What Happens IF There is a Government Shutdown?

If Congress cannot pass a funding bill by April 27, 2017, only “essential” government workers will continue to work as of May 1 and immigration processes will be affected.

Department of Labor: H Petitions and PERMs

DOL workers are not classified as “essential” workers:

  • iCERT visa portal system will be inaccessible;
  • Labor Condition Applications (LCAs) will not be processed;
  • Prevailing Wage Requests will not be processed;
  • PERM 9089 Forms for permanent labor certification will not be processed; and
  • Audit responses will not be processed.

It is not clear whether any of these applications would be accepted or considered to be timely filed if hard copies are mailed to the DOL.

USCIS

Since the USCIS is user-funded, employees will not be furloughed and applications would continue to be processed.

  • H-1B filings, however, will be affected because LCAs will not be processed.
  • Expect the USCIS to advise as to whether some H petitions will be accepted without certified LCAs.

E-Verify will be inaccessible.

  • Employers will still need to complete Form I-9s in a timely fashion and create E-Verify cases later.
  • Expect the USCIS to advise regarding the “three day rule” and whether the due date for Tentative Non-Confirmation Process responses will be extended.

Customs and Border Protection

  • CBP officers are “essential” employees, but visa applications at ports of entry or at pre-inspection locations could be affected.

Visa Issuance at Consulate’s Abroad

  • Consular Processing should not be immediately affected.

Department of Justice

  • Immigrant and Employee Rights section attorneys would be furloughed, shutting down investigations of workplace discrimination temporarily.

We will continue to provide updates as they become available. You should consult your Jackson Lewis attorney regarding the timing of filings.

Federal Court Blocks Portion of Trump’s Executive Order Denying Federal Grants to Sanctuary Cities

Once again, a U.S. District Court has blocked part of one of President Donald Trump’s Executive Orders – the January 25th EO “Enhancing Public Safety in the Interior of the United States.”.  In explaining the purpose of that EO, President Trump stated “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”  To further that purpose, President Trump stated in Section 9(a) of the EO that these jurisdictions that refuse to cooperate with federal immigration authorities “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes. . . “  In a lawsuit filed by the cities of Santa Clara and San Francisco, California, U.S. District Court Judge William H. Orrick of the Northern District of California issued a preliminary injunction specifically blocking enforcement of Section 9(a) nationwide.

The government in defense of the EO argued that Section 9(a) had not actually done anything yet, that the President was only using the EO as a “bully pulpit” and that the cities could not show that they would be harmed. But like the various courts that ruled on the travel ban, Judge Orrick cited a list of comments made by President Trump, his advisors and Attorney General Jeff Sessions to cast doubt on the government’s argument and show that the administration planned to use the EO as a “weapon” against sanctuary cities.  He found that: “[t]he order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation-of-powers principles.”

This case is highly likely to find its way to the 9th Circuit Court of Appeals and perhaps to the Supreme Court.  President Trump has already tweeted his disapproval:  “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities – both ridiculous rulings.  See you in the Supreme Court!”

Jackson Lewis attorneys will continue to follow the path of this case.

 

Pending: Bipartisan Legislation to Extend the Conrad 30 Program for J-1 Waiver Physicians

When President Donald Trump issued his “Travel Ban,” there were fears that the physician shortage in the U.S. would be exacerbated.  It has been reported that there is currently a deficit of 8,200 primary care physicians that will balloon to 94,700 by 2025 as the population ages.  For many years, many foreign physicians from Muslim-majority countries have been helping to fill the shortage of primary care physicians in the U.S. Those individuals may now be rethinking their plans due to fears of anti-immigrant sentiments and possible long delays in obtaining visas.

To exacerbate the problem, the Conrad 30 J-1 Waiver Program will expire on April 28th if it is not renewed.  More than 15,000 physicians have participated in the Conrad 30 program that allows foreign physicians to remain in the U.S. after completion of their clinical medical training without having to fulfill the two-year home residence requirement, as long as they agree to work in federally designated underserved areas for at least three years.  Upon obtaining these Conrad 30 waivers, physicians then change to H-1B visa status to commence their employment.  Senators Amy Klobuchar (D-MN), Susan Collins (R-ME) and Heidi Heitkamp (D-ND) have introduced bipartisan legislation to extend and improve the program to increase the number of physicians in those areas.

The Conrad State 30 & Physician Access Act would:

  • Extend the program to 2021;
  • Allow for more than 30 (“Conrad 30”) slots for doctors per state;
  • Provide work authorization for spouses of physicians in the programs; and
  • Provide contractual protections to the physicians by prohibiting non-compete agreements and spelling out medical malpractice coverage.

The American Medical Association strongly supports the bill, stating that:  “Many communities, including rural and low-income urban areas, struggle to attract physicians to meet their patient needs.  This legislation will help to ensure continued access to care in medically underserved communities across the U.S.  The American Hospital Association has urged “swift action to extend [the] program.”

The travel ban and the possible suspension of the Conrad 30 program are not the only issues affecting the number of foreign physicians in the U.S. The USCIS’ suspension of premium processing for H-1B visa petitions is complicating the problem because it is delaying the start dates for physicians to begin serving patients and communities in these underserved areas.  Senators Klobuchar, Collins and Heitkamp also sent a letter to the USCIS asking the agency to continue premium processing of H-1B petitions for physicians to begin their post-waiver employment.  Medical associations would also like to see medical professionals exempted from the H-1B cap.

As the end of April approaches and a possible government shutdown looms, we will continue to follow events in Congress.

DHS STEM OPT Extension Rule Survives Legal Challenge

Finding that although the F-1 visa plaintiffs had standing to sue and that their claim was ripe, they had not alleged sufficient facts to support their claim, Judge Reggie B. Walton of the U.S. District Court for the District of Columbia has ruled, upholding the Department of Home Security’s 2016 STEM OPT Rule Program in a detailed opinion. Washington Alliance of Technology Workers v. DHS, No. 16-1170 (D.D.C. Apr. 19, 2017).

The court granted the government’s motion to dismiss, concluding that the rule was within the statutory authority of the DHS. No word yet on whether the ruling will be appealed.

 

 

Expect Redesigned Green Cards from USCIS

After May 1, 2017, be on the lookout for redesigned Green Cards and Employment Authorization Documents (EADs). The USCIS will start issuing newly styled cards on May 1 as part of the “Next Generation Secure Identification Document Project” to make cards highly secure and more tamper-resistant.

New Green Cards and EADs will:

  • Display the individual’s photo on both sides;
  • Have embedded holographic images; and
  • No longer have the individual’s signature.

Further, Green Cards will no longer have an optical stripe on the back, but will have an image of the Statue of Liberty and a predominately green palette.

EADs will have an image of a bald eagle and a predominantly red palette.

Existing and “new style” Green Cards and EADs will remain valid until the expiration dates shown on the cards. Both versions will remain acceptable for I-9, E-Verify, and SAVE (Systematic Alien Verification Entitlements) purposes.

Older Green Cards with no expiration date also will remain valid, but holders of such cards may consider applying for replacement cards to reduce the likelihood of tampering or fraud if the card is lost or stolen. Any new Green Cards that are issued will have an expiration date.

Some Green Cards and EADs issued after May 1, 2017, still may be in the “old style” because the USCIS will continue to use its existing stock of cards until the supplies are depleted. Such cards will still be valid until their expiration dates.

Automatic extensions of EADs based on timely filings or Temporary Protected Status (TPS) will not be affected.

Please contact a Jackson Lewis attorney if you have any questions.

 

H-1B Visa Executive Order

In the wake of the lowest number of H-1B visa petitions filed in five years (199,000), President Donald Trump has signed an Executive Order dubbed “Buy American, Hire American.” It is focused on reform of the H-1B non-immigration visa program, as well as the elimination of waivers and exceptions that are central to international trade deals.

The Order, signed on April 18, 2017, at Snap-On Tools in Wisconsin, directs the Departments of Homeland Security, Justice, Labor, and State to crack down on fraud and abuse in the immigration system, across the board, to create higher wages and rates of employment for U.S. workers.

Read More.

 

 

Reminder: Glitch in Form I-9 in November 2016

USCIS is reminding employers that if they are continuing to use a Form I-9 (“Smart Form”) that was downloaded between November 14 (when the form first became available) and November 17, 2016, they should download, save, and start using a new Form I-9, available at uscis.gov/i-9 .

There was a glitch in the software during those days that resulted in Social Security numbers being transposed. For example, the number 123-45-6789 entered in the Social Security number field might appear as 123-34-6789.

The USCIS is advising the following:

  • Employers should check to see if their employees’ Social Security numbers are incorrect;
  • If they are incorrect, employers should have their employees draw a line through the transposed number in Section 1, enter the correct number, and initial and date the change; and
  • Include a written explanation with the Form I-9 about why the correction was made in the event of an audit, citing to the USCIS announcement dated April 6, 2017, at: https://www.uscis.gov/i-9-central/whats-new .

If you have any questions about how to proceed, please contact your Jackson Lewis attorney.

Court Ruling on DHS STEM OPT Extension Rule Expected Soon

A motion to dismiss a lawsuit challenging the U.S. Department of Homeland Security’s new rule governing the Science, Technology, Engineering, and Math (STEM) Optional Practical Training (OPT) program has been granted in part and denied in part. Washington Alliance of Technology Workers v. DHS, No. 1:16-cv-01170-RBW (D.D.C. Mar. 30, 2017). Judge Reggie B. Walton issued a brief order without any details, but explained the final order will be issued by April 30. We will report on the final order’s effect on the STEM OPT program when it is available.

The new rule extends to 24 months the time foreign students in F-1 status can work in the U.S. following completion of a STEM degree.

In August 2015, the court struck down the original rule allowing for extension of OPT work authorization for students on F-1 visas who have STEM degrees. The court found DHS unlawfully bypassed the notice-and-comment rulemaking process. However, the court paused the order to allow the agency to repair the administrative deficiency. On March 11, 2016, after a notice-and-comment period, the new STEM OPT rule went into effect. The new rule allows for a 24-month STEM OPT extension, seven months longer than the original rule.

The plaintiffs in the original suit, the Washington Alliance of Technology Workers, in June 2016 challenged the new rule and the DHS filed a motion to dismiss the suit.

Even if the new rule is upheld, the program could face other challenges. In a draft Executive Order that was leaked in January 2017, the Trump Administration stated it would like to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance and improve monitoring of foreign students.”.  The STEM OPT rule was instituted by an Executive Order followed by rulemaking and could be “reformed” or eliminated by Executive Order followed by rulemaking – a process that could take as little as 30 days to complete. We will report on developments related to STEM OPT and other programs.

Push to Protect American Jobs: Round-up on Proposed Reforms to H-1B, L-1 Visas

Reforming the H-1B program “is an issue we are closely and carefully looking at,” Donald Trump had said during the campaign. This sentiment is shared by Congress, as evidenced by the slew of legislation proposed across both sides of the aisle.

Senator Dick Durbin (D. Ill.) first introduced a bill in 2007 to cure what he sees as the central problem — outsourcers abusing the system to obtain a very large portion of the limited number of H-1B visas. A decade later, in early March, Durbin reiterated this concern in a letter to President Trump. Durbin urges Trump to act quickly by way of Executive Order before the annual H-1B lottery because without Presidential action “outsourcers [would once again] secure the right to import tens of thousands of low-wage foreign guest workers to replace American workers.”

Going on the assumption that requiring outsourcers to pay higher salaries will eliminate the visa abuse and protect American workers, Congress is considering:

Outsourcing firms may have the most to lose if any of this legislation passes. The most recently available figures show that 13 outsourcing firms received one-third of all available H-1B visas. Outsourcing firms’ -20-year-old business models are being reconsidered to incorporate hiring more American workers, accelerating automation, and moving American jobs off-shore.

At the executive level, a draft Executive Order that would impose H-1B reforms was leaked in January, but it has yet to be signed. Significantly, on the first day of the annual H-1B lottery, U.S. Citizenship and Immigration Services announced that it will prioritize the detection of H-1B fraud and abuse through targeted site visits, with an emphasis on H-1B employers (i) whose information cannot be commercially verified, (ii) who are H-1B dependent, or (iii) who send employees to third-party worksites.

 

H-2B Visas Crisis

The H-2B visa program is used extensively in tourist locations to hire foreign workers for “the season” to do temporary nonagricultural work. There are 66,000 H-2B visas available annually – half for the summer season and half for the winter season. An exemption from the cap for “returning workers” was not renewed for fiscal year 2016. With no exemption and companies anticipating that the summer cap might be reached quickly, there was a 93% increase in the number of Labor Certifications filed with the Department of Labor for H-2B workers during the first week of January 2017. The summer season cap was reached on March 13. This was unprecedented. Companies that rely heavily on seasonal workers to bolster full-time staff during their peak seasons expect to be short of workers.

Representatives William Keating (D-Mass.), whose district includes Cape Cod, and Jack Bergman (R-Mich.) have introduced a bill in the House, “The Small Business Assistant Act of 2017,” that would exempt returning H-2B workers from the cap. If passed, the number of visas available may triple.

Hotels and restaurants on Cape Cod and other places that depend heavily on tourism dollars rely on H-2B foreign workers to do housekeeping, dishwashing, and grounds keeping. Others that depend upon the program include the crabbing industry on Maryland’s Eastern Shore, the Nantucket hospitality industry, Colorado’s skiing and recreational industries, the fishing industry in Alaska, and forestry operations and amusement and recreational parks nationwide.

Senator Thom Tillis (R-N.C.), with Senators Bill Cassidy (R-La.), Mark Warner (D-Va.), and former Senator Mikulski (D-Md.), introduced the “Save our Small and Seasonal Businesses Act of 2015,” also to reinstate the returning worker exemption. When seasonal businesses cannot open on time because they do not have enough foreign workers, their U.S. workers also are unemployed and the economies in these areas generally suffer. Senator Tillis stated that the bill would “continue to place a priority on both the American workforce and our local economies.” Even in Guam, the healthcare and construction industries are missing the H-2B visas they need.

As an interim measure, due to the time-sensitive nature of these visas, Senators have called on the USCIS to conduct an H-2B visa audit to ensure that all available visas actually have been utilized. Keating and close to 40 other Representatives have joined in that request.

Meanwhile, in Euskadia Inc. v. Kelly, No. 1:17-cv-00205, landscaping, construction, roofing, fencing and other companies have asked the U.S. District Court of the Western District of Texas to force the USCIS to continue to process their H-2B visa applications. The court found the plaintiffs were not entitled to preliminary injunctive relief. An amended complaint was filed on March 22. We will report on further developments.

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