ninth Circuit’s decision means that, for the time being, key provisions of the Executive Order will not be enforced, and the U.S. will continue to admit approved refugees, as well as travelers with valid U.S. visas from the seven impacted nations (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen).
On January 25, 2017, the Trump administration turned its focus to immigration by issuing two executive orders satisfying key campaign promises. At first blush, the executive orders appeared to cover issues related to illegal immigration and the building of President Trump’s border wall. But on a closer look, these executive orders appear to be the key building blocks associated with the Trump administration’s immigration strategy.
On Thursday, February 9, 2017, the Ninth Circuit Court of Appeals denied the U.S. Department of Justice’s (DOJ) emergency motion for a stay in a case that suspended implementation of certain sections of an executive order (EO) issued by President Donald Trump restricting admission to the United States of foreign nationals from designated countries and certain refugees. State of Washington, et al. v. Donald J. Trump, et al., No. 17-35105 (9th Cir., February 9, 2017). At this time, foreign nationals can continue to apply for admission to the United States and eligibility for entry is not restricted by country of nationality.
After hearing an emergency oral argument late Tuesday, the 9th Circuit Court of Appeals agreed with a lower federal court judge and late today upheld the nationwide temporary restraining order that blocks the president’s controversial immigration executive order. The executive order, which had prevented refugees from seven predominantly Muslim nations from entering the country, in addition to some green card and visa holders from those countries, continues to be temporarily enjoined from being enforced by border officials. Visas that had been revoked by the order have been reinstated, visa processing at U.S. consulates around the world continues to be administered as normal, and travelers from these nations, as well as vetted refugees from all nations, will continue to be permitted to enter the U.S.
In a unanimous opinion, a three-judge panel in the Ninth Circuit Court of Appeals upheld the stay of President Trump’s travel ban. The Court found in favor of the State of Washington on all of its arguments and held that the Administration had not shown a likelihood of success on the merits of the case. Some commentators have noted that the President could address his national security concerns by rewriting the Executive Order to more specifically address the infirmities noted by the Court, including specifically eliminating lawful permanent residents (i.e., green card holders) from the ban. President Trump, however, upon hearing of the decision immediately tweeted: “SEE YOU IN COURT.”
On Friday, February 3, 2017, a Federal District Court judge issued a nationwide suspension of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States.” For more information on that Executive Order, please see our February 1 Alert. On Saturday, February 4, 2017, the Trump Administration asked the Court of Appeals for the Ninth Circuit to overrule the judge, but it refused on February 5. Thus, the U.S. is currently admitting approved refugees, as well as travelers with valid U.S. visas from the seven impacted nations, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Share You’ve Got Mail … if You’re an Employer: Seventh Circuit Rules Employees Are Not Entitled to Same Visa Revocation Notice
On August 3, 2016, the U. S. Court of Appeals for the Seventh Circuit ruled that only employers are to be provided notice and receive information on decisions on visa petitions issued by United States Citizenship and Immigration Services (USCIS), and reversed in part a lower court ruling that had stopped short of requiring notice to the successor employer. This case has important implications for employers that file employment-based immigration petitions. Musunuru v. Lynch, No. 15-1577 (August 3, 2016).
President Trump Signs Executive Order Calling for Travel Ban, Increased Foreign National Vetting Procedures and Visa Processing Changes
Executive Summary: President Trump’s Executive Order (“Order”) of January 27, 2017, “Protecting The Nation From Foreign Terrorist Entry Into The United States,” could have a significant impact on the American immigration system. Employers should be aware of the business impact of the rule and the changes that could affect any workers who are not U.S. citizens, particularly those who depart the U.S. and seek to re-enter.
On Friday, January 27, President Trump issued an Executive Order (EO) that has been implemented immediately concerning entry into the United States of certain foreign nationals from the following countries
President Donald Trump has signed a number of executive orders that affect employers.
Friday afternoon, President Trump signed an Executive Order entitled Protecting the Nation from Terrorist Attacks by Foreign Nationals. Section 3(c) of this Executive Order suspends the entry of citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen into the United States for 90 days. Section 3(f) of the Executive Order permits the Secretaries of the Department of Homeland Security and State to recommend including additional countries to the list.
On December 29, 2016, the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of Unisoft International, Inc., d/b/a SMA (“the Employer”), sending a signal to employers concerning their burden of responsibility during a recruitment process and the good-faith efforts that would be expected in order for them to demonstrate compliance with those requirements.
The “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order signed by President Donald Trump on January 27, 2017, has had immediate effects on individuals from seven countries:
Late Friday afternoon, President Trump signed a controversial executive order focusing on immigration issues. The executive order, titled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals” and signed on January 27, 2017, created an immediate freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan. Both immigrant and non-immigrant visa holders were impacted by the executive order.
Immigration Travel Alert: New Executive Order Suspends Admission to the U.S. of Foreign Nationals From Certain Countries
On January 27, 2017, President Donald Trump signed an executive order suspending admission to the United States of foreign nationals from the following countries for a period of at least 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
As part of his first week initiatives, President Trump turned the focus of his administration toward immigration. On January 25, 2017, President Trump signed two executive orders addressing interior immigration enforcement and the border wall with Mexico. While many parts of these executive orders won’t have a significant direct impact on employers, they look to increase the resources of U.S. Immigration and Customs Enforcement (ICE) and redefine the enforcement priorities for the federal government, enhancing the scrutiny on employers with large undocumented immigrant workforces.
Making good on some of his campaign promises, President Trump signed two executive orders relating to immigration on January 25, 2017. He is expected to sign several more within the next few days.
On December 9, 2016, Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) introduced bipartisan legislation that would provide DREAMers with employment authorization and temporary protection from removal. The term “DREAMers” refers to young people who were brought to the United States, as children, without authorization. The bill has been named the BRIDGE Act, which stands for “Bar Removal of Immigrants who Dream and Grow the Economy.” Ultimately, the BRIDGE Act is an effort to codify President Obama’s 2012 DACA initiative in the face of anticipated restrictionist changes that President Donald Trump is widely expected to undertake.
"Protecting the Nation from Terrorist Attacks by Foreign Nationals” is expected to be the next Executive Order on immigration from the Trump Administration. This Order is intended to “protect the American people from terrorist attacks” and “ensure that those admitted into our country do not bear hostile attitudes toward our country and its founding principles.”
On January 24, 2017, President Donald Trump sent this Twitter message: “Big day planned on NATIONAL SECURITY tomorrow. Among other things, we will build the wall!” So begin what are expected to be several days of focus on Executive Orders affecting the nation’s immigration system and processes.
In six months, on July 17, 2017, the Department of Homeland Security’s final rule to improve the nation’s economy by making it possible for certain promising start-up founders/entrepreneurs to begin growing their companies in the United States will become effective.
Effective today, January 17, 2017, a new USCIS rule seeks to improve multiple employment-based temporary nonimmigrant and immigrant visa (“green card”) programs. The new regulations are designed to help U.S. employers hire and retain high-skilled foreign workers who are waiting to become lawful permanent residents, and to help those foreign workers continue to advance professionally even as wait times for employment-based green cards grow ever longer. The final rule clarifies and builds upon numerous longstanding USCIS policies adopted since the enactment of the American Competitiveness in the Twenty-First Century Act (AC21) in 2000 and the American Competitiveness and Workforce Improvement Act (ACWIA) in 1998.
AAO National Interest Waiver Decision May Open Doors for a Broader Group of Professionals and Entrepreneurs Seeking Green Cards
On December 27, 2016, the Administrative Appeals Office (AAO) —the appellate body for U.S. Citizenship and Immigration Services (USCIS)—announced a new standard for National Interest Waiver visa petitions in a precedent decision, Matter of Dhanasar. This reassessment comes after almost 20 years of the standard announced in Matter of New York State Department of Transportation (NYSDOT) that has admittedly left many “uncertain what ultimately is the relevant inquiry.”
On December 9, 2016, President Barack Obama signed H.R. 2028 (Pub. L. 114-254), a stop-gap spending bill to keep the government running through April 28, 2017. H.R. 2028 includes a Continuing Resolution that extends four immigration programs: The Conrad 30 J Waiver, the Non-Minister Special Immigrant Religious Worker Visa, the EB-5 Regional Center Visa Program, and the E-Verify Program.
As most of the American public, and indeed the world at large, watches President-elect Donald Trump in an effort to discern what his specific plans will be upon taking office, one of the groups that will be watching with particular interest is the high-tech sector.
President-elect Donald Trump has chosen retired Marine General John F. Kelly to head the Department of Homeland Security (DHS), the third largest cabinet department. Kelly was head of the U.S. Southern Command until his retirement from the military in February 2016. If confirmed Kelly’s responsibilities will include border security and immigration.
Any employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees.
The U.S. Citizenship and Immigration Services has published the long-anticipated final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The rule will take effect on January 17, 2017, before President Barack Obama leaves office.
U.S. Department of Homeland Security Issues Final Rule on Immigrant Visa Petition Retention and Program Improvements Affecting High-Skilled Nonimmigrant Workers
On November 18, 2016, the Department of Homeland Security (DHS) issued its final rule in the Federal Register which addresses the retention and portability of high-skilled foreign workers. The new regulations, which take effect January 17, 2017, allow greater flexibility to certain foreign workers subject to long green card quota backlogs to change employers without negatively affecting their pending green card applications. The new regulations also codify many agency interpretations that exist as agency guidance memorandums and nonbinding agency communications.
The U.S. Citizenship and Immigration Services is increasing filing fees for many immigration applications and petitions by an average of 21% beginning on December 23, 2016. While the filing fees for some applications and petitions will remain the same, others will see significant increases.
The final version of the long-awaited U.S. Department of Homeland Security (DHS) regulation, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” is scheduled to be published in the Federal Register on November 18, 2016. The final rule will take effect on January 17, 2017.
Our alert Monday (11/14/16) provided a summary of employment-related changes that are likely under Donald Trump’s new administration, including a brief overview of immigration issues. This alert provides greater detail on the immigration policies that Candidate Trump supported and the changes that he is likely to enact or advocate for as President. President-elect Trump has already announced plans for the first 100 and 200 days of his presidency and released an immigration plan. The changes that the new administration seeks to enact can be broadly categorized according to how they could be accomplished: through legislative, regulatory, or executive action, which will impact the likelihood and pace of change.
Immigration was a frequent topic of conversation during the presidential campaign. With limited exceptions, however, the rhetoric generally did not encompass high-skilled business immigration. Indeed, President-elect Donald Trump’s 10-point immigration plan overwhelmingly focuses on undocumented immigration and border security and does not set forth any specific initiatives that would substantially alter the business immigration landscape.
New U.S. Electronic Visa Update System (EVUS) Required for Certain Chinese Nationals Beginning November 29, 2016
On October 20, 2016, the Department of Homeland Security issued a final rule requiring travelers holding People’s Republic of China (PRC) passports with B-1, B-2, or 10-year B-1/B-2 visas to enroll in the Electronic Visa Update System (EVUS) before being admitted into the United States. The rule will go into effect on November 29, 2016, and will apply to both current visa holders and new applicants.
Physical Therapists Must Meet New Educational Requirements To Obtain Health Care Worker Certifications from FCCPT
Under Immigration and Nationality Act (INA) Section 212(a)(5)(C), health care workers (except physicians) who seek employment in the United States must obtain a health care worker certification from an approved independent credentialing organization.
On October 24, 2016, the Department of Homeland Security (DHS) issued a final rule increasing filing fees associated with a significant number of immigration applications. U.S. Citizenship and Immigration Services (USCIS) must recover its costs through fees and periodically adjust fees to increase its operating revenue. The DHS proposed rule of May 4, 2016 indicated that USCIS would face a possible $560 million budget shortfall without the current fee increases.
The U.S. Supreme Court’s 4-4 tie in a case appealing a nationwide injunction on the Obama Administration’s plans to expand the Deferred Action for Childhood Arrivals (DACA) and create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs means the appeals court ruling stands. United States v. Texas, No. 15-674 (June 23, 2016), reh’g denied (Oct. 3, 2016).
Travelers arriving at U.S. land-based ports of entry now can apply online for an I?94 in advance of their arrival in exchange for a $6 fee under a new program U.S. Customs and Border Protection announced on September 29, 2016.
On the first day of its new term, the U.S. Supreme Court dealt another setback to the Obama Administration’s executive actions on immigration. The Court denied the Administration’s request for a rehearing on its deferred action programs for undocumented immigrants. United States v. Texas, No. 15-674 (June 23, 2016), reh’g denied (Oct. 3, 2016). The denial comes months after the Supreme Court deadlocked 4-4 over the expansion of the Deferred Action for Childhood Arrivals (DACA) and creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. This decision means that millions of undocumented immigrants will continue to be in limbo, without legal work authorization in the United States or protection from deportation.
October 2016 Visa Bulletin Is Welcome News for Employees Waiting to Apply for Lawful Permanent Residence
As the U.S. government begins its new fiscal year on October 1, 2016, the recently published October 2016 visa bulletin brings welcome news for many employees who are patiently waiting for their priority dates to become current in order to apply for lawful permanent resident status.
UPDATE: Compliance Date Extended for Electronic Travel Authorization Requirement for Visa-Exempt Travelers to Canada
The compliance date for Canada's new Electronic Travel Authorization (eTA) requirement, which was set to become effective September 29, 2016, has been extended until November 9, 2016, to minimize travel disruptions and give travelers and airlines more time to prepare for changes when flying to or transiting through Canada. Starting November 10, 2016, all visa-exempt travelers will need an eTA to board their flight unless specifically exempted (like U.S. citizens and other categories of travelers).
The U.S. Department of State (DOS) recently published instructions for the 2018 Diversity Immigrant Visa Program (also known as the “DV Lottery” or “Green Card Lottery”). The Green Card Lottery makes available 50,000 permanent resident visas (green cards) each fiscal year to qualified applicants who meet the eligibility requirements and who are from countries with historically low rates of immigration to the United States. Qualified applicants are chosen by random drawing.
The U.S. Department of State has announced that applications for the upcoming Diversity Visa (DV-2018) Lottery will be accepted electronically between noon EDT, October 4, 2016, and noon EDT, November 7, 2016.
Effective September 29, Certain Visa-Exempt Travelers to Canada Must Have an Electronic Travel Authorization to Enter the Country by Air
Executive Summary: A change to Canadian law that will take effect September 29, 2016, could have a significant impact on airline industry employers, as well as those in other industries whose employees frequently travel by air to Canada. The change will require all visa-exempt nationals (other than U.S. citizens) entering or transiting through Canada by air to have a valid electronic Travel Authorization (“eTA”) to board their flights.
The federal government has proposed a new rule requiring that applicants for the Visa Waiver Program (VWP)—which allows citizens of certain countries to enter the United States without visas—be asked to voluntarily disclose their social media accounts in order to allow U.S. Customs and Border Protection (CBP) to further investigate their backgrounds before allowing them to use the program. The VWP allows citizens or nationals of the following countries to enter the United States without visas for the purposes of tourism or business: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom. The VWP application process is quick and easy via the online Electronic System for Travel Authorization (ESTA).
On August 26, 2016, the U.S. Department of Homeland Security (DHS) released advance notice of proposed rulemaking designed to encourage and facilitate entrepreneurship within the United States. The notice was published in the August 31, 2016 Federal Register and is subject to a 45-day comment period that will end on October 17, 2016.
The Department of Homeland Security has closed out the summer with an encouraging proposal designed to allow certain founders of start-up companies from abroad to come to the U.S. for an initial stay of up to two years to build their business here. In a move recognizing the entrepreneurial spirit embodied by the many foreign individuals who have contributed to making the United States a beacon of innovation and creative ambition, the service released an advance copy of the proposed “International Entrepreneur Rule.”
Employers should be aware that foreign nationals in the United States on nonimmigrant work visas (such as H-1B, L-1, and O-1 visas) are subject to severe consequences following an arrest for driving under the influence (DUI) or driving while intoxicated (DWI), even when there is no finding of guilt. Per longstanding practice and U.S. Department of State (DOS) regulations, if the DOS discovers derogatory information about an applicant after a visa is issued, it may determine, after an evaluation of the facts, whether it is prudent to revoke the previously issued visa out of concern for public safety. In a shift from previous practice, the DOS has recently begun exercising this discretion in a more stringent manner. As a result, immigration lawyers have been reporting increased instances of visa revocations for individuals already in the United States.
The U.S. Department of Labor’s (DOL) electronic permanent labor certification system (PERM) as we know it has been in existence for the past 10 years. This year, the Office of Foreign Labor Certification (OFLC) is expected to publish new regulations aiming to modernize the current PERM program to better meet the needs and practices of employers. The OFLC has expressed a desire to see the final regulation published before the end of President Barack Obama’s term, meaning action on the proposed rule would need to happen soon—potentially by the end of summer. Although the OFLC has not issued the proposed regulations for public comment yet, the listening session conducted by the OFLC with stakeholders in 2015 gives us insight into possible changes.
The final day of the 2016 ILG National Conference wrapped up with a morning of breakout sessions, a keynote address from Beverly Bond, and ended on a high note with the ever-favorite Expert Panel.
The Department of Justice has issued a new rule increasing penalties for I-9 paperwork violations, unlawfully employing unauthorized workers, and unfair immigration-related employment practices. The increase was triggered by the 2015 Bipartisan Budget Act, which revised the formula for adjusting federal agency penalties for inflation. The increase applies to civil penalties assessed after August 1, 2016, for violations that occurred after November 2, 2015. The increases do not apply to violations that occurred on or before November 2, 2015. Additionally, they do not apply to penalties assessed prior to August 1, 2016, even if the violation occurred after November 2, 2015.
On March 11, 2016, U.S. Department of Homeland Security (DHS) published a final rule pertaining to optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM).
August 1, 2016, marks the date that increased penalties for various immigration-related violations go into effect. The increases are the result of separate rules recently published by the Department of Labor, Department of Homeland Security and Department of Justice. According to the agencies, the increased amounts are required adjustments for inflation based on the Consumer Price Index.
On June 30 and July 1, 2016, the U.S. Department of Homeland Security (DHS), the U.S. Department of Justice (DOJ), and the U.S. Department of Labor (DOL) each published separate interim final rules in the Federal Register to increase immigration-related penalties as an adjustment for inflation. The new penalties were calculated pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which also requires the agencies to make subsequent annual adjustments for inflation based on the Consumer Price Index for All Urban Consumers. The penalty increases are significant and underscore the importance for employers of ensuring that their immigration programs are fully compliant with regulatory requirements.
Individuals who hold nonimmigrant visas in the U.S. are likely to face severe consequences if arrested for Driving Under the Influence (DUI) or a related offense, based on the recently released guidance from the U.S. Department of State (DOS).
In late June, the American Immigration Lawyers Association (AILA) held its annual immigration law conference in Las Vegas, Nevada. The conference featured a series of open forums where representatives from a number of government agencies met with immigration attorneys to discuss key updates and address specific questions about immigration adjudications, trends and policy.
The U.S. Supreme Court has agreed to decide whether a man born outside the U.S., out of wedlock, to a U.S. citizen father and a noncitizen mother could benefit from birthright citizenship. A decision in this case can mean protection from deportation for many. Lynch v. Morales-Santana, 804 F.3d 520 (2d Cir. 2015), cert. granted (U.S. June 28, 2016) (No. 15-1191).
On Thursday, June 23, 2016, the Supreme Court of the United States reached a 4 – 4 tie on issues related to the validity of the Obama administration’s contested immigration programs, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). With this tie the injunction set by the U.S. District Court for the Southern District of Texas remains in force, preventing the U.S. Department of Homeland Security (DHS) from implementing the Obama administration’s deferred action policies. Now, immigration policy related to undocumented immigrants will be front-and-center in the upcoming election as the fate of the DAPA and expanded DACA programs may depend on who becomes the next president of the United States. United States v. Texas, No. 15-674 (June 23, 2016)
In a 4-4 decision, the U.S. Supreme Court announced today that it could not reach a majority consensus on President Obama’s Executive Action on immigration. As a result, the Executive Action remains subject to an injunction blocking its implementation. The case will now return to Judge Hanen in Brownsville, Texas, to decide how to proceed with the case on the merits of the argument. While the case proceeds in the Federal Court in the Southern District of Texas, the undocumented workers, who would have benefited from the Executive Action, will not be able to seek protection from the threat of deportation and will remain ineligible for work authorization in the United States. United States v. Texas.
Disappointing many, the U.S. Supreme Court has tied 4-4 in a case appealing a nationwide injunction on the Obama Administration’s executive action expanding the Deferred Action for Childhood Arrivals (DACA) and creating the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. United States v. Texas, No. 15-674 (June 23, 2016). The split leaves the district court injunction in place pending further action in the suit.
Final Policy Memorandum Provides Needed Predictability and Guidance on Job Portability Determinations
On March 18, 2016, United States Citizenship and Immigration Services (USCIS) released a final policy memorandum that offers guidance on determining whether a new job is in “the same or similar occupational classification” for purposes of applying the job portability provisions of section 204(j) of the Immigration and Nationality Act (INA). This memorandum will apply to all section 204(j) determinations pending or filed with USCIS as of March 21, 2016. While the memorandum is intended to provide clarity to USCIS Immigration Services Officers (ISOs) applying the job portability provisions of 204(j) when adjudicating employment-based immigrant visa petitions, the policy memorandum is equally informative for U.S. employers and their foreign workers seeking clarity regarding the impact that a potential job change may have on a foreign worker’s employment-based permanent residency application.
The United States Department of Homeland Security (DHS) has proposed increasing the fees that United States Citizenship and Immigration Services (USCIS) charges for certain immigration and naturalization filings. The proposal would increase USCIS fees by a weighted average of 21 percent and add one new fee specific to the EB-5 Immigrant Investor Program.
The Department of Homeland Security has begun implementing the new, additional 24 months of F-1 Optional Practical Training (“OPT”) work authorization for foreign students with a STEM major. This is a major in science, technology, engineering or mathematics.
The Department of Homeland Security’s final rule on optional practical training (OPT) work authorization for foreign nationals in F-1 status with science, technology, engineering, or mathematics (STEM) degrees from U.S. institutions will go into effect on May 10, 2016. The U.S. Citizenship and Immigration Services (USCIS) then will begin accepting applications to extend an initial 12-month period of OPT work authorization for an additional 24 months — a welcomed increase from the old rule’s 17-month extension period.
Throughout the presidential election primary season, immigration has been used as a wedge issue by the candidates on both sides.
Supreme Court argument has taken place in United States v. Texas, a high-stakes, hotly contested case on the Administration’s executive programs that deferred possible deportation of millions of undocumented individuals. The Court’s expected June decision is likely to have far-reaching implications for employers.
Immigration and Customs Enforcement (“ICE”) announced on April 5, 2016, that the “University of Northern New Jersey” (“UNNJ”) had been a sting operation for the past two-and-a-half years. Run by Homeland Security Investigations Newark, UNNJ had a plausible website and an address in Cranford, New Jersey. Twenty-one persons, characterized as brokers, recruiters, and employers, were arrested and charged with conspiracy to commit visa fraud and alien harboring. Over 1,000 foreign students had been enrolled at UNNJ.
The U.S. Department of Homeland Security ("DHS") recently issued its long-awaited F–1 nonimmigrant student visa regulations on optional practical training (“OPT”) for certain students with degrees in science, technology, engineering, or mathematics (“STEM”) from U.S. institutions of higher education. The final rule allows such F–1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (also known as STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students, whereby the STEM OPT Employment Authorization Document (“EAD”) issued will be valid for 24 months instead of 17 months.
U.S. Citizenship and Immigration Services has released the final version of its “same or similar” policy memo, which provides guidance to individuals with pending permanent residency applications who hope to change positions or jobs. The 21-page Policy Memorandum, released on March 18, is a mixed bag for employers.
UPDATE: Final rules extending the OPT period by 24 months, effective May 10, 2016, are published in the Fedeal Register.
Each year, the U.S. Citizenship and Immigration Services issues 65,000 H-1B visas and 20,000 “master’s cap” visas. April 1, 2016, is the first day on which an H-1B petition may be filed for FY 2017, in anticipation of an October 1, 2016, start date. Last year, USCIS accepted 233,000 petitions in the first week; a lottery was conducted and more than 60 percent of all petitions were rejected. Employers need to be prepared to file H-1B petitions on April 1.
On March 9, 2016, U.S. Department of Homeland Security (DHS) released an advance copy of the final rule pertaining to optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM). The official version of the final rule is scheduled to be published in the Federal Register on March 11, 2016. The new rule will permit employers to retain the talents of certain individuals currently dependent on an F-1 nonimmigrant student visa for a longer period. USCIS will begin accepting applications under this provision on May 10, 2016. Prior to that date, USCIS will continue to accept applications per the existing 17-month STEM OPT procedures.
On March 9, 2016, the U.S. Department of Homeland Security (DHS) posted to the Federal Register an advance copy of its final rule regarding certain F-1 Optional Practical Training (OPT) extensions. The new rule replaces the 2008 interim rule and lengthens the available extension period for holders of Science, Technology, Engineering and Math (STEM) degrees issued by U.S. institutions of higher education from 17 months to 24 months.
The Department of Homeland Security (DHS) has announced the launch of its Known Employer pilot, which will assess the long-term feasibility of a new employer process for hiring certain foreign workers through employment-based visa categories. The pilot modifies the current process used by US Citizenship and Immigration Services (USCIS) to review an employer's eligibility to sponsor individuals under certain employment-based immigrant and nonimmigrant classifications. The ultimate goal of the pilot is to reduce paperwork, costs and delays in processing employer requests.
Employers can request that USCIS predetermine that they meet the requirements for certain nonimmigrant and immigrant employment-based visa categories under a new pilot program announced by the Department of Homeland Security (DHS) on March 3, 2016.
Modeled after its Known Crewmember program for flight crews and other airline personnel that regularly pass through TSA screening checkpoints, USCIS announced the launch the pilot of the Known Employer Program. If fully implemented, the Known Employer Program would represent a shift in the way immigration law is practiced. It would streamline the adjudication of employment based immigration benefit petitions and applications. It would reduce and remove repetitive and unnecessary paperwork the current system demands employers produce. Employers seeking employment based immigration benefits have the burden of establishing eligibility for the benefit sought. In order to meet its burden, employers must establish such basic things as their existence, the nature of their business, legitimacy of the job offered, and the qualifications of the foreign worker. To establish their existence and business, employers regularly supply USCIS with copies of their tax returns, annual reports, audited financial statements, and articles of incorporation. Under current practice, USCIS adjudicating officers view the petition file as a closed universe. Employers wishing to hire a foreign worker submit evidence regarding all aspects of eligibility with every petition. They must include evidence proving up the existence of the employer, the nature of the employer’s business, legitimacy of the job offered, and the qualifications of the foreign worker in every petition. USCIS will not reference any material that is not in the petition file. Attorneys who regularly file petitions for their clients keep files of background information about their clients to include in every filing. The Known Employer Program seeks to create a central database of employer information. Under this system, employers produce the background information about their company only once, during the registration process. Once the information is collected and vetted by USCIS, employers will not have to produce basic background information about their existence or business in every petition. For example, a university filing petitions on behalf of four professors will not need to include information about the existence and business of the university in all four petitions. They would simply supply USCIS with their Known Employer information, and the adjudicating officer will reference the information USCIS has on file. Implementation of this program would represent a huge shift in the way immigration law is practiced. USCIS will run this pilot program for one year and then reassess its effectiveness.
On March 3, 2016, the U.S. Department of Homeland Security (DHS) announced its launch of the Known Employer Program,1 under which certain employers are eligible to use an online platform to submit information that can be used for multiple employees' visa applications. Although the pilot program is currently limited to a small number of employers, at the conclusion of the trial period the DHS will assess whether to expand the program.
U.S. Citizenship and Immigration Service (USCIS) service centers are experiencing severe delays in processing immigration cases due to an overwhelming backlog. USCIS has not publicly identified the cause of the delays or offered an explanation, but the situation is causing problems for many employers.
According to a press release issued by the U.S. Department of Homeland Security on February 18, 2016, the list of countries or areas of concern associated with the Visa Waiver Program (VWP) has been expanded to include Libya, Somalia, and Yemen.1 Therefore, a person who is a citizen of a visa waiver country who has traveled to any of these countries since March 1, 2011, will now be required to apply for a visitor visa. However, a person who is dual citizen of a visa waiver-eligible country and one of the newly added countries or areas of concern may still travel using the VWP.
The U.S. Citizenship and Immigration Services (USCIS) has proposed new guidance for adjudicating O-1 visa petitions for athletes and other individuals of extraordinary ability in certain fields. If the proposal becomes effective, athletes will have greater flexibility in satisfying the O-1 visa criteria.
On January 23, 2016, the U.S. District Court for the District of Columbia granted the Department of Homeland Security’s (DHS) request to extend the deadline to finalize the new set of Optional Practical Training (OPT) regulations for international students with degrees in science, technology, engineering, and mathematics (STEM). Prior to this ruling, the current STEM OPT regulations were set to expire on February 12, 2016. The court’s order extends the STEM OPT program in its current form through the new May 10, 2016 deadline, when DHS must promulgate the final STEM OPT rule.
To the relief of thousands of foreign nationals and many U.S. businesses and higher education institutions, on January 23, 2016, the federal district court in Washington D.C. presiding over Washington Alliance of Technology Workers v. U.S. Department of Homeland Security (CV. No. 14-1529) extended the validity of the existing Optional Practical Training (“OPT”) regulation for F-1 students in Science, Technology, Engineering, or Mathematics (“STEM”) fields until May 10, 2016. The court granted the Department of Homeland Security (DHS)’s Motion to Stay the existing vacatur of the 17-month STEM OPT extension after DHS sought more time to respond to over 50,000 comments submitted in response to its proposed enactment of a new STEM OPT regulation that would extend this work authorization period to 24 months.
The U.S. District Court for the District of Columbia gave the Department of Homeland Security (DHS) until May 10, 2016, to correct the procedural defects to its STEM OPT rule. The prior deadline had been February 12, 2016, to get a new rule in place.
The Department of Homeland Security (DHS) has revised its regulations to apply existing rules to additional visa categories in order to achieve greater parity in procedures that address comparable visa classifications. The amendments should minimize potential employment disruptions for employers that employ workers in the affected visa categories. The regulations go into effect on February 16, 2016.
Yesterday, the Supreme Court granted certiorari in Texas v. USA, setting the stage for a blockbuster opinion on the legality of the centerpiece of President Obama’s program to lift the threat of deportation and provide temporary work permits to an estimated 4 million undocumented individuals in the middle of a Presidential election year.
The Department of Homeland Security (DHS) recently issued a proposed rule to amend employment-based immigrant and nonimmigrant visa programs.1 The new rule is intended to benefit both U.S. employers and foreign national workers by allowing employers more flexibility in employing and retaining high-skilled workers. The proposed changes include new regulations on the retention of employment-based immigrant visa petitions and priority dates for such petitions. The rule also clarifies the criteria for determining cap-exempt employers,2 adds grace periods for certain nonimmigrant visa categories, including a 60-day grace period to allow foreign workers more flexibility in changing jobs, extends employment authorization in compelling circumstances, and automatically extends Employment Authorization Documents (EAD) in certain circumstances. The immigrant visa categories pertain to the processing of U.S. Legal Permanent Residence Status. The following are some of the rule's notable changes.
The U.S. Supreme Court agreed today to hear a case challenging President Barack Obama’s executive action on immigration. The Supreme Court will decide whether President Obama can proceed with plans to defer deportation and provide work authorization to millions of individuals currently in the United States without lawful status.
The Supreme Court will decide whether the Obama administration can allow undocumented workers to request work permits and deportation relief for three years at a time if they have been in the United States for at least five years and have children who are citizens or legal residents, among other requirements.
On Tuesday, January 19, 2016, the Supreme Court of the United States agreed to hear the appeal filed by the Obama administration relating to its plan to defer deportations and provide work authorization for certain undocumented individuals in the United States. This move clears the path for a final decision on whether President Obama’s “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) implementation and “Deferred Action for Childhood Arrivals” (DACA) expansion initiatives can move forward before the conclusion of his presidency.
On January 13, 2016, the Department of Homeland Security (“DHS”) released an advance copy of an updated rule providing additional flexibility and enhanced opportunities for certain highly skilled workers. It covers workers who are in the U.S. in H-1B1 (from Chile and Singapore), E-3 (from Australia), temporary workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transition Worker (CW-1), and immigrant classification for outstanding professors and researchers (EB-1).
Proposed Chilean Labor Law Would Strengthen Union Power U.S. and EU Negotiating New Data Transfer Agreement to Replace Invalid Safe Harbor
The Department of Homeland Security has issued proposed regulations to address retention and portability of high-skilled workers in the U.S. in response to President Barak Obama’s November 2014 directives to relieve the worst ills of the immigration code.
Worth the Wait: Will USCIS Draft Policy Guidance Bring Greater Job Portability and Career Advancement for Foreign Workers and Their Employers in 2016?
On November 20, 2015, the United States Citizenship and Immigration Services (USCIS) released a highly anticipated draft policy memorandum for public review and comment that provides guidance to USCIS Immigration Services Officers (ISOs) on evaluating whether one job is in “the same or a similar occupational classification” as another job when adjudicating certain employment-based permanent residency applications. Under section 204(j) of the Immigration and Nationality Act (INA), foreign workers can change positions and/or employers under certain circumstances during the permanent residency process if the new job is in “the same or similar occupational classification.” Lack of specific guidance on how ISOs are to evaluate whether a new job is in the “same or a similar occupational classification” has resulted in error, inconsistency, and uncertainty.
On December 30, 2015, the U.S. Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning employment-based visa programs for high-skilled workers. The notice is published in the December 31, 2015 Federal Register and is subject to a 60-day comment period ending on February 29, 2016.
The Omnibus Spending/Budget Bill (“Bill”) that Congress passed today contained many significant immigration components, including extensions of the following vital programs:
On December 18th, the Senate passed the FY2016 omnibus spending package on the heels of House passage the day before and sent the bill to the White House. President Barack Obama is expected to sign the bill, making it law.
The U.S. Department of Homeland Security has proposed amending its regulations on the optional practical training (“OPT”) program to allow international F-1 students with U.S. degrees in the sciences, technology, engineering, or mathematics (“STEM”) – attained from accredited institutions – to extend by 24 months the standard 12-month OPT period available to them to remain in the U.S. to pursue degree-related work experience.
The United States Citizenship and Immigration Services (USCIS) has again revised its procedures for determining whether foreign national applicants waiting to file their employment-based or family-sponsored preference adjustment of status applications may proceed onto the last stage of the permanent residence (green card) process. This latest course correction reveals that USCIS is not fully aligned with the U.S. Department of State’s (DOS) recently reformatted Visa Bulletin. USCIS’s latest revisions to its procedures—announced on October 14, 2015—will result in delays for foreign nationals hoping to file their applications for adjustment of status. For some, the delays will only be for up to a week. Others, however, may again find themselves subject to longer delays associated with visa backlogs.
The Fifth Circuit Court of Appeals has affirmed the preliminary injunction against President Barack Obama’s executive action that would potentially have shielded approximately 4.4 million undocumented immigrants from deportation and allowed them to immediately apply for work authorization. President Obama announced his immigration plan, which included an expansion of the Deferred Action for Childhood Arrivals (DACA) program and created a similar program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), nearly a year ago, but quickly encountered hurdles when his executive action was halted by the U.S. District Court for the Southern District of Texas in response to a lawsuit brought by 26 states. The recent Fifth Circuit decision in State of Texas v. United States further postponed President Obama’s plan to implement expansive immigration relief for millions of undocumented immigrants living in the United States and raises some contentious issues about the extent of the President’s executive power.
The Department of Homeland Security offers important guidance relevant to foreign national job portability
On November 20, 2015, the Department of Homeland Security ("DHS") issued a significant draft policy memorandum ("PM") containing proposed guidance on the definition of "same or similar" under INA Section 204(j), which is relevant to the job mobility of foreign workers sponsored for legal permanent residency by a U.S. employer. This PM is open for public comment until January 4, 2016.
The Department of Homeland Security offers important guidance relevant to foreign national job portability
On November 20, 2015, the Department of Homeland Security ("DHS") issued a significant draft policy memorandum ("PM") containing proposed guidance on the definition of "same or similar" under INA Section 204(j), which is relevant to the job mobility of foreign workers sponsored for legal permanent residency by a U.S. employer. This PM is open for public comment until January 4, 2016.
The 5th Circuit Court of Appeals has affirmed a lower court's blocking of the implementation of an Executive Order issued by President Obama in November 2014. The measure would have expanded the Deferred Action for Childhood Arrivals (DACA) program and implemented a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Individuals seeking protection under DACA's expansion and the DAPA program will continue to be unable to seek work permits and lawful immigration status in the US.
A bulletin on immigration issues.
The Department of Homeland Security (DHS) has issued a proposed rule that would extend the science, technology, engineering or mathematics (STEM) optional practical training (OPT) program. Specifically, the proposal would allow F-1 visa students with STEM degrees from US institutions of higher education who have elected to pursue 12 months of OPT in the US to extend the OPT period by 24 months. In addition, the proposed rule includes increased compliance requirements for participating employers.
DOL Misclassification Guidance on Independent Contractors Could Affect Certain Nonimmigrant Visa Classifications
On July 15, 2015, the U.S. Department of Labor issued guidance to clarify when workers can be classified as independent contractors or employees under the Fair Labor Standards Act (FLSA). This Administrator’s Interpretation (AI) concludes "most workers are employees" under the FLSA’s broad definitions.1 Although the AI is intended to explain when workers should be classified as employees under the FLSA, it may also affect certain nonimmigrant visa classifications where work as an independent contractor is permitted. The AI’s effective presumption of employee status could have significant immigration implications. The following is an analysis of the nonimmigrant visa categories that sometimes utilize independent contractors.
USCIS to Issue Monthly Determination on Individuals’ Eligibility to Submit Adjustment of Status Applications
USCIS has announced that beginning with the November 2015 Department of State (DOS) Visa Bulletin it will issue a determination within approximately one week following the publication of the Visa Bulletin whether individuals may use the Dates for Filing Visa Applications chart. If USCIS does not post such a determination, individuals should continue to refer exclusively to the Application Final Action Date chart on the USCIS website. This monthly announcement from USCIS can be found at www.uscis.gov/visabulletininfo.
On October 19, 2015, the Department of Homeland Security published eagerly anticipated proposed STEM OPT Extension rules that, if adopted would allow U.S. employers greater flexibility for employing foreign nationals graduating from United States higher education institutions in qualifying STEM fields. These proposed changes were previewed as early as November 2014, when the Obama administration announced that it would take numerous executive actions to reform U.S. immigration rules. However, the specific timeline for the proposed regulation’s publication was accelerated by Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, 14-cv-529 (D.C. Aug. 12, 2015), which, as of February 12, 2016, vacates the previous 2008 interim regulation on the subject.
The U.S. Department of Homeland Security’s has proposed amending its regulations on the optional practical training (“OPT”) program to allow international F-1 students with U.S. degrees in the sciences, technology, engineering, or mathematics (“STEM”) – attained from accredited institutions – to extend by 24 months the standard 12-month OPT period available to them to remain in the U.S. to pursue degree-related work experience. This proposal would supersede the 17-month extension currently available to STEM degree holders. In addition, F-1 students may qualify for the extension based on a previously attained U.S. STEM degree from an accredited institution of higher education.
On October 16, 2015, the Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning new rules for extending the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM). The notice will be published in the Federal Register on Monday, October 19, 2015, and will likely be subject to a 30-day comment period.
The U.S. Department of State reports that the statutory cap for employment-based preference categories for fiscal year (FY) 2015 has been reached. The federal government’s fiscal year runs from October 1 to September 30. Therefore, FY 2015 ends on September 30, 2015, and FY 2016 begins on October 1, 2015.
Congress has until September 30, 2015 to reach an agreement on the 2016 Fiscal Year federal budget. If an agreement to fund the federal government is not reached, immigration processes are expected to be impacted as they were in the shutdown that occurred in October of 2013. Some federal agencies that rely solely on government funding would not be able to provide most services. Agencies that receive funding from fees or other government sources are expected to remain open, but they will probably experience service delays.
On July 15, 2015, in an action that sought to confront a number of the U.S. legal immigration system’s lingering problems, the White House issued a report entitled “Modernizing & Streamlining Our Legal Immigration System for the 21st Century.” The White House issued the report following the series of executive actions, known as the “Immigration Accountability Executive Actions,” that President Barack Obama issued in November of 2014 in an effort to reform the U.S. immigration system. As part of these executive actions, President Obama issued a presidential memorandum on November 21, 2014, in which he sought recommendations on how to reduce government costs; improve services for applicants; reduce burdens on employers; combat waste, fraud, and abuse in the system; utilize all immigrant visa numbers allocated by Congress; and modernize the technological infrastructure underlying the visa process.
On September 9, 2015, the U.S. Citizenship and Immigration Services (USCIS) promulgated new procedures for determining the visa availability date for individuals waiting to file employment- and family-based applications for permanent residence (also known as "green cards") in the United States.1 The U.S. Department of State (DOS) is responsible for the administration of the Immigration and Nationality Act's laws pertaining to immigrant visa issuance and the annual numerical limits, or quotas, on visa issuance.
U.S. Citizenship and Immigration Services and the Department of State have announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. Prior to this change, DOS had published a single chart in its visa bulletin each month indicating “Final Action Dates For Employment-Based Preference Cases.” Commencing with the October 1, 2015, visa bulletin, a second chart will relate to existing DOS procedures for processing immigrant visas abroad and will govern which cases are eligible to file for adjustment of status in the U.S.
The 2008 Department of Homeland Security (DHS) rule allowing certain F-1 visa students with Science, Technology, Engineering or Math (STEM) degrees to extend their stay for an additional 17 months of training related to their degrees in the U.S. is deficient, a federal judge for the U.S. District Court for the District of Columbia has held. The judge concluded the DHS rule was not properly subjected to public notice and comment. However, the judge permitted the rule to remain temporarily in effect. Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-cv-00529 (D. D.C. Aug. 12, 2015).
Work Program for Foreign Students: Changes are in the Offing After a Federal Judge Curtails the Program
On August 12, 2015, a federal judge in Washington D.C. ruled that the Department of Homeland Security (DHS) improperly enacted a 2008 rule extending “Optional Practical Training” (OPT) for eligible foreign students in STEM (Science, Technology, Engineering, and Math) fields by 17 months without notice and comment. Washtech (Washington Alliance of Technology Workers v. DHS, 1:14-CV-00529) Immediate application of this ruling would have jeopardized the employment of thousands of foreign workers in the United States, but Judge Ellen Segal Huvelle has stayed her ruling until February 12, 2016, providing DHS with an opportunity to submit this rule for proper notice and comment in light of the significantly disruptive impact that the court’s ruling would otherwise have.
Finding that a DOL certifying officer (CO) had erred in finding the employer failed to advertise a job opportunity in a newspaper in the area of intended employment, as required by regulation, and denied a permanent labor certification, the Board of Alien Labor Certification Appeals (BALCA) has reversed the denial. Matter of Hoffman Enclosures In., d/b/a Pentair Technical Products, BALCA No. 2011-PER-01754 (Aug. 5, 2015).
On Tuesday, July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued its final guidance on the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC. Under Simeio, employers must file an amended H-1B petition, along with an updated Labor Condition Application (LCA), if an H-1B worker is moved to a location different from the one listed on the petition. USCIS clarified in May 2015 that a new petition is only required if the H-1B worker’s new site is outside the metropolitan statistical area (MSA) used in the initial petition. However, the original LCA must be posted at the worker’s new place of employment regardless of whether it is located within the same MSA as the worksite in the initial petition.
U.S. Citizenship and Immigration Services (USCIS) is taking extreme measures to get back all the three-year Employment Authorization Document (EAD) cards erroneously issued to Deferred Action for Childhood Arrivals (DACA) recipients. On February 16, 2015, the Fifth Circuit Court of Appeals, in State of Texas v. United States of America—the case over President Obama’s 2014 executive actions on immigration—ordered a temporary injunction preventing USCIS from issuing three-year EAD cards for DACA recipients. Any three-year EAD cards issued to DACA recipients after February 16, 2015, were erroneously issued and deemed invalid.
White House Releases Report on Improving and Modernizing the Immigration System to Meet 21st Century Needs
Earlier this month, the White House released a review of the United States’ immigration policies in a report entitled, “Modernizing & Streamlining our Legal Immigration System for the 21st Century.” The Report highlights key changes that are expected to the immigration system through regulation and digitalization initiatives during the remainder of President Obama’s term. The Report also underscores the need for fundamental changes to the immigration system that can only be accomplished through Comprehensive Immigration Reform legislation.
U.S. Citizenship and Immigration Services (USCIS) is taking extreme measures to get back all the three-year Employment Authorization Document (EAD) cards erroneously issued to Deferred Action for Childhood Arrivals (DACA) recipients. On February 16, 2015, the Fifth Circuit Court of Appeals, in State of Texas v. United States of America—the case over President Obama’s 2014 executive actions on immigration—ordered a temporary injunction preventing USCIS from issuing three-year EAD cards for DACA recipients. Any three-year EAD cards issued to DACA recipients after February 16, 2015, were erroneously issued and deemed invalid.