Header graphic for print

Immigration Blog

H-1B Numbers Up More Than 35% Over Last Year

AUTHOR:  Nicola Prall.

Today, USCIS announced that it had completed the H-1B lottery selection and that it had received approximately 233,000 petitions for fiscal year 2016 beginning in October 2015. Last year, USCIS received 172,500 petitions. The numbers this year mean that there was an increase of over 35% from last year. USCIS randomly selected petitions to meet the general category cap of 65,000 and the advance degree exemption of 20,000. Based on this year’s numbers, it appears that barely more than one in three petitions were selected.

As previously announced, USCIS will begin premium processing selected cases no later than May 11. Unselected cases will be rejected and returned. Petitioners will have to wait for a few more weeks to find out if their petitions were accepted or rejected by the lottery. The majority of petitions will be rejected and petitioners may need to start thinking about and considering alternatives to the H-1B such as continued work on OPT, L-1, O-1 or other potential non-immigrant categories as may be appropriate for the relevant employee.

USCIS Reaches FY 2016 H-1B Cap in First Week of April

AUTHOR:  David S. Jones.

On April 7, 2015, USCIS announced that it had received enough H-1B petitions to reach the statutory cap for fiscal year 2016 beginning on October 1, 2015.  USCIS has not yet announced the total number of applications received or the date on which it will conduct the random selection process. A random computer selection process will be run to select which of the received petitions will be considered to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. Petitions that are not selected will be rejected and the filing fees returned.

Jackson Lewis will provide more details as they are released by USCIS.

 

My H-1B Cap Case is Filed. Now What?

AUTHOR:  Amy Peck.

Beginning on April 1st and for five business days thereafter, until April 7th, U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the fiscal year (FY) 2016 cap.

The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. Conservative estimates are that the agency may receive 200,000 petitions. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met, anticipated to be within the five business day window. Should USCIS receive an excess of petitions in that period, the agency conduct a lottery to randomly select petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap, as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April.

Cases that are not selected for the Master’s cap of 20,000 will be placed into the general 65,000 quota for a chance at another lottery. USCIS has announced that cases requesting premium processing will not begin adjudication until May 11, 2015. Although no formal announcement has been made, experience indicates that receipt notices (for cases selected in the lottery) and lottery rejection notices will be mailed beginning in late-April or early-May, possibly continuing into June for non-premium processed cases.

USCIS Resumes H-2B Adjudications

Author:  Otieno Ombok.

The Department of Homeland Security (DHS) has announced that it will resume adjudications of H-2B petitions, even though it will continue to suspend premium processing until further notice.

The March 17, 2015, announcement follows the filing of an unopposed motion on March 16 by DOL to stay until April 15the U.S. District Court ruling in Perez v. Perez. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them. DHS suspended H-2B adjudications while it reviewed the decision. As stated in the motion, DHS will resume adjudicating H-2B petitions based on temporary labor certifications issued by DOL.

The DHS announcement follows pressure mounted by stakeholders to resume processing of H-2B petitions already filed, and to accept and process H-2B petitions supported by temporary labor certifications issued prior to March 4, 2015. The court in Perez enjoined DOL from enforcing DOL’s 2008 H-2B regulations. It did not invalidate H-2B temporary labor certifications already issued by the DOL, nor did it direct USCIS to end processing of H-2B petitions supported by previously issued temporary labor certifications. The stakeholders have argued that Perez does not require USCIS to cease processing of their H-2B petitions. They have lamented that the suspension of processing could potentially have a significant impact on a wide range of industries, including resort and hospitality, seafood, landscaping, grounds maintenance, and forestry, to name but a few. Businesses that use the H-2B program to supplement workforce needs will face serious labor shortages, and the potential for significant economic loss across several industries is tremendous.

To fill the regulatory gap occasioned by the court order, DOL and DHS announced on March 13, that they intend to issue a joint interim final rule by April 30, 2015.

Federal Government Seeks Stay of Texas Federal Court Injunction on Immigration Reform Executive Actions

Author:  Rob Neale.

On March 12, 2015, the federal government filed an emergency motion with the U.S. Court of Appeals for the Fifth Circuit seeking to remove the preliminary injunction issued on February 16, 2015, by U.S. District Judge Andrew Hanen, based in Brownsville, Texas.

Judge Hanen’s preliminary injunction, requested by 26 states, suspended key parts of President Barack Obama’s executive actions on immigration reform while the case goes forward.

The preliminary injunction blocks the Department of Homeland Security (DHS) from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and the expansion of the Deferred Action for Childhood Arrivals (DACA) policy. The DAPA program would stop deportation proceedings and issue work permits and other benefits to certain individuals. The DACA program, which the Obama Administration hoped to expand, was implemented in 2012 on behalf of undocumented immigrants who came to the United States when they were 16 years old or younger. It would permit such individuals who satisfied certain criteria to file for deferred action for a limited period of time. The 2014 guidance at issue in the litigation would modify two of DACA’s threshold eligibility criteria.

Attorneys General from 14 states, in addition to the District of Columbia, filed briefs in support of the federal government’s motion of stay. The states were California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. In its brief, the group of states argued:

“A single State cannot dictate national immigration policy, yet that is what the district court allowed here. Relying entirely on Texas’s speculative claims, the district court enjoined vital immigration reforms nationwide. Those reforms will benefit millions of people and their families, as well as the States in which they reside.” States will benefit from the immigration reforms that have been stayed and should not have “to live under an improper injunction based on harms other States incorrectly claim they will suffer,” the states assert. “At the very least, this Court should stay the order outside Texas, as no other State has presented any evidence that it will suffer the irreparable injury needed to justify injunctive relief.”

We will provide updates on the litigation as warranted. For further information please contact the Jackson Lewis attorney with whom you normally work.

 

Florida Court Again Strikes Down DOL H-2B Regulations

AUTHORS:  Otieno Ombok and Kevin Lashus.

The Department of Labor lacks authority under the Immigration and Nationality Act to issue regulations in the H-2B program, a Florida federal district court has ruled, vacating the DOL’s 2008 H-2B regulations establishing standards and procedures for certifying employers’ requests to import H-2B workers and calculating the prevailing wage rates for temporary foreign workers. Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015).

DOL therefore announced that, effective immediately, it will no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program while it considers its options in light of the court’s decision.

This decision follows an earlier one issued by the same court in Bayou Lawn & Landscape Servs. v. Perez, No. 3:12cv183/MCR/CJK (N.D. Fla. Dec. 18, 2014), vacating the DOL’s proposed 2012 H-2B regulations. DOL has appealed this case. These decisions are in direct conflict with the 11th Circuit’s decision upholding DOL’s authority to promulgate H-2B regulations in La. Forestry Ass’n v. Sec’y United States DOL, 2014 U.S. App. LEXIS 2167 (3d Cir. Feb. 5, 2014). If the 11th Circuit upholds the Florida district court’s decision, then we may have an intercircuit conflict that may come before the U.S. Supreme Court.

Employers who rely upon the H-2B program for craft workers and temporary/seasonal employees (e.g., landscapers, housekeeping, ski instructors, commercial painters, welders, pipefitters, and machinists) should contact their Jackson Lewis attorney for further guidance. The DOL likely will take four to six weeks to respond to Perez and employers’ obligations to pay certain wages and to ensure the consistent application of employment policies may be impacted in the short-term.

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.