Changes in FAM May Make it More Difficult for Students with Pending H-1B Cases to Travel

The Department of State has revised its guidance for Consular Officers on the issuance of student visas, emphasizing that the officer must be “satisfied that applicant intends to depart [the U.S.] upon completion of the approved activity.”

The guidance states:

 If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT. 9 FAM 402.5-5(E)(1)

This means that students who have H-1B visa applications pending probably should not travel, especially if they will need a new F visa to return to the U.S. There has always been some undefined risk associated with attempting to travel and/or apply for an F visa with a pending H-1B application, but now that risk is more of a reality. Those in student status who hoped to travel during the summer (with an H visa pending), perhaps to a family wedding or to attend to a sick relative, may no longer want to take the chance and, if they do travel, may have to content themselves with staying abroad until October, when they can apply for H status.

The American Association of College Registrars and Admissions Officers has already reported a decline in international student applications, in part due to the political climate.  The Trump Administration’s anti-immigrant sentiment has found expression in the travel ban, which left potential students questioning whether they were welcome in the U.S. More recently, the Buy American, Hire American Executive Order’s crackdown on H-1B visas has heightened anxiety. The Chronicle of Higher Education reported that:

For many international students, the opportunity to stay in the United States, even temporarily, after graduation and gain work experience is almost as valuable as an American degree itself. Any policy that might erect hurdles on the pathway from college to work could depress international enrollments.

Already, it has been reported that a third of the potential international applicants to U.S. colleges and universities may be feeling deterred. International students bring more than cultural diversity to the United States, they also contribute dollars to the U.S. economy as well as to the universities they attend. Stringent travel restrictions are yet another issue for potential foreign students to consider when thinking about whether they want to attend college in the United States.

New Operational Directives Reflect ‘Buy American, Hire American’ Executive Order

Following the “Buy American, Hire American” Executive Order, issued in April, the Attorney General and the Secretaries of State, Labor, and Homeland Security have made operational changes that emphasize targeted investigations and individual official’s judgment in carrying out the purposes of the E.O. The E.O. directs the 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.” 

The Department of Labor has announced increases in targeted investigations and changes to LCA forms to create more transparency. It also has raised questions over whether computer programmers actually qualify for H-1B status.  Further, Requests for Evidence from the USCIS in H-1B cases have increased substantially.

The State Department has added new guidance to the Foreign Affairs Manual (FAM), the manual used by Consular Officers abroad, regarding the adjudication of H, L, O, P, and E visas. In the sections of the FAM on H, L, O, and P visas, the following has been added:

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases . . . must be adjudicated.

Regarding E-1 and E-2 Treaty Trader and Treaty Investor visas, an additional sentence was added:

You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.

While consular officers have always been alert to possible fraud and abuse, the new guidance suggests that they will be called upon to judge what is in the economic interests of American workers and what will enhance economic growth.

H, L, O, P and E visa holders in the United States should consider consulting with their Jackson Lewis attorney before undertaking travel that will include applying for a visa abroad.


Insights: E-Verify

Over the years, the government has intensified its enforcement of employment verification procedures including increased fines and penalties, as well as potential criminal charges and charges of discrimination against U.S. citizens. The federal government introduced E-Verify in 1997 as a pilot program. E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Now, the use of E-Verify is voluntary, unless you are a federal contractor or it is required by state law. Many employers are trying to decide whether they should use E-Verify.

Below are some of the factors to consider.

The main benefit of using E-Verify is that your employees in student status who have STEM degrees would be eligible for employment authorization for up to three years without having to obtain an H-1B visa. Other benefits include:

  • Your company would be entitled to a “rebuttable presumption” that it did not hire any unauthorized workers and you cannot be charged with a “knowing” violation of the employment verification laws – which may lead to more “peace of mind” about the process
  • You find out quickly if an employee’s information does not match government databases
  • If you are audited, you may receive favorable discretionary treatment for voluntarily choosing to use E-Verify
  • By using the system, you become aware of and may be able to fix mistakes or errors precipitously
  • It is possible that E-Verify will become mandatory and you may decide that if you start using the program now, you will avoid what may be an inconvenient rush at a later date

There are, however, some down sides, including:

  • You will have to spend time (and therefore incur additional expenses) training employees to use the system
  • You must sign a Memorandum of Understanding (MOU) with the government
  • The MOU allows the SSA and DHS to perform periodic audits at your worksite and conduct employee interviews
  • The E-Verify Monitoring and Compliance Branch regularly monitors usage
  • The government has easy access to all of your company’s employment verification data, which may mean possible increased liability
  • The government can more easily mine and scrutinize your data and compare your data to other companies’
  • E-Verify staff may refer cases of suspected misuse to other enforcement agencies
  • There are additional Form I-9 process requirements, including some more stringent rules about acceptable documentation

Before you determine whether E-Verify is best for you company, please reach out to your Jackson Lewis attorney.

This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients.

The FICA Tax Exemption for Non-Resident Aliens in the U.S. Under F, J, M, or Q Visas

A common issue for employers of non-resident aliens authorized to work in the U.S. is whether (and when) such individuals are exempt from FICA taxation.   Under the Internal Revenue Code, a nonresident alien (“NRA”) in the United States under a teacher, researcher, trainee, or student visa is exempt, within certain limitations, from FICA taxation.

To read the full blog by our colleague Amy M. Thompson, please read here.


Trump Announces Support for Senate Bill Curbing Legal Immigration

President Donald Trump has announced his support for a reduction in legal immigration to the United States, backing a modified version of the bill first introduced in April by Senators Tom Cotton (R-AR) and David Perdue (R-GA).

Trump on August 2 said he embraced a new “merit-based” immigration system, which he contends will benefit American workers, and a change from the existing “family-based” system.

The proposed “Reforming American Immigration for Strong Employment (RAISE) Act” would:

  • Cut legal immigration by 50% over 10 years.
  • End diversity lottery visas.
  • Cap the number of refugees who are offered permanent residency in the U.S. each year at 50,000 (far lower than the 110,000 previously announced by the Obama Administration).
  • Discontinue green card preference given to the extended family or adult children of immigrants who already live legally in the U.S.; although spouses, children under the age of 18, and ill parents would still receive preference.
  • Create a framework to give priority to green card applicants based on factors including English language ability, education levels, and job skills.

The timing of this announcement represents a pivot by the Administration to refocusing on immigration, which was a central issue to the Trump campaign in the 2016 election, after other major issues have dominated its attention.

The bill’s prospects are uncertain in Congress, particularly in the Senate, where some bipartisan opposition is likely and the bill would need 60 votes to avoid a filibuster.

Jackson Lewis will monitor and report on the progress of this legislation as well as any other proposed immigration legislation in Congress.

Future of Deferred Action Program Uncertain as Attorneys General Group Warns of Possible Court Case

The Texas Attorney General, along with counterparts in nine other states (the group that successfully challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents program, DAPA), has sent a letter to Attorney General Jeff Sessions asking the Administration to rescind the Deferred Action for Childhood Arrivals program (DACA).

Created by President Barack Obama’s executive order, DAPA was enjoined by the courts as an unacceptable expansion of executive power. The case against DAPA began with the issuance of an injunction by a federal court in Texas. The Fifth Circuit Court of Appeals affirmed and the Supreme Court deadlocked on the decision, leaving the injunction in place. In June, DHS Secretary John Kelly rescinded DAPA, noting that he saw no way forward. Now, DACA itself may be in jeopardy.

The attorneys general group plans to bring the question to court if the Administration does not respond to their request by September 5, the day after the August Congressional recess. Kelly has stated that he does not believe DACA would survive a court challenge. And Sessions, a vocal opponent of DACA, has praised the 10 states’ efforts. He stated, “I like it that our states and localities are holding the federal government to account . . . .”

Meanwhile, Senators Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.) have re-introduced the DREAM Act, which would provide relief to immigrants who may lose their protected status in the proposed court challenge. Durbin first filed this legislation 16 years ago and has re-introduced the bill repeatedly over the years. In some years, it passed the House, in others, it passed the Senate, but it has never made its way out of Congress to the president’s desk. The Graham/Durbin bill reportedly would qualify 1.8 million immigrants for legal status.

A group of Republicans has introduced the Recognizing America’s Children Act, which provides five years of conditional legal status to Dreamers who are working, studying, or serving in the military. After five years, the beneficiary could apply to adjust status to permanent resident. After another 10 years, the individuals might apply to naturalize.

Senate Minority Leader Chuck Schumer (D-N.Y.) is working with immigration advocates to determine whether a political fight might save DACA. For example, could support of DACA be traded for border wall funding? Schumer has said that “the Democrats will do everything they can to protect DACA.” He also said:

“Dreamers seek to work, study, and contribute to their communities and represent the best of America . . . . The Senate Democrats will fight tooth and nail to preserve this program and hold the president to his promise to maintain it.”

President Donald Trump has said that the DACA question is a hard one and that it needs to be “handled with compassion and heart.” But, given his campaign promise to eliminate DACA, Dreamers still fear being caught up in the Administration’s enforcement policies.

Meanwhile, the Attorneys General of 20 states have sought to persuade the President to maintain DACA. We will continue to follow Congressional and court activity on DACA.


Travel Ban Update: Grandparents and Other Close Relatives

In a one-paragraph ruling, the U.S. Supreme Court, disagreeing with the Administration, allowed the District Court’s injunction to stand with regard to relatives. Individuals from the six designated countries with grandparents and other close relatives in the United States will not be subject to the travel ban – for now.

The Court, however, put the District Court’s injunction regarding refugees on hold, allowing the government’s interpretation to stand. Assurances from a refugee agency will not qualify as a bona fide relationship – for now. The Justices sent the matter back to the Ninth Circuit for resolution. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have let the government’s limited interpretation to stand in total.

The Supreme Court plans to take up the full case in October.


15,000 Increase in H-2B Visas Comes with Strings Attached

An additional 15,000 H-2B visas will be released in response to industry demand. The USCIS will begin accepting petitions on July 19, 2017, for the fiscal year which ends on September 30, 2017. Petitions will be accepted until the 15,000 visas run out or until September 15, 2017, whichever comes first. This is only a one-time increase.

Although Secretary Kelly had been hesitant to release additional visas, Congress granted him the authority to increase the total number available in an effort to eliminate the hardship to U.S. businesses that have relied on these workers in the past, but were unable to fill temporary, seasonal positions because the visas ran out on March 13, 2017.

The additional 15,000 H-2B visas come with new requirements. In order to file the petition, the employer must:

  • Possess a certified Temporary Labor Certification (TLC) with a start date before October 1, 2017
  • Ensure the start date on the petition matches the start date on the TLC (if the TLC has a start date prior to June 1, 2017, a new recruitment must be conducted)
  • Submit an attestation stating the employer will suffer irreparable harm, defined as “permanent and severe financial harm” if it cannot hire all of the requested H-2B workers

Once the petition has been filed:

  • A job order must be posted with the State Workforce Agency for five days within one business day of the filing
  • One newspaper ad must be posted while the job order is running
  • Applicants must be interviewed and a recruitment report must be prepared and maintained

While evidence of irreparable harm is not required, submitting some documentation could be helpful. In any case, employers must maintain documentation of the harm for three years and present it if requested.

Once the petition is approved, the employee may need to obtain an H-2B visa before entering the U.S. Given the requirements, processing times, and the fact that new recruitments may have to be conducted, it can take up to eight weeks to put new H-2B workers on the payroll.

Although employers hoped for more, the 15,000 visas should provide some relief to those who are able to file quickly and satisfy the requirements of the new rule.

For help filing H-2B petitions, please reach out to your Jackson Lewis attorney.

State Department Guidance to U.S. Diplomatic Posts on Information Sharing Standards

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.

According to the guidance, within about 50 days, “posts must inform host governments of the new information sharing standards and request that host government provide the requested information or develop a plan to do so.” Countries that fail to comply may face travel sanctions. The Administration explained in the revised EO that the six countries currently subject to the travel ban were selected because they had “been significantly compromised by terrorist organizations, or contain[ed] active conflict zones” and that those “circumstances diminished the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.” Now, those six countries may have an opportunity to be dropped from the list of banned countries, while other countries might be added.

All countries, even visa waiver countries, will be expected to share information on identity management and security and public safety threats.

According to the July 12 cable to all U.S. diplomatic posts that was published by Reuters, through a series of questions, the posts must determine whether their host countries:

  • Issue or have active plans to issue electronic passports including biometric imaging
  • Will provide and update samples of all passports and national identity documents
  • Regularly report lost or stolen passports to INTERPOL
  • Are prepared to supply any identity information requested, including biometric or biographic details
  • Provide or will provide data on individuals it knows or has grounds to believe are terrorists, including foreign terrorists
  • Provide or will provide criminal record information
  • Will agree not to impede the transfer of information about U.S.-bound travelers to the U.S. government
  • Will agree not to designate individuals for watch lists solely on the basis of political or religious beliefs
  • Take measures or will take measures to ensure that the country is not and does not have the potential to become a safe haven for terrorists. For instance, posts will need to know: “[w]hat steps has your host government taken to deny terrorists space in which to operate? Are there ungoverned, under-governed, or ill-governed physical areas in the host country or bureaucratic practices that allow mala fide travelers to use host country passports to travel to the United States?”
  • Agree to repatriate their own nationals who have been removed from the United States

The U.S. government reportedly has made a preliminary determination about countries that do not currently meet the new standards and countries that are “at risk” of not meeting the standards. The State Department guidance also states that there could be “a presidential proclamation that would prohibit the entry of certain categories of foreign nationals of non-compliant countries.”

Visa waiver countries will be informed that much of information being required overlaps with the standards for the visa waiver program and that the United States “will continue to engage VWP countries on the requirements set forth in the ‘Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.’”