New Yorkers can once again register for Trusted Traveler Programs.

However, registrants should note that, due to COVID-19, Trusted Traveler Enrollment Centers are closed until at least September 8, 2020.

In early February 2020, the Department of Homeland Security (DHS) prohibited New Yorkers from registering or re-registering for Trusted Traveler Programs, including Global Entry, SENTI, NEXUS, and FAST (Free and Secure Trade). New Yorkers were singled out for this treatment because New York’s Driver’s License Access and Privacy Act, also known as the “Green Light Law,” gave undocumented residents the right to apply for driver’s licenses and prevented the Department of Motor Vehicles (DMV) from releasing their database information to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) absent a court order. At that time, the New York Attorney General sued DHS over New Yorkers’ exclusion from the Trusted Traveler Programs.

In court, the government argued that New York’s Green Light Law prevented CBP from accessing records they needed to vet applicants for Trusted Traveler Programs. In April 2020, New York amended the Green Light Law to allow the DMV to share records “as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports.” Notably, the case revealed that other states had similar laws to New York’s Green Light Law, that DHS was able to vet program applicants in those states, and that none of those states were “punished” with exclusion from the programs. As a result, the government asked to withdraw their motions for summary judgment and to dismiss, and DHS lifted the suspension on New Yorkers.

New York Governor Andrew Cuomo stated he was “glad that this issue has finally been resolved for all New Yorkers.” But, in a press release, Acting Secretary of the DHS Chad Wolf said he appreciated the information sharing regarding the Trusted Traveler Programs, but chastised New York for continuing to block federal access to DMV records, which he believes “creates a significant threat to both public safety and officer safety.”

Please contact a Jackson Lewis if you have any questions.

New USCIS filing fees will go into effect on October 2, 2020, under a new final rule published by the Department of Homeland Security (DHS) in the Federal Register on August 3, 2020. This rule raises fees by a weighted average of 20% and changes the current fee structure to impose specific fees per visa category.

USCIS, a fee-based agency, has stated the increase in fees was required to avoid a DHS projected deficit of $1 billion per year. Some fees will decrease, but others will increase dramatically – such as a more than 80% increase for citizenship applications. Other larger percentage increases include popular business-related petitions:

  • 51% increase for TN and E petitions to $695
  • 75% increase for L petitions to $805
  • 53% increase for O petitions to $705
  • 34% increase for I-765 Employment Authorization Documents to $550 (excluding DACA)

Employers whose workforce is comprised of at least 50% H-1B or L-1 workers will see even bigger increases. Already paying an additional $4,000 for a new H-1B visa and an additional $4,500 for a new L-1 visa, those companies will be required to pay the additional fees for renewals as well. It is reported that this alone will bring in $200 million per year in fees to USCIS.

Employers filing H-2A and H-2B petitions for temporary, seasonal agricultural and non-agricultural workers also will see an increase, from $460 to $850 (85%) and $715 (55%), respectively. This comes despite the Administration’s recognition of the essential nature of workers involved in the food supply chain during the COVID-19 pandemic national emergency.

The USCIS Premium Processing fee, which brought in $2.39 billion in fees to USCIS between 2014 and 2019, will not increase, but the processing time has changed from 15 calendar days to 15 business days, up from two weeks to three weeks.

Comments on the new rule include a suggestion that USCIS increase its own efficiency instead of “charging more and providing less service.” Others noted the Administration’s own policy failings created the need for increased fees, citing the following as areas of concern:

  • Frivolous Requests for Evidence
  • “Extreme vetting”
  • Long suspensions of premium processing
  • Unnecessary in-person interviews
  • Increased denaturalization efforts
  • Litigation of improperly denied applications

In addition, commentators complained of the negative impact the increased fees would have on potential immigrants, the businesses that need to employ them, and the economy. To these and other comments submitted, DHS responded that it understands immigrants make significant contributions to the United States economy, but this final rule is not intended to impede or limit naturalization or legal immigration. Other commentators suggest the Administration’s policies have already impeded immigration and fee increases are not likely to help alleviate that.

USCIS also plans to publish updated forms before the new fees go into effect, including a new Form I-129 and a new Form I-765.

If you have any questions about the new fees or the new forms, please reach out to your Jackson Lewis attorney.

 

 

Employers need to ready themselves for investigations from the Department of Labor (DOL) into the use of H-1B visas.

Without Congressional oversight or legislative changes, the Trump Administration has changed the policies for H-1Bs, resulting in the highest denial rate in history of this legal immigration program. During the ongoing COVID-19 pandemic national emergency, the Administration has issued a number of executive changes further restricting immigration, including a Presidential Proclamation restricting the entry of foreign nationals in H-1B status (among others) until at least the end of 2020.

Most recently, in conjunction with that Presidential Proclamation, USCIS and DOL have entered into an agreement to further share data so that DOL can conduct “more robust examinations” of employers’ H-1B usage. According to a DOL press release, “No previous Secretary of Labor has ever exercised this authority.”

In the past, USCIS has conducted unannounced worksite visits to ensure H-1B compliance. With DOL stepping into this new role, employers likely will see additional investigations and penalties for violations, including awards of back pay for wage errors. The added risks for businesses come as many of them continue to argue that making it harder to hire H-1B workers only harms the economy and does nothing to promote economic recovery.

Jackson Lewis attorneys are available to help you prepare for these new enforcement efforts by advising on auditing your H-1B petition processes and your H-1B public access files.

On July 29, 2020, U.S. District Court Judge George B. Daniels of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Administration’s Public Charge Rule during the declared national health emergency in response to the COVID-19 pandemic.

The Rule makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was meant to go into effect on October 15, 2019. Before that could happen, in an earlier decision, Judge Daniels enjoined it. Ultimately, the U.S. Supreme Court lifted the injunction, but left open the possibility of further filings in the lower courts.

New York, Connecticut, and Vermont took up that challenge and sought a new injunction based on “new harms” that had become apparent due to the COVID-19 pandemic. Despite the Supreme Court ruling, Judge Daniels agreed he could review the case again. He wrote in his opinion that the plaintiffs provided “ample evidence that the Rule deters immigrants from seeking testing and treatment for COVID-19, which in turn impedes public efforts . . . to stem the disease.” He also noted that many immigrants who were affected by the Rule continued to work during COVID-19 to provide healthcare, food, and sanitization across the country and were essential to COVID-19 recovery.

Although the Administration had issued an alert earlier this year indicating that immigrants would not be penalized under the Public Charge Rule for seeking COVID-19 treatment, the Judge agreed that the alert did not go far enough and simply added to the “confusion and chaos” that was leading immigrants to forego care. He stated, “What were previously theoretical harms have proven to be true. We no longer need to imagine the worst-case scenario, we are experiencing its dramatic effects in very real time.”

In a companion case, Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the Public Charge Rule and its attendant Health Insurance Proclamation for visa applicants abroad. He stated that the plaintiffs were likely to succeed on their claims that the Rule as applied by the DOS violated the Administrative Procedures Act, because no reasonable justification for the Rule had been offered and because proper notice and comment procedures were not followed. The Judge also found the Rule was likely contrary to the Immigration and Nationality Act (INA).

The Administration probably will appeal these decisions. If you have questions regarding the applicability of the new injunctions, Jackson Lewis attorneys are ready to assist.

 

In response to the June 2020 U.S. Supreme Court decision that the DACA program had not been properly terminated by the Trump Administration, President Donald Trump has announced he will be instituting a comprehensive review of the program. During that review, current DACA beneficiaries will be able to renew their statuses for one year, he said.

However, during this period, no new applications will be accepted by DHS, the Administration said. Moreover, absent exceptional circumstances, Advance Parole will not be issued to any DACA beneficiaries. This is notwithstanding the fact that on July 17, 2020, following the Supreme Court ruling, a federal court in Maryland ordered DHS to start processing new applications along with renewals. The Administration apparently has chosen not to comply. The California Attorney General, Xavier Becerra, one of those who spearheaded the original DACA case, has said he will go back to court.

The comprehensive review of DACA being proposed by the Administration will take place over a 60- to 100-day period. This could very well mean that any decision will not come down until after the November election (unless Congress acts).

Jackson Lewis attorneys are available to assist you with questions and strategies to deal with the current DACA situation.

USCIS confirmed that its planned furlough of 70% of its workforce (13,400 employees) will be postponed at least until the end of August. The ostensible reason for the furlough was a budget shortfall, even though USCIS is a fee-based service that historically has covered costs.

The furlough announcement, when coupled with the anti-immigration agenda from the White House, caused some to question the claim that USCIS had of a $571-million deficit for FY 2020. Agency and indeed recent reports show that USCIS will end the fiscal year with a budget surplus large enough to keep employees on the payroll for now. In the meantime, Congress will have to time to act to provide emergency relief for FY 2021. As of July 10, 2020, the surplus was reportedly $121 million.

Senators Patrick Leahy (D-Vt.) and John Tester (D-Mont.) wrote to Acting Secretary of Homeland Security, Chad F. Wolf, when they learned of the surplus, which was in “stark contrast” to the previous deficit prediction. The Senators implored the agency not to put more American jobs “on the line” at this time of “unprecedented unemployment.” They made it plain that it was not just the employees who would be harmed.

[T]housands of United States Citizens, employers, and students rely on USCIS work, including members of the military. The loss of these valuable jobs will also cause hardship to the communities where these federal workers live and work – communities already struggling with the pandemic.

The USCIS Deputy Director for Policy, Joseph Edlow, stated that the changed forecast, occurring after an investigation, is due to increased revenue over the past few weeks. This revenue could be the result of Cap H-1B filings and the opening up of premium processing. At the end of March, USCIS suspended premium processing. On June 1, 2020, the agency slowly started resuming it. By June 22, 2020, premium processing became available for all I-129 petitions, including cap-subject petitions. At $1,440 for each petition, this resumption could account, at least partly, for the increased USCIS revenues. Given the current processing delays and the pent-up demand for premium processing, an increase in revenue could have been expected – and the fear of an almost-total halt in immigration processing alleviated.

USCIS union members (members of the American Federation for Government Employees) speaking to reporters explained that while the pandemic has decreased petitions, the agency has been crippled by “previous policy decisions that have restricted legal immigration.” In 2018, there was 17% decrease in petitions and applications. Since then, the public charge rule and increases in vetting, denials, requests for evidence, interviews, delays, and backlogs have led individuals and companies to file fewer petitions and applications. For some companies, it has become easier and more predictable to move jobs out of the United States into more welcoming environments. The impact of such a move is the opposite of what is needed in the U.S. economy’s recovery.

Senator Leahy expects to address the USCIS’ 2021 deficit with the next COVID-19 relief package.

If you have any questions, please contact a Jackson Lewis attorney.

 

 

 

The Department of Homeland Security (DHS) has extended its flexibility regarding the physical presence requirements for I-9 inspection for another 30 days, until August 19, due to the ongoing precautions related to the COVID-19 pandemic.

Eligible employers may continue to inspect Section 2 documents remotely (e.g., over video link, fax, or email) and must have a written documentation of their remote onboarding and telework policy that is available to employees. If employers are not eligible for the flexibility, they may continue to designate authorized representatives to act on their behalf to review documents in person.

All employees who were onboarded remotely must report to their employer within three business days for in-person verification once the employer’s normal operations resume. This date may be different (earlier or later) than the date the government policy ends.

How does DHS define who is eligible for flexibility and when does that flexibility end as normal operations resume?

DHS has said that if employees are physically present at a work location, flexibility does not apply. This rigid interpretation lacks understanding of the complexity of the current workforce, such as when Human Resources professionals are not on site. Therefore, each employer should design a policy around its particular situation, so the employer’s actions are defensible.

ICE may significantly increase audits as soon as worksites start reopening. Therefore, it is important to have a plan for reinstituting “normal” I-9 processes and making a good faith effort to comply. For more information on possible steps to take, please see our prior blog.

Jackson Lewis attorneys are available to assist in determining the best steps to take based on your company’s particular circumstances and will continue to provide updates as they become available.

In a move that was not surprising due to the spike of COVID-19 cases in the United States, Prime Minister Justin Trudeau of Canada and the Mexican Foreign Ministry have both announced the continuation of the COVID-19 border restrictions between Canada, Mexico and the United States.  These restrictions were first announced in March and have been extended four times since then.  The restrictions are now set to expire on August 21, 2020 but are subject to further extensions.

These closures are not meant to affect essential goods and services.  But travel for tourism including but not limited to sightseeing, recreation, gambling or attending cultural events is non-essential and not allowed.  The restrictions only affect land ports of entry.

Please reach out to your Jackson Lewis attorney for any questions regarding this border closure.

In a surprise announcement, District Judge Allison D. Burroughs, U.S. District Court for the District of Massachusetts, announced a reversal of the government decision that was announced just last week regarding students in F-1 or M-1 nonimmigrant status. Foreign students will now be able to enter the United States and remain even if they are only taking online courses. The government agreed to resume the flexibility it had announced in March when COVID-19 forced most colleges and universities to go online.

On July 6, 2020, ICE sent higher education into chaos by announcing a last-minute change from that flexibility. Colleges and universities that had been working on re-opening plans for months were being asked either to turn on a dime and create new plans immediately that included in-person teaching or to forgo having foreign nationals on campus. This was not only disruptive to the schools; it also wreaked havoc on the lives of the students who had already made plans for the fall semester, including housing and travel. More significantly, the announcement dashed the dreams of many students and had the potential to harm the universities financially – possibly depriving them of needed tuition payments.  Some members of Congress writing to USCIS and DHS called the sudden change “cruel and unconscionable.” They noted that the over one million foreign nationals who attend universities across the country are important not only for the talent and diversity they bring, but also for the financial support that they give to the universities and to the economy. In one recent year, international students added close to $41 billion to the U.S. economy leading to the creation of 458,290 jobs.

The change in policy led to two suits in the United States District Court in Massachusetts – one filed by the two prominent universities that was joined by close to 200 other institutions, and another filed by the Attorney General of Massachusetts that was joined by the states of Colorado, Connecticut, Delaware, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia in a separate suit in the District of Massachusetts challenging the Administration’s order. Suits also had been filed by the California Attorney General on behalf of colleges and universities in that state.

It appears that the likelihood of a quick and decisive loss led the Administration to back down. For some time, it has been creating an unwelcoming atmosphere for foreign students. Perhaps this reversal of policy will help turn the tide.

Foreign nationals with approved permanent residence applications but no actual permanent resident card (known as Green Cards) are not the only ones dealing with the printing back-up at USCIS. After deciding to bring the printing of Green Cards and all other employment authorization documents in-house, USCIS is not able to keep up with the demand. It reportedly has a backlog of 75,000 other employment authorization documents (EADs) in addition to a backlog of 50,000 Green Cards.

Green Card holders are required by law to carry evidence of their permanent residency status. For most, this means carrying their unexpired residency cards. Green card holders who are changing jobs also may choose to use the unexpired residency card to prove that they have employment authorization and complete Form I-9 employment verification documents. The delayed card production creates harm in both of these situations. The EAD card production delays create further chaos and harm to these workers. Not only must a foreign national working on an EAD present a valid card to start new employment, but the card itself, generally valid for only one or two years, needs to be renewed and presented for reverification to allow the foreign national to continue working. Work interruptions caused by the lack of card production at USCIS unfairly harm both the employee and the employer.

Certain foreign nationals with EADs (such as refugees), those whose cards are based on adjustment of status applications, and students filing for STEM OPT EADs may continue working for up to 180 days with an expired EAD if their renewal application was submitted prior to the expiration date of their current card. But foreign nationals who are dependents of L-1 and J-1 visa holders and DACA recipients who are working on EADs have no such “grace period.” These days, even that six-month grace period may not be enough if card production stops or is delayed further.

The inability of the government to do its job leads to extreme consequences. Employees are not able to start or continue jobs — putting their families at serious risk. It also undermines employers who cannot hire essential workers and end up having to put continuing projects at risk. Given USCIS’ self-inflicted printing problem, perhaps it is time the Department of Homeland Security (DHS) prioritizes printing, come up with an interim card solution, or at the very least, create new and longer “grace periods” based upon timely filing of EAD applications.

Please reach out to your Jackson Lewis attorney for strategies on how to deal with the current backlog.