Total Articles: 389
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On October 23, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) rescinded policy guidelines in effect since April 2004 regarding requests for the extension of certain nonimmigrant visas (i.e., visa petitions filed using Form I-129).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.
The Trump administration announced on Tuesday, September 5, that it is ending Deferred Action for Childhood Arrivals ("DACA"). Congress now has a six-month window to save the Obama-era program. If a compromise is reached, undocumented immigrants who came to the United States as children may be able to remain in the country.
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 firstname.lastname@example.org 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.”
Vedder Price’s Immigration attorneys have assembled an overview highlighting the most recent changes in existing immigration laws and policies.
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.
Business Immigration Zone: The Elephant in the Room: Permissible Questions to Ask Job Applicants Regarding Immigration Status, Sponsorship Needs
It’s a common sticking point that often happens when employers finally find the right talent for the position: the candidate is well qualified, but their immigration status and need for visa sponsorship is unclear. Best practices generally dictate that an inquiry concerning a job candidate’s immigration status is not appropriate during the hiring process. But this means an employee might be hired even when their visa is at imminent risk of lapsing post-employment offer. Most employers would prefer to avoid the risks and costs of hiring a new employee in these cases and often consider asking the candidate questions such as:
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.
U.S. Citizenship and Immigration Services (USCIS) recently proposed a rule that would allow certain international entrepreneurs to enter the United States to start businesses.
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. Sentencing Commission recently submitted amendments to the U.S. Sentencing Guidelines to Congress. Among the changes that will become effective November 1, 2016 are:
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.
On June 8, 2016, U.S. Citizenship and Immigration Services (USCIS) began a program – the Filipino World War II Veterans Parole Program (FWVP) – that allows certain Filipino World War II veteran family members who are beneficiaries of approved family-based immigrant visa petitions an opportunity to receive a discretionary grant of parole to come to the United States while they wait for their immigrant visa to become available. Notice of this action is published in 81 Fed. Reg. 28097 (May 9, 2016).
The Department of Homeland Security’s (DHS) new 24-month optional practical training (OPT) extension for F-1 students with science, technology, engineering and mathematics (STEM) degrees recently went into effect.
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).
Today’s record-setting Powerball drawing isn’t the only life-changing lottery. The Diversity Immigrant Visa Program randomly issues up to 50,000 visas annually to individuals from countries with low rates of immigration to the United States. The U.S. Department of State issues these visas through a lottery system. Most Diversity Visa lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa.
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.
Healthcare providers should consider using the Conrad State 30 Program to recruit foreign physicians who can provide care in high-need areas.
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.
Recent proposed changes to the optional practical training program by the Department of Homeland Security could mean certain students and graduates could work in the United States for longer than originally allowed.
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.
Recent proposed changes to the optional practical training program by the Department of Homeland Security could mean certain students and graduates could work in the United States for longer than originally allowed.
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.
Business Immigration Zone (BIZ): Possible October 1 Government Shutdown Could Impact Immigration Benefits
Although Congress continues to negotiate the 2016 budget, if no agreement is reached, we unfortunately may be faced with another government shutdown Thursday, October 1, 2015, which is the beginning of the federal fiscal year. Interestingly, House Speaker John Boehner announced Friday that he will resign from his post at the end of October. Presumably, the Speaker will be heavily involved with the federal budget negotiations that are underway in Washington, but it is still unclear what impact his unexpected departure will have on Congress’ ability to reach a budget deal with the White House.
Business Immigration Zone (BIZ): Papal Visit Sheds Light on Employment-Based Visa Options for Clergy
Pope Francis is gracing the United States with a papal visit that urges United States leaders “not to turn their back” on immigrants coming to the United States. The Pope’s solution to the global immigration crises is for all nations to follow the Golden Rule: “Do unto others as you would have them do unto you.”
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.
The Congressional Research Service (CRS) has issued a report that examines annual changes and trends in immigration-related worksite enforcement, revealing an upward trend in administrative fines and penalties. Employers can expect continued, focused enforcement in this compliance area: the report concludes that federal agency enforcement may be lagging given the estimated size (8.1 million workers) of the unauthorized US labor force.
U.S. Customs and Border Protection (CBP) has announced that it will begin collecting biographic and biometric data from some foreign national travelers in a test program when they depart the United States at Atlanta’s Hartsfield-Jackson International Airport
Office of the Chief Administrative Hearing Officer Rejects DACA Recipient's Document Discrimination Claim
The U.S. Office of the Chief Administrative Hearing Officer (OCAHO) recently published Gonzalez-Hernandez v. Arizona Family Health Partnership,1 an interesting decision that illustrates the conflict between state laws and the administration’s deferred action policies that provide work authorization to undocumented immigrants.
A three-judge panel in the Fifth Circuit Court of Appeals, hearing arguments in State of Texas v. United States of America, questioned the attorneys for the U.S. Department of Justice and 26 states about whether the block on President Barack Obama’s recent executive actions on immigration should be reversed.
New guidance from the Internal Revenue Service (IRS) leaves in place the limited Affordable Care Act (ACA) exemptions set out in the Expatriate Health Coverage Clarification Act of 2014 (EHCCA). IRS Notice 2015-43 (Notice) permits a good faith interpretation of the EHCCA exemptions and attempts to reconcile the EHCCA’s definition of “expatriate health plan” with the definition announced in prior Affordable Care Act (ACA) guidance.
Executive Summary: On June 15, 2015, the U.S. Department of State (DOS) announced that it is experiencing technical problems with its visa system, which have resulted in delays in printing visas and may require rescheduling some visa interviews.
A divided 5th Circuit Court of Appeals has refused to lift a temporary hold on President Obama's executive order that would have allowed up to five million undocumented workers to remain in the US if they met certain conditions. A federal district court judge had blocked the order from taking effect in February.
Over the past few years, the number of employer investigations—and perhaps more noteworthy, the amount of the penalties assessed—by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has steadily increased. All indications suggest that this trend will continue for the foreseeable future.
In a move likely to elicit equal parts appreciation and exasperation among the employer community, U.S. Citizenship and Immigration Services (USCIS) issued guidance on the need to file an amended H-1B petition when there is a change in worksite locations.
Effective May 29, 2015, the Department of Homeland Security will amend its regulations under the Student and Exchange Visitor Program (SEVP). The change will (1) eliminate existing limits on the maximum number of designated school officials higher education institutions can appoint, and (2) allow the spouses and children of nonimmigrant students to enroll to study at an SEVP-certified school so long as they enroll in less than a full-time capacity.
House Relents on DHS Funding Debate; Leaves Executive Action on Immigration to Be Fought in the Courts
Legislative Update: On March 3, 2015, the U.S. House of Representatives agreed to strip language that would have rolled back President Obama’s executive action on immigration out of a hotly contested Department of Homeland Security (DHS) funding bill. The “clean” version of the bill, which had previously been passed by the U.S. Senate just the week before, was approved by a vote of 257-to-167. The move provides funding for DHS through September 2015, which marks the end of the current fiscal year and avoids the risk of a partial agency shutdown that would have occurred at the end of the week had no other agreement been reached.
A chess match continues to be fought in Congress over the fate of President Obama’s executive action on immigration. The standoff is over disagreement as to whether President Obama exceeded his constitutional authority by attempting to bypass Congress and put into effect a collection of immigration reforms through executive action first announced on November 20, 2014. Two of the central provisions from that executive action, the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the extension of the related Deferred Action for Childhood Arrivals (DACA) program, are currently blocked by a preliminary injunction ordered by federal district Judge Andrew Hanen in a case brought by 26 states to challenge the president’s action. The administration has appealed Judge Hanen’s order.
Multi-national personnel and students are uniquely important to the mission and objectives of higher education institutions. The recent focus on immigration reform at the federal level raises the potential for broader opportunities for international offices on campus to help talented foreign national students, researchers, and faculty interested in their efforts to develop careers in the United States. One of the greatest challenges faced by foreign nationals educated in the United States is obtaining work-authorization status to remain in the country in the face of quotas and other obstacles that derail their attempts to work in the United States. We provide here a summary and analysis of anticipated changes to U.S. immigration rules that are expected to impact the ability of foreign nationals on campus to remain and work in the country, either at your institution or elsewhere.
Implementation of President Obama's Immigration Reforms Temporarily Blocked By Federal District Court Preliminary Injunction
Yesterday, a federal district court in Texas issued a preliminary injunction in a lawsuit filed by 26 states to block the implementation of new immigration programs announced through President Obama’s November 2014 executive order. This decision represents a critical first finding that the plaintiff states have standing to challenge the President’s actions due to the impact of illegal immigration on their financial resources. The court also concluded that the President’s actions amounted to a violation of the Administrative Procedure Act’s “notice and comment” requirements, and that the challenging states had shown a substantial likelihood of success on the merits in their efforts to block the implementation of these programs.
Federal Judge Grants Preliminary Injunction to Block Executive Action on Immigration While Related Regulations Proceed
On February 16, 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas ordered a temporary injunction to halt key portions of President Obama’s recent executive action on immigration. Specifically, the order blocks the implementation of the new Deferred Action for Parents of Americans and Lawful Permanent Residents (also known as Deferred Action for Parental Accountability or DAPA) program and the expansion of the Deferred Action for Childhood Arrivals (DACA) program.
Final Rule Extending Work Authorization to H-4 Dependent Spouses Expected Soon; CBP Designates Preferred Ports of Entry for First-Time Canadian TN and L-1 Applicants; DOL Clarifies When an Employer’s LCA Wage Obligations Cease to Terminated Workers Who Obtain Subsequent Approved H-1B Employment
On January 20, 2015, President Obama addressed the nation in the annual State of the Union address. Among the many topics that the president touched upon in his speech was immigration. After more sweeping immigration reform bills died in the U.S. House of Representatives last year, the president vowed to use his executive authority to fix elements of the broken immigration system. In November of 2014, after the mid-term elections gave control of both houses of Congress to the Republicans, the president announced he would issue executive orders addressing immigration issues, including the undocumented immigrant population and the business immigration system. One of the first bills passed by the House in 2015 included provisions that would defund those executive actions. While the Republican-controlled Senate plans to try to pass the House bill in order to move it to the president’s desk, its prospects for overcoming the 60-vote threshold necessary to cut off debate seem slim.
Immigration Spotlight—U.S. ALERT: Updated China/U.S. Reciprocity Agreement Affects Tourist/Student Visas
The United States and China have both reciprocally increased the validity of short-term business and tourist visas to 10 years and the validity of student and exchange visas to 5 years for each other’s citizens. The arrangement underscores the United States’s commitment to promoting bilateral tourism and trade.
Employers who use federal visa programs may become subject to worksite enforcement investigations from various federal agencies. The primary worksite enforcement mechanism utilized by U.S. Immigration and Customs Enforcement (ICE) is the I-9 audit. Additionally, the U.S. Department of Labor (DOL) utilizes worksite enforcement audits to investigate employers concerning wage and hour compliance, as well as H-2A, H-2B and H-1B visa program compliance.
On Nov. 20, President Obama announced a wide-ranging series of executive actions to reform U.S. immigration policy. Although these unilateral actions will most certainly be challenged by Congress and in the courts, and although none are yet in effect, it is important for employers to immediately assess how the President’s initiative may impact their operations and employees.
Executive Summary: On November 20, 2014, President Barack Obama unveiled expansive executive actions on immigration, which will grant work authorization to millions of undocumented workers. In addition, the executive actions seek to boost the economy by streamlining the legal immigration process for graduates of U.S. STEM programs, professionals, highly skilled foreign workers, and entrepreneurs.
On Thursday evening, November 20, 2014, President Obama announced that he was taking executive action that will primarily shield up to five million illegal immigrants from deportation. U.S. employers will benefit from business-related portions of the executive action, but these provisions will be implemented gradually as regulatory review is necessary in many cases. Ogletree Deakins will be conducting a webinar on December 2, 2014, to discuss the president’s action in more detail. To register for this timely program, click here.
Last night, President Obama announced his plan for a partial fix of what many believe is a broken U.S. immigration system. This Executive Action will offer over four million undocumented individuals relief from deportation and provide them the opportunity to apply for temporary work authorization under what is being called Deferred Action for Parental Accountability (DAPA), expand the Deferred Action for Childhood Arrivals (DACA) program, strengthen border security measures, expand provisional waivers to include spouses and children of lawful permanent residents (LPR), and support high-skilled businesses and workers.
President Obama has officially announced his plan for a series of executive actions on immigration. While the national discussion is largely focused on illegal immigration, the president’s plan impacts the business community by changing certain aspects of employment-based legal immigration programs. While details will be forthcoming, the executive actions intend to:
President Obama has announced that before the end of the year he intends to issue executive orders to address the dysfunctional immigration system if Congress does not act on immigration reform legislation. There is widespread speculation that the executive order would grant a temporary reprieve from deportation to a portion of the approximately 11 million undocumented immigrants in the United States. The New York Times has reported that the program may allow parents of U.S. citizens or lawful permanent residents to obtain deferment of deportation if they have been in the United States for a certain amount of time, potentially shielding millions of undocumented individuals. The president may also provide more visas for high-skilled workers. Republicans have objected, saying the president does not have such authority and that unilateral action will make cooperation with Congress on legislative reform impossible.
Strengthening Security of the Visa Waiver Program Through Enhancements to the Electronic System for Travel Authorization; OIG 2015 Plan Focuses on ICE’s Business Selection Process for I-9 Investigation; Supreme Court to Decide Whether Courts Can Review the Consular Denial of a Visa Based on Marriage to a U.S. Citizen
Media sources are now reporting that President Obama will unveil a 10-part plan for overhauling U.S. immigration policy via Presidential Authority – as early as next Friday.
USCIS Will Begin Accepting Cap-Subject H-1B Petitions for FY 2016 on April 1, 2015
In case there was any question, an Indiana staffing company, Access Therapies, learned late last month that the Immigration and Nationality Act (INA) does not absolve employers of their responsibilities under state wage and hour laws. The Southern District of Indiana denied Access Therapies’ motion to dismiss a counterclaims filed by a Philippine citizen who had signed several agreements and promissory notes with the company in return for its sponsorship of his H-1B petition.
Since July of 2014, it has been reported that certain visa petition approval notices (Form I-797s) have been issued by U.S. Citizenship and Immigration Services (USCIS) without I-94 cards attached. In addition, U.S. Customs and Border Protection (CBP) has issued I-94 cards with incorrect names, duration of stay dates, and visa classification information. These errors have been occurring regularly over the last several months. The I-94 card is a crucial document showing that an employee entered the United States legally and is authorized to work for a sponsoring U.S. employer until the expiration of the card. If the card is missing or I-94 information is incorrect, the employer may be exposed to liability for unauthorized employment and problems may arise when the employee travels or extends his or her visa.
Major Retrogression in the EB-2/India Immigrant Visa Category Expected in the Fall of 2014; Cap-Subject H-1Bs Will Be Effective October 1; USCIS 2014 Ombudsman Annual Report Confirms Increased Scrutiny for L-1 Intracompany Transferrees.
Business Immigration Now: DOJ Issues Guidance on Citizenship/Immigration Status and National Origin Discrimination in Employment
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act. Under this law, employers discriminate when they treat workers differently in the hiring and firing process because a worker is or is not a U.S. citizen, because of a worker’s particular immigration status, or because of where a worker is from or appears to be from. Additionally, employers may not treat workers differently for these reasons when completing the Form I-9 and E-Verify process.
The U.S. Department of State (DOS) has published updated information regarding the performance issues with the Consular Consolidated Database (CCD). As discussed in our July 24, 2014 Alert, a computer glitch caused the CCD to crash, resulting in world-wide delays in visa and passport processing. The DOS has stated that it has made significant progress and has eliminated most of the worldwide backlog of nonimmigrant visa cases. It will continue to prioritize immigrant visas, adoption cases and emergency nonimmigrant visas. According to the DOS, visa applicants may still experience delays of up to a week in addition to normal processing times.
Business Immigration Now: Employers Should Get Ready – President Obama Apparently Planning Steps To Address Immigration Reform
The Associated Press recently reported that White House officials are apparently making plans to act this summer to address immigration reform and possibly grant work permits to potentially millions of immigrants who are currently in the United States without government authorization. President Obama apparently may act to allow undocumented aliens to stay in the United States without threat of deportation, according to advocates and lawmakers with close ties to the administration.
Immigration Update: State Department Announces Longer Delay in Visa Processing Times; August 2014 Visa Bulletin: Advancement of EB-3 China and EB-2 India Cut-off Dates; TCN Visa Processing in Canada “Extremely Limited” Over the Summer; Compliance Corner; Beware of H-1B Wage Law Violations: Company to be Debarred, Ordered to Pay Over $120,000 in Penalties and Back Pay for H-1B/LCA Violations; Settlement Highlights Need for Compliance with U.S. Export Control Rules When Sponsoring Foreign Workers; New Law Signed Modifying California’s Anti-Retaliation Protections; Discrimination Enforcement: Justice Department Settles Immigration-Related Discrimination Claim.
USCIS Completes Data Entry for All FY 2015 H-1B Cap Petition; DHS Publishes Proposed Rules to Attract and Retain Highly-Skilled Immigrants; Watch Out! Telephone Scams Targeting Foreign Nationals on the Rise; DHS Announces Chile’s Admission into the Visa Waiver Program; USCIS Issuing Requests for Evidence for Expiring Medical Examinations.
On May 2, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that data entry for all FY 2015 H-1B cap petitions has been completed. The agency will now begin to reject and return all H-1B cap-subject petitions that were not selected in the random selection (“lottery”) process.
Is 2014 the Year for Immigration Reform?
Cap-Subject H-1B Petitions for FY 2015 Should Be Filed on March 31, 2014 to Be Received by USCIS on April 1, 2014; Heavy Demand Results in Untimely Retrogression for EB-2 India.
The government officially reopened on October 17, 2013 after a shutdown that started on October 1. The shutdown had substantial immigration consequences for employers (which were explained in detail here and here). At least some of these issues have been resolved as outlined below.
On October 2, 2013, members of the Democratic Political Party in the U.S. House of Representatives introduced H.R. 15, “The Border Security, Economic Opportunity, and Immigration Modernization Act”. H.R. 15 is a comprehensive immigration reform bill mirrored after the U.S. Senate’s immigration reform bill S. 744, which passed the U.S. Senate in June with a bipartisan vote of 68 to 32.
With the federal government’s partial shutdown in its third day, many federal agency operations have been affected. Among them, the Department of Homeland Security (DHS) has suspended its E-Verify service until Congress reaches an agreement to restore funding. Importantly, although E-Verify is temporarily not operating, employers must still properly and timely complete Form I-9 for any new hires within three days pursuant to the 1986 Immigration Reform and Control Act (IRCA). Employers should also prepare to process any backlog of new hires in E-Verify when the service resumes.
Executive Summary: On October 1, 2013, the U.S. Federal Government implemented a shutdown after Congress failed to reach an agreement on appropriations. As a result, several federal agencies involved in processing immigration benefits have been impacted for the unforeseen future.
If the U.S. House of Representatives and U.S. Senate fail to pass a bill financing the federal government, it will likely result in a partial government shutdown on October 1, 2013. The effect of a shutdown will vary among government agencies. Although large parts of the federal government could close, many government functions would continue. The following information is drawn from recent communications from federal agencies or based on contingency planning for the averted April 2011 federal government shutdown.
L-1 Intracompany Transferees May Face New Challenges; DOJ and NLRB Agree to Cooperate in Investigating Labor and Immigration Law Violations; USCIS Seeking to Revise Form I-9 (Again); Justice Department Settles Two Immigration-Related Discrimination Claims; Justice Department Cautions Against Re-Verification of I-9 Documents by General Contractor.
The “Border Security, Economic Opportunity, and Immigration Modernization Act” (SB 744) passed the Senate by a vote of 68 to 32 on June 27, 2013. Although it is not law, as the House of Representatives will now take up their own version of immigration reform, it is important for employers to know how the bill, if signed into law, will affect them. This article will focus on employers’ compliance and potential penalties for non-compliance under the legislation.
The cast of The Real Housewives of New Jersey signed up to have their lives televised, their dirty laundry aired, and their family dramas battled out for its faithful audience since the series premiered in 2009. But, one of the couples, Teresa and Giuseppe “Joe” Giudice, has an unwelcomed episode to add to their real life drama: they have been indicted on federal charges of bank and bankruptcy fraud. According to the federal indictment, the Giudices allegedly failed to file tax returns, falsified loan applications, and concealed assets in their bankruptcy petition.
Sweeping Immigration Reform Bill Passes Senate; DOMA and Immigration: Practical Implications of the Supreme Court’s Decision; Significant Advancement of EB-2 India Cut-off Date.
Senate Passes Comprehensive Immigration Reform.
On June 26, 2013, the Supreme Court of the United States struck down a provision of the federal Defense of Marriage Act (DOMA) that denied federal benefits to same-sex partners. In a 5-to-4 ruling in United States v. Windsor, the court held that “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” This decision is likely to have profound impact in the area of immigration law.
Last month, the so-called “Gang of Eight” Democratic and Republican Senators released their comprehensive immigration reform bill entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” The full bill runs 844 pages, but for employers who want to avoid slogging through the dense language, the Senate has released a detailed 17-page outline that helpfully outlines the bill’s main provisions.
Immigration Alert: Attention International Travelers - Paper I-94s will be Eliminated by May 21, 2013
Executive Summary: The Customs & Border Protection (CBP) agency has begun gradually eliminating the paper I-94 Admission/Departure Record (known as the "I-94") at all air and sea ports of entry. Note: travelers will still receive a paper form I-94 at land border ports of entry. The I-94, in combination with a passport, is commonly used as a List A document for I-9 employment eligibility verification. Therefore, after the change is fully implemented, employers can expect foreign workers to present electronic Form I-94s printed from the CBP's website as evidence of their work eligibility.
FY 2014 H-1B Cap Reached, Selection Lottery Conducted; Immigration Reform 2013—Update; Automated Form I-94 Arrival/Departure Record to be Introduced in April 2013
Reminder: H-1B Fiscal Year 2014 Filing Season—Get Ready for April 1; Post-Election Immigration Reform—What’s At Issue? DACA Program Raises Questions for Employers in the I-9
Lawmakers unveiled bipartisan proposals to rewrite U.S. immigration law on Monday and Tuesday of this week. According to the reform proposal released by eight senators on Monday, a complete overhaul of the current immigration system would be enacted, and their goal is to do so in 2013. The plan of the eight senators includes four principal reform measures that would directly impact U.S. employers:
A group of Democrat and Republican senators released the Bipartisan Framework for Comprehensive Immigration Reform, the latest bipartisan effort for comprehensive immigration reform to fix the broken U.S. immigration system. Although the legislation is not drafted yet, the framework of the plan is based on the following four principles:
Cap-Subject H-1B Petitions for FY 2014 Should Be Filed on March 29, 2013 USCIS Implements New Immigrant Fee Starting February 1, 2013 Post-Election Immigration Reform Immediate Relatives of U.S. Citizens May Soon Apply for Provisional Unlawful Presence Waivers in the United States Expansion of the Interview Waiver Program at U.S. Embassies and Consulates in India
On December 14, 2102 the U.S. Department of Labor's (“DOL”)’s Bureau of International Labor Affairs (“ILAB”) introduced “Reducing Child Labor and Forced Labor: A Toolkit for Responsible Businesses” (“the Toolkit”), the first guide developed by the U.S. government to help businesses combat child labor and forced labor in their global supply chains. Multi-national businesses have long been faced with the challenge of ensuring such practices are not conducted in their global operations or supply chain processes. Many of these companies are currently involved in efforts to combat child and forced labor on an international basis through numerous governmental and philanthropic programs.
Give your company the gift of an immigration audit this year – it may just keep your company off the government’s naughty list. Here are the top 12 immigration mistakes employers made in 2012:
New U.S.-Russia Visa Agreement Facilitates Travel for Business and Tourism; Stricter Scrutiny of Labor Certifications—Increase in Audits and Supervised Recruitment by the DOL
Everything you need to know about the Immigration Reform and Control Act in one handy post.
Over the past few months, there have been several immigration developments that could have a significant impact on businesses in North and South Carolina. This update summarizes the key developments for employers.
Employers Should Continue to Use Current Form I-9 After August 31, 2012 U.S. Department of State Update on Priority Dates and Demand DOL Proposes Changes to Labor Condition Application and Related Forms Hold on Bill to End Per-Country Cap Lifted “Deferred Action for Childhood Arrivals” Initiative Effective as of August 15, 2012
In July 2012, Senator Chuck Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, agreed to lift his hold on the Fairness for High-Skilled Immigrants Act (H.R. 3012) that was passed by the U.S. House of Representatives. As we reported in the December 2011 issue of the Immigration eAuthority, under current law, the total number of employment-based immigrant visas made available to natives of any foreign country in a given year cannot exceed 7% of the total number of such visas made available in that year. H.R. 3012 eliminates this per-country percentage cap by FY 2015 and also increases family-based visa limits from 7% per country to 15% per country. If enacted into law, the green card wait times for employment-based immigrants from high-volume user countries, such as China and India, would be reduced. On the other hand, slower processing for natives of all countries seems like
The key takeaway for employers from the Supreme Court's ruling yesterday on Arizona's controversial Senate Bill (SB) 1070 law is that states cannot make criminals out of those in their jurisdiction who work or seek employment while unlawfully in the United States. The 5-3 decision, written by Justice Anthony Kennedy, held that Congress already has "decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment." Thus, Section 5 of SB 1070, the only provision dealing directly with the employment of undocumented aliens, will never go into effect.
On June 25, 2012, the Supreme Court held that certain provisions of Arizona's immigration statute (signed into law in 2010) were preempted by federal immigration law. The preempted provisions include those making it a criminal offense for an undocumented worker to solicit, apply for, or perform work in the state; making it a misdemeanor for an individual to fail to comply with federal alien-registration requirements; and authorizing state and local officers to arrest persons who the officer has probable cause to believe has committed a public offense making the person removable from the United States.
On June 25, 2012, the U.S. Supreme Court, with Justice Anthony Kennedy writing for the majority, ruled that several significant provisions of Arizona’s immigration law, often referred to as S.B. 1070, are preempted by federal law. The Court also ruled that it was improper to enjoin another provision of the law. Of particular significance to employers, the Court ruled that section 5(C) of the law, which imposes criminal penalties on unauthorized aliens who are seeking or engaging in work in the state, is an obstacle to the federal regulatory system, namely the Immigration Reform and Control Act of 1986 (IRCA). Arizona v. United States, No. 11–182, U.S. Supreme Court (June 25, 2012).
FY 2013 H-1B Cap Reached; July 2012 Visa Bulletin: Worldwide Cut-Off for EB-2 Category; New Legislation Proposed to Help STEM Graduates Obtain Green Cards; USCIS Launches USCIS ELIS Program for Online Processing of Immigration Applications; Two Recent BALCA Decisions Clarify Notice of Filing Requirements for PERM Labor Certification Applications.
On June 15, 2012, Secretary of Homeland Security Janet Napolitano announced that, effective immediately, young people who were brought to the United States as children through no fault of their own will be considered for relief from deportation, known as "deferred action."
On June 15, 2012, the Department of Homeland Security (DHS) announced that, effective immediately, it will stop deporting and begin granting work permits to an estimated 800,000 immigrants who unlawfully entered or remained in the United States as children, and who have since led law-abiding lives, do not pose a security threat, and would otherwise be eligible for the so-called “DREAM” Act, which is currently stalled in Congress.
Beware of H-1B Wage Law Violations: Company Ordered to Pay Over $300,000 in Back Pay and Penalties for H-1B/LCA Violations; New Round of ICE Audits: Company Fined $1 Million for Knowingly Employing Illegal Immigrants; District Court Enjoins DOL from Enforcing New H-2B Regulations; Expanded STEM-Designated Degree Program List Released; FY 2013 H-1B Cap Expected to Be Reached in June – File New H-1B Cases ASAP.
Following U.S. Withdrawal from Iraq, Government Contractors Facing Tough Challenges from New Immigration Requirements
The United States’ presence in transitional Iraq resulted in many opportunities for U.S. government contractors.
The U.S. Citizenship and Immigration Services (USCIS) today announced that, due to the high number of I-129 petitions recently filed with USCIS (presumably as a result of the large volume of FY 2013 H-1B cap filings), customers will experience a longer than usual period of time to receive their receipt notices - possibly an additional 2 to 4 weeks.
Proposed Revisions to Form I-9, Employment Eligibility Verification; U.S. Department of State Confirms that FY 2012 Annual Limit for China and India EB-2 Category Has Been Reached; FY 2013 H-1B Cap Count; Revised Department of State Visa Processing Fees Effective April 13.
Reminder: H-1B Fiscal Year 2013 Filing Season â€“ Get Ready for April 2; May 2012 Visa Bulletin: Severe Retrogression for EB-2 China and India; New Department of State Rule Delinks L-1 Visa and Petition Validity Periods; BALCA Decision Clarifies Recordkeeping Requirements for PERM Labor Certification Applications.
DHS Outlines Plans to Attract and Retain Highly-Skilled Immigrants and Entrepreneurs; Final Rule on H-2B Foreign Labor Certification Program Announced; March 2012 Visa Bulletin: EB-2 India and China Priority Dates Advance Four Months; Employee-side H-1B Attestations at the U.S. Consulate General in Hyderabad, India.
In a January 31, 2012 press release, the Department of Homeland Security (DHS) announced plans to reform some administrative practices to ease the visa process and reduce immigration burdens in an effort to retain highly-skilled foreign nationals and attract new business investment to the United States. The proposed reforms are being implemented in line with the White House Startup America Legislative Agenda, which proposes tax breaks, capital for startups, and visa reforms to boost high-skilled workers and entrepreneurs. DHS stated that â€œthe President supports legislative measures that would attract and retain immigrants who create jobs and boost competitiveness in the U.S., including creating a â€™Startup Visa,â€™ strengthening the H-1B program, and â€™staplingâ€™ green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields.â€ DHS did not disclose when the proposed reforms will be implemented, and the changes will not likely take effect for several months or more, until they progress through the federal regulatory approval process.
February 2012 Visa Bulletin: EB-2 India and China Priority Dates Leap Forward One Year; H-1B Fiscal Year 2013 Filing Season - Get Ready for April 2; PERM Profile - Updates and Trends in the Labor; Certification Process; Compliance Corner.
January 2012 Visa Bulletin: Continued Forward Movement in EB-2 India and China Priority Dates; Fiscal Year 2012 H-1B Cap Exhausted; House of Representatives Passes the Fairness for High-Skilled Immigrants Act (H.R. 3012); Discrimination Enforcement on the Rise.
On November 29, 2011, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (H.R. 3012). The bill eliminates the per-country numerical limitation on employment-based green card numbers by fiscal year 2015. The bill also increases family-based visa limits from 7% per country to 15% per country.
Update on H-1B Cap Count for Fiscal Year 2012; December 2011 Visa Bulletin: EB-2 India and China Advance Considerably; New Wave of I-9 Audits Looming; E-Verify Cropping Up in Additional State Jurisdictions.
Blanket L Visa Processing in India to be Centralized at U.S. Consulate General in Chennai; Update on H-1B Cap Count for Fiscal Year 2012: Available Numbers Almost Exhausted
H-1B Cap Count: â€œMasterâ€™s Capâ€ Reached and New H-1B Visa Availability Almost Exhausted for Fiscal Year 2012 USCIS to Stop Mailing I-797 Receipt and Approval Notices Directly to Employer DOL Processing Times for Prevailing Wage Requests for PERM â€“ Delays Continue State Immigration Law Updates: Alabama
Arizonaâ€™s immigration law has been in the news for quite some time. Just two weeks ago, the U.S. Supreme Court upheld the part of the Arizona law which requires employers to use E-Verify. Other states have followed Arizonaâ€™s lead and introduced immigration compliance bills (Louisiana included). Others states, such as Alabama, Georgia, and Tennessee are taking immigration compliance to another level. All of these state laws will require employers within the state to use E-Verify, which is a free, Internet-based system operated by the U.S. Department of Homeland Security (â€œDHSâ€) in partnership with the Social Security Administration (â€œSSAâ€). The system allows participating employers to electronically verify their employeesâ€™ employment authorizationâ€”whether the employees are both authorized to work in the United States and authorized to work for the employer running the check.
Supreme Court Upholds Arizona E-Verify Law; President Obama Restarts Immigration Reform Debate; Compliance Corner; State Immigration Law Updates: Georgia, Indiana and Florida; USCIS Starts I-9 Central; E-Verify Now Available in Spanish; Investor Green Card Program Revival; TPS for Haitians Extended (Plus, What is TPS?); Is Your I-9 Software OK?
Social Security No-Match Letter Dilemma Returns; Georgia Legislature Passes E-Verify Mandate; H-1B Cap Filing Light So Far; Arizona SB 1070 Injunction Upheld; Minnesota Drops E-Verify, Virginia Adds E-Verify; Maryland School District Must Pay More Than $5 Million Due to H-1B Audit
The Immigration Implications of Japanâ€™s Disaster; Utah Enacts Enforcement and Guest Worker Immigration Bills; H-1B News: Filing Season Starts April 1; E-Verify Self-Check Starts for Persons in Select States; Driverâ€™s License Check Coming; New H-2B Regulations Proposed (Again).
Companies employing foreign nationals in high-level positions often need to provide their foreign national employees with employment contracts commensurate with their position in the company. Whether the contract arises from a company policy or because of a special employment arrangement with the manager or executive, additional terms are often necessary for foreign nationals. These contract additions will help companies stay informed about the immigration status of the individual, be responsive to and prepared for agency audits, and ultimately get the best return on its investment in obtaining the visa for its employee.
In our last issue we provided an overview of the Immigration Reform and Control Act (IRCA), including I-9 requirements generally, along with a few special situations. In this article, we'll hone in on the E-Verify program, and government investigations.
H-1B Cap Reached; Some I-9 Questions Answered by Updated USCIS Handbook; New H-2B Wage Rules Issued; U.S. Supreme Court Soon to Decide E-Verify Casse; More States Consider Arizona-Style Immigration Law; Florida Adds E-Verify, Rhode Island Ends It; Reminder: Export Control Attestation Starts February 20 for H-1B, L-1 and O-1 Employers
Complying with U.S. immigration laws (both at the federal and state level) should be at the top of every employer's 2011 "To Do" list. Not only are you required to comply with the federal employment verification requirements for your employees, but in many states you are required to take additional steps to ensure that your employees are authorized to work. If you are a federal contractor or subcontractor, you have additional verification requirements.
Export Control Attestation Delayed Until February 20 for H-1B, L-1 and O-1 Employers; Last Minute Tips for International Holiday Travelers; H-1B Cap Update – Master’s Cap Nearly Reached; H-1B Violations Lead to Big Penalties; 2010 Review and E-Verify Update: Self-Check Coming Soon? Arizona E-Verify Law Challenge Continues in U.S. Supreme Court; Wait Until Next Year (Again) – Immigration Reform in 2011?
Starting December 22, 2010, employers seeking to sponsor foreign nationals for employment in H-1B, H-1B1, L-1 and O-1 visa categories must certify compliance with “deemed export” laws. The deemed export attestation is included on the new I-129 form recently released by U.S. Citizenship and Immigration Services (USCIS). The I-129 form is used by employers sponsoring foreign nationals in most temporary employment visa categories including the H-1B, L-1, TN and O-1. In addition to the deemed export certification, employers also must answer questions designed to determine whether the sponsored worker will work at a third-party site – an apparent follow-up to the increased USCIS scrutiny on consultants and contractors seeking H-1B status (see the June and August 2010 issues of the Immigration eAuthority for more information). Thus, the updated form creates new challenges for employers.
Employer Alert: Don’t Require Too Many Documents When Completing I-9s; International Transfers May Have to Wait for Personal Belongings; H-2B Category Under Attack for Fraud; E-Verify Updated with New Photo Matching Tool; The Finer Points: H-1B Portability & E-Verify; H-1B Cap Update and Projection.
The pattern of increased worksite enforcement by the Department of Homeland Security's Immigration and Customs Enforcement (ICE) shows no sign of slowing down. The latest in a series of audit "blitzes" was commenced on September 15. More than 500 employers from across the country were targeted to receive Form I-9 Notices of Inspection (NOIs), the letter that marks the start of an ICE I-9 audit.
DHS Announces Record-Breaking Immigration Enforcement; H-1B Pre-Filing Registration Coming?$1 Million I-9 Related Fine; H-2B Hotel Workers Cannot Recover Visa Expenses Under FLSA; New E-Verify Manual; I-9 Document Update - Old Birth Certificate from Puerto Rico Invalid After October 30; Reminders: Green Card Lottery Deadline & USCIS Fee Increases in November; H-1B Cap Update and Projection.
Because USCIS relies on fees paid by applicants and petitioners to cover the majority of its budget, the law requires a review of the fees and a determination as to whether the fees collected are sufficient to cover the Services budget every two years.
USCIS Filing Fees Set to Increase on November 23; ICE Initiates 500 New I-9 Audits ; I-9 Document Update – Old Birth Certificates from Puerto Rico Invalid After October 30; DOS Expands Audits of Immigration Petitions – Employers May Be Called; Green Card Lottery Registration Begins; Arizona Law Update – Two Lawsuits Dismissed, Others Remain Pending; Hazelton, PA Illegal Alien Rental Prohibition Found Unconstitutional; USCIS Service Center Data Suggests Inconsistent Adjudications; H-1B and H-2B Cap Updates: Still Availability.
Arizona Law Update – Injunction Prevents Enforcement of Key Provisions; Many Business Visitors and Tourists Must Pay New ESTA Fee; Are 50% of Your Workers on H-1B/L-1? Major Fee Increase Implemented; DOL H-1B Audit Results in Settlement of Nearly $1 Million; Electronic I-9 Regulation Finalized; USCIS “Anti-Contractor” H-1B Memo Upheld – Lawsuit Dismissed; H-1B Cap Update: Spike in Filing Reported.
The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) issued a final rule that provides that you may sign Form I-9 electronically and retain the form in an electronic format. All employers are required to complete I-9s to verify employment eligibility. The rule, which takes effect August 23, 2010, applies to employers who choose to execute and/or store the forms electronically. The final rule makes minor changes to an interim rule from 2006 and covers only the storage of I-9s, not their content. The rule was issued in response to comments received from trade associations, agencies, and organizations involved in human resource management. It ultimately does not result in any critical changes to the standards that were established in 2006. The rule clarifies several issues, each discussed below.
While the federal government continues to debate various immigration bills, individual states have been very busy passing immigration laws on topics such as education, health care, public benefits and, of course, employment. It is no longer sufficient to know only the federal immigration law, Immigration Reform and Control Act (“IRCA”), because some laws passed by certain states are not consistent with IRCA. For example, IRCA does not require employers to retain copies of the documents an employee submits for verification in the I-9 process and does not allow employers to choose which documents employees submit for verification purposes. However, Louisiana employers may only utilize a good faith defense to a charge of employing an illegal alien if the employers keep photocopies of documents, and only certain documents will entitle the employer to this defense. Similarly, there is currently no federal requirement that private employers (except federal contractors and subcontractors) use E-Verify to review whether their employees are authorized to work. However, some states, such as Mississippi and Arizona, require all employers to do so. Other states have laws that are consistent with IRCA, but impose greater penalties for non-compliance.
Federal Government Lawsuit Challenging Arizona Law – Update; I-9: Does an Employer Have 3 or 4 Days to Complete? TPS Extension for Salvadorans; Federal and State Law E-Verify Requirements Updated; ICE Five-Year Plan Promises Continued Employer Enforcement; H-1B and H-2B Cap Updates: Still Availability.
Clinton: Federal Government Will Challenge Arizona Immigration Law; Other States Contemplate Similar Laws; Visa Fees Increased at Consulates; USCIS Proposes Fee Increase; E-Verify Redesign – Users Must Complete New Tutorial; Utah E-Verify Requirement Takes Effect July 1; All South Carolina Employers Subject to Immigration Law on July 1; H-1B Cap Update: Still Plenty Available; “Anti-Contractor” H-1B Memo from USCIS Challenged in Lawsuit.
DHS Announces Streamlining of Visitor Entries; Cap Updates: H-1B Cap Cases Trickle In; Still Availability under the 2010 H-2B Cap; Green Card Redesign – The New Card Will Be Green! Arizona Immigration Law Contested in Lawsuits; Online Job Posting Best Practices to Avoid Immigration-Related Discrimination; TPS Extended for Hondurans and Nicaraguans.
On April 23, 2010, Arizona Gov. Jan Brewer signed into law the toughest immigration law in the country, which makes it a misdemeanor for an individual to lack proper immigration paperwork in Arizona. Local police who have "reasonable suspicion" that an individual is undocumented now have the authority to determine that person's immigration status. Under current law, officers may only inquire about immigration status if the person is a suspect in another crime.
Light Filing for H-1B Cap; USCIS Instructions for F-1 Students Extending OPT; $18 Million Settlement – RICO Suits and Immigration Liability; E-Verify Initiatives Include Discrimination Referrals; Utah Passes E-Verify Law; Arizona Governor Considers Immigration Enforcement Bill; Visa Applicants Reminder – New DS-160 Form Required by April 30; Iceland Volcano and Immigration Implications.
Immigration is a political hot button, which may be one of the greatest understatements of the year. It is certainly an issue on which people disagree, unfortunately, often disagreeably.
I-9 Audits Continue; Final Reminder for H-1B Petitions; Report Shows Problems with E-Verify; Arizona Issues LAWA Sanctions; Virginia, New Jersey and Maryland Consider E-Verify Laws; Greek Citizens Eligible for Visa Waiver; Travel Promotion Act Will Add Visa Waiver Fee; Immigration Reform Discussions Start . . . Again.
In our December 2009 Labor & Employment E*Bulletin, we reported that U.S. Immigration and Customs Enforcement (“ICE”) was sending out Notices of Inspections (“NOIs”) to 1,000 employers in which ICE was compelling production of hiring and payroll records as part of its attempt to uncover and prosecute employers who fail to ensure their workforce is legal. If you did not receive a NOI in 2009, consider yourself lucky. But your fortune may not last long. On March 2, 2010, ICE announced it is issuing 180 NOIs to business owners in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee.
Get Ready to File H-1Bs; New Scrutiny of H-1B/L-1 Travelers on Reentry; Traveler Updates – Visa Waiver and Visa Applications; Compliance Corner – State E-Verify and I-9 Laws.
Permanent Residence: First Preference Priority Worker Category Provides an Opportunity to Jump to the Head of the "Green Card" Line.
What do a nationally-ranked cyclist from South Africa, a research scientist from Tunisia who discovered a new gene, and an international business executive from Brazil have in common? You might say that they are all high achievers with a high level of skill in their respective fields; and that would certainly be true. But in the immigration context, you could also say that they may qualify for permanent residence in the United States in an elite group reserved for only those individuals who are considered to have extraordinary ability in their field, are teachers or researchers who are internationally recognized as outstanding, or are being transferred to the U.S. as an executive or manager of a multinational company.
What Haiti’s Earthquake Means to U.S. Immigration – TPS and More; 2010 H-1Bs Gone: Time to Start Planning for 2011; Compliance Corner: USCIS Tracking E-Verify Participant Data; State E-Verify and I-9 Laws - 2010 Updates.
2010 H-1Bs Nearly Gone; Compliance Corner: ICE Policy on I-9 Audits; The Year in Review – 2009 Compliance Recap; Preparing for 2010 – Compliance and Reform?
2009 brought a bold new audit initiative from the Department of Homeland Security (DHS) that will continue into 2010, with widespread investigations into companies' hiring records and I-9 policies.
Last week, U.S. Immigrations and Customs Enforcement (“ICE”) Assistant Secretary, John T. Morton, announced that ICE was issuing Notices of Inspection (“NOI”s) to 1,000 employers across the country in an attempt to identify and penalize employers who are not complying with employment eligibility verification laws. This announcement came on the heels of another recent ICE initiative—conducting on-site audits of H-1B applications. While the debate regarding immigration reform continues, one thing is clear: ICE is dramatically increasing its presence and monitoring of companies, so you need to know both how to prepare for and how to respond to these audits and inspections.
As baseball great Yogi Berra once said – “It’s déjà vu all over again.” The rumblings of major immigration reform have started again. As major initiatives to implement comprehensive immigration reform over the past five years have failed, we do not want to overreact to discussions of possible major immigration reform.
No-Match Rule Officially Rescinded (But Now What?); E-Verify Updates - Federal Contractor Regulation, Nebraska Law; Enforcement Update – H-1B Site Visits; Green Card Lottery Registration Underway.
The Department of State recently announced instructions for the fiscal year 2011 (FY 2011) diversity lottery for permanent residence (“green card”). The application period begins at 12:00 p.m. Eastern Daylight Time (EDT, GMT –4) on Friday, October 2, 2009 and will end at 12:00 p.m. Eastern Standard Time (EST, GMT –5) on Monday, November 30, 2009. Applications are submitted via the Department of State’s electronic registration system at http://www.dvlottery.state.gov/. Paper applications will not be accepted.
Employers with personnel traveling internationally may want to take stock of changes that have occurred over the past 12 months to ensure employees are able to complete business trips with little or no interruption. Among the recent changes:
Retailers have been spared the high-profile immigration woes that some industries (such as manufacturing, food processing, and hospitality) have faced in the past few years. But the new administration recently announced that it is going to turn the heat up on employers from all industries, so now more than ever it is important to ensure that your business is protected. Here are five quick things about immigration laws that are important for you to know.
The Department of Homeland Security (DHS) took another step in its worksite enforcement efforts on August 19, 2009 when it announced its intention to rescind the embattled Social Security No-Match Rule, and to focus on increased compliance through its E-Verify, IMAGE and other employment verification programs.
U.S. Citizenship and Immigration Services (USCIS) has recently been issuing interview notices to I-485 adjustment of status (AOS) applicants, even though the relevant priority date may not be current and therefore the AOS application cannot presently be approved. Why would USCIS schedule an interview under these circumstances?
Federal and state immigration enforcement activities continue to rise. Over the past few weeks, we have seen the Department of Homeland Security (DHS) initiate 652 I-9 audits, affirm the regulation requiring certain federal contractors to use E-Verify, and conduct H-1B employer site visits. At the state level, South Carolina’s Department of Labor, Licensing and Regulation has conducted 50-55 audits of businesses for compliance with the state’s law requiring, among other things, employers of 100 or more persons to verify the employment eligibility of new hires by using E-Verify or viewing approved state-issued drivers licenses.
United States citizens and lawful permanent residents (“green card” holders) can now take advantage of streamlined entry processes at 20 U.S. airports under the Global Entry initiative. Global Entry applicants must first enroll at any of the 20 locations by completing an interview and biometric data collection. Upon approval, Global Entry participants can use kiosks at any of the 20 airports to complete U.S. Customs and Border Protection (CBP) inspection upon returning to the United States from international travel. Global Entry users are typically processed in under five minutes. Under a reciprocal arrangement that links the U.S. program with the Privium program in Amsterdam, citizens of the Netherlands can also apply to participate in Global Entry.
U.S. Immigration and Customs Enforcement (ICE) announced yesterday that 652 businesses nationwide have been targeted for in-person inspection of I-9 employment verification forms. Upon initial notification of the inspection, targeted employers are given a very short time frame, as little as three days, to prepare for a meeting with federal officials in which the company's Form I-9 records will be reviewed. Some employers have already begun receiving these audit notices.
The road to a green card is often measured in years rather than months. We have previously reported on and summarized the delays inherent in the green card process, including in the April 2009 issue of the Immigration eAuthority. In that article, we summarized the three steps commonly required for employment-based green card cases: the PERM labor certification, the I-140 Immigrant Petition and the I-485 Adjustment of Status application. Each of these three steps can take a year or longer to process.
The Racketeer Influenced and Corrupt Organizations Act (RICO) is largely thought of as a law designed to combat activities of organized crime enterprises, a reasonable conclusion since it was enacted as part of the Organized Crime Control Act of 1970. RICO allows for civil actions against persons or entities that engage in a pattern of racketeering activities. In 1996, Congress extended the reach of RICO to violations of federal immigration law. So, can RICO potentially result in liability to a company that uses undocumented workers? Under certain circumstances, the answer clearly seems to be “yes.” Furthermore, a RICO claim might support a class action against an employer.
The Western Hemisphere Travel Initiative (WHTI) continues to be phased in and as of June 1, most U.S. and Canadian citizens will now be required to present one of the following documents when applying for admission after travel to Canada, Mexico, Bermuda or the Caribbean at land or sea ports of entry:
The Department of Homeland Security (DHS) recently confirmed what many had expected – that the goal of rooting out illegal workers will be based upon a strategy that focuses on employers who knowingly hire illegal workers.
The road to a green card is often measured in years rather than months. This has become particularly true for many employment-based green card cases. As discussed in the August 2008 issue of the Immigration eAuthority, in 2004 the U.S. Department of Labor (DOL) projected that permanent labor certifications filed using the new Program for Electronic Review Management system (PERM) would take 45 to 60 days to process, unless the case was subject to an audit. Rarely in the history of PERM have those timeframes been met.
In light of continuing economic concerns, many were surprised by recent confirmations from White House staff that President Barack Obama’s Administration is preparing to begin a push for comprehensive immigration reform. While Senator Charles Schumer (D-New York) went so far as to state that he believes comprehensive immigration legislation could be approved this year, White House Press Secretary Robert Gibbs indicated the process would begin this year, but does not think it will be completed. Recent public statements by President Obama reinforce his immigration policy, which includes creating secure borders and bringing undocumented persons out of the shadows, perhaps after paying a significant fine. While we await immigration reform, published reports indicate that Department of Homeland Security Secretary Janet Napolitano delayed a series of proposed worksite raids, refocusing enforcement efforts on businesses and executives instead of workers.
In today's tight economy, human resources professionals across every type of industry are feeling pressure to cut unnecessary costs and stretch already thin budgets. For those employers who have foreign-national employees on the payroll, this can mean investigating how to retain valuable foreign talent and expertise without having to incur any unnecessary expense. The most effective long-term way to minimize immigration-related expenditures is to ensure that the immigration status of all your foreign-national employees is kept current at all times.
Effective January 18, 2009, the U.S. Department of Homeland Security (DHS) expanded the categories of non-U.S. citizens required to provide digital fingerprints and a photograph upon entry to the United States through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program. Previously, certain temporary visitors (such as entrants under the Visa Waiver Program (VWP)) had been subject to US-VISIT procedures. The program expansion adds virtually all non-U.S. citizens, including lawful permanent residents (green card holders), arriving at airports to US-VISIT. Among those excepted from coverage are Canadians applying for admission to the United States as B-1/B-2 visitors and most lawful permanent residents arriving though land ports.