Supreme Court Tie Blocks Expansion of DACA and Creation of DAPA

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.

The eagerly anticipated decision will have a far-reaching and adverse impact on millions of undocumented immigrants. The Supreme Court deadlock means the appeals court ruling stands and continues to block programs. As a result, up to five million undocumented immigrants may not be allowed legal work authorization in the United States or be protected from deportation.

The Obama Administration utilized executive action to create DACA in 2012. Under DACA, certain undocumented immigrants who arrived as minors were able to defer deportation and receive employment authorization. The Administration expanded DACA and introduced DAPA in 2014 with further executive action. The DACA expansion would have increased the period of employment authorization for DACA beneficiaries to three years, instead of two. DAPA would have allowed parents of U.S. citizens or lawful permanent residents (green card holders) to apply for deferred deportation and employment authorization.

In February 2015, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas entered a preliminary injunction, blocking the 2014 DACA expansion and DAPA creation. The U.S. Circuit Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the lower court’s injunction. The Obama Administration appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court’s decision strongly indicates, at least for the immediate future, that further executive action on immigration on a widespread basis may be difficult and that immigration reform will have to be addressed by Congress, if at all, a view shared by many opponents of the President’s actions. It also suggests strongly that immigration will continue to be a contentious issue in the upcoming Presidential and Congressional elections.

For more information, see Supreme Court’s Decision on Future of DACA and DAPA.

 

Beware of Limits on Workers in U.S. on Tourist Visa

Noting media reports that up to 200 foreign workers hired by a Tesla contractor were able to come to the United States in tourist visa status to perform work at a construction project at a Tesla Motors Inc. paint facility in the United States, Senator Charles Grassley (R-IA) sent a letter, dated June 7, 2016, to the heads of the State Department, Justice Department, Department of Labor, and Department of Homeland Security questioning how such individuals would be eligible to perform work in the U.S. in B visa status.

USCIS provides that the B-1 tourist visa for business is intended only for business activities that are a “necessary incident” to business abroad. Such activities include attending meetings and conferences, engaging in negotiations, locating or entering into a lease for office space, and conferring with business associates.

The law specifically prohibits coming to the United States in B visa status to perform skilled or unskilled work. Under a B visa an individual generally cannot engage in any activity or perform a service that would constitute local employment for hire within the country. The State Department provides a narrow exception, for a “B in Lieu of H-1B,” where an individual otherwise meeting the H-1B requirements is employed by a foreign company and is coming to work at a U.S. client of the foreign company.

Employers should be extremely cautious when trying to staff projects using foreign workers here on a B visitor visa. Ensure these workers are not otherwise performing work requiring a temporary or permanent work visa.

 

 

Colorado Repeals State Employment Verification Requirement

Since January 1, 2007, Colorado employers have been required to verify the work authorization of all newly hired employees – in essence, comply with federal I-9 requirements. However, Colorado added requirements on top of the Form I-9: the completion and retention of a written or electronic version of an entirely separate affirmation form, and retention of copies of the identity and work authorization documents presented by the employee during the I-9 process. More than 200 employers have been subject to fines under the law and more than 7,000 random audits were conducted. The law called fines between $5,000 and $25,000.

House Bill 16-144, signed into law by Governor John Hickenlooper, eliminates the additional verification and retention obligations for Colorado employers beginning on August 10, 2016.

Employers in Colorado can take the following steps to prepare for the upcoming change in the law:

  1. Continue to complete the affirmation form and retain documents as required by the law for all newly hired employees until August 10, 2016.
  2. Create a plan to phase out the use of the affirmation form.
  3.  Assess and decide whether to continue to keep copies of I-9 identity and work authorization documents after August 10, 2016, or whether to stop since it is no longer required by law. It may be necessary to consult counsel about the advantages and disadvantages to the practice of retaining I-9 supporting documents.
  4. Continue to retain the additional affirmation form for active employees hired between January 1, 2007, and August 10, 2015. The law is silent regarding the requirement to retain the form, but it would be prudent to do so since the agency does retain the power to conduct an audit.
  5. Use this time to review current I-9 practices and processes and audit I-9s to ensure compliance with federal laws.

In a time when employers are typically seeing continued administrative requirements, this law is a welcome change!

 

 

 

 

Federal Court Judge Quashes Challenge to Revised Visa Bulletin Dates

A U.S. District Court in Seattle has ruled that the U.S. Department of State’s Visa Bulletin which governs how immigrant visas subject to numerical limitations are allocated, and indicates when intending immigrants may apply for the last stage of the permanent visa process is not a final agency action or decision and, therefore, cannot be challenged in court. While it is estimated that 20,000 or more individuals relied upon the published dates to initiate filings prior to the roll-back, Chief Judge Ricardo S. Martinez determined that the court lacked jurisdiction because the bulletin does not constitute a final action under the Administrative Procedure Act (APA), but instead merely sets out “informative” data.

In September 2015, the U.S. Department of State rolled back certain dates for immigrants who initially appeared to be eligible to file the final stage of their work-based permanent visa applications based on the October visa bulletin, which had been published two weeks earlier. The move adversely affected thousands of Chinese and Indian immigrants in the EB-2 category – people who hold advanced degrees or have exceptional ability, by 16 months and two years respectively.

Later that month a group of affected immigrants initially sought a temporary restraining order in the U.S. District Court for the Western District of Washington against the Department of State’s change which would have compelled the government to accept adjustment of status applications from those individuals who would have been eligible to submit applications based on the originally published visa bulletin (Chintan Mehta et al. v. U.S. Department of State et al., No. 2:15-cv-01543). The group claimed to have invested significant time and money in medical examinations and legal fees in readying their applications based on the originally published eligibility dates.

The federal court denied the request, stating the petitioners did not meet critical requirements for such an order, and that the visa bulletin is not a final agency action. The court said the revision merely “clarified an erroneous prior statement,” and, in falling short of substantially altering the rights of the plaintiffs, the claim lacked a likelihood of success under the APA. The judge seemingly nailed the coffin shut on the petitioners’ argument by noting that the revision serves the public interest as it corrected a statement that was contrary to statutory authority, and that the plaintiffs failed to show a due process violation, irreparable harm, or a violation of public interest.

The plaintiffs thereafter sought to create a class action lawsuit composed of individuals who would have great difficulty pursuing individual lawsuits. The Department of State and Homeland Security urged the federal court in Washington to dismiss the class action, arguing successfully that the court lacked jurisdiction.

FY 2017 H-1B Cap-Subject Cases Updates

For the fourth year in a row, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory cap for H-1B cap-subject petitions within the first five business days of April.

For fiscal year (FY) 2017, the cap was reached on April 7, 2016 as USCIS received over 236,000 petitions, setting an all-time record. USCIS completed the lottery selection on April 9, 2016 and finished all data entry of selected petitions on May 2, 2016.

As of this writing, most cap case petitioners or their attorneys already should have received an email notification and/or receipt notice if their petition was selected in the lottery. Further, because USCIS has begun premium processing cap-subject petitions with such request on May 12, 2016, all premium cases are expected to receive a result or USCIS’s request for evidence (RFE) notice by May 27, 2016.

Adjudication of non-premium cases will begin later and is likely to continue through mid-August. But USCIS could issue RFEs for these cases at any point during this period.

For petitions not selected, USCIS will reject and return the petition packages along with the filing fees, unless the petition is found to be a duplicate filing.   In recent years, returned packages have been received through June and we expect the same to be true this year given the higher filing volume.  While predictions are difficult until USCIS starts to return petitions that were not selected in the lottery, those who have not yet received an email notification or receipt notice may need to consider alternative visa options in the very near future.

 

NLRB Requires Employer to Bargain with Union over Unilateral Use of Temp Agency Employees and E-Verify

An Administrative Law Judge of the National Labor Relations Board recently ruled that a meat processing company had violated provisions of the National Labor Relations Act when it utilized a temporary employment agency to fill vacant bargaining unit positions, and enrolled in the E-Verify program without first adequately notifying or bargaining with the local union. The Ruprecht Co., Nos. 13-CA-155048, 13-CA-155049, 13-CA-156198 and 13-CA-158317, JD(NY)-14-16 (May 13, 2016).

The company had lost 62 of its 92 bargaining unit employees due to resignation or termination following a government Form I-9 audit and the company hired seven temporary employees to do bargaining-unit work.  The union then filed unfair labor practice charges with the NLRB after the employer hired a temporary agency to fill the seven temps.  After a trial, the administrative law judge found the use of the seven temporary employees to be a “material, substantial, and significant” change and ordered the company to bargain with the union.

Following the audit, the employer implemented the E-Verify program, a system to verify work eligibility by comparing information from Form I-9 with Social Security Administration and Department of Homeland Security records.  The ALJ also ruled that the use of E-Verify was a change in the terms and conditions of employment and required notice to the union and an opportunity to bargain. He ordered the company to withdraw its enrollment in E-Verify and bargain with the union in good faith.  Finally, the ALJ decided that the Company violated the NLRA by unilaterally negotiating severance agreements with terminated employees.

The ALJ additionally ordered the employer to provide the union with copies of the letters it received from HSI (an investigative arm of the Department of Homeland Security) regarding workers with suspect employment documents within 10 days, post copies of the NLRB notice at its Illinois facility, and bargain with the union in good faith.

By Amy Peck and Patrick Peters

 

 

 

 

New DHS Final Rule on Additional STEM Optional Practical Training, Effective May 10, 2016

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.

What’s new?

  • New I-983 Form, Training Plan for STEM Students. – The employer and the student must complete and submit the form to the DSO (Designated School Official) for review and recommendation. The I-983 Training Plan requires an employer to make certain attestations, including:
    • It has sufficient resources and trained personnel to provide appropriate training to the student;
    • The student will not replace a full- or part-time, temporary, or permanent U.S. worker; and
    • The opportunity will help the student attain his or her training objectives.
  • The employer is expected to play an active role in ensuring the STEM OPT program’s integrity.
  • The student is required to complete a self-evaluation (which must be reviewed and signed by the employer) and submit it to the DSO annually.
  • The student and employer must report any material changes, termination, change in employer, or employee’s non-compliance (for example, there is no termination but the employee has not reported to work for five consecutive business days).
  • ICE may conduct site visits with 48 hours’ notice, except for site visits triggered by evidence of non-compliance, which are unannounced.
  • As of May 10, 2016, USCIS will no longer adjudicate pending 17-month STEM EAD applications. Instead, students should expect to receive a Request for Evidence (RFE) from USCIS. Upon receipt, a student must work with his or her employer to complete an I-983, submit the completed I-983 to the school’s DSO, and obtain a new I-20 with 24-months STEM OPT recommendation. Students who have previously received a 17-month STEM OPT may apply for the additional 7 months STEM OPT if he or she meets the following requirements:
    • The student must have at least 150 calendar days remaining before his or her 17-month STEM OPT EAD expires at the time the I-765 Application for Employment Authorization is filed with USCIS;
    • The student must properly file an I-765 application with USCIS requesting the 7-month balance before August 8, 2016; and
    • The student must meet all of the requirements for the 24-month STEM OPT extension under the new rule, including, but not limited to, the submission of the I-983 Training Plan to his or her DSO.

What remains the same?

  • Employer must be an E-Verify employer.
  • Students must submit a timely extension application, I-765 Application for Employment Authorization to USCIS before the current 12-month OPT expires.
  • Cap gap extension remains the same. For additional information, please visit https://studyinthestates.dhs.gov/stem-opt-hub and feel free to contact Jackson Lewis immigration attorneys.

17-Month EAD Holders Seeking Full 24 Months under New STEM OPT Rule Must be Quick

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.

Qualifying STEM graduates in their initial OPT period can therefore apply for a 24-month extension beginning May 10, 2016, assuming they meet the new rule’s eligibility and timing requirements.

But what about foreign nationals with 17-month STEM OPT extensions already approved under the old rule? The new rule clarifies that a 17-month STEM OPT employment authorization document (EAD) issued before May 10, 2016, will remain valid until the EAD expires or is terminated or revoked. Significantly, it also provides a limited window for certain F-1 students with these STEM EADs to apply for an additional 7 months of OPT, allowing them to benefit from the new rule’s full 24-month period. To qualify for this additional 7-month period, the student must:

  • 1) Properly file a Form I-765, Application for Employment Authorization, with USCIS (along with all required fees and supporting documentation) between May 10, 2016, and August 8, 2016. The I-765 must be filed within 60 days of the date the student’s Designated School Official (DSO) recommends the 24-month STEM OPT extension in the student’s SEVIS record.
  • 2) Have at least 150 calendar days remaining prior to the expiration of the 17-month STEM OPT EAD at the time the I-765 is properly filed(i.e., receipted) with USCIS.
  • 3) Meet all the requirements under the new rule for the 24-month STEM OPT extension, including submission of the Training Plan on Form I-983 to his or her DSO.

Due to the limited three-month application window and strict eligibility requirements, F-1 students seeking to benefit from the 7-month balance should file their applications with USCIS as soon as possible. Before a student can file with USCIS, he or she must first submit a Form I-983 Training Plan to his or her DSO and obtain an endorsed Form I-20 with the DSO’s recommendation for the 24-month STEM OPT extension period. Students are encouraged to work with their employers and school officials as soon as possible to ensure they can obtain the proper documents and file their applications with at least 150 calendar days remaining before their STEM OPT EADs expire.

Supreme Court’s Decision on Future of DACA and DAPA

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.

In 2012, the Obama Administration introduced through executive action Deferred Action for Childhood Arrivals (DACA), a program which deferred deportation of certain individuals who arrived to the United States unlawfully as minors. DACA allowed these individuals access to employment authorization. In late-2014, the Administration, again through executive action, expanded DACA, in part, by increasing the available periods of employment authorization for DACA beneficiaries from two years to three years, and introduced Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA is a program which deferred deportation of and created a basis for employment authorization for parents who, as of November 20, 2014, had a child who was a U.S. citizen or green card holder.

In February 2015, the U.S. District Court for the Southern District of Texas concluded the 2014 DACA expansion and DAPA creation were unconstitutional and enjoined the 2014 executive action. The U.S. Circuit Court of Appeals for the Fifth Circuit upheld the lower court’s injunction later that year. The Administration appealed that decision to the U.S. Supreme Court.

The case raises the threshold issue as to whether states have the right to bring such an action and carries with it broad implications for the limits on and use of executive power. The case is important for employers because hundreds of thousands of individuals have obtained employment authorization through DACA’s 2012 guidelines and more than 100,000 more received three-year employment authorization approvals through the 2014 expansion before the district court’s injunction.  It was expected that many individuals would continue to apply for three-year employment authorization under the DACA expansion and DAPA creation.  Since February 2015 and until the Supreme Court renders a decision, only individuals qualifying under the original 2012 DACA guidelines may obtain employment authorization, limited to two-year increments.  If the Supreme Court agrees with the Fifth Circuit, then the DACA expansion and DAPA program will be nullified.  Whether the pre-2014 DACA program and guidelines would survive a Supreme Court decision affirming the Fifth Circuit’s ruling is unclear.

Contributing to the interest in and speculation about this case is the vacancy on the Supreme Court created by Justice Antonin Scalia’s recent death. Should the Supreme Court’s deliberations end in a 4-4 tie, the lower court’s ruling  would remain intact and undisturbed, thus foreclosing the ability of individuals who would otherwise be qualified for employment authorization under DACA expansion and DAPA to receive employment authorization as the 2014 executive action intended.  However, because an affirmance by an equally divided 4-4 Court would be non-precedential, the issues could be raised again in another case, after a ninth justice was seated on the Court.

There will be great interest in the outcome of this case as the end of the current term approaches, and Jackson Lewis will monitor developments and ramifications for employers.

“University of Northern New Jersey” Visa Fraud Sting Operation Shutdown after Arrest of 21

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.

ICE’s Student and Exchange Visitor Program (“SEVP”) announced that it was terminating the initial and active student records of nonimmigrant students enrolled at UNNJ. The records of approximately 60 former UNNJ students who have transferred to other schools also will be terminated. SEVP will notify students of their termination by letter. Terminated students may have the option of applying to U.S. Citizenship and Immigration Services (“USCIS”) for reinstatement. Students who decide not to apply for reinstatement, or whose reinstatement applications are denied, may be required to leave the United States immediately or seek other relief. Students can obtain additional information from the SEVP Response Center at 703-603-3400, which is staffed from 8:00 a.m. to 6:00 p.m. (Eastern Time) from Monday to Friday, except holidays. The Center is closed from 12:45 to 1:30 p.m. every Wednesday for system maintenance.

 

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