Trump Administration Immigration Actions’ Disproportionate Impact on Certain Industries

The food, construction, and healthcare sectors are concerned about fallout from the crackdown on immigration called for in Secretary John Kelly’s Implementation Memos, President Donald Trump’s travel ban, and possible new legislation aimed at reducing overall immigration by 50% within 10 years.

Those sectors suffer from labor shortages already and have relied on immigrants to fill jobs that U.S. workers reject. Some of these workers are authorized, but others are undocumented. According to a Pew study, in 2014, undocumented workers accounted for 17% of the workforce in agriculture, 13% in construction, and 9% in leisure and hospitality. In California, 45% of agricultural workers are undocumented.

Restaurants nationwide employ more than two million foreign-born workers and have difficulty finding line cooks, sous chefs, and servers. Restauranteurs expect the new deportation priorities will decimate the ranks of essential, lower-skilled workers as well. But that is just the beginning of the problem for restaurants. Deportations and arrests on farms would result in labor shortages and higher prices that ultimately hit customers.

The healthcare industry also has cause for concern. More than 10,000 physicians in the U.S. are from the seven countries listed in Trump’s travel ban — many of these physicians work in underserved, rural areas in order to remain in the U.S. In fact, one in five U.S. physicians is foreign born. At this time of year, medical school graduates are interviewing and being selected for competitive residency programs that are indispensable in providing care in the foremost teaching hospitals in the U.S. If hospitals choose foreign-born graduates, they cannot be sure that visas will be available. Dr. Michael F. Collins, Chancellor of the University of Massachusetts Medical School, said: “It seems a shame to me that students who have completed their studies and done their work and are attractive applicants would not be [selected] because of an uncertainty cast by the executive order . . . . And it would seem a shame to me that the next Nobel Prize winner wouldn’t be offered a spot because of this order.”  The anticipated revised travel ban order may help to cure this.

Trump has promised to promote economic growth that depends, in part, upon boosting the number of workers who are working productively. Pew studies show that with a reduction in immigration, the working population in the U.S. would decrease due to aging and lowering birth rates.  More recently, he said that he might shift his immigration strategy to grant legal status to millions of undocumented immigrants. If realized, this may be an opportunity for him to live up to his promise of promoting economic growth by increasing the number of workers in the U.S.

H-1B Season Has Started!

Petitions for new H-1B visas are eligible to be filed on April 1, 2017, for federal FY 2018 beginning October 1, 2017. There are a limited number of new H-1B visas each year (65,000 and an additional 20,000 for foreign nationals with a U.S. Master’s degree or higher), which historically is used up within days of the start of the filing period. Last year, 236,000 applications were filed for the 85,000 slots. Now is the time to review your hiring needs.

Given the changing immigration landscape, you should also think about whether you want to file H-1B petitions for foreign students working on Optional Practical Training (OPT) and for employees working in TN or other treaty-based statuses who might be affected by upcoming changes and who you wish to retain.

There are considerable pre-filing requirements, so it is important to get started in order to meet the April 1st deadline.

 

Legislative and Other Challenges to Immigration Executive Order

Following recent ICE arrests of 680 individuals in the Los Angeles, Chicago, Atlanta, San Antonio, and New York City areas, Senators Catherine Cortez Masto (D-Nev.), Richard Durbin (D-Ill.), and Tammy Duckworth (D-Ill.) introduced a bill to nullify the effect of President Donald Trump’s Executive Order, “Enhancing Public Security in the Interior of the United States.”  The E.O. “makes the vast majority of unauthorized individuals priorities for removal and aims to withhold critical Federal funding to sanctuary cities.”

The bill was introduced on February 16, the same day that thousands of immigrants nationwide, naturalized citizens and undocumented workers alike, staged a grassroots boycott to emphasize what it would be like to have a “Day Without Immigrants.” While cities did not “grind to a halt,” in certain areas, restaurants were closed, large numbers of children stayed home from school, and some nonunion construction sites were shut down.  Trump’s interest in deportation and reforming immigration laws has sparked concern not only among immigrants, but also among employers (including developers and contractors who often rely on immigrants to provide skilled labor especially in an expanding construction market).

DHS Secretary John Kelly stated that the enforcement actions were routine, not prompted by the Executive Order, and were aimed at those who posed public safety threats, “such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.”  He said that approximately 75 percent of those arrested were criminal aliens. Reports that the Trump Administration is considering mobilizing up to 100,000 National Guard troops to participate in a nationwide immigration enforcement effort have been vehemently denied by the White House. In Fact, a Memorandum signed by Kelly on February 17, but not yet reviewed by the White House, states that INA will make agreements with states to authorize “qualified officers or employees of the state…to perform the functions of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” There is no specific mention of National Guard troops or of state militia.

Trump’s Executive Order on enhancing security not only expands the definition of aliens who can be deported, but also threatens to deny federal funding to jurisdictions that do not cooperate with immigration enforcement efforts. These jurisdictions, known as “sanctuary cities,” have community policing policies that encourage all community members to cooperate with police to help solve and prevent crimes. One step in accomplishing this goal is to gain trust by pledging not to provide information about immigration status of non-criminals to immigration enforcement agencies. Senator Duckworth emphasized the importance of sanctuary cities and stated that “[o]rdering local officials to needlessly tear families apart is unacceptable—and it compromises public safety in communities across Illinois by fostering mistrust and suspicion between local law enforcement and the communities they serve and protect.” San Francisco and Boston have filed federal lawsuits seeking to bar the enforcement of this part of the Executive Order.

 

Cuban Refugees Are Waiting at the Border

Many Cubans who were making the long and dangerous trek through jungles and other countries to the United States before the inauguration of President Donald Trump on January 20 are waiting at the U.S. border for word from the Trump Administration on how they will be treated.

For decades, under the Cuban Adjustment Act (CAA), a Cuban national in the U.S. was eligible for a Green Card after being lawfully admitted and physically present in the U.S. for one year. The U.S. “wet-foot/dry-foot” policy, an exemption preventing the expedited removal of Cuban nationals apprehended near the border, allowed Cuba migrants who made it to “U.S. soil” to request parole and adjust status under the CAA. The policy also required those apprehended at sea be returned to Cuba or resettled elsewhere. Under the Cuban Medical Professional Parole Program, Cuban medical professionals who were “conscripted” to study or work abroad (not in the U.S. or in Cuba) by the Cuban government also were eligible to apply for parole abroad with their family members and come to the U.S., where they would be able to adjust status based on the CAA.

On January 12, 2017, in the last days of the Obama Administration, however, the DHS rescinded special policies for Cuban nationals, including the “wet-foot/dry-foot” policy and the Cuban Medical Professional Parole Program. These policies were based on the assumption that all individuals leaving Cuba were victims of persecution and eligible for asylum, DHS said. The 2017 changes were made in recognition of the reestablishment of full diplomatic relations with Cuba and are intended to “ensure regular, safe, and orderly migration” between Cuba and the U.S.  The Cuban government has agreed to repatriate nationals who have attempted to enter the U.S. But Cubans who fear persecution will still be allowed to make claims of asylum. They will be treated in the same way as nationals from other countries in terms of parole.

The pre-January 20 policy changes caught Cuban migrants by surprise and many are still waiting at the border, waiting to hear whether Trump would undo the policy changes. During the presidential campaign, Trump criticized the Obama Administration’s attempts to improve relations with Cuba. On the other hand, Trump also has criticized the expanded use of parole.

We will continue to monitor the situation and provide updates.

New I-9 Handbook for Employers

USCIS’s new M-274 “Handbook for Employers with Guidance for Completing Form I-9” is now available.  In addition to detailed I-9 completion instructions, the Handbook contains guidance on Photocopying and Retention, Unlawful Discrimination and Penalties, E-Verify. It also contains FAQs as well as images of sample documents.

The new I-9 Form went into effect on January 22, 2017.  Electronic copies of the English and Spanish versions of Form I-9 are available on the USCIS website or may be ordered by phone at 800-870-3676. The USCIS provides customer support and resources at its anonymous Employer Hotline (888-464-4218) or at I-9Central@dhs.gov and E-Verify@dhs.gov.

Please also call your Jackson Lewis attorney for guidance should you have any questions.

Opposition to Travel Ban EO Includes Tech Firms and Others

After oral arguments on February 9th, the Ninth Circuit denied the government’s request to reinstate the travel ban EO. State of Washington v. Trump.

More than 135,000 people listened to the Ninth Circuit oral argument, which was conducted by phone and had no video, on the Court’s own live stream. News websites also carried the audio of the hearing, and CNN and MSNBC, in an unusual move, broadcasted the more-than-one-hour full hearing live. Over a two-day period prior to the hearing, more than a dozen amicus briefs had been filed by groups such as the Anti-Defamation League, SEIU, the U.S. Justice Foundation, HIAS (the oldest refugee resettlement organization in the U.S.), Constitutional Scholars, Law Professors, and the Washington State Labor Council.

In a rare joint effort, more than 100 companies, including high tech giants such as Apple, Akamai, Facebook, Google, Microsoft, Netflix, Twitter, and Uber, joined a single amicus brief against the ban. They argued that innovation and economic growth are tied to the contributions of immigrants and to the stability and predictability of U.S. immigration laws. CEOs at major tech companies, many of whom are immigrants themselves, also have taken to email and social media to express their concerns about the ban.

The effects of the Executive Order were felt immediately in Silicon Valley. Google apparently told its employees abroad who might have been affected to return home — “[w]e’re upset about the impact of this order and any proposals that could impose restrictions on Googlers and their families, or that could create barriers to bringing great talent to the U.S.”  Microsoft reported that it had at least 76 employees on visas from countries affected by the EO.  In light of concerns regarding immigration, Microsoft even has language in its January 26, 2017, securities filings for investors indicating that immigration restrictions “may inhibit our ability to adequately staff our research and development efforts.”

The amicus brief also had a “prologue” of sorts that addressed the role of immigrants in the U.S. and the companies’ economic concerns. It stated:

  • Immigrants have had a “tremendous impact” on the American economy, 200 of the Fortune 500 list of companies were founded by immigrants or their children, and “these companies generate annual revenue of $4.2 trillion, and employ millions of Americans.”
  • Whenever America has diverged from its ideals aimed at “attracting and incorporating” immigrants, these laws and policies, over time, have been discredited.
  • The EO harms the competitiveness of U.S. companies and “makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees” because it “disrupts ongoing business operations” and “deprives employees and businesses of the predictability they require.”
  • The EO disrupts the global mobility that “is critical to businesses whose customers, suppliers, users and workforces are spread all around the world.”
  • Retaliatory actions by other countries could “hinder the U.S. companies’ ability to do business or negotiate business deals abroad.”

In its order, the Ninth Circuit, which geographically encompasses Silicon Valley, did not cite directly to this brief.

Ninth Circuit Denies Government’s Motion to Stay District Court’s Order Blocking Travel Ban

In a unanimous opinion, a three-judge panel in the Ninth Circuit Court of Appeals upheld the stay of President Trump’s travel ban.  The Court found in favor of the State of Washington on all of its arguments and held that the Administration had not shown a likelihood of success on the merits of the case. Some commentators have noted that the President could address his national security concerns by rewriting the Executive Order to more specifically address the infirmities noted by the Court, including specifically eliminating lawful permanent residents (i.e., green card holders) from the ban. President Trump, however, upon hearing of the decision immediately tweeted: “SEE YOU IN COURT.” Still, the President – in conjunction with his new Attorney General, Jeff Sessions – will have to decide whether to appeal the request for an emergency stay to the Supreme Court by way of Justice Anthony Kennedy, request an en banc hearing before the Ninth Circuit or go back to the District Court for a hearing “on the merits.” In any case, the travel ban will remain paused until the next decision.

Travel Ban Update: Court Refused Emergency Government Request to Continue Implementation of EO

The Ninth Circuit Court of Appeals in San Francisco has denied the government’s request for an emergency “pause” of Judge James Robart’s TRO prohibiting implementation of the EO barring individuals from seven countries to enter the United States. The Court ordered briefs to be submitted on an expedited basis with the final brief due by 3:00 pm PST on February 6. After receiving the briefs, the Court may schedule a hearing or rule without a hearing on the case soon thereafter.

Individuals from the seven affected countries may enter the U.S. while we await a ruling from the Court. At least during this interim period, individuals with valid visas will be able to board airlines and enter the United States. Those 60,000 visas that were “provisionally revoked” have been restored.  It has been reported that individuals who tried to enter the country in the period after the January 27 EO and had their visas physically marked as “cancelled” as a result of the EO will not need to reapply for new visas. They will be able to file an Application for Waiver of Passport and/or Visa, Form I-193, upon arrival, absent any other admissibility issues. Airlines will receive CBP permission for such individuals to board. The I-193 filing fee is $585. It is unclear whether that fee will be waived.

The government’s basic argument to the Ninth Circuit is that the TRO “contravenes the Constitutional separation of powers,” “harms the public,” and “second-guesses the President’s national security judgment.”

Since the EO was signed, the Administration has itself revised the EO, explaining:

  • Green Card holders are not covered by the EO
  • Dual Citizens with a passport from a non-affected country will be treated as from the non-affected country
  • Iraqis with Special Immigrant Visas are no longer covered by the EO

The Ninth Circuit’s denial of the government’s emergency request was issued by Judge William C. Canby, a Carter appointee, and Judge Michelle T. Friedland, an Obama appointee. A third member of the Court, Judge Richard R. Clifton, a Bush appointee, will join the panel to review the government’s request. Judge Robart of the District of Washington also was a Bush appointee.

We will continue to follow the court action and provide updates.

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