DHS has until May 10, 2016, to Cure Defects in STEM OPT Rule, Court Decided

Recognizing the significant hardship a regulatory gap would cause current and future participants in the STEM OPT program, the U.S. District Court for the District of Columbia has given the Department of Homeland Security an additional three months to issue a new rule to cure the defects in the STEM OPT rule extension that the court vacated on August 12, 2015.

The August vacatur was to take effect on February 12, 2016, unless DHS issued a new rule to cure the defects found. Now, DHS will have until May 10, 2016.

On August 18, 2015, the Washington Alliance of Technology Workers (WashTech) filed a notice of appeal with the Court of Appeals for the District of Columbia Circuit challenging the scope of DHS’s regulatory authority in initially establishing the STEM OPT benefits in 2008.

On January 11, 2016, WashTech filed a motion to reject DHS’s previous request for extension, arguing the district court had no jurisdiction to extend its stay of vacatur because WashTech’s pending appeal with the D.C. Circuit Court automatically divested the lower court of jurisdiction to grant the relief requested by DHS, unless the district court first issued an indicative ruling and sought to remand the case from the circuit court. DHS argued that the district court has discretion under Federal Rules of Civil Procedure Rule 60(b) to relieve a party from a final order for a series of specific, enumerated reasons or for “any other reason that justified relief.” See Murray v. Dist. of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995).

DHS argued its unexpected inability to promulgate a replacement rule before the stay’s expiration constitutes extraordinary circumstances, citing an unexpected and unprecedented public response to its October 19, 2015, Notice of Proposed Rulemaking. F.R.C.P. Rule 60(b)(5) provides that a party may ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.

In its January 23, 2016, Order, the district court stated that although a filing of notice of appeal would confer jurisdiction on the court of appeals, the district court only surrenders “its control over those aspects of the case involved in the appeal.” The court concluded that it retained jurisdiction over DHS’s motion and need not seek remand as the extension of stay would not affect the issues on appeal. In other words, a three-month extension would protect D.C. Circuit’s jurisdiction, possibly allowing the circuit court to rule on the stay’s propriety before that issue becomes moot.

The court found no merit to WashTech’s argument that the changes proposed by DHS — or the uncertainty those changes have occasioned — disqualify DHS from the limited relief it sought.

DHS said the STEM OPT program’s approximately 23,000 participants, 2,300 dependents of participants, 8,000 pending application for extensions, and 434,000 foreign students who might be eligible for STEM OPT authorizations would be adversely affected if the extension is not granted. Similarly, the U.S. tech sector and educational institutions would suffer competitively due to the resultant loss of talent. The court said the limited modification requested in this case is warranted.

U.S. Supreme Court Agrees to Review Obama Immigration Action Case

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 granted certiorari in Texas et al. v. U.S. et al. today and indicated that it will take up an additional issue on whether the Obama administration’s action violates a constitutional clause that requires the president to faithfully execute the law (i.e., the Take Care Clause in Article II of the Constitution). The Court will hear arguments this April and a decision is likely to be issued this June, before the end of the Court’s current session.

In November 2014, the Obama Administration issued new policies allowing certain undocumented immigrants to apply for deferred action and work authorization allowing them to remain and work legally in the United States.  These programs were to apply to certain individuals brought to the U.S. when they were under the age of sixteen (Deferred Action for Childhood Arrivals), and also to undocumented individuals who are parents of U.S. citizens or lawful permanent resident children (Deferred Action for Parents of Americans and Lawful Permanent Residents).  Twenty six states filed suit to stop these policies from being implemented in December 2014. The United States District Court for the Southern District of Texas issued a preliminary injunction in February 2015, and, on November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed the injunction. The Obama administration petitioned the Supreme Court on November 20, 2015 seeking immediate review of the Fifth Circuit’s decision

Ramping up for the H1B Cap Season

Each year, USCIS issues 65,000 H-1B visas and 20,000 “master’s cap” visas. April 1, 2016 is he first date 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 over 60% of all petitions were rejected.

What does this mean?

Employers need to be prepared to file H-1B petitions on April 1. Now is the time to review your employees’ immigration status and start talking to your managers and HR teams to identify employees who may need H1B sponsorship in 2017.   Many possible candidates may be working pursuant to an Optional Practical Training (OPT) work authorization card that may not expire until sometime in 2017. We nevertheless strongly suggest filing petitions for these employees for this fiscal year as well to maximize their chance for selection in the H-1B lottery.

New Rule Provides Additional Flexibility, Enhanced Opportunities for Certain Highly Skills Workers

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).

Current regulation (8 CFR § 2741.12(b)(20)) allows other high skilled workers in the following nonimmigrant visa categories to continue to work for up to 240 days beyond their current expiration date as long as they file a timely extension request before the expiration date:

  • H-1B specialty occupation workers,
  • L-1 intracompany/multinational corporation transferees,
  • O-1 extraordinary ability aliens,
  • E-1/E-2 treaty traders and investors,
  • TN NAFTA professionals, and
  • Certain international organizational workers and so on.

Because the nonimmigrant visa categories of H-1B1 and E-3 were created after the prior regulation was published, visa holders in these categories have not been able to continue to work unless they submitted their extension requests early or paid an additional $1,225 USCIS premium processing fee for expedited services.

Additionally, DHS added in its regulation allowing immigrant visa (“green card”) applicants to include important patents or prestigious peer-reviewed funding grants as evidence to establish their eligibility as an internationally recognized outstanding professor or researcher in their specialized academic field. Under 8 CFR 204.5(i)(3)(i), USCIS would accept an applicant’s claim to have met the statutory requirement for having satisfied two of the six criteria, such as receipt of major prizes or awards, original authorship of scholarly articles, serving as a judge of the work of others. Although important patents or prestigious peer-reviewed funding grants previously could be used to support the international recognition criterion for final merits review by USCIS, DHS has now codified this as threshold eligibility evidence to meet the statutory requirement.

The final rule is scheduled to be published in the Federal Register on January 15, 2016 with an effective date of February 16, 2016.

DHS Proposes Regulations to Help Employment-Based Immigrants

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.

The proposed changes target U.S. businesses and their employees. According to DHS, the laws are “intended to better enable US employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigration visa petitions, while increasing the ability of such workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.” However, DHS clearly indicates that most of the changes simply codify current practices. Many of the proposed changes will have no practical effect, including the seemingly most dramatic change relating to work authorization for certain individuals with approved I-140s.

Highlights of the proposed regulations include provisions:

Codifying and clarifying how to extend beyond the sixth year of H-1B, when an H-1B nonimmigrant can change jobs or employers without affecting his or her approved immigrant visa petition, how to calculate H-1B recapture time, and who qualifies as “cap-exempt” employers.

  1. Codifying that a beneficiary may port and retain after 180 days from approval the priority date of an approved I-140, regardless of whether the I-140 petitioner has withdrawn the approval. Exception: if the I-140 is withdrawn for fraud or misrepresentation or if the underlying labor certification is invalidated.
  2. Offering a one-time 60-day grace period, during an authorized validity period, for individuals in E-1, E-2, E-3, H-1B, L-1, or TN status, where employment ends due to voluntary or involuntary termination or lay off. These individuals are not authorized to work during the grace period.
  3. Extending the 10-day grace period granted before and after H-1B status to individuals in E-1, E-2, E-3, L-1, or TN status. These individuals are not authorized to work during the grace period.
  4. Permitting issuance of one-year Employment Authorization Documents (EAD) for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 and no available visa numbers if the individual can show compelling circumstances. The definition of compelling circumstances is not included in the regulations, but DHS includes examples, such as serious illnesses and disabilities, employer retaliation, and other substantial harm to the applicant or to the employer. If these nonimmigrants start to work pursuant to the EAD, they are considered to have abandoned their nonimmigrant status and cannot adjust status to permanent residence in the U.S. The beneficiary must apply for an immigrant visa abroad. EAD also is available to spouses and children, but can be granted EADs only if the principal beneficiary has been approved for an EAD. Renewals are allowed in certain circumstances.
  5. Eliminating the 90-day processing time required of USCIS for EADs and automatically extending most EADs 180 days beyond the expiration if the extension was timely filed, the extension is based on the same eligibility, and the eligibility of the EAD extends beyond the expiration of the EAD.

 

Jackson Lewis will provide further updates as warranted.

FY2016 Omnibus Spending Law and the Resulting Immigration-Related Provisions

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 bill includes the following immigration-related provisions:

  • Department of Labor funding would increase by 2%–we expect increase wage-and-hour and worksite audits by the agency
  • DOL is directed to make changes to the H-2B Visa program, including wage determinations, enforcement provisions, and definitions, and to cap exemptions for returning H-2B workers. The Legislature demanded:
    • Greater flexibility for H-2B workers in the seafood industry regarding when they can start working;
    • That the agency permit the use of private wage surveys even where Occupational Employment Statistics (OES) data is available (the current DOL regulations limit the use of private wage surveys only to when OES data is not available);
    • An expansion of the definition of “seasonal” to ten months (instead of the nine months under the current DOL regulations);
    • Further limitations on the DOL’s ability to implement certain parts of its interim final rule (DOL will not use appropriated funds to implement its H-2B rules on corresponding employment and the three-fourths guarantee – Congress has effectively rendered these provisions unenforceable by DOL); and
    • An exemption for H-2B returning workers from the 66,000 annual cap for FY2016; and
  • Authorization to USCIS to continue the EB-5 (foreign Investor), Conrad 30 (foreign doctors), Special Immigrant Religious Worker, and E-Verify programs (supplemental verification compliance).

Predictions that the bill may provide an avenue to restrict refugee admission, defund or harm “sanctuary” cities, or block provisions of President Obama’s DACA and DAPA Executive Orders did not come true.

Internal I-9 Audits: Alternative Documentation

Periodic internal I-9 audits are considered an employer “best practice” by Immigration and Customs Enforcement (ICE). Before conducting an internal I-9 audit, however, employers need to understand how to address a range of issues likely to be identified.

In a Technical Assistance Letter (dated October 23, 2015), the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) discussed whether an employer may lawfully request alternative documentation for employment verification purposes if, during the course of an internal audit, an employer finds documentation that does not appear genuine. Particularly where affected employees share the same national origin, OSC was asked whether requesting follow up from employees implicates the Immigration and Nationality Act’s anti-discrimination provisions (INA Section 274b, 8 U.S.C. 1324b).

OSC advised that in the context of an internal audit, so long as the employer treats all similarly-situated employees the same, regardless of citizenship status or national origin, an employer’s request for alternative documentation likely would not violate the anti-discrimination provisions of the INA. OSC warned employers against basing selection of I-9s for review on employees’ citizenship status or national origin. OSC also stated that an employer should apply the same level of scrutiny to its review regardless of the employees’ citizenship status or national origin.

Because the employment verification requirements under the INA must be balanced against the INA anti-discrimination provisions, employers must be mindful of all requirements before conducting an internal audit and should consult with counsel prior to initiating or relying on an I-9 review.

Bill Would Drastically Alter H-1B Program and End OPT Program

A bill that would drastically reshape the H-1B visa program and effectively end the Option Practical Training (OPT) program, both of which employers use to hire foreign national employees in skilled positions, has been introduced in the Senate.

Presidential candidate Senator Ted Cruz (R-Texas) and Senator Jeff Sessions (R-Alabama), Chairman of the Senate’s Subcommittee on Immigration and the National Interest, co-sponsored the American Jobs First Act to do away with program

The H-1B program allows employers to hire foreign national employees in specialty occupations that require completion of at least a Bachelor’s degree. The OPT program allows employers to hire foreign nationals in positions related to the foreign nationals’ Bachelor’s level (or higher) field of study, giving the students-turned-employees an opportunity to have hands-on training in that field.

Arguing that employers’ current use of the H-1B program strays from the original intent of the program, Senator Cruz stated this bill would ensure employers cannot use the program to replace qualified and willing U.S. workers with what he calls “cheaper foreign labor.” Accordingly, the bill would establish a minimum wage for H-1B workers and require employers seeking H-1B visas to commit to paying the foreign workers the higher of:

  • what a U.S. worker who did identical or similar work earned two years prior to the hire of the foreign worker, or
  • $110,000 annually.

In addition to an H-1B minimum wage, the bill would establish a “cooling off” period which would prevent an employer from hiring an H-1B visa-based foreign worker within two years of layoffs, an employee strike, an employer lockout, furloughs, or other involuntary terminations, excluding for-cause separations. This period is intended as a disincentive for H-1B employers to replace U.S. workers with foreign national employees.

The bill also would eliminate the continued use of the OPT program. Senator Cruz and other detractors argue the OPT program does not offer a legitimate opportunity for student training. Instead, in their opinion, it affords employers an opportunity to hire foreign workers more cheaply than qualified and willing U.S. workers, thus displacing or leading to the non-hire of such U.S. workers. The bill would also seek to ensure that no similar programs resulting in the displacement or non-hire of U.S. workers could be created.

While the bill, as drafted, may not pass or become law, its introduction by a presidential candidate and sponsorship by a subcommittee chairman put a popular employment visa program “in play” as we approach a presidential election year. It is clear that employment-based immigration issues likely will stay in the national spotlight as politicians debate the current use and future reshaping of these visa programs.

DHS Seeks Comments for Its New ‘Smart’ Form I-9

For its proposed 13th iteration, the I-9 form is getting “smart” new features. The suggested changes to the form from the Department of Homeland Security include:

  •  Validation of certain fields to ensure the entered information is correct;
  • Helpful on-screen text for various fields;
  • Space to enter more than one preparer or translator;
  • Drop-down menu for the list of acceptable documents to cut down on entry errors;
  • A dedicated notes area for information employers now have to note in the margins;
  • A QR code to facilitate ICE audit reviews;
  • Replacement of the “other names used” field with “other last names” used; and
  • Provision of either I-94 or foreign passport, instead of both.

While the “smart” form will facilitate on-screen data entry and completion of the Form I-9, it is not an electronic form. After completion, employers not using an electronic I-9 system will have to print out the Form I-9 for signature by the foreign national and the employer.

Public comments on the revisions will be accepted through January 25, 2016, here. After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.

The current I-9 form expires on March 31, 2016. After that date, USCIS will have to extend the validity of the current form or introduce its new form.

Government to Delete E-Verify Records after 10 Years

Employers using E-Verify may mistakenly believe that once a record is created, it will be stored forever in the E-Verify system. Effective January 1, 2016, E-Verify transaction records more than 10 years old will automatically be deleted from the E-Verify system. That means that employers will no longer have access in E-Verify to cases created prior to December 31, 2005. This action is being taken to comply with the National Archives and Records Administration’s retention and disposal schedule.

E-Verify records for active employees and terminated employees within the retention timeframe must be retained; therefore, if employers have not printed out the records, they could be lost once they fall outside the 10 year window.

If an employer wants a record of its cases that outside the 10 year- old window, it must download the new Historic Records Report before December 31, 2015. The report will include all transaction records for cases more than 10 years old. Instructions to download the report are available when the employer logs into E-Verify. The report is only available until December 31, 2015.

It is a best practice to record the E-Verify case verification number on the related Form I-9. Employers are encouraged to retain the Historic Records Report with the I-9s also.

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