F-1 Student Visa, Optional Practical Training Risks Continue

Although there have been discussions for some time that the Trump Administration would change the rules regarding Optional Practical Training (OPT), OPT did not show up in the most recent “regulatory agenda.”

Nevertheless, the Administration has been putting limits on F-1 students in other ways. Those changes, at least in part, are responsible for a decline in foreign student enrollment at U.S. institutions.  Examples include:

Recent reports reveal that USCIS is denying change of status to H-1B petitions to students who have used more than 12 months of practical training – counting both Curricular Practical Training (CPT) and OPT. Students with these denials would have to leave the U.S. and apply for their H-1B visas abroad. Although this can be quite an inconvenience, the real fear is that the Consulate will decide that the student had accumulated “unlawful presence” (without even realizing it) while working in OPT status and thus become subject to one of the bars on admission.

It is not yet clear what the Department of State will do, but as the Cap H-1B season approaches, it is important to consider all of the possible risks. Jackson Lewis will continue to provide updates as they become available. If you have questions about how to strategize around these risks for students in OPT status, please reach out to your Jackson Lewis attorney.

DHS Issues New Guidance on Temporary Protected Status for El Salvador, Haiti, Nicaragua, Sudan

Following Judge Edward Chen’s preliminary injunction blocking the termination of TPS status for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, the DHS has issued guidance regarding its compliance with that Order.

TPS status for beneficiaries from the four countries will continue so long as the preliminary injunction remains in effect.

According to DHS, if the injunction remains in force into March 2019, the agency will issue another notice to extend TPS-related documentation (including EADs) for another nine months. This means that TPS beneficiaries from those countries may have the opportunity to remain in the U.S. to work and continue to pursue other options for maintaining status until January 2020.

If the preliminary injunction is reversed prior to March 2019, DHS states that it will provide for an “orderly transition.” The orderly transition is defined as the later of (a) 120 days after the reversal of the preliminary injunction, or (b) the previously announced termination date. Because of the timing, this effectively means the termination dates for Haiti (July 22, 2019) and El Salvador (September 9, 2019) would remain in effect.

For the moment, however, DHS is automatically extending the EADs for certain individuals from Sudan and Nicaragua until April 2, 2019. This is particularly important because their TPS statuses were scheduled to terminate on November 2, 2018, and January 5, 2019, respectively.

Automatic extensions will not apply if the TPS designation of any individual has been finally withdrawn. Extensions also will not apply if the TPS beneficiary no longer meets the other eligibility requirements for TPS.

Jackson Lewis will continue to provide updates related to these TPS terminations. For information about the automatic extension of TPS EADs, please see our TPS Work Authorization Determination Tool and reach out to your Jackson Lewis attorney for details and specific advice.


Department of Homeland Security Fall 2018 Agenda Portends Big Changes for H-1B Visa, Other Programs

The Department of Homeland Security’s latest Regulatory Agenda promises some big changes, especially for the H-1B visa program.

Many of these changes have been proposed before, but have not yet made it to the rulemaking stage.

Among what to expect are the following:

  1. USCIS is planning to release a notice of proposed rulemaking to create a registration requirement for those seeking H-1B cap-subject petitions. The upside is that employers would have to file full petitions only if the case they register “wins” in the annual lottery. The downside is that it is not yet clear how USCIS will decide which cases should be accepted. In keeping with the “Buy American, Hire American” executive order and President Donald Trump’s focus on the “best and brightest,” the lottery may no longer be random. Petitions may be selected hierarchically, with individuals having the most advanced degrees and highest salaries at the top of the list. There is also the possibility that USCIS will decide how many applications to accept from any particular company, which likely will reduce the number of H-1Bs awarded to outsourcing and staffing companies.
  2. USCIS expects to finally release the notice of proposed rulemaking to eliminate H-4 employment authorization documents (EADs) in November. At that time, questions about whether those who currently have H-4 EADs will be able to continue to renew their work authorization will likely be answered. This has been a destabilizing issue for the many spouses of H-1B visa holders, primarily Indian nationals, who have been eligible for H-4 EADs since 2015. Approximately 90,000 spouses currently hold H-4 EADs.
  3. By August 2019, post-H-1B cap filings, USCIS plans to move forward with a rule (“Strengthening the H-1B Nonimmigrant Visa Classification Program”) that would enshrine new definitions of the terms “specialty occupation,” “employment,” and “employer-employee relationship.” USCIS’s definitions (or, at least, hints of them) have already been seen in guidance that has been issued and in Requests for Evidence regarding and denials of H-1B petitions.

Other expected proposed notices of rulemaking include:

  1. Updating the USCIS fee schedule (February 2019)
  2. Mandating electronic submission for all immigration benefit requests (April 2019)
  3. Limiting access to the USCIS Administrative Appeals Office (AAO) for appeals (April 2019)
  4. Eliminating concurrent filings of I-140 petitions and I-485 applications (September 2019)
  5. Updating recruitment requirements for the H-2A and H-2B programs (October 2018), and modernizing the H-2A labor certification process (December 2018)
  6. Raising investment levels and curtailing the designation of Targeting Employment Areas for the EB-5 program (November 2018)
  7. Initiating process changes for EB-5 Regional Center applications (March 2019)
  8. Increasing monitoring of the EB-5 Program (September 2019)

We will continue to keep you updated on these and other new proposals.

Brexit: An Update for Employers

As Brexit negotiations are coming to a head, companies may need to take stock of the current situation and strategize about how to maintain employment of current EU national employees and how to prepare for the post-Brexit landscape.

Jackson Lewis is a founding member of L&E Global, a worldwide alliance of premier firms specializing in counsel to employers. Our UK partner, Clyde & Co, has created a Brexit blog that companies doing business “across the pond” may find helpful. You may also find this article, Brexit – the UK’s draft immigration plans, useful to developing strategy.

As always, please be aware that this information does not constitute legal advice. If you need specific advice, please reach out to your Jackson Lewis attorney and we will be happy to make any needed referral.

Other Countries Lay Out Welcome Mat to International Entrepreneurs as U.S. Draws Back

While the Trump Administration is making it more difficult and less attractive for entrepreneurs to start their businesses in the United States (in the name of “Buy American and Hire American”), other countries are rolling out the welcome mat to entrepreneurs.

In May 2018, the Administration proposed a rule to remove President Obama’s International Entrepreneur Rule (IER). While the IER is still in effect due to litigation brought by the National Venture Capital Association, no applications have been granted under the IER. The Administration likely will eliminate the IER soon after completing review of the public comments it received.

Other countries, including the United Kingdom, China, Japan, Israel, Germany, Estonia, Australia, and New Zealand, are taking advantage of the attitude change in the U.S., offering start-up visas with eligibility requirements similar to the once-touted IER.

For instance, in Canada, founders of start-ups can become permanent residents in as little as 12 months. The key requirement is sponsorship by one of a group of pre-approved Canadian investor organizations. While the application is being reviewed, the entrepreneur may come to Canada and start working in temporary status. Mezyad Almasoud, a Kuwaiti national with a Yale University degree, thought he had “failed” when he realized he would not be able to stay in the United States to build his technology start-up. He moved his family and his business to Vancouver, where he is hiring Canadians.

The United Kingdom will launch its start-up visa in the spring of 2019. There, too, the entrepreneur must be endorsed by a university or an approved business sponsor. The United Kingdom plans to double the number of Exceptional Talent visas available in order to attract more highly skilled individuals.

Israel is offering a 24-month innovation visa that can lead to a special Expert Visa (extendable for another five years) with such perks as a $20,000 relocation bonus and Hebrew lessons.

Australia has a Venture Capital Entrepreneur process for people who have venture capital funding from members of the Australian Venture Capital Association Limited.

Finally, New Zealand offers an Entrepreneur Work Visa that can lead to residence in three years.

Same-sex couples and unmarried couples also are getting a warmer welcome in other countries, which are offering work permits to partners of skilled workers. This is happening just as the United States is cutting down on work authorization for spouses by moving toward eliminating H-4 EADs and denying visa to same-sex partners of U.N officials.

Bipartisan legislation has been introduced in Congress to create a Start-Up visa. To date, those efforts have stalled.

Jackson Lewis will continue to follow Congressional efforts and the final fate of the IER.

Increased Unannounced Site Visits from USCIS Fraud Detection Arm

Historically, the U.S. Department of Labor’s Wage and Hour Division has been the primary auditor of companies using H-2B visa to hire temporary, seasonal workers. But amid debates over the cap on H-2B visas and an expressed need for more H-2B workers  the USCIS’ Fraud Detection and National Security unit (FDNS) is getting into the mix and conducting unannounced site visits.

Until now, FDNS, according to its website, has been conducting compliance-review site visits on religious worker petitions, H-1B petitions, and L-1 petitions. President Donald Trump’s “Buy American, Hire American” executive order, which directed the Secretaries of State, Labor, and Homeland Security to consult to revise rules and guidance “to protect the interests of United States workers . . . including through the prevention of fraud and abuse” in immigration, appears to have prompted greater sharing of compliance reviews between the DOL and the Department of Homeland Security. USCIS already has set up an anonymous tip line to receive information about fraud and abuse of the H-2B program that may be a source for decisions on H-2B site visits.

Under H-2B regulations, employers must retain information regarding recruitment for a three-year period. DOL audits of H-2B employers generally focus on payroll records, evidence of recruitment and results, and verification of the number of H-2B workers employed. The FDNS site visits reportedly are focusing on similar items, but may be more extensive. If you have H-2B workers, ensure you are complying with all H-2B requirements, including the recording-keeping requirements.

If you have questions about how to prepare your company and your staff for a possible H-2B audit by either DOL or FDNS, please reach out to your Jackson Lewis attorney.

Judge Halts Termination of Temporary Protected Status for El Salvador, Haiti, Nicaragua, Sudan

California Federal Judge Edward M. Chen has issued a nationwide preliminary injunction in Ramos v. Nielsen, preventing the Administration from implementing its decisions to terminate Temporary Protected Status (TPS) for El Salvador, Haiti, Nicaragua, and Sudan, pending final resolution of the case.

This may be particularly good news for Sudanese TPS beneficiaries whose status is scheduled to be terminated in less than a month, on November 2, 2018. The others are scheduled to terminate on January 5, 2019 (Nicaragua), July 22, 2019 (Haiti), and September 9, 2019 (El Salvador).

In addition to finding that the plaintiffs in Ramos v. Nielsen were likely to prevail on the merits of the case, Judge Chen held that in balancing the equities, the immediate harm to the TPS beneficiaries far outweighed any immediate harm to the U.S. He found that the TPS beneficiaries, many of whom have U.S.-citizen children who know no other home than the one they have in the U.S., are facing a “Hobson’s choice” of either leaving the country without their children or leaving with their children and depriving those U.S.-citizen children of their lives in the U.S. Indeed, the Judge found that the U.S., rather than suffering harm from the continuation of TPS, actually might suffer economic harm due to the TPS terminations. Such prospective economic harm could include: $132 billion loss in GDP, $5.2 billion loss in Social Security and Medicare contributions, and $733 million in turnover costs in industries that now employ TPS beneficiaries, including “construction, hospitality, food service, landscaping, home health care, child care and retail . . . .” The court also noted the termination of TPS might have “adverse ramifications internationally” that ultimately would reverberate to the U.S. in the form of “’further irregular migration.’”

Echoing court decisions involving the Travel Bans and DACA, Judge Chen held that, on the merits of the case:

  • The Administration’s decision to no longer consider intervening country conditions may violate the Administrative Procedure Act; and
  • The Equal Protection Clause may have been violated, because of the possibility that the DHS decision to terminate TPS was pre-determined and infected with discriminatory animus.

Judge Chen has ordered the government to preserve the status quo “including all steps needed to ensure the continued validity of documents that prove lawful status and employment authorization for TPS holders” from El Salvador, Haiti, Nicaragua, and Sudan. He also ordered DHS to report within 15 days on the steps it is taking to comply. Judge Chen said he expects to set an expedited scheduled for the merits determination at the next hearing, on October 26, 2018.

Jackson Lewis will continue to provide updates through our blog and on our TPS Work Authorization Tool. Please contact Jackson Lewis with any questions.

U.S. Border Protection Agency Warns: Lifetime Ban Possible for Cannabis Industry Links

Ahead of Canada’s new law legalizing restricted recreational use of cannabis (marijuana), U.S. Customs and Border Protection spokesperson Stephanie Malin stated:

Although medical and recreational marijuana may be legal in some U.S. states and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law. . .

The Canadian law goes into effect on October 17, 2018, and retail sales of cannabis will be permitted, including online or in physical stores. Essentially, the Canadian market will be open to the world.  Because cannabis has been legalized in Washington, Oregon, California, and Nevada, the West Coast of North America will become a contiguous region where marijuana is legal. That does not change the fact that the use and sale of cannabis is not legal under federal law and cross-border movement of cannabis is illegal. A white paper released by the Border Policy Research Institute of Western Washington University noted that “this will result in a situation in which the border is the sole jurisdiction where enforcement occurs.”

Malin’s use of “facilitation” is significant. Facilitation has been broadly defined to include investment in U.S. public companies that trade in marijuana. Indeed, Canadians reportedly have already been denied entry or subjected to lifetime bans for investing in marijuana enterprises in the United States:

  • An individual was banned for life after admitting he was an executive in company that had a subsidiary involved in studying medical marijuana;
  • A chief executive of an agricultural equipment manufacturer was banned for life for attempting to enter the U.S. to discuss designing equipment for a cannabis producer in the U.S.;
  • Another individual received a lifetime ban for investing in marijuana companies in the U.S.

Congressman Luis Correa (D-CA) has asked Secretary of Homeland Security, Kirstjen Nielsen to clarify DHS policy regarding marijuana investments. His concern is that Congress never intended to enforce federal marijuana laws against Canadians involved in a business that is lawful in Canada. He had been seeking information by October 1, 2018, about DHS guidance on this subject, such as how the agency determines who to send to secondary questioning and how it decides that a permanent ban is appropriate.

It is not clear how often non-U.S. citizens are questioned about investments or marijuana use at the border. While it is possible to obtain waivers to enter the United States after being “banned,” that can be a long and detailed process and one that is best avoided, if possible. If you have questions about how to deal with this risk, please reach out to your Jackson Lewis attorney.

DHS Closer to Issuing ‘Public Charge’ Rule

The DHS is getting closer to changing and hardening the standard for determining who is or might become a “public charge” for immigration purposes. The agency “pre-released” a new rule, “Inadmissibility on Public Charge Grounds,” that it plans to officially publish in the Federal Register soon in order to start the 60-day Notice and Comment Period.

Who Will Be Covered by the New Standard?

  • Those applying for immigrant or nonimmigrant status abroad
  • Those seeking admission as an immigrant or nonimmigrant
  • Those applying for Adjustment of Status
  • Nonimmigrants seeking a change of status or extension of status

Who Will Not Be Covered by the New Standard?

  • Most LPRs (Green Card Holders), even when applying to naturalize
  • Generally, refugees, asylees, those on active military duty, and children adopted by U.S.

What is the New Standard of Review?

  • Decisions will be made based upon the totality of circumstances
  • There are thresholds regarding the length and value of the benefits received
  • Officers may consider prior use of benefits, as well as likelihood of future use of benefits
  • Officers will look to the applicant’s age, health, family status, assets, resources, education and skills, and employment history

What Benefits May Subject an Individual to a Public Charge Determination?

  • Cash assistance for income maintenance
  • Most Medicaid participation
  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)
  • SNAP (Supplemental Nutrition Assistance Program), e., food stamps
  • Long-term care at government expense
  • Section 8 Housing Choice Vouchers
  • Section 8 Project Based Rental Assistance
  • Public Housing

What are Some Benefits that Would Not be Considered?

  • Emergency Medical Assistance
  • Disaster Relief
  • National School Lunch Program
  • Head Start Program
  • Receipt of benefits by dependents alone

The 447-page rule is a complex web of regulations. Critics believe that many low-income immigrants will forego programs they or their children may be entitled to out of fear that accepting those benefits will bar them from eventually becoming green card holders – even if those benefits are not covered by the new rule. Others, such as New York State legislators and Governor Jay Inslee of Washington, have argued that the new rule will have a substantial financial impact on some states and that “the proposal disrupts settled law by making unprecedented changes to longstanding immigration policies. . . .” Still others are considering challenging the new rule in court on various grounds, including under the Administrative Procedure Act and under the equal protection clause of the Constitution. These are avenues that have been pursued with regard to the travel ban, TPS, and DACA.

Undocumented individuals are not eligible for most public benefits. Therefore, the rule will affect only those immigrants who are legally in the U.S. or who wish to come to the U.S. legally.

Because of the complex nature of the new rule, the above is meant only to provide general guidance. If you have questions about the effects of the rule, please reach out to counsel. Jackson Lewis will provide additional updates on the new rule.


Diversity Lottery Registration to Open

USCIS has announced that the 2020 Diversity Lottery will open for registration at noon EST on October 3, 2018 and run until noon EST on November 6, 2018.  Fifty thousand green cards will be available.

Eligibility requirements are set out in the Federal Register. This year, individuals from the following countries are not eligible:  Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, UK (except Northern Ireland) and its dependent territories, and Vietnam.

Eligible individuals may apply at dvlottery.state.gov.