Trump Administration Considers Elimination of J-1 Program for Some Students

The Trump Administration is considering the elimination of the J-1 Summer Work-Travel Program for students who come to tourist areas in the U.S. as temporary summer help and as participants in cultural exchanges. Like the numerical limitations placed on H-2B temporary seasonal visas, the elimination of this J-1 Summer Work-Travel Program would particularly affect the hospitality industry in areas that rely on these students to cook, wait tables, and run amusement park rides in tourist areas during the summer months.

Morey’s Pier Amusement Park in Wildwood, New Jersey, hired more than one-third of its 2017 summer workforce through the J-1 Summer Work-Travel Program. Its Director of Human Resources reported that it makes extensive efforts, including through job fairs, to hire U.S. workers, but cannot find enough people interested in the seasonal work. The Park hired 82 percent of the U.S. applicants who applied for jobs and the remaining 18 percent could not be hired because they were too young to be life guards or to serve alcohol.

Other tourist areas such as Hershey, Pennsylvania, and the Poconos also depend on the J-1 Summer Work-Travel Program. Congressman Bill Keating (D-MA), who represents Cape Cod and the Islands of Nantucket and Martha’s Vineyard, is critical of the reported plan to reduce these visas for students who he believes are vital to his area’s economy.

The review and possible elimination of the J-1 Summer Work-Travel Program arises out of the “Buy American, Hire American” Executive Order. The first hint that the Program might be cut was in a draft executive order that was leaked in January 2017. That draft, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” was never signed or formally released. It included specific provisions questioning the desirability of the J-1 program, the L-1 visa program, the use of parole authority, and the H-1B visa program, among others. To date, the Administration has been achieving some of the goals first set forth in that draft by conducting more L-1 site visits, scrutinizing H-1B and L-1 petitions by issuing a staggering number of post-filing Requests for Evidence (RFEs), postponing (and ultimately planning to eliminate) the International Entrepreneur Rule that relied on parole authority, and, now, focusing on the possible elimination of the J-1 Summer Work-Travel Program.

According to the State Department website, “The J-1 Exchange Visitor Program [overseen by the Department of States] provides opportunities for around 300,000 foreign visitors from 200 countries and territories per year to experience U.S. society and culture and engage with Americans.” There are more than a dozen J-1 programs. Others that are reportedly being reviewed for possible elimination are the J-1 internship and au pair programs.

Federal Immigration Resources Assisting in Hurricane Response in Texas

U.S. Customs and Border Protection (CBP) is deploying staff and equipment for search and rescue efforts and to work at local, state, and federal emergency operations centers in Texas in response to Hurricane Harvey.

Hurricane Harvey hit Texas just as the state’s plan to outlaw sanctuary cities is about to go into effect.  Texas also has joined other states in threatening to sue President Donald Trump if he does not phase out DACA starting on September 5th.

Some of Houston’s more than 500,000 undocumented immigrants reportedly are afraid to seek shelter, fearing deportation.

To encourage undocumented workers in need of assistance to come into shelters, FEMA issued a statement, “Hurricane Harvey Rumor Control,” asking “all persons to follow the guidance of local officials and seek shelter regardless of their immigration status.”

ICE and CBP explained that:

It is not conducting immigration enforcement at relief sites such as shelters or food banks. In the rare instance where local law enforcement informs ICE of a serious criminal alien at a relief site that presents a public safety threat, ICE will make a determination on a case-by-case basis about the appropriate enforcement actions.

In an effort to assuage fears, the Mayor of Houston has offered to personally represent any individual facing deportation after seeking disaster relief.

In the meantime:

  • 50 CBP agents are staffing a U.S. Coast Guard Emergency Operations Center in Robstown, Texas
  • CBP is providing assistance to border patrol agents in Corpus Christi
  • CBP aircraft from Tucson are in Texas, along with 12 aircrew members, 5 support personnel and 3 agents certified in swift-water rescues
  • CBP’s Air and Marine Operations sent 4 hoist-capable Blackhawks to Houston to help with rescues
  • 50 Tucson area Special Operations Detachments agents are supporting public safety operations

Once the immediate danger subsides, workers will be needed to participate in the billion-dollar rebuilding effort. “Eduardo Canales, director of the South Texas Human Rights Center, said the state is at risk of losing much-needed low-wage workers – cleaners, cooks, carpenters and landscapers – who because of the crackdown may not stick around to help Texas communities recover from the storm.” Even before the hurricane, there was concern that undocumented workers would be leaving the state because of perceived anti-immigrant sentiment.

Beyond the emergency rescue and relief efforts, international trade and travel also has been affected and CBP is coordinating with the U.S. Coast Guard and port authorities to resume operations as soon as possible.

In-Person Interviews for Each Green Card Applicant to Begin October 1

USCIS spokesperson Carter Langston confirmed that as of October 1, 2017, the employment-based green card process will include an in-person interview.

Formal interviews have been a possibility for employment-based permanent residency applicants. However, for the last 10 years, employment-based green card applicants generally had the interview waived. Historically, in-person interviews were a sign of trouble, indicating additional evidence was needed to be vetted at the interview. Langston reported that this is “part of a comprehensive strategy to further improve the detection and prevention of fraud and security risks to the United States.” He further clarified that conducting in-person interviews will provide officers the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.

This increase in in-person interviews was part of President Donald Trump’s “extreme vetting” plan outlined his travel ban executive order.

Many employment-based green card applicants have already been in the U.S. for many years as non-immigrants, have been interviewed in-person for temporary visas at U.S. embassies or consulates abroad on numerous occasions, and have often been working for years for the same companies that ultimately have become their green card sponsors. Additionally, USCIS announced that family members of refugees or asylees will be required to have an in-person interview for provisional status. Reinstituting the interview requirements for employment-based applicants and adding requirements for refugees and asylees will amount to more than 100,000 additional applicants a year being interviewed at local USCIS offices. This undoubtedly will increase USCIS backlogs and lengthen the already years-long long process of obtaining a green card or entering as a refugee or asylee.

Jackson Lewis has experience and expertise in preparing clients for immigrant and non-immigrant interviews. If you have questions about the process, please let us know. We will continue to provide updates as more information becomes available about the new requirements.

Diversity Applicants Sue to Force State Department Action

A group of diversity lottery applicants from countries covered by President Donald Trump’s travel ban have filed suit in the U.S. District Court for the District of Columbia seeking to force the State Department to adjudicate their diversity lottery visa applications before time runs out for them.

Administered by the Department of State, the Diversity Lottery makes 50,000 immigrant visas (“green cards”) available each year to individuals from countries with low rates of immigration to the United States. Applicants randomly selected in a lottery have a few more hurdles to overcome. They must file an additional application, be interviewed, and have their visas granted before the end of the fiscal year (September 30, 2017). The “lottery” provides a way for individuals who have no family or work ties to the United States to immigrate. Some call it a “golden ticket” and believe that the lottery reflects positively on the United States and its ideals. More than a million people have used it to come to the United States since the lottery began in 1995. Trump and others, however, prefer a total merit-based immigration system, which would eliminate the diversity lottery all together. Indeed, this is one of the tenets of the RAISE Act recently introduced in Congress by Tom Cotton (R-Ark.) and David Perdue (R-Ga.).

In their suit, beneficiaries argue that while the travel ban could prevent individuals from the “suspect” countries from entering the United States, it should not prevent the State Department from adjudicating diversity visas. Those who receive the visas have six months to enter the United States. While they must have their visas approved by September 30, they do not need to enter the United States until the end of March 2018, by which time, theoretically, the travel ban will have expired.

The plaintiffs are from Yemen and Iran.

Jackson Lewis will provide updates as they become available.

 

Suspension of Visa Operations in Russia

The U.S. Embassy and Consulates in Russia announced that “[a]s a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017.”

This is the most recent volley in the diplomatic back-and-forth that started with the reports of possible Russian involvement in U.S. elections. Following U.S.-imposed sanctions, Russia ordered the withdrawal of 755 U.S. diplomatic personnel from Russia.

Generally, the announcement means:

  • The U.S. Mission has begun cancelling current nonimmigrant visa appointments countrywide.
  • As of September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.
  • NIV applicants whose appointments are cancelled can reschedule for a later date in Moscow.
  • Some immigrant visa interviews also will be affected.
  • The Embassy in Moscow and the Consulate in St. Petersburg will no longer accept new visa applications from residents of Belarus, who are encouraged to schedule NIV appointments in Warsaw, Kyiv (Kiev), or Vilnius.
  • The current plan is to offer a block of visa appointments for students in early September.
  • The Embassy in Moscow will continue to process NIV applications without an interview for those who qualify.

The U.S. Embassy in Moscow and the three consulates in St. Petersburg, Yekaterinburg, and Vladivostok will continue to provide emergency and routine services to American citizens, although hours may change.

Please reach out to your Jackson Lewis attorney for any questions regarding the suspension.

Trump Administration Stops Law Enforcement Funds to Chicago, Sanctuary City, and Gets Sued

Chicago, a sanctuary city, is challenging the Trump Administration’s ability to deny it needed law enforcement funds.

The battle between the Administration and sanctuary localities began in April, when a federal judge blocked a part of President Donald Trump’s Enhancing Public Safety in the Interior of the United States Executive Order that directed government agencies to generally deny federal funding to sanctuary jurisdictions.  The judge, however, made clear that its injunction did not prevent the Department of Justice from enforcing statutes – particularly 8 U.S.C. Section 1373. Under Section 1373, “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Compliance with this statute now is a specific term of Byrne JAG grants. JAG grants provide states and localities funding to support a broad range of law enforcement initiatives.

Chicago received $2.3 million in Byrne funding last year and has applied this year for more. It uses the funding to purchase vehicles and SWAT equipment. Mayor Rahm Emmanuel announced that Chicago was challenging the Administration’s ability to force compliance with Section 1373 by withholding funding for law enforcement initiatives. The City is seeking preliminary injunction to prevent the Attorney General from imposing “unauthorized and unconstitutional conditions” on Byrne funding. The Mayor said the City “will not be blackmailed into changing our values, and we are and will remain a welcoming City.”  In other words, Chicago will not agree to allow DHS unlimited access to law-enforcement facilities and will not hold people in jail for an additional 48 hours at the request of ICE, because these actions would be contrary to Chicago’s Welcoming City Ordinance. Chicago’s history with the sanctuary movement began in 1982, when the Wellington Avenue Church decided to become part of the movement.

Emanuel further stated:

The federal government should be working with cities to provide necessary resources to improve public safety, not concocting new schemes to reduce our crime fighting resources. The City of Chicago will continue to stand up to President Trump and his Justice Department to ensure that their misguided policies do not threaten the safety of our residents.

Attorney General Sessions responded:

To a degree perhaps unsurpassed by any other jurisdiction, the political leadership of Chicago has chosen deliberately and intentionally to adopt a policy that obstructs this country’s lawful immigration system. They have demonstrated an open hostility to enforcing laws designed to protect law enforcement . . . and reduce crime, and instead have adopted an official policy of protecting criminal aliens who prey on their own residents.

Chicago is the first city to file a suit over the terms of the Byrne funding, but California has also filed a similar suit. The California legislature also is considering a bill, the California Values Act, which would further curtail local cooperation with federal immigration agents.

Insights: Expediting H-1B Petitions

While unusual, the government has suspended expedited or premium processing for H-1B cases from time to time. In years past, in response to the filing of Cap cases, the start of the 15-day adjudication clock was delayed. There also have been suspensions in other situations when the USCIS anticipated increased caseloads, such as when EADs first became available for certain H-1B spouses.

On April 3, 2017, the USCIS suspended premium processing, but on June 26, 2017, it reinstated premium processing for H petitions for physicians eligible for Conrad 30 and other interested government waivers. On July 24, 2017, premium processing was reinstated for Cap Exempt employers such as universities. Full reinstatement may still be a few months away. Meanwhile, it is possible for employers to request faster processing based on certain USCIS criteria.

The USCIS might be convinced to expedite an H-1B or other petition when premium processing is not available based on one or more of the following strict criteria:

  • Severe financial loss to a company or person
  • Emergency situation (such as a grave illness)
  • Humanitarian reasons (such as a war in the home country)
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States (such as a broadcasting organization promoting democratic interests abroad)
  • Department of Defense or a national interest situation (these particular expedite requests must come from an official U.S. government entity and describe any delay as detrimental to the government)
  • USCIS error
  • Compelling interest of USCIS

If you have questions about expediting a case, please contact your Jackson Lewis attorney for assistance.

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.

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