New Public Charge Rule Seen as Latest Effort to Tighten Legal Immigration

By Forrest G. Read IV on

Having focused on enforcement and illegal immigration, the Trump Administration has recently turned to legal immigration.  The new Public Charge rule which will go into effect on October 15, 2019, absent court action, will make it harder for some foreign nationals to obtain green cards or even to secure or extend temporary non-immigrant status.  What has been something that primarily affected family-based immigration may now affect some employers and their employees as well.  Any workers with a family of four and an income of less than $64,000 (or 250% of the federal poverty guidelines) could be subject to the Public Charge Rule.

The Public Charge rule was always meant to limit the admission or immigration of individuals who were not basically self-sufficient.  Until recently, the rule was interpreted to cover individuals who accepted cash welfare benefits.  But now the rule will also include those who use (or might use) food stamps, government-subsidized housing vouchers and subsidized medical insurance — if they use any of the covered benefits for 12 aggregate months or more during any 3-year period.  While any determination by USCIS or the Department of State at Consulates and Embassies abroad will still be based upon a consideration of the “totality of the circumstances,” the Public Charge rule likely will be more central to the discretionary decision-making process.   The rule will not apply in all circumstances.  There are exceptions.  For instance, the rule will not be applied to U.S. citizens  or penalize receipt of benefits by U.S. citizens — even if the U.S. citizen is related to the applicant for immigration benefits.  And, among other exceptions, the rule will not apply to refugees or pregnant women for up to 60 days after giving birth.

The new public charge rule has been widely criticized.  Lawsuits challenging the rule are expected.  Seventeen state attorneys general have argued that DHS “failed to estimate the true costs” of the regulation.  DHS itself stated in its discussion regarding the new rule that “[w]hile some commenters provided support for the rule, the vast majority of commenters opposed the rule.”  There is reportedly fear among immigrants about the impact of the rule. Since the mention of changes in the Public Charge rule, immigrants have been afraid to apply for benefits they need – even benefits for their U.S. citizen children.

With the attempt to add a citizenship question to the census, the ICE raid on poultry processing plants in Mississippi,  and now the announcement of the new Public Charge rule, the Trump Administration has in a short time made headway on one of President Donald Trump’s key campaign issues — protecting U.S. workers by limiting and chilling certain types of immigration to the United States.  Among the Administration’s priorities is limiting or eliminating “immigration magnets” such as government assistance and the related possibility of employment.

The new rule is over 800 pages long and complex.  If you have questions about how this could affect your workforce, your Jackson Lewis attorney is available to assist.

H-1B Electronic Registration Fee Expected

By Amy L. Peck on

Employers have paid about $7 billion in H-1B fees over the past 10 years. Now, a new fee is coming – the electronic registration fee.

Electronic pre-registration for the H-1B lottery is set to begin for the 2020 cap season. The government’s idea is that conducting the lottery based upon pre-registrations (rather than complete filings) will be more efficient for USCIS and less costly for employers who will not have to file complete petitions unless their cases are selected in the lottery. Initially, DHS decided not to impose a fee for pre-registration, but it left the door open.

During the comment period for the new H-1B rule, some immigration watchdog groups expressed concern that employers, particularly large users of H-1B visas, could “game the system” if a fee were not imposed. Contrarily, business organizations were concerned that high registration fees might hurt small employers. DHS replied that it would be taking steps “to prevent speculative or frivolous registrations.” Ultimately, DHS decided to impose a fee. That proposal has cleared the Office of Management and Budget review. The next step will be publication in the Federal Register, however, the amount of the fee has yet to be revealed.

We will update you with the fee information when it is available.

Congress Questions DHS on Immigration Processing Delays

By William J. Manning on

The House Judiciary Committee Subcommittee on Immigration and Citizenship asked the Department of Homeland Security to account for the delays in immigration processing at a hearing on July 16, 2019.

Representative Zoe Lofgren (D-Cal.), who chaired the hearing, wanted an explanation for the 2.4 million application/petition backlog, as well as processing delays that have reached crisis levels. Processing times have increased 46 percent over the past two years and 91 percent since 2014. Delays of a year or more are far from unheard of.

The DHS officials explained to Congress that the delays were partly caused by unanticipated spikes in demand that led to erroneous staffing forecasts. USCIS was adding staff as quickly as possible, shifting workloads to accommodate demand, and leveraging technology, among other things, to relieve the backlogs.

A week later, it was reported that USCIS staff had been asked to volunteer to assist Immigration and Customs Enforcement (ICE) with enforcement activities. Since USCIS had just reported that it needed more staff to handle the processing of immigration benefits, some members of Congress were concerned that USCIS staff might actually be shifted to another agency – especially because more delays could mean that businesses and the economy will suffer.

Although USCIS and ICE are agencies within the DHS, their roles are very different. USCIS offers customer service – determining eligibility and granting immigration benefits. ICE handles enforcement – determining whether individuals are complying with all immigration laws and regulations and making arrests when necessary.

In a letter to Kevin McAleenan, Acting Secretary of DHS, and Ken Cuccinelli, Acting Director of USCIS, ten members of Congress asked for clarification. First and foremost, they wanted to know if an email had been sent by management to USCIS staff asking for volunteers to assist with administrative duties at ICE field offices. The representatives also wanted to know:

  • If so, which agency came up with the idea – ICE or USCIS?
  • To whom was the email sent?
  • How many USCIS staff volunteered to help with the enforcement efforts?
  • Was counsel consulted before making the request?
  • Did anyone evaluate the effect on USCIS processing times?

As of this writing, the representatives have not received a response.

Please contact a Jackson Lewis attorney with any questions.

Will Student-Athletes on F-1 Visas be Affected by the Fair Pay to Play Act ?

By Amy L. Peck and Gregg E. Clifton on

California SB 206 would allow college-level student-athletes in California to market their name, image, and likeness without affecting their amateur status. How may the new law, which is in the final phases of approval, affect international student-athletes?

Foreign students enter the United States on F-1 student visas. The terms of this type of visa drastically restrict the ability of the individual to earn money while studying in the United States as an international student.

The F-1 visa is a non-immigrant student visa that allows foreign-born individuals to pursue academic studies in the United States. International students must meet the following criteria in order to qualify:

  • The student must be enrolled in an “academic educational program”
  • The specific school must be approved by the Student and Exchange Visitors Program, which is administered by Immigration & Customs Enforcement
  • The student must be enrolled as a full-time student at the proposed school
  • The student must be proficient in English or enrolled in courses leading to English proficiency
  • The student must have sufficient funds to be able to support themselves during the entire length of their proposed course of study and stay in the United States.
  • The student must maintain a residence abroad that the student has no intention of abandoning
  • The F-1 student cannot work, except in specific circumstances regulated under federal law

The terms of the F-1 visa restrict the student from working off-campus during their first academic year.

F-1 students may engage only in three types of off-campus employment: Curricular Practical Training, Optional Practical Training, and Science, Technology, Engineering, and Mathematics Optional Practical Training Extension. All off-campus employment for F-1 students must be related to their area of study and authorized by the Designated School Official before starting any work. An F-1 visa does not authorize any other type of work activity and clearly does not authorize international student-athletes to enter into endorsement agreements to secure remuneration for their name, image, and likeness.

In fact, an international student found to have been working illegally while on an F-1 visa is deemed to have committed a serious violation of the regulations and could result in the student being deported.

The proposed California legislation authorizes student-athletes at all 24 California public and private colleges and universities to market their name, image, and likeness and restricts the ability of the NCAA to prevent student-athletes from participating in any such marketing opportunities.

SB 206 fails to address the predicament of the international student-athlete.

How will the hundreds of international student-athletes participating on California colleges and universities teams benefit from the new legislation? Will the California legislature address this apparent loophole that would restrict an international student-athlete from benefiting from the value of their name, image, and likeness before the bill can be signed into law by Governor Gavin Newsom?

Jackson Lewis’ Collegiate and Professional Sports Practice Group is prepared to counsel colleges and universities on any of the issues that may arise if the SB 206 becomes law. The Practice Group will continue to monitor the status of this proposed legislation and similar legislation that has been introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

The New Normal: Sustained Rise in Worksite Immigration Raids

By Michael H. Neifach and Amy L. Peck on

Six hundred and eighty workers from seven poultry processing plants across Mississippi were arrested by ICE in what was the largest workplace raid in a decade. Raids of this size require complex logistics and months of preparation. This raid has been in the planning stages for a year. “Sources close to the Department of Homeland Security said they recognized that the optics were difficult following the El Paso shooting. But preparation for the operation had been underway, with hundreds of government operatives flown in days ago.”

Beyond the disruptions in the plants, the employers may be subject to civil and criminal fines and penalties if they are found to have knowingly hired undocumented workers. One company’s spokesman stated that the poultry processing industry does everything it can to ensure its workforce is legal, including using E-Verify. Of course, E-Verify is not perfect. Employees can be using others’ identities – including those of dead citizens and even of their own U.S. citizen children. The government does not expect employers to be forensic experts on document fraud.

Losing so many workers will affect production at these plants. The United States consumes more chicken than any other country – 93.5 pounds of broilers per capita in 2018. Mississippi is one of the top five broiler-producing states. One plant employee noted: “[w]ithout [the workers] here, how will you get your chicken?”

The Mississippi raids come on the heels of a surge in I-9 notices of investigation — 3,000 were sent to employers in July 2019. And that was proceeded by a surge in No Match Letters sent to employers during the spring, as well as other large-scale ICE raids around the country.

In this atmosphere, employer preparation is key to minimizing business disruptions. If you have questions or concerns about how to prepare for investigations and raids, please reach out to a Jackson Lewis attorney.

USCIS Revising, Updating Naturalization Test

By Peter A. Reca on

USCIS is on its way to revising and updating the Naturalization Test. It will start with a pilot test involving about 1,400 volunteers this fall, then a second field testing pilot in spring 2020.

Last updated in 2008, the new Naturalization Test is expected to be implemented as soon as late-2020.

Recent issues surrounding the Administration’s attempt to add a citizenship question to the 2020 census and delays in processing naturalization applications have prompted the Acting Director of USCIS, Ken Cuccinelli, to tell the Washington Post that paranoia regarding the reason for these changes is not warranted. People who are paranoid will be “sorely disappointed when [the new test] looks like another version of the [current] exam.” Decennial revisions are proposed to “ensure that the civics education requirements remain a meaningful aspect of the naturalization process.”

The working group revising the test includes staff from across USCIS. The group is “soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent.”

Currently, naturalization applicants are asked 10 randomly selected questions from a list of 100 (the list is available on the USCIS website). The questions are on American government, history, and civics and reflect middle school and high school curricula. To pass, 6 of the 10 questions must be answered correctly. There is a 90% pass rate among applicants. A 2018 survey by the Woodrow Wilson National Fellowship Foundation showed the pass rate among U.S. citizens was only 36%. Citizens over the age of 65 had the highest pass rate: 74%.

Test yourself. Answer the following (answers are at the bottom of this post)

  1. Why did the colonists fight the British?
  2. When was the Declaration of Independence adopted?
  3. How many amendments does the Constitution have?

Along with changes to the civics test, the agency also is considering changes to the English language proficiency test. According to the naturalization statute, applicants must read and write “simple words and phrases” and “no extraordinary or unreasonable condition shall be imposed upon the applicant.”

When Francis Cissna, then-Director of USCIS, announced the revision he noted that the new tests would continue to provide “special consideration” to those over 65 who have lived in the U.S. as green card holders for at least 20 years. He also stated that “due consideration” would be given to “applicants’ education, background, age, length of residence in the United States, opportunities available and efforts made to acquire the requisite knowledge, and any other elements or factors relevant to an appraisal of the adequacy of the applicant’s knowledge and understanding.”

Last year, 750,000 applicants were naturalized. In the years preceding presidential elections, the application levels typically increase.

****

The answers:

  1. Because of high taxes (taxation without representation), because the British army stayed in their houses (i.e., boarding and quartering), or because they did not have self-government
  2. July 4, 1776
  3. 27

Could Venezuelans Gain TPS Eligibility?

By Forrest G. Read IV on

The Trump Administration has been trying to put an end to Temporary Protected Status (TPS) for many countries including: El Salvador, Haiti, Honduras, Nepal and Sudan. Upon legal challenges to TPS termination, the courts have delayed termination at least temporarily. The Secretary of the Department of Homeland Security (DHS) generally has the authority to designate a foreign country for TPS when it is not safe for individuals to return home due to ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. But Congress is taking TPS into its own hands for a “new” group – Venezuelans who are currently living in the United States.

The Venezuela TPS Act of 2019 is co-sponsored by two representatives from Florida – Darren Soto (D) and Mario Diaz-Blart (R). It passed the House by a majority, but not a veto-proof two-thirds majority.

Venezuela’s economy is in a collapse and food shortages are reported. Representative Diaz-Balart stated that TPS would protect those “who have fled the oppressive Maduro dictatorship . . . until it is safe for them to return . . .”  The Congressional Budget Office reports that approximately 200,000 Venezuelans who are seeking refuge in the United States would be eligible for TPS. DHS reports Venezuelan asylum applications have grown exponentially since 2014.

President Donald Trump and Acting Director of USCIS, Ken Cuccinelli, had denied requests to institute TPS for Venezuela through an administrative process despite the Administration’s condemnation of the conditions in Venezuela. The hope is that the bi-partisan support in the House will lead to the Senate taking up and passing the bill. The bill was introduced in the Senate by Senator Robert Menendez (D-N.J.) in February and does have some bi-partisan support, including from Senator Marco Rubio (R-Fla.)

Jackson Lewis will provide updates as they become available.

DHS High-Pressure Activities Continue

By Amy L. Peck on

The Department of Homeland Security Immigration and Customs Enforcement (ICE) has sent an unprecedented number of I-9 audits, called Notices of Inspection (NOIs), in the previous three weeks reportedly to more than 3,000 companies. At least another 3,000 are likely on the way since ICE has requested (and received) an additional $6.5 million to hire new 27 Junior Compliance Officers (JCOs), some of whom will be staffing four new HSI (Homeland Security Investigation) offices in Charlotte/Charleston, Kansas City, Las Vegas, and Nashville/Louisville.

This hiring surge is part of ICE’s mission to “remov[e] the magnet of illegal employment by targeting egregious employer violations and abuses in both critical infrastructure protection (CIP) business sectors and non-CIP business sectors.” In reality, I-9 audits are an inexpensive way for the government to shift the burden of interior enforcement onto businesses, who bear the cost of replacing valuable workers and, sometimes, paying large fines for mistakes on the Forms I-9. A company receiving an NOI has three days to produce the I-9s for active and terminated employees within the retention time frame. Extensions of the three days are rarely granted.

Acting Director of ICE, Matt Albence, said the goal of the agency’s surge “is to pursue criminal prosecution against those businesses [whose] business model is based upon illegal employment.” Criminal charges companies can face range from crimes for the unauthorized hiring of undocumented workers, harboring, tax evasion, and money laundering to wage and hour violations. Large civil penalties can also be assessed for mistakes on the I-9, ranging from $220 to $2,292 per violation. Employers with unauthorized workers who are discovered during these investigations will be given 10 days to terminate their employment, which can have a devastating impact on the business. Additionally, ICE reportedly may do more “surprise” Targeted Enforcement Investigations – also known as ICE “raids” – based upon tips or information gathered in audits.

In 2018, there were 5,981 audits, up from 1,360 in 2017. This year, 3,282 audits were noticed in just three weeks. Targeted industries include hospitality, agriculture, food processing, landscaping, and construction. Since 2017, ICE has been issuing some of the largest penalties in its history. In September 2017, one company was assessed a $95 million penalty. More recently, ICE arrested more than 200 workers in a raid at a technology company in Texas.

When audits occur, companies can lose employees — overnight —and not necessarily to ICE. Upon hearing that an ICE audit is coming, employees concerned about their documentation may simply no longer show up for work.

How Can You Prepare?

  • Update Form I-9 and hiring protocols
  • Proactively conduct a self-audit of I-9 Forms
  • Educate and train local managers and supervisors involved in hiring and employment verification
  • Work with counsel on action plans, processes, and chain of command in case of an audit or a raid

Most important, do not ignore a NOI from ICE. Jackson Lewis attorneys are available to assist you if you receive a NOI and to help proactively strategize and prepare for a possible investigation or raid.

 

Changes to EB-5 Investor Visa Program

By Minnie Fu on

USCIS has published its new final rule significantly changing the EB-5 Immigrant Investor Program to address concerns about fraud, abuse, and national security risks. The new regulations will become effective on November 21, 2019.

The EB-5 Investor Visa Program was created almost 30 years ago to incentivize foreign investments and create jobs in the United States, particularly in underserved areas.

Under the EB-5 Program, foreign investors (and their dependents) may apply for permanent residence (“green cards”) — and, eventually, citizenship — if they make the necessary investment in a commercial enterprise in the United States and create or preserve at least 10 permanent full-time jobs for U.S. workers. A certain number of these visas are set aside for individuals who invest in enterprises in designated regional centers — areas identified as having high unemployment. The EB-5 Program has been used effectively by many real estate developers. It was most popular among Chinese investors, but, recently, more investment has been coming from South America.

As a result of the popularity, however, applicants from certain countries that constitute the majority of the EB-5 investors suffer from extensive wait times for immigrant visa number availability. For example, Chinese nationals can wait for up to 15 years for their priority dates to become current, and processing times for the two sets of petitions that must be filed (Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status) can take from two years to four years each. Priority date issues will subside for Chinese nationals if the Fairness for High Skilled Workers Act (or the BELIEVE Act) is passed, but the wait times for entrepreneurs from other countries will grow.

Key changes in the new rule include the following:

  • The standard investment amount will increase from $1 million to $1.8 million.
  • The investment amount for regional centers will increase from $500,000 to $900,000.
  • In order to eliminate gerrymandering, states will no longer be able to designate regional centers; that will be reviewed and determined by DHS.
  • To improve the adjudication process and provide flexibility, certain derivative family members will have to file independently of the principal investor to remove conditions on their permanent residences. To help with priority date issues, in certain circumstances, petitioners will be able to retain priority dates from previously approved EB-5 petitions.

Jackson Lewis attorneys will continue to monitor the implementation of the new EB-5 regulations and are available to answer your questions about them.

 

Eugene Scalia May Become Next Leader of Labor Department

By Maggie Murphy on

When Alexander Acosta resigned as Secretary of Labor, his deputy, Patrick Pizzella, took over as Acting Secretary. Rather than keeping Pizzella in place, President Donald Trump announced on July 18, 2019, that he intends to nominate Eugene Scalia, the son of late-Justice Antonin Scalia, as the new Secretary.

President Trump tweeted that Eugene Scalia is “highly respected not only as a lawyer but as a lawyer with great experience working with labor and everyone else.”

Eugene Scalia is well-known, especially in Republican circles. He was Solicitor in the Labor Department during the George W. Bush administration and a special assistant to William Barr when Barr was U.S. Attorney General in that same administration. Scalia also represented Bush in Bush v. Gore before the U.S. Supreme Court.

As a partner at Gibson, Dunn & Crutcher in Washington, D.C., Scalia co-chaired the firm’s labor and employment practice group for 12 years and co-chairs its administrative law and regulatory practice group. He is a management-side attorney and reportedly has a reputation for litigating against federal labor and securities regulations. He faced union opposition in 2002 when he was nominated for the Solicitor position.

Support for the nomination has broken down along party lines. Senator Tom Cotton (R-Ark.) stated, “I’m confident [Scalia will] be a champion for working Americans against red tape and burdensome regulation as Labor Secretary.” Senate Minority Leader Charles Schumer (D-N.Y.) stated that with this nomination President Trump was betraying workers and union members and, instead, “has again chosen someone who has proven to put corporate interests over those of worker rights.”

Scalia is expected to be confirmed by the Senate as Secretary of Labor.

 

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