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.

Litigation Over H-4 EAD Rule Rescission Continues

The uncertainty regarding the rescission of the H-4 EAD Rule continues to drag on and the plaintiffs in Save Jobs USA v. United States Department of Homeland Security are getting tired of waiting.

Save Jobs, a group of technology workers who claim to have been displaced by foreign nationals, initially challenged the H-4 EAD Rule in 2015 after it was instituted by the Obama Administration. The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the Green Card process. Although Save Jobs lost in the U.S. District Court, it appealed to the Court of Appeals for the D.C. Circuit just before President Donald Trump was inaugurated. Since then, the government has been stalling and requesting that the case be held in abeyance because DHS is working on rescinding the Rule. If DHS rescinds the Rule, the case becomes moot.

Oral argument on the case was originally set for March 31, 2017. The government has asked for five continuances since March 2017:

  • A 60-day pause until April 3, 2017
  • A 180-day pause until September 27, 2017
  • A pause until January 2, 2018
  • A pause until February 2018
  • A pause until June 2018

On August 20, 2018, DHS filed another status report in the case, stating that “[a]s represented to the Court in prior status reports, DHS’s intention to proceed with publication of an NPRM [a new rule] concerning the H-4 visa rule at issue in this case remains unchanged.”

Save Jobs’ attorney, John Miano, noted that the DHS update “gives no time table and no explanation for the delay. . . . At this point it was clear that any proposed rule has just been sitting on someone’s desk for months.”

Close to 100,000 individuals hold EADs based upon the H-4 EAD Rule. They have been in limbo, unable to make decisions about how to move forward with their lives in the U.S. ever since the Trump Administration announced its intention to rescind the Rule. Employers have had to decide whether to try to make “back-up” immigration plans, where possible, for employees on H-4 EADs. The Business Roundtable sent a letter to DHS Secretary Kirstjen Nielsen expressing concern “about changes in immigration policy that are causing considerable anxiety for many thousands of our employees while threatening to disrupt company operations.” On the impending revocation of H-4 EAD status, the letter noted that “[o]ther countries allow these valuable professionals [spouses of H-1B beneficiaries] to work, so revoking their U.S. work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.”

We will continue to follow this litigation and any announcements regarding the NPRM. Meanwhile, individuals in H-4 EAD status should continue to apply for and renew H-4 EADs as early as possible. If you have any questions about how to apply and possible back-up strategies, please reach out to your Jackson Lewis attorney.

E-Verify Subject to Collective Bargaining

While I-9 compliance is important, companies cannot forget about other labor and employment laws. In May 2018, a meatpacking company in Illinois was caught between ICE and the National Labor Relations Board.

ICE conducted an audit of the company’s I-9s. Upon notice of the audit, the company began implementing E-Verify. An NLRB judge ruled that the company violated the National Labor Relations Act by:

  • Transferring work to temporary staffing agency workers without first notifying the union;
  • Dealing directly with the terminated employees regarding severance;
  • Failing to provide the requested documents to the union; and, importantly,
  • Unilaterally changing the terms and conditions of employment by instituting E-Verify without bargaining.

On August 27, 2018, a three-member NLRB panel upheld this decision (even though the union eventually agreed to the use of E-Verify through collective bargaining). The panel stated:

The [company’s] unilateral action compromised the Union’s ability, and the [company’s] incentive, to engage in that give-and-take process with respect to E-Verify by changing the starting point for bargaining. Once the [company] enrolled in the program, it had the greater leverage. The Union was placed in the position of offering concessions to persuade the [company] to restore the status quo and quit the program.

If you have questions about signing up for E-Verify or any other immigration issues in a union environment, please reach out to your Jackson Lewis attorney.

USCIS Explains New Policy on Discretionary Application Denials

Beginning September 11, 2018, USCIS immigration officers will have more discretion to issue petition and application denials without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs).

On September 6, 2018, the Ombudsman’s Office provided further details on the new policy change. The following was noted:

  • The new policy takes effect on September 11, 2018, and will apply to applications received by USCIS on or after September 12, 2018.
  • Adjudicators have full discretion to issue denials where the initial evidence submitted does not establish eligibility or there is no possibility of approval based on the evidence submitted.
  • The new policy is not meant to penalize those who make innocent mistakes or who misunderstand the requirements establishing eligibility, but is intended to promote complete filings so resources can be allocated to timely adjudicate petitions.
  • If the initial required evidence is missing, adjudicators will determine whether this was due to mistake or misunderstanding and to what extent the applicant tried to comply with the instructions and regulatory requirements. If it is determined that the “error” was due to a mistake or misunderstanding, an RFE would be issued instead of an outright denial. USCIS declined to clarify the factors for making a determination, but it provided, as an example, missing pages from an applicant’s passport.
  • USCIS will publish optional checklists outlining the initial required evidence for each visa classification. These checklists are intended for information purposes and are not meant to replace or change the regulatory or statutory requirements.
  • The new policy does not affect or change appeal rights.

The checklists were issued on September 11, 2018, and are available at USCIS.gov.

USCIS is in the process of training officers regarding the new policy memo, and the Field Adjudicators Manual has been updated with guidance on the subject. While USCIS has stated its intention not to penalize “innocent mistakes,” it is unclear how this will play out in practice. For instance, how will USCIS actually determine whether the error was just a mistake on the part of the petitioner or even on the part of the USCIS? Did the petitioner forget to include a transcript or was the copy of the transcript lost by USCIS after the filing arrived at the Service Center?

Jackson Lewis will be following the results of the new policy and will provide updates.

USCIS Raises Premium Processing Fee: Effective October 1, 2018

On October 1, 2018 the premium processing fee for all Forms I-129 (Non-Immigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker) will be raised from $1,225 to $1,410.  USCIS announced this almost 15% increase on August 31, 2018.

According to USCIS, this is the first adjustment in premium processing fees since 2010.  The agency noted that there has been a significant increase in demand for premium processing and that this has hindered its ability to process all petitions and applications.  It appears that USCIS believes that the increase in fees may reduce the demand.  Moreover, the agency notes the increase in fees will allow it to make needed investments in staff and technology.

While raising the fees USCIS is continuing and expanding its suspension of premium processing for most H-1B petitions into 2019. This expansion of the suspension is also meant to provide better service overall by allowing USCIS to catch up on its backlog.

H-1B Premium Processing Suspension Extended, USCIS Announces

While the hope was that the temporary suspension of premium processing for cap-subject H-1B petitions would end on September 11, 2018, USCIS announced on August 28, 2018, that the suspension will continue and be expanded to include other H-1B petitions.

As of September 11, 2018, the suspension will apply to the following H-1B petitions:

  • All H-1B petitions filed at the Vermont and California Service Centers.
  • Any H-1B petitions filed with premium processing before September 11, 2018, will continue to be processed but, if the USCIS does not take action within the 15-calendar-day period, the premium processing fee will be refunded. This suggests that USCIS actually may suspend premium processing prior to September 11, 2018.

Premium processing will still be available for the following H-1B petitions:

  • Cap-exempt petitions filed by cap-exempt institutions and organizations that are filed exclusively at the California Service Center.
  • “Continuation of previously approved employment without change with the same employer” petitions filed exclusively at the Nebraska Service Center requesting consular processing or an extension of stay.

USCIS has noted that this expanded suspension will allow the agency to:

  • Process long-pending petitions;
  • Prioritize cases reaching the 240-day mark; and
  • Prioritize other time-sensitive cases.

According to USCIS, the new temporary suspension is expected to last until February 19, 2019.

If you have any questions about this or other developments, please contact Jackson Lewis.

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