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Immigration Blog

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.

 

Start Planning for New H-1B Applications As April Deadline Nears

AUTHOR:  Davis Bae.

The demand for H-1B visas continues to rise.  Last year, demand for H-1B exceeded the available number of visas, and a lottery was held to determine which applications would be accepted. Employers should file H-1B applications by April 1, 2015, to ensure consideration for this year’s lottery and an opportunity to obtain a visa under the annual quota.   Failure to file by April 1st could mean employers will have to wait until October of 2016 to obtain an H-1B visa for their employees.

The H-1B visa category is essential to many businesses that wish to employ foreign nationals in professional positions.  Each year, the government makes available 65,000 new H-1B visas (this limit is commonly referred to as the “H-1B cap”) for those individuals who have not recently or ever previously held H-1B status.  The actual number of visas available under the cap is lower because of set-asides for certain countries under Free Trade Agreements.

The H-1B cap applies to “new” H-1B’s only, generally affecting individuals who currently do not hold or have not held H-1B status, such as students in F-1 status who are completing Optional Practical Training (OPT), TN status holders, L status holders, and the like.  It is especially important for employers of F-1 students to obtain the H-1B in a timely fashion.  This cap does not generally affect individuals currently or recently in H-1B status. U.S. Citizenship and Immigration Services (USCIS) will begin to accept new H-1B petitions for Fiscal Year 2016 (FY 2016) on April 1, 2015.  Further, under the advanced degree exemption, an additional 20,000 H-1B numbers available for individuals who have obtained a U.S. Master’s degree or higher.  Cases approved under the H-1B cap will have a start date of October 1, 2015, the first date of FY 2016.

If you have current or prospective employees who will be subject to this quota, please notify a Jackson Lewis immigration attorney.  Advanced planning will improve the chances of getting your application filed by April 1, 2015.

House Republicans Vow to Introduce Bill in Early 2015 to Block President’s Executive Action on Immigration

AUTHOR:  Forrest G. Read IV.

The Republican-controlled House of Representatives passed and President Barack Obama signed the “Cromnibus” bill, approving a legislative budget to fund most government activities through September 2015 over criticism from some House Republicans that the bill did not block President Obama’s Executive Action on immigration (announced on November 20, 2014,  parts of which  will be effective as soon as it may be implemented  by United States Citizenship and Immigration Services and Immigration and Customs Enforcement.

House Republicans vowed to introduce separate legislation to block the president’s Executive Action in early 2015.  Rules Committee Chairman Pete Sessions recently confirmed that such an effort would be an immediate priority when the next Congress convenes in January.  At that point, Republicans will be more likely to get such legislation to President Obama’s desk and forcing him to exercise his veto power, as they also will control the Senate in the next Congress.

The House appears to be intent on maximizing attention on the issue.  While President Obama will not agree to block or limit his administration’s authority to implement the components of his just-announced Executive Action, the drama of a veto, a rarity during the first six years of this presidency, promises to keep immigration front and center in advance of the 2016 presidential election.  Political candidates’ debate on immigration, together with a recently filed lawsuit challenging the constitutional authority of the President’s Execution Action not two weeks after it was announced, will ensure the controversy over fixes to the nation’s immigration system will continue to take center stage.

Jackson Lewis will continue to follow legislative developments and counter-measures to the President’s Executive Action on immigration.

DOL Nullifies Use of Employer-Provided Wage Surveys in H-2B Program

AUTHOR:  Otieno Ombok.

Calling the Department of Labor regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations (PWDs) for H-2B workers arbitrary and capricious, and finding that they  violate  of the Administrative Procedure Act, the U.S. court of appeals  in Philadelphia has vacated the DOL regulations at 20 CFR §655.10(f) and the Department’s 2009 H-2B Wage Guidance. Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, No. 14-3557 (3d Cir. Dec. 5, 2014).

Responding to this decision, DOL announced that, effective December 8, 2014, it will no longer issue H-2B PWDs based on employer-provided wage surveys. DOL advised that pending PWDs seeking to utilize employer-provided surveys will be given the appropriate Occupational Employment Statistics wage for the requested occupation. Further, employers whose prevailing wage determination was based an employer-provided wage survey, but whose H-2B Applications for Temporary Employment Certification have not yet resulted in a final determination by the Chicago National Processing Center, will be notified of their new wage obligation along with their certification letters.

The DOL announcement is devastating news to employers that utilize H-2B temporary foreign workers to meet their seasonal labor shortage needs, as DOL’s default OES-based wage determinations set the mandatory minimum wage prohibitively high – as much as $4-$5/hour higher than the market wages reflected in private wage surveys.  Because the DOL’s wages do not appear to reflect accurately the actual industry/market wage, H-2B employers particularly in the landscaping and seafarming industries have been relying on private surveys to establish a fair prevailing wage for their seasonal workers.  This decision essentially nullifies this practice, creating a significant wage differential that ultimately will make many contract bids unprofitable.

The administration of the H-2B program, particularly the determination of H-2B prevailing wages, has been much litigated.  Although previous litigation had caused DOL to abandon the four skill-level provisions of the regulation and Guidance for setting OES prevailing wages for the H-2B program in favor of the a mean-OES prevailing wage, the agency continued to evaluate and approve private wage surveys using the skill-level definition of prevailing wage, which continued use was challenged in this case.

The Third Circuit found DOL’s “continued approval of skill-level wages submitted based on employer wage surveys is not only adversely affecting the wages of similarly employed United States workers, but the H-2B program as now administered is leading to unjustified disparities between employers who submit private wage surveys and otherwise similarly situated employers who do not submit surveys and who therefore must pay the OES prevailing wage.”  It added that the DOL practice “creates a system that permits employers who can afford private surveys to bring H-2B workers into the country for employment at lower wages than employers who cannot afford such surveys and who therefore must offer the higher OES prevailing wage.”  The Court also found that “when evaluating wage surveys based on skill levels pursuant to the 2009 Wage Guidance, DOL directly contradicts the current prevailing wage definition in 20 C.F.R. § 655.10(b)(2) (2013), … which rejects skill-level considerations.”

Texas Governor Mandates E-Verify for All Texas State Agencies and Businesses Contracting with the State of Texas

AUTHOR:  Maggie Murphy.

Texas Governor Rick Perry started December by issuing an Executive Order requiring E-Verify participation by all Texas state agencies and for all businesses contracting with the State of Texas:  http://governor.state.tx.us/files/press-office/EO-RP-80_E-Verify_IMAGE_12-03-14.pdf

Citing with approval advancements made with the E-Verify system and Texas and other states’ successes with the federal database, the Order requires all state agencies and all businesses providing contract services to the State of Texas to use E-Verify to verify the identity and U.S. work authorization of all employees (including State of Texas employees, contractors and subcontractors) employed during the term of the contract.  The Order requires:

“All agencies under the direction of the governor to verify the employment eligibility of all current and prospective agency employees through the U.S. Department of Homeland Security’s E-Verify system. All agencies under the direction of the governor to include, as a condition of all state contracts for services, a requirement that contractors utilize the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed during the contract term to perform duties within Texas; and

2. All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract.”

The Order further states, “Agencies not under the direction of the governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system and require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.”

This requirement that the State agencies, contractors and subcontractors use E-Verify for “current and prospective” employees is problematic and violates the federal E-Verify regulations.  E-Verify regulations prohibit the use of the database to verify the status of individuals not already hired by the employer. Similarly, the regulations allow only employers subject to certain federal contracts to submit current employees’ data to E-Verify.  Although the Order goes into effect immediately, challenges are expected, because of this problematic language.

E-Verify is a federal database operated and monitored by DHS.  For most employers, new-hire employee information is submitted to the E-Verify system to verify the employee’s identity and work authorization. The database cross-references the Social Security Administration, DHS, and various other agency databases to provide verification or other updates to the employer.

Jackson Lewis P.C.’s Immigration practice group includes attorneys who work with clients on E-Verify compliance issues every day. We have former DHS attorneys on our team and work to assist our clients on various I-9 and E-Verify issues.  On December 4, we teamed with an E-Verify Agent to provide an “Immigration Update” webinar reviewing the new developments in E-Verify:  http://www.jacksonlewis.com/webinars.php

 

 

Law Professors’ Letter Advocate that Executive Authority to Extend Deportation Deferrals

AUTHOR:  Nicola Prall.

On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”

Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.

Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential   for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission.  Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.

President Obama’s Executive Action on Immigration under Attack in Federal Court

AUTHOR:  Anya Susarina.

Not two weeks after the President announced his executive action on immigration, 17 states, including Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin, led by Texas Attorney General Greg Abbott, are challenging the executive action under the U.S. Constitution’s Take Care Clause (Section 3 of Article 2). The Clause provides, in part, “[the President] shall take care that the laws be faithfully executed.”   The suit asserts the President has gone beyond his powers by effectively creating new law and condemns the Department of Homeland Security (DHS) for not eliciting public comment, which is a standard procedure, before issuing its directive.

At the core of the controversy are two programs for undocumented immigrants – Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parental Accountability (“DAPA”).  DACA allows young people brought to the U.S. as children to live and work in the U.S. without fear of being deported while deferment is in effect.  DAPA does the same for parents whose children are U.S. citizens or permanent residents.  DACA and DAPA are estimated to affect more than four million people.

The U.S. does not have the resources to deport  the nearly 11 million people believed to be in the country unlawfully. The executive plan allows DHS to exercise discretion to prioritize who should be removed based on three priority categories of immigrants: (1) those who pose a threat to national and border security, (2) those with several misdemeanor convictions, and with serious visa status violations, who entered the U.S. unlawfully and cannot establish continuous presence in the country since January 1, 2014, and (3) those who were ordered removed on or after January 1, 2014.

The Office of Legal Counsel (“OLC”), which provides authoritative legal advice to the President and the Executive Branch agencies, concluded that this prioritization does not amount to law making and, therefore, does not represent an overreach since the effect is a flexible system for an exercise of discretion rather than a rigid policy.  In addition, prioritization is consistent with Congress’ 2014 directive to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”

In regard to DAPA, OLC notes deferred action is not new and has been used, for example, in 1997, to grant deferred action status to applicants applying for permanent residence under the Violence Against Women Act (“VAWA”) while they wait for a visa.  Similarly, in 2000 deferred action became available to victims of human trafficking, and certain other crimes, and their family.  In 2005, Hurricane Katrina triggered deferred action covering foreign students who were unable to attend schools and satisfy the student visa requirements.

OLC emphasizes that deferred action is a temporary, discretionary, revocable relief, not a grant of the right to remain in the U.S.

Further, 135 immigration scholars supported the President’s executive action on DACA and DAPA, saying these are legal exercises of prosecutorial discretion.

Jackson Lewis will continue to follow the development of this story.