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Immigration Blog

Worksite Implications of Department of Homeland Security Shutdown

AUTHORS:  Amy Peck and Michael Neifach.

With the upcoming potential lapse in funding of the Department of Homeland Security, employers may encounter worksite compliance issues because the E-Verify program may be unavailable at the end of the day on February 27th. Should this happen, employers will not be able to create E-Verify cases to determine the eligibility of their employees to work in the United States. Nevertheless, employers continue to have compliance obligations during a government shutdown. Based on guidance from USCIS during the last government shutdown, in 2013, it is likely employers will need to follow these protocols should E-Verify be offline:

Form I-9

  • Form I-9 requirements are not affected during a federal government shutdown.

All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify

  • Employees who received a Tentative Non-Confirmation (TNC)

If an employee had a TNC and was not able to resolve the TNC due to a federal government shutdown, employers should add the length of the government shutdown (X federal business days) to the date printed on the “Referral Letter” or “Referral Date Confirmation.” Employees have until this new date to contact the Social Security Administration (SSA) or DHS to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify is unavailable, you should initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

  • Employees who received a SSA Final Non-Confirmation (FNC) or DHS No Show result

If an employee received a Final FNC or No Show because of the federal government shutdown, close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the TNC that led to the FNC result.

  •  Creating Cases: Three-Day Rule

You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown when E-Verify becomes functional again. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select “Other” from the drop-down list of reasons and enter “DHS shutdown” in the field.

For further information please contact Amy Peck, Michael Neifach or the Jackson Lewis attorney with whom you normally work.

The Top Five Immigration Mistakes made by Foreign Athletes

AUTHOR:  Davis Bae.

In 2014, opening day rosters in the National Basketball Association listed 101 players born outside the United States, Major League Baseball boasted 224 players from countries such as Japan, Korea, Dominican Republic, Venezuela, Japan, Cuba, and Mexico, not to mention the many players from other countries in the National Hockey League, Major League Soccer, and the developmental leagues of all of these major sports. As the world of sports continues to become more global, immigration has become even more essential to our professional sports leagues.

The following are the five most common misunderstandings foreign professional athletes make about their immigration status include:

Careers are Short and So Are Grounds for Permanent Residence : Players who no longer compete at the highest level in their sports will be unable to obtain permanent residence based upon their abilities. Players no longer playing in their sport will be denied permanent residence for failure to demonstrate the continued ability in their area of extraordinary ability. Similarly, players often are only one bad season or injury away from losing their ability to remain in the U.S. on temporary visas. Therefore, they should consider filing for permanent residence early in their careers.

Family Matters, but Working is Another Matter: Families of foreign professional athletes cannot work in the United States unless they have their own basis for work authorization. By filing for permanent residence, however, the families of players can start businesses, seek employment, and have greater travel flexibility. Also, players who eventually become citizens can immediately petition to have parents join them in the United States.

Income Flexibility is Not Player’s Lot: Immigrant athletes generally can work only for a single employer. Other active business interests fall outside their authorized status. However, by obtaining permanent residence, the player is free to pursue business and employment opportunities like any other U.S. citizen.

Traveling with Ease May Have to Wait : U.S. immigration works on a series of complicated visas categories that often require several filings with the USCIS and DOS Visa limitations cause confusion and delay. Permanent residence, however, frees players from the burden of those filings and allows them to enter the United States faster and with less inspection by border officers.

Higher Standard of Behavior Is Expected: Immigration is a civil, rather than criminal, issue. Minor criminal issues or immigration violations can result in the denial of a visa or permanent residence for a player or family member. Immigrants are held to a higher standard. Issues that might result in a monetary fine for a U.S. citizen or permanent resident could mean a permanent bar or removal from the United States for an immigrant.

Working with experience immigration counsel can help players reduce the risks. I will be at Spring Training in Phoenix to meet with players and agents to process permanent residence applications. In an hour, we can collect the documents and complete the basic forms needed to file an application for permanent residence for players and their families. If you want more information, please reach out to Davis.Bae@jacksonlewis.com.

Spouses of Certain H-1B Employees May Apply for Work Authorization Beginning May 26

AUTHOR:  Davis Bae.

The Department of Homeland Security (DHS) has announced that certain H-4 dependent spouses of H-1B workers will be able to apply for employment authorization starting May 26, 2015.  The USCIS is expected to release details on the filing process.

This new work authorization does not apply to all H-4 spouses. An H-4 spouse will be eligible to apply for employment authorization if their H-1B spouse:

  • Is the beneficiary of an approved I-140; or
  • Has been granted an extension of H-1B status beyond the six-year limit based on the American Competitiveness in the Twenty-first Century Act of 2000. Specifically, these are individuals granted an extension of H-1B status based upon PERM Labor Certification application or an I-140 immigrant petition taking more than 365 days.

The State Department has indicated that over 96,000 people obtained H-4 visas in 2013. This will have a significant impact for the South Asian community as 76% of those visas were issues to people from those countries. In addition, this will have the largest impact on spouses of technology workers who use the vast majority of H-1B visas.

The USCIS indicates that this action will help reduce the financial stress of H-1B holders and their families due to the inability of spouses to get work authorization. The filing is done through an I-765 filing which provides for a general work authorization document. Unlike the H-1B holder, the spouse will have more flexibility in the kind of work they choose to pursue.

We will provide updates on how to initiate a new H-4 work authorization as the information becomes available.

Federal Immigration Authorities Suspend President’s Two New Deferred Action Programs in Response to Federal Court Injunction

AUTHOR: Marko C. Maglich.

Federal Judge Andrew Hanen of the Southern District of Texas has ordered the suspension of two key aspects of President Obama’s November 2014 Executive Action on immigration: (1) the expansion of the “DACA” (Deferred Action for Childhood Arrivals) program and (2) the new “DAPA” (Deferred Action for Parents of Americans and [of] Lawful Permanent Residents).

The Federal government has announced it will appeal the temporary injunction. In the meantime, both new programs are suspended.

DACA is currently available to certain foreign nationals provided they were still under the age of 31 on June 15, 2012. The now-suspended DACA expansion would expand the availability of employment authorization and deferral of removal actions against undocumented foreign nationals who entered the U.S. before their 16th birthdays.

The DAPA program, also suspended, is a program that was scheduled to go into effect in August 2015. This program would provide employment authorization and deferral of removal actions to certain parents of U.S. Citizens and Lawful Permanent Residents (“green card” holders). DAPA beneficiaries would not be limited to those who came to the U.S. as children. The focus of that program is on deferring removal actions against qualifying parents, for whom removal could divide them from their Citizen and lawful resident children or force those children out of the U.S.

U.S. Citizenship and Immigration Services (“USCIS”) was to have begun accepting applications yesterday, February 18th, under the DACA expansion.   However, now the agency states on its web site, “Due to a federal court order, USCIS will not begin accepting requests for the expansion of DACA on February 18 as originally planned.”

Although the injunction emanates from a lower federal court in Texas, Secretary Jeh C. Johnson of the U.S. Department of Homeland Security has announced that the Department has suspended the two new programs nationwide. Hence, potential applicants for either program anywhere in the U.S.—not only in the area under the Court’s Southern Texas jurisdiction—are precluded from applying for either program until further notice.

The suspension will be in effect until the Federal government’s appeal of Judge Hanen’s temporary injunction is resolved, Secretary Johnson said. It appears, therefore, the two new programs could be delayed for at least weeks or months, if not permanently.

Judge Hanen did not base his injunction on the States’ constitutional objections to the programs. Rather, the judge found that the Secretary of Homeland Security’s actions in implementing these actions failed to comport with the “notice and comment” requirements of the federal Administrative Procedure Act for issuing regulations, and that the state plaintiffs had standing to complain of Secretary’s actions. Those requirements require that the government provide notice and an opportunity for comment on proposed new rules—thus accepting the plaintiff States’ position that the programs amounted to a rulemaking.

Judge Hanen did go further. While generally conceding that the Secretary has broad prosecutorial discretion, as long as he stays within the law, here, he said, the Secretary went beyond merely withholding enforcement against certain violators: he bestowed benefits on them. “Instead of merely refusing to enforce the [INA’s] removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits and the ability to travel.” Non-enforcement does not entail “bestowing multiple otherwise unobtainable benefits upon the individual,” he said.

“Deferred action” is a long-standing immigration procedure whereby Federal immigration authorities elect not to take removal action against certain removable (a.k.a. “deportable”) foreign nationals, based on certain criteria such as risk of harm to society and in the interest of prioritizing prosecution resources. The basis of granting deferred action is “prosecutorial discretion.” This concept is the discretion that prosecutors—whether in civil setting such as immigration, or in criminal settings such as local district attorney offices—exercise in determining which cases to prosecute. When the government makes a decision to defer action for a defined category of removable foreign nationals, as opposed to for an individual foreign national, this is termed “categorical prosecutorial discretion.” Jackson Lewis’s Maria Fufidio explored this concept as applied to the 2012 DACA in her note “’You May Say I’m a Dreamer, but I’m Not the Only One’: Categorical Prosecution Discretion and its Consequences for US Immigration Law,” in the Fordham Journal of International Law (summarized at fordhamilj.org). The article is helpful for those who want to understand the basis and tensions inherent in such exercises of prosecutorial discretion to make choices in where to deploy enforcement resources. Additional resources are available at aila.org.

“Stalemate” in Congress over Executive Orders as DHS spending bill deadline approaches

AUTHOR:  Sean Hanagan.

With a one-party majority in both houses of Congress after the 2014 mid-term elections, observers have been watching for signs of greater cooperation, and die-hard optimists even hope for legislation addressing the country’s broken immigration system.  Alas, political brinksmanship appears to remain the order of the day, as sparring continues despite the upcoming Congressional recess and the looming Department of Homeland Securityspending bill deadline, on February 27th.  While there is bi-partisan agreement that, in the words of House Representative Zoe Lofgren (D-Calif.), not funding DHS would be “dumb and dangerous,” congressional representatives continue to struggle over whether to send the President a “clean” bill or one modified by several proposed amendments.  Failure to pass a spending bill would risk shutting down the agency, which would slow services and aggravate processing backlogs, as well as implicate national security.

While members of the House three times this month have pushed spending plans that included amendments severely rolling back the president’s recent executive orders (the EOs would temporarily shield up to an estimated five million undocumented aliens from deportation), Senate leaders have blocked the legislation, sending the bill back to the House.  Despite the potential for a crisis should a bill not be signed before the deadline, politicians on both sides of the aisle appeared content to trade barbs and maintain hardline positions. House Speaker John Boehner (R-Ohio) on February 11 commented, “We do not take this action lightly, but simply there is no alternative,” while Senate Minority Leader Harry Reid (D-Nev.) called the bill passed in the House “pointless,” and Senator Charles E. Schumer (D-N.Y.) wryly commented, “They’re learning how difficult it is to govern.”

Regardless of the public posturing and rhetorical point-making, from statements by the President and his inner circle, the amendment issue likely will be moot. DHS Secretary Jeh Johnson wrote in a letter to House Minority Leader Nancy Pelosi (D-Calif.) this week, “If a bill that includes such [restrictive] language comes to the president’s desk, his staff and I will recommend to the president that he veto it.”

It is high time for Congress to put aside the face saving and finger pointing to get down to the real business of governance and to take that most dreaded, but necessary medicine, compromise.

USCIS to Accept Expanded Deferred Action for Childhood Arrivals Applications Starting February 18, 2015

AUTHOR:  Jessie Feinstein.

President Barack Obama’s November 20, 2014, Executive Order addressed many significant issues of immigration law and allowed more individuals to qualify under the Deferred Action for Childhood Arrivals program. Consequently, on January 29, 2015, the U.S. Citizenship and Immigration Service (USCIS) announced that it will start accepting applications for expanded DACA beginning on February 18, 2015.  To be eligible to apply for expanded DACA, an applicant must be in the U.S. without lawful status, have entered the U.S. before his 16th birthday, and meet certain other criteria.  More information about the DACA and expanded DACA is available at:

http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

In the spring of 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum on the new Deferred Action for Childhood Arrivals program as a measure of relief to “Dreamers” when the DREAM Act failed to pass in Congress. Since 2012, DACA has allowed thousands of young people to obtain work authorization and offered safety from deportation.

The attorneys at Jackson Lewis are available to discuss DACA eligibility.

Ramping up for the H1B Cap Season

Jackson Lewis is presenting a webinar on January 29, 2015 at 1:30 EST, entitled “Preparing for the H1B Cap Season” which will provide information about the H1B program, employer responsibilities, tips to prepare for this cap, and alternatives to the H1B if a petition is not accepted. To register for this webinar, please visit https://attendee.gotowebinar.com/register/3103697388481180162

For more information on the H1B cap, please see “Start Planning for New H-1B Applications As April Deadline Nears.”

President Obama’s State of the Union Address on Immigration

AUTHOR:  Minnie Fu.

In his seventh State of the Union speech on January 20, 2015, President Barack Obama said that Congress cannot afford to be “refighting past battles on immigration when we’ve got a system to fix” and stated that he will veto any effort to roll back his executive order, announced last November, to provide relief to millions of undocumented immigrants from deportation.  Stating that “it’s possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants,” President Obama asked the Republican-controlled Congress not to end funding for the Department of Homeland Security.  This largely referred to legislation passed in the House tied to the funding of DHS, which expires on February 28, 2015, and would end a 2012 program granting temporary legal protection to hundreds of thousands of children of illegal immigrants. The bill also would block President Obama’s executive order granting similar protections to many of the parents of those children.  The House-passed bill is not expected to survive in the Senate, where the votes appear to be more closely divided and Democrats may have enough votes to filibuster it.  President Obama, in his speech, left immigration reform up to lawmakers to propose and negotiate new spending legislation.

 

Obama’s Immigration Executive Action under Congressional Attack, but 12 States Defend the Policy

AUTHOR:  Sujata Ajmera.

On January 14, 2015, the U.S. House of Representatives voted 236-191 to overturn Obama’s Executive Action Policy that calls for deferred deportation of millions of immigrants currently in the United States. The underlying bill passed mostly on a party-line vote, with 10 Republicans voting against it and two Democrats voting in favor.

The House bill calls for cutting Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) as well as the announced temporary deportation relief for parents of U.S. Citizens and Lawful Permanent Residents (DAPA). The bill heads to the Senate, where even a Republican-controlled setting may not garner the 60 votes needed to pass the bill, much less for it to survive a Presidential veto.

The House bill comes on the heels of the December 2014 federal lawsuit filed by Texas Attorney General/Governor-Elect Greg Abbot challenging the validity and constitutionality of the Executive Action policy. This lawsuit claims Obama’s policy constitutes executive overreach and, thus, is unconstitutional and unenforceable. Since its submission, a total of 25 states have joined the lawsuit. However, a significant number of states have filed a friend-of-the-court brief voicing their favor of the policy.

The brief, filed by Washington Attorney General Robert Ferguson, was joined by 12 states, including California, Hawaii, Massachusetts, Washington D.C., and New York. The brief states that the Executive Action is well within the President’s authority as he is allowed to set deportation enforcement priorities. Further, it states that the benefit of such policy far outweighs the harm, declaring the economic impact and tax revenues alone could increase GDP (gross domestic product) by $90 billion to $210 billion. Additionally, the brief states that such policy improves public safety and keeps families together; which ultimately benefits the public interest.

Your Jackson Lewis attorneys are monitoring the status of all immigration-related legislation and litigation and will provide updates as they become available.

H-1B or L-1 Petition Denied? Don’t Waste Time Appealing to the Administrative Appeals Office

AUTHOR:  Amy L. Peck.

Many businesses sponsoring H-1B specialty occupation worker or L-1 intra-company transfer petitions have experienced the frustration of unfair denials.  Now, Information published in the Citizenship and Immigration Services Ombudsmen Annual Report 2014 (“Report”) confirms that appeals from these determinations are almost always an exercise in futility.

Cases that are not approved can be appealed to the Administrative Appeals Office (AAO), which has the authority to review approximately 55 different immigration applications and petitions, including H-1Bs and L-1s.  Concerns have mounted over the AAO’s autonomy and whether it is offering an independent review of a denied case, or simply rubber-stamping the USCIS denial.  The Report indicates there may be grounds for those concerns.

According to the Report, in 2013, H-1B cases appealed to the AAO were sustained (meaning that the government’s denial was overturned) only 1% of the time. The government reviewed a total of 870 H-1B cases in 2013.   Of those, it sustained 12. On only a slightly less abysmal note, the AAO approved appeals in L-1 cases for  just   7% of the time. (The government reviewed 508 cases and sustained 37.) By affirming the government’s decision between 93% – 99% of the time, the AAO does not appear to offer a level playing field for petitioners.

Not every appeal has merit, but the percentage of appeals that are sustained appears to many to be unduly deferential to initial determinations of questionable merit.

An AAO appeal is not required. There are other options.  Businesses can choose to re-file the case with USCIS, although filing fees need to be paid again. Fortunately, there is no rule that says you can only file once. Another option is appealing directly to federal court, which may afford a more level playing field. Knowing the odds of succeeding at the AAO are slim, businesses faced with adverse determinations should weigh other options.